The anger that I felt when a young woman was brutally raped and killed by a group of men on the night of December 16 last year is not something that will ever go away. It marked not just me, but millions of people in Delhi, and elsewhere. That anger has no closure. Nor do I seek the convenience of such a closure. I do not seek the convenience of closure for the rape and murder of dalit women in Haryana, or of women in Kunan-Poshpora and elsewhere in Jammu & Kashmir or in Manipur who were raped and killed by the soldiers of the Indian army and who are still unpunished. I would like such men to be punished, but I will never demand the penalty of death for them. Not because I have any affection for rapists, but because I have a greater regard and respect for human life, which I do not think that we should allow the state to take away, in cold pre-meditation, whatever the circumstances.
Today, the anger that I feel in the wake of the many incidences of rape and violence around us is alloyed with a sorrow occasioned by the awarding of a death sentence to the rapists and killers. And before you jump to conclusions, let me emphasize that my sorrow does not stem from any ‘sympathy’ for those who committed that heinous crime on the night of 16 December. I do not presume their innocence. And I have no doubts that they did what they did knowing fully well the consequence of their actions. They knew that for them rape and murder was a sport, a pastime. No animal other than human beings kill to distract and entertain themselves. Beasts know better than man about the sanctity of life.
But can death be recompensed with death delivered cold by a hangman? Does a hanging bring back the person who was murdered by the hanged man? By what kind of moral arithmetic does it diminish anyone’s pain? Is there a measure for this kind of pain ? Is there a meter that tells us how many kilo-joules of pain have increased or decreased by a verdict ? Does anyone know what they mean when they say ‘Kaleja Thanda Hua’? (the heart/liver has been cooled).
I think a term of imprisonment for life, in solitary confinement, if necessary, so that any one who commits a heinous crime can find themselves confronting their abuse of a single night or even an hour for an entire life time, night after night, is a far more severe punishment than the short leap into the void that is enabled by the pull of the hangman’s lever at the gallows. Psychopaths and mass murderers often court their own deaths. It makes things easy for them. Bloodthirsty tyrants and dictators turn into martyrs for some, overnight, when they are executed. I would prefer it if things were actually harder for the rapist who dismembers his victim, and for the tyrant who abuses an entire people.
Rare, Medium-Rare or Well Done ?
In India, in fact anywhere, death penalties are awarded for what is considered the ‘rarest of rare’ cases. .This notion of rarity is constructed by means of a hypothetical sliding scale of a refinement and intensification of cruelty. Thus, the rape and dismemberment leading to death is ‘rarer’ in this instance, than rape or murder taken separately. But rape, dismemberment, murder and cannibalism, if ever found together (as might have taken place in the Nithari case) will be even ‘rarer’ than the December 16 case, and so on. What this means is the setting up of a sliding scale of horror, which evaluates the ‘worth’ of each act of violence to see whether or not it measures up to justifying a death sentence.
Think of this for a moment, from another angle. Your daughter, or wife, (or sister, brother, son, father, husband, friend or lover) has been killed because of the terrible injuries that s/he suffered as a result of medical malpractice and callousness. You saw him/her eaten up from the insides, you saw him/her writhing in pain. And yet, your pain, and his/her pain, is somehow not ‘worth’ as much as the pain that the judicial system would have acknowledged had s/he been ‘raped and murdered’ rather than being callously manhandled and abusively treated in the course of what passed for medical care.
The ‘rarest of rare’ argument automatically devalues the experience of millions of people, because, on the one hand it upholds the principle of the severest retribution, and on the other hand it rations out that (flawed) understanding of justice on the basis of the sliding scale of the ‘lesser’ and ‘greater’ horrors of different crimes. The feelings of a person who has witnessed, or experienced suffering is actually of no consequence here, what counts is what ‘counts’ as suffering. What gives anyone the right to decide that the pain of the mother or lover of a man or woman who’s painful death because of medical malpractice or an iatrological illness is less ‘worthy’ than the pain of someone who has lost a loved one to a rape that ended horribly, with murder. If we think that ‘rape + murder’ is somehow a worse fate than ‘medical malpractice = murder’ then, we are admitting to the fact that we feel that rape is a more fundamental violation of the human body. One could say that it happens against the will of the victim, but can we speak meaningfully, for instance of the ‘will’ of a completely anaesthetised patient on an operating table who will undergo a gross violation of their bodily integrity that might damage them for life, or kill them ? Can we honestly say that rape is somehow ‘worse’ than a medical intervention gone wrong due to invasive callousness. And if we can’t then can anyone explain why we do not see the spectacle of television anchors for the hanging of callous doctors. Why is the mob fury on hospitals and clinics always seen as outburst of irrationality and the baying for blood by a mob in the 16 December case seen as dignified and just anger?
To my mind, one is not ‘worse’ than the other, but the person who assumes that rape makes murder ‘worse’ also buys into the rapists common notion that nothing humiliates a victim more than ‘rape’ can. This puts rape on the pedestal where rapists want it to be. If we are to be serious about non-patriarchal values, then the first thing we must do is to challenge the idea that rape diminishes the person who undergoes rape. Robbery does not diminish the robbed. Why should a violation like rape, be seen as more than what it is. I do not mean to diminish its horror, but to make it a ‘greater’ crime, putting it in the ‘rarest of the rare’ category
Unfortunately, what matters is which ‘crime’, which ‘breaking news’ horror story of the the moment, is more worthy of being called ‘rarest of the rare’. This notion of ‘worth’ is constructed more by social and political exigencies (which inevitably foreground the ephemeral cost-benefit analysis of a given decision rather than universally testable claims to justice) than by any real response to pain or wrongdoing.
And so, a murderer who kills in the course of a robbery may get off with life, a murderer who kills a wife he suspects of having extra-marital sex may even be acquitted (a crime of passion) and a murderer who kills because he is an insurgent or a rebel may get death, because insurgency is ‘rarer’ than robbery or crimes of passion committed by possessive husbands. (There is a relationship between this line of reasoning and the one that says that a husband cannot rape his wife, a principle upheld recently by the Indian parliament, but we will not go into that in detail for now.)
Similarly a man who rapes and murders in the line of army duty in the course of a counter-insurgency operation in Kashmir or in Manipur may not even be brought to trial, and may even be decorated, and a man who rapes and murders in a city bus in Delhi may get a death penalty.
Does this happen because there is some assumed heft to the notion that incidence of rapes in city buses is in some ways ‘rarer’ than rapes that end in executions in the line of duty by soldiers in the Indian army?
The Prosecutors Fallacy and ‘Rarest of the Rare’ Case : A Mathematical Digression
In mathematics, there is a well known problem known as the ‘prosecutor’s fallacy’. This assumes that if an act is very rare, or if the criminal leaves a trace, say a blood stain, which on analysis identifies him as the bearer of a very rare blood disorder, then there are higher chances of that criminal being rightfully convicted when a person who exhibits similar tendencies or characteristics is found. It all depends, again, on how ‘rare’, rare is taken to be.
A criminal with a blood disorder that you would find in say ten people in a million, is assumed, in this line of reasoning, simply to be matched with any person with such a disorder, who is reasonably seen as being within the ambit of the said million. Trials have been known to proceed on this basis, and death sentences have been handed out, citing a very twisted understanding of the ‘rarest of rare’ principle.
However, let us not forget that he is actually one in ten. Which means that in some ways, there could be nine other people who could theoretically be guilty or what he has been arrested for. This up-ends the whole common-ness / rarity question. Out of the ten persons who could have committed the crime, only one actually has, nine have not. If any of the nine people who have not committed the act are convicted and sentenced, then, in some ways, the sentence becomes awarded to the vast majority of suspects, who were brought into the investigation, not because they happened to be directly identified with the act, but because they shared a rare condition with the actual criminal. This scenario could easily lead to the sentencing of a person who did not even commit the crime for which he has been charged.
But let us come back to December 16. We know that the men on that bus did commit the crime they have been accused of. Their alibis have not held in court. There are reliable witnesses. This has not been (for once) a mistrial.
What is at issue here is not the miscarriage of limited retributive justice in this case, but the possibility of this case acting as the basis for a possible, potential miscarriage, even of retributive justice, in other cases.
Rarity and the Common Myth of Deterrence
Every death penalty provides the foundation and precedence for every other death penalty. That is the basis of the doctrine of deterrence. The notion of deterrence would have no meaning if a sentence could not be handed down, repeatedly. It is here that a peculiar intersection between the uniqueness and singularity of death and the repeatability of a death sentence occurs.
It is possible, hypothetically, in another instance, for a misidentification of an accused but innocent person with an actual criminal to occur. And the heinous nature of the crime under consideration may cause a judgement in such a case to overlook all caveats and calls for caution while sentencing is being done.
Let us say that in that instance, that a person’s blood disorder trace (or any other such rare identifying mark, or circumstantial evidence) is the basis for a conviction, in the absence of any other proof.
In this way, the ‘rarity’ of evidentiary grounds, and the ‘rarity’ of the heinousness of the crime combine to form a lethal judicial cocktail. A judge, faced with his self-imposed necessity of assuaging the ‘conscience of society’ , awards a death sentence on the basis of the ‘rarest of rare’ doctrine.
The person who is awarded the sentence has no evidence stacked up against him other than a probability based on another, completely different understanding of the notion of rarity.
For all you know, the accused is one of the nine in ten people in a million who has the rare blood disorder that the criminal has. Let us assume that the criminal is a rapist and a murderer, and he murders his victim, because knowing that he can be sentenced to death, he wants to leave the victim without the option of deposing against him. But what he leaves behind something that could identify him, but could also be used to mistakenly identify someone else.
Here, the ‘prosecutor’s fallacy’, in combination with the moral justification provided by the ‘rarest of rare’ doctrine can lead to a gross miscarriage of justice resulting in the execution of an innocent man. Given the standards of forensic analysis (weak and inconsistent DNA profiling, contamination of samples etc.) in our country, It’s not as if this does not happen. Not often, but it does happen, and it certainly could happen. In the ‘Arushi & Hemraj’ murder case, (another instance of the ‘rarest of the rare crime’, the prosecution’s evidence is entirely circumstantial. There has been no in depth forensic analysis of any of the human traces from the crime scene. And it is quite likely that the prosecuting judge will feel the pressure to award a ‘death sentence’, regardless of whom it awards it to).
There are numerous instances of people being found innocent long after they have been convicted. New forensic techniques constantly force us to re-examine questions of guilt and innocence. Cold cases heat up in the forensic lab when a new technique is discovered and tried, years after they have been put into deep freeze.
In the case of a person who has been awarded a life sentence on mistaken grounds, there is still scope for some recompense, because it is always possible for that person to be released honorably, and for them to pick up, with however much difficulty, the threads of their life. That possibility is forever cancelled out when a person dies. For every nine ‘correct’ death sentences, there may be one ‘flawed’ one. But how do we give life back to the person who has been hanged in that tenth ‘flawed’ case? Never forget that the tenth ‘flawed’ verdict is inevitably based on the retributive momentum generated by nine ‘correct’ death sentences. When you feed the monster of ‘collective conscience’ it has a habit of staying hungry, no matter what the circumstances.
So if we can invoke ‘society’s conscience’ to justify a death sentence when the crime committed is ‘rarest of rare’, why can we not invoke the same principle to abolish the death sentence because there are those ‘rarest of rare’ cases when a sentence does result in hanging the wrong man. Why is a call for death all right on the grounds of ‘rarity’ and a call for saving a life not right on the grounds of the same arithmetical phenomenon of ‘rarity’.
I could go on. I could go on about the fact that a death sentence does not bring back a loved one that anyone has lost. I could go on about the fact that when a television news reporter thrusts a microphone in the face of a murder victim’s parent and asks ‘kya asp ko maut chahiye’ (do you want death?) he or she is already framing and limiting the possibilities of an answer. I could go on about the difference between restorative and retributive justice. I could go on.
But let me end with a small discussion of the idea that death sentences deter crime. They certainly do not deter the criminal, because he will no longer be alive, on the successful execution of the sentence to stop himself from repeating the horrible crime he is accused of. So the criminal per se is not deterred.
Now, it can be said that at least it deters others who may be scared away from committing such heinous acts because they fear being caught and killed. First of all, the fear of death is no deterrence to psychopaths who often commit the kind of ‘rarest of rare’ crimes that we all feel horrified by most of all. It is also not a deterrence to the terrorist who is attracted to the halo of martyrdom and has no hesitation if necessary in being a suicide-bomber. In both these cases, the death sentence may in fact as a kind of perverse incentive to committing a heinous crime.
There are many among us who have said that ‘rapists should hang’. They have not thought it fit to consider that the promise of a death sentence will certainly act as an incentive to those who think that killing their victims in someways minimizes their chances of being caught due to the fact that their victims may stay alive and depose against them. Remember, rapists of this kind are often recidivists, they commit their crimes again and again.
Nine times out of ten, no complaint is filed (either because the victim is scared to file a complaint, or because her complaint is not accepted by the police). If the inevitability of a death sentence is added to the mix, more rapists will kill the women, children and men that they may have attacked to ensure that traces are erased. if we want the offense of rape to be eradicated, we have to make it safer and easier for rape survivors to make complaints that can stand in court. This involves – not a death sentence for rapists – but the removal of the stigma of being raped from the person who survives rape. That is work that society has to do for itself, it involves and implicates all of us. If we are serious about confronting rape and sexual violence then we cannot outsource the solution to the problem to the hooded figure of the hangman. That is a solution that gets rid of an occasional rapist, or murderer, it never gets rid of rape, or murder.
I have always maintained that violence, or a life taken in self-defense can always be a mitigating factor when it comes to judging that violence. I would defend the raped man or woman, or his/her companion, who kills a rapist (were that possible) to prevent him from doing further harm, any day.
My opposition to the death penalty does not stem from an anodyne commitment to non-violence in the abstract. It stems from my understanding that if we give the state or any abstraction of commensurate scale, the right to decide matters of life and death, whether for punitive or for any other reasons, then we have actually ceded away our own sovereignty and autonomy as individual human beings. The phrase ‘collective conscience’ troubles me profoundly because it is based on a conceptual sleight of hand. Conscience can only be an individual matter, the fiction of ‘collective conscience’ means nothing. The proof of this is simple, my conscience does not permit a justification for the state taking life away, so no ‘collective conscience’ argument can accommodate my individual conscience, hence, it cannot have the legitimacy to act on my behalf. And yet it is precisely this legitimacy to act on my behalf and your behalf that is invoked in arguments that begin and end with the alliterative ring of ‘collective conscience’.
A detailed empirical study done in the US points out that murder rates in states of the US that have abolished the death penalty are consistently lower than in states that have retained the death penalty. This study is important because it allows us to compare two scenarios – with and without death penalties, in the same society, across the same length of time. I would urge everyone to read this – and then come up with a good argument about how the death by hanging of four men will ensure that rape will be deterred in future.
The rapists of the 16 of December thought that they were ‘punishing’ their victim. Rapists often do. Their defense lawyer, A.P. Singh even said, “I’d burn my daughter alive if she was having pre-marital sex, roaming around with her boyfriend at night”. Notice the consequentially expressed logic of this statement – I would burn her alive if she did X. How far is that statement from ‘I will rape and kill her if she was someone I thought was having pre-marital sex and moving around at night with her boyfriend’. On what basis does a person even imagine that they can take on the role of the executioner, and of rape as punishment for transgression ? The answer is simple. As long as you believe that certain choices that people make should be met with the abstracted application of deadly and violent force, you will have ‘death penalties’ handed out, not just by courts, but also by lynch mobs and gangs of men in night buses. The rapist-murderer and the hanging-judge have more in common than meets the eye. I am not saying that the judge is a rapist, but a rapist is sometimes a judge, in the sense he thinks he is handing out the ‘punishment’ of rape to a person (usually a woman) he thinks has crossed a given patriarchal line – by being alone at night, by expressing her sexual agency, or simply by being a person possessed of her own sense of autonomy and dignity.
Anyone who cheers the verdict of death by hanging today should examine the possibility that he or she may be an unwitting abetter of the next heinous crime, whose origins may lie in the same twisted understanding of transgression and punishment that stretches from courtrooms to the deserted and desolate stretches of all our nightmares.