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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French voters face a choice: Thatcherism or fascism

Today's Morning Call. 

Francois Fillon has been handed the task of saving France from a Marine Le Pen presidency and, by extension, the European Union from collapse, after a landslide win over Alain Juppé in the second round of the centre-right Republican party primary, taking 67 per cent of the vote to Juppé's 33 per cent. 

What are his chances? With the left exhausted, divided and unpopular, it's highly likely that it will be Fillon who makes it into the second round of the contest (under the French system, unless one candidate secures more than half in the first round, the top two go to a run off). 

Le Pen is regarded as close-to-certain of winning the first round and is seen as highly likely to be defeated in the second. That the centre-right candidate looks - at least based on the polls - to be the most likely to make it into the top two alongside her puts Fillon in poll position if the polls are right.

As I explained in my profile of him, his path to victory relies on the French Left being willing to hold its nose and vote for Thatcherism - or, at least, as close as France gets to Thatcherism - in order to defeat fascism. It may be that the distinctly Anglo-Saxon whiff of his politics - "Thatcherite Victor vows sharp shock for France" is the Times splash - exerts too strong a smell for the left to ignore.

The triumph of Brexit in the United Kingdom and Donald Trump in the United States have the left and the centre nervous. The far right is sharing best practice and campaign technique across borders, boosting its chances. 

Of all forms of mistake, prophecy is the most avoidable, so I won't make one. However, there are a few factors that may lie in the way of Le Pen going the way of Trump and Brexit. Hostility towards the European project and white  racial reaction are both deeply woven into the culture and politics of the United Kingdom and the United States respectively. The similarities between Vote Leave and Trump are overstated, but both were fighting on home turf with the wind very much at their backs. 

While there's a wider discussion to be had about the French state's aggressive policy of secularism and diversity blindness and its culpability for the rise of Le Pen, as far as the coming contest is concerned, the unity of the centre against the extremes is just as much a part of French political culture as Euroscepticism is here in Britain. So it would be a far bigger scale of upheaval if Le Pen were to win, though it is still possible.

There is one other factor that Fillon may be able to rely on. He, like Le Pen, is very much a supporter of granting Vladimir Putin more breathing space and attempting to reset Russia's relationship with the West. He may face considerably less disruption from that quarter than the Democrats did in the United States. Still, his campaign would be wise to ensure they have two-step verification enabled.

A WING AND A PRAYER

Eleanor Mills bagged the first interview with the new PM in the Sunday Times, and it's widely reported in today's papers. Among the headlines: the challenge of navigating  Brexit keeps Theresa May "awake at night", but her Anglican faith helps her through. She also lifted the lid on Philip May's value round the home. Apparently he's great at accessorising. 

THE NEVERENDING STORY

John Kerr, Britain's most experienced European diplomat and crossbench peer, has said there is a "less than 50 per cent" chance that Britain will negotiate a new relationship with the EU in two years and that a transitional deal will have to be struck first, resulting in a "decade of uncertainty". The Guardian's Patrick Wintour has the story

TROUBLED WATERS OVER OIL

A cross-party coalition of MPs, including Caroline Lucas and David Lammy, are at war with their own pension fund: which is refusing to disclose if its investments include fossil fuels. Madison Marriage has the story in the FT

TRUMPED UP CHARGES?

The Ethics Council to George W Bush and Barack Obama say the Electoral College should refuse to make Donald Trump President, unless he sells his foreign businesses and puts his American ones in a genuine blind trust. Trump has said he plans for his children to run his businesses while he is in the Oval Office and has been involved in a series of stories of him discussing his overseas businesses with foreign politicians. The New York Times has detailed the extentof Trump's overseas interests. 

TODAY'S MORNING CALL...

...is brought to you by the City of London. Their policy and resources chairman Mark Boleat writes on Brexit and the City here.

CASTROFF

Fidel Castro died this weekend. If you're looking for a book on the region and its politics, I enjoyed Alex von Tunzelmann's Red Heat, which you can buy on Amazon or Hive.

BALLS OUT

Ed Balls was eliminated from Strictly Come Dancing last night, after finishing in the bottom two and being eliminated by the judges' vote.  Judge Rinder, the daytime TV star, progressed to the next round at his expense. 

AND NOW FOR SOMETHING COMPLETELY DIFFERENT

Helen reviews Glenda Jackson's King Lear.

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Get Morning Call direct to your inbox Monday through Friday - subscribe here. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.