This article is written by Meenal Sharma, a student of Vivekananda Institute of Professional Studies. In this article the author has talked about the death penalty as a form of punishment for child rapists and whether it is successful in creating a deterrence in the society.
Table of Contents
Introduction
In April 2018 the entire nation was shaken as an innocent child fell prey to a heinous crime resulting from communal disharmony in Kathua district. An 8-year-old girl from the semi-nomadic Bakerwal community was gang-raped for four days in a temple and then brutally murdered. Her body was discovered one kilometre away from the temple. The incident which took place in January was reported in April 2018 after the police investigation. A recent study claims that rapists choose their victims based on their vulnerability and not their appearance. Children being the most vulnerable often fall prey to this heinous crime. Childhood is the age where any psychological distress can lead to an irreversible change in the life of a person. It is needless to mention that the effects forthcoming from the crime are traumatising and the victim is scarred for life. Moreover, in India, a majority of people have conservative beliefs and rape victims are often ostracized and rejected from marriage. To escape this social stigma a large number of rape cases remain unreported, especially where the victims are children who are not only devoid of the knowledge of what has been done to them but have no other recourse than to resort to their parents. Certain rape cases like the 2012 Nirbhaya rape case and Kathua rape case gained spotlight amongst the media which resulted in hue and cry among the society. After these cases, certain amendments were made in the existing law.
Recently, the death penalty has been introduced for child rapists. However, the question remains whether this will prove to be an effective deterrent.
Amendments made in law with respect to the rape of children
The Criminal Law (Amendment) Act 2018
Act 22 of 2018 came into force on 21.04.2018. By this Act, amendments were made in the Indian Penal Code 1860, Protection of Children from Sexual Offences Act 2012, Criminal Procedure Code, 1973 with respect to the rape of minor below 12 years and 16 years.
Indian Penal Code 1860
The following changes were made under the IPC-
|
Offence |
Punishment under IPC 1860 |
Punishment under The Criminal Law (Amendment) Act, 2018 |
|
Section 376: Rape of a woman (16 years and above) |
Minimum: Imprisonment for 7 years 
Maximum: Life Imprisonment |
Minimum: Imprisonment for 10 years Maximum: Life Imprisonment |
|
Section 376(3): Rape of a woman (below 16 years) |
Minimum: Imprisonment for 10 years Maximum: Life imprisonment |
Minimum: Imprisonment for 20 years Maximum: Life Imprisonment |
|
Section 376DA: The gang rape of a woman (below 16 years) |
Minimum: Imprisonment for 20 years Maximum: Life Imprisonment |
Minimum: Life Imprisonment |
|
Section 376AB: Rape of child (below 12 years) |
Minimum: Imprisonment for 10 years Maximum: Life Imprisonment |
Minimum: Imprisonment for 20 years Maximum: Life Imprisonment or death |
|
Section 376DB: The gang rape of a child (below 12 years) |
Minimum: Imprisonment for 20 years Maximum: Life Imprisonment |
Minimum: Life Imprisonment Maximum: Death penalty |
The Code of Criminal Procedure, 1973
The following changes were made under CrPC to expedite investigation and trial of rape cases:
- Amendment of section 173: According to the amended section, investigation for offences under section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of IPC shall be completed within 2 months.
- Amendment of section 374: Clause 4 was inserted which provides that an appeal for a sentence passed under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E of IPC should be disposed of within 6 months from the date on which the appeal was filed.
- Amendment of section 438: Clause 4 was inserted which provides that a person accused of offences under section 376(3), 376AB, 376DA, and 376DB of IPC cannot apply for anticipatory bail.
The Protection of Children from Sexual Offences Act 2012
The following sections were amended by the Prevention of Children from Sexual Offences (Amendment) Act 2019:
|
Offence |
POCSO Act, 2012 |
POCSO (Amendment) Act, 2019 |
|
Section 4: Penetrative sexual assault on a child below 18 years of age |
Minimum: 7 years Maximum: Life Imprisonment |
Minimum: 10 years Maximum: Life Imprisonment |
|
Section 4: Penetrative sexual assault on a child below 16 years of age |
Minimum: 20 years Maximum: Life Imprisonment |
|
|
Section 6: Aggravated Penetrative Sexual Assault |
Minimum: 10 years Maximum: Life Imprisonment |
Minimum: 20 years Maximum: Life Imprisonment or death |
|
Section 14: Use of child for pornographic purposes |
First conviction: 5 years (maximum) Subsequent conviction: 7 years |
First conviction: 5 years (minimum) Subsequent conviction: 7 years |
|
Section 14: Use of child for pornographic purposes resulting offence under section 3/5/7/9 |
|
Offence under section 3, 5, 7, 9 punishable under section 4, 6, 8 and 10 respectively. |
|
Section 15: Punishment for storing pornographic material involving child |
Maximum: 3 years |
|
Whether death penalty is executed in every case
Since 1947, about 720 convicts have been executed which is a small fraction of the number of people who were sentenced to death. According to project 39A conducted by National Law University, Delhi, about 1810 death sentences were issued between 2000-2014 but only 4 were executed. Over 95% of death sentences imposed since 2000 were commuted by higher courts. In 2019 the highest number of death penalties were pronounced by the Supreme Court. Out of those 27 cases, 6 were confirmed, 17 commutated, 3 acquitted, and 2 were sent for retrial.
On 20th March 2020, 4 convicts of Nirbhaya rape and murder case on 16th December 2012 were hanged. 6 people were convicted for the rape and murder of a 23-year-old physiotherapist in a moving bus. Out of the 6, one was a juvenile who was released from a juvenile correction home after 3 years and is now working as a cook, somewhere in South India. Another accused committed suicide during the pendency of the trial.
Does death penalty deter crime
The main objective of the death penalty is to create deterrence in society against heinous crimes. In India, the death penalty is awarded in the rarest of rare cases. In most of the developed countries, the death penalty has been abolished. Even in India, many human right activists have been fighting for abolishing the death penalty. However, the Law Commission in its 34th report rejected the proposal to abolish the death penalty.
According to NCRB (National Crimes Record Bureau), there has been a four-fold increase between 1994 and 2016 in the number of rapes involving children.
Is death penalty the solution
After 2012 Nirbhaya rape and murder case, the death penalty was introduced by the Criminal Law (Amendment) Act 2013 in cases where the victim has died as a result of brutality or left in a persistent vegetative state as well as for repeated offenders. The main objective to introduce the death penalty was to instil fear in the mind of offenders of being executed. However, the country has not proved to be any safer for women. Nevertheless, there has been an increase in the number of reported rape cases.
Recent cases
A 17-year-old girl was gang-raped in Unnao, Uttar Pradesh on 4th June 2017 by a politician Kuldeep Singh Sengar who was sentenced to life imprisonment by a Delhi District Court.
On 26th June 2018, an 8-year-old was raped in Mandsaur, Madhya Pradesh for which two accused were sentenced to death under section 376AB and 376D of IPC by a sessions court in Mandsaur.
Another case was reported in Chennai in 2018 where an 11-year-old differently-abled child was gang-raped multiple times between 15 January 2018 to 14 July 2018. Out of 17 accused under this case, 15 were convicted and 1 was acquitted by the local court.
In February 2020 a 5-year-old girl, daughter of housekeeping staff of the US embassy was allegedly raped by a 25-year-old man in the US embassy in India.
In June 2020, Anand Chandra Majhi, a police officer was suspended for being involved in gang rape and subsequent abortion of a 13-year-old girl in tribal-dominated Sundargarh, Odisha.
Why child rapists are not punished
In most of the rape cases involving children, the accused is usually not a stranger but a family member or a close relative. A large number of cases where the accused is a family member go unreported in fear of social stigma. The cases which have caused an outrage among the society are usually those involving strangers. 94% of the cases registered under the POCSO Act 2012 were those where the perpetrator was known to the victim.
In such cases where the punishment of the death penalty has also been introduced, this would lead to a further decline in reporting of cases where the perpetrator might be known to the victim. Since children are devoid of resorting to justice in such cases, it is very likely that their families would not report the case due to the severity of punishment. According to a study conducted by the Centre for the Child and the Law (NLSIU) found that a majority of child rape victims turn hostile during the trial when the perpetrator was someone they knew.
In certain situations where the family of the victim child reports the case, there is a fear of social exclusion. As if the psychological stigma of the victim was not enough, they would have to face the social stigma of being excluded as well. This could lead to further under-reporting of such cases in the future. Therefore in these situations, introducing death penalty does no good either by creating deterrence or by punishing the offender.
Another argument is the amount of time it is taken to confirm and execute the death penalty. According to William E. Gladstone, ‘Justice delayed is justice denied’. If an equitable means of justice is available but not redressed in a timely manner, it is equal to having no redressal at all. The judicial system in India works at a snail’s pace which impedes the ability to ensure justice to rape victims. Moreover, if the death penalty is awarded to child rapists, justice will be further delayed as the process of confirming and executing death penalty only would take years.
Conclusion
Introduction of the death penalty as a punishment for child rapists is a commendable effort to create deterrence in the society against heinous offences. However, the death penalty might not be a fruitful method of punishing child rapists in the country due to various factors. Factors such as slow-moving and understaffed judiciary which could take several years to confirm the punishment of death penalty delay the process of justice. Moreover, in most cases where the perpetrator is known to the victim or even worse a relative, the victim’s family would be reluctant in reporting the case and it could lead to the death penalty. Although introducing the death penalty as a punishment for the rape of a child below 12 years is a welcomed effort, there is less to no evidence that the death penalty as a form of punishment creates deterrence. Response to sexual crimes against children should be systematic. The government must review the law that it enacts and improve the means of implementation. The need of the hour is to introduce a more evolved and efficient judicial system as well as a legal system that can successfully coordinate to reduce the rate of such brutal crime and also provide adequate punishment to the perpetrators.
References
- https://timesofindia.indiatimes.com/blogs/legally-speaking/does-death-penalty-deter-crime/
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