Death penalty does not ensure women’s safety

India has an obsession with retributive and deterrent approaches and an increasing aversion to another goal of punishment – rehabilitation.

After the gangrape and murder of a young veterinarian in Hyderabad in November and with the upcoming execution of the four convicts in the 2012 Delhi gangrape and murder case, sexual violence is again being discussed avidly across India. However, it might be more accurate to describe the discourse as being centred around notions of punishment and whether they are effective and efficient in their current form.

Though sexually violent acts are the springboard, the debate soon focuses on the “Nirbhaya accused” and the slow deliberations of the justice process. But, as the Indian women’s rights movement has repeatedly argued, the focus on punishment, thought not entirely illegitimate, takes away from the unaddressed problem of sexual violence in multiple and different contexts.

The criminal justice system’s response to sexual violence has been to move the punishment index higher and higher, with the death penalty being the harshest punitive response. Recent example of this trend include the amendments to the Protection of Children from Sexual Offences Act and the Indian Penal Code and the amendments passed by the Andhra Pradesh legislature to make existing punishments harsher and provide for the death penalty in cases of non-homicidal rape.

Obsession with retribution

Capital punishment has come to define our reaction to sexual violence. This reflects an obsession with retributive and deterrent approaches and an increasing aversion to another goal of punishment – rehabilitation.

The aim of rehabilitation is to reorient the offender and equip them with psychological, behavioural and technical skills to help them reintegrate into society as responsible citizens, and to reduce the risk of the possibility of their committing another offence. But even though India’s criminal justice system supposedly includes rehabilitation as a goal, we have barely scratched the surface of what it means or what it could translate into within the prison environment.

The current prison system, recently redefined as the “correctional system”, in its efforts at rehabilitative activities provides opportunities for education and unskilled and semi-skilled labour. But these opportunities are not available to all.

These “sex offender treatment programmes” are conducted in prison and use therapy to address the psychological and emotional makeup of prisoners. They equip convicts with helpful behavioural and thought responses to reduce the risk of them committing offences again. Correctional services in the United Kingdom, the United States, Canada, New Zealand, South Africa and Japan have successfully employed these programmes.

These programmes use a variety of techniques, but successful ones have generally focused on cognitive behavioural therapy and psychotherapy interventions. This involves therapy conducted either in groups or individually or a combination of both. While some programmes are mandatory, others require inmates to express their willingness to change before they can begin the course – a cornerstone of successful therapeutic interventions.

‘Prosocial behaviour’

The focus is on first ensuring that offenders take responsibility for their actions. They receive help in processing their own thoughts and behaviour patterns to understand how and why they committed a certain sexual offence. In this process, they develop the skills necessary to modify their behaviour, preventing them from violating another person. An important part of this involves them grasping the harm caused to the victims and survivors. Finally they practice “prosocial behaviour” by developing meaningful life goals that will lead them away from offending.

For example, Japan largely uses group therapy. The therapy involves two correctional officers who work with a small group of inmates. These inmates are grouped based on their “risk level”, considering factors such as age, criminal record, views on women, and ability to control sexual impulses. Those at a higher risk level receive more intensive treatment. South African prisons have a programme they call “Fight with Insight”, which is designed for youth sex offenders. It combines cognitive behavioural therapy with diversion therapy in the form of boxing.

These programmes have been based on scientific research on factors associated with sexual offending behaviour and interventions that have been successful in addressing the behaviour. Studies conducted on the effectiveness of these programmes in New Zealand and Japan have found that as long as the programmes are well-implemented, those who complete the programme are less likely to reoffend than those who did not receive any such support.

Despite this empirical backing, there appears to be no discussion in India about adopting a culturally and socially appropriate therapeutic approach to violent behaviour, particularly in cases of sexual violence.

A protest in Srinagar in April 2018 against the rape and murder of 8-year-old girl of Kathua in Jammu. Credit: PTI

In contrast, the system has relied upon the death penalty in such cases, while there has been no empirical evidence that the death penalty is an effective deterrent against crime. Even worse, introducing harsher punishments, such as mandatory minimum sentences of imprisonment, has been linked with a drop in the number of convictions.

For instance, a study in the United States by Andrew Leipold found that juries often acquit defendants, even when they are guilty, because they feel the punishment is too harsh. A study on the impact of the Criminal Law Amendment Act 2013 on adjudication of rape cases in Delhi found that the average rate of conviction dropped from 16.11% under the older law to 5.72% under the amendments. Yet, law and policy in India surrounding sexual violence has ignored research, and focused on ineffective punitive measures instead of scientifically proven programmes.

Little regard for effectiveness

Discussions around punishment in India are limited to the death penalty or longer periods of incarceration, with little regard for their effectiveness. The larger social discourse around punishment is on “deservedness” and “vengeance” but not on addressing social and individual contexts of the criminal act. Our prisons are massively overcrowded, underfunded and understaffed, with widespread reports of torture, poor sanitation and nutrition. This severe neglect of prisons is a complete mismatch with the goal of rehabilitation we claim to incorporate.

Such a punitive approach does not ensure safety for women. The overhaul required in the system, especially in our prisons, to give the goal of rehabilitation a real chance, is far too immense. It is so much easier to simply change the text of the law than to plan and invest resources in making our systems more effective. In our failure to challenge this approach, we allow the state to continue to abdicate its responsibility.

Gale Andrew is a Research Associate at Project 39A at Delhi’s National Law University. Views expressed are personal. This article first appeared online on Scroll.