A new Law for Gang Rapes – Renjith Thomas

Gang rape is the cruellest crime on a woman’s dignity. Is there a need to differentiate gang rapes from a rape involving one man? This article puts forth the need to handle gang rape cases differently.

Let us understand the real magnitude of crime involved in a gang rape. During a gang rape, the victim undergoes multiple rapes. But at present, we are punishing the perpetrator for the rape he has done. But what we are missing is that he has silently abetted few other rapes his fellow perpetrators did. He had a chance to stop it, but he failed to do so.

Let us take the Nirbhaya case as an example. Nirbhaya underwent 6 rapes in total. Each of the assaulters could have abstained or at the least prevented 5 other rapes from happening. But our law in the normal course only gives punishment for the rape alone. We ignore the equally grave crime of aiding and abetting other rapes.

The solution is simple and straight forward. The punishment for rape is 10 years imprisonment in most cases. But the punishment for aiding and abetment of rape is not written in black and white in IPC Section 108. So, let’s assume 7 years of imprisonment for the purpose of this discussion.

If there are six people involved in a gang rape, then the quantum of punishment will be 10 years for rape + 5 x 7 years for abetment = 45 years of imprisonment for all convicts instead of 7 years each. We can go one step further. If the total term is above a certain threshold, let’s say 20 years, it should be converted to capital punishment automatically.

In criminal law, diminished responsibility (or diminished capacity) is a potential defence excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental functions were “diminished” or impaired being in a group.

This logic of diminishing responsibility might be applicable to lynching or destruction of public property cases. The circumstances in which gang rape is enacted is entirely different. Each perpetrator has a fair chance to prevent another rape from happening, and he willfully chooses not to do so and instead aids and abets the crime.

Let’s take the case of Nirbhaya again. There were six assaulters, and if anyone stopped himself and another friend from doing so, the number of rapes Nirbhaya underwent would have been reduced to four instead of six. Perhaps she would have been alive now.

There is a legal principle which says that no person can be punished twice for the same crime. Article 20(2) of our constitution upholds it.

Article 20(2): No person shall be prosecuted and punished for the same offence more than once

If you consider the crime as six individual rapes, instead of one crime, will this be a violation of Article 20(2)?

Often people involved in mob crimes wouldn’t have done it if they were alone. Same holds good for gang rapes. They are victims of encouragement or incitement from one or two people from the group to prove their masculinity or worthiness to be part of the group. Some people in India justifies rape and there is a rape culture prevailing in certain parts of the country.

There might be a sane person in every group, who can deter others from the crime. Since gang rape cannot be done in the spur of a moment, they have ample time to control themselves and a few others from committing the crime.

By multiplying the punishment, the state is incentivising a sane person in the group to save himself and others from capital punishment or prolonged jail term, any time during the ordeal.

I am a Software Engineer, not an expert in law. I welcome a legal expert’s view on this matter and expose any flaws in my argument bluntly.

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