Deterrence and Heinous Crimes Against Women

Why the theory does not deliver here

Apply the four conditions from [The Deterrent Theory].

Knowledge of the penalty. Satisfied. These amendments were the most widely reported changes to Indian criminal law in a generation.

Belief in detection. Not satisfied, and this is the whole of the answer. Sexual offences are among the most under-reported of all offences. The offender's realistic estimate of being reported, investigated, charged, tried and convicted is low, and raising the penalty does not change it.

A calculating offender. Frequently not satisfied. A large proportion of these offences are committed by persons known to the victim, within a family or a household, in circumstances in which the offender is relying on the relationship rather than calculating a risk.

An available alternative. Not applicable in the ordinary way, but the point that matters is that these are not offences of need, so the model of a calculated cost and gain does not fit them at all.

And there is a specific objection: severity can reduce reporting and reduce convictions

Three consequences of a very heavy penalty, and each has been argued in India.

It reduces reporting where the offender is a family member. A complainant who knows that a report may end in the execution of a relative, and on whom the family will bring pressure, is less likely to report.

It raises the risk to the victim's life. Where the punishment for rape causing death is the same as for rape, the offender who has committed the first has no additional penalty to fear from the second, and has a strong reason to eliminate the only witness. That is the standing objection to providing death for rape simpliciter, and it is why the Sanhita reserves death for rape causing death, for very young victims and for repeat offenders rather than for rape at large.

It reduces conviction rates. Where a mandatory minimum is very high, courts confronted with a case at the margin have been observed to acquit rather than to impose a sentence they regard as disproportionate. A penalty so heavy that it is not applied deters nobody.

What the evidence and the official reviews say

Reported figures for these offences have not fallen since 2013, and the recorded incidence of the most serious of them has risen. Reported crime is not crime, and part of any rise is increased reporting, which is a good thing rather than a bad one. But the deterrent claim was that the offences would fall, and they have not.

The Justice Verma Committee, whose report in January 2013 preceded the 2013 Act, considered the demand for the death penalty for rape and did not recommend it. Its reasoning was that the certainty of punishment rather than its severity is what deters, that the death penalty would be a regressive step, and that the failures were in investigation, in the treatment of complainants and in the trial process rather than in the sentence.

That is the strongest single citation available on this question, because it is an official Indian body considering exactly the proposal that was subsequently enacted and rejecting it for exactly the reason this chapter gives.

What would work instead

An answer that only criticises has not finished. Four measures follow from the analysis.

Raise the certainty of detection and conviction. Investigation capacity, forensic capacity, and time limits on investigation and trial. The Bharatiya Nagarik Suraksha Sanhita 2023 now imposes several such time limits.

Reduce the cost of reporting. Protection of the complainant's identity, support during the trial, and the treatment of victims provision in section 397 of the Bharatiya Nagarik Suraksha Sanhita 2023.

Compensate. Sections 395 and 396, and the fine payable to the victim which sections 65, 66 and 70 of the Sanhita expressly require.

Address the setting. The offences are overwhelmingly committed by persons known to the victim, so measures directed at strangers address a small part of the problem.

A worked example

Two offenders, and the question is what deterrence can be expected of each.

Vikram commits an offence against a woman in a public place, in circumstances where he is very likely to be identified, and he does so in the belief that no complaint will be made. Raising his maximum sentence from ten years to twenty affects him not at all, because he did not expect to be sentenced. What would affect him is the probability of a complaint being recorded, investigated and tried, which is a matter of policing and of the trial, not of the punishment.

Suresh commits an offence within a household, where the victim is dependent on him and the offence is unlikely to be reported for years. The same reasoning applies with more force: the certainty of detection is close to zero, so the severity of the sentence is close to irrelevant to his decision.

Now apply the theory. Deterrence claims that punishment prevents offending by making the cost exceed the gain, and it depends on three things: severity, certainty and celerity. Indian legislative responses to offences against women have raised severity, which is the variable the legislature controls directly. Certainty and celerity depend on reporting, investigation and the speed of trial, which it does not.

The conclusion to write. Increasing severity is a real expression of society's judgment about the gravity of these offences, and on the retributive account that is a sufficient justification. As a deterrent it is the weakest of the three levers, and an answer that says so, and identifies certainty of detection as the strong one, is arguing rather than asserting.

Quick revision

• MU's question is about the relevance of deterrence to this class of offence, not about the theories at large.
• The law: sections 64, 65, 66, 70 and 71 of the Bharatiya Nyaya Sanhita 2023, carrying forward the Criminal Law (Amendment) Acts of 2013 and 2018. Mandatory minimums, life meaning natural life, and death in four provisions.
• The conditions deterrence needs are not satisfied: detection is believed unlikely, the offender is often not calculating, and the offender is usually known to the victim.
• Three specific objections to extreme severity: it reduces reporting within families, it gives the offender a reason to kill the witness, and it can reduce conviction rates.
• The Justice Verma Committee, reporting in January 2013, considered and rejected the death penalty for rape, holding that certainty rather than severity deters.
• What would work: certainty of detection and conviction, reducing the cost of reporting, compensation, and measures directed at the settings in which the offences actually occur.

Test yourself

1. Set out the punishments the Bharatiya Nyaya Sanhita 2023 provides for the gravest sexual offences. Section 64, rape: rigorous imprisonment not less than ten years extending to imprisonment for life, and fine. Section 65(1), a victim under sixteen: not less than twenty years extending to imprisonment for the remainder of natural life. Section 65(2), a victim under twelve: the same, or death. Section 66, rape causing death or a persistent vegetative state: not less than twenty years extending to natural life imprisonment, or death. Section 70(1), gang rape: not less than twenty years extending to natural life imprisonment, with a fine payable to the victim. Section 70(2), gang rape of a victim under eighteen: natural life imprisonment and fine, or death. Section 71, a repeat offender: natural life imprisonment, or death.

2. Why does the deterrent theory not deliver in this class of case? Because the conditions it requires are absent. The offender's belief in the probability of detection is low, since these offences are heavily under-reported; a large proportion are committed by persons known to the victim, within relationships where the offender relies on the relationship rather than calculating a risk; and the offences are not the product of the cost and gain reasoning the model assumes.

3. Give the argument that a death penalty for rape may endanger the victim. If rape and rape causing death attract the same maximum penalty, an offender who has committed the first faces no additional penalty for the second and has a strong incentive to eliminate the only witness. That is why the Sanhita provides death for rape causing death, for the youngest victims and for repeat offenders rather than for rape at large.

4. What did the Justice Verma Committee recommend on this question, and why? Reporting in January 2013, it declined to recommend the death penalty for rape. It reasoned that certainty rather than severity of punishment is what deters, that introducing the death penalty would be a regressive step, and that the failures lay in investigation, in the treatment of complainants and in the trial process rather than in the sentence.