Rajat Maloo

A disproportionate and ineffective measure, death penalty for child rapists is plagued by a host of jurisprudential, penological, and practical problems

The State aims to regulate the conduct of the people via imposing sanctions for violations. When it comes to punishments, death is the severest possible penalty which can be legally administered in India. Recently, the parliament passed a criminal law amendment, adding a provision to the Indian Penal Code, providing death penalty as a punishment for rape on a woman under twelve years of age (Indian Penal Code, 1860, s 376AB). However, the question is, is the death penalty justified for the offence? Further, is this punishment sufficient to reduce the crime?

I shall argue that death penalty for child rapists does not have any penological or jurisprudential basis and is merely a knee-jerk reaction as: first, the death penalty is not proportional for retribution; second, death penalty is not an effective deterrent in Indian scenario; and third, death penalty as a punishment faces practical problems.

Death Penalty – Disproportionately Retributive

One of the aims that punishment seeks to achieve is retribution,^[1] that is, to seek vengeance in a legitimate way (different from untrammelled, unspecific retaliation), for the acts which drastically affect the victim or shake the collective conscience of the society.^[2] A significant aspect of the retributivism theory is that no offender should be subjected to a punishment more severe than the wrong committed.^[3] Thus, the severity of punishment must be proportional to the seriousness of the crime.^[4]

Proportionality entails that penalties for different crimes must be properly spaced.^[5] That is, if ‘A’ is a very serious crime as opposed to a crime ‘B’ which is just a bit more serious than ‘C’, then the severity space of punishment between ‘A’ and ‘B’ must be more than ‘B’ and ‘C’.^[6]

The US Supreme Court provided a similar reason while holding death penalty as ‘grossly disproportionate’ for rape of an adult woman,^[7] given that most states declined to have capital punishment for rape.^[8] The plurality judgment said that only the offences which take away someone’s life are worth punishable by death penalty.^[9] Then, it would be anomalous for rapes to be punished by death, given that murders (being a more serious crime as a person is deprived of his life) in a lot of cases are punished by incarceration (equal punishment, different degree of culpability).^[10] Following the same proportionality test,^[11] the US Supreme Court struck down death penalty for child rapists who did not kill the child.^[12] In India as well, the majority decision of the Supreme Court in Bachan Singh’s case^[13] held that death penalty must be awarded only in ‘the rarest of the rare’ cases, where ‘aggravating circumstances’ exist and thus acknowledged the need of proportionate punishment for crimes of varying degrees. Thus, disproportionate sentencing violates a core principle of retribution – proportionality.

Analysing the introduction of death penalty via the amendment using the aforementioned principle, the provision does not fulfil the need for proportionality between crime and punishment,^[14] as it punishes an accused more severely than the seriousness of the crime committed. Further, the penalties are not properly spaced as penalty for murder, being a relatively more serious crime now coincides with the penalty for rape of a child (which is just a sub-category of rape), whereas penalty for rape still remains incarceration.^[15] Hence, merely seeking retribution for the victim, or the society at large, cannot justify the penalty which is ‘irreversible’, ‘inhumane’ and ‘disproportionate for crimes less serious than murder’.^[16]

Retribution as a justificatory principle has now been criticised as opposed to other purposes of punishment which prefer treatment, correction, reform and rehabilitation.^[17] Thus, in the light of alternate punishments which are more beneficial to the whole society, death penalty, merely as a means to seek retribution is not a good enough reason to take someone’s life.

How Effective is the Deterrence Effect?

One of the gravest arguments made by those in favour of death penalty is that it generally prevents people from committing the crime.^[18] However, deterrence as reason for imposing death penalty is severely criticised as it is morally unjust.^[19] When an example is made of a person to induce others to avoid criminal action, he suffers not for what he did but on account of other people’s tendency to do likewise.^[20] Thereby, deterrence disregards the second formulation of Immanuel Kant’s categorical imperative^[21] that men should be treated as an end in itself and not as a means for some other end.^[22] Essentially, someone cannot be punished merely as a means for promoting public good and thus, deterrence as a reason for punishment is not adequate.

Moreover, death penalty in and of itself, as is evident from multiple studies, is unable to create effective deterrence.^[23] Given that it’s very difficult to establish the unique deterrence effect of death penalty, it is better to have a lighter punishment, which can sufficiently fulfil the deterrence purpose of punishment.^[24] The South African Supreme Court commented that executing a comparatively few people each year is not an apt solution to reduce the crime rate.^[25] Thus, the unique deterrence effect of death penalty does not exist.

Moreover, for any penalty to fulfil its purpose of deterrence, celerity and swiftness of punishment and execution is more important as opposed to severity of the punishment.^[26] The government in India, merely by increasing the severity of punishment for child rapists, cannot offset the ineffectiveness of criminal justice system, such as low reporting rates, improper investigation, uncertainty of conviction, insensitivity of judges and police towards the victim, slow trial process, etc. The deterrence effect, if any, of death penalty in this scenario is insignificant. Moreover, the 262^nd report of the Law Commission of India denied death penalty to have any deterrence effect.^[27] Thus, speedy and inescapable detection is more of a deterrent than painful sentences rarely occurring.^[28]

Furthermore, one of the arguments against death penalty is that it is arbitrary in nature. Death penalty is given by judges who are fallible humans working in a fallible institution which can make mistakes. There have been cases in the past where people were executed and their innocence was realised later. Moreover, for a lot of accused, the procedure itself tends to be unfair. For instance in the United States, there have been numerous studies suggesting that death penalty, where judges have discretion, is imposed in a manner which is racist in nature.^[29] In India as well, such arbitrariness on the basis of class exists. Many a time, accused with good lawyers and better resources tend to get away with a lesser penalty. What then is the deterrent effect which death penalty possesses when it is arbitrarily executed? None. Also, if the aim is to create a deterrence effect, the penalty has to be applied uniformly.^[30] Thus, arbitrarily imposing death penalty in certain cases is not enough to provide efficient deterrence effect.

Moreover, the distinction made by law between rape of a child and rape of an adult is not a sound one. It is argued that rape of a child is more morally blameworthy and more injurious to the victim and the society, as against rape, and hence, needs to be punished severely. However, the sub-categorisation of the offence of rape, providing the age of the victim to be less than twelve years, is arbitrary and questionable with regards to ascertainment of an age (or any age for that matter, to determine who is a child and who is not) to consider it more morally blameworthy and severely punishable by law.

Therefore, deterrence as an argument for the thoughtless imposition of death penalty for child rapists is not an effective one when the criminal justice system in India lacks celerity and is arbitrary in nature. When the threat of execution is uncertain and quite remote, death penalty is not capable of creating the any deterrence effect.^[31] Additionally, deterrence as a justification for death penalty is morally unjust in nature.

Practical Problems With the Death Penalty

There are three major practical concerns, namely, the way it was introduced, feminist perspective on death penalty for rape, and problems that permeate in the Indian criminal justice system.

1. The way of Introduction

Penal populism and the appeal to public resentment largely influences the government policy on crime.^[32] Politicians often appeal to the public demand for severe criminal justice policies in the hope of enhancing their own electoral prospects prior to election years.^[33] In such a case, the State severely punishes the convict based on community’s expression of indignation at the crime and provides a vent to ‘citizen’s animus at criminals and their behaviour’.^[34]

As an aftermath to the Kathua and Unnao rape incidents in 2018, the government portrayed its concerns merely by a harsher punishment and quelled the public outcry. This is evident from the fact that PM Narendra Modi called an emergency cabinet meeting and passed an ordinance, which was nothing more than a knee-jerk reaction to the whole problem. Reactionary reform has always been easy for the government, as it makes it seem tough on crime, which is vital before an election year, like in 2018, when parties try to capture floating voters.^[35]

This kind of populist punitiveness is detrimental to the whole criminal justice system as attention is diverted from substantive improvement goals, the proportionality principle of punishment is disregarded and increase in severity of punishment is seldom accompanied by an estimate of its crime preventive impact.^[36] In such a scenario, penal populism merely exploits, mobilizes and channelizes public resentment towards criminals. Thus, reactionary death penalty only seems to be hindering, not furthering critical law enforcement efforts.^[37]

2. Feminist Perspective

From a feminist viewpoint and looking from the perspective of the victim,^[38] if penalty for murder and rape is equated, the perpetrator of rape will be better off killing the victim as then there is no one left to emphatically identify him. Imposition of death penalty for child rapist, gives a perverse incentive to the rapist to murder as well, and thus, is detrimental to the victim’s interests.

Moreover, patriarchal judges who have the discretion to grant either the highest punishment of incarceration for twenty years or death penalty will choose to give the lower punishment of the two, or in some cases, might not even want to convict, which again defeats the purpose of the criminal justice system.

The provision provides for age of the victim to be twelve years. It is difficult to determine the real age in every case. When methods like ossification are used to determine the age of a victim, it provides the age in a range of a couple of years. This ambiguity arms the judges, who are against the new enhanced punishment, with the discretion to consider the age to be outside the purview of the provision to give a less harsh sentence.

3. Problems in the criminal justice system

The aspect which the recent amendments completely failed to take into account is the low level of reporting in cases of rape (due to massive stigma attached to it). A lot of times, the perpetrators are ‘known’ or someone ‘close’ to the victim. With the imposition of death penalty, victims will be deterred to come forward as this might lead to sending a person they know to the gallows.

Moreover, the inevitable arbitrariness and discrimination, usually against the poorest and least powerful persons in society in the infliction of capital punishment, along with outcries of the wrongfully convicted, lessens the legitimacy and authority of the criminal justice system itself.^[39] Criminal justice system has a plethora of underlying problems in the investigation mechanism, trial process and uncertainty of conviction. These practical problems are not solved merely by increasing the severity of the punishment.

Conclusion

After a theoretical and practical analysis of the whole issue, I conclude that, death penalty for child rapists does not have a sound penological or jurisprudential basis to it. Moreover, it is merely a reactionary measure taken by the government. Further, this is harmful to the discourse of actual reform for the crime of rape as it diverts attention from it by fulfilling the public bloodlust. Even if a child rapist is more blameworthy than a rapist, death penalty is practically not an effective solution to resolve the problem.

REFERENCES

[1] Arunjeev Singh Walia, Can society escape the noose? (2005) 34.

[2] Shlomo Giora Shoham and Ori Beck, International Handbook of Penology and Criminal Justice (2008) 380.

[3] Mathew Kramer, The Ethics of Capital Punishment (2014) 71.

[4] H L A Hart, Punishment and Responsibility (2008) 235.

[5] Andrew von Hirsch and Andrew Ashworth, Proportionate Sentencing (2005) 140.

[6] Hirsch and Ashworth (n 8) 141.

[7] Coker v Georgia 433 U.S. 584 (1977).

[8] David Garland, Peculiar Institution (2010) 270.

[9] David J. Karp, ‘Disproportionate Punishment and the Death Penalty for Rape’ (1978) 78(8) Columbia Law Review 1714, 1714.

[10] Karp (n 9) 1717.

[11] Mary Graw Leary, ‘Kennedy v. Louisiana: A Chapter of Subtle Changes in the Supreme Court’s Book on the Death Penalty’ (2008) 21(2) Federal Sentencing Reporter 98, 99.

[12] Kennedy v Louisiana 554 U.S. 407 (2008).

[13] Bachan Singh v State of Punjab (1980) 2 SCC 684.

[14] G W E Hegel, Elements of the Philosophy of Right (1820) 71.

[15] Indian Penal Code, 1860, s 376.

[16] Shoham and Beck (n 2) 163.

[17] Susan Easton and Christine Piper, Sentencing and Punishment (3^rd edn, 2013) 108.

[18] Kramer (n 3) 20.

[19] Johannes Adneaes, Punishment and Deterrence (1974) 23.

[20] Egon Bittner and Anthony M Platt, ‘The Meaning of Punishment’ (1966) 2(1) Issues in Criminology 79, 90.

[21] Kramer (n 3) 29.

[22] Immanuel Kant Groundwork of the Metaphysic of Morals (1996) 96.

[23] Kramer (n 3) 32.

[24] Easton and Piper (n 20) 124.

[25] State v Makwanyane [1995] ZACC 3.

[26] Easton and Piper (n 17) 118.

[27] Law Commission of India, ‘Two Hundred and Sixty Second Report on The Death Penalty’ (August, 2015) 79. The commission recommended abolition of death penalty for all crimes apart from terrorism related crimes and waging war.

[28] Unto Tähtinen, Non-Violent Theories of Punishment: Indian and Western (1982) 95.

[29] Kramer (n 3) 318.

[30] Michael Tonry, The Handbook of Crime and Punishment (1998) 763.

[31] Tonry (n 30) 758.

[32] Hirsch and Ashworth (n 5) 86.

[33] Tonry (n 30) 31. In India, political parties did this by introducing the amendment in the year 2013 and 2018, right before election years of 2014 and 2019.

[34] Hirsch and Ashworth (n 8) 87.

[35] Easton and Piper (n 17) 10.

[36] Hirsch and Ashworth (n 5) 87.

[37] John Bessler, The Death Penalty as Torture (2017) 233.

[38] Katherine T Bartlett, ‘Feminist Legal Methods’ (1990) 103(4) Harvard Law Review 829, 830.

[39] Tonry (n 30) 758.

Rajat is a 2nd year BA LLB (Hons.) student at National Law School of India University, Bengaluru.

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