In recent times, carceral feminism has gained traction in the form of the demand for ‘death penalty for rape, specifically rape of minors’. It advocates enhancing and increasing prison sentences for crimes involving gendered violence, and relies on the state mechanism of the police, prosecution and imprisonment to remediate rape, sexual abuse and domestic violence, among other crimes. This comes from a belief that harsher punishment leads to a decrease in such crimes.
This has been seen increasingly post the 2012 Delhi gang rape case, and other cases since, and states like Rajasthan and Madhya Pradesh have imposed the death penalty for child rapists. Statements from politicians in the two states reveal three interests that drive this move:
- The belief that harsher punishments act as a deterrent against such atrocities;
- The public demand for justice for victims, which is deemed possible only through legal provision for the death penalty.
- Abhorrence for the crime, which makes the perpetrator ‘deserving’ of the death penalty.
Carceral feminism has become a vehicle of punitive politics despite the lack of concrete proof of the effectiveness of harsher punishment on gender violence rates. Even the Justice J.S. Verma Committee, set up after Jyoti Singh's gang rape and murder in 2012, did not think adding the death penalty to rape cases was a way to make India safer for women.
The Rhetoric of Justice
Gender-based violence(GBV) at large occurs due to a strong imbalance of power and serious social structural problems. Allying with the criminal justice system doesn't stop sexual violence and acts as a momentary solution, aimed at achieving myopic goals, with a 'remove the criminal' rather than a 'remove the crime' approach. The punishment of abusers becomes a 'feminist priority', and rather than the prevention of these crimes. Since crime is seen as an offence upon the state, rather than the victim, there is no mechanism for any rehabilitation or support for the victim, be it counselling, financial aid, medical restitution or anything else.
Talking about the effectiveness of carceral policies, Deepika, Founder of Alternative Justice says, "Increasing jail terms and introducing the death penalty does not curb instances of sexual violence, but rather has many unintended consequences for both the survivor and the perpetrator. Yet, a significant portion of our sexual violence response is still deeply invested in the carceral process. Almost 90 percent of rapes are perpetrated by someone known to the survivor. Harsh laws and 'tough on crime' policies end up dissuading survivors from reporting sexual assault to the police. This approach does not take into account violence by the police and the law enforcement itself. Moreover, these policies harm social and racial minorities the most and the marginalised don’t have the luxury to litigate their way out of violence."
Who is seen as the criminal?
According to the National Crime Records Bureau Data 2017, 93.1 percent offenders in the reported rape cases are known to the victims. However, the narratives around GBV enforce the idea of rape being an anomaly, something committed by vicious strangers, therefore ignoring the vastly prevalent social structures that lead to GBV. Rape exists because rapists hold immense social power over their victims and enjoy impunity. Offenders are indoctrinated into a society which strengthens them to assert their ownership over women. Only when the broader structures become egalitarian will the space for power imbalance lessen. In a country where four rape cases are reported every hour, does a carceral approach address the structural and institutional conditions which lead to gender-based violence?
Not all rapists and victims are seen as equal
As per the Human Rights Watch, four Dalit women are raped every day, however dominant castes enjoy exemption from the police and law in most of these cases. Incidents of brutal sexual assault of Dalit women reported across the country show that carceral provisions do not act as a deterrent against these crimes. There have also been several cases of aggravated violence against victims by their upper caste rapists for seeking justice. Thus, even if the means for justice exist, do victims have the protection to fight for it in the face of a legal system that is controlled by dominant caste men?
There have been reports wherein Dalit-Bahujan-Adivasi women have only been countered with FIRs for reporting atrocities. The case of Bhanwari Devi shows the caste bias of the judiciary and it's inability to provide any redressal to lower caste women. The trial judge acquitted her rapist and stated " An upper-caste man could not have defiled himself by raping a lower-caste woman."
On the other hand, the Death Penalty India Report of 2016 found that a very large proportion of death row prisoners (over 75 percent) are extremely poor and belong to marginalised groups with barely any meaningful access to legal representation. Thus the weakest sections of society bear the burden of the death penalty. Targeted communities become both the target of incarceration and sexual violence.
What is seen as punishment-worthy?
Deterrence is a flawed principle in most circumstances. One, the offender is not likely to be accused due to fear of a violent response leading to aggravated assault. In cases where the assaulter is a family member, the case is less likely to be reported since the death penalty along with the social ostracisation is viewed to be too harsh a punishment. Two, even if they are accused, conviction rates are very low and work in the favour of powerful men.
In an incarceration framework, all cases become graded, the trauma of survivors compared against each other. Victims that do not suffer extreme cases of violence become undeserving of justice. It focuses on the individual and punitive rather than collective and redistributive, making justice subjective, therefore violating reformative theory, which is a base the structure of legal punishments in India.
The limited scope of the idea of incarceration for gender-based violence
As of now, GBV is only recognised against cisgender women, and all laws are framed around that. Transgender women face a disproportionate amount of violence from the police. There have been cases in the past year where various transgender women have been sexually assaulted by the police at police stations itself.
In most cases, the prison industrial complex has a dehumanising effect, and this prevents criminals from ever assimilating back into society. To repair harm and hold accountable in a meaningful way to prevent re-offence, our focus must shift to empowering victims and educating vulnerable groups. We should prioritise demands that can prevent sexual violence before it happens, assist survivors in leaving abusive environments, and remove the many barriers that keep women quiet.
Deepika adds that an alternative imagination of justice should be, "One that focuses on survivors healing from the trauma and holding perpetrators accountable without the use of punitive state punishment - not one that perpetuates cycles of abuse leaving survivors more vulnerable and the pursuit of justice more elusive. But then again, there is no single alternative. A Restorative Justice process can be one alternative which centres the needs of the survivors, focuses on repairing the harm done and views crime as a violation of people and relationships instead of a violation of the law. Most importantly, when we think of moving away from carceral processes, our imagination shouldn't end at the borders of prisons - but to think how such a carceral logic extends to our communities and manifests in our interpersonal relationship. Can we stop being punitive in our relationships? Because that's really where we learn that accountability can only be achieved through punishment. "
Image Credit: The Indian Express
Anureet Watta is an Intern at SheThePeople TV.