Is the death penalty a deterrent to the rape problem in India?

I was a bit surprised by the dramatic pronouncement of the death penalty on three of the four men convicted in the Mumbai Shakthi Mills gang rape of a 23-year-old photojournalist and more importantly for being “repeat offenders.”

I think that this pronouncement made by a woman judge adds a dimension to the whole argument of whether death penalty is the right response to the crime of rape. For some strange reason, I am convinced that the judge was playing to the gallery. Her being a woman gave a sense of political correctness to the whole thing. I understand that in most situations a woman certainly would know how a woman feels better than a man would—therefore, the judge as a woman has every right to be empathetic to the victim who happened to be a woman. I don’t think however that it should be enough reason for the judgment being a right one in itself.

It’s a populist judgment and is responding to this whole new meaningless discourse on the protection of women and women’s rights being the most important thing in the horizon, as if to absolve the social order from the guilt of hundreds if not thousands of years of patriarchal violence. I have consistently been against legal solutions to social problems. I have no doubt in my mind that draconian laws have to be instituted against female feticide and honor killings. That does not solve the problem though.

A social problem by definition needs a social and a political solution. Another aspect is that legal equality gives the illusion of social equality. It cannot be so. They are two completely different things and one does not translate into the other. In fact the state propaganda machine more and more wants the masses to mistake legal for social and economic equality. To be equal in principle does not mean equal in practice.

Personally I am not sympathetic to criminals and others who break the law with impunity. Where some men don’t get the idea that collective rights need to be respected, I advocate the stringent use of law to control such men. My reasons for being opposed to the death penalty in general and especially in this particular instance are purely practical ones. You can call my reasons utilitarian for short of a better term. The court agrees with the view that punishment is a deterrent and I feel the same. My point is that a crime such as rape can hardly be solved merely with deterrents.

Fear works as a deterrent but not to the extent that it can control individuals who have no sense of value to their own lives. Their dehumanization has made them incapable of feelings of self-worth. In such cases, the deterrent has obviously failed to make its mark. Fear will work as deterrent on people who have certain academic background and social standing. It would worry them to be in the limelight for the wrong reasons.

A completely alienated human being precisely will look for the negative attention given by criminal behavior. In those cases, the law is a failure and the law courts exist merely to feed the greedy lawyers, the self-important public prosecutors, judges who clearly are unaffected by the social and economic background of the criminals and a profoundly bored middle class audience who is desperate for some excitement to give meaning to their pathetic lives. I am speaking as someone who strongly believes in deterrence. As a long-run solution I think that prisons should be broken down and the money used to maintain the law courts and jails ought to be spent on social reform instead. As of now, the law must work to protect individuals.

In Luis Bunuel’s 1960 movie “The Young One” (La Joven), the conscientious local preacher, Rev. Fleetwood, confronts the man who has taken upon himself to judge someone else as guilty while he himself is making predatory sexual advances to a young girl against her will. The reverend notes: “There are always excuses . . . always extenuating circumstances, and I’m tired of them. ‘He’s sick. He’s poor.’ ‘His parents beat him when he was young. His parents didn’t beat him when he was young.’ I’ve heard that kind of cant used to excuse the most scabrous crimes. Well, I won’t accept it. It’s an old-fashioned belief, I know, but I believe in sin. Yes, and expiation. There must be guilt in expiation or the sin will be readily committed again.”

In itself the background of the accused is not the issue and cannot be overused to make a case for clemency. One’s own personal suffering and deprivation cannot be the reason for one to inflict suffering upon another human being. The sensitivity to human feelings of pain is universal and ought to be treated as such. Therefore, I concur with the reverend’s view that the past cannot be used as excuse to commit crimes in the present. A man has to rise above his past hurts or his social condition and realize that he cannot victimize others for his own pleasure. Social deprivation is no excuse for moral depravity and conscience must prevail over human weakness.

Mothers play the role of conscience watchers to the sons and where the mothers themselves are brutally exploited and victims of the social order how do you expect the sons to know any better? This is also something that the woman judge ought to have noted. She spoke about the victim. But, what about a victimized condition that created the rapist? All I am saying is that in all of these instances the guilt is a collective one. Everyone has a share in why some men turn into violent criminals. This includes the judge as well. Everyone deserves to die of shame when these things happen.

Another reason why I think that the death penalty is meaningless is because it does not give the criminal a chance to expiate. Expiation is necessary for reconciliation to happen. Punishment as an end in itself is a brutal thing. It serves no end at all unless we give people a chance to expiate. Old-fashioned though it may be and with some religious overtones to it, I think, practically speaking, the whole idea of punishment ought to be that the accused understand the gravity of their wrong and are willing to pay for it. Where a man has not understood why he is being punished, the whole exercise of punishment is one in futility. With death hanging on his head, a man is incapable of entering the zone of expiation. These men need to be worked with and counselled instead of being demonized which will only justify the violent behavior.

I seriously don’t think that the way the debate on crimes against women is framed is taking us forward in any significant manner as far as vindicating the rights of women in this country is concerned. It might make men afraid to try out anything funny against women perhaps in the workplace. But it will not contribute to the real liberation of women. Too much of this whole thing is about making women look completely innocent and without a notion of the victim being complicit in her victimization. This is not something that helps. The idea of a innocent helpless victim is a myth and a form of dehumanization. It seriously needs to be undermined and it is time people are taught to look at themselves as agents of their well-being or downfall. That would take the campaign for women’s rights a long way from where it stands just now.

Prakash Kona is a writer, teacher and researcher who lives in Hyderabad, India. He is currently working as an Associate Professor at the Department of English Literature, The English and Foreign Languages University (EFLU), Hyderabad.