The demand for capital punishment soars every time reports of gruesome crimes dominate the headlines as emotions and rage run high.
However, in countries like Nepal, where the certainty of punishment to the genuine perpetrator is relatively low and legal trials are often harder on victims than on the accused (often leading to withdrawal of cases), capital punishment is unlikely to deter criminals, as most cases either languish in the courts or are dismissed due to lack of evidence.
For crimes of different kinds across the world, data does not prove that death penalty is an effective deterrent. The greatest example of which is Nepal’s southern neighbor India, where neither the intensity nor the number of violent sexual crimes against women and girls have ceased despite the provision of capital punishment for rapists on certain cases.
Human rights experts and feminism scholars say that a major argument against imposing death penalty for rape is that it actually deters the system from handing out convictions because the system is biased against women as well as minorities while police are hesitant to even register cases of rape.
In many cases, police tend to mediate compromises and encourage survivors, under threat or coercion, to withdraw their complaint.
In Bangladesh, where the parliament brought in the Oppression of Women and Children (Special Provisions) Act in 1995 to facilitate stringent punishments, including the death penalty for crimes such as rape, gang rape, acid attacks and trafficking of children, the severity of the punishments meant many of the accused walked free due to “insufficient evidence” and because there was no option of a less harsh sentence.
Similarly, as most rapes are committed by persons known to the victims, in such a context the death penalty could be a further burden since victims will have to struggle with the possibility of sending a person they know to the gallows.
According to the latest data with Nepal Police, more than 82 percent of the crimes related to rape and attempted rape are committed by relatives, neighbors and other acquaintances, and hence several such cases are settled and not reported to police.
What helps then?
The need is to focus on victim-centric approach. Making violent men accountable for their criminal action, guaranteeing fast track quality hearing, proper witness and victim protection programs in place, identifying rights of victims, rehabilitation and safety plans for victims of violence and above all eliminating rape culture are some of the measures that are required to ensure that justice is done effectively and efficiently.
Moreover, debates on the intersectional ties between society and crime will help in better understanding of approaches to suitable punishment as well as the root cause of a problem and eventually in eliminating the problem.
A majority of Nepali girls who have been murdered after rape belong to the Dalit community, according to a study carried out by the Feminist Dalit Organisation (FEDO). The study reveals that of 729 rape cases between mid-May 2018 to mid-February 2019 in Nepal, 154 cases were meted out against the Dalit women and girls.
The report further reveals that among those who were murdered after rape, 80 per cent of the victims were from the Dalit community.
Talking about how caste as well as class hierarchy disproportionately impacts minorities and deprives them from access to justice helps in reaching the grassroots of the problem.
For instance, Dalit women have been victims of many gruesome, heinous caste-based sexual crimes but every time such stories are reported, the privileged section of the society questions the mere mentioning of caste in the report.
The prevailing structure of caste and the status of women in society remain largely responsible for “lower-caste” women being subjected sexual violence. It is a systemic problem that Dalit women are at the bottom of the caste and gender hierarchy in Nepal, and their access to justice is severely limited due to rampant impunity in cases where the perpetrators are a member of a higher caste.
For Dalit women, failure to prosecute such cases pushes access to justice farther as those in power across institutions belong to ruling/majority castes.
While holding perpetrators accountable is vital to eliminating rapes, addressing discriminatory laws against women (especially marginalized) on citizenship, property ownership, marriage, divorce should also be taken hand-on-hand.