"Rape and Capital Punishment"
Rape is not a sexual act out of lust. Rape is a felony offense meaning that it is among one of the most serious crimes, a person could ever commit. Victims of rape face a deep emotional crisis as it destroys their entire psychology. It is not just a crime against a person (victim) but also against society. According to Muluki Ain 2020, 12th amendment, “A person is liable for the offense of rape if he procures sexual intercourse with/without the consent of women under 16 and without the consent of women above 16, where it is further explained as:
- Consent obtained by fear, threat, undue influence, fraud, abducting may not be termed as consent.
- Consent obtained when one is not in consciousness may not be termed as consent.
- Even if there is slight penetration, then also it may be termed as rape.
Rape is when sexual intercourse (oral, vaginal, or anal) is non-consensual (not agreed upon), or a person forces another person to have sex against his or her will. Rape is in fact the most condemnable, barbaric, torturous, heinous, and unique crime. It is defined as unique in the sense that its definitions are ever changing and nature ever-changing, and both the perpetrator and victim do not seem to have any age limit.
Criminology
It cannot be explicitly stated who will be a rapist but it is clear that rape is not a sexual act out of lust; else, infants and children would never be victimized. Understanding the psychology and motivation of the rapist, it has most of the rape cases occur with the specific intent to cause severe mental, physical pain or suffering that is majorly derived from gender based hatred towards females or with the motive of revenge. Perpetrators view sexual assault as a form of expressing control, anger, aggression or sadism and they act with the specific intent of causing the victim severe physical and mental pain or suffering. Rapists often use sexual violence to demonstrate their strength, virility, and masculinity in society. These rapists don’t see women as human beings, but only as objects. They see sex as a bargain, as in their understanding women don't really want to avoid sex. Beech and colleagues (2006) interviewed 41 incarcerated rapists in the United Kingdom. The transcribed interviews were coded for the five different rape-supportive implicit theories identified by Polaschek and Ward (2002) in which 51% of these convicted rapists made comments describing women as sex objects, whose function is to be sexually available to men at all times. 44% expressed feelings of entitlement, assuming that, as a man, they could take whatever they wanted from the woman; 15% said that they were unable to control their sexual urges; and 9% indicated a generally hostile and distrustful view of women, which led them to behave toward women in a hostile way. Rapists usually normalized their actions by blaming the victim or situation for what happened and for what they had done.
Research has consistently shown a positive relationship between rape-supportive attitudes and sexual assault perpetration. Common rape supportive attitudes include the following:
- Women say “No” even when they mean “Yes.”
- "Most women say 'No' at first most of the time. A man has to persist to determine if she really means it."
- Women who dress provocatively, drink alcohol, or go someplace alone with a man are asking to be raped.
- Women can resist rape if they try.
- Women falsely accuse men of rape.
- The husband cannot rape his wife
Capital Punishment in Nepal and is it Solution?
Recently we have seen the general public demanding the death penalty for rapists both on social media and on mass displays, but what is the provision of the death penalty in Nepal? The death penalty was completely abolished in Nepal after the constitutional provision of 1990. The prevailing Constitution of Nepal (2015) under article 16 has guaranteed that all citizens have the right to live with dignity and has also prohibited any law to be made that prescribes the death penalty. Apart from this, Nepal is a signatory to the Second Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) which mandates the abolition of the death penalty.
Regardless of the international convention, a sovereign country is free to amend its laws and punishment guided by the law, a simple 2/3 majority in constitutional assembly can amend our constitutional arrangements regarding the death penalty. But in our country wherewith power and money justice is traded will this do any good to the general public? And the most important question to consider is, “Do we really want our government to kill for us?”
Furthermore, the practice of capital punishment is guided by the retributive principle of “an eye for an eye and a tooth for a tooth.” An analysis by the United Nations Commission on Human Rights concluded that “capital punishment does not deter crime to a greater extent in comparison to the threat and application of the supposedly lesser punishment of life imprisonment.” According to Amnesty International, “the death penalty violates the most fundamental human right—the right to life. It is the ultimate cruel, inhuman and degrading punishment carried out in the name of justice.” We need to understand the death penalty, irrespective of the nature of the crime, characteristics of the offender, or the method we use to prosecute, is an inhumane act. The death penalty is never the answer. Justice through revenge isn’t justice in the most real sense. Injustice to one cannot bring justice to another. There is no credible evidence to suggest that death penalties reduce crime rates more effectively than supposedly lesser punishment of life imprisonment.
Way Forward
Our recent advocacy is limited to the end result with the rapist, but as global statistics show, with life imprisonment and the death penalty the crime rates do not deviate vastly. What we really need to discuss is about ways to reduce the crime rates. We need to have a common ground of understanding that the prevalence of current crime rates is because of predisposing, enabling, and reinforcing factors within the society we live in, crime is the byproduct of our social gap and disparities in our understanding and rational thinking. The people who need to be educated about rape are society and us. We need to learn that sex isn't a zero-sum game, it's capture-the-flag, it doesn’t only mean contact of genitals in sex emotions are equally important. It is something that engages a person in share with another person and, if the other person isn't sharing in the sexual act, for whatsoever reason, at whatever moment, then it is not sex. We are in need to clarify the mist surrounding sex and sex education, only when society relearns morality and its fundamental understanding surrounding sex, sexuality then we can expect the incidence of rape cases to decline.