Why The Death Penalty For Child Rape Does Not Mean Swifter, Better Justice
About 90 percent of child rape cases were pending trial in India in 2016, no more than 28 percent of such cases ended in conviction, and there is a 20-year backlog in bringing cases to trial, the latest available national crime data show.
These data indicate the government move to prioritise a change to legislation that allows courts to grant the death penalty to rapists of children younger than 12 will not bring quicker or better justice because there is no plan to address conviction failures and court delays.
The new ordinance also adds a minimum punishment of 20 years to anyone who rapes a woman below 16.
Of 39,068 rape victims, including women and girls in 2016, 43 percent of the girls raped were minor, below the age of 18, while, 5 percent were less than 12 years old, according to National Crime Records Bureau (NCRB) data.
The Union Cabinet on April 21, approved an ordinance to the Indian Penal Code, Indian Evidence Act, Code of Criminal Procedure and the Protection of Children from Sexual Offences Act (POCSO), allowing for harsher punishments to those committing sexual crimes against women and children.
An ordinance is promulgated by the President of India when the Union Cabinet so recommends and used when Parliament is out of session to quickly pass legislation deemed urgent.
The amendments, known as the Criminal Law Ordinance 2018, come during a period of national uproar. April 2018 was a month where the high-profile rape cases of eight-year-old Asifa in Jammu and Kashmir’s Kathua district, and the alleged rape of a minor in Unnao, Uttar Pradesh, allegedly by a BJP MLA, dominated the national media and fuelled much politicised debate along religious and ethnic lines.
Reporting May Be Deterred, Rather Than Rape
There were 19,765 reported child rapes in India in 2016, or 54 every day, under Section 376 of the Indian Penal Code and sections 4 and 6 of the Protection of Children from Sexual Offences Act, an increase of almost 6 percent compared to 2014 when 18,661 cases were reported.
Madhya Pradesh reported the most 13 percent child rapes nationwide in 2016, followed by Maharashtra (12 percent) and Uttar Pradesh (11 percent).
Sikkim reported the highest rate of rape, 32.5 rapes per one lakh children, followed by Mizoram (26.7) and Delhi (14.5), as against the national average of 4.4 child rapes.
About 18-20 percent of child rapes occur in the family and 50 percent in an institutionalized setting, according to this 2013 paper published in the journal Psychological Studies.
Offenders were known to the victims–including both women and girl child–in 94 pecent of the rape cases reported in 2016, NCRB data show. Most of them (29 percent) were neighbours, followed by ‘known persons on promise to marry the victim’ (27 percent) and relatives (6 percent); 30 percent were other known people.
The introduction of a death penalty for those accused of raping a child under 12 years could have a negative effect on reporting, as families fear ostracization and legal consequence for family members.
“The introduction of the death penalty is not a great move. In the family these cases will not be reported, so many of these things happen by known people, the community will protect them,” Flavia Agnes, a women’s’ rights lawyer and co-founder of MAJLIS, a Mumbai-based organisation that provides legal initiatives for women, told IndiaSpend.
“Reporting rates were definitely increasing, but now I believe more people will not report (rapes) for fear of the consequences,” she said.
Conviction Delays And A 72% Failure Rate
Up to 90 percent of rape cases reported were pending trial at the end of 2016.
The conviction rate for child rape was 28 percent, inclusive of cases reported under Section 376 of IPC and Sections 4 and 6 of POCSO Act in 2016, compared to 34 percent in the previous year under Section 376 of IPC, and 41 percent and 32 percent under Sections 4 and 6 of the POCSO act in 2015 respectively.
“Expedited trials are just not happening in India, it will take 20-30 years to improve the system,” said Ms Agnes. “Just one or two special courts is not enough; this is why so many cases are pending. Plus trials take too long.”
Six fast-track courts were set up in Delhi in 2013 after the gang rape of a 23-year-old paramedic student, to address the high rate of unfinished investigations and encourage swifter convictions. However, in 2012, regular courts resolved 500 cases compared to 400 in fast track courts, which failed to serve their inherent purpose, Business Standard reported on Dec.14, 2014.
The last person to receive capital punishment in India for reasons other than terrorism was Dhananjoy Chatterjee who raped and murdered 14-year-old schoolgirl. Chatterjee was hanged in August 2004.
Amendments To Indian Penal Code, Section 376:
- Minimum punishment for rape has increased from seven to ten years imprisonment, as per an amendment to subsection (a).
- A new sub-clause (iii) states that the minimum punishment for rape of a woman under 16 years is 20 years imprisonment.
- Subsection (c) has been amended to include a provision for fines imposed on the convicted and paid to the victim in order to cover medical costs and rehabilitation.
- Newly inserted clause 376 AB states minimum punishment for rape of a woman under 12 years is 20 years imprisonment, plus courts can also grant the death penalty.
- Minimum punishment of life imprisonment for the gang rape of women under 12 and 16 years has beer prescribed under the newly inserted clauses (376DA and DB); courts can also grant the death penalty for rape of under 12 year olds.
- Police officers convicted of committing rape now face minimum imprisonment of ten years, no matter where the crime was convicted, as per an amendment to clause (ii) (a).
Amendment To Code Of Criminal Procedure
- Rape case investigations must be completed within three months of the date when the crime was first recorded in the police station, as per amendment to Section 173 (i).
- All appeals to rape cases should now be disposed of within 6 months, as per amendment to Section 374 (3).
- No anticipatory bail can be given to those accused of raping under 16 year olds, according to a new subsection added to Section 439.
- A person accused of raping an under 16 year old may have an informant/approved person present during a bail application hearing, according to a new subsection added to Section 439.
Amendment To POCSO Act And Evidence Act
- Section 42 of the POSCO Act has been amended to include the amendments to section 376AB, section 376DA, and section 376DB of the Indian Penal Code.
- The same IPC sections have been added to Section 53A and 146 of the Evidence Act which addresses character evidence or previous sexual experience not relevant in certain cases.
Source: Live Law
This article has been published in arrangement with IndiaSpend.