This article seeks to establish that the provision of capital punishment in rape statutes, as well as the guiding rhetoric behind it, is antithetical to the interests of the rape survivors, as it premised on the idea of rape as a ‘fate worse than death’. The equation of rape with death is purely linguistic, however, it functions as justification for a societal order that ostracizes rape victims and renders them ‘socially dead’. Further, in this context, models of ‘ideal victims’ are created, as defined through Victorian notions of chastity, who deserves legal justice (and whose rape is deserving of capital punishment), while relegating the other survivors and their narratives to the margins. The marital rape exemption suggests that it is not the violence, but rather the sexual nature of the crime which is often highlighted and leads to the creation of categories of ‘legitimate’ rape. This legitimacy not only devalues the victim, but also creates hierarchies which are often contingent upon the sexual history of the victim. It is further argued that such a penalty for a non-homicide crime is contrary to all theories of deterrence and that the fundamental message that is advocated through such a provision is primarily to the victim rather than the perpetrator as it normalizes the need for sexual surveillance and moral policing of the body of the woman and lays a greater burden of proof on her conduct. I.INTRODUCTION
‘It is a fate worse than death’.
‘It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.’ Sir Matthew Hale, 1676
The recent gangrape of a 23-year-old victim in Delhi and the widespread protests that followed garnered much attention. So much so that the outrage acted as the immediate framework for the introduction of The Criminal Law (Amendment) Bill, 2012 in the Lok Sabha on 4 December 2012 by the Minister of Home Affairs, Mr. Sushil Kumar Shinde. This Bill seeks to amend the Indian Penal Code, 1860, the Code of Criminal Procedures, 1973, as well as the Evidence Act, 1872, specifically in the matter of sexual offences. Following this Bill, the Criminal Law (Amendment) Ordinance, 2013, was promulgated by the President of India, Pranab Mukherjee, on 3 February 2013. This Ordinance has been criticized on the grounds that it ignores some of the major provisions envisaged by the Justice Verma committee , especially in the matter of marital rape and the amendment of the Armed Forces (Special Powers) Act. However, External Affairs Minister, Salman Khurshid, has stated that the ordinance serves the sole purpose of addressing the sense of urgency within the country in the interim period before the Bill is formally brought before the Parliament. One of the most contentious legal issues to have arisen from the case in question is in relation to the repeated call for the provision of death penalty in anti-rape laws. This call, while rejected by the Justice Verma Committee, on grounds that ‘it was a unanimous suggestion of even women leaders who have been fighting for the cause for decades. The current trend against the death penalty’ found partial validation in Section 8, Criminal Law (Amendment) Ordinance, 2013, which under Section 376A has included a maximum provision of ‘death’ as punishment for instances of rape which result in death or the persistent vegetative state of the victim. Coming as it did soon after the execution of Ajmal Kasab and just before the execution of Afzal Guru, respectively the third and fourth executions in India since 1995, this demand has also further fuelled the debate concerning the sustainability of the death penalty in a democratic state, especially in an era...