In Nepal, many times social activists, protestors, and citizens have demanded a legal provision for the death penalty in rape cases—especially in cases of child rape and other cruel, inhuman, and heinous crimes. After a horrific incident in Jitpur Simara, where a three-year-old girl was found dead and police confirmed she was sexually assaulted and killed, voices grew louder for amending Article 16(2) of the Constitution of Nepal to introduce capital punishment. Some have even made this their political agenda, while many others demand it as a deterrent to sexual offences. The horrific rape of a child unquestionably demands the strongest possible legal response, but the gravity of the offence should not lead Nepal to abandon its constitutional and human-rights commitment against capital punishment.
The death penalty is one of the oldest and most controversial forms of punishment in human history. In ancient times, it was used by civilizations such as Egypt, Greece, and Rome to punish serious crimes and maintain social order. Even today, several countries retain legal provisions for capital punishment. Yet before reaching any conclusion, a few critical questions must be discussed:
Does the Death Penalty Prevent Sexual Offences?
There is no convincing evidence that the death penalty prevents sexual violence more effectively than severe but non-capital punishment. Many studies conducted by human-rights researchers and institutions have found that crime rates have not decreased due to the application of capital punishment. If an offender is truly dangerous to society, they can be kept under long-term or life imprisonment. Many countries that once practiced capital punishment are now shifting toward non-capital alternatives. A major concern of the state should be crime prevention, not merely punishing offenders.
Death penalty for rapist?
A major theory in penology, the Deterrence Theory, argues that the threat of harsh punishment—including capital punishment—can discourage individuals from committing crimes. It assumes that if potential offenders know a serious crime may result in the death penalty, they may reconsider their actions. The theory emphasizes fear of severe consequences as a deterrent. Nevertheless, its practical effectiveness has been widely questioned. Criminal behavior is influenced by many factors, including impulsiveness, disregard for risks, and the belief that one is unlikely to be caught. A criminal is ready to commit any crime if he believes legal authorities may not catch him.
Can Wrongful Death Penalty Be Corrected?
The Equal Justice Initiative explains that “the death penalty system treats you better if you’re rich and guilty than if you’re poor and innocent,” noting that it is “mostly imposed on poor people who cannot afford to hire an effective lawyer.” Wrongful convictions have occurred not only in Nepal but also in countries such as the USA, Japan, and the UK. In sexual-offence cases, where evidence may involve identification, forensic analysis, medical reports, witness testimony, and procedural investigation, the possibility of human error cannot be eliminated. Before introducing capital punishment, the state must ask: can it guarantee that no innocent person will be convicted? A life sentence can be corrected if later found wrongful. An execution cannot.
Does the State Have the Right to Take Life?
The primary concern is this: if the State teaches society that killing is wrong, can it itself legitimately kill in the name of justice? Nepal is a signatory to many human-rights treaties. The right to life is inherent—it is not granted by the State. How then can the State take life due to its own failure to protect society from offenders? From a human-rights perspective, a civilized state cannot take the life of its own citizens. The criminal justice system is designed to provide justice, not to replicate the wrongful act of the offender. If killing is morally and legally wrong, the State should not endorse the same act under the name of punishment.
Objectives of punishment—deterrence, incapacitation, denunciation, and protection of society—can be achieved through life imprisonment without resorting to execution. If society can be protected without taking life, the death penalty becomes unnecessary. If the State derives legitimacy from its duty to protect the right to life, it should be extremely difficult to justify granting that same State unlimited power to intentionally take life.
Why Don’t We Question the State’s Failure to Provide Security?
Demanding punishment for offenders is essential for protecting society. But it is equally necessary to question the State’s failure to fulfill its duty to protect whenever such crimes occur. From the perspective of social contract theory, the relationship between citizens and the State is not merely one of obedience and punishment—it is one of reciprocal obligations. Citizens surrender a portion of their freedom and accept State authority in return for security, protection of life, and preservation of fundamental rights.
Therefore, when a heinous crime is committed against a child, society should not only ask whether the offender deserves death. It must also ask whether the State fulfilled its side of the social contract to protect its citizens. Where were law enforcement officials when the crime was committed? Why do such heinous crimes continue to occur due to failures in the State’s security mechanism? What new security measures have been introduced after previous incidents? If the State fails to provide adequate protection, prevention, and security, executing the offender cannot cure that failure.
Conclusion
The demand for the death penalty is understandable in the face of heinous crimes, but justice must rise above public anger. The State’s duty is to protect life, prevent crime, and ensure justice—not to take life. True justice requires accountability, effective protection, and punishment without abandoning humanity. The major concern is not only punishing offenders but also keeping society safe from them.
