Death Penalty for Rape The Ultimate Panacea? Kazi Asszad Hossan

Cover Story

We are witnessing with revulsion the unbridled surge in the rape cases throughout the country. Against this backdrop, the cabinet has approved on 12th October the draft of Women and Children Repression Prevention (Amendment) Bill 2020 incorporating the provision of capital punishment for rape. A sane person will understand the futility of another law without altering the prevailing social structure which encourage and protect rapists.
Government is introducing reform of the prevailing law with the aim of deter potential rapists. Authorities are arguing such law will dissuade and intimidate the future perpetrators. However, an analysis of countries which have such law in place proves that these laws are not effective in containing mounting rape cases. For example, despite having such law in place the situation is much dire in India than Bangladesh. Capital punishment hadn’t curbed such crime in India as anticipated.

The deterrent effect of death penalty is one of the most frequently studied phenomena in criminology. Bulk of the research fails to show a positive correlation between death penalty and crime rate. Virtually no criminologist feel that capital punishment is an effective deterrent. On the contrary, there is evidence to suggest that enactment of capital punishment further exacerbate the crime rate. This proves that death penalty is ineffectual in producing desired effect.

In 2004 in the USA, the average murder rate for states that used the death penalty was 5.71 per 100,000 of the population as against 4.02 per 100,000 in states that did not use it. In 2003 in Canada, 27 years after the country abolished the death penalty the murder rate had fallen by 44 per cent since 1975, when capital punishment was still enforced. Far from making society safer, the death penalty has been shown to have a brutalizing effect on society. State sanctioned killing only serves to endorse the use of force and to continue the cycle of violence
A harsh law serves no purpose, if there is no structure in place to make sure that they are implemented swiftly. This Rapist know that rape is wrong, but that doesn’t mean rapes are not committed. Criminals commit crime because they deem they can escape and this needs to be changed. Oftentimes, people committing such heinous crime are mentally imbalanced. They commit crime on the spur-of-moment and doesn’t calculate rationally the ramifications of such acts. They are not deterred by law as they remain under the impression that they can get away with the crime.

With harsher punishment in place, a possible side-effect that can emerge is that this might incentivises the perpetrator to leave no witness behind. In that case, it is likely that rape may be accompanied by homicide, as a measure of self-preservation. As he will face death sentence anyway, he will have no scruple to kill the victims and witnesses in an attempt to destroy evidence. From a penal policy perspective, it is dangerous to put rapists on the same footing with murderers. Even the authors of the Penal Code of 1860 were well aware about this concept of “marginal deterrence”.

Another conundrum of such law is that judicial process often run the risk of wrongfully convict an innocent person. A classic example is the judicial execution of Dhananjoy Chatterjee in Kolkata. He was hanged for accusation of raping a 14-years old girl. Only after his execution, it was proved that he was completely innocent.

In the case of Dhananjoy he couldn’t hire an efficient lawyer to advocate for him. Poverty became curse for him. Such law only victimizes the poorer segment of society while the real criminals remain scot-free. In similar vein, a host of people are wrongly convicted owing to unreliable eyewitness accounts, perjury by buying witness, inept or corrupt forensic examination, unscrupulous judges.

In Bangladesh, where false testimony and false documentation is rife, there is always a risk of wrongfully convict the innocent. Affluent criminals often bend the law and manipulate evidence to get away with their offense while poor are the real sufferers. Therefore, idea of capital punishment should never be entertained in a country like Bangladesh.

The spirit of capital punishment is antithetical to Constitution of Bangladesh and untenable by international human rights standards. According to the Article 32 of the constitution safeguard the right to life. State, therefore, doesn’t have the authority of taking the life of a person. Such act negatively affect the perpetrator’s family members life who has no role in this heinous crime.

Besides, Bangladesh is a signatory party of many international human rights standards which categorically prohibits such harsh law. For example, Bangladesh is a signatory of UN adopted International Covenant on Civil and Political Rights (ICCPR). The Article 6 of the document states that “no one shall be arbitrarily deprived of his life”. Adherence to such standards is desirable for maintaining its image in international arena.

The debilitating impact of failed criminal justice system and lower rate of conviction on the increasing number of offences is quite perceivable. There is indeed a relation although it is not the only reason.

One of the cardinal reasons for burgeoning rape case is the low conviction rate. According to Shahdeen Malik, a senior lawyer, the conviction rate is less than 3%. This abysmal conviction rate is emboldening potential rapist. They deem that they can get away with their misdeed.

An overhaul of entire judicial system is required. No piece-meal intervention will bring about meaningful or sustainable change. First, the government needs to reform police. Government should ensure accountability and make investigation process more transparent. Police is unable or unwilling to properly gather and handle forensic evidence which contributes to less conviction rate.

Besides, management and protection of victims and witness should be given due importance. A law was drafted by the Law Commission long ago, but it is yet to be enacted. In 2017, the Supreme Court laid down a praiseworthy draft policy for witness management, but there is no noticeable progress in implementing the policy. If we have comprehensive witness and victim protection and management laws and policies, we can do a lot to ensure better criminal justice system. Swift enactment of the law is desirable to enhance efficacy of judicial system.
What’s more, the judicial process is not victim-friendly. Oftentimes, the victim doesn’t want to go through the ordeal of such lengthy judicial process. Besides, in our society the victim are blames and stigmatized. The thorough social reform is necessary to combat this problem.

Moreover, it can be concluded that the introduction of death penalty is futile if not the prevailing conditions are not changed. Without addressing underlying issues, just enacting another law will be ineffectual. Such law is nothing but a knee-jerk reaction to tame the masses who are protesting on the streets. A systemic change is more necessary rather than death penalty.

The Writer is a student of Department of International Relations, University of Dhaka.