Why I oppose death for rapists
Flavia Agnes, legal scholar and women’s rights activist, on the Shakti Mills verdict


This ought to have been a moment of great jubilation for us at Majlis since we have been closely following up the two Shakti Mills gangrape cases and providing support to the survivors through out their ordeal, both inside and outside the court. It is through this confidence building measure and a soothing support from committed young lawyers and social workers that the victims could depose with composure and without contradictions and could withstand the rigorous cross-examination which combined aggression with derogatory comments.
The verdict on Friday, though expected, has left us with a bitter taste and a sense of betrayal. Not only is the sentence meted out to the young boys from impoverished background too harsh, but our fear is that it will set a bad precedent and serve to dilute the “rarest of rare” premise upon which a verdict of death penalty must hinge as per our criminal jurisprudence. While most countries are moving towards abolition of death penalty, this is a move in the reverse direction.
Even while demanding state accountability and prompt and stringent action, the women’s movement has stood unwaveringly against death penalty. Our position has always been “rape is not murder” and a woman who is raped is not a zinda laash. Even when committed by the accused more than once, rape cannot be termed as “rarest of rare”. If rape is equated with murder, more women will be killed after they are raped. Even worse, less number of women will report rape, particularly if it is committed by a near and dear one. Section 376E was meant for unrepentant repeat offenders who commit the same offence after being tried and convicted for it once earlier. By applying it inacasewherethetrialhasgoneonparallely and the sentence was pronounced within a few minutes of each other, the court has made a mockery of this provision. While we were present in court during the proceedings, as watching advocates for the two girls, today we are left with no choice but to speak out against the harshness of the punishment.
What also saddens us is that the manner in which the public prosecutor advanced his argument in support of death penalty. He used the most regressive and anti-women arguments –that a woman would rather lose her life than her chastity, that rape is a form of murder, it amounts to loss of prestige and honour and if a woman is deprived of prestige she has no life left. Further, thatitisanoffenceagainstthestateand the collective conscience of the society demands death penalty.
But the mighty and all powerful state and the collective conscience of the society have nothing to offer to the victims except sending to the gallows the young boys who committed the crime, while the girls are left for their own means to rebuild their lives.
Theonetermedas“telephoneoperator”, a school drop-out from the lower class, daughter of a struggling single mother, is trying hard to make ends meet and to cope with the mental scars and is living constantly under the fear of the intrusion of television cameras into her private life. The public prosecutor and the investigating agency have no time even to inform her of the verdict, yet the death penalty is demanded in her name. She and the photo-journalist, two stray souls connected through a strange occurrence, have reached out to each other in their desolation.
But the worst occurrence was when the defence asked to examine two impoverished women and display their poverty and misery to plead ‘mitigating circumstances’. Neither the judge, nor the prosecutor, nor the defence lawyers deemed it necessary to maintain the dignity of these women or maintainthedecorumandthesanctity of a court about to pronounce the harshest of punishment in the statute books.
The judge did not restrain reporters from crowding around the witness box and transforming the court into a freefor-all market place. Even while awarding death penalty, a court of justice and fairnesscannotlosesightofitsowndignity and sanctity and allow the court to turn into a media spectacle.

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