The outrage following the gang-rape of a young woman in Delhi has led to demands that capital punishment be introduced to deter rape.
India should take a principled stand against death penalty, including for rape. But beyond principle, India must also oppose the introduction of the death penalty as it will not stop the rise in rapes or result in higher conviction rates.
When rape is reported, the problem is not that India does not have enough laws to adequately punish those convicted (at least for penile penetrative rape). Instead, the lack of certainty in prompt police response coupled with poor investigation and evidence collection hampers prosecutions.
For politicians, supporting the death penalty is an easy way out. It is much harder, but ultimately more effective, to invest time and money revitalizing the criminal justice system with all its actors - police, doctors, forensic specialists, prosecutors, and judges - to make sure that it can respond in an effective, coordinated manner to sexual assault.
Sexual assault is a serious problem in India. Even the underreported official data for rape from the National Crime Records Bureau shows a steady rise in registered cases. In 2011, 24,206 cases were registered. The average conviction rate for rape in India was 26 percent.
Among the most contested evidence during rape investigation and trial is the medical examination report of the victim. This report can have a crucial impact on the case's outcome, at most providing corroboration of the victim's claims by documenting injuries and other evidence of rape. Poorly written or interpreted, it can undermine a victim's credibility.
India has no uniform format for compiling medical reports. This allows doctors in different parts to conduct examinations using differing or no standards; wrongly conclude that the complaint is unsupported by medical evidence when the evidence in many cases is inconclusive; reach damaging conclusions unsupported by the evidence; or even rely on outdated stereotypes about rape.
A medical report based on stereotypes about sexual assault can be very damaging to a case. The WHO states that "only approximately one-third of rape victims sustain visible physical injuries". Nonetheless, many Indian police officers, doctors and judges still seek evidence of a "struggle" and "injuries". When they fail to find these, they often conclude that no rape occurred.
Changing the attitude of criminal justice officials will not be accomplished overnight. But we can at least explode some myths that still affect rape investigation and trial.
The ministries of home affairs as well as health and family welfare should jointly develop a coordinated response to sexual assault that not only allows women to obtain basic medical treatment after rape but also dispel myths about sexual assault and injuries.
Officials should consult leading Indian civil society experts and doctors to develop standard protocols for the medical treatment and examination of rape survivors across India. The National Mission for Empowerment of Women has the funds and mandate to back such a coordinated response.
A uniform pan-India protocol, backed by adequate resources for training and monitoring, will help police and doctors follow basic parameters of treatment and care and gather evidence more effectively and impartially.
This will go a long way in helping rape survivors negotiate at least one part of a complex legal process, and pave the way for better conviction rates.
(Aruna Kashyap is a researcher in the Women's Rights Division of Human Rights Watch. She can be reached on [email protected] Follow her on twitter at @aruna_kashyap)
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