The Delhi Gangrape Death Sentence Sends Out A Warped Message About Sexual Violence

Killing in the guise of reform

Amidst much celebration, the Supreme Court last week confirmed the death sentences for Vinay Sharma, Akshay Thakur, Mukesh Singh and Pawan Kumar for their role in the 16 December 2012 Delhi gangrape and murder case. With the judgement, the Supreme Court discharged its self-imposed duty to give voice to society's righteous anger against the brutal nature of the crime—rape and murder. While confirming the death sentence, the Court formulated the object of law as "protection of society and deterring the criminal". To many, this is the right signal to be sent out to perpetrators of sexual violence, in the hope that it would deter sexual crimes against women.

“The immediate gratification that [the death sentence] provides eclipses the egregious normalisation of gender-based violence in our society”

To believe that the death sentence is a solution to violence against women, so deeply embedded in society, is to provide a false sense of security to women. It is also no more than a knee-jerk reaction of the State to a problem that has grown wildly beyond its control; the death sentence, at most, is a consequence not a solution. It is particularly problematic here because the urgency of the imagery and the immediate gratification that it provides eclipses the egregious normalisation of gender-based violence in our society. Where the 16 December incident is a symptom of this state of affairs, the real cause is the collective internalisation of seemingly innocuous gender-based prejudice—for instance the oft-quoted idea of "boys will be boys."

In the "hang the rapist" discourse, the call for and the focus on capital punishment overshadows the much-needed systemic reforms to strike at the root cause of the problem. The problem is assumed to be contained within a neat little box where violence is understood, acknowledged, witnessed and reported as a violation. However, in a society where sexual violence is internalised and not all instances even enter the legal process, crime and punishment do not have the linearity that the State seems to assume.

To view the death penalty as a deterrent to sexual violence is to misunderstand the problem. Being presented as a solution to institutionalised and systemic violence, it allows the State to opt out of its responsibility towards remedying fundamental fissures in society's foundations. Touting the death sentence as an option also allows the State to create societal scapegoats and shift the blame to identifiable people who perpetrated the particular criminal act, by simplistically portraying them as the cause of a much larger problem, when really they are the product of a lopsided system.

“When the court... portrays the death sentence as a driver for reform, it reinforces, reiterates and follows the same rule- and role-making that perpetrates structural inequalities against women.”

There appears an external site at which we are able to point and on which we are able to turn our full ire, forgetting, entirely, the existence of legitimised sexual violence inside of us as a system; it "others" the problem. The death penalty does little more than help us express our self-righteous anger and once that anger has found release it allows us to go back to the original position—where patriarchy finds insidious ways to suppress and subjugate the woman's right to be and live on her own terms unencumbered by male-centric behaviour codes and value systems. The death penalty, consequently, becomes a tool at the hands of the practitioners of patriarchy to beat out and define the problem and the conditions of its solution. The noise surrounding the penalty and its enormity obfuscates the problem and becomes a justifiable end in itself

In saying that by hanging Vinay Sharma, Akshay Thakur, Mukesh Singh and Pawan Kumar it is fulfilling the law's objective of protecting society, the court too seems to have bought into the macho-patriarchal narrative of othering. Particularly in the context of sexual violence when the real problem is alive within the daily happenings of society, what society needs is not protection but reformation at a very fundamental level.

To be clear, reformation is required not to protect women, which itself is an idea fraught with patriarchal overtones. Reform is required in order to remove the many inequalities routinely thrust upon women, which is the default and largely accepted mode of a male-dominant society functioning as a whole. The process of reform, if it is to bring about the intended change, has to be driven by women who while asserting their autonomy and the right to self-determination define their own roles, thus, also breaking the homogenised but often binary understanding of women as either the Goddess or the Vamp.

“It is a plainly absurd message: fear the consequence and, therefore, don’t rape... This approach fails to address the structural issues that are to a large extent responsible for the incident.”

However, when the court replaces or rather portrays the death sentence as a driver for reform, it reinforces, reiterates and follows the same rule- and role-making that perpetrates structural inequalities against women. The solution that the court seems to be proposing is that fear of the death sentence will prevent and deter men from indulging in sexual violence. It is a plainly absurd message to send to men: fear the consequence and, therefore, don't rape. It is a solution where the anxiety and fear of being raped is countered by the fear of being hanged. The discourse then gets centred solely on the accused and focuses on what happens after sexual violence has already taken place. This approach fails to address the structural issues that lead up to and are to a large extent responsible for the incident.

In the 16 December case, the accused persons are not the only parties to be blamed. Responsibility must also be attributed to the State by, at least, acknowledging its continued and persistent failure to facilitate change and undertake measures for course correction. It is a much more engaged and complicated process that is required of the State, including the court, and not the easy solution of taking lives in the name of women. The death sentence may allow the State and the court to take comfort in having done something to give voice to society's moral outrage about this particular instance of violence, but, let's be very clear, it is neither going to solve the underlying problem nor prevent the threat and occurrence of sexual violence against women.

(The authors are Research Associates at the Centre on the Death Penalty, National Law University, Delhi. Views expressed are personal.)