The new Bharatiya Nyaya Sanhita, 2023 prescribes the punishment for causing death of a victim of rape:
“66. Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 64 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.”
And while the punitive approach of the new BNS, 2023 closely matches the punishments prescribed by the Indian Penal Code, 1860, which had earlier prescribed that the perpetrator “shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.” (S. 376A, IPC, 1860).
Deterrence and Retribution:
But the central question remains about the effectiveness of these penal laws in deterrence of future offences of similar nature.
For instance, from a comparative historical perspective: “The Code of Hammurabi, one of the oldest legal codes, exemplifies the early application of retributive principles. It advocated for equal retribution, such as shattering the limbs of offenders who caused harm to others. Cesare Beccaria, an Italian criminologist, contributed significantly to the retributive theory, focusing on the concept of revenge as a form of justice.” (LawNotes, 2024).
According to Italian criminologist and jurist: Cesare Bonesana di Beccaria in his book entitled: On Crimes and Punishments (1986) published by Hackett Publishing on 1st Jan, 1986:
“Beccaria's summary statement on crimes and punishments is that 'In order that any punishment should not be an act of violence committed by one person or many against a private citizen, it is essential that it should be public, prompt, necessary, the minimum possible under the given circumstances, proportionate to the crimes, and established by law.' In Beccaria's view, the purpose of punishment is to deter the offender from committing the crime again and to discourage others from ever committing the crime.” (On Crimes and Punishments | Office of Justice Programs, 2024).
Castration of Rape Offenders:
Castration, particularly chemical castration, has been considered and implemented as a punishment for rape in several countries, often framed as a deterrent.
United States of America:
● “Eight U.S. states allow chemical or surgical castration of sex offenders. They are: California, Florida, Georgia, Louisiana, Montana, Oregon, Texas, and Wisconsin.
● California was the first state to allow chemical castration when its governor signed into law a measure allowing certain sex offenders to receive medroxyprogesterone acetate (MPA) treatment or its equivalent as punishment for their crime.
● …Proponents of castration argue that it is justified and appropriate. Specifically, they argue that using castration to control sex offenders' irresistible urges to rape or molest again allows them to be released without endangering the public.” (CASTRATION OF SEX OFFENDERS, Sandra Norman-Eady, Chief Attorney, 21st February, 2006).
Saudi Arabia:
● In Saudi Arabia, which follows a strict interpretation of Sharia, punishments for rape can include the death penalty, but castration is not typically used.
● The focus is on severe corporal punishments like public beheading or flogging.
Indonesia:
● According to Mompang L. Panggabean, a lecturer in the Ph.D in Law Program Universitas Kristen Indonesia in his recent journal article entitled: Tracing the Criminal Policy on Castration and Community Response (2021), observed:
● “The act of chemical castration is a new sanction in the positive law of Indonesia.
● However, it is limited to child protection based on Law Number 17 of 2016 imposed on perpetrators of sexual crimes against children.
● …The results show that the birth of chemical castration in criminal policy reform is based on a balance between the interests of child victims of sexual crimes and perpetrators.” (Panggabean, 2021)
Iran:
● Iran's legal system is based on Sharia, but like Saudi Arabia, it does not practice castration.
● Instead, punishments for rape include execution or severe corporal punishment, depending on the evidence and circumstances.
Deterrence through fear of retribution:
“The retributive theory of punishment posits that crimes should have consequences, and these consequences should be proportionate to the severity of the offence committed by the individual.
Immanuel Kant, a prominent advocate of retributive punishment, extensively discussed its practical applications, making him one of the most influential figures in this field.
Central to retributivism is the belief that punishment is warranted simply because the offender deserves it, irrespective of other potential objectives such as deterrence or rehabilitation.” (LawNotes, 2024).
Exemplary punishment as deterrence:
In State Of M.P. V. Saleem @ Chamaru on 13 July, 2005, Justice Arijit Pasayat, of the Supreme Court of India, observed:
Any liberal attitude by imposing meagre sentences or taking too sympathetic
view merely on account of lapse of time in respect of such offences will be
result-wise counter-productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt
in the sentencing system.
The Court will be failing in its duty if appropriate punishment is not
awarded for a crime which has been committed not only against the individual
victim but also against the society to which the criminal and victim belong.
The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". (Arijit Pasayat, J, 2005).
