Why capital punishment for rape is a regressive step for women’s rights

Leavides Domingo-Cabarrubias  | 8 March 2023

There are currently at least 31 countries that impose the death penalty for rape offences, excluding countries that have rape as an aggravating factor to another offence. Government officials have justified the death penalty for convicted rapists as a means to ‘protect’ women. For example, in 2020, then Pakistani Prime Minister Imran Khan, in response to widespread protests triggered by the rape and robbery of a woman by two men in front of her two children on a highway in Punjab, remarked that ‘rapists should be handed down the most severe punishments to curb rising sexual violence in the country’. In 2020, Indian Prime Minister Narendra Modi, commenting on the execution of four individuals convicted of rape and physical assault of a woman leading to her death (the Nirbhaya case), highlighted the importance of ensuring the ‘dignity and safety’ of women, and the need to build a nation ‘where the focus is on women empowerment’.

However, far from advancing women’s rights, capital punishment for rape is a regressive step for women’s rights. It reinforces many of patriarchal notions of chastity and honour. As observed by Zimring and Johnson, the death penalty for rape persists primarily ‘where women are treated as property and where “honour killings” reflect the perverse valuation of sexual purity over human life’.  In societies where a man regards a woman as his property, women are seen ‘to embody the honour of the men to whom they “belong”; as such they must guard their virginity and chastity’.

Capital rape laws as vestiges of patriarchal systems

Ancient rape laws—particularly in Western legal systems but also adopted in many parts of the world due to European colonisation—were based on patriarchal views of women as properties of men. Rape was considered as a property crime, and thus, rape laws were not aimed at protecting women from sexual violence, but rather at protecting men’s properties. According to Yung, the rationale behind these early laws ‘was that rape was a property crime against a man's interest in preserving his wife's chastity’. The nature of rape laws is elaborated by Duque, who outlines four main elements of rape that characterised ancient rape laws, and which remain embedded in some current laws and practices worldwide. First, women were officially recognised as property of either their father or their husband—hence rape was not punished in certain circumstances, such as when committed by the ‘owner’. Second, the idea of virginity or honour as the only value that women held in society, which led to the requirement of chastity in prosecuting rape. Third, the idea that a woman’s virginity embodies the family’s honour has justified practices such as forced marriage between the survivor and her rapist, and the ostracization of raped women. Fourth, male rape was not recognised as an offence—a consequence of viewing rape as a crime against the property of men.

Rape as a ‘most serious’ crime

Under international human rights law, the application of the death penalty is restricted only to the ‘most serious crimes’ (Article 6, ICCPR).  This has been restrictively interpreted to mean those crimes where ‘there was an intention to kill which resulted in the loss of life’. The imposition of capital punishment for rape has been justified on the basis of the patriarchal notion that rape is a ‘fate worse than death’ for the survivor. As Yung asserts, this rhetoric ‘has become an essential linchpin in supporting capital punishment for rape’: ‘When the crime is worse than murder and murder justifies the death penalty, then, of course, rape should be punishable by death’.

The logic is that a woman who is raped is ‘destroyed’—a woman who loses her ‘honour’ has no place in society. In a society which places primacy on a woman’s sexual purity, rape is the worst thing that can happen to a woman. Arya has noted that in the debates on the death penalty in the aftermath of the 2012 Nirbhaya case in India, a question propounded in audience polls organised by newspapers was: ‘What's the punishment for a man who takes away a woman's life, while she's still alive?’

Thus, according to Mehta, there is an ‘implicit patriarchy in equating rape with murder’: it ‘perpetuates the logic of rape survivors being the ‘living dead’, by justifying ‘death with death’’.

Capital punishment for rape is not a feminist demand

Feminists and women’s organisations are of the view that capital punishment for rape does not deter rape, nor does it protect the rights of the victim.  According to women’s and child rights activists in India,  it is ‘dangerous and counterproductive to perpetuate the myth that a higher sentence or the death sentence will serve the cause of victims’.  Among the key reasons propounded by feminists as to why the death penalty is not the answer to rape are the following. First, sentencing rapists to death and executing them only serve to distract the people from the real causes of sexual violence—the institutionalised gender-based biases that perpetuate violence committed against women. Krishnan, secretary of the All India Progressive Women’s Association stated during a Press Conference in 2020 that highly publicised executions of rape convicts, ‘far from deterring rape, actually deters our society and our Government from confronting and taking responsibility for rape culture’. According to her, an execution gives a false assurance that rape is a ‘rarest of the rare’ act committed by strangers, when in fact rapists are usually not strangers but men known to the victims. She added that ‘rape is a product of our patriarchal society, not an isolated rare instance’. Similarly, Psychiatrist Jaydip Sarkar argues that ‘blaming and punishing the perpetrator alone will not address the underlying belief systems, based in a patriarchal culture that gives rise to various myths that trigger, promote and sustain sexual assaults and rape on women’.

Second, killing rapists is not the appropriate response to address the needs of victims/survivors. Branham states that many victims/survivors ‘have needs that have nothing to do with achieving a sentence of death’. Tagusari, focusing on Japan, notes that ‘an approach that places a great emphasis on the punishment pushes aside, and in some cases even denies, the importance of recovery of victims and their need for support’. Prejean also remarks that ‘wounded, grieving families, after long years of waiting, can never be healed by watching as the government kills the perpetrator.A 2021 study by Equality Now and Dignity Alliance International (DAI) found that rape survivors’ idea of justice does not include the death penalty. Their idea of justice means speedy trials, certainty of conviction, sensitivity and accountability from the criminal justice system, and change in attitudes of society and community. According to the study, the survivors’ desire for speedy trials ‘is not necessarily limited to successful convictions, but it is linked to reclaiming their dignity and honour within a society where a “raped woman” is looked down upon and further victimised by different actors’.

In sum, capital punishment for rape is not grounded on a recognition of women’s rights. In fact, as scholars Zimring and Johnson assert, ‘a death penalty for rape is a giant step backwards for women’s rights’. In an amicus brief for the American Civil Liberties Union and others—where Justice Ruth Bader Ginsburg was then the lead attorney—in the case of Coker v. Georgia, it was argued that the death penalty for rape ‘ should be rejected as a vestige of an ancient, patriarchal system in which women were viewed both as the property of men and as entitled to a crippling “chivalric protection”’.

To truly advance women’s rights, responses to rape should aim at dismantling the institutions that perpetuate sexual violence on women. Further, instead of focusing on executing convicted rapists, the State should devote more resources to provide better support for survivors, through interventions that  prioritise ‘the rights, needs, and wishes of the survivor’—and that place her rights and dignity at the centre.

8 March is International Women’s Day.

* To mark International Women’s Day 2023, join Eleos Justice and the Cornell Center on the Death Penalty Worldwide for the launch of a new report on the state-sanctioned killing of women on 30 March 2023 at 5:00-6:00 PM AEDT. Click here for more details and to register.

________________________________________________________________________________________________________

Leavides Domingo-Cabarrubias is a Fellow at Eleos Justice and a PhD Candidate at Monash Faculty of Law.