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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Sheepwrecked: how the Lake District shows up World Heritage's flaws

Here's hoping future statements about farming and the environment aren't quite so sheepish.

“Extremists like George Monbiot would destroy the Lake District,” tweeted Eric Robson, presenter of Radio 4’s Gardener’s Questions. But he’s “just standing up for nature”, others shot back in Monbiot’s defence. The cause of the clash? The park’s new World Heritage status and the continuing debate over the UK’s “sheep-wrecked” countryside.

Tension is such you can almost hear Cumbria’s Vikings chuckling in their hogback graves – for sheep farming still defines the Lakes as much as any poem. Hilltop farmers, like Lizzie Weir and Derek Scrimegeour, have sweated the landscape into shape over generations. And while Wordsworth may have wandered lonely as a cloud, a few hundred pairs of pricked ears were likely ruminating nearby.

UNESCO’s World Heritage committee now officially supports this pro-farm vision: “The most defining feature of the region, which has deeply shaped the cultural landscape, is a long-standing and continuing agro-pastoral tradition,” says the document which recommends the site for approval. 

And there’s much to like about the award: the region’s small, outdoor farms are often embedded in their local community and focused on improving the health and quality of their stock – a welcome reminder of what British farms can do at their best. Plus, with Brexit on the horizon and UK megafarms on the rise, farmers like these need all the spotlight they can get.

But buried in the details of the bid document is a table showing that three-quarters of the area's protected sites are in an “unfavourable condition”. So it is depressing that farming’s impact on biodiversity appears to have been almost entirely overlooked. Whether you agree with the extent of George Monbiot’s vision for Rewilding or not, there are clearly questions about nibbled forests and eroded gullies that need to be addressed – which are not mentioned in the report from UNESCO’s  lead advisory body, ICOMOS, nor the supplementary notes on nature conservation from IUCN.

How could so little scrutiny have been applied? The answer may point to wider problems with the way the World Heritage program presently works – not just in Cumbria but around the world.

In the Lake District’s case, the bid process is set-up to fail nature. When the convention was started back in the 1970s, sites could be nominated under two categories, either “cultural” or “natural”, with the International Council on Monuments and Sites (ICOMOS) advising on the first, and the International Union for the Conservation of Nature (IUCN) on the second.

Then in 1992 a new category of “cultural landscape” was introduced to recognise places where the “combined works of nature and man” are exceptional. This means such sites are always evaluated principally by ICOMOS, giving them more resources to research and shape the verdict – and limiting the input IUCN is able to make.

Another weakness is that the evaluation bodies can only follow a state’s choice of category. So if a state nominates a site as a Cultural Landscape, then considerations about issues like biodiversity can easily end up taking a back seat.

According to Tim Badman, director of IUCN’s World Heritage Programme, this situation is in need of redress. “The way in which this separation of nature and culture works is increasingly out of tune and counter-productive,” he says. “Every natural site has some kind of relationship with people, and every cultural site has some major conservation interest, even if it might not be globally significant. We should collaborate much more to make that a virtue of the system.”

The more you think about it, the madder the notion of a “Cultural Landscape” sounds. Landscapes are, after all, inherently scoped out by man, and there is little in the natural world that humanity has left untouched. Especially those in Western Europe and especially those, like Cumbria, that have been felled and farmed by a succession of historic invaders.

Relationships between advisory bodies are also not the only failing in UNESCO’s approach; relationships between nations and the convention can be problematic too. At this month’s meeting of the committee in Poland, it was decided that the Great Barrier Reef would, once again – and despite shocking evidence of its decline – not be on UNESCO’s “In Danger” list. It prompts the question, what on earth is the list for?

The reluctance of many nations to have their sites listed as In Danger is a mixed blessing, says Badman. In some cases, the prospect of being listed can motivate reform. But it is also a flawed tool – failing to include costed action plans – and causing some governments to fear attacks from their domestic opposition parties, or a decline in their tourism.

On top of this, there is the more generalised politicking and lobbying that goes on. Professor Lynn Meskell, an Anthropologist at Stanford University, is concerned that, over the years, the institution “has become more and more political”. At the most recent session of the World Heritage Committee earlier this month, she found nominations being used to inflame old conflicts, a continuing regional dominance by Europe, and a failure to open up many “at risk” sites for further discussion. “All Yemen’s sites are in danger, for instance” she says, “yet they couldn’t afford to even send one person."

Perhaps most challenging of all is the body’s response to climate change. At the recent committee gathering, Australia raised the subject by way of suggesting it cannot be held solely be responsible for the decline of the Great Barrier Reef. And Turkey attempted to water down a reference to the Paris Climate Agreement, claiming the language used was overly “technical” and that the delegates present were too inexpert to comment.

According to Tim Badman, climate change is certainly an area that needs further work, not least because World Heritage’s present policy on the subject is now a decade old. Even the most ambitious interpretation of the Paris Climate Agreement would still see very significant damage done to Heritage sites around the world, Badman says.

There is hope of change, however. For the most polite yet sturdy response to Turkey’s objections – or, as the chair ironically puts it “this very small ecological crisis” – I recommend watching these encouraging reactions from Portugal, Phillippines and Finland (2h30) -  a push-back on technical objections that Meskell says is rare to see. IUCN will also be producing the second edition of their World Heritage Outlook this November.

Positions on the Lake District’s farms will also hopefully be given further thought. Flaws within World Heritage’s approach may have helped pull wool over the committee’s eyes, but future debate should avoid being quite so sheepish.

India Bourke is an environment writer and editorial assistant at the New Statesman.