Extensive protests against the widespread sexual violence in Bangladesh commencing in October 2020 have prompted the government to take drastic measures, namely the introduction of the death penalty as a punishment for rape.
The Cabinet has approved the amendment to Article 9 (1) of the Women and Children Repression Prevention Bill, which now allows courts to choose between life imprisonment and death penalty if a woman falls victim to rape. On 13 October 2020, President Abdul Hamid signed an ordinance to promulgate the modified law, since the Parliament was not in session to approve the bill. Subsequently, on 17 November 2020, also the Parliament passed the bill.
According to the human rights organization Ain-o-Salish Kendra, 975 women in Bangladesh have been raped in 2020 alone, of which 208 were gang rapes. Additionally, they recorded 204 attempted rapes. These available numbers are only the tip of the iceberg, as the majority of sexual crimes remain unreported. Victims of rape who seek justice face further abuse through a culture of victim-blaming and the general social stigma surrounding a “dishonoured” woman. Moreover, rape cases have an incredible low conviction rate. A United Nations Study in 2013 found that among men in Bangladesh who admitted to committing rape, 88% of rural respondents and 95% of urban respondents said they faced no legal consequences at all.
Although international organizations like Human Rights Watch or Amnesty International, as well as national women’s rights organization criticized the incorporation of capital punishment for rape crimes, there are other voices, defending the government’s decision. For example, Miti Sanjana, an advocate at the Supreme Court of Bangladesh, welcomed the amendment as “a timely response” and “a key milestone in rape law reform in Bangladesh”.
Bangladesh is by far not the only country applying this punishment as a sanction for rape. In Pakistan, Saudi Arabia, Iran, the UAE, China as well as in India, the criminal law allows for the death penalty for (certain) rape convictions. Shortly after the enactment in Bangladesh, the new law was already applied to five perpetrators, who gang-raped a girl in 2012. The main question remains: Does the death penalty actually protect women from being subjected to sexual violence?
The Death Penalty under Human Rights Law
Currently, death penalty is still applied in 42 states and territories, although in eight of these countries the death penalty is not used for ordinary crimes anymore. On the other hand, almost 80% of the world’s countries, namely 155 states, have either abolished the death penalty completely or introduced a moratorium on executions, by law or de facto. But if the global trend opposes the death penalty, why are certain governments still holding onto this type of punishment?
First of all, the right to life, as enshrined in Article 6 of the International Covenant on Civil and Political Rights (ICCPR), does not prohibit the death penalty. Rather, Article 6 regulates how it should be imposed in countries who have not abolished it, while ensuring that nothing in the article delays or prevents the abolition of capital punishment. Nonetheless, the only international treaty to abolish the death penalty is the Second Optional Protocol to the ICCPR, which has only been ratified by 88 states so far. Furthermore, and most importantly, supporters of the death penalty still see it as the greatest deterrent to committing crimes.
Having said this, there is no evidence that the death penalty actually works as an adequate deterrent. In contrast, research demonstrates that death penalty is in no way more effective than life imprisonment in preventing crimes. Therefore, the only proven consequences of capital punishment are negative ones:
Firstly, there will always be the risk of wrongfully convicting innocent people, which is irreversible in the case of death penalty. No judicial system works with utmost accuracy, and exonerations happen regularly. For this reason alone, the death penalty poses an unacceptable threat to human rights.
Secondly, even when considering the guilty, death penalty is a cruel, inhumane and degrading punishment. There are many good reasons to argue that death penalty does not only violate the freedom from torture, but also the right to life. The dignity of human beings is at the core of human rights and justifies their universal application. It should not be in a state’s power to take away this inherent value of a human’s life, and consequently deny all human rights, simply as a punishment. Especially, if crimes do not result directly and intentionally in death, capital punishment violates Article 6 of the ICCPR, which only allows the death sentence in “the most serious crimes”. As a result, death penalty is not justifiable under Article 6 ICCPR in the cases of rape, despite the appalling nature of sexual crimes.
Moreover, Article 6 ICCPR cannot be considered individually but has to be seen in the context of the whole Convention. The objective of the Convention was to ensure that as many nations as possible commit to the rights embedded therein. Not completely prohibiting the death penalty was one of the compromises necessary to guarantee the safety of the other rights. However, since 1966, the views of the international community have evolved. In this light, even the 2018 Human Rights Committee’s General Comment on Art 6 ICCPR now regards the death penalty as being irreconcilable with full respect for the right to life.
Lastly, death penalty is fundamentally discriminating. There are many statistics proving that death penalty adversely affects disadvantaged people, who face prejudices within the judicial system and are less likely to be able to afford high-quality legal representation. Hence, minorities, people with mental disabilities and people from poorer backgrounds do not have equal access to justice. This also has implications for the right to a fair trial because capital punishment is often used in corrupt criminal justice systems. In particular, in countries were torture is commonly used, the outcome of proceedings cannot be trusted.
Overall, UN-Secretary General António Guterres’ remark that “death penalty has no place in the 21st century” has to be fully supported. This is especially true for Bangladesh, where 39 of the overall 220 death sentences in 2019 were imposed without the defendant being present, as reported by Amnesty International. Their global report also observed the violation of international fair trial standards by Bangladeshi courts when applying the death penalty. Although the country only executed two people in 2019, 1,718 were waiting on the death row at the end of 2019. Additionally, with the equation of the punishment for rape and murder, the risk of rape victims being murdered increases considerably because perpetrators might try everything to erase the evidence of their crimes.
Recommendations for the Bangladeshi Government
The government of Bangladesh needs to address the deeply rooted misogyny in society, which would potentially go a long way in solving the systemic problems of rape prosecutions. To tackle the low reporting and conviction rate, the government should focus on gender-sensitivity training for law enforcement, recruiting more female police officers, judges and prosecutors, as well as on creating more psychological and legal support services for victims. In the long run, there is an urgent need for improving prevention mechanisms. There is a lack of comprehensive sex education in schools, as well as a lack of awareness about women rights in general. Moreover, the criminal justice system has many flaws, and certain laws should have been abolished long ago. An apparent example is Section 155 (4) of the Evidence Act 1872, which states that “When a man is prosecuted for rape or an attempt to ravish, it may be shown that the [female victim] was of generally immoral character”.
It is widely proven that the death penalty has no public safety benefit. It does not work as a form of deterrence, but rather seriously jeopardizes human rights. Hence, Bangladesh should focus its resources on closing the existing gaps in crime prevention and prosecution. To this effect, Human Rights Watch released a list of key recommendations as a starting point for the Bangladeshi government.