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.

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For the Ukip press officer I slept with, the European Union was Daddy

My Ukip lover just wanted to kick against authority. I do not know how he would have coped with the reality of Brexit.

I was a journalist for a progressive newspaper.

He was the press officer for the UK Independence Party.

He was smoking a cigarette on the pavement outside the Ukip conference in Bristol.

I sat beside him. It was a scene from a terrible film. 

He wore a tweed Sherlock Holmes coat. The general impression was of a seedy-posh bat who had learned to talk like Shere Khan. He was a construct: a press officer so ridiculous that, by comparison, Ukip supporters seemed almost normal. He could have impersonated the Queen Mother, or a morris dancer, or a British bulldog. It was all bravado and I loved him for that.

He slept in my hotel room, and the next day we held hands in the public gallery while people wearing Union Jack badges ranted about the pound. This was before I learned not to choose men with my neurosis alone. If I was literally embedded in Ukip, I was oblivious, and I was no kinder to the party in print than I would have been had I not slept with its bat-like press officer. How could I be? On the last day of the conference, a young, black, female supporter was introduced to the audience with the words – after a white male had rubbed the skin on her hand – “It doesn’t come off.” Another announcement was: “The Ukip Mondeo is about to be towed away.” I didn’t take these people seriously. He laughed at me for that.

After conference, I moved into his seedy-posh 18th-century house in Totnes, which is the counterculture capital of Devon. It was filled with crystal healers and water diviners. I suspect now that his dedication to Ukip was part of his desire to thwart authority, although this may be my denial about lusting after a Brexiteer who dressed like Sherlock Holmes. But I prefer to believe that, for him, the European Union was Daddy, and this compulsion leaked into his work for Ukip – the nearest form of authority and the smaller Daddy.

He used to telephone someone called Roger from in front of a computer with a screen saver of two naked women kissing, lying about what he had done to promote Ukip. He also told me, a journalist, disgusting stories about Nigel Farage that I cannot publish because they are libellous.

When I complained about the pornographic screen saver and said it was damaging to his small son, he apologised with damp eyes and replaced it with a photo of a topless woman with her hand down her pants.

It was sex, not politics, that broke us. I arrived on Christmas Eve to find a photograph of a woman lying on our bed, on sheets I had bought for him. That was my Christmas present. He died last year and I do not know how he would have coped with the reality of Brexit, of Daddy dying, too – for what would be left to desire?

This article first appeared in the 19 January 2016 issue of the New Statesman, The Trump era