As the legislature is about to be in session soon, the need for new laws or to amend existing laws is a common agenda. National Commission for women and children (NCWC) issued a press release that there is a need to increase the punishment for rape and other sexual offenses. Whether deterrence alone can reduce or stop rape, or any crime needs greater introspection. Crimes occur due to various reasons including personality and how a person is brought up in the society and not due to mere leniency of laws.

Deterrence theory is one of the oldest theories in the criminal justice system which is based on an eye for eye or tooth for a tooth. According to scholars, the deterrence theory has three principles, certainty, speed, and severity.  It is expected that when there is an increase in certainty of punishment, punishments are given faster or harsher the punishment, there will be a decline in violation of laws. However, numerous studies by criminologists proved that such presumptions are no correct. Strong laws do contribute to the reduction of crimes in some areas but not in every crime.  For example, in Bhutan life imprisonment for vandalism of religious artifacts or sites has dissuaded the criminals and true with other crimes.

In fact, medically, a leading expert on sexual violence, Diana Russell “suggests that rape is actually not a deviant act but one that conforms to the qualities regarded as masculine” in men. For example, boys are taught from their early childhood “to be aggressive, forceful, tough, and dominating” this trait continues even when they are grown up.  She “believes men are socialized to be the aggressors and expect to be sexually active with many women because male virginity and sexual inexperience are shameful.”  Psychiatrists indicate “certain childhood experiences make people vulnerable to disorders of the neurotransmitter systems, which may later be activated under stress, particularly after the loss of affiliative bonds causing impulsive outbreaks of rage and medically termed as “episodic dyscontrol syndrome,” which is now listed in the DSM-IV-TR  and termed as “intermittent explosive disorder (IED).”

Studies have also shown that “psychosis and disordered thought processes are a foundational component of forensic psychology as violent, threatening, and offensive antisocial behaviours” which may result from obsessions, delusions, paranoias personality disorders such as anxiety, bipolar depression, and bipolar depressions, adjustment disorders, substance abuse disorders, trauma-related disorders.

Section 96.2 of the Civil and Criminal Procedure Code, 2001 requires that prosecution must prove beyond a reasonable doubt “to the full satisfaction of the Court has established a proof beyond a reasonable doubt.” For example, the general definition of rape under Section  177 of Penal Code of Bhutan (Amendment) 2011  requires that to constitute a rape, it must be proved that it must be “sexual intercourse” and the nature of rape must be “ against any other person:” While the word “consent”  has been removed from the definition of rape since nature must be against any other person, the defense of consent may still arise shifting the burden of proof to the victim challenge to prove beyond a reasonable doubt.

Therefore, the legislature and agencies involved laws and legislations must take a holistic approach in dealing with such crime rather than increasing the punishment all the time. Finally, one must remember that no amount or severity of punishment will compensate for the rape or any other crime.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.