Capital Punishment and the Cultural Discourse of Femininity in the Offence of Rape
CAPITAL PUNISHMENT AND THE CULTURAL DISCOURSE OF FEMININITY IN THE OFFENCE
OF RAPE
This article seeks to establish that the provision of capital punishment in rape statutes, as well as the guiding rhetoric behind it, is antithetical to the interests of the rape survivors, as it premised on the idea of rape as a ‘fate worse than death’. The equation of rape with death is purely linguistic, however, it functions as justification for a societal order that ostracizes rape victims and renders them ‘socially dead’. Further, in this context, models of ‘ideal victims’ are created, as defined through Victorian notions of chastity, who deserves legal justice (and whose rape is deserving of capital punishment), while relegating the other survivors and their narratives to the margins. The marital rape exemption suggests that it is not the violence, but rather the sexual nature of the crime which is often highlighted and leads to the creation of categories of ‘legitimate’ rape. This legitimacy not only devalues the victim, but also creates hierarchies which are often contingent upon the sexual history of the victim. It is further argued that such a penalty for a non-homicide crime is contrary to all theories of deterrence and that the fundamental message that is advocated through such a provision is primarily to the victim rather than the perpetrator as it normalizes the need for sexual surveillance and moral policing of the body of the woman and lays a greater burden of proof on her conduct.
I. INTRODUCTION ‘It is a fate worse than death’.
‘It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.’
Sir Matthew Hale, 1676
The recent gangrape of a 23-year-old victim in Delhi and the widespread protests that followed garnered much
OF RAPE
This article seeks to establish that the provision of capital punishment in rape statutes, as well as the guiding rhetoric behind it, is antithetical to the interests of the rape survivors, as it premised on the idea of rape as a ‘fate worse than death’. The equation of rape with death is purely linguistic, however, it functions as justification for a societal order that ostracizes rape victims and renders them ‘socially dead’. Further, in this context, models of ‘ideal victims’ are created, as defined through Victorian notions of chastity, who deserves legal justice (and whose rape is deserving of capital punishment), while relegating the other survivors and their narratives to the margins. The marital rape exemption suggests that it is not the violence, but rather the sexual nature of the crime which is often highlighted and leads to the creation of categories of ‘legitimate’ rape. This legitimacy not only devalues the victim, but also creates hierarchies which are often contingent upon the sexual history of the victim. It is further argued that such a penalty for a non-homicide crime is contrary to all theories of deterrence and that the fundamental message that is advocated through such a provision is primarily to the victim rather than the perpetrator as it normalizes the need for sexual surveillance and moral policing of the body of the woman and lays a greater burden of proof on her conduct.
I. INTRODUCTION ‘It is a fate worse than death’.
‘It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.’
Sir Matthew Hale, 1676
The recent gangrape of a 23-year-old victim in Delhi and the widespread protests that followed garnered much