After the brutal gang rape of the 23-year-old physiotherapy student in Delhi, the rape capital of India, there is a growing demand from media, civil society groups and key opposition parties for giving death penalty to the rapists.

Will that be enough to check the occurrence of this heinous crime? Will that make Indian women feel safer? After all, death penalty has not stopped murders. Then, what is the guarantee that it will stop rapes? It seems the call for capital punishment ignores the ground realities and is likely to create more problems than it seeks to address.

When the family members of a rape victim get to know about the sad incidence, all efforts are made to hide it, out of fear, shame or mistrust of police.

The result is a substantial number of rape cases go unreported. Only a few rape victims dare to approach the police with request to lodge FIRs. Police give every excuse to convince the victims out of it.

Yet, if a victim persists or media highlights the crime, the police lodge an FIR. By that time, crucial evidence is either lost or culprits go underground.

Investigation in rape crimes do not rely much on scientific gathering of evidence but on witnesses who often turn hostile or are bought over a prolonged trial period.

Rape victims are subject to highly degrading finger test without much scientific justification. Defence lawyers use the findings of this archaic test to discredit the victim’s testimony.

Besides, a rape victim has to face humiliating questions like — ‘‘What were you doing there at that late in the night? Why did you go to that lonely place so late in the night (as if going out at a lonely place in the night gives someone the license to rape her)? Who was that person who was accompanying you? Is he your boyfriend?

Are you in a physical relationship with him? Did you tell your parents that you were going out with him, or did you lie about it? Do you remember what the accused was wearing while he was over you?”

The defence lawyers keep asking such uncomfortable questions to make the victim nervous and say something that contradicts her earlier statements and let their clients get way with lighter or no sentence.

We need to understand that it is unfair to judge a victim’s character. It does not make any difference whether she is in a relationship (physical or otherwise) with someone or not.

A rape is a rape. As per Section 375 of the Indian Penal Code (IPC), it is primarily a sexual intercourse with a woman without her valid consent, except in the case of sex with a minor girl when it is rape —with or without her consent.

One of the most abused provisions is the definition of consent that remains vague and its presence or absence often depends upon understanding and interpretation of the presiding trial judge despite the amendments made subsequent to the decision in the Mathura case.

Many a times, absence of injury marks on the victim’s body is interpreted as implied consent.

Worse, the police sometimes press for compromise in a rape case by suggesting that the accused is ready to marry the rape victim…even though the crime is non-compoundable as per law.

Punishment issues

The minimum punishment in a gang rape case is ten years of imprisonment that can go up to life imprisonment depending upon the gravity of the crime. Gang rape and murder together can fall under the category of rarest of the rare crimes as defined by Supreme Court and may invite death penalty. However, a death penalty involves stronger evidence requirement.

Besides, it follows a series of appeals and mercy petition to the President that often takes years to decide. The result: It delays the delivery of justice...and we all know justice delayed is justice denied.

Provision of death penalty in rape cases will only make matters worse by slowing the administration of justice. Besides, when victim is the sole witness, as in most sexual assault cases, it will induce murder of rape victims by the perpetrators of the crime to destroy the evidence — a situation supporters of death penalty would not want.

The way out

The root of the problem lies in an unsupportive societal attitude towards rape victims, a deficient police and judicial system that result in lower conviction rate (26 per cent of all registered cases as per National Crime Records Bureau).

It is estimated that more than 50 per cent of the rape cases, more so in the rural areas, are not registered.

That leaves us with an actual conviction rate of around 13 per cent. Thus, a little less than 90 per cent of the rapists manage to escape the law.

It is important to remember that prevention of rape is as important as punishing it. That will require complete overhaul of India’s policing system.

To ensure compulsory registration of all rape cases (or any other crime against women,) a short-term solution can be to outsource the job to an independent third-party agency with the responsibility of immediately relaying the information to the nearby GPRS-enabled police patrol that must reach the crime scene within a reasonable time.

Investigation of rape cases needs to be left to a team of professionals with expertise in scientific evidence gathering. Reliance on forensic technology will lead to irrefutable evidence and ensure certainty of conviction.

This will check the problem of hostile witnesses and use of bribe for diluting the seriousness of the charges against the accused. It is time India introduced audit of policing to have an independent assessment of their functioning in particular with respect to crime against women.

Further tightening of the definition of the consent will check its misuse by defence lawyers. Instead of death penalty, a combination of heavy financial penalty, life imprisonment with no provision of parole and prompt delivery of justice through fast track courts can do the job effectively. Given the growing involvement of juveniles in heinous crimes like rape, instead of prescribing minimum age, a combination of age, criminal bent of mind and the accused intention to commit the crime should be considered.

While the above measures may check the incidence of rape, it would be naïve to assume that they will stop it.

The long-term solution lies in bringing an attitudinal change towards women through education and concerted efforts at gender sensitisation.

(The author is associated with a top corporate house. The views are personal.)