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.

Photo: Getty
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What's happened to the German left?

For a fourth successive election, the left seems to be failing to challenge the status quo.

When Germany goes to the polls this weekend, Angela Merkel is expected to win a fourth term in office. Merkel has maintained her commanding lead in the polls on 37 per cent, while her closest competitor, the Social Democratic Party (SPD) has been relegated to, at best, a possible coalition partner. 

The expectation that the status quo will continue has left commentators and politicians of all stripes asking: what has happened to the German left?

Lagging behind in the polls, with just 20 per cent of the country's voting intention, Martin Schulz’s SPD has slumped to its lowest level this year only days before the vote, according to the latest poll by Infratest dimap for ARD television.  

Even the prospect of a left-wing alternative to a Merkel-led coalition appears to have become unpalatable to the electorate. An alliance between the SPD, die Grünen (the Greens) and the socialist party die Linke (the Left) would not reach the threshold needed to form a government.

One explanation for the German left's lack of impact is the success Merkel has had in stifling her opposition by moving closer to the centre ground. Over the last four years, she has ruled a grand coalition known as GroKo (Große Koalition) with the centre-left SPD, leaving many of its voters believing their party was no longer any different to the chancellor's conservative Christian Democratic Union (CDU).

Rolf Henning, 34, has been a member of the SPD since 2004. Campaigning in Pankow, a diverse area of eastern Berlin which has traditionally voted on the left, he told the New Statesman that although the coalition had enabled the SPD to push its social agenda, the party did not receive any credit for it.  

“It is now hard to motivate people to vote for the SPD because people think it will not make any difference. If we were to enter a coalition again with Merkel and the CDU then our support base will drain even further,” he said.  

Another grand coalition between the CDU and the SPD is very much on the cards, as Merkel is unlikely to win an outright majority. But while the arrangement has seemingly worked out well for the chancellor, its benefits for the SPD seem rather less certain.

“The political strength of the left is an illusion," says Gero Neugebauer, a political analyst and a former senior researcher at the Freie Universität Berlin, "The SPD did a good job in the coalition to push issues of social policy and family policies, but Ms Merkel took the credit for a lot of it. People saw the car and the chauffer rather than paying attention to the engine."

In 2015, under pressure from the SPD, the Merkel administration introduced a minimum wage in Germany, a benchmark for many in the party which yet did little to gloss over the SPD’s image. On the contrary, Merkel’s election campaign sought to win over disillusioned SPD voters.

According to Neugebauer, the left-wing parties have failed to work together to form a real alternative coalition to the Merkel administration. He warns that Germany’s left-wing camp has become “an illusion” with “virtual power”.

For a short-lived moment the election of Martin Schulz, the former president of the EU Parliament, to head the SPD, brought hope to the idea of a left-wing coalition. 

Stefan Liebich, a member of parliament for die Linke representing the Pankow district, says the SPD initially rose in the polls because people thought there could be an alternative coalition to Merkel. "But then the SPD made a lot of mistakes and they were wrongly told they would lose support if they worked with us," he adds.

"Now nobody believes a left-wing coalition could ever happen because the SPD is so low in the polls.” 

Before Schulz took over the SPD, few believed that after four years in the coalition government the party had a good chance in the upcoming election. “But Schulz arrived and said ‘I will be chancellor’ and it was like a phoenix rising from the ashes,” says Neugebauer.

Schulz revived the social-democratic tradition and spoke about social justice, but the delay of his election programme left many wondering whether he would be able to walk the walk – and his popularity started to fall.

“Compared to Merkel, he became less credible and less trustworthy,” says Neugebauer.  

The SPD are, of course, not the only left-wing party running. Back in Pankow, Caroline, a lawyer and a long-time SPD voter said she was considering voting for the more left-wing die Linke because she did not want to give her ballot to Schulz.

“There is something about him, he is not straightforward and he is too much like the CDU," she continues. "As the head of the EU Parliament, Schulz was good but I don’t think he has what it takes to tackle issues in Germany."

For Ulrike Queissner, also a Pankow resident, the SPD’s lurch to the centre convinced her to vote for die Linke: “The SPD has become mainstream and part of the establishment. It has become too close to the CDU and has no strong position anymore.”

Stable at about 8 per cent in the polls, die Linke is still trailing the extreme-right Alternative fur Deutschland (AfD), which is anticipated to win between 8 and 11 per cent of votes. This means it would enter the German parliament, the Bundestag, for the first time, becoming its third biggest party.

At the core of die Linke’s manifesto is the redistribution of wealth, a peaceful foreign policy and measures to stamp out the remaining social rift between east and west Germany.  

The party strives to challenge Merkel’s feel-good slogans by putting the spotlight on the discrepancies between rich and poor, and east and west.

 “When we look around to Portugal, Spain, Italy, and maybe even to the UK, we seem happy," says Liebich. "We don’t have an exit [from the EU] debate or a high unemployment rate. And yet, there is a part of Germany that sees that things are not going so well."

And for some of die Linke’s eastern electorate, immigration is at the top of the list of grievances, putting pressure on a party which has always defended an open door-policy – something Liebich acknowledges.

“In Berlin a majority of voters say they are open to people who need help, but in the eastern states, where we have a high unemployment rate and a lot of people who are not used to living with people of other cultures, there is a lot of anger."

That will add to concerns that large numbers of silent AfD supporters could create a surprise in the traditionally left-wing area of east Germany, where the far-right party is capitalising on the anti-immigration sentiment. The left seems to be squeezed between Merkel’s move to the centre ground and the AfD’s growing populist threat.

For Neugebauer the prospect of AfD members in parliament should force left-wing parties to sharpen their political lines, and form a consensus bloc against the rising extreme-right. The silver lining lies in the hope that all three left-wing parties – die Linke, die Grünen and die SPD – find themselves together in the opposition.

“Then, there would be an opportunity to start a conversation about what the parties have in common and start working together," he says. "It would be a chance for the German left to find itself again and create a vision for co-operation.” 

And yet, commentators still anticipate that at least some part of the left will end up working with Merkel, either through a grand coalition with the SPD or a three-way “Jamaica coalition”, with the pro-business FDP and the Greens. For the German left the time for cooperation, and a shot at taking charge of Germany's future, may still be some years away.