Where does the world stand on capital punishment for rapists? What has been Nepal’s position? Should Nepal adopt death penalty for rapists?
Forty-two cases of rape were reported in 45 days after Nirmala Panta’s rape and murder. In Kathmandu, demands for stringent laws and punishment for rapists are being raised. These demands need to be carefully analyzed against our legal system and history.
We are stuck with a unique mixed legal system, traits of common law and civil law and our own Hindu jurisprudence. Moreover, we are stuck with century-old legal system literally imported from the British Raj. However, with the advent of the people’s constitution, the new civil and criminal codes in place and international instruments, it is essential to review our history, laws, their implications and the complex traditional legal mindset.
Now demand for capital punishment for rapists has been formally raised in the parliament as well. But where does world stand on capital punishment? Where does Nepal stand on this? Should Nepal go for the harshest punishment possible?
Death penalty in Nepal
It’s not that we never had capital punishment at any point in our legal history. In 1931 Bhim Shamsher consulted with jurists to suspend death penalty and paved way for abolition. In 1946, capital punishment was abolished and removed from Muluki Ain (Civil Code) by Padma Shamsher although death penalty was retained for crimes of treason, assault on royal family, arms against the government and conspiracy against the nation’s independence.
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In 1962, Durganand Jha was executed and two more death sentences were rendered in 1979. In 1985, death penalty was further broadened for hijacking, kidnapping, toxic substance crimes, prolonged tortures, reckless use of weapons and misuse of secret information by service personnel. In 1985, terrorism was added to the crimes deserving death penalty and four people were sentenced to death. In 1990, Krishna Prasad Bhattarai announced abolition of death penalty and this was secured in Article 12 of constitution of 1991 as well, which clearly stated that there shall be no laws to allow capital punishment in Nepal. A 1997 Supreme Court decision declared death penalty null and void. In 1998, Nepal acceded to the second optional protocol of International Covenant on Civil and Political Rights (ICCPR) making abolition mandatory.
The Interim Constitution (2007) and new constitution have also affirmed abolition of death penalty permanently. Nepal has ratified all international instruments to this effect.
Rape is the most heinous crime, as heinous as terrorism. It is in increasing order with decreasing rate of convictions. The terrorized victims and their families suffer even more with impunity, prolonged judicial process and delayed justice. This is why many consider death penalty for a rapist as the avenue of access to justice for the victims.
Provisions elsewhere
Saudi Arabia, Japan, Iran, Pakistan, Cuba, Bangladesh and some states of America have death penalty for crimes of rape. Pakistan, Bangladesh and Afghanistan all hand out death penalty for rape. India sanctions death penalty for rape of a minor.
Today, death penalty for rapists exists in America, but not all states have the same provisions. In Florida, a person 18 years of age or older who commits sexual battery, or to commit sexual battery injures the sexual organs of a person less than 12 years of age, commits a capital felony—the punishment for which is either life imprisonment or death. In Mississippi, every person, 18 years or older than that, convicted of rape of a child under 14, upon conviction, is sentenced to death or imprisoned for life. In Tennessee, whoever is convicted of rape of any female under 12 suffers death by electrocution.
A research paper called “Rape and the Death Penalty—A Neglected Area of Deterrent Research” explores relationship between rates for forcible rape and imposition of death penalty. It mentions rape as an unpremeditated ‘crime of passion’ and that majority of rapes were planned and methods to avoid detection were in fact planning of the crime. The finding also suggested that only a small percentage of rapes were punished with death penalty. The research says that whenever we think capital punishment will deter rape we need to bear in mind that historically death penalty has seldom been invoked for rape and that 50 percent of offenders have been immune.
According to other researches when we invoke death to the rapist demands we need to consider if we are demanding retributive action where the victim and the family is seeking retribution for a heinous crime or if we are demanding a deterrent action to prevent such crimes from reoccurring.
India’s former Supreme Court judge Ashok Kumar Ganguly stresses that nowhere ever has capital punishment been helpful in preventing rape and believes it as a reason the world moved away from capital punishment. On the contrary, the former Delhi High Court judge RC Chopra insists that death is the only thing that a criminal is afraid of and that is why no other laws work.
Many others question how many offenders would allow their victims to survive when rape and murder have the same punishment. In Nepal, death penalty for rapist has become a subject of consideration because rape is occurring every single day and even as young as nine months old girls are being raped.
Thus the debate is right. We need to discuss at length and come to the right conclusion.
The author, an advocate, is involved in legal research
info@lexgiri.com.
