Harsher punishment for sexual violence

• Recently, the Maharashtra cabinet approved the Shakti Bill, enlarging the scope of harsher and mandatory sentences — including the death penalty — for non-homicidal rape.
• The Shakti Bill comes amid the recent legislative trend to invoke the death penalty for sexual offences.
• In 2020, the Andhra Pradesh government passed the Disha Bill, pending presidential assent, that provides the death penalty for the rape of adult women.

Issues with the Bills

1) Focus on reporting of police complaint

• The most severe gaps in the justice delivery system are related to reporting a police complaint.
• The focus of the criminal justice system needs to shift from sentencing and punishment to the stages of reporting, investigation and victim-support mechanisms.
• The bill does not address these concerns.

2) Impact on rate of conviction

• Harsh penalties often have the consequence of reducing the rate of conviction for the offence.
• A study published in the Indian Law Review based on rape judgments in Delhi shows a lower rate of conviction after the removal of judicial discretion in 2013.
• Introducing harsher penalties does not remove systemic prejudices from the minds of judges and the police.

3) Harsher punishment would deter complainants

• Studies on child sexual abuse have shown that in the few cases of convictions, the minimum sentence was the norm and the award of the maximum punishment was an exception.
• Crime data from the National Crime Records Bureau shows that in 93.6 per cent of these cases, the perpetrators were known to the victims.
• Introducing capital punishment would deter complainants from registering complaints.
• The Shakti Bill ignores crucial empirical evidence on these cases.

4) Moving away from standard of affirmative consent

• An affirmative standard of consent is rooted in unequivocal voluntary agreement by women through words, gestures or any form of verbal or non-verbal communication.
• In a sharp departure, the bill stipulates that valid consent can be presumed from the “conduct of the parties” and the “circumstances surrounding it”.
• The vaguely worded explanation in the bill holds dangerous possibilities of expecting survivors to respond only in a certain manner, thus creating the stereotype of an “ideal” victim.
• It also overlooks the fact that perpetrators are known to the survivors in nearly 94 per cent of rapes, which often do not involve any brutal violence.

Conclusion

Punitive responses to sexual violence need serious rethinking, given the multitude of perverse consequences and their negligible role in addressing the actual needs of rape survivors.

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