Is the death sentence right for the Delhi rapists?

Indian students of Saint Joseph Degree college participate in an anti-rape protest in Hyderabad.

Indian students of Saint Joseph Degree college participate in an anti-rape protest in Hyderabad. Photo: AFP

Last week, a New Delhi court sentenced four men to death for the brutal rape and murder of a 23-year old-woman. According to CNN, the ruling was met with elation and “cheering from hundreds of protesters outside the court”, some of whom holding banners with messages like "hang the rapists".  

Reading through the facts of the case easily invokes a range of personal feelings: disgust over the acts of torture and humiliation, hatred for the perpetrators, and sympathy for the injuries endured by the victim.

Even the court pronounced it to be a “gruesome crime” that “shocked the collective conscience of India”. In rationalising the sentence, the judge emphasised that sexual violence was increasing in India and thus it was important to condemn such violence in the strongest terms in order to prevent its recurrence.  

Offering: Indians light candles to mark the verdict after a judge pronounced death sentences for four men convicted in the rape and murder.

Offering: Indians light candles to mark the verdict after a judge pronounced death sentences for four men convicted in the rape and murder. Photo: AP

While it’s tempting to join the collective chant of ‘justice has been served’, we must first ask ourselves: by turning this particular tragedy into an emotional public spectacle, are we actually furthering the broader pursuit to end violence against women?

Advertisement

Sadly, directing the outpouring of public outrage to the perpetrators does little to deter other violent crimes. The death penalty is an ineffective punishment in this regard. Many criminologists have argued that when crimes are perpetrated in the context of social marginalisation, poverty, intoxication, provocation, passion, or mental incapacity, the abstract possibility of being sentenced to death does not deter much.

The death penalty then becomes less about criminal deterrence or justice for the victim, and more of a political act aimed at satisfying the public’s sense of outrage or injustice. If anything, legally desiring the death of the perpetrators deters (or at least distracts) us from confronting the broader institutional and cultural violence.

Protestors shout slogans demanding the four men convicted in the fatal gang rape of a young woman on a moving New Delhi bus last year be sentenced to death outside a Delhi court.

Protestors shout slogans demanding the four men convicted in the fatal gang rape of a young woman on a moving New Delhi bus last year be sentenced to death outside a Delhi court. Photo: AP

What's more, focusing all our emotional attention to public acts of sexual violence blinds us to how insidious it is in private life. For example, the Indian National Crime Records Bureau identified 22,406 cases of rape in 2011. Less than 6 percent of these cases were committed by “strangers.” Marital rape exemptions in the criminal law continue to prevent men from being prosecuted for sexually assaulting their spouses who are over the age of 15.

In India, sexual violence is also used as an instrument of institutional control. While the court in this case concluded by congratulating the police on their “professional acumen,” there remains little acknowledgment (let alone public outcry) for activist women in prison like Soni Sori, who continue to be subject to a number of sexual assaults by police while in custody.

In sentencing the rapists, the references to the victim’s “helplessness” betrays signs of a victim-blaming culture . In this sense, justice is seen as a ‘privilege’ bestowed upon women who are imagined as virtuous and vulnerable objects. Such women do not stay out late. They do not dress provocatively. They are not queer. They value marriage and domesticity. They do not shame their parents.

On the other hand, women who are sexually active or adventurous, lesbian women, sex workers, people living with HIV, single women,  and divorced women are excluded from this legal fantasy.

Instead, lawyer Ratna Kapur explains that many of these women are stigmatised as diseased or contaminated. They become seen as threats to the political ideal of matrimonial and reproductive harmony.  

It’s crucial to remember that whether in India or Australia, most instances of violence against women are perpetrated by friends, family or acquaintances in the home – not by some strangers on public transport.

And the key to end this lies not in capital punishment, but in a willingness to challenge the perception of women as objects in our cultural fantasies. We also have to confront our own complicity in perpetuating these narratives – whether it be in public policy, legal decisions, popular culture, or in our intimate lives.

Emotions can mobilise us politically. Blind sentimentality, however, is a dangerous thing. We cannot achieve sexual justice by resorting to emotionally-laced legal responses that quells public anger to sexual violence by confining women to a position of perpetual vulnerability or by ignoring the social context of that violence. 

Ending sexual violence is much more difficult: it requires interrogating our hatred of the perpetrators – and the role we unwittingly play in a culture that condones rape.

 

Senthorun Raj is a Churchill Fellow and PhD candidate at the Sydney Law School."  Follow Senthorun on Twitter: @senthorun

 

12 comments

  • I agree - the results of this trial serves only to placate a salivating masses calling for blood not because it is a human life they truly care about them or are seen as equal, because the shocking normalcy of it invokes fears and realisation that it could be any of them - any urban, young, middle class young woman in school, with working families. Who hasn't been out at 9pm at night, even if it isn't with a male friend, at least once in their life? One has to look askance at the sheer numbers of young girls and women who are brutalised through rape and gang rape in the poorer parts of the region, lower classes of people who are invisible, non-human, barely even given the token statistic.
    After this has died down, it will be business as usual with culture and tradition, and a people who do not realise just how much we can change our lives and empower ourselves as a family unit or a community through simple acts of change - an example being that women are not extensions of a man's ego/honour/ambition/progeny, but are autonomous, independent beings who won't drop and run off just because you have unchained her from the bonds of social slavery. But why look to the rewards of the near future when you can reap instant gratification of the present at the expense of another human being's life, dreams, hopes and safety.
    This, sadly, applies in a much smaller way, to even 'liberal' Western countries.

    Commenter
    Green Tea
    Location
    Melbourne
    Date and time
    September 18, 2013, 10:12AM
    • The parents wanted them hanged so who are we to say they shouldn't be? Even the victim during a period od consciousness wanted them hanged.
      The argument about the death penalty not being a deterrent is irrelevant. It will at least prevent those perpetrators from committing another rape and murder, so it is worth it.
      Here in Australia we hear of perpetrator after perpetrator committing a crime after being released from jail. eg Adrian Baily. Society will not miss these people. So hang 'em. I may sound callous but I have had a gutful of these abhorrent crimes.

      Commenter
      Les
      Date and time
      September 18, 2013, 10:18AM
      • Les, if capital punishment do work, why does statistically that Australia have a lot non-sexual violence crime compare with India?

        Shouldn't we look at facts instead of just one case?

        Let's not get too emotive about two serious criminal.

        Commenter
        Gerson
        Location
        Sydney
        Date and time
        September 18, 2013, 12:17PM
    • One thing is guaranteed when they execute the rapists they will not do it again.

      Commenter
      Siegfried
      Location
      Castle Hill
      Date and time
      September 18, 2013, 10:28AM
      • The death penalty is never OK under any circumstances. You want a civilised society then ensure secular education for all, a responsive system of justice and accountability of politicians and police, decent social security, health care and social justice. The death penalty is just a step backwards but... whatever. You get what you ask for, you get who you vote for.

        Commenter
        Melanie
        Date and time
        September 18, 2013, 10:35AM
        • We have those things and still have brutal rapes and murders occurring. Whether it's mental illness, sexual deviance/preference, sociocultural etc doesn't matter. These people need to be removed from circulation and by far the easiest, cheapest and most reliable way to do this is via the death penalty.

          Commenter
          Nicole
          Location
          Darlinghurst
          Date and time
          September 18, 2013, 1:25PM
      • Dear Senthorun Raj, I'm confused by your rambling story. Are you saying that the perpetrators of that rape and torture should be given a prison sentence and kept by the State at a huge cost?
        Also, what possible bearing has your comment that "violence against women are perpetrated by friends, family or acquaintances in the home" on the case of the brutal rape (as well as torture) and murder of a 23-year old-woman?
        You are advocating that these "people" and I use the word advisedly, should be spared the death penalty.
        Have you given any thought to, that the poor 23 year old woman is dead? In other words, these people gave her the death penalty!
        As far as I'm concerned, "people" like these four, need to be removed from the Gene Pool.
        You are implying that the death penalty doesn't work. I have to disagree with you there. Those four "people" will never commit another rape again. If we apply the death penalty in every case of rape, soon we will run out of rapists, don't you think?

        Commenter
        limojoe
        Location
        Canberra
        Date and time
        September 18, 2013, 11:05AM
        • No, he's pointing out that this death penalty given was not given because of 'due process' or 'swift justice' (in India, it can take decades for any kind of justice, let alone a court date, if someone hasn't already bribed or threatened your family and police officers/lawyers) but because of political means. That action ignores the real and actual root of the problem in India with people who are sidelined through absolute poverty and other factors and will never see a day in court or even have the crime written on paper - such as the recent prepubescent school girl from a rural area who was brutally gang raped and suffered massive injuries from a group of men on her way to school, strangled and left to die.No one will record her ordeal in a police report, she will probably never see a court date, forget justice.
          The only reason why this 'justice' came about was for political fuel to shut the masses up and not to examine the lack of rights and status women are accorded and ancient attitudes that mean a rape victim is more often blamed for stepping out of her house after a certain time (dressed in full length clothing no less), not being married, being seen next to another man, every reason you can think up that renders her socially chained and repressed. Unless she comes from a VERY rich family, there might be some mitigating factors.

          Commenter
          Green Tea
          Location
          Melbourne
          Date and time
          September 18, 2013, 11:54AM
      • By the way dear Senthorun Raj, I have some news for you! Your comment that we have "sympathy for the injuries endured by the victim" is incorrect.
        The young woman is not "injured", she is DEAD!!

        Commenter
        limojoe
        Location
        Canberra
        Date and time
        September 18, 2013, 11:15AM
        • Perhaps it is ineffective as a deterrant and as a 'punishment' is probably redundant. However, once someone has committed a crime like this they have proven themselves to be unfit for human society and having them in it makes society significantly less safe. And yes, the culture needs to be changed and women's place in it, but in the meantime those individuals need to be taken out by whatever means available; death or permanent isolation. It doesn't particularly concern me which one it is, but death is cheaper and more permanent.

          Commenter
          Nicole
          Location
          Darlinghurst
          Date and time
          September 18, 2013, 11:29AM

          More comments

          Comments are now closed