Punitive responses to sexual violence need rethink, given perverse consequences

Tackling crimes against women and children requires broader social reforms, sustained governance efforts and strengthening investigative and reporting mechanisms, instead of merely enhancing punishment.

The new standard of consent poses the serious risk of reinforcing myths, including regressive notions about “ideal” rape victim.

On Human Rights Day 2020, the Maharashtra cabinet approved the Shakti Bill, enlarging the scope of harsher and mandatory sentences — including the death penalty — for non-homicidal rape, to purportedly deter sexual offences. The Bill also introduces a problematic standard of consent and allows decision-makers to presume consent from the conduct and circumstances surrounding the incident. Harsher sentences have had perverse consequences on the already low rates of rape convictions. Besides, the new standard of consent poses the serious risk of reinforcing myths, including regressive notions about “ideal” rape victim.

The Shakti Bill comes amid the recent legislative trend to invoke the death penalty for sexual offences, beginning with the introduction of the death penalty for child rape in 2018. In 2020, the Andhra Pradesh government passed the Disha Bill, pending presidential assent, that provides the death penalty for the rape of adult women.

The death penalty is the last phase of a criminal trial while rape survivors face serious obstacles much earlier, especially at the time of registration of the complaint. The most severe gaps in the justice delivery system are related to reporting a police complaint. The focus of the criminal justice system, therefore, needs to shift from sentencing and punishment to the stages of reporting, investigation and victim-support mechanisms. The bill does not address these concerns.

Second, harsh penalties often have the consequence of reducing the rate of conviction for the offence. For instance, a study by one of us published in the Indian Law Review based on rape judgments in Delhi shows a lower rate of conviction after the removal of judicial discretion in 2013. Introducing harsher penalties does not remove systemic prejudices from the minds of judges and the police, who might refuse to register complaints, or acquit offenders in cases they do not consider as “serious” enough to warrant a mandatory minimum.

Third, studies on child sexual abuse have shown that in the few cases of convictions, the minimum sentence was the norm and the award of the maximum punishment was an exception. Moreover, crime data from the National Crime Records Bureau shows that in 93.6 per cent of these cases, the perpetrators were known to the victims. Introducing capital punishment would deter complainants from registering complaints. The Shakti Bill ignores crucial empirical evidence on these cases.

The other anti-women assertion in the bill is the move away from the standard of affirmative consent in cases involving adult victims and offenders. Significant advocacy from the women’s movement led to the introduction of an affirmative standard of consent, rooted in unequivocal voluntary agreement by women through words, gestures or any form of verbal or non-verbal communication. In a sharp departure, the bill stipulates that valid consent can be presumed from the “conduct of the parties” and the “circumstances surrounding it”. Rape trials continue to be guided by misogynistic notions, expecting survivors to necessarily resist the act, suffer injuries and appear visibly distressed. The vaguely worded explanation in the bill holds dangerous possibilities of expecting survivors to respond only in a certain manner, thus creating the stereotype of an “ideal” victim. It also overlooks the fact that perpetrators are known to the survivors in nearly 94 per cent of rapes, which often do not involve any brutal violence.

The Shakti Bill, while serving the populist agenda of making the public believe that the state is doing “something”, does not achieve more than that. Tackling crimes against women and children requires broader social reforms, sustained governance efforts and strengthening investigative and reporting mechanisms, instead of merely enhancing punishment. Punitive responses to sexual violence need serious rethinking, given the multitude of perverse consequences and their negligible role in addressing the actual needs of rape survivors.

 

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