The criminal laws were made more stringent with the enactment of the Criminal Law (Amendment) Act, 2018.[i]The Act also amended the landmark legislation on Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012). The amendment was introduced to deter the increasing crimes against minor girls.

There are evidences which suggest that crime is disproportionately concentrated in economically backward areas and moreover, reducing poverty could also help in reducing the crimes. [ii]However, the common method of addressing the issue of crime is punishing the convict.

Several theories suggest that enforcing laws and punishing offenders will prevent them from committing new crimes. The rehabilitation theory believes that treatment and training programs will help in reforming the individual from committing new offences.

The Retributive theories suggest that offenders should be punished as the decision to violate the law was intentional. Further, the Denunciation theory, which is a combination of several theories, suggests that punishing publicly will prevent potential offenders from committing the crime. All the above-mentioned theories support the changes in the criminal justice policies. However, the legislators have another reason to justify these changes that is Deterrence.

Deterrence theory suggests that criminal punishments not only punishes the offenders, but also discourages potential offenders from committing the crimes. Deterrence can be divided into two categories.

First, general deterrence which means when the public sees the offenders getting punished, they avoid similar actions as those actions might have the same consequences. Second, specific deterrence which means the punishment discourages the convicted persons from repeating their criminal behaviours.

However, the question arises that whether increase in an existing penalty, deter people from committing crimes? In this article, the authors have first illustrated the stringent rape laws and the amendment which has primarily increased the existing penal provisions. Thereafter, the authors have discussed whether the above measures have resulted in deterrence of crime or not. The authors havethen concluded by giving their suggestions.

The Stringent Statutory Rape Laws

The emergence of thePOCSO ACT, 2012 is considered as landmark legislation. This is the foremost legislation against the child sexual abuse in India. This Act has been legislated to give protection to persons having age below 18 years against sexual offences like sexual assault, sexual harassment and child pornography, all of which have been accurately defined and are accompanied by rigorous punishments proportionate to the gravity of the crime. The Section 29 and 30 of the POCSO Act, 2012 states that the accused has the onus to prove their innocence i.e. there is presumption of guilt on the accused. The standard of proof to be met by the accused is the preponderance of probability standard and the failure in meeting this standard result in conviction of the accused.

Afterpassing of the Criminal Law (Amendment) Act 2018[iii], rape and gang rape of girls below the age of 12 years will carry minimum imprisonment of 12years which can be extended to life imprisonment or death. Further, rape of girls below the age of 16 years is punishable with an imprisonment of 20 years and can be extended to life imprisonment. Before the enactment of the Criminal Law (Amendment) Act 2018 death penalty in rape cases was only limited to section 376A and 376E of the Indian Penal Code, 1860 in which the cases related to death and vegetative state of victim was the result of commission of rape.

This Act has amended the POCSO Act 2012, The Indian Penal Code, 1870(IPC), the Indian Evidence Act, 1872(IEA), and the Code of Criminal Procedure, 1973(CrPC). The Act has also reduced the time period of investigation from three months to two months as stated in the Code of Criminal Procedure, 1973. The Act also bars the provision of anticipatory bail in the case of rape of a girl below 16 years of age. The Act has also made provision of disposal of any appeal against the sentence for rape cases must be disposed within 6 months.

Stringent Laws and the deterrent effect

The stringency in laws pertaining to child sexual abuse came after the outcry over the rape and murder of minor girl in Kathua and Unnao. The increase in brutality against the minor girls fuelled the demands from all over the country regarding stringency in laws thus the legislators passed the Criminal Law (Amendment) Act 2018. The 35th Report of the Law Commission of India stated that the imposition of death penalty could have a deterrence effect on criminal incidences.[iv] Also the death penalty is restricted just to the rarest of rare cases hence the offender who truly deserves capital punishment can be objectively analysed. [v]

The stringent laws are likely to convict the criminal and deter him from committing any further crime but it does not mean that a stringent punishment will deter the crime as a whole. In the cases pertaining to child sexual abuses the medical reports and testimony of child can be used as the foundational fact on the basis of which the presumption of guilt can be developed against the accused. A child in such a tender age can be influenced or tortured easily and hence a false testimony can also be obtained. Hence a false case can be easily made up and an innocent can fall into such a trap.

It has been rightly stated by Jeremy Bentham

Most human actions are not preceded by conscious and explicit calculations. Indeed, habit influences most non-criminal as well as criminal behaviour more often than does conscious calculation.[vi]

The 47th Law Commission of India report suggested that thereare some socio-economic offences which are so grave that the burden of proof is to be dispensed off from the prosecution.[vii] It has been perceived that the reverse onus clause increases the rate of conviction and furthers the goal of deterrence [viii], but this theory has proved to be a failure in India.

The NCRB statistics in India shows that 39,287 cases of child sexual abuse were reported under POCSO Act in year 2018.The stringency in child sexual offence laws do not have much effect on deterrence of crime as in India according to the data published by National Crime Report Bureau around 95% of rape is committed by the family members of which only 24% are convicted and out of which 20% are convicted under POCSO.[ix]

It becomes really difficult for a girl to file a complaint against her own family member under such stringent laws.Even if the girl wants to speak out, she is being suppressed by her parents and the accused remains free of any charge.

Another aspect of negative effect of stringent laws in deterring the crime is, that to give away the death penalty to the accused the court will require a higher standard of proof. It is because the extinguishment of the life of accused is permanent and cannot be reversed. Hence, a very careful and close study of the case is required. Consequently, this lowers the rate of conviction.

Moreover, the fact that commission of rape results in death penalty might tempt the rapist to kill the victim in order to hide his identity and to destroy the higher standard of proof. Hence, again the accused will be acquitted by the court due to lack of conclusive evidence.[x] It is pertinent to note that the Malimath Committee rejected the idea of death penalty for rape cases and called for procedural amendments which results in certainty of punishment rather than quantum of punishment as a real deterrent.[xi]

Way Ahead
The objective of stringency in laws is to deter the crime. After the implementation of Criminal Law (Amendment) Act 2018, though there is stringency in the laws but the statistics have proved a lower conviction rate which turns out to be a catalyst for criminals. While making the laws to deter crime, the legislators must make supplementary policies like developing awareness campaign, creating periods of targeting enforcements and publicizing the results of the enforcement campaign.[xii]

When a crime is committed, the criminal tries to fabricate or remove the evidences to ensure that he is not convicted. As a result, he tries to either kill the victim or blackmail the family of the victim. The reason of non-deterrence of crime even after stringency in law is due the non-certainty of conviction and therefore, the victim bears the brunt of legal trial which forces her to withdraw the case; the legal expression for the same is ceteris-paribus i.e. certainty of being punished is more important than severity of punishment. The data released by National Family Health Survey and National Crime Records Bureau states that around 99.1% of rape and assault cases against women are underreported.

There is already a provision of death penalty under several laws but this has nowhere deterred the crime rate. The study by Amnesty International has proved that there is no deterrent effect of death penalty. [xiii]

The only deterrent in such cases is conviction to be executed in not more than 90 days and a speedy trial. This will reduce the underreporting of such cases and the accused and potential criminals will be scared of committing such offence.

More reporting of rape cases can only be done through spreading the awareness and breaking the taboos related to a rape victim from the society. A better policing system is the need of the hour. Many a times a rape survivor has to face the hostility when she comes forward to make a complaint.[xiv] Even after the rape case has been reported, the police carelessly deal with the evidences hence reducing the credibility of evidences.

The witness hostility in these cases further suppresses the number of convictions. The reason for such hostilities is the threatening of the witnesses and also the lack of knowledge regarding the Witness Protection Schemes. Many rape victims have financial insufficiencies which stops them from engaging in the expensive trials.

Hence the Legal Aid drive should also cover a large part of country so that everyone is informed regarding the availability of lawyers at an affordable price or free of cost. The deterrence of these crimes is possible only when everyone is well informed about the rape laws and supports the victim in providing justice.

End-Notes:

1. The Criminal Law (Amendment) Act, 2018 (22 of 2018).
2. Sara B. Heller, Brian A. Jacob, and Jens Ludwig, Family Income, Neighbourhood Poverty, and Crime in Controlling Crime: Strategies and Tradeoffs, eds. Philip J. Cook, Jens Ludwig, and Justin McCary (Chicago: University of Chicago Press, 2011).
3. The Criminal Law (Amendment) Act, 2018 (22 of 2018).
4. Ministry of Law and Justice, Law Commission Report - Capital Punishment (September, 1967) http://lawcommissionofindia.nic.in/1-50/Report35Vol2.pdf.
5. Bachan Singh v. State of Punjab, (1980) 2 SCC 684; Macchi Singh v State of Punjab, (1983) 3 SCC 470.
6. F. Zimring, Perspectivenesson Deterrence, (1971).
7. Ministry of Law and Justice, Law Commission Report – The Trial and Punishment of Social and economic offences (1972, February) http://lawcommissionofindia.nic.in/1-50/Report47.pdf.
8. Byron M. Sheldrick, Shifting Burdens and Required Inferences: The Constitutionality of Reverse Onus Clauses, 44(2) U.
9. Child rights activists oppose death penalty for rape of minors, The Economic Times https://economictimes.indiatimes.com/news/politics-and-nation/child-rights-activists-oppose-death-penalty-for-rape-of-minors/articleshow/63859720.cms?from=mdr.
10. National Crime Records Bureau, Report on Crime in India 2016 (Ministry of Home Affairs, 2017) p.153. As of 2016, conviction rate in rape cases stands at 25.5%.
11. Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System (Mar. 2003) p.193.
12. Ben Johnson, Do Criminal Laws Deter Crime? Deterrence Theory in Criminal Justice Policy: A Primer Minnesota House Research Department https://www.house.leg.state.mn.us/hrd/pubs/deterrence.pdf.
13. Amnesty International, AClear Scientific Consensus that the Death Penalty does not Deterhttps://www.amnestyusa.org/a-clear-scientific-consensus-that-the-death-penalty-does-not-deter/.
14. Ministry of Law And Justice Government of India And United Nations Development Programme, Towards Victim Friendly Responses and Procedures for Prosecuting Rape: A Study Of Pre-Trial And Trial Stages Of Rape Prosecutions In Delhi (Jan 2014-March 2015) https://doj.gov.in/sites/default/files/PLD%20report.pdf.
    
    

    Written By:

    1. Sahiba Vyas, a Third Year Student at National Law University Odisha
    2. Anuj Jain, a Third Year Student at National Law University Odisha