Archive for Women’s Rights

Death Penalty for Child Rapists in India: Populist, Hasty, Counterproductive

by Shardool Kulkarni, a law student at the University of Mumbai

This January, an eight-year-old girl hailing from a minority shepherding family in India was abducted, gang raped and brutally murdered in the Kathua region of Jammu and Kashmir. In the subsequent months, the incident generated polarized reactions in India and around the world, with public outcry juxtaposed against the response from individuals in authority and alleged politicization of rape owing to the victim’s minority status. The ensuing public discourse has placed the ruling dispensation headed by Prime Minister Narendra Modi under intense scrutiny, particularly in relation to the government’s stance and policies regarding child rape.

In April 2018, the Criminal Law Amendment Ordinance, 2018 was promulgated. The said ordinance brought in several changes to the existing legal framework pertaining to child rape in India, the most significant being the imposition of the death penalty as punishment for rape of a girl below the age of twelve years. The move, while hailed by some as an example of the government’s toughened stance on child sexual abuse, was criticized by academics, judges, NGOs and legal practitioners as being likely to worsen the plight of victims of child sexual abuse.

Disincentivising Reporting

The Kathua rape case involved the victim being abducted, drugged, gang-raped and brutally murdered by eight persons, including four policemen. However, it is pertinent to note that this is not the norm when it comes to instances of child sexual abuse: according to the National Crime Records Bureau of India, 95.5 percent of rapes are committed by persons known to the victim. The perpetrator of abuse is not the figurative shadowy stranger who strikes fear into the minds of the public, but rather the more closely known devils such as parents, older siblings, teachers, neighbors, or family friends. Victims of rape aged below twelve years are also unlikely to report a crime unless an older family member does so on their behalf. The likelihood of this happening is already low and could be diminished further if the consequence of reporting is the death penalty. As such, the amendment is likely to push the already underreported crime of child sexual abuse deeper into the chasm of unspoken, unacknowledged secrets of Indian society.

A Death Sentence for Victims?

The ordinance seemingly also ignores the possibility that making the act of raping a girl below twelve years punishable by death, a punishment usually reserved for murders, could encourage perpetrators to kill their young victims. Rape is an exceedingly difficult crime to prosecute if the only witness in most cases, the victim, is dead. While it may seem counterintuitive that a rapist would murder his or her victim and increase his or her chances of being sentenced to death, the heightened risk of being caught if the victim survives and thereby receiving the death penalty anyway could, in the opinion of some, prompt more rapists to kill their victims.

Indian students protest against rape in India in 2015. Sexual assault of women has been an ongoing issue in India. // Sajjad Hussain // AFP Photo

Following the enactment of the Criminal Law (Amendment) Act, 2013, the term “rape” has been accorded a wider connotation, including not only the traditional notion of penetrative sex but also other forced sexual acts such as fellatio. Thus, “rape,” as defined by the Indian Penal Code, is unrelated to the risk of death and need not necessarily be an act that may result in the death of the child owing to the sheer physical violence accompanied by it. Placing the punishment for raping a child on the same pedestal as the punishment for murdering a child might simply incentivize more abusers to ensure that their victim does not live to tell the tale.

Gender Bias: An Evidence of Populism and Apathy

Most media outlets in India carried news of the government’s decision on child rape. Interestingly, the ordinance only makes the rape of girls below the age of twelve years punishable by death, casting a blind eye toward male victims who constitute 52.94 percent of the victims of child sexual abuse in India. This sidelining of male victims points to a knee-jerk response to momentary outrage, a clear manifestation of the skewed discourse surrounding sexual violence that too often turns a blind eye to male victims. 

Subsequent to the promulgation of the ordinance, the Central Government announced its intention to amend the Protection of Children from Sexual Offences Act (POCSO) in order to make the changes brought in by the ordinance apply to male victims as well. While the move is a welcome one, it further highlights the fact that the policy in question was a hasty move.

Death Penalty: An Ineffective Deterrent

In its 262nd report, the Law Commission of India concluded that there was no evidence to suggest that the deterrent effect of the death penalty was any better than that of life imprisonment. In the United States of America, for example, states that did not impose capital punishment for homicide were found to have lower homicide rates than states that did impose capital punishment. As such, the presumption that the death penalty acts as an effective deterrent is fundamentally flawed.

Moreover, presuming that death penalty does indeed deter child sexual abuse, the deterrent effect is watered down significantly in India by poor case disposal and conviction rates. In its 2016 report titled “Crime in India,” the National Crime Records Bureau revealed that the conviction rate under the POCSO Act is an abysmal 28.9 percent. To make matters worse, pendency in cases of child rape was 89.6 percent. Moreover, there are no witness protection programs in place, and no probe has been made into the functioning of Child Welfare Committees set up by the government. Imposing stringent punishments becomes meaningless if the law remains a mere dead letter.

Several persons in authority responsible for the ruling dispensation, including two ministers in the State of Jammu and Kashmir, protested against the arrest of the accused in the horrific Kathua rape case. The apathy of the police authorities, the statements made by persons in power and the communal color that the entire incident acquired created a strong public sentiment against the ruling party on the issue of child rape. In this light, the Criminal Law (Amendment) Ordinance, 2018 can only be regarded as a hasty and populist move to placate the outraged public without addressing, and moreover possibly aggravating, the plight of the innocent victims of these horrific human rights violations.


Shardool Kulkarni is in his penultimate year as a law student of the five-year law course at the University of Mumbai. He holds the distinction of being the youngest Indian to have deposed before a parliamentary committee in Indian legislative history. In the past, he has worked as a law trainee under Justice F. M. I. Kalifulla, Judge, Supreme Court of India, and as an Attaché to the Office of the Speaker, Lok Sabha, Parliament of India.

The Story of a Young Tunisian Mother’s Struggle for Safety

By Izzy Tomico Ellis, a journalist and activist who has been heavily involved in the refugee crisis since 2015. Additional reporting by Niamh Keady-Tabbal.

Syrine* is sitting on the edge of a bed inside a tidy room for two, in City Plaza — a squatted hotel in Greece where solidarians from all over the world have flocked to bring respite to its refugee residents. Her little son started walking yesterday. In between our conversation, she holds out her hands to catch him as he falls down. Soothing him, she recalls, “I looked on Facebook to find out what to do when he was crying. I was alone with a baby…I didn’t know anything.” 

When we asked her if we could write down her story, she smiled, “I’ve thought about telling it a lot.”

The strength with which she carried herself had compelled me to ask, and at the same time made me worry she’d laugh. For her, a 21-year-old mother, bravery comes so naturally. 

When we first met in Athens in the January darkness, she explained that her husband had gone out the previous night to buy cigarettes and never came home. In the morning, she had called the main hospitals.

“He wasn’t there. I was relieved a little,’’ Syrine recounts shakily. But a few hours later, she had discovered he was in prison after being caught without the legal papers for refugees in Athens.

Too scared to return to where she had been staying, Syrine had been pushing her son, Salah*, around the streets in a buggy ever since.

Alone and homeless, remarkably she kept a clear head. She spoke calmly in English, asking for a lawyer to come the next day to try and resolve the situation for herself and her family, and arranged a room at City Plaza.

It wasn’t the first time. The young Tunisian woman has spent nearly three years running to protect herself, her husband and their son. Salah was just 8-months-old when they had to flee their country after Syrine’s relatives threatened to kill her in revenge for bringing dishonor to the family. The couple had managed to marry just before Salah was born, but Syrine’s family continues to look for her.

“My brother would do it, I know he would,” she said. Until then, she had been at university, hiding the relationship and pregnancy from her family. “I didn’t want an abortion; it’s easy, but it was my baby with the man I loved.”

The International Women’s Day march in Athens, March 08, 2018. // Izzy Tomico Ellis

She described the double-life she was leading in Tunisia, scrolling through old Facebook posts and event pages of the electronic music nights she and her husband would attend in the city of Sousse, close to the country’s capital, Tunis.

Tunisia has made significant legal advancements in the push toward gender equality, including lifting a ban on Muslim women marrying non-Muslim men and ending a law that meant rapists could escape punishment by marrying their victims. However, systematic violence against women still persists: In 2016, the Tunisian Association of Democratic Women said 70 percent of Tunisian women were victims of abuse and honor killings in Tunisia are still reported.

“One man told me there was no hope for asylum, and I should just go back,” she shakes her head . “He has no idea… My father is a famous man, he cares about what the people think, not about me —  we had to leave.”

After fleeing to Turkey, they arrived on the Greek island of Lesvos. Syrine describes what she saw in the camp as unbelievable. “Everywhere children without clothes or shoes,” she says. “Some people stay there for over a year —  one year!” Her eyes widen. “ I would go crazy.”

Moria camp has become an infamous symbol of the European refugee crisis where living conditions that lie behind barbed wire fences have been repeatedly condemned by leading human rights organizations. 

“We went to a hotel the next day and travelled to the mainland illegally. I couldn’t live there… with a baby,” she shakes her head.

“I think he misses him. He was happier before,” she gestures to Salah, as he refuses food in a restaurant close by to where they are staying.

Syrine has spent the last few weeks trying to arrange paperwork for her husband, to no avail. As the pair had left the previous island camp without the correct documents, she was told she would have to return if their asylum case was to be processed as a couple. Though, Syrine has relentlessly tried other ways.

“Every day I wake up early, I go to this organization — Katahaki (the Greek Asylum Service) — but each day passes and nothing happens,” she says. “Every night I would fall asleep and hope tomorrow will bring a solution.’’

But it hasn’t, so today she is leaving. Her hair is more blonde, and she’s cut it shorter. Her husband is still imprisoned, and Syrine is forced to leave her safe room in the hotel —  to travel back to a camp and live alone.

“It’s a dangerous step, but I must do it. I must go back there to help my husband,” she says. Her voice falters. Only a few days were spent at the camp before —  but she’s seen enough to know the dangers, the difficulties, the fear —  not being able to go to the toilet after a certain time, sleeping with her belongings wrapped in her arms, with her baby.

We find Syrine’s suitcase and bags parked outside the hotel. She comes out a few minutes later. Her face is made up. She looks European. It’s deliberate, for fear of police and discrimination. She pulls a hat over her son’s dark curls, speaking to him in English. Walking toward the train, she runs into friends on the street, another goodbye.

She made the same trip, just in the other direction, with her husband only months before. The closer we get, the more her face looks as if it will crumble —  her nervousness at the uncertainty that awaits her and her little baby lurching closer and closer each station we pass —  but it never does.

“I studied one year of architecture, then nursing, but now I think I want to be a mechanic,” she had told us in the days before.

Off the train, she gathers herself again, struggling to collapse the buggy into a taxi as the driver tuts impatiently, the hinges catching on baby toys —  as ever, she holds her cool —  once again methodically packing her life belongings.

 

*Syrine and Salah are false names used to protect real identities.

 

Izzy Tomico Ellis is a journalist and activist who has been heavily involved in the refugee crisis since 2015. Izzy graduated with a first class honours degree in journalism from the University of Westminster in 2016 and is currently based in Greece. Additional reporting for this article was contributed by Niamh Keady-Tabbal.