The Wrong Answer

Context:  The Shakti Bill introduced by the Maharashtra cabinet (enlarging the scope of non-homicidal rape) may need a rethink, given perverse consequences of such punitive responses.

Recent punitive responses for sexual offences

• Shakti Bill of Maharashtra: It includes death penalty, problematic standard of consent and allows decision-makers to presume consent from the conduct and circumstances surrounding the incident.
• Introduction of the death penalty for child rape in 2018.
• Disha Bill of Andhra Pradesh: Provides death penalty for the rape of adult women.

Problems associated with punitive responses for sexual offences: with reference to Shakti Bill of Maharashtra

• Ignores other important aspects: The focus is on sentencing and punishment and ignores the concerns related to stages of reporting, investigation and victim-support mechanisms. 
• Harsh penalties may reduce the rate of conviction: Judges and the police may refuse to register complaints, or acquit offenders in cases they do not consider as “serious” enough.
• Maximum punishment may remain only on paper: Minimum sentence was the norm, and the award of the maximum punishment was an exception. (if death penalty is mandated by law)
• May deter complainants from registering complaints: due to the introduction of capital punishment while the perpetrators are mostly known to the victims.
  • Crime data from the National Crime Records Bureau shows that in 94% of these cases, the perpetrators were known to the victims.
• Anti-women assertion: Bill moves away from affirmative consent in cases involving adult victims and offenders, rather “conduct of the parties” and the “circumstances surrounding it” is being presumed
• Trial is guided by misogynistic notions: where survivors are expected to necessarily resist the act, suffer injuries and appear visibly distressed. (creating the stereotype of an “ideal” victim.)
  • It also overlooks the fact that perpetrators are known to the survivors in nearly 94% of rapes, which often do not involve any brutal violence.

Conclusion:  Tackling crimes against women and children requires broader social reforms, sustained governance efforts and strengthening investigative and reporting mechanisms.