Another day, another brutal murder-rape in India. This time, the scene of the gruesome gangrape and murder of a veterenarian wasn’t Delhi, Gurgaon, Allahabad or Patna. It was the relatively safe, “progressive” city of Hyderabad. Understandably, everybody is furious. A widely circulating video on social media asks for the lynching and chemical castration of the accused.
There is a perverse kind of logic here: if you brutalize people enough, they are going to think twice about brutalizing women. Not only is this kind of thinking reductionist and against constitutional norms, it’s also completely missing the point. At best, brutal punishments are a bad solution to the wrong problem; at worst, they are inhumane and ripe for abuse.
The reductionist manifesto
The most important reason societies fail to prevent such heinous crimes against women is actually quite simple: they fail to realize that rape by an individual is fundamentally different from gangrape. The former is a power equation between the two people involved, but the latter is a reflection of the dynamics of the victim’s and the rapists’ identities within the community.
A lone rapist needs two things to carry out his act: proximity to his victim, and the knowledge that he can get away with it. An uncle molesting his underaged nephew is aware of these factors, as is the boyfriend taking advantage of his new girlfiend. Sometimes, proximity comes from mere physical distance: as we can see in the numerous cases of rapes committed by cab drivers. But other times, the perpetrators use emotional proximity as a lever to coerce the victim into acts she may not be comfortable with. Assaults of this kind are common to the point of invisibility: in college dorms, buses, homes, schools, parks. Everywhere you can have two people in seclusion, you can find the potential for sexual attacks. Proximity is the biggest factor in rapes: according to the NCRB, in 94% of all rapes, the victim and the culprit knew each other before the rape. So, rapes are personal.
However, gangrapes are a different beast. The perps only really need to be aware of one thing: the weakness of their victim’s identity. Every woman is acutely aware of this. Walk through any large city and you see signs of it everywhere: men leering at every woman walking past them, making passes at them while every man nearby pretends that nothing’s happening. Time and time again, victims of gangrape have to pierce through layers of inscrutable prejudice against their identity.
When the victim is a young person with hopes, dreams and careers she aspire towards by dint of her equal constitutional rights, the rapists see a woman. A weakling who cannot resist. Nothing else matters. Does not matter if the woman is rich, famous or outspoken. Every woman is fair game for the gangbanger. This helplessness of the Indian woman is exacerbated by onlookers, authorities, the general public and even some parents that follow the familiar logic of: “oh look, a young woman who wants to look good! I bet all that attention from those men is exactly what she wanted.” So, if you want to fix the problem of gangrapes, it is useless to target the individuals who are directly responsible. What you need a much broader definition of what it means to “be responsible”. Whereas rape by an individual is an inherently personal act, a gangrape is necessarily communal.
It takes a whole village
Take your mind back to the now-forgotten gangrape of Asifa Bano in a village near Kathua. She was abducted in broad daylight, sedated, raped over several days and murdered. The most important part of this whole horrible affair is that she was held captive in a temple where villagers offer prayers thrice a day. The family was known to be part of a socially weak community facing severe pressures to move out.
When the accused were found to be members of a radical Hindu outfit, leaders quickly picked sides. Women and child rights activists picked the side of the victim, while village elders, community leaders and politicians implicitly took to defending the accused. Several members of the ruling party took part in protests supporting the accused, where women threatened to burn themselves in public if the accused were not released. Even lawyers showed up at courts blocking authorities from filing the necessary paperwork. Civic communities expressed their outrage by demanding the death penalty for the accused, calls which were routinely suppressed by the police, media and politicians playing their own cynical games.
A further level of responsibility lay on the officers responsible for the investigation. Several policemen were found to have tried to prevent witness testimony and some were arrested on suspicion of trying to tamper with evidence. Many of them had received bribes to suppress the case. When the attention turned to the relationship between the policemen and the accused, it was shown that the policemen had allowed patently false “evidence” to be produced.
Look at the chain of events and you see a familiar pattern emerging: between the victim and justice lies a whole world jealously guarding the rapists. And none of it is addressed by reflexive demands for lynching and castration.
Harsh punishments don’t deter crime
This is a simple point, but one that popular media has yet to realize: harsher punishments don’t really deter crime. Time and time again, academics have shouted from every stage that would allow them that the current retributive attitude towards justice is completely wrong.
A 2014 study undertaken by the National Research Council announced that one of its “most important conclusions is that the incremental deterrent effect of increases in lengthy prison sentences is modest at best.” In other words, threatening people with increasingly harsh punishments doesn’t discourage crime. And it’s not just for longer prison sentences; even death penalty has little effect on the incidence of crime. Amnesty has said so for years now, but like everything these days, it’s fallen on deaf ears.
If anything, harsher punishments encourage bargaining behaviour, which makes it less likely that the perps actually face any action. For the sake of simplicity, let’s take an example of a traffic offence. If you’re facing a fine of $50, you’re likely to try to bribe the policeman with $30 so you can walk away and the cop can pocket the bribe. When facing a criminal sentence (like for drunken driving), you may decide to negotiate with him the price of your freedom. Let’s say you’re looking at a 6 month prison sentence. You may take the view that 6 months in the can is worth $5000 to you. So, you bribe the policeman the amount and walk out. Now, let’s say that a rich guy killed a few homeless people while driving under the influence. Let’s say this changes public attitude towards DUIs and the authorities decide that punishments need to be stricter – maybe 5 years in the can. Now, if you’re caught driving drunk, you’re going to think that 5 years is worth at least $15000. You promptly pay the cop and he pockets the money. The cop tells his cop friends and they realize that there’s money to be made in catching people drunk. Now, even otherwise decent cops get into the game, offering to free “harmless” or “just over the limit” alcoholics for a price. If corruption was at a 20% level earlier, now it’s likely to be 50%. If you raise the punishment further because everybody seems to be getting away with it, you’re likely to find nearly 100% corruption, under-reporting and a complete breakdown of the logic you began with.
This is exactly what we find in India with rapes. In our zeal to impose higher and higher punishments on rapists, we’ve given rise to a system where policemen take bribes to not register cases, intentionally perform shabby investigations, falsify evidence and tamper with witness testimony. India is not unique in this aspect: most countries with harsh punishments for rapists suffer similar issues. A BBC article quotes a lawyer saying “police are biased against women and are hesitant to even register cases of gang rape as that would mean the death penalty for a group of men. To circumvent that, often the case would be registered against one man only.” Even a government-appointed panel in India did not think that raising the intensity of punishment was going to have any effect.
So, yes, we all want justice. But there is a better way to achieve it than by simply increasing punishment.
The role of institutions
Research shows that the certainty of punishment is much more important than the severity. If you know for sure that your actions will face consequences, no matter how small, you’re likely to stop and evaluate whether it’s worth the effort. Countries that do a good job of providing a safe space for women do so from the ground-up.
A crucial part of this chain of trust is the role played by institutions such as the judiciary, law enforcement, civic groups and governmental agencies. Which one of us can confidently state that a stricter rape law, if enacted, would be enforced with equal vigour? None apart from the most delusional think that anything will change by increasing the sentence. Other than the possibilities of bribery, corruption and bargaining, there are countless other problems with Indian institutions that make them woefully inept at handling crimes against women.
First, there’s the universal “boys will be boys” defence offered by most men. This coupled with the fact that marital rape is not a crime means that most policemen don’t even recognize rape when they see it, and will therefore try to kill the crime before it even makes it to a police report. Second, there’s the bhav system endemic to India. If a policeman recognizes one of the accused, he’s likely to arrange for a negotiation and try to broker a deal that saves the culprit any public shaming. Once this is done, the policeman gains prestige and respect for being an “honourable man”.
A third problem, sometimes overlooked, is that laws that are “tough on crime” are almost always just “tough on minorities”. Government statistics show that the overwhelming majority of death row prisoners are from lower castes or religious minorities. Does this mean that upper-class Indians are somehow more virtuous than the rest? No, not at all. Quite the contrary. They are just very good at using institutions to cover their tracks.
Which brings me to the fourth and final problem: “incompetence on demand”. Indian policemen, investigative agencies and lawyers are fantastic at feigning incompetence when it’s convenient. When pursuing a case against a Muslim or an SC culprit, every single arm of the government works overtime; the PM comes out to congratulate the country when the guy is hanged, the burden of proof is shifted to the accused and “innocent until proven guilty” is all but forgotten. But a funny thing happens when the accused is upper-caste, or when they are politically connected. Suddenly, the system bends over backwards to mess up at every single chance.
As an example of the level of institutional incompetence I’m talking about, consider the Malegaon blast case from 2006. To a time when Times of India was a respectable newpaper and two full years before 26/11 blasts, and before all this hullabaloo about Islamic terror. The Malegaon case charged several high-profile political actors of conspiring to cause terror with the intention of making it seem like a Muslim plot. The case was watertight from the beginning, but somehow languished in the courts for 8 years. As soon as the BJP government came to power in 2014, the documents went “missing”, key witnesses turned hostile and the case just began falling apart. Many of the accused like Sadhvi Pragya Singh and Lt. Col. Prasad Shrikant Purohit got out on bail and now roam as free (wo)men.
Is this the institution that’s supposed to uphold stricter laws and bring rapists to justice?
Any way you look at it, the Indian criminal justice system is completely incapable of doing its job. Anybody placing their faith in this lopsided system is either unaware of ground realities or just plain complicit in the takeover of our institutions.
Crimes against liberal values
As I said earlier, no gangrape can exist divorced from the identities of the victim and the rapists. And yet, societies do precious little to elevate the weak and vulnerable. Every time we talk about the need to burn the accused or lynch them in public, we are failing the victim all over again.
Where the need is for a recognition of institutional blindness to women’s issues, we get calls for surveillance. Where we need to be giving young women more agency in matters of personal choice, we talk of even less choice. Where we need to be expanding the right to live a life of dignity, we want instead a world with more restrictions. When we should be expanding access to legal intruments, we talk instead of giving these corrupt and venal policemen even more powers. How does any of this make sense?
Burning the accused solves nothing. Mandatory death penalty does not change the fact that our insititutions are filled with corrupt actors. Village elders, panchayat leaders, politicians, policemen, lawyers all conspire to suppress the discovery of crimes by the powerful. Where are the accountability measures needed to keep them in check?
When a case like Kathua that the entire nation was watching can end up in a farce of a trial, how can we ensure that any trial will lead to a conviction? How can we even be sure that the ones we set on fire are the ones who committed the crime? In every single major crime, the impulse is to frame some convenient outcast: generally a Muslim, lower-caste or poor person with limited influence in the political sphere. By extinguishing their life without due process, we are shutting out any possibility of finding out who actually commits these crimes. How can we reform society without any insights into whom it’s actually benefitting? We see lynchings, hangings and burnings as a quick solution. But why does a solution need to be quick? Whom are we actually helping by impulsively punishing the first ones we can find?
Is all this righteous outrage for public consumption? I believe that yes, it is. Every time some Jaya Bachchan or Maneka Gandhi condemns “crimes against women” by asking us to take the law into our own hands by punishing some convenient scapegoat, they are depriving the term “justice” of all meaning.
Why do we need elected leaders and the powerful if they’re just going to ask us to resort to some DIY justice?
Outrage is a weapon for good
No tempest or conflagration, however great, is harder to quell than mob carried away by the novelty of power
Cicero
India is no stranger to social change. In recent years, everything from the Vishakha Commission to the Nirbhaya Act has been as a result of relentless public demand for something to be done about the impotence of women in public spaces. The very bottom-up nature of this means that nothing happens without us speaking up and holding up values we find dear.
But in the process, let’s not forget that justice is not the same as retaliation.
CS Thinks ... 