A Kashmiri demonstrator holds a placard during a protest calling for justice after the recent rape and murder of an eight-year-old girl in the Indian state of Jammu and Kashmir, in Srinagar on April 16, 2018. Photo: AFP
A Kashmiri demonstrator holds a placard during a protest calling for justice after the recent rape and murder of an eight-year-old girl in the Indian state of Jammu and Kashmir, in Srinagar on April 16, 2018. Photo: AFP

Each time we in India are faced with a well-publicized rape case, we invariably indulge in making the same set of questionable demands that have not proved to be capable of increasing police or prosecutorial efficiency, or make it easier to hold accountable those who commit rape.

We demand the death penalty as a punishment for rape, particularly if the victim happens to be a minor. This happens despite the demand reeking of nothing but retributive justice in a patriarchal society, which imagines that any rape necessarily destroys women.

We ask for the death penalty despite there being no convincing evidence that this punishment would deter rapists, or that it would not encourage them to kill their targets in a bid to silence them – the dead, after all, tell no tales and do not testify. Also, with the death penalty on the table, courts would be even more cautious about convicting accused rapists given the irreversibility of the punishment, thus lowering the already low conviction rates.

Our second demand invariably involves wanting the freedom to reveal the identities of those raped in violation of the law that protects victim identities, along with the freedom to narrate graphic details of the crime. This, we are often told, is necessary to awaken our conscience. We are also informed that the victim-identity protection law deserves to be flouted as it’s rooted in the shame of having been raped. While the rationale underlying the law may well be problematic, it would appear to be just as problematic, if not more so, to strip victims of the right to keep their identities private if they so choose.

Competent adults who have been raped may, of course, decide to reveal their own identities, and there exist processes through which the identities of others too may be revealed. The law merely keeps the choice from being made by random third parties who would, if they were to make independent decisions in this regard, almost certainly violate the agency of those who have survived rape. This violation, though different in form, would echo that perpetrated by rapists, who also strip their targets of agency and choice.

This is both a matter of law and a question of ethics. Not all victims of rape have their identities revealed, and pictures of themselves disseminated – often in disarray. Such treatment seems to be reserved for women who are marginalized.

We simply cannot claim that we must reveal victim identities to try to ensure rapists are held accountable by the law. After all, after the 2012 Delhi rape case, we managed not only to see the perpetrators be convicted but also to have legislative change be enacted, without making a concerted effort to name the victim. Pseudonyms were used instead – a workable “solution” but not an ideal one, given that the pseudonyms used invoked bravery and fearlessness.

Such pseudonyms were susceptible to being interpreted as saying that those who are raped should be associated with those qualities that they, entirely legitimately, may not be. Nonetheless, it was a workaround that protected the identity of the victim in this case.

Sex offender registries

Our third demand upon being faced with reports of rape is invariably to create a registry of sex offenders, stripping those who commit rape of their privacy, instead of those who are raped. On the face of it, this isn’t an entirely illegitimate demand. However, it is problematic in its own right, not least because it does not appear to work as its proponents hope it will.

Studies over the years, mainly US-centric, have indicated that such registries do not increase public safety. They constitute regressive government control that could lead to the social death of those listed, possibly giving them little reason not to engage in the crime again. And so, they may perhaps increase recidivism even if they deter unregistered potential offenders through fear of being listed.

Even if a model that allowed the disclosure of offender identities on a limited and confidential basis were followed, it’s unlikely that it would be workable in India given our lack of privacy controls. There are also concerns about who would be listed in a registry, how one would keep the marginalized from being disproportionately targeted – a direct consequence of their being the least likely to conjure legal defenses that would keep them from being convicted – and how one would contain the potential for vigilante justice, which could take the form of lynching the listed.

Additionally, sex-offender registries could create a false sense of safety if they were touted as warning systems. After all, sexual violence is not often reported and it is inevitable that registries would list only a fraction of offenders: those whose crimes were not only reported but also, presumably, proved.

These demands that we make would not be particularly difficult to implement if we chose to. But they would not necessarily lead to enhanced safety for women. To decrease crime against women we need the law to be enforced as a matter of course. This means focusing on improving the processes that could lead to the increased conviction of rapists instead.

Nandita Saikia is a New Delhi-based lawyer.