“This court is sure that additional p u n i s hme n t of castration of child rapists will fetch magical results in preventing and containing child sexual abuses.” Last week, while dismissing a petition brought by a British national accused of sexually abusing a 15-year-old boy in Tamil Nadu, the Madras High Court issued a much publicised judgment recommending chemical castration for child sexual abusers. Anticipating the protests and criticism that such a suggestion would receive from human rights groups, the judgment counters that such barbaric incidents of child sexual abuse necessitated “barbaric models of punishment”.
The high court’s suggestion could be dismissed as sensationalist and pure hyperbole. Yet, it is indicative of a growing trend to respond to the shocking incidents of sexual assault and child sexual abuse with suggestions to ramp up punishments. From proposals to have juvenile offenders over 16 being tried as adults to more insistent cries for the death penalty for rapists, the mood among policy makers (now it seems judges as well) appears to be based on an unquestioned assumption that harsher punishments lead to lower crime. Even the high court’s suggestion of castration received some support, including from the National Commission for Women’s chairperson, who agreed that castration of sexual offenders might be worth trying.
There is, however, much evidence to show that draconian punishments and harsher sentences do not have much deterrence value. Daniel Nagin and Greg Pogarsky, leading scholars on deterrence, concluded that the certainty of punishment is far more likely to serve as a consistent deterrent for crime than the severity of punishment. Imposing harsh punishments is unlikely to serve as a strong deterrent if the chances of being apprehended are very low. And, in this regard, India’s record is abysmal. According to the National Crime Records Bureau statistics, 36,735 rape cases were registered in 2014, of which over 72 per cent resulted in acquittals. In a study conducted by the Centre for Law and Policy Research, Bengaluru, on the 10 special sexual offences courts in Karnataka from their inception through 2014, the conviction rate was just 16.8 per cent. The overwhelming reason for acquittals was victims and key witnesses turning hostile.
The incidence of victims and witnesses turning hostile has repeatedly been acknowledged as one of the greatest challenges to our criminal justice system. The stigma associated with rape and the tremendous pressures that victims and their families face from the accused result in a large number of victims recanting their testimony. Protracted trials and numerous delays to court proceedings only increase the likelihood of victims turning hostile.
Yet, despite widespread knowledge of this issue, Indian courts have done little to address it. Courts are not required to put in place any witness or victim protection measure or support services to enable them to testify in safety, and mitigate the trauma they may face during trial. A review of nearly 100 judgments of Karnataka’s special sexual offences courts also revealed that none questioned the suspicious circumstances that caused witnesses to turn hostile. Most judgments also show the prosecution made little effort to prevent witnesses from turning hostile or look for alternative evidence when faced with a hostile witness.
The incidents of rape of two children on the same night in Delhi have rightly sparked outrage. Unfortunately, proposals such as castration for child sexual abusers only serve to distract from the main issue—a failure of our criminal justice system to conduct rape trials effectively. Justice Kirubakaran is right when he says the court cannot remain a “silent spectator” when the law is ineffective. But rather than suggesting outmoded and draconian forms of punishments, courts must look into the conduct of trials, and play an active role in considering evidence and ensuring adequate protection and support services to victims. These may not bring about magical results, but are reforms that are needed for victims of sexual assault to have any hope of securing justice.
aparna.ravi@clpr.org.in
Ravi is a senior researcher at the Centre for Law and Policy Research, Bengaluru