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Hanging a child rapist by an emotional thread

Introduction: In the Indian legal system, emotions and passions are Omnipresent. Those who deny this fact, actually fail to appreciate their role. The debaters of capital punishment do not get influenced by the deterrence statistics of such punishment but by the emotions, values, and sympathies evoked by the crime. In a criminal justice system, these emotions are unavoidable and, recognizing them will illuminate many features of the death penalty jurisprudence. The major question is- whether capital punishment is a suitable answer to those emotions? This question becomes more relevant as the Protection of Children from Sexual Offences (Amendment) Act, 2019[1] has introduced capital punishment for the aggravated sexual assault of a child. It is impossible to find an appropriate response to this question without recognizing the role of emotions.

Relevance and omnipresence of emotions in rape cases: The ever-presence of emotions can be seen in the evolution of the criminal justice system. A killing in a sudden heat of passion becomes culpable homicide not amounting to murder.[2] Insanity defense further explains the persistence of emotional threads. The death punishment expresses the moral outrage of society because of its unique symbolism and gravity.[3]Atrocious or heinous murder attracts the death penalty. These terms are loaded with emotions and cannot be easily deducible through judicial doctrines.[4] The Delhi gang-rape case[5] is the best example where the apex court upheld the death penalty, labeling the offence as something that has shaken the conscience of society, per se, a barbaric crime. This is marked by an unprecedented public approval showing that capital punishment is suffused with emotion.

It is true that we show our anger on moral agents and not on animals, children or insane people.[6] These moral agents possess the freedom to choose and when their choice is wrong or harmful, to which they are accountable, anger would be the ultimate reaction. This rage reflects the care for the victim and a sense of community in the form of retributive anger.[7]

Those supporting the recent amendment of executing a child rapist consider rape as more outrageous then murder since an emotional thread is attached to child rape. There are two major reasons to believe so. First, unlike murder, the victim of child rape is not dead. The child bears lifetime trauma. The offence leaves behind the emotional scars and a ruthless breach of paternal trust. No punishment can ever erase that suffering, in such a scenario, the death penalty becomes the least appropriate response. Second, the unique emotional damage to the parents of the victim as they failed to protect their defenseless, innocent ward. The sexual violation of children outrages their trust. It is argued that to repair this trust, the death penalty is the only solution since it is so severe,solemn, and final.

The misleading emotional threads: From the above discussion, it is evident that the focus is on harm to the victim. This approach possesses some potential difficulty for the criminal justice system. To generalize the emotional impact on victims and their families is a difficult task. In that case, it is even riskier to attempt to predict their future feelings regarding the effect of crime on their lives. The society, by executing child rapist, is expressing its outrage but the actual issue is- “does it help the victim to heal?”, that should be the prime concern.

Moreover, if harm to the victim is considered then the judgment will be passed on the basis of that harm which will require the defense side to refute those harms first. This directly links to the problem of wrongful execution which is not new to the death punishment history. It is true that the actual share of wrongful execution is quite small, but the emotional resonance it creates is high that has evidently led to several reforms in this area.

The prosecution in rape cases is often challenging, this challenge doubles when the victim and witness is a young child with shaky memory. It is required that lawmakers should make a distinction between recognizing the feeling of society and taking steps based on those recognitions. Such emotions should not affect a fair trial causing a miscarriage of justice.Criminals are not outsiders but they are the reflection of the society. Running on the principal of rehabilitation and reformation, the society must provide him with an opportunity to correct himself.[8] The revengeful rhetoric should not booged down us.

Concluding Remarks: Emotions, if not properly channeled, can have deleterious effects on any criminal justice system. Empathy and anger arouse the desire to act which sometimes leads to mis-attributions of blame resulting in harsher punishments. Therefore, the decision on punishment for child rape requires intense discussion and deliberation so as to bring out that criteria of punishment which is constitutionally acceptable. Media/ Journalism plays crucial role in glamorizing and trivializing any issue[9] creating misconception of crime and punishment, thereby making the public demand harsher punishment.[10]

It is not that such emotions should not be taken seriously, however, simply relying on those emotions evoked by child rape is unacceptable in any criminal justice system. These emotions should be effectively channeled with the help of empirical data evaluating these emotional concerns. Integrating rehabilitative justice in a justice system is an acceptable step but along with this,the retributive justice principle should also be accommodated in the jurisprudence of the death penalty. A combination of emotions and thorough doctrinal analysis will help to focus on the nature and aftermath of the wrong doing instead of debating the matter only on legal and moral principles.[11]

At last, Retribution certainly includes elements of incapacitation, rehabilitation and deterrence, but it also ensures that the innocent is protected and guilty be punished restring the societal disruption. It would not be wrong to say that retribution is indispensable to our criminal justice system just that it should not become the dominant element of punishment.

It is easy to make the punishment severe rather than focusing on swiftness and certainty. Because increasing severity demands a simple passing of amendment and the punishment for particular crime would increase by few more years including capital punishment. However, increasing the certainty puts burden on the government machinery. It puts the government in an uncomfortable position. Policies are required to be made after thorough research on the cause of crime so as to answer satisfactorily, why a person commits crime and why are we actually punishing them.

[1]The Protection Of Children From Sexual Offences (Amendment) Act, 2019, Available on- https://wcd.nic.in/sites/default/files/Protection%20of%20Children%20From%20Sexual%20Offences%20%28Amendment%29%20Act%2C%202019.pdf

[2]Indian Penal Code, 1860, S. 300

[3]Dan M Khan, The secret ambition of deterrence, Harvard Law Review (1999) Vol. 113

[4]Susan A. Bandes, Child rape, moral outrage, and the death penalty, Northwestern University Law Review Colloquy, 2008

[5]Mukesh&Anr v. State for NCT of Delhi &Ors., Criminal Appeal Nos. 609-610 OF 2017

[6]StephenosBibas, Daughlas A. Berman, Engaging Capital Emotions,  Available on:  http://scholarship.law.upenn.edu/faculty_scholarship/213

[7]Roberts JV, Hough M, Understanding Public Attitudes to Criminal Justice.Maidenhead, Open University Press (2005)

[8]Chhannu Lal Verma v. the State of Chhattisgarh, Criminal Appeal No(s). 1482-1483 of 2018

[9]Robert R (2002) Media made criminality: The representation of crime in the mass media., Oxford University press, oxford, uk, pp: 302-340

[10]Cullen FT, Fisher B, Applegate B, ‘Public Opinion about Punishment and Corrections’. Crime and Justice, Chicago: University of Chicago Press (2000)

[11]Nietzsche, Genealogy of Morality: A Polemic (1887)

 

Author:

Saloni Srivastava

National Law University, Jodhpur

Disclaimer: The author bears sole responsibility for the accuracy of facts, opinions or view stated in the present blog.

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