Introduction
The Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024 (“Aparajita Bill”) is a legislative response to the brutal rape and murder of a trainee doctor at R.G. Kar Medical College and Hospital in Kolkata and the uproar that followed it. Passed unanimously in the West Bengal Assembly, the bill introduces significant changes to the punishment for rape. It mandates capital punishment for rape resulting in death or vegetative state of the victim, and rigorous life imprisonment for other rape cases.
The bill aims to deter sexual violence and provide a stronger legal framework for addressing crimes against women and children. However, it has sparked debate among legal experts and activists regarding its potential effectiveness and focus on punitive measures.
In this piece, I seek to go a step further and examine the Aparajita Bill and its unintended consequences. First, I analyse the bill’s potential implications, focusing on the unintended consequences of equating punishments for rape and murder. I do so by engaging with scholarship on the same. Secondly, I explore the fallacy of deterrence through extreme punishment. Finally, I briefly advocate for a balanced approach to addressing sexual violence, emphasising improvements in the criminal justice system and investigation procedures over extreme punishments.
Unintended Consequences and Incentives
Cesare Beccaria argued against the efficacy of capital punishment, particularly in cases where it might lead to unintended consequences. He contended that excessive punishments, particularly the death penalty, are ineffective as deterrents and may, in fact, lead to more violent crimes. He posited that when the punishment for lesser crimes is as severe as for more serious ones, offenders might commit graver offenses to avoid detection.
Applying Beccaria’s logic to the Aparajita Bill, we can identify a significant risk: when the punishment for rape and murder is identical (i.e., death or even life imprisonment), perpetrators may be incentivized to murder their victims to eliminate witnesses and reduce the chance of conviction.
This perverse incentive structure could lead to an increase in the brutality of sexual assaults and a higher likelihood of victim fatalities. As Beccaria noted, the severity of punishment should be proportional to the crime and should leave room for gradation in cases of increased severity. The Aparajita Bill, by equating rape resulting in death or even simple rape with premeditated murder, removes this crucial distinction.
This argument remains highly relevant in contemporary debates over punitive responses to sexual violence, such as those proposed in the Aparajita Bill. Beccaria’s critique warns against the unintended consequence of escalating violence in cases where the death penalty is imposed for non-homicidal crimes like rape.
William Blackstone emphasized the importance of proportional punishment, arguing that severe, indiscriminate penalties could lead to unintended consequences. Specifically, he warned that if the punishment for different crimes, such as rape and murder, is made equal, offenders may be more likely to commit the graver offense to avoid detection.
In the context of the bill, which equates the punishment for rape and murder (i.e., both carry life imprisonment and aggravated forms of rape carry capital punishment), this could remove the incentive for rapists to spare the lives of their victims, as the penalty for rape and murder becomes indistinguishable. The bill thus risks incentivizing offenders to escalate to murder, further endangering victims.
Jeremy Bentham’s utilitarian perspective focused on the idea that the certainty, not the severity, of punishment is what deters crime. The conviction rate for rape in India remains low, at around 30%, meaning that harsher punishments will be ineffective if convictions are not consistently secured. Bentham’s argument highlights that implementing harsher penalties for rape does little to address the systemic flaws in the criminal justice system, such as investigative failures, prosecutorial inefficiency, and judicial delays, which are the real impediments to justice.
Bentham’s philosophy of utilitarianism emphasises that punishment should aim to maximize social utility, meaning it should be proportionate to the crime and serve to prevent further harm. He made a case for punishment as a deterrent but cautioned against overly severe penalties. He argued that punishment should not be so severe as to create perverse incentives for offenders to commit more serious crimes. If the punishments for rape and murder are equally severe, offenders may feel it is in their best interest to kill the victim, as it may reduce the likelihood of being caught. Bentham’s utilitarian principle suggests that the Aparajita Bill’s focus on severity over proportionality may result in more harm than good, as it fails to prevent the escalation of violence.
Sir James Fitzjames Stephen highlighted the dangers of disproportionate punishment, particularly in cases where the penalties for different crimes are made equivalent. The Aparajita Bill’s approach of mandating the death penalty or at least life imprisonment for rape mirrors Stephen’s warning about the escalation of violence. When this distinction between punishments for serious but non-lethal crimes (rape) and lethal crimes (murder) is blurred, offenders lose any incentive to spare the victim’s life, leading to potentially more dangerous outcomes.
Moreover, countries that have implemented capital punishment for rape, such as India, have shown little to no decrease in the crime rate. Instead, scholars suggest an increase in victim fatalities, as offenders seek to avoid capture. This aligns with the arguments of these scholars that disproportionate penalties may do more harm than good. In the context of the Aparajita Bill, these concerns highlight the counterproductive nature of extreme punishments, which fail to address the root causes of crime and instead may contribute to more severe outcomes.
The Fallacy of Deterrence through Extreme Punishment and its Unintended Consequences
The stated intent of the bill is to deter sexual violence and ensure that offenders face severe consequences for their crimes. The underlying belief is that harsher penalties will act as a strong deterrent to potential offenders and provide a sense of justice to victims and their families.
It has been long argued that equating the punishment for different crimes, particularly rape and murder, can lead to unintended consequences. Scholarship suggests that the effectiveness of punishment lies in its certainty, not severity (see here, here and here). Extreme penalties like the death penalty or life imprisonment may not serve as effective deterrents for sexual crimes.
Even in imposing life imprisonment for simple rape, it still mirrors the most common punishment for murder. Thus, offenders could perceive no distinction between the consequences of rape and murder and may choose to commit the more severe crime to avoid being caught. This is particularly concerning because life imprisonment, though slightly less severe than the death penalty, is still a severe measure and offers minimal incentive for offenders to spare their victims. Where the punishment for rape and murder is identical, as offenders may conclude that killing the victim will minimize the risk of identification and arrest.
Moreover, if one argues that death penalty is much harsher than life imprisonment and thus incentivises the rapist to ‘spare’ the victim’s life, then why mandate life imprisonment for rape instead of the earlier prescribed 10 years? The threat of a lifetime in prison might still prompt rapists to kill the victim to reduce the chances of being caught, just as with the death penalty. If the intent is to avoid incentivizing murder, the earlier provision of 10 years imprisonment was arguably more effective in maintaining the distinction between rape and murder, thus reducing the likelihood of offenders escalating to homicide. The shift from 10 years to life imprisonment undermines this distinction, which is essential for incentivizing the offender to leave the victim alive, as the offender faces severe punishment either way.
Legal scholars and criminologists have pointed out that the increased severity of punishment has not acted as a sufficient deterrent. Instead, proportional punishments—rather than extreme measures—reduce this risk. Studies show that harsher penalties have not necessarily led to a reduction in rape cases but have potentially escalated violence against victims. Instead, concerns have arisen that these harsher penalties, especially the death penalty, may incentivize rapists to murder their victims to eliminate witnesses.
While the bill is intended to protect victims, it may inadvertently put them in greater danger. As Beccaria and others have pointed out, disproportionate punishment encourages offenders to eliminate witnesses rather than face certain identification and conviction. In cases where simple rape leads to life imprisonment, the offender is left with little incentive to let the victim live. This dynamic puts victims at even greater risk, as offenders could see murder and possible death penalty as a lesser risk compared to a much higher change of being caught for rape when they leave the victim alive, which could lead to a lifetime in prison.
Concluding Remarks
Policies that focus on extreme punishments often ignore empirical research on what truly deters crime. Studies have consistently shown that certainty of conviction—the likelihood that an offender will be caught, prosecuted, and punished—is far more effective in preventing crime than the severity of punishment. Instead of relying on extreme punitive measures, the focus should shift towards improving investigative procedures, increasing conviction rates, and providing better support mechanisms for victims. By improving the criminal justice system and ensuring that offenders are caught and prosecuted efficiently, the state can better deter crime without incentivizing the escalation of violence.
When criminals perceive a higher risk of getting caught and successfully prosecuted, they are less likely to commit crimes. The Aparajita Bill should therefore prioritize reforms that make it easier to identify, apprehend, and prosecute offenders.
Not just Beccaria and Bentham but modern criminologists also strongly advocate for a proportional approach to punishment (see here and here). Punishment should be proportional to the crime, which ensures fairness in sentencing and prevents the escalation of violence. This not only respects human rights standards but also aligns with the broader and intended goal of reducing crime. An approach that focuses on the certainty of punishment rather than its extremity ensures that rapists do not feel compelled to murder their victims to avoid harsher penalties. This is something the Aparajita Bill fails at the most basic level.
The most immediate and impactful reform should focus on improving police investigation procedures. Inadequate forensic resources, lack of training in handling sexual assault cases, and societal stigmas make it difficult for victims to receive justice. Investing in modern investigative techniques such as DNA testing, witness protection, and the training of police forces to handle rape cases with sensitivity and professionalism would significantly improve the conviction rate for sexual crimes. This would shift the focus from reactive punitive measures to proactive, evidence-based investigations.
Moreover, it is essential that any legislative measure, including the Aparajita Bill, respects the constitutional safeguards that protect the rights of individuals. Extreme punishments, such as the death penalty or life imprisonment for rape, must be carefully scrutinized to ensure they do not violate constitutional protections against inhumane treatment, as outlined in international human rights law and the Constitution of India. Moreover, mandating the death penalty for any form of rape, no matter how severe, clearly violates the ‘rarest of rare’ doctrine by sentencing every convict under that provision to death. Any legislation should also ensure due process, provide avenues for appeal, and emphasize the rehabilitation of offenders where appropriate.
In conclusion, the Aparajita Bill’s reliance on extreme punitive measures is unlikely to reduce sexual violence effectively. Instead, it may increase the risks faced by victims as offenders seek to avoid detection by escalating to murder. A more effective approach would focus on the certainty of punishment rather than its severity, emphasizing reforms in the criminal justice system, including better investigative procedures, increased conviction rates, and comprehensive victim support services. By focusing on these areas, rather than solely on extreme punishments, we can create a more just and effective system that truly protects victims, holds offenders accountable, and works towards reducing the incidence of sexual crimes. This approach would ensure that offenders are held accountable without putting victims at further risk.
(This post has been authored by Saksham Agrawal, a second-year law student at National Law School of India, Bangalore)
CITE AS: Saksham Agrawal, ‘Incentivising Murder: The Unintended Consequences of the Aparajita Bill’ (The Contemporary Law Forum, 20 October 2024) <https://tclf.in/2024/10/20/incentivising-murder-the-unintended-consequences-of-the-aparajita-bill/>date of access.