INTRODUCTION

Deterrent to conviction?

Pakistan, Bangladesh and Afghanistan all hand out the death penalty for rape and many Indians in
favour of the death penalty often point to these countries as those who "do not tolerate rape". A
common narrative is also that there are fewer incidents of rape in these countries.

Experts in the region say that a major argument against imposing the death penalty for rape is that
it actually deters the system from handing out convictions.

"Even though under the law, rape is treated on a par with terror, nothing has changed. Rape and
gang rape cases are progressively increasing while conviction rates remain abysmally low,"

it is because the "police are biased against women and are hesitant to even register cases of gang
rape as that would mean the death penalty for a group of men. To circumvent that, often the case
would be registered against one man only."

Activists in the country say that in many cases police tend to broker compromises, encouraging
survivors, under threat or coercion, to withdraw their complaint, so that the accused is set free on
the basis of "low probability of conviction".

Added burden for victims'

This concern has been voiced by many Indian activists who oppose the death penalty for rape.

"Under-reporting is a problem because the perpetrators are mostly known to the victims and there
are all sorts of dynamics at play that cause victims and their guardians to not report the crime,"

in such a context, the death penalty could be a "further burden" since victims will have to grapple
with the possibility of "sending a person they know to the gallows".

Another issue is that, in many rural areas in particular, there is still massive stigma associated with
rape, which means that even stronger laws do not encourage victims to come forward.

"Ours is a society where discussion of child sexual abuse is taboo. There is a culture of silence that
pervades our homes and our institutions in addressing this issue with the seriousness it deserves,"

India has amended its laws to increase accountability of police and other officials dealing with
violence against women, which has had a positive impact.

But the change is slow and studies suggest that a large number of rapes in India still go unreported.

Mohammad Musa Mahmodi, executive director of the Afghanistan Independent Human Rights
Commission, which also publishes data on rape, said the death penalty on its own would never be
enough to deter rape or encourage women to seek help in the justice system.
A 2012 report by Human Rights Watch on Afghanistan says: "Rather than finding support from
police, judicial institutions, and government officials, women who try to flee abusive situations
often face apathy, derision, and criminal sanctions for committing moral crimes."

'Years spent waiting for justice'

The slow pace of the justice system has also been cited as an issue.

Long-drawn-out trials in India often mean that victims have to wait years before they can get
justice. And in cases where the death penalty has been handed out, those convicted have many
chances to appeal against their sentence.

The men convicted in India's most high-profile rape case in recent years - of a medical student
who died of her injuries after being raped in December 2012 - are still appealing against the death
penalties handed out by a "fast-track" trial court that in September 2013.

Their last appeal was turned down by the Supreme Court in July, but they still have the option of
appealing to the president.

Another consequence of a prolonged legal process is that it often adds to the victim's suffering.

These experiences clearly suggest that punishments like the death penalty can potentially have a
negative impact on the survivor's access to justice.

Robust laws would in fact have a very limited impact in reducing the crime unless they are
accompanied with a change in the attitudes of the police, judiciary, government officers and
society.
Legal provisions regarding punishment for Rape under section 375 of Indian Penal Code, 1860.

Following a series of brutal attacks, and amid outcry across India demanding capital punishment
for rapists, Prime Minister Narendra Modi this month signed an ordinance introducing the death
penalty for anyone convicted of raping a girl under 12 years of age.

But this demand for extreme punishment dodges serious questions about the
failure to protect women against sexual assault. Crime statistics suggest that 95% of rape victims
in India are known to offenders. Sexual assault remains chronically under-reported in the country,
often because a woman depends on the offender or is fearful of the case becoming public.

The focus on increased punishment also overlooks the yawning gap in India between what the law
prescribes and what happens in reality. Even when the law is made stringent, there are plenty of
loopholes in the process of administering justice that enable perpetrators to escape punishment.
Capital punishment is the easiest demand to make, but can be the most dangerous for rape
victims because it provides a perverse incentive for rapists to become murderers. In this scenario,
leaving no trace of crime is better than allowing the victim to live.

Across the world, the importance of creating a support system for victims, rather than merely
increasing the severity of punishment for perpetrators, is acknowledged. Human Rights Watch has
advocated for a system in which support is given to the victim immediately following a rape, and
then throughout the traumatic process of filing a complaint, police investigations, and protracted
court sessions. The search for justice, before the offender is convicted, can often become
humiliating in itself.

Rape survivors in India often face other humiliations, such as waiting hours in police stations and
hospitals for medical examinations due to staff shortages and indifferent attitudes. Evidentiary
procedures are regularly haphazard, including insensitive interviews with victims by police, poor
record-keeping that dilutes the strength of a case, and delayed forensic reports.

Too often a rape victim will have little confidence that justice will be served and the offender
punished.

Yet another issue is the victim compensation scheme. Information about its application process
and disbursements of funds are vague and ambiguous, creating roadblocks for victims from poor
backgrounds. Ongoing cases incur high fees which poor victims and their families may not be able
to afford. The high cost of legal proceedings not only deters victims from filing cases but also
allows offenders to influence proceedings, or even bring them to a screeching halt.

Rape:
The word ‘rape’ is derived from the Latin term ‘rapio’, which means to seize. Thus, it literally
means a forcible seizure and that is the essential characteristic feature of the offence. In common
parlance, it means intercourse with a woman without her consent by force, fear or fraud.

It is ‘the ravishment of a woman without consent, by force, fear or fraud’, or ‘the carnal knowledge
of a woman by force against her will’. Sexual intercourse with the consent of a girl below the age
of sixteen years also amounts to rape.

Ordinarily, rape is violation, with violence of the private person of a woman – an outrage by all
canons. It is an unlawful sexual intercourse by a man with his own wife below the age of fifteen
or with any girl below the age of sixteen, or with any other woman above sixteen without her free
consent, against her will or with consent obtained under certain unlawful circumstances.

Rape is not only a crime against the person of a woman (victim), it is a crime against the entire
society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis.
Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also
violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to life
contained in Article 21 of the Constitution.

The Criminal Law (Amendment) Act, 1983, besides substituting Sections 375 and 376 for the old
sections, has added Sections 376- A to 376-D.

Section 375 of the Indian Penal Code states that: “A man is said to commit “rape” who, except in
the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling
under any of the six following descriptions:-

Firstly:-
Against her will.

Secondly:-
Without her consent.

Thirdly.-
With her consent, when her consent has been obtained by putting her or any person in whom she
is interested in fear of death or of hurt.

Fourthly:-
With her consent, when the man knows that he is not her husband, and that her consent is given
because she believes that he is another man to whom she is or believes herself to be lawfully
married.

Fifthly:-
With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences of that to which
she gives consent.
Sixthly:-
With or without her consent, when she is under sixteen years of age.

Explanation:-
Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception:-
Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is
not rape.

Ingredients of the offence of Rape:

The following are the essential ingredients of the offence of rape:

1. There must be sexual intercourse with a woman by a man;

2. Such a sexual intercourse should be under any of the following circumstances:

i) Against her will,

ii) Without her consent,

iii) With consent obtained under fear of death or hurt,

iv) With consent given under misconception of fact that the man is her husband but the man knows
that he is not her husband,

v) Consent given by reason of unsoundness of mind, intoxication or under influence of any

stupefying or unwholesome substance,

vi) With a woman under 16 years of age with or without consent.

Under the Criminal Law (Amendment) Act, 1983, Section 375 inserted a new clause fifthly dealing
with consent by reason of unsoundness of mind or intoxication, besides addition of words “or any
person in whom she is interested” in clause thirdly; and thus the scope of Section 375 IPC has been
widened.

Legal provisions regarding punishment for Rape under section 375 of Indian Penal Code, 1860.

Recommendations of justice verma Committee

The following are the recommendations of the Committeee with regard to sexual offences in
India[x]:

1. Punishment for Rape: The panel has not recommended the death penalty for rapists. It
suggests that the punishment for rape should be rigorous imprisonment or RI for seven
years to life. It recommends that punishment for causing death or a “persistent vegetative
state” should be RI for a term not be less than 20 years, but may be for life also, which
shall mean the rest of the person’s life. Gang-rape, it suggests should entail punishment of
not less than 20 years, which may also extend to life and gang-rape followed by death,
should be punished with life imprisonment.
2. Punishment for other sexual offences: The panel recognised the need to curb all forms
of sexual offences and recommended – Voyeurism be punished with upto seven years in
jail; stalking or attempts to contact a person repeatedly through any means by up to three
years. Acid attacks would be punished by up to seven years if imprisonment; trafficking
will be punished with RI for seven to ten years.

CONCLUSION

Finally, the conviction rate for rape in India is abysmally low. According to a report published by
the National Crime Records Bureau (NCRB), at 18.9% the conviction rate for crimes against
women in 2016 was the lowest since 2007. Even if an increase in the reporting of assaults against
women is achieved, a decrease in conviction rates disempowers women.

The pressing need is not for extreme punishment, but for an overhaul of the police forces and
judicial system to make them more sensitive towards rape victims. Only introducing fast-track
courts to expedite the judicial process, increasing conviction rates, and implementing proper
witness and child-protection services will reverse rape culture in India.
DEATH PENALITY FOR RAPE IN INDIA

ARMY INSTITUTE OF LAW, MOHALI

SUBMITTED IN PARTIAL FULFILLMENT OF B.A.LL.B DEGREE

Submitted By-Shiv Pratap Singh

Roll no.-1440