Does the death penalty afford meaningful redress in rape cases?

Tackling rape requires change, not retribution. Why the death penalty doesn't help rape victims.

Hundreds of women, young and old, continue to protest across India in silent marches, demanding justice for the 23-year-old who lost her life after being brutally assaulted and gang-raped in Delhi. Her brother has publicly called for the execution of those responsible, declaring “We want all the accused hanged, and we will fight for that, till the end.” Since the attack, hundreds of new articles have been written, both to heighten awareness about the pervasiveness of rape in India and to encourage legal reform to increase the number of prosecutions and convictions: many including government officials and victims are calling for the death penalty or chemical castration as punishment for sexual assault.

The collective outcry that this horrific case has provoked parallels that roused by a similar case in Pakistan: on 22 June 2002, Mukhtar Mai was gang-raped in her remote village by four men from a rival tribe. The involvement of the international media and human rights groups expedited the usually slow process of prosecution by encouraging the case to be tried through Pakistan’s anti-terrorism court: by 1 September, six men had been convicted and sentenced to death. In March 2005, before the sentence could be carried out, the Lahore High Court overturned the convictions of five of the men, and commuted the sixth’s sentence to life imprisonment, citing insufficient evidence and faulty investigation. In 2011, the Supreme Court (Special Shariat Branch) acquitted four of the men, also citing lack of evidence, despite the fact that many villagers had witnessed the assault.

Mukhtar has campaigned tirelessly for her rapists’ arrest. She continues to express anger towards her attackers and a desire for vengeance: “I could hire men to kill my attackers. How does one survive dishonour? How does one overcome despair? With anger, at first, with an instinct for revenge that resists the tempting solution of death, an instinct that allows one to recover, go forward, act.” Yet neither the death penalty nor chemical castration offers an answer to the problem of violence against women and girls. Indeed, in India these forms of retribution might well encourage perpetrators to silence victims and witnesses through murder or intimidation, worsening the situation for victims.

The nature of the penalties for rape and other forms of violence against women is not the core issue. The focus of debate should be on the fact that prosecution, let alone conviction, is rare and so penalties of any sort are rarely enforced. Many Indian women feel they have little or no recourse against violence and rape as legal action is not pursued in most cases. Indeed, marital rape still cannot be prosecuted as a stand-alone law in India, showing that the sanctity of marriage is still prioritised over preventing violence against women. Thus, at the root of India’s inability to deal with violence against women is the fact that patriarchal values that subordinate women to men are endemic in every aspect of society.

The problem is compounded in rural areas; for instance, upper caste men regularly use the gang rape of Dalit women for political purposes, often with impunity. In the rare cases when perpetrators are convicted in India, victims must still face the enormous challenges of surviving in a patriarchal society where they are considered to have been dishonoured by the crimes committed against them. This dishonour has major implications for marriage and even casual contact with other members of Indian society. For this reason, most victims remain silent about sexual violence.

Feminist groups in India argue that about 96 per cent of female victims are sexually assaulted by people known to them. Seeking legal redress under these circumstances often means being shunned not only by one’s family but also the wider community. Moreover, when assailants are in a position of power, as in Mukhtar’s case, influence is often exerted to prevent the registration, let alone investigation, of complaints.

India is at a crucial point in developing effective responses to violence against women. Feminists have made numerous submissions to the Justice Verma Committee about the urgent need for change. The committee has urged the public in general and particularly eminent jurists, legal professionals, NGOs, women’s groups and civil society to share “their views, knowledge and experience suggesting possible amendments in the criminal and other relevant laws to provide for quicker investigation, prosecution and trial, as also enhanced punishment for criminals accused of committing sexual assault of an extreme nature against women.” Awareness-raising is a start, but it is not enough. If change is to be meaningful – for victims and for wider society – it must address both the spectrum of violence against women and girls and the need for coordinated educational and legal reforms backed by coherent policy.

There is cause for hope. Recently, Indian rapper Honey Singh’s misogynistic lyrics glorifying rape were challenged through public protests. However, as Mukhtar’s case shows, without strong international pressure and public outcry, justice often has little chance to prevail in patriarchal societies where violence against women and girls is common: when the pressure ceases, the situation reverts to the status quo. The solution is to ensure that both domestic and international pressure to address violence against women and girls is on-going. Only wide-ranging, meaningful change – in Pakistan, India, and beyond – will ensure that redress is available to all victims. However, to be truly effective redress must ensure that it is perpetrators, and not victims, who are shamed and punished by society.

We must look beyond the natural human desire for retributive justice if we are to seek comprehensive solutions that provide a true and lasting legacy of change, development and, ultimately, the eradication of gender-based violence.

Dr Aisha K Gill is a Reader in Criminology at University of Roehampton

Mukhtar Mai and her son in 2011. She has campaigned tirelessly for her rapists’ arrest. Photograph: Getty Images

Dr Aisha K Gill is a Reader in Criminology at University of Roehampton.

Getty
Show Hide image

The problem with grammar schools – and the answer to Labour's troubles

This week's news, from Erdogan the despot, to memories of Disraeli, and coffee and class.

Whom should we be cheering in Turkey? Coups are by their nature ­anti-democratic, whatever the rhetoric of their instigators, but Recep Tayyip Erdogan, the Islamist president, is about as much of a democrat as Vladimir Putin. Once he regained power, he dismissed several thousand judges, putting some under arrest. A large number of journalists were already in prison.

As recently as 1990, nearly half of Turkey’s employed population worked on the land and, even now, the proportion is more than a quarter. Erdogan has ruthlessly exploited the pious, socially conservative instincts of his people, who are rarely more than a generation away from the peasantry (and therefore politically “backward” in the Marxian sense), to win elections and push through economic liberalisation and privatisation. His foreign affairs ministry claims that the aim is to confine the state’s role to health, basic education, social security and defence. That is good enough for most Western governments. Provided he also co-operates in limiting the flow of Middle Eastern migrants into Europe, Erdogan can be as Islamist and authoritarian as he likes.

 

Quick fix for Labour

I have an answer to Labour’s problems. Its MPs should elect their own leader while Jeremy Corbyn continues as party leader. The former, recognised by the Speaker as the leader of the parliamentary opposition, would get the usual state aid for opposition parties. Corbyn would control Labour Party funds and assets.

He and his hardcore supporters should welcome this arrangement. Their aim, they say, is to build a new social movement. Relinquishing the burden of parliamentary leadership would leave them free to get on with this project, whatever it means. Corbyn could go back to what he enjoys most: voting against the Labour front bench. He would no longer have to dress up, bow to the Queen or sing the national anthem. This, I grant you, would not be a satisfactory solution for the long term. But the long term is more or less extinct in British politics. If Labour had peace for a few months, it might be enough. The situation would be resolved either by Corbyn falling under a bus (preferably not one driven by a Labour MP) or the Tory government collapsing in the face of a mass people’s uprising demanding Corbyn’s installation as supreme ruler. Don’t tell me that neither is likely to happen.

 

Divide and rule

The choice of Birmingham as the location to launch Theresa May’s leadership campaign, combined with proposals such as worker representation on company boards, has drawn comparisons between the new Prime Minister and Joseph Chamberlain.

Chamberlain, who as mayor of Birmingham in the mid-1870s tore down slums, brought gas and water supplies under public control and opened libraries, swimming pools and schools, was a screw manufacturer. There was an Edwardian joke – or, if there wasn’t, there ought to have been – that he screwed both major parties. He became a Liberal cabinet minister who split the party over Irish home rule, putting it out of power for most of the next 20 years. He and his followers then allied themselves with the Tories, known at the time as the Unionists. He duly split the Unionists over tariff reform, excluding them from office for a decade after the Liberals won the 1906 election.

Chamberlain was a populist who brilliantly combined patriotic imperialism with domestic radicalism, proposing smallholdings of “three acres and a cow” for every worker. One can see the appeal to some Brexiteers but he was also divisive and volatile, making him an odd role model for a supposedly unifying leader.

 

Mind your grammar

Justine Greening, the new Education Secretary, is the first to be wholly educated at a mainstream state secondary comprehensive. Pro-comprehensive groups were almost lyrical in praise of her appointment. Yet, unlike her predecessor-but-one, Michael Gove, she declines to rule out the ­return of grammar schools.

To understand how iniquitous grammar schools were, you need to have attended one, as I did. Primary-school friendships were ruptured, usually along lines of social class. The grammars were rigidly stratified. I was in the A stream and do not recall any classmates from semi-skilled or unskilled working-class homes. They were in the C stream and left school as early as possible with a few O-levels. No minister who wants a “one-nation Britain” should contemplate bringing back grammar schools.

 

Living history

Simon Heffer’s recent account in the NS of how his father fought in the Battle of the Somme led one letter writer to ask if anyone alive today could have a grandparent born in the 18th century. Another NS reader replied with an example: John Tyler, a US president of the 1840s, born in Virginia in 1790, had two grandsons who are still alive. Here is another possibility. “As Disraeli said to my husband . . .” If you hear a 94-year-old say that, don’t dismiss her as demented. Disraeli died in 1881. A 71-year-old who married a 24-year-old in 1946 (not impossible; the actors Cary Grant and Anthony Quinn both married women 47 years younger) could have spoken to Disraeli as a boy.

The past is not as far away as we think, though many politicians and journalists behave as though anything before 1980 happened on another planet.

 

Milk money

The class system is alive and well in parts of England. On a family weekend walk, we came across a small village with two adjacent pubs – one clearly for the toffs, the other more plebeian. This was most evident when ordering coffee. The downmarket pub told us that it served only UHT milk with its hot drinks. The other was ostentatiously horrified at the suggestion that it might serve any such thing. 

Peter Wilby was editor of the Independent on Sunday from 1995 to 1996 and of the New Statesman from 1998 to 2005. He writes the weekly First Thoughts column for the NS.

This article first appeared in the 21 July 2016 issue of the New Statesman, The English Revolt