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Why harsh punishment alone won't stop rape

Published : Friday, 18 April, 2025 at 12:00 AM  Count : 1069
Robayet Ferdous Syed
Rape is a grave crime that not only violates individual dignity but also destabilizes societal harmony. In Bangladesh, the increasing frequency of rape cases has sparked intense debates over the adequacy of existing legal measures. Many argue for harsher punishments to deter potential offenders. However, the key question remains: can the severity of punishment alone reduce the tendency to commit rape? This essay explores this issue within the framework of deterrent theory, which emphasizes severity, certainty, and swiftness of punishment.

The deterrent theory of punishment, championed by Cesare Beccaria and Jeremy Bentham, posits that crime can be prevented if the punishment is severe, certain, and swift. This theory suggests that an individual contemplating a criminal act will be deterred if they perceive the punishment as harsh, swift, and inevitable.

Severity refers to the harshness of the penalty imposed for a crime. Many jurisdictions worldwide have adopted stringent punishments for rape, believing that extreme punitive measures can act as deterrents. For example, in Bangladesh, the death penalty for rape was introduced through the 2020 amendment to the Women and Children Repression Prevention Act of 2000. This amendment followed a surge in rape incidents and widespread public protests demanding stricter laws.
Countries such as Saudi Arabia implement capital punishment for rape, while others, like the United States, impose life imprisonment or chemical castration in certain states. However, empirical studies suggest that the mere presence of severe penalties does not necessarily deter crime. A comparative study of rape laws in India and the United States found that despite harsher penalties, rape rates did not significantly decline due to weak enforcement mechanisms.

A notorious example is the 2012 Delhi gang rape case, where the perpetrators were sentenced to death under India's amended laws. Despite this, statistics indicate that sexual violence remains prevalent in India, suggesting that severity alone may not suffice in curbing the crime, according to the National Crime Records Bureau, 2023.

While severity plays a role, research consistently shows that certainty of punishment is a more effective deterrent. Certainty means that an offender is likely to be caught and punished, making crime a risky endeavor. In Bangladesh, conviction rates for rape cases are alarmingly low-only around 3%, according to Ain o Salish Kendra (2022). This low rate emboldens offenders, as they perceive a high chance of evading justice.

For instance, Sweden has a high conviction rate for sexual crimes due to robust investigative procedures and survivor-friendly legal frameworks. Consequently, Sweden experiences lower recidivism in sexual offenses compared to countries with weak enforcement.

Bangladesh's legal system faces challenges such as corruption, victim-blaming, and social stigma, which discourage survivors from reporting crimes. In cases like the 2017 Raintree Hotel rape incident, powerful perpetrators leveraged their influence to delay and obstruct justice. Such examples highlight the necessity of ensuring that offenders are consistently apprehended and prosecuted.

Swiftness, or celerity, refers to the speed at which justice is delivered. Equity law upholds the maxim "delay defeats equity." Warren E. Burger, former Chief Justice of the United States, emphasized this in a 1970 address, stating that "confidence in the court could be destroyed if people believe inefficiency and delay will drain even a just judgment of its value." The maxim "justice delayed is justice denied" is particularly relevant in rape cases, where prolonged trials deter victims from seeking justice and enable perpetrators to exploit legal delays.

For example, in Bangladesh, rape trials often extend for years, leaving survivors vulnerable to intimidation and coercion. In contrast, fast-track courts in South Africa handle rape cases expeditiously, ensuring that justice is served within months rather than years. The South African experience demonstrates that swift trials increase public confidence in the legal system and reinforce deterrence.

Although deterrent theory provides a compelling argument, its application to rape crimes presents several challenges:

Psychological Factors: Unlike financial crimes, rape is often driven by deep-seated misogyny, power dynamics, and sociocultural norms rather than rational calculations of risk and punishment. Underreporting: A significant percentage of rape cases remain unreported due to fear of social stigma, distrust in law enforcement, and victim-blaming attitudes. Flawed Investigation and Prosecution: In many cases, inadequate forensic facilities, lack of trained personnel, and corruption impede the delivery of justice.

Given the limitations of severity as a sole deterrent, a multifaceted approach is necessary.
Legal Reforms: Strengthening forensic capabilities, witness protection programs, and legal aid for survivors can enhance the certainty of punishment. Public Awareness Campaigns: Educating communities about consent, gender equality, and legal rights can address the cultural roots of sexual violence. Police and Judicial Training: Specialized training for law enforcement and judiciary members can ensure sensitive handling of rape cases, increasing victim cooperation and conviction rates. Rehabilitation Programs: While punitive measures are essential, rehabilitating offenders through psychological interventions can prevent recidivism.

The government could prioritize research on whether clear and convincing evidence should suffice to convict a rapist rather than requiring proof beyond a reasonable doubt. This approach does not seek to undermine the fundamental structure of criminal law but aligns with Garland's assertion that the objectives of criminal justice systems evolve, adapting to cultural values and political priorities. In this context, strict adherence to traditional legal conventions may limit the system's ability to hold offenders accountable in various circumstances.

The deterrent theory suggests that severity, certainty, and swiftness are required to reduce crime. However, evidence indicates that certainty and swiftness outweigh the severity in preventing rape crimes. While severe punishments may satisfy public demands for retribution, their deterrent effect remains debatable unless coupled with effective law enforcement and judicial efficiency. Thus, Bangladesh must prioritize certainty and swiftness in its legal responses while addressing systemic barriers that impede justice. By ensuring that perpetrators are swiftly apprehended and convicted, alongside broader socio-legal reforms, the tendency to commit rape can be more effectively curtailed.

The writer is a law faculty at Southeast University


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