Rajasthan Assembly Approves Death Penalty for Raping a Girl Below 12. Will It Be a Deterrent?

Various experts have concluded time and again that a robust criminal justice system would act as a more effective deterrent against rape or sexual violence.

New Delhi: Taking a page out of Madhya Pradesh’s book, the Rajasthan assembly this week gave its assent to a bill which will send those found guilty of raping girls below the age of 12 to the gallows.

Madhya Pradesh had passed a similar bill in December 2017 and Haryana has also initiated making similar amendments to the Indian Penal Code (IPC). According to the Indian Express, the Criminal Laws (Rajasthan Amendment) Bill, 2018, which was tabled in the assembly on Wednesday, seeks to add section 376-AA in the IPC, which will be defined as:

“Punishment for rape on a woman up to 12 years of age. Whoever commits rape on a woman up to twelve years of age shall be punished with death, or rigorous imprisonment for a term which shall not be less than fourteen years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.”

A similar provision, 376-DD, will be added for gangrape.

Outlining the government’s objective in making this change in the law, the Vasudhara Raje government stated: “It has come to the notice of the state government that the offence relating to child rape and child gang-rape are taking place every now and then. Such crimes are heinous and turn the life of the victim into hell.”

This bill has been in the making for a while as earlier in February, Raje had announced that the state government would bring in more stringent punishment “including capital punishment”, for rape of girls below 12 years.

Data from the National Crime Records Bureau (NCRB) 2016 revealed that 19,920 children were allegedly victims of child rape in 2016 alone. However, as the Indian Express noted, “the conviction in 2016 for such crimes stood at an abysmal 28.2% while a majority of cases (89.6%) are still pending for disposal”.

But does institutionalising capital punishment really act as a deterrent?

As has already been pointed out time and again, a death penalty only gives incentive to the rapist to kill the victim, in which case, he automatically comes under the purview of punishment for murder which is death penalty in many countries around the world.

Another argument that has been made over and over again against the demand for the death penalty in a rape case is that such a demand ultimately equates rape with death. As a statement by a collective of women’s groups, progressive groups and individuals condemning sexual violence and opposing death penalty said:

The logic of awarding death penalty to rapists is based on the belief that rape is a fate worse than death. Patriarchal notions of ‘honour’ lead us to believe that rape is the worst thing that can happen to a woman. There is a need to strongly challenge this stereotype of the ‘destroyed’ woman who loses her honour and who has no place in society after she’s been sexually assaulted. We believe that rape is tool of patriarchy, an act of violence, and has nothing to do with morality, character or behaviour.

The Justice Verma Committee, which was formed in 2013 to look into crimes against women after India was shaken by the horrific rape and murder of Jyoti Singh in New Delhi in December 2012, ruled against recommending the death penalty even in the rarest of the rare rape cases, and also did not favour lowering the age of a juvenile from 18 to 16.

The committee also rejected the suggestion of chemical castration, saying it would violate human rights and that mutilation of the body is not permitted under the constitution. “We note that it would be unconstitutional and inconsistent with basic human rights treaties for the state to expose any citizen without their consent to potentially dangerous medical side effects.

Just last month, The Wire reported on how a Haryana-based advocate-journalist informed the Prime Minister’s Office (PMO) of a flaw in the rape laws that had been constituted on the recommendation of the committee.

In his complaint, received at the PMO on February 6, Hemant Kumar has referred to his research on how the word “rigorous” got prefixed to imprisonment for the crime when the ordinance was finally approved despite not having figured in its draft.

Pointing out that in Section 376(1) of IPC it is mentioned that “whoever, except in the cases provided for in sub-section(2), commits rape, shall be punished with RIGOROUS imprisonment of EITHER DESCRIPTION for a term_____”, Kumar said the use of both the terms “rigorous” and “either description” was itself contradictory.

The mandatory minimum sentences for sexual offences has also already been increased by the POCSO Act and the Criminal Law Amendment Act, 2013.

It’s clear that the need of the day is successful prosecutions, an increase in number of convictions and social awareness. A robust criminal justice system would act as a more effective deterrent against rape or sexual violence because as of now, with most criminals and rapists slipping underneath the radar, there isn’t much of a fear of being caught, let alone of any punishment – be it the death penalty.

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