Warning: Post contains graphic descriptions of a violent rape.
You must have seen the news that the 4 men convicted for the rape and murder of a 23 year old student last december have been sentenced to death by a fast track court. It is natural for us to feel outraged at the incident, as it was a beastly crime. If you are in doubt, let me refresh your memory by quoting from the text of the judgment.
The facts show that entire intestine of the prosecutrix was perforated, splayed and cut open due to repeated insertions of rods and hands. The convicts, in the most barbaric manner, pulled out her internal organs with their bare hands as well as by the rods and caused her irreparable injuries, thus exhibiting extreme mental perversion not worthy of human condonation. As convict in pursuance of their conspiracy lured the victims into the bus Ex. P-1, brutally gang raped the prosecutrix, inflicted inhuman torture and threw the defenceless victims out of the moving bus in naked condition, profusely bleeding in a cold winter night ; their unprovoked crime demonstrated exceptional depravity of mind of the convicts.
…Further, the convicts did not stop after pulling out her internal organs after the crime of gang rape / unnatural sex but then had dragged the victims to the rear door of the bus Ex.P-1 to be thrown out and when the rear door was found jammed the victims were dragged by their hairs to the front door and thrown out of the moving bus. Her intestines were so severally damaged and the suffering inflicted on the prosecutrix was unparalleled. The brutality caused to her internal organs is extreme as is evident from the medical evidence on record and hence the act of convicts call for extreme penalty.
It is an act of unimaginable horror. No doubt about that. The death penalty was the correct sentence to be awarded considering the law of the land. I cant imagine what the mind of the perpetrators would have been like when they were doing the act. There are simply no words for such acts.
In spite of all that, something about the sentence left me uncomfortable.
Look at, for example, this part of the judgment which is a quote from an earlier judgment of the supreme court.
When the community feels that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so ( in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty
It starts by saying that if the society feels the necessity of death penalty for the sake of self preservation, then the principle of sanctity of human life can be withdrawn, but follows it up saying, it may do so when the collective conscience is so shocked that it will expect the death penalty from the judicial arm of the government.
Similarly, look at this one.
The protection of society and deterring the criminals is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing court are expected to consider all relevant facts into consideration bearing on the questions of sentence and proceed to impose a sentence commensurate with the gravity of the sentence. Court must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea of leniency would be wholly misplaced.
This too begins loftily saying the goal of law is to protect the society and deter criminals. But goes on to say that the court must hear the loud cry for justice from the society.
This is what makes me uncomfortable. However heinous the crime is, it cannot be undone. So we dont have any option but to look ahead. Thus when imposing a sentence, our only goal needs to be to prevent these four from repeating what they did, deterring other criminals and preventing similar crimes. There should not be any idea of a tit for tat or revenge when imposing sentences. But look around you honestly. Look at photos of protestors. Look at the media. Look at the judgment itself. Do you really think the motivation for the death penalty was to protect society or to prevent similar crimes happening in the future? I don’t think so. It was a collective act of revenge. That is all it is. When someone commits a crime on us, we instinctively feel an urge to get back at them. It is natural, but does not mean it is correct. Let me explain.
Am I saying no death penalty at all? No. My only point is that the basis for any punishment we impose, should be rational. It should not be driven by the fact that the society’s “collective conscience is shocked” or by the tendency of the court to take it upon themselves to “hear the loud cry for justice by the society”.
To drive home what I am arguing, let me give a hypothetical example. Suppose one week from now, a new fact emerges that, all these four people were, without their knowledge, given a drug by an evil neuro-scientist as part of an experiment (to be clear, I hate that stereotype of the evil scientist doing an evil experiment), that made them do such things. The way the judgment is written today, that new fact should not affect the imposition of the penalty. After all it still was an unimaginably heinous crime, our conscience was indeed shocked, the society did cry out of justice and so all the necessary criteria for death penalty are met. But in the light of the new fact, the death penalty to those four people would definitely not be justice.
Now imagine the death penalty was given with the goal that such a punishment would deter future criminals* or to prevent such crimes happening in future. Now if this fact of evil scientist comes to light, we can logically change the judgment, because our goal of preventing similar crimes in future can be easily achieved by sending the scientist to prison (or by hanging him).
To reiterate, I am not arguing that the death penalty should not be imposed because some future fact might come up which will clear up the criminals’ names (it has happened before+). My argument is that even in cases where the accused himself admits of the crime thus leaving no scope for any future change of facts, punishment should not be given just because it needs to be “commensurate with the gravity” of the crime, because it is nothing but a wordy way of saying I want an eye for an eye. It should be a logically thought out, well argued, evidence based judgment with our focus on the future.
Now, some of you might argue that I can make all these points just because it was not my own mother, or wife or sister who was the victim. I admit that if I was the guy with the girl on the bus that december night, it is highly probable that I would argue differently. But if I were personally involved in it, I should be the last person to be trusted to provide fair justice. So my opinion should matter less in such cases. In fact, that I am not personally involved in the case should make me more capable of rational discussion. So dont come back at me saying, I dont understand the nature of the crime.
Another aspect to be considered, that at first glance might look very silly, is very related to the points I am making here is that we do not have free will. So moral responsibilty cannot really be pinned on any person. Thus any legal system that depends on the criminal “deserving” the punishment, is a system based on the false notion of the person being responsible for what he does. I have written about that before, and hence will avoid going into detail here. When you understand that my brain functions, at the fundamental level as a physical machine, you realise that neither can I be blamed for the bad things I do, nor can I claim credit for the good things. That idea becomes extremely important when building a legal framework for the society.
Thus, when I see protestors baying for blood, the media pushing for death penalty and the judges writing judgments hearing the people on the streets, I feel very uneasy. Democracy is not always the ideal way to take decisions. If we always trusted the majority, the minorities will always get suppressed. So, trust not numbers. Always look for well reasoned arguments. In this case though, the legal system should be revamped. With cases like these, I only get the feeling that we are still letting ourselves be driven by the instincts of our humanity’s uncivilised infanthood. When will we, as a society, grow up?
* There is an important argument that there appears to be no evidence that death penalty does indeed deter criminals, but let us keep it aside for now. That is a valid argument, but that is not the point I am making in this post. So let us, for argument’s sake, assume that death penalty does indeed deter criminals.
+ This too is a very important argument, but again, not the one I am making now.
You must have heard about Savita Halappanavar, the Indian, who had a miscarriage but was refused abortion, because her foetus had a heartbeat. Now the Irish Bishops have released a statement. And what a load of bull shit it is.
PZ Myers covers the point of the arrogance of the bishops to give advice in an area they have absolutely no knowledge about. A doctor explains why their guidelines only expose their ignorance. So let me cover this point they make:
Some would claim that the unborn baby is less human or less deserving of life. Advances in genetics and technology make it clear that at fertilization a new, unique and genetically complete human being comes into existence. From that moment onwards each of us did not grow and develop into a human being, but grew and developed as a human being.
Let us play their game a bit.
First. If indeed a fertilised egg is equivalent to a human being, even without a heartbeat (heart beat begins 22 days after conception), is the “human being” considered to be alive during those 22 days?? After all, the doctor who treated Savita Halappanavar is quoted as saying they cant do an abortion because the foetus was alive.
Second. Going by their logic should an unfertilised egg or a sperm be treated equivalent to half a human being? Do they become half as important as a human being? Should we also be ensuring that no sperm or egg is wasted, because with advances in technology, every sperm and egg that you discard, you have killed what could have been a human being?
Look at the way they define a foetus “a new, unique and genetically complete human being”. Why is being genetically complete more important than complete in any other sense? I can call a corpse a physically complete human being (with all the organs in place). Will that be a human being (but that deserves far more respect than a fertilised egg)? Moreover, do they realise every cell in every human’s body is genetically complete, with all 46 chromosomes. It is only a matter of time before technology will let us extract a small drop of my blood and create my clone. At that point will these people say, blood should not be allowed to spill when you have a cut, hair should not be cut, nails should not be filed and that you should also not scratch yourself because you lose many cells (aka: genetically complete human beings) every time you scratch?
The truth is these idiots know nothing about genetics or medicine or ethics. They just have their own dogma, and try to suit every technological advance to their own narrow definition of what constitutes life. It is scary to think they hold so much control on public policy. I am not saying religion should not have any role in public policy, but just that they should not have it any more than a Rajinikanth fan club.
Being what I am, I chose Connemara Library over British Council Library merely because Connemara’s annual membership fee is less than 3% of the British Council’s. Of course, one of the problems with going in for the cheaper option is that each time I search the computerised catalog of the Connemara library for a book that I want, and go looking for it in the shelves, the probability of my finding that book is negligible. There have been times when the computer told me that there are about 10 books by Isaac Asimov on the shelves, but I could not find even one. Even worse, “The Big Bang” by Simon Singh, which the computer always says is available, eluded me for the last 1.5 years. Only last week did my search end. But dont jump to the conclusion of a happy end. The climax could not have been more tragic. I was forced to buy it on my own.
But occasionally I do find some good books, and considering my membership fee, I must say the return on investment is reasonable. One such book was “Should the baby live?” by Helga Kuhse and Peter Singer. The book is about severely handicapped infants and whether it is better for us to save the children or to let them die. It also tries to answer questions of how to decide what to do and who should decide.
The initial chapters talk about a few high profile cases in the US and UK regarding severely handicapped children, and whether the doctors or parents have the right to let them die, and their fallout. I, of course, cannot cover his entire argument here, but there is one point that struck me as novel and he argues persuasively about it. That is the question of whether infants have a right to life.
You might think this is a stupid question, and that obviously they do have the right. But he argues that they do not. When a child has severe problems like Anencephaly, where the child is born without a brain, is it really right to keep the baby alive? This medical condition is an extreme case, and the problem is that there will always be handicaps that lie in the gray areas, where one cannot be completely clear on what needs to be done. But his argument is that such cases should not be decided on the premise that infants have the right to life. For any entity to have a right to life, it must be self-aware, have a continuous concept of self, have plans for the future etc. One might argue that the fact that the infant has life is a good enough reason to give it the right to life. But if that is the case, what about bacteria. They too have life, don’t they? Would you want to grant the right to life to bacteria too? But it is not merely the fact that our choosing to give a right to life to all living things would lead to absurd conclusions like right of life to bacteria, that should make us decide who should have the right to life. Thinking about it, the right to life should be given to all those, who would fear death, or know the consequences because of it. If an organism is not even capable of doing that, how does it make sense to give it a right to life. So, the criteria that the entity should be able to feel the death, realise its consequences, at least to some extent, should be the ones that should be given the right to life. Not pebbles and keyboards.
Does that then mean that anybody can kill an infant, or let it die? No. As the authors themselves point out, the consequences of such a position are not as dramatic as they might seem to be. What then prevents us from killing infants who have the slightest deformity, or even worse, what if, as in our country, people start killing off female infants? The point is that, when considering what to do to an infant, a lot of other rights, apart from the right to life of the infant comes into picture. The first one, is the right of parents to have a child. This right straight away ensures that infants can be done away with as and when it pleases somebody. In most cases, parents are so attached to their baby, that this right overshadows everything else. But what if parents themselves do not want to have the child. Then, they still need not kill an infant, but can give it for adoption to others. To a childless couple nothing could give more joy. Herein comes the right of other members of the society. The parents can decide that they will not be responsible for the child. But once they decide that, it is upon the society (or the government) to decide what to do. Then on, the parents do not have any say on what is done to the child. Thus the society can decide to put up such children for adoption. Now coming to the case of female infanticide. Here too, the larger interests of the society is at stake, as decreasing female ratios will lead to other social ills. Thus, in such a case, the government can use its right to a good future to prevent such killings by legislating against it.
As can be seen, the premise that infants do not have a right to life does not lead to a social catastrophe. Most things will remain as usual. But what such a stand leads to is that, parents and the doctors can sit together and decide on what needs to be done to children who are handicapped. Thus, the simplistic view of all living things having a right to life, will not be a barrier in deciding on the cases of such children. If the chances of the child leading a reasonably normal and satisfied life are very little, then it is better to let the child die. If that sounds cruel, one must also look at how the lives of the parents of such children are severely impacted because of the child’s handicap. The authors cite studies where parents of such children have a considerably high rate of break-ups. Moreover, for the rest of their lives, or at least for the lifetime of the child, the lives of parents are thrown into complete disarray. Their professional lives will be affected. They will not be able to fulfill their dreams. Moreover, having such a child prevents them from trying for a next child, in the fear that the next child could also be a victim of the same ailment. All these aspects need to be balanced with the possibility of the child leading a normal life and a rational decision can be arrived at.
One thought that could come up is the slippery slope. Since we cannot draw a firm line on when an infant starts becoming self-aware, would that not lead to parents making arbitrary judgments on whether the child is self-aware or not. A solution to that, as the authors suggest, is that we can draw a line at something like a 28 day old infant. Beyond that, the child can be assigned a right to life. It can be argued that a 29 year old infant might not be any more self-aware than a 28 year old infant. At least not much. But it is safer to err on the wrong side. We can be reasonably safe that a child younger than 28 days, will not be self-aware. We are not sure about infants two or three months old. So let us play it safe by drawing the line as early as possible. It is similar to our saying that anybody who is 18 years old can drive, when there is really not much difference between a person 17 years and 364 days old and a person 18 years old.
An important consequence of such a view is that anybody who can envision a future and is aware of one’s own existence, should have a right to life. Thus, all sentient animals, including humans, have a right to life. A chimpanzee or a pig too has a right to life. It might seem odd that we seem to give a chimpanzee or a pig the right to life, but not a human infant. But it follows from the very reasonable assumption that only those who can feel something should have the right not to be deprived of it. Also, there is no reason why we should consider humans to be special. If we do that, we will not be any more different than our ancestors who thought that our caste, race or religion is special when compared to that of somebody else. If we do that, we will be guilty of speciesism.