With the majority of rapes committed by someone known to the victim, the new law could drive offenders to murder to avoid detection
India’s government approved the death penalty for convicted rapists of girls under the age of 12, amid a groundswell of public outrage following the gang-rape and murder of an eight-year-old Muslim girl in Jammu and Kashmir state.
The shocking case involved a girl from the Bakarwal nomadic tribe, who was out grazing her horses when she was abducted, drugged and murdered after a week of torture and repeated rape. It led to a nationwide outcry for swifter justice.
However, the hastily issued executive order is facing criticism from activists and politicians, who say the death penalty, usually meted out for severe crimes in India, will not be a deterrent to child rapists without an overhaul of the criminal justice system.
“I am afraid this [executive order] has very little credibility because what is required is certainty of punishment,” the leader of Communist Party of India (Marxist), Brinda Karat, told reporters.
According to the National Crime Records Bureau data from 2016, in 94.6% of cases, the perpetrator is known to the victim – usually a brother, father or someone from the family’s social circle. Reporting rape in India’s patriarchal family structure is often fraught with victim shaming and further alienation.
Child rights activists fear the introduction of the death penalty will make families more likely to cover up sexual crimes, and that rapists might kill their victims to avoid detection.
Critics are also concerned that the order, which was approved by Prime Minister Narendra Modi’s cabinet on Saturday, makes no mention of boys. In a country where male children often grow up in an atmosphere that discourages them from showing vulnerability, experts say such a discriminatory legal provision will fail boys who have been sexually assaulted.
Unlike the current Protection of Children from Sexual Offences Act (Pocso) 2012, which is gender-neutral and defines any person under 18 as a child, the new ordinance will stop boys who have been sexually abused from seeking the same justice accorded to a girl of their age, says gay rights activist Harish Iyer.
“I principally stand against the death penalty. This discriminatory legislation implies what boys are taught growing up – that they have to be the protector and not the protected. Children are vulnerable to sexual assault, irrespective of gender,” Iyer said.
A nationwide survey of crimes against children conducted by the ministry of women and child development in 2007 found that half of India’s children had been sexually abused.
Iyer said the new executive order was a shortcut for an overhaul of a criminal justice system that often discriminates against the poor. “This is sexism of a different nature, it favours one gender. What about protection of intersex children? Unless the crime is female foeticide, which is specifically gender-oriented, this is a shortcut for real measures.”
A man beats an effigy of one of the rapists at a protest against three rapes of girls, in Ahmedabad, India.
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A man beats an effigy of one of the rapists at a protest against three rapes of girls, in Ahmedabad, India.
He said the government should prioritise fast-track courts, child-friendly police stations, and a national registry of sex offenders. The new law proposes stricter punishment for convicted rapists of children under 16 years of age. Its definition of the victims and proposed age limit has triggered a debate about categorising victims of the same crime.
“What’s the explanation for death penalty for ‘gang rape of children below 12 years’? The state is a man. Why else would the reproductive age of a girl be the determining factor for the kind of punishment meted out to the rapists?” journalist Kota Neelima wrote in a Facebook post.
In 2016 India recorded an alarmingly low conviction rate (18.9%) for crimes against women. In that year, of all the child rape cases that came before the courts under the Pocso, less than 3% ended in convictions.
An issue of such a grave nature should have had a public discourse with participation from civil society stakeholders. By its nature, an executive order can be announced by the president of India on recommendation from the federal cabinet and does not require consultation.
After the gang rape of in Delhi in 2012, India introduced and launched fast-track courts, but the measures have not deterred violent sexual crimes.
In addition, homelessness and poverty increase the vulnerability of children to sexual predators as parents have to leave them on their own to go to work, making them easy targets.
In an election year, the ruling Bharatiya Janata Party (BJP) wants to be seen as proactive in taking strong steps to make India safer for women. However, it is implementation, the real challenge in India, that will determine its true intention.
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