Death penalty for child rape: dangerous and ineffective

ANUP SURENDRANATH

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IS death penalty the way to protect our children against sexual violence? There is a strong intuitive appeal in the government’s position because it invokes an easy logical assumption that a harsher punishment will deter potential perpetrators. And even if there is scepticism of its deterrent value, there is strong support for a moral justification based on retributive justice (irrespective of its potential to deter). The voices in favour of the death penalty for child rape routinely invoke these or some variation of these arguments.

This essay seeks to examine the consequences of such arguments along with other considerations that such arguments ignore. It is posited here that the death penalty for child rape will only harm the interest of victims and make harder their quest for justice. Introduction of the death penalty for child rape also diverts attention from the lacunae in implementing the Protection of Children from Sexual Offences Act, 2012, a victim-friendly law that was aimed at more effective and swifter prosecutions. Further, empirical evidence on the administration of the death penalty in India clearly demonstrates that it is a punishment which is reserved for the poor and the marginalized. In that sense, it would be naive of us to assume that it would be the answer to child sexual abuse.

Before examining the relationship between the death penalty and child rape, it is important to clarify certain preliminary points. In response to the widespread outrage over the rape in Kathua, the ordinance promulgated by the Government of India in April 2018 amended the Indian Penal Code (IPC), treating child rape as a separate crime in the IPC as well, in addition to the pre-existing Protection of Children from Sexual Offences (POCSO) Act, 2012.1 However, important differences have emerged between the treatment of child rape in POCSO and the new amendments to the IPC.

POCSO is a specialized law to address sexual violence against all children and was enacted in 2012 after extensive deliberations among multiple stakeholders. This legislation has detailed provisions on punishments and processes to be followed in instances of child rape and was a result of determined efforts to create a child friendly system for prosecuting such cases. The death penalty was never considered to be an option during these deliberations and, therefore, does not find any place in POCSO.

 

However, the 2018 ordinance introduces the death penalty for the rape of girls below the age of 122 and provides enhanced prison terms for the rape of girls between the ages of 12 to 16.3 These amendments are in addition to the existing punishments for rape in the IPC including the death penalty for rape that results in death or a permanent vegetative state4 and also for the repeat offence of rape.5 Death as a punishment in these two provisions were introduced in 2013 as part of the criminal law amendments after the Delhi gang rape case. It will also be important to the discussion in this essay to remember that mandatory death penalty as a punishment has been declared to be unconstitutional by the Supreme Court, i.e. no law can provide for the death penalty as the sole punishment for any offence.6

The pro-death penalty approach has to contend with certain empirical and social realities about child rape in India. In this context, two facts merit our attention while considering the deterrence argument: (a) massive under-reporting of child sexual abuse in India,7 and (b) that a vast majority of offenders are relatives or people otherwise known to the child.8 Discussing child rape and child sexual abuse is taboo in our society and that might in large part be influenced by the fact that the home of a child/close surroundings are common sites of abuse. Given these realities, it is not surprising that under-reporting is such an extensive problem. Adding the death penalty to this already grim situation will only worsen under-reporting because victims and guardians have to now additionally contend with the possibility of sending a relative/known person to the gallows.

 

In this background, it is important to remember that it is methodologically a complex task to evaluate the deterrent value (or lack thereof) of the death penalty. In over four decades since Furman v. Georgia,9 the United States has seen numerous empirical efforts to answer this question (India has seen none). The National Academy of Sciences, the foremost scientific body in the United States, did a thorough review of deterrence studies in 2012, observing that despite studies the deterrence question remained inconclusive,10 and thus recommended that deterrence must be avoided as a consideration in penal policy on the death penalty. The rationale of that recommendation is not hard to see. It would certainly be unwise to take the lives of individuals over justification whose empirical proof is far from certain.

It is more likely that support for the death penalty for child rape stems from a strongly held view that child rapists ‘deserve’ the death penalty rather than any real belief in its deterrent value. Should society not have the right to express its abhorrence for child rape in the harshest terms possible under the law? Yet even if one agrees that society must have such a right, in the context of child rape, the real question is whether we want to pursue retributive justice at the cost of justice for our children. Given the extent of under-reporting and proximity of perpetrators, the death penalty is only going to worsen the problem everyone wants to address. We thus need to change our frame of reference to one where the default case is of a relative/known person raping a child and determine the appropriate penological policy within that frame because that would be the demand of evidence based law-making. Surely, the urge for retributive justice cannot trump the steps required to ensure justice and protection for children.

 

It is one thing to support the death penalty for child rape due to its (imagined) deterrent effect and quite another to support it on the basis that child rapists ‘deserve’ the death penalty. How then should we view individual culpability in cases of child rape? It is extremely important that we understand crime as a phenomenon where state and society have failed both the victim and the perpetrator. This does not mean that there is no individual agency in the commission of a crime; instead it is to acknowledge the role of social and structural factors that contribute to the commission of crime. Social attitudes towards gender, power and sex have a significant role to play in the context of sexual violence towards children. Particular to child sexual violence is the social taboo and the deafening silence on this issue in our homes, immediate surroundings and our state/non-state institutions. The culture of silence surrounding sexual violence against children perpetuates a strong sense of impunity.

 

Sexual violence against children, according to the government’s own figures, is rampant in India.11 How then must we begin to understand and respond to this violence? Harsher punishments are only a politically expedient response to a complex issue. In the public conversation about sexual violence against children, there has so far been very little attention paid to preventive measures. Conversations about real and effective preventive measures to protect children clearly does not bring with it the same political rewards as the death penalty. Those preventive measures require investment in excellent empirical research and evidence based policy measures designed through a process of deliberation with multiple stakeholders. Pursuing that course of action takes a certain kind of political statesmanship and a willingness to sacrifice short-term political gains for meaningful measures to protect children.

It is worth reflecting on the outcome of detailed deliberations that led to the enactment of the POCSO Act. A significant motivating factor to bring in the POCSO Act was that the existing framework of laws, criminal procedures, infrastructure and support systems were not conducive for child victims to pursue justice. In fact, it was felt that the framework pre-dating the POCSO was intimidating for child victims and that there was a need to create a child friendly system. The introduction of the death penalty poses a potential threat to some of the provisions. For example, POCSO provides for the reverse burden of proof where, unlike usual criminal trials, the burden is on the accused and not on the prosecuting agencies.12 The reverse burden of proof in the POCSO Act is a serious departure from the core elements of a fair trial but the justification was the difficulty in prosecuting child rape cases without reversing the burden. Amendments to the POCSO Act to also introduce the death penalty, would raise grave constitutional concerns to sentence an accused to death on the back of a reverse burden of proof clause.

 

Another critical element of the POCSO Act was to develop a framework towards ensuring a speedy trial for child victims. It was an attempt to remedy the situation where child victims had to endure long trials in the normal course of the criminal justice system. This prolonged process heightened the risk of retraumatizing children by making them repeatedly live through the violent experience for long periods. POCSO provisions mandate that the entire evidence must be recorded within 30 days of the Special Court taking cognizance of the offence and that the trial should be completed within one year of the Special Court taking cognizance of the offence.13 These provisions are in addition to the power of the Special Court to take cognizance of an offence relying only on a complaint/ police report.14

The introduction of the death penalty, however, poses a very serious threat to this vital interest safeguarded by the POCSO Act. Once the death penalty is introduced, it would only be fair that the criminal justice system inflict such punishment only after providing fair trial rights to the accused to the fullest extent possible. Death penalty cases go on for much longer in the legal system even after the trial with the mandatory confirmation in the High Court, appeal to the Supreme Court followed by a mandatory open court review, curative petition, clemency petition to the Governor/President and then a right to challenge the rejection of the clemency application. The reason for so many layers in a death penalty case is obvious. The system has a very strong interest in ensuring that an innocent person is not executed and therefore these different layers contribute to multiple levels of reconsideration. Subjecting child victims to this long process would only exacerbate their suffering and significantly undermine the framework in POCSO aimed at achieving a speedy trial for child victims.

 

Legislating the POCSO Act was a good example of law-making that had a nuanced response to many empirical, institutional and social realities in India. It has been six years since the POCSO Act was brought into force and studies conducted about its implementation show that the concerns that emerge have very little to do with harsher punishments and more to lack of appropriately trained judges and prosecutors, non-compliance with victim friendly procedures, unavailability of specialized personnel provided in the legislation to assist victims and so on.15

Despite provisions to facilitate faster convictions and deliver speedy justice to child victims, the challenge of implementing POCSO is epitomized by a recent order of the Delhi High Court (November 2017) to re-examine all POCSO acquittals by a particular judge in a district court. It is evident that convictions continue to be extremely difficult even with a favourable law like the POCSO and that difficulty is borne out by the low percentage of convictions (29.6%) and a pendency of 89% in POCSO cases across the country.16 With convictions so difficult to come by, it is baffling that the government’s response has been to enhance punishment. Since there can be no question of determining punishment without first getting a conviction in the case, the meaningful course of action for the government should have been to focus its resources on factors that inhibit convictions.

 

The realities of our criminal justice system must also inform our thoughts on the wisdom of introducing the death penalty for child rape. If the effort is to protect children from perpetrators, the fundamental requirements are a reliable investigation and prosecution machinery. Though not all child rape cases receive national attention like the crimes in Unnao and Kathua, often there is incredible local pressure on investigators. There is no denying the use of torture as the most common investigative tool and torture based convictions are wholly unreliable. The investigative apparatus in large parts of India continues to be a colonial relic with hardly any investment and political will to modernize the police force. In that situation, turning to torture to secure convictions is not surprising.

An example of this received rare national attention in the murder investigation of seven-year-old Pradyuman Thakur’s death in Ryan International School, Gurugram (September 2017). Ashok Kumar, a 35-year-old bus conductor in the school, was arrested by local investigative authorities and made to confess before the media. Ashok Kumar stated that he had killed Pradyuman after the boy walked in to find him masturbating, in order to avoid the boy reporting him.

Once the CBI took over the investigation, it emerged that local investigating authorities had deliberately implicated Ashok Kumar by torturing him to get a false confession.17 None of this is to argue that ‘all’ convictions are false. However, it is to make the point that wrongful convictions are barely acknowledged as a problem in India. In addition to inflicting profound suffering and violation of the most fundamental of rights, in the context of child rape it also means leaving the actual perpetrator out there.

 

The worst burden of the criminal justice system is inflicted on the poor in India and that is true of the death penalty as well. This has been empirically shown in the Death Penalty India Report (May 2016) that documented the socio-economic profile of India’s death row prisoners while mapping their interaction with multiple aspects of the criminal justice system. Over 74% of India’s death row prisoners came from poor backgrounds and 76% were from socially marginalized groups. The economic and social marginalization only intensified as prisoners moved through various stages of the death penalty process towards the mercy petition stage.

Note that 23% of India’s death row prisoners never went to school even for a single day and cumulatively, nearly 62% had not completed their secondary education.18 Justice Bhagwati, while disagreeing with the majority that upheld the constitutional validity of the death penalty in Bachan Singh v. State of Punjab, cited the famous prison warden Clinton Duffy to powerfully characterize capital punishment as ‘a privilege of the poor’.

 

As clarified earlier, the Supreme Court has unequivocally held that no criminal provision can provide for the death penalty as the sole punishment. Criminal statutes must always provide sentencing judges the discretion to choose between the death penalty and life imprisonment. The consequences of this constitutional position for this discussion must be understood. It means that all instances of child rape cannot be given the death penalty and, therefore, sentencing judges will have to decide the cases of child rape that merit the death penalty. The Supreme Court has itself lamented on the lack of any principled basis for sentencing people to death and that concern will only be worsened in the context of child rape.

Apart from the concern of intensifying the judge-centric nature of death penalty sentencing, we must consider the impact of such a process on child victims. Invariably judges attempt to establish the exemplary brutality of the crime by providing very detailed accounts of the crime so as to justify the imposition of the death penalty. While the personal consequences in murder cases for victims is reduced to a significant extent, the potential for immense harm to children in child rape cases remains high. It brings us back to a fundamental question – should we approach child rape from the perspective of inflicting the harshest punishment for the perpetrator or are we more concerned about the rehabilitation needs of the victim?

It is easy (and convenient) to tell ourselves that justice for a child victim means the harshest punishment for the perpetrator. While the government is keen to impose the death penalty for child rape, there is no comparable conversation on support and rehabilitation mechanisms for child victims. Child victims are at serious risk of adverse impact on physical and mental health and also on their ability to develop interpersonal, emotional and behavioural capacities. Those are areas which need a considered institutional response and harsher punishments take the focus away from all these real issues for victims. With the death penalty for child rape, a measure that is effectively meant for expressing our abhorrence is being dressed up as something we are doing to rehabilitate child victims. We must not let our retributive instincts blind us to the real meaning of ‘justice’ for child victims.

 

Finally, it is dangerous for a government to address a complex issue such as child rape through the lens of one incident. The death penalty is a great option in the politics of distraction. A more considered approach towards prevention would require the government to look at the issue in far greater detail. An indication of the nature of enquiry required into an issue like this was provided by the manner in which the Australian government dealt with widespread concerns that emerged about instances of child sexual abuse in religious and non-religious institutions across the country. The Royal Commission into Institutional Responses to Child Sexual Abuse took nearly five years between January 2013-December 2017 to conduct an extremely thorough examination and there is much to learn from the nature of issues probed by the Royal Commission and the manner in which it went about developing its recommendations.19

Backed by extensive research, expertise and consultations, the Royal Commission put out extensive information on the nature and extent of child sexual abuse in Australia’s institutions – detailed account of victims, perpetrators, institutions where abuse occurred, factors that facilitated the abuse and prevented accountability, the various measures required to address different needs of victims and the changes required in institutional culture. All of this is placed within a national acceptance of the failure of the Australian state in protecting its children across generations, of having ignored their trauma and yet demonstrating a serious willingness to right those wrongs. In its report, the Royal Commission acknowledges that an effort of that kind would not have been possible without the contribution of a wide range of people, institutions and organizations.

 

The purpose behind the discussion on the Royal Commission was to present a different imagination and a different course of action that we could have pursued in response to Kathua. Kathua seems to have genuinely shocked large sections of the country that our children are subject to such brutal sexual violence. We wanted answers and the government in its wisdom thought it best to direct our ire at the ‘bad apples’ and not nudge us to introspect. Clearly, it is easier for a government to be reactive and pass a law inflicting harsher punishments to satisfy the collective call for retribution. It is far more difficult to genuinely engage an entire nation in a dialogue that lays bare our collective failures. That requires a certain kind of courage and honesty which has eluded us for long.

 

Footnotes:

1. The Criminal Law (Amendment) Ordinance, 2018.

2. Section 5, The Criminal Law (Amendment) Ordinance, 2018.

3. Section 4, The Criminal Law (Amendment) Ordinance, 2018.

4. Section 376A, Indian Penal Code, 1860.

5. Section 376E, Indian Penal Code. 1860.

6. Mithu v. State of Punjab, AIR 1983 SC 473.

7. Study on Child Abuse: India 2007, Ministry of Women and Child Development, Government of India.

8. See Table 3A.4 on Offender’s Relation to Victims of Rape in Crime in India Statistics 2016, National Crime Records Bureau, Government of India.

9. Furman v. Georgia, 408 U.S. 238 (1972).

10. See ‘Deterrence and the Death Penalty’. National Research Council of the National Academies, April 2012.

11. 53.2% of the children report one or more forms of sexual abuse in Study on Child Abuse: India 2007, Ministry of Women and Child Development, Government of India.

12. Section 29, Protection of Children from Sexual Offences Act, 2012.

13. Section 35, Protection of Children from Sexual Offences Act, 2012.

14. Section 33, Protection of Children from Sexual Offences Act, 2012.

15. See generally, Implementation of the POCSO Act: Goals, Gaps and Challenges. HAQ: Centre for Child Rights and Forum Against Sexual Exploitation of Children, 2017.

16. Crime in India Statistics 2016, National Crime Records Bureau, Government of India.

17. ‘Ryan International Murder Case Unravels: CBI Detains Student, Clears Conductor’, The Indian Express, 9 November 2017.

18. See generally, Death Penalty India Report (Volume I). National Law University, Delhi Press, May 2016.

19. Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, 15 December 2017.

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