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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The conflict in Yemen is a civil war by numbers

Amid the battles, a generation starves.

Ten thousand dead – a conservative estimate at best. Three million internally displaced. Twenty million in need of aid. Two hundred thousand besieged for over a year. Thirty-four ballistic missiles fired into Saudi Arabia. More than 140 mourners killed in a double-tap strike on a funeral. These are just some of the numerical subscripts of the war in Yemen.

The British government would probably prefer to draw attention to the money being spent on aid in Yemen – £37m extra, according to figures released by the Department for International Development in September – rather than the £3.3bn worth of arms that the UK licensed for sale to Saudi Arabia in the first year of the kingdom’s bombing campaign against one of the poorest nations in the Middle East.

Yet, on the ground, the numbers are meaningless. What they do not show is how the conflict is tearing Yemeni society apart. Nor do they account for the deaths from disease and starvation caused by the hindering of food imports and medical supplies – siege tactics used by both sides – and for the appropriation of aid for financial gain.

Since the war began in March 2015 I have travelled more than 2,500 miles across Yemen, criss-crossing the front lines in and out of territories controlled by Houthi rebels, or by their opponents, the Saudi-backed resistance forces, or through vast stretches of land held by al-Qaeda. On those journeys, what struck me most was the deepening resentment expressed by so many people towards their fellow Yemenis.

The object of that loathing can change in the space of a few hundred metres. The soundtrack to this hatred emanates from smartphones resting on rusting oil drums, protruding from the breast pockets of military fatigues, or lying on chairs under makeshift awnings where flags denote the beginning of the dead ground of no-man’s-land. The rabble-rousing propaganda songs preach to the watchful gunmen about a feeble and irreligious enemy backed by foreign powers. Down the road, an almost identical scene awaits, only the flag is different and the song, though echoing the same sentiment, chants of an opponent altogether different from the one decried barely out of earshot in the dust behind you.

“We hate them. They hate us. We kill each other. Who wins?” mused a fellow passenger on one of my trips as he pressed green leaves of the mildly narcotic khat plant into his mouth.

Mohammed was a friend of a friend who helped to smuggle me – dressed in the all-black, face-covering garb of a Yemeni woman – across front lines into the besieged enclave of Taiz. “We lose everything,” he said. “They win. They always win.” He gesticulated as he spoke of these invisible yet omnipresent powers: Yemen’s political elite and the foreign states entangled in his country’s conflict.

This promotion of hatred, creating what are likely to be irreversible divisions, is necessary for the war’s belligerents in order to incite tens of thousands to fight. It is essential to perpetuate the cycle of revenge unleashed by the territorial advances in 2014 and 2015 by Houthi rebels and the forces of their patron, the former president Ali Abdullah Saleh. This demand for retribution is matched by those who are now seeking vengeance for the lives lost in a UK-supported, Saudi-led aerial bombing campaign.

More than 25 years after the two states of North and South Yemen united, the gulf between them has never been wider. The political south, now controlled by forces aligned with the Saudi-led coalition, is logistically as well as politically severed from the north-western territories under the command of the Houthi rebels and Saleh loyalists. Caught in the middle is the city of Taiz, which is steadily being reduced to rubble after a year-long siege imposed by the Houthi-Saleh forces.

Revenge nourishes the violence, but it cannot feed those who are dying from malnutrition. Blowing in the sandy wind on roadsides up and down the country are tattered tents that hundreds of thousands of displaced families now call home. Others have fled from the cities and towns affected by the conflict to remote but safer village areas. There, food and medical care are scarce.

The acute child malnutrition reported in urban hospitals remains largely hidden in these isolated villages, far from tarmac roads, beyond the reach of international aid agencies. On my road trips across Yemen, a journey that would normally take 45 minutes on asphalt could take five hours on tracks across scrubland and rock, climbing mountainsides and descending into valleys where bridges stand useless, snapped in half by air strikes.

Among the other statistics are the missing millions needed by the state – the country’s largest employer. Workers haven’t been paid in months, amid fears of an economic collapse. This is apparently a deliberate tactic of fiscal strangulation by the Saudi-backed Yemeni government-in-exile. The recent relocation of the central bank from the Houthi-controlled capital, Sana’a, to the southern city of Aden is so far proving symbolic, given that the institution remains devoid of funds. The workforce on both sides of the conflict has taken to the streets to protest against salaries being overdue.

Following the deaths of more than 140 people in Saudi-led air strikes on a funeral hall on 8 October, Saleh and the Houthi leader, Abdulmalik al-Houthi, called for yet more revenge. Within hours, ballistic missiles were fired from within Houthi territory, reaching up to 350 miles into Saudi Arabia.

Meanwhile, in the Red Sea, Houthi missile attacks on US warships resulted in retaliation, sucking the US further into the mire. Hours later, Iran announced its intention to deploy naval vessels in the area.

Vengeance continues to drive the violence in Yemen, which is being drawn ever closer to proxy conflicts being fought elsewhere in the Middle East. Yet the impact on Yemeni society and the consequences for the population’s health for generations to come are unlikely to appear to the outside world, not even as annotated numbers in the brief glimpses we get of this war. 

This article first appeared in the 20 October 2016 issue of the New Statesman, Brothers in blood