Well, this one is being written of someone's request. Lets hope I am able to put up my perspective for the issue.
To start with, both 'death penalty' and 'rape', in law, have been one of those issues which have received tremendous jurisprudential exposition. But the scholars have still not been able to come out with a set of agreed principles on each of these issues. So to clarify, it is not possible for me to summarize what these different schools of thought say (I know a lot of people would be expecting this, sorry to disappoint you guys) and I am here just to give what I think should be the issues to be taken into account for determining the stakes.
Firstly, the utility of death punishment has not been aptly justified. No doubt it is an extreme form of punishment but it is not always a deterrent. It is well known that in medieval England pick-picketing was sought to be deterred by making the offence punishable with public hanging and when there were the maximum instances of pick-pocketing recorded when such hangings used to take place. So the effect is not widely appreciated.
Secondly, rape is not only a crime against woman, it is also a crime against humanity which requires the issue to be looked against a policy perspective as well. Thus if the issue was purely a crime against women, the victimological approach may well have been applied and the accused be convicted with that level of punishment which would have indemnified the victim. But this does not strictly apply to a case of rape. The issue is more sensitive, owing to the cultural issues also involved here. Like take for example the Scandinavian countries where the question of morality-in-law and cohabitational issues are of not much vital significance and thus issues such as rape are not dealt with at all from a legal perspective. However in legal systems where law is derived from religion, the issue may be dealt with very seriously, even sometimes acting against the victim herself. So the treatment is basically dependent on the legal system's approach to the gravity of crime.
Thirdly, the questions of retribution and policy-considerations are also important. This takes into account the placing of the victim. Especially in India, where many a times the trend has been (of course with the consent of the victim) that the perpetrator of the crime has been required to marry and provide for the victim, thus making a societal leeway for the victim's maintenance and well being. The effectiveness of this mechanism is arguably debatable but I just wish to project this as an acceptable social fact.
Finally, which I think is the most important reason not to give death penalty to a rape accused is I think a practical one. If the perpetrator of the offence knows that the punishment for rape is death penalty (which ofcourse he would know), then he might as well consider to kill the victim after having committed rape for the punishment for death would be the same. Thus the perpetrator would become indifferent to committing rape or death, a dangerous proposition indeed as it would lead to more victims of rape being killed as opposed to mere rape where atleast (given the anonymity given to them under law) they can survive and have chances to start a new life.
Further, given the fact that human life is more valuable, no legal system would be designed towards making perpetrator indifferent to rape and death. It is also to be considered that if death is in fact made a punishment to rape, the perpetrator would, more often than not, try to kill the victim and seek to destroy the evidence and thus try to avoid punishment. However in a case where rape is punished with lesser punishment than death, there is reason enough for the perpetrator to leave the victim alive and seek shelter elsewhere.
There may be many more practical or jurisprudential issues relating to the issue at hand but I personally feel, for the reasons herein stated, that the answer to the issue at hand is no, and a big one.
To start with, both 'death penalty' and 'rape', in law, have been one of those issues which have received tremendous jurisprudential exposition. But the scholars have still not been able to come out with a set of agreed principles on each of these issues. So to clarify, it is not possible for me to summarize what these different schools of thought say (I know a lot of people would be expecting this, sorry to disappoint you guys) and I am here just to give what I think should be the issues to be taken into account for determining the stakes.
Firstly, the utility of death punishment has not been aptly justified. No doubt it is an extreme form of punishment but it is not always a deterrent. It is well known that in medieval England pick-picketing was sought to be deterred by making the offence punishable with public hanging and when there were the maximum instances of pick-pocketing recorded when such hangings used to take place. So the effect is not widely appreciated.
Secondly, rape is not only a crime against woman, it is also a crime against humanity which requires the issue to be looked against a policy perspective as well. Thus if the issue was purely a crime against women, the victimological approach may well have been applied and the accused be convicted with that level of punishment which would have indemnified the victim. But this does not strictly apply to a case of rape. The issue is more sensitive, owing to the cultural issues also involved here. Like take for example the Scandinavian countries where the question of morality-in-law and cohabitational issues are of not much vital significance and thus issues such as rape are not dealt with at all from a legal perspective. However in legal systems where law is derived from religion, the issue may be dealt with very seriously, even sometimes acting against the victim herself. So the treatment is basically dependent on the legal system's approach to the gravity of crime.
Thirdly, the questions of retribution and policy-considerations are also important. This takes into account the placing of the victim. Especially in India, where many a times the trend has been (of course with the consent of the victim) that the perpetrator of the crime has been required to marry and provide for the victim, thus making a societal leeway for the victim's maintenance and well being. The effectiveness of this mechanism is arguably debatable but I just wish to project this as an acceptable social fact.
Finally, which I think is the most important reason not to give death penalty to a rape accused is I think a practical one. If the perpetrator of the offence knows that the punishment for rape is death penalty (which ofcourse he would know), then he might as well consider to kill the victim after having committed rape for the punishment for death would be the same. Thus the perpetrator would become indifferent to committing rape or death, a dangerous proposition indeed as it would lead to more victims of rape being killed as opposed to mere rape where atleast (given the anonymity given to them under law) they can survive and have chances to start a new life.
Further, given the fact that human life is more valuable, no legal system would be designed towards making perpetrator indifferent to rape and death. It is also to be considered that if death is in fact made a punishment to rape, the perpetrator would, more often than not, try to kill the victim and seek to destroy the evidence and thus try to avoid punishment. However in a case where rape is punished with lesser punishment than death, there is reason enough for the perpetrator to leave the victim alive and seek shelter elsewhere.
There may be many more practical or jurisprudential issues relating to the issue at hand but I personally feel, for the reasons herein stated, that the answer to the issue at hand is no, and a big one.
1 comment:
As a woman the subject of rape is of special interest to me and it is thus understandable that I have strong opinions on the matter.
The conversation I had with Tarun, spanned a number of topics that were punishable under law, starting with the amusing tale of how pick-pockets were given capital punishment in order to discourage petty theives, and how the gatherings for the public hanging spawned hundreds of more pick-pockets and such incidents. The conversation then turned towards my opinion that rapists should be dealt capital punishment, and this led to a heated debate.
In my opinion, a rapist not only causes physical harm on the victim but endless mental torture as well. It is a crime not merely of bodily harm but also results in demeaning the victim.
The most basic human rights of the victim are grossly violated.
Tarun's rational that making rape an offence punishable by death would be foolhardy, since it may result in the rape victim being murdered as well, is convincingly put across. However the scenario in which it was suggested that the rape victim marry the rapist, leaves a lot to be desired. No woman could bear to marry a man who has perpretrated such an act against her. Moreover, even considering the case in which she does assent to marriage, the married life would be fraught with difficulties, tensions and may even result in further harrassment of the victim, now at the hands of her "husband".
The debate regarding the question of what punishment be meted out to rapists is like the proverbial minefield. It is my opinion that rapists should be publicly humiliated... this however may lead to the veil of anonymity being lifted off the victim, causing more harm than good. The need then is to devise some foolproof method of punishing rapists that would leave no ambiguity or scope for one to escape punishment. It is difficult to tell what would strike reason with the warped mind of a rapist, such that it stops him from commiting the heinous crime. It is however the need of the hour, especially in countries like India, where the lot of women is pitiable; to take steps towards a more stringent anti-rapist law being put into force. Until then, the position of women is, to put it quite charitably, despondent.
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