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What if… rapes were punishable by death?

Cilla Khatry

Cilla Khatry

What if… rapes were punishable by death?

Experts ApEx spoke to say if Nepal had the provision of death for rape, it would not only be a regressive step for the judicial system and the society but it would most certainly be misused

A crime as heinous as rape should be punishable by death. That’s the popular opinion in Nepal, made evident by the demands for the reinstatement of capital punishment time and again. Many people seem to believe it’s the only sentence that is befitting of rapists. It would, they insist, as an added bonus, also decrease the incidence of rapes.

But experts ApEx spoke to say if Nepal had the provision of death for rape, it would not only be a regressive step for the judicial system and the society but it would most certainly be misused. In a corrupt system like ours, capital punishment will put more power in the hands of those who are already powerful while victimizing ones who have no political influence and connection. In other words, it will be like sending lambs to slaughter. 

Mohna Ansari, lawyer, human rights advocate and former commissioner of the National Human Rights Commission (NHRC), says death penalty isn’t the solution to rapes. In a country where people are still struggling to have their basic rights met and gender disparity is all too rampant, there is simply no awareness of crimes and their repercussions. “We have to focus on building a society with strong morals and values. It’s going to take time but that’s the only way to prevent rapes and other gender-based violence,” she says.

Manju Khatiwada, undersecretary at NHRC, says rape is a result of patriarchy—a social conditioning that makes boys revel in their superiority from very early on. Unless we are able to change that environment with awareness, education and financial independence of women, the situation isn’t likely to improve. “Raping a woman is often an assertion of power and dominance. When men feel superior to women simply because they are men, it gives them the liberty to do as they please,” she says.

In Tara Kaushal’s book ‘Why Men Rape’, an 18-year-old boy in Uttar Pradesh, India, says most women are ‘kaam chalau’, to only be used for sex. The boy, Dipu Raja Yadav, was involved in a gang rape. In the course of being interviewed for the book, he tells Kaushal, “Krishna had 108 gopis, but for Radha he was the only one. A boy can never be shamed even if he goes around with ten girls. He will also be praised for it.”

At the root of violence and rape lie this use-and-throw attitude and men’s utter lack of respect for women, say experts, adding fear of punishment won’t change that. Who, really, is thinking of the consequences when you are driven by a logic that has been passed on for generations?

However, rape is an extreme violation of human rights. But more often than not, what follows rape is just as traumatic, if not more—for the victims and their families because of the social stigma that comes with it. A woman’s dignity is solely associated with her virginity. Our patriarchal society doesn’t concern itself with the fact that in a sexual act there are two parties involved. Ergo, women who are raped are blamed, shamed, and ostracized.

She must have done something to give him ideas, why was she out so late at night?, have you seen the way she dresses?, she had many boyfriends, etc.—there are so many inane reasons the society comes up with to excuse the perpetrators’ behavior. Rapists often know they will get away with a slap on their wrists. It’s this mindset that tries to pin the blame on the woman and a system that protects the perpetrator that further promote violence.

Also, for capital punishment to work, you have to be able to determine, beyond a shadow of doubt, that the accused is guilty. Consider the state of our investigating bodies and the government. Negligence in evidence collection, poor investigation, and political protection of perpetrators are the major hindrances in ensuring justice.

Khatiwada adds that rape cases aren’t handled sensitively in Nepal. There is often a lot of police mediation for out-of-court settlements. All too often, victims are threatened and coerced into keeping quiet or taking back their statements. According to parliamentarian Pushpa Bhusal, innocent people could end up being implicated and persecuted. If they were to be sentenced to death, it would be an irrevocable loss. The alternative, she says, could be life imprisonment. 

Advocate Raunaq Singh Adhikari says cruelty is never the answer. Our legal system, he says, is retributive and reformative. Criminals too must be given a chance to change. By implementing the death penalty, which Nepal abolished in 1947 (becoming the first country in South Asia to do so), we are taking away the basic right to life as guaranteed by the constitution of Nepal and negating all the progress we have made so far. 

Adhikari also adds there is no evidence of any kind to support the claims made by those clamoring for capital punishment—that death penalty will deter rapists. Take India, where six months after four convicts in the Nirbhaya gang rape-and-murder case were hung to death in March 2020, a 19-year-old Dalit woman was gang-raped by four men in the Harthras district in Uttar Pradesh. Government report suggests one rape is reported every 16 minutes.

It isn’t the severity of the punishment but the guarantee that punishment will be dished out and done so on time that can deter rape, say experts. The problem is that rapists or criminals think they can get away with a crime. Our legal and justice systems aren’t strong enough. They don’t instill faith in the victim or fear in the accused.

“Our law has loopholes. We need to fix that. For starters, we could do away with the one-year statute of limitation on lodging an FIR for rape. That way, perpetrators will always fear punishment even if they have managed to cajole or threaten the victim to initially not report the crime,” says undersecretary Khatiwada.

Instead of death penalty, what’s needed is a strict implementation of the criminal code that came into effect in August 2018, which increased maximum imprisonment to 25 years from the earlier 15 years. Experts’ opinion is unanimous: The investigative agencies should be held accountable and anyone protecting criminals should also be prosecuted. An eye for an eye, which is what a death sentence is, shouldn’t be the basis of any progressive society. No matter how barbaric the crime, the reaction to it always needs to be civilized.