Any discussion on how to tackle the problem of rape(s) in India invariably throws up conflicting views on the issue of whether rape should attract the death penalty. While there is one view which is against the death penalty in general, this post will initially proceed on the assumption that the death penalty ought to be retained for certain grave offences (with there being considerable scope for debate on what those offences ought to be) though some references to general arguments for (“Retentionist”) and against (“Abolitionist”) the death penalty are inescapable.
The most convincing argument against imposing the death penalty for rape is that it provides an incentive for the perpetrator to kill his victim so as to reduce (if not completely eradicate) the chances of being apprehended and convicted for rape. The correlation between killing the victim and reducing the chances of being apprehended is difficult to refute. The implicit assumption that the perpetrator of rape does not always want to kill the victim anyway is also one that cannot be easily faulted.
The argument usually advanced for imposing the death penalty for rape is that it will deter the perpetrator (this is also a general Retentionist argument). The most common ground on which this argument may be questioned is that the quantum of punishment does not act as an effective deterrent unless the risk of apprehension and conviction is considerable. A classic Abolitionist argument is that increasing the risk of apprehension and conviction (by having an effective police and criminal justice system respectively) will, by itself, act as an effective deterrent and make the quantum of punishment immaterial. However, improving the effectiveness of the police and the criminal justice system is easier said than done.
There are inherent physical and practical limits to which effectiveness of the police can be improved, especially in a country like India which has a large population and insufficient resources to provide for a large and/or technologically superior police. In any case, while there are several other measures that will supplement policing and increase the risk of apprehension (viz. sensitizing the police to encourage victims to report crimes, improving lighting in public places, etc.), increasing the risk of apprehension alone (without a corresponding increase in the risk of conviction) would not, by itself, act as an effective deterrent.
Improving the criminal justice system is fraught with problems not only of implementation alone but also of principle. While the primary purpose of a criminal justice system is to convict perpetrators, another equally important purpose is to ensure that innocent persons are not convicted. “It is better that a thousand criminals go free than one innocent man condemned.” In order to ensure that no innocent person is convicted, a criminal justice system must have certain safeguards (high standard of proof, rigid procedures, etc.) in place. At the same time, having these safeguards in place automatically makes it more difficult to convict perpetrators. While our criminal justice system can certainly be improved, there is a limit to how much it can be tinkered with without increasing the danger of innocent persons being convicted.
Therefore, even if increasing the risk of apprehension and conviction can (in theory) act as an effective deterrent by itself, there are practical limits to how much this risk can (and ought to be) increased. The effectiveness of a deterrent should, therefore, be regarded as a function of the risk of apprehension and conviction as well as the quantum of punishment. Assuming the risk of apprehension and conviction to be constant (given the limited measures that can be taken towards this), the correlation between the quantum of penalty and the effectiveness of a deterrent becomes clearer.
Once we recognize this correlation, the Abolitionist argument essentially boils down to saying that life imprisonment is as effective a deterrent as the death penalty. The argument is sought to be supported by relying on statistics like (i) a comparison between crimes in Retentionist countries and Abolitionist countries; and (ii) a comparison between crimes before and after the death penalty was abolished in a country that was initially Retentionist but subsequently turned Abolitionist. Theoretically, a comparison between crimes before and after the death penalty was introduced in a country that was initially Abolitionist but subsequently turned Retentionist may also exist, though I am not aware of any such country.
None of the above statistics measure deterrence. By counting the number of crimes committed (let us assume these are all genuine instances of crime), these statistics are actually comparing non-deterrence (number of instances where the deterrent has failed to be effective). It is impossible to calculate the number of instances where the deterrent has been effective as the likelihood of people voluntarily admitting that they did not commit a crime because they were afraid they might be awarded the death penalty is extremely low. Indeed, this might even be a sub-conscious factor for most. Furthermore, the difference in the number of crimes committed may also be attributable to the differences in the effectiveness of the police and the criminal justice system. This is why even the Retentionists are unable to rely on any statistics to show that those who commit crimes in an Abolitionist country would not have done so if the country had been Retentionist.
While a cogent empirical basis for both the Retentionist as well as Abolitionist views on the relative deterrent effect of the death penalty vis-á-vis life imprisonment is lacking, the soundness of the Retentionist premise that a higher penalty acts as a more effective deterrent (all other factors remaining constant) is difficult to refute. Accordingly, we now proceed on the assumption that the death penalty acts as a more effective deterrent for all crimes including rape. Though there are a variety of other measures that may (and should) be taken to deter perpetrators of rape (including addressing the way our society treats women generally), the question is whether rape should also be made an offence that attracts the death penalty (in addition to these other measures).
The advantage of imposing the death penalty for rape (viz. more effective deterrent) has to be balanced with the disadvantage (viz. providing an incentive for perpetrators to kill their victims to reduce chances of apprehension and conviction). Notwithstanding one (albeit misconceived) view that the life of a rape victim is “living hell” or “living death”, let us assume that it is preferable for rape victims to be left alive rather than murdered. Once we accept this premise, imposing the death penalty for all cases of rape is more or less out of the question. However, imposing the death penalty for cases of rape coupled with murder and/or rape resulting in death of the victim may be less objectionable.
Take the instance of the recent gangrape of a 23 year old woman in New Delhi, where the victim died 13 days after she was raped. While the perpetrators have now been charged with murder (which attracts the death penalty), the likelihood of their being convicted of the same is low primarily because the prosecution will be unable to prove that the perpetrators intended to kill their victim. The defence is likely to argue (quite convincingly) that if the perpetrators really wanted to kill their victim in order to escape apprehension, they had ample opportunity to kill both the victim and her companion (which they did not do).
Imposing the death penalty for cases of rape leading to death of the victim (including by traumatic suicide) is likely to retain the advantages of imposing the death penalty for rape while circumventing its disadvantages. Perpetrators of rape who intend to kill their victim anyway are unaffected. Perpetrators of rape who do not have any predetermined intention of killing their victim would nevertheless be hesitant to commit rape because the possibility of the victim subsequently committing suicide cannot be ruled out. Perpetrators of rape would also be hesitant to kill their victim with a view to reduce chances of apprehension and conviction because being apprehended would attract the higher penalty of death.