Harsher punishment won’t keep kids safe from sexual abuse: the death penalty in India

When rape makes the headlines in India, talk of hanging begins. Commentators blare from news screens; politicians pledge death. These stories of brutal crime and brutal punishment, all in the name of protecting women and girls, tell us something  important about contemporary Indian responses to rape. They also tell us about a fundamental flaw in our thinking about sexual violence and punishment across contexts: a mistaken idea that the primary threat to women and children is from the “outside” or the “stranger” rather than our own homes.

The death penalty has emerged as a response to rape in India two major incidents in the past few years. After the horrific rape and murder of Jyoti Singh, known in the international news as Nirbhaya, “the fearless one,” on December 16, 2012, demands for the death penalty clamored. Five years later, the Indian Supreme Court, which recently has been restrained in its approval of the death penalty generally, approved the hanging of four of Jyoti Singh’s murderers (one had killed himself in prison; one, a juvenile, had already served his time).

The death penalty has emerged again following the disturbing rape and murder of Asifa. Asifa was a Muslim nomadic child, gang raped and killed in a Hindu temple by a group of Hindu men who wanted to send a gristly, unthinkable warning to the Muslim nomadic people to cede their traditional land use rights. In the outpouring of grief and anger afterward, the Indian cabinet approved the death penalty as punishment for the rape of a child under twelve. 

This is precisely opposite the response to rape advocated by Indian feminists. Following the rape and murder of Jyoti Singh, a group of Indian feminists were appointed to the Justice Verma Committee constituted under the former Chief Justice of India to draft a proposal for improvements to India’s rape law. The report’s suggestions included criminalizing marital rape, which remains legal; reviewing the Armed Forces Special Powers Act (AFSPA), which gives the military impunity in contested regions of India, and which has been used to prevent prosecution for military sexual violence; and a Bill of Rights for Women, which would specifically ensure women’s sexual autonomy in relationships. The Justice Verma Committee Report was specifically opposed to the death penalty. Yet none of the previous three recommendations have been made law; the death penalty, meanwhile, nearly has been.

It’s almost cartoonishly clear where the state’s priorities are: tough, even fatal punishment rather than the promotion of women’s rights and autonomy and the checking of state impunity.

But who is this tough punishment for? Contained within the notion that people who rape children should be killed is a set of assumptions about who these people are—and who these people aren’t. This mistaken idea should be familiar to Americans living in a “tough on crime” landscape of sex offender registries and life-long jail sentences: that people who rape children are strangers, recognizably dangerous and sinister, and that the problem of sexual violence and the sexual abuse of children can be snuffed out like someone’s breath at the end of the rope.

This is false. While the media focuses on the figure of the evil stranger abuser, and while cases of stranger sexual violence like Jyoti Singh’s and Asifa’s are especially brutal and deserve all the outrage they got, these cases are not representative of sexual violence as a whole. In India, according to the the 2016 National Crime Records Bureau report, 94.6% of girls and women are raped by people known to them. In the United States, 93% of children who are sexually abused know the perpetrator, and of the thousands of cases a year investigated by Child Protective Services, 80% of perpetrators were a parent, according to RAINN. Most of these cases happen in private; most are covered up or go unreported.

In this context, the death penalty is not only archaic, evil, and a violation of human rights—it is utterly ineffective. As Indian human rights groups, feminists, the Delhi High Court, and child rights groups have already argued, the death penalty and similar lifelong punishments against rapists would be ineffective as a deterrent and unequally applied. Even more disturbing, in the Indian case, imposing the death penalty for rape possibly incentivizes a perpetrator to murder a victim, as the punishment for murder is life in prison rather than the death sentence.  

The proposal that rape should be punishable by death—when murder in India, in contrast, is punishable by up to life in prison—suggests several ideological assumptions about rape and rape victims. It suggests that rape is worse than murder; that being raped is worse than being killed; and that if a child is raped, they are, to use the Hindi phrase bandied about by conservative politicians after Jyoti Singh’s murder, a “zinda lash”—a “living corpse.”

The death sentence also implicitly denies the actual conditions and likely perpetrators of child sexual abuse: family, caretakers, or acquaintances in private spaces. There is evidence that permanent punishments (like the sex offender registry in the American context) actually serve as a disincentive to report perpetrators, who may be the victim’s caretaker, material provider, or relative. In a context where targeting of rape victims by the family or even murder to cover up a rape is not uncommon, drastic punishments would incentivize family members to cover up the crime and shun the victim.

For most of us who are opposed to the death penalty anyway, it seems easy enough to reject the punishment for cases of child sexual abuse. It is more difficult to confront the underlying reality that our “safe” homes and communities may be deeply violent. Sexual violence is not a monster in whose heart to drive a stake; it is a social and political problem, and it can only be solved through social and political means. Actually supporting survivors means centering their need for safety and healing, encouraging family accountability, and intervening to prevent people at risk of perpetrating, like pedophiles, from perpetrating in the first place. It means being willing to confront the reality that what we fear out there is often, in fact, contained within the intimate.

Cover photo: anti-sexual violence protest on 22 December, 2012. Nilanjana Roy, Wikimedia Commons.