Death penalty for rape: The severity of punishment has nothing to do with impunity

Muhammad Mahbubur Rahman is a Professor at the Department of Law, University of Dhaka. He received his Ph.D. in criminal law from the School of Oriental and African Studies (SOAS), University of London in 2013. His research interests focus on criminal law, legal theories, human rights, and law and society. Muhammad Rahman is currently an elected member of the Executive Council of the Asian Society of International Law. He is the author of Criminal Sentencing in Bangladesh: From Colonial Legacies to Modernity (Leiden/Boston: Brill Nijhoff, 2017), and co-author of Protection of Minorities: Regimes, Norms and Issues in South Asia (Newcastle: Cambridge Scholars Publishing, 2012), and Protection of Children in Conflict with the Law in Bangladesh (Dhaka: Save the Children UK, 2008). Keeping the alarming rise in the number of sexual offences, including rape in context, Law Desk talks to him on the following issues.

Law Desk (LD): What would be your general observations on the increasing number of rape and its relation with the culture of impunity?

Muhammad Mahbubur Rahman (MMR): Reported rapes have been on the rise for many years. And what is more alarming and disturbing is that the incidents of gang rape in peacetime, the number of which has significantly decreased in many countries, appear to have increased in our society. True, we do not have sufficient scientific data or studies to underscore the impact of the culture of impunity on the increasing number of sexual offences, including rape. However, the debilitating impact of a failed criminal justice system and lower rate of conviction on the increasing number of offences is quite easily perceivable and deducible. There indeed is a relationship although it is not the only reason.

LD: What are the challenges for the implementation of the existing laws? Do you think that the existing punishment for rape is inadequate?

MMR: The punishment for rape under the existing law is harsh. Nonetheless, there is a growing perception that increasing the punishment further will solve the problem. The effectiveness of punishment as deterrence depends on many factors. The certainty of punishment is more important than its severity. The main problem is that most offenders in rape cases go unpunished and the severity of punishment has nothing to do with impunity. Without addressing the problem of low conviction rate, we cannot just assume that the existing punishment is inadequate and a more severe punishment would be the only answer to the problem. Our focus should be on why convictions are not being awarded. In my understanding, the reasons for this low conviction rate are well known to anyone having a minimum knowledge of our criminal justice system but unfortunately they are not addressed. Understanding the problems and addressing them in an honest way is the key.

LD: Should there be death penalty for rape?

MMR: The existing law prescribes the death penalty for rape leading to death and gang rape. Now the question is whether we should introduce it for all rapes. If we could maintain an acceptable conviction rate and punish the offenders with life imprisonment (which is the only punishment for rape under the existing law) and still unable to deter rape, then the question could come as to whether we should consider increasing the existing punishment and introduce the death penalty instead of or in addition to life imprisonment. Since we are now miserably failing to ensure conviction, the question of increasing the punishment is irrelevant and cannot be an agenda. When an alarmingly low conviction rate has almost broken the sequence of crime and punishment, our first priority should be to establish this sequence. Introduction of the death penalty, without taking any meaningful step to that direction, is nothing but a hysterical response to a serious problem.

From a penal policy perspective, it is dangerous to put rapists on the same footing with murderers. The superiority of force which enables a man to commit rape can enable him to go further - to add murder to his guilt. The only restraining motive that can prevent murder in this situation is to inform him that the punishment of murder is more severe than the punishment of the crime which he has already committed. In this way, the differential treatment of rapists and murderers contributes to the security of life of rape victims. Even the authors of the Penal Code of 1860 were well aware about this concept of marginal deterrence. That's why they did not accept the popular demand of death penalty for rape. If we now choose to surrender to this popular demand, it would be disastrous for us in the long run. It would contribute to an increase in number of rape followed by murder, encourage more false cases, unduly curtail liberty of accused in many cases and possibly result in fewer convictions.

LD: What should reforms be directed at, then?

MMR: We should aim at a reform of the entire criminal justice system. No piecemeal intervention will bring about meaningful and sustainable changes. In reforming the system, there are several key areas of interventions. First, there is a strong need to reform the police. Many positive proposals on police reform are pending with relevant ministries for many years. We should generate more discussion on why our policy makers are hesitant in implementing these proposals. If we could reform the police, give them functional independence, ensure accountability and make the processes of investigation more transparent, we could ensure better and effective investigation leading to a significant increase in conviction rate. In many cases, we end up in unwarranted acquittals due to faulty investigations. Second, we should seriously rethink about the prosecution system which is heavily controlled by the executive. This arrangement is not conducive for an effective criminal justice system.

The third area of reform could be the management and protection of witnesses and victims. A law was drafted by the Law Commission long ago, but it is yet to be enacted. In 2017, the Supreme Court laid down a praiseworthy draft policy for witness management, but there is no noticeable progress in implementing the policy. If we have comprehensive witness and victim protection and management laws and policies, we can do a lot to ensure better criminal justice system. Additionally, we should focus more on countering false cases and appointing adequate number of judges. Reform in all these areas and not in respect of one only in exclusion of others, can bring positive changes in the truest sense. If we keep the entire criminal justice system in chaos and intervene only for sexual violence or rape, there will be very little improvements.

Furthermore, we need to focus on an underdiscussed area: the moral authority of law, of criminal justice system and the criminal justice agencies. The perception that criminal justice system works only through administration of punishment is a flawed perception. The moral authority of law emanates from the logical underpinnings and reasonableness underlying law. For instance, a criminal law may lose its moral authority if it is unjust in terms of ensuring the due process rights and maintaining a just sentencing calculus. Besides, the criminal justice agencies also need to have moral authority. When the moral authority erodes, the criminal justice system ultimately fails to command compliance. The said authority emanates, among others, from an impersonal rule of law. For instance, if a popular perception, even if wrong, is created that criminal justice responses are markedly different on the basis of political or social status or connection of offender or victims, then criminal justice agencies need to think in retrospect if they have an impersonal moral authority. The same thing happens when it appears that criminal justice responses in cases of "viral" incidents compared against other incidents are significantly different. Adhocism may be a good strategy to fool or appease the mass people but it ultimately diminishes the moral authority of criminal justice system and its agencies. In this connection, we should also look at how criminal justice agencies are exercising their coercive powers. If there is an arrogance of power, it not only affects their credibility but also contributes to growing criminality by those possessing different forms of power at the societal level. We should also address the crisis of credibility of these agencies.

LD: Thank you for your time.

MMR: You are welcome.