Badaun rape: Do courts award death penalty for the right reasons?

The recent gangrape of two teenage girls in the village of Badaun, Uttar Pradesh held up a mirror in front of us again. The shocking nature of the crime and the recklessly shared photo of the young girls hanging from a tree, as villagers refused to take down their bodies to protest the crime has caused widespread outrage once again. Angry voices calling for the capital punishment and strict action from the foot-in-the-mouth SP government are back on our Twitter feeds, demanding an input in 140 characters or less.

The real failure, however, would be allowing this outrage take control, the way it did in the aftermath of the heinous 2012 Delhi gangrape or 2013 Shakti Mills gangrape. “Demanding harsher punishments is taking the easy way out,” says Associate Professor of Law at National Law University-Delhi, Mrinal Satish. “It results in very little discussion about issues such as all that can be done to prevent such crimes, or mechanisms needed to handle victims sensitively after the fact.”

It is typical of courts to rely on patriarchal arguments when deciding the quantum of punishment. Harsher sentences rely on arguments that make the victim’s ‘chastity’ and ‘honour’ the center of the debate, not the violation of her bodily rights and autonomy. An example of this is the Shakti Mills gangrape where the public prosecutor Ujjwal Nikam argued in his sentencing arguments that being gangraped had permanently diminished the honour of the victims, a standard determined by chastity. In a landmark verdict, the court went on to sentence three of the five repeat offenders to death under the amendments introduced to section 376 after the Delhi gangrape.

“It’s a moment when societal honour is vindicated. The desire for death penalty often means that the survivor is not at the centre of the trial,” Supreme Court advocate Karuna Nundy told this writer in an earlier interview.

This desire for retribution is often based on the idea a rape survivor is somehow permanently damaged because her ‘virginity’ — a characteristic fundamental to her identity—has been taken away from her.

“To get the death penalty, courts and prosecutors rely on the idea of a stereotypical rape victim, some one who ought to be visibly traumatised and psychologically broken because she has been robbed of her ‘marriageability’. It reiterates the commonly held notions of patriarchy and if harsh sentences like the death penalty are secured this way, it gives these ideas a stamp of approval,” says Satish.

This is why even the symbolic value of the death penalty isn’t devoid of baggage. Even if it is contended that a bad argument should not affect a just punishment, the fact that courts recognize the trauma associated with the loss of chastity as grounds to pronounce such punishments, warrants a reexamination of whether it accomplishes anything, except making it look like the law enforcement is tough on crime or to satisfy the public out for blood. More so, it reflects the values prioritized by the criminal justice system.

“It makes it easy to avoid talking about the fundamental changes that need to take place in how rape cases and victims are handled in the country,” says Satish.

As seen in the case of both, the Delhi gangrape and Shakti Mills, harsh sentences silenced public outcry almost instantaneously. But it resulted in little debate about systems that need to be in place to prevent such crimes like the desperate need for victims to get access to trauma and rape counsellors before, during and after the trial.

It should be noted here, that in both cases, as is with Badaun, the first fallout was the tendency to look for a stereotypical, traumatised rape victim, but also an equally pressing desire to search for instances of brutality. In instances that aren’t brutal, the same arguments of chastity hold lesser value, not enough to warrant the death penalty. It makes the enforcement of the capital punishment arbitrary – something that relies on public outrage, on gory details of these crimes to shake up the people’s and judiciary’s conscience.

Aside from setting a dangerous precedent, it diminishes the symbolic value of the punishment as well. As in the case of Badaun, the incident sparked anger when photos of the two teenagers, suspended from a tree, made their way into the public domain, despite several other instances of rape that have been reported in the state over the last month.

This reliance on brutality, has made it easy to avoid talking about policy because each instance of outcry has prompted courts to hand out the death penalty, with no conversation about whether it will help in the long run, or whether it’s an effective method to prevent crime, despite the perception that it will.

“The classic argument against death penalty is that if it worked, then murders would have stopped by now. But, more often than not, rape is a crime of opportunity. In cases like that focus should not just be securing convictions or the capital punishment, but also finding a way to aid the survivor’s recovery,” says Satish.

Nundy says after convictions have been secured, little thought is given to the survivors. “The system, much like the outraged public, pays little attention to things needed to facilitate justice — be it strong witness protection laws or handling the victim in the aftermath of the assault or thinking of long term changes like reimagining the way sex education is taught in our schools,” says Nundy.

“Securing the death sentence has become the result that everyone seeks, with little debate on whether it works or not. There are also instances where accused may be acquitted because judges may not want to hand out harsh punishments if the prosecution’s case is not strong,” she adds.

“Priority should be securing convictions in instances where such issues are at play than just handing out the death penalty,” agrees Satish.

In an article that appeared on this website titled ‘Why capital punishment still makes sense in rape cases’, the author Apurv Kumar Mishra argues that poor enforcement is no reason to do away with a good law. Mishra’s follows this up with the assertion that swift, guaranteed justice is the “best antidote to increasing criminality” and the “moral imperative for a civilized and conscientious society.”

But Mishra fails to show how an arbitrarily enforced law is a good thing. He does little to prove that the penalty is anything other than a symbolic act to placate the public, more than justice for the victim who is forgotten at the end of the trial.

Further, the ramifications of this symbolic act are evident in the increasingly brutal nature of rapes — a day after Badaun, a girl was raped in Uttar Pradesh and killed, with her face bludgeoned, to prevent her from being identified or identifying those who violated her. This instance, like Badaun and many others in the past, is a painful opportunity to understand that law enforcement entails more than catching and convicting rapists after the crime. Until the cycle of seeking satiation for outrage does not end, claims in the name of justice will remain mere claims.