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 US election is now a referendum on the role of women

Melania Trump's recent defence of her husband's indefensible comments, shows why a Cinton victory is vital.

Maybe one day, when this brutal presidential election is over, Hillary Clinton will view Melania Trump with sympathy. The prospective Republican First Lady’s experience sometimes seems like an anxiety dream rerun of Clinton’s own time stumping for job of wife-in-chief back in 1992. Even before Bill Clinton had the Democratic nomination, rumours about his infidelities were being kicked up, and in a bid to outflank them, the Clintons appeared in a joint interview on the CBS current affairs show 60 Minutes. “I'm not sitting here some little woman standing by my man like Tammy Wynette,” she said, the extreme humiliation of her situation registering as perhaps the tiniest flicker across her perfectly composed face. “I'm sitting here because I love him and I respect him.”

Another decade, another TV interview, another consort to a nominee called on to defend her husband’s honour. After the release of Donald Trump’s grotesque “grab her by the pussy” comments from 2005, Melania headed out to do her wifely duty. But where the Clintons in 1992 had the benefit of uncertainty – the allegations against Bill were unproven – Melania is going up against the implacable fact of recorded evidence, and going up alone. Even leaving aside the boasts about sexual assault, which she’s at pains to discount, this still leave her talking about a tape of her husband declaring that he “tried to fuck” another woman when he was only newly married.

What Melania has to say in the circumstances sounds strained. How did she feel when she heard the recordings? “I was surprised, because [...] I don't know that person that would talk that way, and that he would say that kind of stuff in private,” she tells CNN's Anderson Cooper, giving the extraordinary impression that she’s never heard her husband sparring with shock-jock Howard Stern on the latter’s radio show, where he said this kind of thing all the time.

She minimises the comments as “boys talk” that he was “egged on” to make, then tries to dismiss women’s allegations that Trump behaves precisely as he claims to by ascribing their revelations to conspiracy – “This was all organized from the opposition.” (Shades here of Clinton’s now-regretted claim of a “vast right-wing conspiracy” against her own husband during the Lewinsky scandal.) “I believe my husband. I believe my husband,” she says, though this is a strangely contorted thing to say when her whole purpose in the interview is to convince the public that he shouldn’t be believed when he says he grabs pussies and kisses women without even waiting because when you’re a celebrity you can do that.

Melania’s speech to the Republican convention bore more than a passing resemblance to elements of Michelle Obama’s speech to the Democratic convention in 2008, but in fact Melania is working to a much, much older script for political wives: the one that says you will eat platefuls of your husband’s shit and smile about it if that’s what it takes to get him in power. It’s the role that Hillary had to take, the one that she bridled against so agonisingly through the cookie-competitions and the office affairs and, even in this election cycle, Trump’s gutter-level dig that “If Hillary Clinton can't satisfy her husband what makes her think she can satisfy America?”

Clinton soldiered through all that, in the process both remaking the office of First Lady and making her own career: “a lawyer, a law professor, first lady of Arkansas, first lady of the United States, a US senator, secretary of state. And she has been successful in every role, gaining more experience and exposure to the presidency than any candidate in our lifetime – more than Barack, more than Bill,” as Michelle Obama said in a speech last week. It was a speech that made it stirringly clear that the job of a First Lady is no longer to eat shit, as Obama launched into an eloquent and furious denunciation of Donald Trump.

A Trump win, said Obama, would “[send] a clear message to our kids that everything they’re seeing and hearing is perfectly OK. We are validating it. We are endorsing it. We’re telling our sons that it’s OK to humiliate women. We’re telling our daughters that this is how they deserve to be treated.” She’s right. From the moment Clinton was a contender for this election, this wasn’t merely a vote on who should lead the United States: it became a referendum on the role of women. From the measly insistences of Bernie Sanders voters that they’d love a woman president, just not the highly qualified woman actually on offer, to commentators’ meticulous fault-finding that reminds us a woman’s place is always in the wrong, she has had to constantly prove not only that she can do the job but that she has the right even to be considered for it.

Think back to her on that 60 Minutes sofa in 1992 saying she’s “not some little woman standing by her man.” Whatever else the Clinton marriage has been, it’s always been an alliance of two ambitious politicians. Melania Trump makes herself sound more like a nursemaid charged with a truculent child when she tells Cooper “sometimes say I have two boys at home, I have my young son and I have my husband.” Clinton has always worked for a world where being a woman doesn’t mean being part-nanny, part-grabbable pussy. Melania says she doesn’t want pity, but she will receive it in abundance. Her tragic apologetics belong to the past: the Clinton future is the one Michelle Obama showed us.

Sarah Ditum is a journalist who writes regularly for the Guardian, New Statesman and others. Her website is here.