As the father of a young daughter, it has been particularly
painful to read about the Delhi rape case ( Amanat). The latest in a long series of shameful
incidents such as the Dhaula Kuan case, the MAMC case, the Park Street case, this incident has
shaken our conscience. It is time to stop rhetoric and take action.
The only long-term standing solution to this problem is
societal change in attitudes. However, since that is a quite long in the
making, I think strong deterrant action is the need of the day. Capital
punishment in all cases is not the answer, as it would put the victim’s life in
danger, and has not proved to be a solution worldwide. It would be pertinent to
note that Canada and Germany, two of the safest and progressive countries in
the world as far as safety of women is concerned (source-a recent poll conducted
by TrustLaw, a legal news service by Thomson Reuters Foundation,)
, do not prescribe capital punishment but rather stringent imprisonment for rape. The strongest deterrant
actions I believe, would be:
-
Chemical castration may be an answer for serious
and habitual rape offenders. This has been
in practice in several countries such as the US (9 states), Poland,
United Kingdom etc.
-
Unequivocal capital punishment for rape and
homicide ( as in the present case), especially in the rarest of rare cases (
which is true for the present case, I believe). It may be pertinent to note out
that the laws of Philippines prescribe death penalty for an offence of this
nature.
-
Reclusion perpetua to death ( more stringent
than life sentence which would be usually limited to 14 yrs) for
serious offences such as use of deadly weapons, rape of a pregnant woman
,gang rape, custodial rape, mutiliation etc .
I
attach below some provisions from
Article 266- B of Philippines, which can serve as an eye opener for us:
( "Article 266-B. Penalty.o
- Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.
"Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape, the victim has become insane, the penalty shall become reclusion perpetua to death.
"When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape, homicide is committed, the penalty shall be death.
"The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:
"Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape, the victim has become insane, the penalty shall become reclusion perpetua to death.
"When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape, homicide is committed, the penalty shall be death.
"The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:
"l) When the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree, or the common-law
spouse of the parent of the victim;
"2) When the victim is under the custody of the police or military authorities or any law enforcement or penal institution;
"3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity;
"4) When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime;
"5) When the victim is a child below seven (7) years old;
"6) When the offender knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim;
"7) When committed by any member of the Armed Forces of the Philippines or para-military units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime;
"8) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability;
"9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and
"10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime.
"2) When the victim is under the custody of the police or military authorities or any law enforcement or penal institution;
"3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity;
"4) When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime;
"5) When the victim is a child below seven (7) years old;
"6) When the offender knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim;
"7) When committed by any member of the Armed Forces of the Philippines or para-military units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime;
"8) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability;
"9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and
"10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime.
Can we expect legislation on
similar lines in our country? Can our laws be similarly strengthened?
Perusal of our own Articles 375 and 376 do not yield any insights
of this nature. Article 376 provides for imprisonment for gang rape for not
less than 10 yrs but which may extend to life imprisonment (which may be
reduced by the legal machinery). Is that really enough? Would that be enough in this case even if the victim
had not unfortunately died? What about the enormous loss to productive life ,
health and dignity?
The implementation of our laws, on which I would not really
need to comment (it is well known) , are even more pathetic. Harrassment of
women seeking to lodge rape cases is well known. Conviction rates in rape cases
remain abysmal. Worse still is the attitude of policymakers , such as the statements
of West Bengal chief minister Mamata
Banerjee after the recent Park Street rape case in Kolkata.
It may be enlightening to note that the North Eastern states,
which accord a higher social status to women, have higher conviction rates in
rape cases. Mizoram convicted a staggering 96.6 percent of alleged perpetrators,
Nagaland 73.7%, Arunachal Pradesh and
Sikkim both 66.7% and Meghalaya 44.4%. That
is way above the national conviction rate of 25%. Perhaps a proof that societal
awareness , combined with pressure on the legal system, can lead to better implementation of laws.
Ultimately, societal attitudes have to change. Rape has
evolved as a power play crime as much as a sexual crime. According to data
collated by the National Crime Records Bureau, 19,348 instances of rape were
recorded in India in 2006. By the year 2008, the figure rose to 21,467, and by
the year 2011, it was 24,206. This represents a 25% rise in six years. It is clear that strong
action needs to be taken against offenders, together with efforts by social and
religious leaders to lead us to a society that is more just for women. Above
all, it is our own conscience that needs to be awakened. But strong deterrant action is a must. Rape is a heinous crime and
needs to be punished stringently. Period.
We hope for a better society and a stronger legal framework, with efforts
from the legislative, judicial and the
executive sections, which will ultimately lead to a safer society for our daughters, wives,
mothers and friends. It is up to the respectable members of the judiciary, who
have been entrusted with this responsibility, to lead this change and show the
way.
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