Capital Punishment in the United States Explained

In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
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India: Can the death penalty check child sex abuse?

The Protection of Children from Sexual Offences Act (POCSO) was brought in as late as 2012. As the name suggests, the statute lays down laws exclusively for protection of children. It defines penetrative sexual assault and sexual assault against children, and also provides for definition and punishment for sexual harassment of children. As per the law, sexual assault of a child is punished with maximum of five years, penetrative sexual assault is punished with up to 10 years, and sexually harassing a child lands one behind bars for three years.

Experts, however say that POSCO in its five years of existence, has failed to act as a deterrent for crimes against children.

Among several measures, lawyers, activists and the citizens have been demanding capital punishment for those convicted of sexually assaulting children. Advocating this strongly is Delhi Commission for Women (DCW) chairperson Swati Maliwal, who has been urging the government to introduce a time-bound penalty for convicts of child sexual abuse.

“A 11-month-old baby was recently operated after being raped. What is the magic stick to change the mindset of individuals who commit such crimes? It’s fear. We need immediate relief. Within six months of the crime committed, award them with death penalty,” Maliwal told indianexpress.com.

It is in common knowledge that child sexual abuse happens more than the reported cases. Maliwal says “three rapes happen everyday in the capital”. “There were 31,446 FIRs by women and children between 2012 and 2014.”

The provision for capital punishment exists in India only in the “rarest of rare cases” as laid down by the Supreme Court in 1980 and in Machhi Singh v. State of Punjab, 1983, section 303 (punishment for murder by a convict sentenced for life imprisonment was punishable by death) of the Indian Penal Code was struck down by the top court.

Although no law any longer under the Indian criminal statutes exclusively states a death penalty, many provisions under the criminal law provide for capital punishment along with other forms of punishment for crimes like waging a war against the government, murder, attempt to murder, abetment of suicide of a child or insane person, dacoity with murder and kidnapping for ransom.

Unlike Maliwal’s demand for capital punishment, there are many who are instead in favour of strengthening of the legal system. Some also believe capital punishment should be awarded to repeat offenders or as per the law laid down in 1980.

Rejecting death penalty as the only deterrent, Kaushik Gupta, a lawyer in Kolkata High Court, said: “Punishment is itself a deterrent. Our focus should be on prevention.”

For the past several years, activists have been requesting for exclusive/special courts for children. A well-known fact is that Indian courts have massive backlog of cases that include child sexual abuse cases as well.

Lawyer and activist at Bachpan Bachao Andolan Bhuwan Ribhu explained the urgent need of exclusive courts by providing clarity with numbers, “It will take 55 years to clean the backlog in Gujarat and 47 years in Kerala,” says Ribhu.

He underlined the need for child-friendly police stations and better medical facilities for child victims, and criticised the lack of structural and infrastructural establishments like a forensic laboratory. “It takes three years to get a forensic report of a victim,” adds Ribhu.

Stressing on reasons of unreported cases, former IPS officer Dr P M Nair says the interiors of India like tribal villages in Chhattisgarh have poor accessibility to police and law enforcement agencies and there are many such places in India where mostly the cases are unreported.

Another reason for such unreported cases is the lengthy legal course in India. “It’s a vicious circle. Citizens rights have taken a backseat,” says Ribhu. Nair says after filing an FIR, the process of investigation by the police needs to be refined. Trained and skilled investigative officers and prosecutors are required for a case to move forward swiftly. He adds: “Listen to the victim. Invest in him/her.”

Talking about the underlying problem of Indian society, Gupta says, “There’s no understanding about sexuality in our country. No conversations about this takes place with children and adolescents. There has to be a dialogue at primary and secondary education level.”

Source: The Indian Express, Sonakshi Awasthi, November 14, 2017

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde


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