Seeking redressal

September 20, 2020

Suggestions of brutal punishments such as hanging and castration may work to assuage collective anger but will not deter sexual violence

Recently, Prime Minister Imran Khan has advocated hanging as a just punishment for rapists. Failing this, due to pressure from the international community, he feels that castration should be adopted as a punishment for rapists, particularly those who are repeat offenders, or those who perpetrate rape in the most brutal manner. This is certainly in line with the popular sentiment of the nation at this time. But, this is a short-sighted solution to a complex social problem, and is likely to backfire.

Both suggestions (hanging and castration) rest on the idea that a brutal and gruesome punishment deters such future crimes. This is untrue, and has been proven to be so time and time again, both in Pakistan and elsewhere. In Pakistan, crimes such as gang rape, murder and, as of 2016, rape of minors have been punishable with death. But all these crimes remain an ever-present reality in our lives. During the Zia years, even as the brutal and inhumane punishment of public lashes was meted out to those indulging in sexual misconduct, society was no safer for women and children.

Internationally, one finds a similar trend. In the US, some states punish homicide (murder and other instances of wilful causing of death) with the death penalty. Still, over the year 1980 to 2000, the homicide rate in states with the death penalty has been 48-101 percent higher than in states without the death penalty. After the horrific 2012 rape of a student on a Delhi bus, India introduced the death penalty for instances of rape-cum-murder. All four rapists in that case were sentenced to death. Yet, India is no safer for women today than it was before 2012.

Internationally, chemical castration is only ever used for paedophiles, and even these are carried out with consent of the convict. In neighbouring India, this proposal was considered by the commission set up in the aftermath of the 2012 rape. The proposal was rejected, because it was found that the drugs required for castration must be regularly administered in order to remain effective. More importantly, the Justice Verma Commission report noted that chemical castration does nothing to address the underlying factors that drive violence against women and gender minorities, not just sexual violence.

Both suggestions (hanging and castration) rest on the idea that a brutal and gruesome punishment deters such future crimes. This is untrue, and has been proven to be so time and time again, both in Pakistan and elsewhere.

If we choose to take a truly preventive approach, we must face some uncomfortable truths. We must face the fact that our social attitudes dissuade survivors from reporting rape. We must also address the many loopholes in our police, medico-legal and court due to which conviction for rapes is less than 5 percent in Pakistan.

The motorway incident is one of the very few times in recent memory where the rape of an adult has sparked outrage. During Ramazan of 2019, a woman in Rawalpindi was picked up by four police officers as she went for sehri with a friend. They raped her in custody, and then abandoned her at her hostel door. Pakistanis were not outraged but questioned why she was with a male friend at the time of night, and whether there was a prior acquaintance between the survivor and the police officers. The question of whether she consented to sexual intercourse with four men appeared less important. Questions about her character, on the other hand, were always material.

Such social attitudes also bleed into our criminal justice system. The CCPO has already exhibited the attitude of police officers that women face when they go to report sexual violence. This attitude is reflected at all stages of the investigation and trial: by police, medico-legal officers and in court. In fact, a perusal of reported judgements on rape shows that bails are granted and sentences often reduced because of attitudes that question the survivor’s character. For example, in Muhammad Nawaz v Shaukat Ali Hayat from 2011, the court granted bail to all four accused of gang rape on the grounds that the survivor previously had a relationship with one of them. This was despite the fact that the survivor was recovered lying outside her house, unconscious, three days after her abduction. The bail was later cancelled by the Lahore High Court. However, the trial court’s reasoning highlights a resistance to understanding that consent to sexual intercourse has no link to previous contact. How the trial court assumed that a previous relationship with one of the accused amounts to consent with all four defies logic. Yet, such are the norms in our criminal system.

If the death penalty and castration do not work to deter crime, why do these continue to come up as popular solutions for the crime time and time again? The reasons are twofold. Firstly, these are a quick and easy solution, therefore popular with politicians. Secondly, and more interestingly, they serve to assuage collective anger at this blatant violence. Most people want this anger to be addressed swiftly. Many people calling for hanging rapists admit that it may not deter future crime, but consider it necessary to show that the state is not helpless. This is not an unworthy reason for demanding redressal. However, we must acknowledge, then, that our reasons for demanding this punishment are unlikely to prevent future crime.

The writer is a member of law faculty at LUMS

Seeking redressal: Brutal punishments such as hanging and castration may work to assuage will not deter sexual violence