Thursday, March 14, 2013

What's the Deal Delhi? The Death Penalty as a Proxy Battle for Gender Equality

On December 16, 2012, India was rocked by the report that a young medical student was abducted, gang-raped, beaten, and left for dead by five young men in Delhi.  We all know of this incident, news of the Delhi Gang Rape shocked people all over the world.  Almost immediately, protestors took to the Delhi streets, demanding action from the government.  Public outrage only increased when the young woman died of her injuries.  Three months later, however, public and political conversation in India now focuses on whether or not the death penalty should be applicable to rape cases, with the conservative opposition party (the Bharatiya Janata Party, or BJP) advocating the use of capital punishment, and women’s groups opposing it.  The conflict surrounding capital punishment now threatens to stall all policy reform on the issue of sexual violence.  How did this horrific event, which seemed to be the catalyst for sweeping societal and political change, become a fight over the death penalty?
Public outrage over the Delhi Gang Rape incident was voiced from every corner of the country as protestors called for justice and change.  The Indian Parliament responded by instructing a three-person commission, headed by former Chief Justice J.S. Verma, to submit a report with policy recommendations on how to amend the criminal code and relevant laws in order to “provide for quicker investigation, prosecution, trial, as also enhanced punishment for criminals accused of committing sexual assault of an extreme nature against women.”  With the help of several women’s organizations, the commission was able to provide the Indian Parliament with such a report in less than a month.  The Verma Commission Report identified “failure of governance” as the root cause of sexual assault and rape, and recommended sweeping changes at every bureaucratic level.  These recommendations reflected the view that sexual violence is caused by gender discrimination in Indian society.  Less than two weeks after receiving the report, Parliament members drafted an ordinance to change the Indian Penal Code and the Code of Criminal Procedure.  This ordinance reflected some of the recommendations of the Justice Verma Commission Report, but also included policy changes that were in direct opposition to other recommendations.  One of these conflictual changes is the possibility of a death sentence in the conviction of rape cases that lead to death or a “vegetative state,” and has become a divisive issue between political parties and interest groups.  The All India Progessive Women’s Association and other women’s interest groups have urged Parliament not to pass this ordinance because it differs in several ways from the Justice Verma Commission’s recommendations, and primarily because of the inclusion of the death penalty as a deterrent to rape. 
Before we Americans accuse these groups of throwing the baby out with the bathwater, we should first remember that recently American women’s rights groups opposed the House version of the Violence Against Women Act because of a few key sticking points, and for good reason.  Perhaps this legislative fight in the Lok Sabha[1]  may be about more than the morality of capital punishment.  In Anulla Linders’ great article comparing the Swedish and American solutions to the problem of unsafe abortions in the late nineteenth century, she argues that how a problem is framed is the variable that leads to different solutions. [2]  In a similar vein, a comparison of the arguments for and against the death penalty in India reveal that women’s rights groups have framed the issue of sexual violence differently than the Indian Parliament and the vocal conservative opposition.  This comparison shows that this is actually a conflict over women’s place in society, with one side arguing that women (as the naturally subordinate sex) need to be protected and the other saying that sexual violence should be considered unacceptable in any form, thus forwarding a gender-equality agenda.
I know what you must be thinking, how does the possibility of a death penalty conviction oppose women’s rights?  Wouldn’t it send a clear message about the unacceptability of sexual violence?  These are good questions, and they have some pretty convincing answers.  According to a joint statement by several women’s groups, the death penalty is being used to distract attention from the actual issue, the prevalence of sexual assault and rape carried out against Indian women.  This sexual violence epidemic, they argue, can be traced back to the silencing of victims by society, the reluctance of police to officially report instances of sexual violence, and low conviction rates for perpetrators.  Together, these issues give the message that women’s lives and well-being are not worth much, perpetrators will not face punishment for their actions, and that sexual violence is culturally acceptable.  Solutions to this problem must include greater pressure on law enforcement and the judiciary to speedily report, prosecute, and convict perpetrators, thus sending the message that sexual violence borne out of gender inequality is culturally unacceptable.
Seen through this frame, inclusion of the death penalty as a sentence for extraordinary cases of rape contradicts the basic philosophy of women’s rights groups and would actually exacerbate the problem.   If rape became a possible sentence, the report and conviction rate would actually decrease because victims would be hesitant to report family members.  Experience has proved that getting a conviction for a death-penalty case in India is notoriously difficult, and such harsh sentences may lower conviction rates further.  The use of capital punishment in rape cases also equates rape with death, a view which women’s groups argue is borne out of the patriarchal notions of honor that lead to high rates of sexual and gender-based violence in the first place.  They also point out that there is no concrete evidence that the death penalty acts as a deterrent to rape.  The Justice Verma Commission Report specifically argued that the expansion of the use of the death penalty would be counterproductive.  Instead, it suggested slight reform of the actual criminal code and more effective implementation and execution of existing laws.  “Failure of good governance is the obvious root cause for the current unsafe environment eroding the rule of law, and not the want of needed legislation,” the report stated.
The joint statement issued by several women’s organizations opposing the use of the death penalty in cases of rape was published a little more than a week after the story of the Delhi Gang Rape broke, as if they were anticipating the opposition’s response and proposed solutions.  The outraged Indian public was (and still is) calling for the death penalty for the Delhi Gang Rape perpetrators, a sentiment that was echoed and promoted by more conservative political party members.  The BJP, currently the leading conservative opposition party in the Lok Sabha (Indian Parliament), and its political allies were swift in their calls for retribution and tough legislative reform in December.  “The rapists should be hanged, we need tougher laws to stop rapes,” said the BJP’s senior leader two days after the incident.  The Shiv Sena, a radical arm of the BJP, handed out 21,000 knives with three-inch blades and bags of chili powder to women in Mumbai and urged them to take all necessary measures to protect themselves from attackers.  The BJP has fully endorsed the new ordinance, citing its tough punishment provisions for rapes of an extreme nature (aka, the death penalty). 
By emphasizing the need for expansion of death-penalty cases to include rape and by not engaging in conversation with women’s groups on this issue, the BJP and the Indian Parliament have shown that they see the social problem of sexual assault through a very different frame than women’s rights organizations and the Justice Verma Commission.  In focusing only on this issue of tough punishment and by ignoring the Commission’s recommendations for the criminalization of marital rape, holding police officers accountable for reporting all cases of sexual violence, and by narrowly defining what rape means, the new ordinance seems to endorse the cultural status quo.  Conservative groups asking women to arm themselves and fend off attackers puts the responsibility of rape on the women, not on the perpetrator.  This endorses patriarchal ideas of honor and virtue located in women’s bodies.  The BJP’s and Indian Parliament’s concentration on the death penalty as the most important policy change allows them to seem as if they are taking swift and effective action while avoiding the sweeping changes that would promote gender equality in Indian society—what women’s rights organizations see as the root cause of sexual violence.
So why did one interpretation, or framing, of India’s sexual violence problem win out over the other?  I would argue that neither frame has been more convincing than the other, especially in political and public dialogue.  The framing of this social problem as a matter of gender-equality and the suggestion of regular enforcement of existing laws resulted in the highly publicized and regarded Justice Verma Commission Report.  However, The view that little is wrong with prevailing public views of gender difference and that India needs tougher punishments for perpetrators to act as a deterrent for rape has shaped much of the new ordinance.  In order to understand why the expansion of the death penalty is included in the ordinance, we must look at how the issue became part of the political agenda for curbing sexual violence. 
The Delhi Gang Rape was the catalyst for political discussion on the problem of sexual violence, what John W. Kingdon calls the “focusing event” for policy[3].  The horrific nature of the incident and its wide publication in the media motivated the Indian public to call for change.  Women’s groups seized the opportunity to spread their criticism of culturally-entrenched acceptability of sexual violence to a wider society, staging demonstrations and protests in the capital.  All of this created a policy window,[4] an opportunity in which actual policy change could occur.  Previously formed proposals for addressing sexual violence were suddenly relevant and important to policy makers.  The swiftness with which the Justice Verma Commission was able to put together a comprehensive and thoughtful report of policy recommendations (one month) shows that the women’s groups and specialists who they collaborated with had been waiting for such a policy window to open. Their constant protesting presence around India attempted to keep the policy window open long enough to get meaningful and effective legislation passed.  Policy windows, however, can be double-edged swords.  The BJP and other conservative groups were also quick to make recommendations for expanding the use of capital punishment to “extraordinary” cases of rape.
Barbara J. Nelson, has outlined a helpful four-stage process by which certain issues and solutions are accepted and others are rejected in policy making.[5] First, Nelson argues that an issue must be recognized by policymakers and the public as worthy of attention and action.  Afterwards, policymakers must be convinced that political action will result in observable change.  It is in this second stage of agenda-setting that the BJP’s proposed solution is strongest.  The Justice Verma Commission’s recommendations are dependent on enforcement and judicial reform.  This will take time, and the proposal assumes that the bureaucratic structure will actually conform to new mandates.  India does not have a good law enforcement track record, especially in regards to sexual violence.  Expansion of the death penalty to cases of rape that result in death or a vegetative state may have a more immediate and observable consequence.  This solution has the added bonus of being simpler and (ostensibly) less costly to implement.  It is, in many ways, easier to see the effect of the BJP’s solution, even though it may further contribute to underreporting and low conviction rates for incidents of sexual violence. 
John Kingdon, another policy-making theorist, has argued that successful proposals have to be technically feasible, conform to pre-existing values, financially acceptable, and appease the public. [6]  Here again we see how the BJP and conservative political actors have been successful in moving their proposed solution to the top of the sexual violence agenda.  Not only does this solution require less bureaucratic mess (it is more technically and financially feasible), it is a product of the predominant values of Indian society in which women do not have equal standing with men.  It conforms to the values of the public majority, and is thus more popular with the outraged nation.  Women’s groups are not the only voice of protest over the Delhi Gang Rape incident, for three months many demonstrators have been calling for the five perpetrators to be hanged.  The inclusion of the death sentence for extreme cases of rape in the new ordinance can be interpreted as an attempt to satisfy the public.  The BJP, being the minority and opposition party, has a vested interest in promoting this solution among Indian voters to garner popularity for upcoming elections (because of India’s political structure and culture, every year is an election year).  As Kingdon says in his discussion of policy priorities, the combination of national mood and elections is a more powerful agenda setter than organized interests.[7]
So why has this opportunity for sweeping change in India regarding sexual violence turned into a public debate on the death penalty?  It seems there are two reasons.  One is that the debate over the inclusion of the death penalty in the ordinance that now sits before the Indian Parliament is not really about the death penalty but about differing views of women’s rights and roles in Indian society.  Those parties who forward the women’s rights agenda oppose the death penalty because it reinforces patriarchal views of honor and does not address the reluctance of law enforcement and the judiciary to report and convict perpetrators.  Those who ascribe to a more conservative view of gender roles support using the death penalty as a deterrent because it fits with the prevailing view that women need to be “protected” and does not seek to change the underlying patriarchal values that have led to low incident report and conviction rates.  The second reason for the focus on the death penalty is that this particular solution meets the theoretical requirements for policy discussion and action better than the comprehensive recommendations of the Justice Verma Commission.  It is a simple and quick fix that can be easily implemented, and it is popular with the public.
As I previously mentioned, the new ordinance is now being debated in the Lok Sabha, and it is unlikely to pass.  Will the government ever effectively address India’s sexual violence problem?  I would say yes, but only if women’s rights groups and the progressive political parties re-frame their argument for change in the interpretation and enforcement of sexual violence laws.  Like many countries experiencing rapid economic and social changes, “traditional” values (e.g. patriarchal notions of gender roles and rights) have become more pronounced among the middle and lower economic classes.  This both leads to high rates of sexual violence and hinders effective reform.  If women’s rights groups argue that their solutions promote these traditional values instead of oppose them and connect these solutions to the public’s growing discontent with bureaucratic corruption, I believe lasting change is possible and probable.  We can only hope that it will not take another horrific story to start the policy process again.     

[1] The lower house of the Indian Parliament, where the ordinance is currently being debated
[2] Linders, Anulla. (1998).  Abortion as a social problem: The construction of “opposite” solutions in Sweden and the United States.  Social Problems 45(4), 488-509. 
[3] Kingdon, John W.  (1987).  Chapter 9: Wrapping things up.  In John W. Kingdon, Agendas, alternatives, and public policies (pp. 205-218).  Boston, MA:  Little, Brown and Company. 
[4] Ibid.
[5] Nelson, Barbara.  (1987).  Chapter 2:  Theoretical approaches to agenda-setting. In Making an issue of child abuse, (pp. 20-31).  Chicago, IL:  University of Chicago Press.
[6] Kingdon, John W.  (1995).  Chapter 6:  The policy primeval soup.  In Agendas, alternatives and public policies; Second edition (pp. 116-144).  New York, NY:  Harper Collins College Publishers.
[7] Kingdon, John W.  (1987).  Chapter 9: Wrapping things up.  In John W. Kingdon, Agendas, alternatives, and public policies (pp. 205-218).  Boston, MA:  Little, Brown and Company.