Vol. 3: Rape Culture in South Asia and the Death Penalty
Addressing social norms, legal institutions, and systemic failures that allow the widespread epidemic of rape to continue
[Trigger Warning: This email includes news reports, media, and discussion around topics such as sexual assault, violence against women, and rape. I acknowledge that this content may be difficult. I also encourage you to care for your safety and well-being.]
For our third issue, we touch upon the news and deep dive into the continued prevalence of sexual violence in South Asia and the role played by culture, law, and institutions. We argue that the death penalty seems like a short-term solution - a band-aid on a broken system - that resolves public outrage through aggressive spectacles without addressing the institutional failures.
Best Regards,
Bansari Kamdar
News from South Asia: Rape cases trigger widespread outrage in Bangladesh, Nepal, India, and Pakistan.
The last two months have seen widespread protests against sexual violence across South Asia: Bangladesh decided to change the maximum punishment of convicted rapists from life imprisonment to the death penalty after weeks of protests against sexual violence after a video of a woman being attacked by a group of men in the country’s southwest spread rapidly on Facebook. According to the human rights group Ain o Salish Kendra, nearly 1,000 sexual crimes against women and girls were reported between January and September in Bangladesh, including more than 200 gang rapes, according to the human rights group Ain-o-Salish Kendra.
Protests erupted in Nepal after a 12-year-old Dalit girl from Bajhang went missing on September 23 and her family members found her semi-naked body at a nearby temple. The autopsy report confirmed sexual assault. Data from Nepal Police shows 2,144 cases of rape and 687 cases of attempted rape were reported in the fiscal year 2019-20 a rapid increase from 1,480 cases of rape and 727 cases of attempted rape in 2017-18. This has led to renewed calls to hang the rapist. Over 1000 young women and men draped in black took to the streets in Nepal’s 40 districts to demonstrate against increased sexual violence in the Himalayan nation using the Chilean anthem “the rapist is you.”
[Read my full article on the youth activists fighting sexual violence in Nepal]
In India, a Dalit girl was tortured, gang-raped, and murdered in Hathras, Uttar Pradesh leading to outrage across India. Her body was burnt by the UP police without the family’s consent. In response, the UP Chief Minister Adityanath has called the incident ''international conspiracy'' to defame his government and the Indian Prime Minister Narendra Modi is still to condemn the violence against India’s women. Uttar Pradesh authorities also barred the media from meeting the family and filed sedition charges against those who organized protests against the rape.
Across the border, Pakistan led rallies dubbed “Mera Jism Meri Marzi” (“my body, my choice”) on 12 September after a widely reported motorway rape incident in the Lahore region. The theme of the protest was also a reaction to the statement of a police officer who blamed the victim for traveling at night. According to the Punjab police, 2,043 rape cases were registered in the first six months of 2020.
Deep Dive: Rape Culture and Impunity Across South Asia
South Asia has a long and painful history of rape used as a tool of war and impunity of the rapists - be it the kidnapping and raping of nearly 100,000 women during the India-Pakistan partition of 1947; the large-scale systemic rape of between 200,000 and 400,000 Bangladeshi women and girls during Bangladesh’s 1971 Liberation War; or the Sri Lankan Civil War where an estimated 13% of Sri Lankans experienced sexual assault. No perpetrators have been accused or punished.
Despite severe punishments in many South Asian countries - Afghanistan, Bangladesh, India, and Pakistan have the death penalty for some forms of rape like raping a minor or gangrape - sexual violence remains pervasive. For instance, in 2019, India registered 87 cases of rape daily, a rise of 7.3% from 2018. And these are just the reported cases.
Underreporting of rape cases is ubiquitous across South Asia, largely owing to the social stigma of “shame” and “family honor” associated with women across the subcontinent. In some cases, family members to do whatever is necessary – including the murder of the survivor – to alleviate the ‘‘shame’’ associated with rape.
Research has found that rape is more common in societies where the ideology of male superiority, emphasizing dominance, physical strength, and male honor, is strong. Furthermore, men’s induction into this culture begins at a young age. One study found that 38.9% of men in Sri Lanka and 61.7% of men in Bangladesh who reported perpetrating rape had done so the first time as a teenager before they turned age 19. Nearly half of all those in either country also said they had done so more than once.
Rape is a twisted way for men to flaunt their so-called masculinity by taking away women’s consent and/or punishing her for her “immoral” behavior. In the same study, about 80% of the men in Bangladesh and Sri Lanka stated that they decided to rape women because of sexual entitlement, that is their belief that if a man wants sex he has a right to have it, irrespective of the woman’s consent: “I wanted her,” “I wanted to have sex,” or “I wanted to show I could do it.” Further, in Bangladesh, nearly one in three men (29.1%) also raped because they felt angry and wanted to punish the women.
Patriarchy remains more concerned about the violation of family honor, over the violation of a woman’s bodily autonomy. In some instances, the violation of a woman’s honor is pacified by violating the attacker’s women as a form of “revenge rape.” Just three years ago in Pakistan, 20 elder village council members of the jirga ordered the rape of a 17-year-old in front of her family and the council as retribution after her cousin allegedly raped a 12-year-old according to the police.
Even after the violent 1947 partition, the newly formed India and Pakistan pursued coercive "rescue" and "rehabilitation" of the women on the assumption that they had brought shame and dishonor to their families by being kidnapped and staying with their abductors, and this could be rectified by bringing them back into the fold of the "pure" family, away from these men. No action was taken against the men on both sides.
The discourse of family honor linked to women’s chastity not just removes the fear of retribution from the rapist but also encourages a culture of silence and victim-blaming. Victim blaming is common in even the most violent and ruthless of cases. For instance, in Pakistan’s motorway rape case in September, the police were quick to blame the woman for driving at night. The victim was gang-raped after her car broke down at night on the motorway in front of her two children in a nearby field. In a recent television interview Ram Narayan Bidari, a National Assembly member in Nepal said that 90% of rape cases involving adults “are not rape cases” and added that “the trend of [women] enjoying with consent while the relationship is sound and then making rape accusation when it goes sour has been increasing.”
In India, political and religious leaders like RSS’ Mohan Bhagwat, Nischalananda Saraswati, Asaram Bapu, Samajwadi Party’s Abu Azmi, and more, have blamed almost everything from cell phones and western clothes to the consumption of Chinese noodles for rape and India’s increasing sexual violence against its women - everything but the culture that allows men to rape with impunity.
This thinking is also endemic to the legal institutions. Among Bangladeshi men who admitted to committing rape, 88% of rural respondents and 95% of urban respondents said they faced no legal consequences, according to a 2013 United Nations survey.
In India, the Punjab and Haryana High Court awarded bail to three law students who had been convicted by a lower court for blackmailing and gang-raping a fellow student because the victim was “drinking beer, smoking, taking drugs, keeping condoms in her room and not confiding in her parents that she was being abused.” While the Indian law - Section 155(4) of the Indian Evidence Act of 1872 under the British Raj - putting the onus on rape victims to prove their moral character and abuse was changed in 2003, courts continue to punish victims who they perceive to be of “immoral character.”
In Bangladesh, the same Section 155(4) continues to be in force, which states that “when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.” Pakistan had changed the colonial-era Evidence Act to the much harsher Qanun-e-Shahadat Order of 1984 with Article 151(4) that allowed for the admission of evidence to show that "the prosecutrix was of a generally immoral character" and Article 17 that weighs women’s testimony as half of that of men.
While Article 151(4) was deleted under the new Protection of Women (Criminal Law Amendment) Act of 2016, the administration of two-finger tests continues. This test checks for a victim’s virginity and conflates that to her morality as opposed to focusing on the harm done to her person. These tests have been abolished in other countries on the subcontinent like in India in 2013 and Bangladesh in 2018. In Afghanistan, despite a 2017 Ministry of Public Health policy instructing government health workers not to perform these tests and a 2018 amendment to the Afghan Penal Code requiring a court order and/or consent of the person, a study by the Afghanistan Independent Human Rights Commission (AIHRC) finds neither consent nor a court order was given in 92% of the cases where the test was undertaken.
Laws in Afghanistan and Pakistan for zina (extramarital sexual relations) inextricably punish women, regardless of whether they consent. Under Pakistan’s Women’s Protection Bill of 2006, the death penalty for extramarital sex and the need for victims to produce four witnesses to prove rape cases under the Hudood Ordinances were removed. However, consensual sex outside marriage is still treated as a criminal offense with a punishment of five years in prison or a fine of US$165.
It is also not uncommon for women to be married off to their rapists to save her and the family’s honor in South Asia. Such was the case of Gulnaz in Afghanistan who was raped at 16 by her cousin's husband, jailed for “forced adultery” and gave birth to her daughter behind bars, pardoned by presidential decree following global uproar - only to then be pressured into marrying her attacker.
Similarly, last week, the Madras High Court in India ordered an accused of statutory rape of a minor to marry the survivor as a condition of his bail. In August, another Indian High Court ordered an accused of sexual assault to get the victim to tie him a rakhi as a condition of his bail order. Rather than punishing the rapist, the court punishes the victim by forcing her to recognize her rapist as her husband or brother - further violating the survivor’s autonomy.
The legal institutions in these nations have also clearly demarcated who gets protection from violation and who does not. Marital rape is not a criminal offense in Afghanistan, Bangladesh, India, Maldives, Pakistan, and Sri Lanka. Nepal is the only country in the region that carries a punishment.
One study finds that one in three in India admitted to raping their wives. The number of women who experienced sexual violence by husbands was 40 times the number of women who experienced sexual violence by non-intimate perpetrators in India, according to another study. Marital rape is even more underreported – less than 1% of marital rapes are reported.
[Read my full article on marital rape in India]
Any push for criminalization of marital rape is seen as a way to “destabilize the institution of marriage,” according to Narendra Modi’s Indian government and instituting laws that protect women from rape as an “easy tool for harassing husbands.”
“In the contemporary period, the legal regulation of rape is concerned only with sex within the public realm, that is, with rape that occurs outside of the realm of the family, quite specifically the marital relationship. And even when the rape has occurred in the public sphere, the legal regulation is shaped by whether women’s sexuality is of a public or private nature.
Where woman’s sexuality is considered private, guarded within the confines of the family … as a virgin daughter or a loyal wife, the criminal law may protect her. So long as she adheres to dominant sexual ideology and cultural norms, she receives protection. But when she deviates from these sexual norms and cultural values, by having consensual sex outside of marriage, same-sex relations, or commercial sex, the law considers her sexuality to have become public, to have transgressed cultural norms, and thus, not within the purview of the protection of the criminal law. Public sexuality is conflated with being western, contaminating, and corrupting.”
Ratna Kapur (2013) Violence against Women in South Asia and the Limits of Law.
This is further worsened by the widespread prevalence of child marriage across South Asia despite being illegal. According to UNICEF, the region has the highest rates of child marriage in the world - nearly half (45%) of all women aged 20-24 years reported being married before the age of 18, and almost one in five girls (17%) are married before the age of 15. This practice too is a form of sexual violence, since a child is unable to give or withhold their consent.
Policy: Does The Death Penalty Curb Rape?
Last month, the Bangladesh government approved measures to use the death penalty for rape convictions, after protests in response to increasing sexual violence in Bangladesh. Lawmakers in Nepal are contemplating the same after the renewed call for “Hanging the Rapist.” Here are five reasons why the death penalty may not be as effective in deterring sexual violence in South Asia:
There is no conclusive evidence that capital punishment curbs any crimes, leading activists to question if it is worth the excessive costs, risks of error, the uncertainty of completion, and other problems inherent to the death penalty.
There are grounds to suspect that this could deter reporting like in Pakistan and Bangladesh, where the accused have walked free due to "insufficient evidence" or because the police are hesitant to even register cases of gang rape as that would mean the death penalty for a group of men.
There is evidence that capital punishment could reduce reporting further due to the “added burden” on the victim of knowingly sending someone to their death especially because in the majority of cases the rape accused is often known to the victim. In 94.6% of the cases in India, the rapist was known to the survivor in 2016, according to the National Crime Records Bureau.
This could lead to perpetrators making sure the victims are left dead or in no state to make a complaint or recognize the perpetrators.
Such laws may disproportionately target the weaker sections of the society while providing impunity for the rich and politically connected. For instance, in Madhya Pradesh, India, since a new law was allowing the death sentence for those who rape minors, the majority of those convicted in 2018 were from poor backgrounds. Activists remain concerned about their access to a fair trial.
Postcards of Courage: Asma Jahangir
Asma Jahangir spent her career fearlessly defending the human rights of women, children, and religious minorities in Pakistan. She co-founded and chaired the Human Rights Commission of Pakistan and also Pakistan’s first all-women law firm. She was also the founding member of Women’s Action Forum, Pakistan, and not afraid to take her battles to the street as a vocal human rights activist alongside her sister Hina Jilani.
Jahangir was a staunch critic of the Hudood Ordinance and blasphemy laws of Pakistan put in place as part of General Muhammad Zia-ul-Haq's Islamization program in Pakistan. In the mid-1980s, the Zia-ul-Haq-appointed Majlis-e-Shoora passed a resolution claiming that Jahangir had blasphemed and she should be sentenced to death. She was put in jail and later found not guilty of blasphemy. Jahangir was also placed under house arrest by military leader Pervez Musharraf.
In the later years of her life, Asma Jahangir also served as a United Nations special rapporteur on Freedom of Religion or Belief in Sri Lanka, Israel, and more.