Who are we hoping to hang with Capital Punishment for rape?

If many in the police and a large part of the society do not know (or agree with) what Rape is, who are we hoping to hang for ‘raping’?

Take a look at just six (out of thousands) rape cases we read about, do you think having Capital Punishment for rape would have made any difference to these rapists?

1. Mathura, 16, was accused of being a liar. It was stated that since she was ‘habituated to sexual intercourse’ her consent was ‘voluntary’; under the circumstances only sexual intercourse could be proved and not rape.

The Bombay High Court set aside the judgment of the Sessions Court, held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.

However, the Supreme Court again acquitted the accused policemen. The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.

The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act, which states that if the victim girl says that she did no consent to the sexual intercourse, the Court shall presume that she did not consent.

2.  In Mohd.Habib Vs State, the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance.

The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment. 

3. Another classic example of the judicial pronouncements in rape cases is the case of Bhanwari Devi, wherein a judge remarked that the victim could not have been raped since she was a dalit while the accused hailed from an upper caste- who would not stoop to sexual relations with a dalit.

4. Sakina- a poor sixteen year old girl from Kerala, who was lured to Ernakulam with the promise of finding her a good job, where she was sold and forced into prostitution. There for eighteen long months she was held captive and raped by clients. Finally she was rescued by the police – acting on a complaint filed by her neighbour.

With the help of her parents and an Advocate, Sakina filed a suit in the High Court- giving the names of the upper echelons of the bureaucracy and society of Kerala.

The suit was squashed by the High Court, while observing that ‘ it is improbable to believe that a man who desired sex on payment would go to a reluctant woman; and that the version of the victim was not so sacrosanct as to be taken for granted.’

From here, http://www.legalserviceindia.com/articles/rape_laws.htm

5. The Bombay High Court has reduced punishment for a man convicted of sodomising a 10-month-old girl child, accepting his contention that he lost control over himself as he was living away from his family. [Does a rapist deserve a reduced sentence because he lost control since he was living away from his family?

Isn’t it essential that we make sure that it is understood by all that lack of consent is rape, and ‘Only yes means Yes’ even if the woman was  wearing a salwar kurta in Andhra or Jeans in Haryana or UP; or dancing in a pub in Mangalore and Kolkata; or drinking in Guwahati; celebrating a birthday party with friends in Noida; or was outside her house or took a radio cab after 8 pm in Gurgaon?

And that it’s Rape even if the rapist was living with his family, away from his family, was drunk, was well known, was of a certain caste, was a family man, was young, needed to support his family etc.

Related Posts:

1. So how does Delhi – NCR Police define Rape?

2. How Victim Blaming confuses rapists, police and the society about when exactly does non-consensual-sex becomes a crime.

3. The rapists often don’t see their actions as crimes, the police said, and don’t expect the victims to report them.

39 thoughts on “Who are we hoping to hang with Capital Punishment for rape?

  1. I do not understand what the protesters are looking to achieve in the first place. It’s all very well to get aggressive and go to demonstrations, but what do you want exactly? These same people will have a tight control over their daughter’s lives, will have them ‘married off’, will be collecting for their dowry, will be forcing their daughters in law to change names, live with them, adapt, and so on. Rapes will continue to happen unless gender equality happens, and THAT can only be done by sensitisation programs, incessant and widespread. But I don’t see anyone asking the Government to do that!

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    • I wonder how many of those protesting would have come forward to help the victims had they been present there at the spot where they lay helpless on the road. And how does one expect Delhi police to be any different when most of those constables come from the same class and mindset as the rapists ?

      The protesters are asking for specific punishments for the rapists which is not under the power of the government but the judiciary. The government can however change laws to be stricter. But the government is making a fool of itself by using force on the protesters and not acting to take strict steps for the safety of women. Which is leading to the opposition and other political outfits to grab an opportunity to poiliticize the issue. And then we have loonies like Ramdev jumping in to score some brownie points. While everyone is forgetting to target the root of the issue.

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      • The protesters are asking for specific punishments for the rapists which is not under the power of the government but the judiciary.

        Can the gov’t not enact mandatory minimum sentencing provisions, to take away some of the judicial discretion? Albeit, none of that will make a difference until the perps are reported, caught, charged, prosecuted, and found guilty.

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  2. The change has to come at so many levels. And from within.
    Simply harping on capital punishment sounds like a knee-jerk reaction to me. There is a lot of outrage, anger and fury…. and somehow it’s like there is no knowledge where to channelise it constructively.

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  3. Absolutely.

    There’s so much cleaning up required. The judiciary is ultimately a product of the same society; I am willing to bet my life that a lot of people who are out there, demonstrating and demanding ‘strict action’, believe the same things that led to those cases being quashed.

    There are pervasive myths about sexual assault which prevent basic access to justice, not just of the legal kind, but also in everyday life. These myths need to be targeted just as much as systemic flaws, and this, unfortunately, requires self-examination, which is a lot more uncomfortable than blaming it all on the government (thankfully not the victim, this time) and demanding that sex organs be chopped off to ‘set an example’. The outrage is understandable, but not really productive, unless it is directed towards a useful end.

    You see, crimes against women do not stop at rape and sexual harassment. The problem begins with murdering infants for being the wrong sex, practically selling away daughters for a dowry, turning a blind eye to domestic abuse, supporting exemptions for marital rape, railing against divorce, telling all women how to dress ‘decently’, discriminating against them at work, forcing them into preordained roles and writing Internet commentaries on why a culture of misogyny is so much better. How about some outrage directed against some of those? How about some outrage towards the enabling culture for sexual assault, towards the social attitudes which produced these rapists, towards the pathetic quality of investigations, towards the humiliating, derogatory (for the victim) trials, towards the sheer unwillingness to believe that no woman ‘asks for it’, towards all the impediments to justice which ensure that no amount of sloganeering would change things on the street tomorrow?

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    • I know, right?! But Mumbai students seem to have undertaken some sensitisation programs against sexual harassment and gender bias at the root level. That is heartening. Hopefully, DU will follow suit. Delhi Universities have a strong culture of activism, so hopefully, they do it the right way.

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  4. While my blood boils at these instances, I would still ask for just two things from the govt. First, to enact legislation to ensure certainty of punishment for rapists, onlookers and abetters. In fact, I’d want chemical castration coupled with a jail term, and life long parole thereafter just to ensure that a criminally-minded person is not simply let loose in society. Secondly, and more importantly, we need to educate our children about women’s rights, legal provisions for it, and citizens’ rights and duties from primary school itself, considering that so many drop off before going to high school.
    If we cannot do this, my submission is that women should be allowed to carry weapons legally. If the police department is to be good used only for VIP protection and for attacking citizens with teargas and water canons, then we might as well take individual responsibility for individual safety.

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  5. The commentators on this site make me believe that there’s hope yet for India, but the reactions I see on Facebook are so hypocritical that all hope is lost. I saw someone’s status update which effectively said that good women should never be raped as they are not tempting anyone, unlike women who wear short shorts and miniskirts. The reaction to the status was angry, which was gratifying.

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  6. I would like to share parts of this post and replies on FB……hope people will not mind…..I agree with the sentiments shared on this blog but can’t express in such clear language!

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  7. This is my first time posting a reply on this blog although I have been following it for a long time now. This incident made me sick to my stomach. That said the superficial hypocritical dramatic public response that followed is making me feel worse. This whole thought process that the problem is with “them” hence “they” need to be punished is quite superficial like many here have already said. A colleague of mine who is in her late 20s was sharing her recent experiences at her inlaws house during her visit to India and she mentioned how she still gets taunted for not brining enough dowry, how she is expected to wear only sarees and salwar kameez at her inlaws house (a ghoonghat is the norm but her inlaws are “nice”), how she is expected to sit in a particular way (if she is allowed to sit in the first place) in front of elders and how she is expected to just listen and not participate in conversations with her FIL, etc. And this woman is a smart, independant, well educated engineer who lives and works abroad, earns a decent salary and is well respected at work. This is how most Indian women are treated back home. And people sit and talk about how the problem is with “them”. Doesn’t make any sense to me! An incident like this calls for introspection which it looks like most Indians are not capable of doing…

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  8. The conviction rate for rape cases in India have dropped even though number of rapes have increased over past few decades. The no. of reported cases have jumped by about 700% from 1970s to now and yet we have only about 25% conviction rates. 75% of rapist go free. And then there is the trauma the victims are subjected to again and again by our society. This statistics doesn’t include other sex crimes inflicted upon women like public molestation, acid attacks.

    Still these protests give me hope. It gives me hope to know that there are people in India that are disgusted and enraged. It took such brutality for get a reaction from them but its still good to know that they are capable of being angered. There might be hope still for India. Or may be its just optimistic me hoping for things to change.

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    • Tuhina,

      I absolutely see where you are coming from, but I do want to point out that a 25% conviction rate does not mean that 75% of the rapists walk free. It’s not that simple a calculation, and there are many factors which make it somewhat complicated to draw quantifiable conclusions about the number of rapists who actually walk free.

      The conviction rate is simply the percentage of cases brought before a prosecuting body that result in a favorable verdict for the prosecuting party (typically, the State).

      Now, first off, many (some say the majority of) rape cases are never reported to the police. Many rapists simply walk away without anyone except the victim even knowing about it.
      Even when a case is reported and filed, there isn’t always sufficient evidence to pursue an active prosecution, which means many cases never reach a court at all.
      When prosecution is pursued, alleged victims and witnesses often turn hostile, changing their testimony in court. When that happens, it becomes incredibly hard for prosecuting parties to obtain favorable verdicts.
      Finally, of all the people acquitted, not all are actually guilty. A case that is brought to court generally represents a belief of the prosecution in the court-worthiness of a case. Since the prosecution is often just a State agency operating in an imperfect system, mistakes are sometimes made, and innocent people can end up being accused of rape. Many alleged rapists walk because they are actually innocent.

      All in all, a conviction rate of 25% is still abysmally low – averages in Western countries range from 45% to over 75%. However, it is just one statistic and I suspect that even accounting for the wrongly accused, the number of rapists who walk away is well over 75%.

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      • Spot on. I think part of the low conviction rate is because the police in India is generally reluctant to register an FIR for cognizable offences (unless they are adequately compensated or pressured to do so). Their first impulse, when a woman brings up a charge of rape or molestation is to imply that the victim is perhaps making a false claim or is somehow responsible for her victimisation (dress, time of the day, etc.). Also, most of the police force in India is woefully untrained on the procedures how to handle a rape case (gathering evidence to secure a conviction, etc.).
         
        This is of course, apart from the reasons you mentioned above, such as witnesses turning hostile, etc.

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  9. It is nauseating to keep hearing on various channels like ‘rape victims’ life is over’,’women need to dress properly to prevent incidents like rape’.I feel that is insulting to the victim. On one of the regional channels the presenter of the show was saying how we don’t educate young people on certain matters to stop rape. One participant who was a principal of a school interrupted that she has been talking to her students on how to prevent rape. On being asked how she replied the most important thing she is doing is urging girls to wear proper clothes to so as to not attract improper attention. The presenter asked her why isn’t she teaching boys instead to respect women. Her answer was that ‘we never teach boys to disrespect women’.I hope no rape victim happen to watch that channel because its extremely degrading.i think majority of Indian women would have been told by someone or the other in their lifetime on how to dress. But how often do we see boys been actually told in so many words to not be lecherous by the same mothers? It is assumed they will not be and even if they it is not a big deal. Why is it that their indulging in what they term as eve teasing is not considered a crime? Also another thing to ponder on is if we are teaching boys not to disrespect women does it mean we are teaching them to respect women. Thankfully there were some participants who saved the grace. One lady said the only way out is that whatever you teach girls, the same has to be taught to boys. There should be no distinction on gender. She said there are countries where women are not raped for wearing a particular type of clothing. Then why should our country blame it on clothes.

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  10. Hello people ! I have a question for you specially those who know the law better; ‘whether its right to take the verdict of the victim as a proof of consent.’
    The cases 2 to 5 were clearly inappropriately handled. But lets take Case 1. How can you prove in court if you are raped and have no witnesses/physical abuse marks. I totally agree that a women might get stoned out of shock and the act is over before she regains her senses. But how do you prove this in court? Why should our law trust the verdict of the victim as a proof of consent?
    And this is precisely the reason why I am against capital punishment for rape. May there be known a case, when a girl accuses the alleged rapist falsely? (agreed: 1 in a million)
    Take this as a hypothetical example:
    [“her” & “him” are in a relationship. They watch Spiderman, get drunk and have sex (both in consent). Intense argument follows late at night because “her” finds out that “him” actually has another girl in his life (BBM, FB, random friend, whatever). Angry and raged, “her” files a rape case the very next day and tells court that she did not have consent as she was drunk.]
    How does the boy prove that he is innocent by the theory stated above? Remember, the boy is morally wrong but cannot be charged legally.
    How would the prosecution/defense prove that ‘her’ was guilty/innocent? Would you hang the boy because the girl stated that she was drunk and therefore not in a position to give consent?
    “Would it be right for the judge to trust “her” that she got raped because she says so? We both secretly know that “her” is trying to frame “him” but nobody else knows this fact.”
    PS: I am a brother/son and I completely understand the agony of what women face everyday. In no way I am supporting the goons .Your answer will only help me form the right opinion.
    Thanks.

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  11. Oh my… the cases you have high lighted are so ghastly… Death penalty or laws are all just temporary. We need to recognise the fact that our society is becoming mentally sick!There needs to be a change in people’s mindset right from the basic level. This is not just a political or legal problem… it is a social problem that threatens the very fabric of our society.

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  12. Just when I thought thank god nobody is indulging in victim blaming. here you have andhra congress chief spouting nonsense like this- “they should also think that they should not go in a private bus at night… We say we got freedom at midnight but doesn’t mean we can roam free around at midnight.”
    http://www.ndtv.com/article/india/freedom-at-midnight-not-to-roam-freely-andhra-congress-chief-s-shocker-309305?pfrom=home-topstories

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  13. Hey IHM,
    I just found out through this link: http://social.ndtv.com/gargirawat/status#tab
    That Justice Verma Committee which has been set up to review all laws for speedier justice and enhanced punishment in cases of aggravated sexual assault is inviting suggestions from all.
    We contact him at: justice.verma@nic.in

    I have an idea and since it involves using your blog so it’s just a suggestion:
    If you’d like to then we can use your blog as a platform for brainstorming all the solutions and ideas which we have in regards to sexual harassment/ assault/ molestation/ rape through a post specifically dedicated to it. By allowing all the commentators to contribute their ideas and propose solutions we can get in different perspectives and perhaps come up with some very unique/ not so unique but effective solutions nevertheless.
    Then if you have the time, you can compile all the relevant ideas and make a draft of all the proposed solution and ideas and present it to us again through a post and then after another round of discussion and making any changes in the draft if the need be, you can e-mail the final list of proposed solutions and ideas to Justice Verma.

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    • This is a good idea, Chitra. Regardless of whether it reaches Justice Verma or not, we can at least see if there is anything practical that can be accomplished in terms of combating rape or helping rape victims.

      We need not completely reinvent the wheel either. There are other countries which have taken this problem seriously and come out with their own measures.
      For e.g:
      1. Setting up a national sex offenders registry, categorizing known sex offenders as either low risk, medium risk and high risk depending on how violent they are and how likely they are deemed to repeat their crimes. In the US, people in a particular locality have access to view if there are any medium risk or high risk offenders living amongst them. Details of low risk offenders are not shared as they are believed to have some chance of rehabilitation
      2. Setting up rape crisis centers (http://en.wikipedia.org/wiki/Rape_crisis_center) in different cities in different locations with legal and medical advocates to help the victims
      3. Setting up a centralized, nation-wide organization (like RAINN – http://www.rainn.org) which specifically focuses on sex offences and how to help the victims with helplines, counseling, coordination with police etc.
      4. Provision of anonymous Rape kits (similar to what is given here – http://en.wikipedia.org/wiki/Rape_kit ) which the victims can use without their privacy getting violated.

      There is, of course, a lot more that can be (and should be) done like
      a) defining rape more clearly in the legal code,
      b) taking out PSAs and public ads condemning any and every kind of rape so that the common man is aware what does or does not constitute rape,
      c) reaching out to schools and colleges in an effort to influence popular mindset while they are still young

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  14. Pingback: ET78 :: A rape victim in UP is raped by cops probing her case « Ek Tamacha

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  17. Rape, molestation and abductions, the crimes are numerous but low conviction rates for the same is one of the major reasons for the growing number of offences against women, point out experts.

    “Apart from other factors, the low conviction rate in the cases of rape is the biggest worry we have today. There is hardly any deterrence. Law should provide fast track courts to deal with such cases,” says Girija Vyas, Chairperson, National Commission for Women (NCW).

    While there were 37,000 cases of molestation and eve-teasing in 2006-07, the conviction rate for such crimes, is below 30 per cent. For rape it is just a dismal 27 per cent.

    Brinda Karat, All India Democratic Women’s Association (AIDWA), member says, “I have raised the issue in the Parliament several times that there is a need to step up conviction rate in rape cases drastically. Poor legal system, wrong understanding of policemen in these cases and lengthy procedures especially in child rape where after horrifying rounds of investigation the victim starts feeling that she is an accused and should not have registered the case, are few reasons for low conviction rate.”

    “In every 10 hours, a girl of the age of 1-10 is being raped in India. We are raising this issue and have demanded enforcement of stringent laws by government,” she adds.

    Reacting to a recent incident in which a minor was raped by a constable and his accomplice in a moving car in the national capital, Vyas says, “This is a special case and it should be dealt with a fast track court. On many occasions, complains do not get registered on time and then it is very difficult to prove that rape actually happened. It should be registered within 24 hours of the incident.”

    The accused believe they can get away with it. Officials are corrupt and easily bribed (some are even committing rapes themselves). Women are shamed and humiliated when they come forward because of the backward notion that it’s the woman’s fault (even when the ‘women’ are young children). If they make a case, it becomes public knowledge and their families and society shun them in many cases as they are then seen as ‘damaged goods’. If unmarried they will have great difficulty getting married. Courts don’t always do justice for the victim and find rapists not guilty for ridiculous reasons.

    Predators know this and take advantage of it. Even if they get caught, if they have enough money or influence, nothing will happen to them. A woman would have to turn the case into a media circus to have a chance at justice and 90% of rape victims in India would not do so out of fear and shame .

    There is a need for review in certain provisions under various laws related to rape so that victims get justice.

    The National Commission for Women has identified nine areas for review . These are:

    1. Review of the definition of rape

    2. Reduction of procedural delays

    3.Uniformity in age of consent under sections 375 and 376 of Indian Penal Code, 1860, to bring it in conformity with the Child Marriage Restraint Act, 1869

    4. Whether exception to section 375 should be deleted

    5. Whether section 155 clause 4 of the Indian Evidence Act 1872 needs to be amended or deleted.

    6. Whether statutory provisions are needed for compensation to the rape victim

    7. Whether provisions for counseling legal aid should be made mandatory under laws.

    8. Death penalty to persons convicted for rape

    9. Recommendation for enhancement of punishment in cases where the accused, with the knowledge of suffering from HIV infection/AIDS, infects the victim as a result of rape.

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