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 Images.
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Emmanuel Macron offers Theresa May no comfort on Brexit

The French presidential candidate warned that he would not accept "any caveat or any waiver" at a press briefing in London.

Emmanuel Macron, the new wunderkind of French politics, has brought his presidential campaign to London. The current favourite to succeed François Hollande has a natural electoral incentive to do so. London is home to 300,000 French voters, making it by France's sixth largest city by one count (Macron will address 3,000 people at a Westminster rally tonight). But the telegenic centrist also took the time to meet Theresa May and Philip Hammond and to hold a press briefing.

If May hoped that her invitation would help soften Macron's Brexit stance (the Prime Minister has refused to engage with his rival Marine Le Pen), she will have been left disappointed. Outside No.10, Macron declared that he hoped to attract "banks, talents, researchers, academics" away from the UK to France (a remark reminiscent of David Cameron's vow to "roll out the red carpet" for those fleeing Hollande). 

At the briefing at Westminster's Central Hall, Macron quipped: "The best trade agreement for Britain ... is called membership of the EU". With May determined to deliver Brexit, he suggested that the UK would have to settle for a Canadian-style deal, an outcome that would radically reduce the UK's market access. Macron emphasised that he took a a "classical, orthodox" view of the EU, regarding the "four freedoms" (of people, capital, goods and services) as indivisible. Were Britain to seek continued financial passporting, the former banker said, it would have to make a significant budget "contribution" and accept continued immigration. "The execution of Brexit has to be compliant with our interests and the European interest".

The 39-year-old avoided a nationalistic tone ("my perspective is not to say France, France, France") in favour of a "coordinated European approach" but was unambiguous: "I don't want to accept any caveat or any waiver to what makes the single market and the EU." Were the UK, as expected, to seek a transitional arrangement, it would have to accept the continued jurisdiction of the European Court of Justice.

Elsewhere, Macron insisted that his liberal economic stance was not an obstacle to his election. It would be fitting, he said, if the traditionally "contrarian" France embraced globalisation just as its counterparts were rejecting it. "In the current environment, if you're shy, you're dead," he declared. With his emotional, straight-talking approach (one derided by some as intellectually threadbare), Macron is seeking to beat the populists at their own game.

But his views on Brexit may yet prove academic. A poll published today showed him trailing centre-right candidate François Fillon (by 20-17) having fallen five points since his denunciation of French colonialism. Macron's novelty is both a strength and a weakness. With no established base (he founded his own party En Marche!), he is vulnerable to small swings in the public mood. If Macron does lose, it will not be for want of confidence. But there are unmistakable signs that his forward march has been halted. 

George Eaton is political editor of the New Statesman.