Rape And The Lynch Mob

By Asgar Hussein and Niranjala Ariyawansha

Over the past several weeks, there have been howls by the public to reactivate the gallows. This, they say, is the ultimate solution for rape and sexual abuse of children.
The reasoning goes something like this – there are too many dangerous sex maniacs in our midst, so let’s hang them and build a safe and moral society.
We have experienced this kind of thinking before. It is a mix of ignorance, irrationality and morbid perversity. It is a national disease, and the symptoms are very clear – emotions overcome reason, and rhetoric clouds the real issues. It is the kind of thinking that fed the ethnic violence, and more recently, caused the Grease Yaka phenomenon.
Now we hear the shrill cries of the advocates of death. Their mentality is that of the lynch mob – no reason and rationality, only a perverse hatred. In fact, they have not even grasped the shadow of the problem.

Grave consequences

So what are the consequences of imposing the death penalty? Well, there are many, and they are very serious. For example, the judicial process is severely flawed, and there is much potential for miscarriages of justice to occur. There is also the fact that executions have a dehumanizing effect on society.
However, as the advocates of death seem to show such concern for the victims of rape and sexual abuse, let us first look in that direction. Will the gallows really help the victims in any way? The answer is clearly no. In fact, it will have some very grave consequences.
Firstly, hanging people for rape and sexual assaults on children could lead to the murder of victims. Consider this very frightening scenario – the rapist, having committed the act, and fearful the victim will talk if allowed to live, and aware that it will make no difference anyway if he is caught (the penalty for rape and murder being the same), decides to kill her. He may eventually be brought to justice, but is it worth the cost of an innocent child or woman losing her life?
An American was once quoted in Time magazine as saying about the issue – “If you give the same sentence for molesting a little girl as for molesting and killing a little girl, it seems an incentive to go ahead and kill her.”

Decline in convictions

There are other dangers in imposing the death penalty. It is very likely that the number of convictions for rape and child abuse will decline. After all, when a man’s life is at stake, judges and juries will be far more cautious and reluctant to convict. A hanging is irreversible, and few people would want blood on their conscience if they had even an atom of doubt about his guilt.
Even in cases where guilt is absolutely certain, they may feel it unjust to hang a man for an offence (however abhorrent) that did not involve the death of the victim.
As it is, prosecutors have a hard time getting guilty verdicts on sexual crimes. Such cases are often difficult to prove. Very harsh penalties only raise the burden of proof, and the already low conviction rate will come down further. In cases involving adult women where the accused claims sexual consent, the situation will be far worse. As a result, offenders have a greater chance of being acquitted and walking free.
We must also remember that in Sri Lanka, many of the sexual assaults against children are committed by family members. If the sentence is very severe, it will discourage victims or their relatives from reporting the crime. Even if it is reported, they will be reluctant to testify and cooperate with the authorities during trial. Here again, the offender is likely to go free. By contrast, a fair sentence of prolonged imprisonment will increase the chances of justice being served.
Now what would happen if a victim pursues the case and succeeds in sending the offender to the gallows?  Let us suppose that she is a teenager raped by her uncle. In such cases, it won’t be long after execution before she experiences the hostility of the society around her. Accusatory fingers will always be pointed – she will be seen as one responsible for a man’s death. There will be talk about the Buddhist ideals of mercy and compassion. Anyone who thinks otherwise has no understanding of human nature.
However, by sentencing the offender to a long and rigorous prison term, there will be a truer justice. He will suffer in a dark and gloomy cell while public sympathy remains with the victim.

The deterrence factor

The advocates of death often argue that executions will make sex criminals think twice before committing their acts. However, there is no evidence of such a deterrent effect. What may really deter criminals is not the rare chance of being executed, but rather the certainty that they will be apprehended, prosecuted, convicted and sentenced to the full force of the law.
If a rapist is deterred by the risk of execution, then will he not be equally deterred by the possibility of having to spend 20 years in wretched conditions at Welikada or Bogambara? Inside a cell, can he even have sex with a prostitute and satisfy his urges?
The point is, when criminals commit offences, they do so assuming they will get away. They rarely ponder over such things as the difference between the death penalty and prolonged imprisonment.
One of the most despicable things about the lynch mob is their utter lack of a sense of justice. They don’t even seem to understand that crime has its degrees. Going by their comments in the press, they demand the death penalty for all sexual offences. But is child abuse involving the fondling of genitals as grave a crime as child rape? Is child rape, though a heinous offense, as abominable as raping a child and then brutally murdering her? Punishment must be in proportion to the crime. Equating these offences only dilutes the gravity of the most terrible crimes and makes a mockery of the principles of justice.
Most countries have now abolished the death penalty in law or practice. However, many still retain it for murder, though fewer do so for rape as it is considered grossly disproportionate to the offence.

Miscarriages of justice

There were strong grounds to abolish the death penalty in most states. Among these was the fact that the process is severely flawed, and innocent people have been executed due to miscarriages of justice.
It is easy to believe that innocent people do not get convicted. After all, does not the law require that a crime be proved beyond reasonable doubt? However, in practice things are far different from the ideal. A miscarriage of justice could occur due to many reasons –the prejudices of judges and juries; perjury; suppression of vital evidence; framing by the police; fabricated evidence; seeking and interpreting evidence according to a preconceived theory disregarding other possible views; and of course manipulation through political interference.
If the death penalty is imposed, then it is final and irrevocable. Nothing can be done to bring the dead man back to life. However, if a person is imprisoned and new evidence later comes to light proving his innocence or casting serious doubts about his guilt, then he can be released and compensated. Imprisoning a man due to wrongful conviction is terrible, but it is far better than putting him to death.
The line between guilt and innocence is sometimes very blurred. In many criminal trials, things are extremely complicated and it becomes very hard to reach a conclusion with absolute certainty. A reading of some of Sri Lanka’s celebrated criminal cases – including the Sathasivam Case and the Pauline de Croos Case – will make this abundantly clear.
It can be baffling when the scales of evidence are not clearly weighed down one way or the other. Even medical opinion can be divided. How then does one rationally assess the odds and probabilities of guilt? When the prescribed sentence is death, it is frightening that a life should hang so precariously on some arbitrary factors that will ultimately tilt the scales of justice.

Arbitrary and capricious

Indeed, the whole process is subject to the flaws of human nature. The imposition of the death penalty has been described as arbitrary and capricious. So much depends on the decisions of judges, juries and prosecutors. Even the American experience shows how the law is applied unevenly, and how the death penalty is largely inflicted upon the poor, the uneducated and the mentally ill.
The rich and powerful rarely suffer the consequences. After all, being able to afford a clever and eminent lawyer can make the difference between conviction and acquittal. By contrast, the poor cannot even afford to hire a mediocre lawyer.
Here it is worth quoting that Athenian statesman Solon, who said over 2,500 years ago, “Laws are like spiders webs: if some poor weak creature come up against them, it is caught; but a bigger one can break through and get away.”
Over the years, countless innocent people have been executed around the world. The situation in the US states that impose the death penalty is deplorable. A recent study proved that innocent people have been wrongfully convicted due to such reasons as perjury and misconduct by prosecutors.
It is interesting to note that it is the US states in the south – which have a long and shameful history of racism -  that carry out executions without any remorse. Many of the condemned are blacks. Like the apartheid regime of South Africa, these states earlier executed negroes for allegedly raping white women. There were grave injustices, and many innocents suffered. Even later, they would have executed people for rape had not the US Supreme Court deemed it unconstitutional.
However, unjust penalties are still imposed for murder. Texas, for example, has earned much criticism for executing mentally handicapped people.
Despite such severe sentences, these states have high murder rates. There are obviously deep flaws in their societies, but instead of any soul-searching, they prefer to deceive themselves with the illusory benefits of the death penalty and perpetuate the cycle of violence.

Social repercussions

Now let us get back to the Sri Lankan lynch mob. There are those who argue that by imposing the death penalty, we will safeguard our cultural values and inculcate respect for women. This is such an absurd notion that one can only sneer.
Of course, reactivating the gallows will have some profound social implications. But they will only erode our humanity.
We must ask ourselves whether we can further brutalize a society that has seen so much violence and hatred. While rape and child abuse are despicable offences, can we truly promote civilized behaviour by resorting to barbarism? Can we really distort the minds of our young with state-sanctioned killings?
We often hear people say things like, “We must have punishments like in Saudi Arabia. These criminals should be publicly beheaded.” When they express such views, are they not aware that countries that have the harshest laws are also the most perverse? Why do they have so many people who are cruel and intolerant, so prejudiced against others, so hypocritical and repressive to women? In the Middle East, have women not been killed for having sexual relationships? It is foolish to think that harsh laws actually protect women when they are the manifestation of a patriarchal thinking that places an unhealthy emphasis on a woman’s “virtue” and seeks to repress female freedom.
Severe punishments are a reflection of unenlightened societies. Rather than resolving the existing social ills, they come back full circle and corrupt from within.
Here we must quote the 18th century Italian jurist Cesare Beccaria, who stated in his highly influential treatise On Crimes and Punishment (1764): “The death penalty cannot be useful, because of the example of barbarity it gives men.”
If people are actually executed in Sri Lanka for sexual crimes, it will have a hardening effect. It will transform our attitudes and our outlook of things. Ours is still a patriarchal society, and there will be a tendency to blame women for everything from the way they dress to their behaviour. They will even be seen as temptresses who lead men to their destruction.
The advocates of death should ask themselves what a politicized society like ours can achieve from the death penalty. We can always hang one or two drug traffickers, but what’s the point when the big-time players continue unhindered with political patronage? By demanding the noose, are we not deceiving ourselves and masking our inability to confront the real problems?
Sometime back, a survey in Sri Lanka showed that the public considered the police and the judiciary to be the most corrupt institutions in the country.
This is hardly surprising. However, what is shocking is this – how then can the public trust these institutions in a very serious matter of life and death?
There are many things in life that must be based on reason and rationality. The lynch mob would do well to remember that its thinking is myopic and counterproductive, and only hinders the cause of justice.