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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Listen up, Enda Kenny: why two Irish women are livetweeting their trip for an abortion

With abortion illegal in the Republic of Ireland, many women must travel to Britain to obtain the procedure. One woman, and her friend, are documenting the journey.

An Irish woman and her friend are live-tweeting their journey to Manchester to procure an abortion.

Using the handle @twowomentravel, the pair are documenting each stage of their trip online, from an early flight to the clinic waiting room. Each tweet includes the handle @endakennyTD, tagging in the Taoiseach.

The 8th amendment of the Irish constitution criminalises abortion in the Republic of Ireland, including in cases of rape. Women who wish to access the procedure must either do so illegally – using, for instance, pills acquired online or by post – or travel to a country where abortion is legal.

As the 1967 Abortion Act is not in place in Northern Ireland, Irish women often travel to the UK mainland, especially if seeking a surgical abortion. Figures show that in 2014, an average of ten women a day made the trip. The same year, 1017 abortion pills were seized by Irish customs.

Women who undertake the journey do so at a substantial cost. Aside from the cost of travel, they must pay for the procedure itself: a private abortion in England can cost over £500, and Irish women, including those born and resident in Northern Ireland, are not eligible for NHS treatment. Overnight accommodation may also need to be arranged.

The earlier an abortion is obtained, the easier the procedure. Yet many women are forced to delay while they obtain funds, or borrow money to pay for the trip. 

Women’s charity and abortion providers Marie Stopes provide specific advice for the flight back which reveals the increased health risks Irish women are exposed to. The stigma surrounding termination may also dissuade women from seeking help if complications arise once they have arrived home.

Abortion is a relatively minor procedure in medical terms. A recent survey quoted in Time magazine suggests that 95% of women who have had an abortion say they do not regret it.

It is not surprising, then, that calls to repeal the 8th amendment are increasing in volume. Campaigns like the Artists’ Campaign to Repeal the 8th (to which this author is a signatory) as well as the Abortion Rights Campaign and REPEAL have mobilised to lobby for a change in the law, and in some cases help fund women forced to travel.

Women’s testimony is an important part of campaigning. Abortion is stigmatised across these isles, but the criminal aspect in Ireland makes the experience of abortion particularly difficult to discuss. Actions like @twowomentravel and groups such as the X-ile Project, which photographs women who have had the procedure, help to normalise abortion, showing a part of life often hidden from view (but which plenty of women experience).

The hope is that Irish women will soon be able to access abortions which are like those available to women in England: free, safe, and legal.

The Abortion Support Network help pay for women from the island of Ireland access abortion. Their fundraising page is here.

Stephanie Boland is digital assistant at the New Statesman. She tweets at @stephanieboland