*Author for correspondence

Global Advances in Victimology and Psychological Studies, 1(1) : 21-29; 2022

Online ISSN: Applied For

Global Advances in Victimology and

Psychological Studies

Garima Jain1* and Ankita Mishra2

1Jindal School of Psychology and Counselling, O.P. Jindal Global University, Sonipat, India;

gjain1@jgu.edu.in

2Department of Psychology, University of Sheeld, Sheeld, United Kingdom;

amishra1@sheeld.ac.uk

Ten Years Since Nirbhaya: A Critical Analysis of Retributive

Justice in Addressing Sexual Violence

1. Background

On December 16, 2012, a 23 year old physiotherapist

was brutally gangraped by six males on a private bus in

Delhi: the bus driver, four adult passengers, and a 17-year

old adolescent male. As the bus drove around the city,

the passengers proceeded to take turns raping her and

brutalized her with an iron bar and tore through her

intestines (Chamberlain & Bhabani, 2017). e violent

assault made national news the next day. Due to legal

constraints in India that require survivors of sexual

violence to remain anonymous, the woman was given the

name “Nirbhaya” which means “fearless” (Barry, 2017).

e tragedy served as a spark, eliciting considerable

national and international condemnation. On December

Keywords: Rape Law Reforms, Retributive Justice, Sexual Violence, Victims

Abstract

Following the infamous Nirbhaya gang rape incident in December, 2012, a host of rape law reforms were introduced

in India, including stringent punishment and death penalty under the Criminal Law Amendment Act and Protection of

Children from Sexual Offences Act. This article questions the effectiveness of such punitive measures in dealing with sexual

violence. While, the legislative reforms offer tougher sentencing, they place less emphasis on victims’ rights and also tend

to ignore the social context in which sexual violence occurs. The present paper offers the critique of punitive populism of

the legislation through four discourses: Rape as ‘loss of honour’, Rapists as a ‘monster’ syndrome, Perspectives of victim-

survivors and Retributive justice and marginalised identities. By exploring victim-survivors’ participation, restorative and

transformational practices and acknowledging the larger socio-cultural context in which sexual violence takes place, this

article sheds light on a range of strategies to address sexual violence from the perspectives of victims.

Research Article

Ten Years Since Nirbhaya: A Critical Analysis of Retributive Justice in Addressing Sexual Violence

Global Advances in Victimology and Psychological StudiesVol 1 (1) | June 2022 |

of incentivizing guilty pleas, Indian legislators adopt

punitive approach of dealing with sexual violence marred

by amendments from Mathura to Nirbhaya. For example,

in response to the outrage following a brutal gang-

rape and death of a 26- year veterinary college student

in Hyderabad, the Andhra Pradesh State Legislative

Assembly introduced amendments to the Indian Penal

Code (IPC) introducing death penalty for rape. By

enhancing sentences in this way, the rape law reforms

have reduced the access to justice. ere continues to

be a gross discrepancy in the reported cases of sexual

violence and the conviction rates for these cases, referred

to as the ‘justice gap’(Temkin & Krahé, 2008). e justice

gap potentially suggests that stronger punitive measures

within the criminal justice system did not have the

intended consequences. is is in contradiction to the

populist opinions and demands for harsher punishments

as the appropriate response to deal with increasing cases

of sexual violence.

is article questions the eectiveness of punitive

measures such as castration, longer imprisonment

and death penalty in dealing with sexual violence. By

exploring victim-survivors’ participation, restorative and

transformational practices and acknowledging the larger

socio-cultural context in which sexual violence takes

place, the present paper sheds light on a range of strategies

of addressing sexual violence from the perspectives of

victim-survivors.

2. Retributive Measures of Rape

Law Reforms

Marc Groenhuijsen and Michael O’ Connell argued

against death penalty from victimological perspective

as representatives of World Society of Victimology. ey

highlighted that there is no concrete evidence that death

penalty acts as a deterrent and serves as a closure for the

victims (Groenhuijsen, 2016).

e unprecedented moment of mobilisation and

protests followed by Nirbhaya rape case remains the most

critical chapter in the history of the political movements

in India. e common consensus in the protests was the

emergence of retributive justice measures calling for death

penalty or castration of rapists. We oer four critiques to

29, 2012, Nirbhaya succumbed to her injuries. In January

2013; police formally charged the ve males- Ram Singh,

Mukesh Singh, Vinay Sharma, Pawan Gupta and Akshay

akur under the following sections: murder (IPC 302),

gang rape (IPC 376 (2)(G), punishment of criminal

conspiracy (IPC 120B), kidnapping or abducting any

woman with the intent that she may be compelled or

knowing it to be likely that she will be compelled or

seduced to illicit intercourse (IPC 366), kidnapping or

abducting with intent secretly and wrongfully to conne

a person (IPC 265), attempt to murder (IPC 307), causing

disappearance of evidence of an oense or giving false

information to screen oender (IPC 201), robbery, or

dacoity, with the attempt to cause death or grievous hurt

(IPC 395 & 397), dishonestly receiving property stolen

in the commission of a dacoity (IPC 412).On March 11,

2013, Ram Singh, one of the accused allegedly committed

suicide. On March 20, 2020 the four accused were hanged

till death. e juvenile was sentenced to three years

due to his status as a minor under Juvenile Justice Act,

2015(NPR, 2013).

e Indian government charged the Justice Verma

Committee in 2013 with recommending on rape legislation

reforms(Verma et al., 2013). As a result, the Criminal Law

Amendment Act (CLA) of 2013 was enacted in response

to the Justice Verma Committee’s recommendations.

e act expanded the denition of rape to include a

variety of penetrative and non-penetrative sexual assaults

without consent, such as penetration of the vagina, anus,

and urethra by the penis, objects, or other body parts;

penetration of the mouth with the penis; and application

of the mouth to the vagina, urethra, or anus without

consent (CLA, 2013). Further amendments of Criminal

Law Amendment Act, 2018 and the amendment of

Protection of Children from Sexual Oences Act, 2012

(POCSO) in 2019 adopted a heavily punitive approach to

sexual violence cases in India.

e CLA, 2018 and POCSO, 2019 increased the

mandatory punishment for rape to ten years and

introduced death penalty for rape below 12 years of age.

e amended legislation includes establishing One Stop

Centres (OSCs), women helplines, fast-track courts.

e nal legislation rejected the Verma committee’s

recommendation against capital punishment and

retained marital rape immunity(Walia, 2014). Instead

Garima Jain and Ankita Mishra

Global Advances in Victimology and Psychological Studies 23

Vol 1 (1) | June 2022 |

punitive measures of addressing sexual violence against

women and children.

2.1 Rape and a ‘chaste woman’

“We all agree that rape is an evil act. But it is important

to understand why rape is bad?” Shreena akore, posed

this important question in the Tedx talk called, ‘It matters

why you think rape is wrong’ (akore, Shreena, TEDx

Talks, 2015).

In 2014, Ghosal Pasi, the community head in

Jharkhand’s Bokaro district in Jharkhand was in session

to resolve an issue between the two parties in their village.

e man involved in the dispute was allegedly accused of

molesting a neighbour’s wife. Pasi decided that the family

of the woman who was molested could regain its lost

honour only by dishonouring the boy’s family. In order to

balance the boy’s alleged harassment with the wife of the

neighbour, Ghosal Pasi ordered a man in the community

to rape the minor sister of the alleged accused (Sahay,

2014).

Ghosal Pasi clearly condemns the molestation of a

woman. However, he and the entire community viewed

molestation as the violation of the ‘honour’ of the

woman and her family. In order to satisfy the ‘honour’

of the husband of the woman molested, the village chief

decided to carry out the retaliatory rape. e ironic

revenge rape case is a classic example of awed reasoning

behind why rape is wrong. In this case, rape is considered

wrong because it violates the honour, dignity and respect

of the girl/woman as well as of the family (Brown &

Horvath, 2009). Feminist advocates and criminologists

acknowledge that rape is bad because it takes away the

autonomy over sexual consent, bodily integrity and

independence of a woman.

e demand for death penalty rests on the idea

that rape reduces victim-survivors to living corpses. By

insisting on death penalty, we argue that rape leaves a

victim-survivor with no choice but to lead a life of shame

and stigma (Baxi, 2013). e People’s Union for Civil

Liberties, the Tami Fish Workers Forum, the citizen’s

collective against Sexual Assault and Jagori issued a joint

statement against death penalty stating:

“e logic of awarding the death penalty to rapists

is based on the belief that rape is worse than death.

Patriarchal notions of ‘honour’ lead us to believe that rape

is the worst thing that can happen to a woman. ere is a

need to strongly challenge this stereotype of the ‘destroyed’

woman who loses her honour, who has no place in society

aer she was sexually assaulted. We believe that rape is a

tool of patriarchy, an act of violence.”- (Menon, 2012).

Further, the introduction of severe punishments and

death penalty will lead to fall in the conviction rates as

the victims will be unwilling to report the crime when

their own family and relatives are the perpetrators of

rape. Furthermore, the patriarchal view of rape as ‘loss

of honour’ or ‘fate worse than death’ has also retained the

impunity of marital rape in India. India remains one in

only 36 countries where marital rape is not criminalised.

Criminologists and victimologists have distanced

themselves from linking rape with honour as it takes away

the agency and voice of the victim.

2.2 Rapists as ‘Monsters’ and the ‘Ideal

Victim’ Stereotype

Punitive measures within the criminal justice system tend

to focus on cases of violence against women as ‘individual

acts’ of crimes against the State, while completely masking

the fact that these acts of violence are a result of systemic

oppression and other structural inequalities (Chapman,

2014; Menon, 2012). Consequently, these measures

portray individual perpetrators as committing ‘monstrous

acts’, blaming them for the crime and further justifying the

punitiveness of the measures, while failing to address the

role of the larger social structures such as patriarchy and

misogyny. Smart and Sevenhuijsen (1989) have shown

that in the judicial discourse, the rapist is described as a

perverted man who needs immediate medical attention,

blinded by sexual passion and possessed by the biological

needs.

Feminists and victimologists have argued that rape

is an act of political violence against women, and power

dominance rather than a crime of lust or sex deprivation

(Henderson, 2007). Introducing stringent laws and death

penalty in the rape case are justied because rape is seen

as a heinous and monstrous act. National Crime Records

Bureau (NCRB) data suggest that in 95.6 percent of the

total rape cases reported, the oender were known to

the survivors (NCRB, 2020). By perpetuating rapist as

‘monsters,’ we reinforce the belief that strangers commit

Ten Years Since Nirbhaya: A Critical Analysis of Retributive Justice in Addressing Sexual Violence

Global Advances in Victimology and Psychological StudiesVol 1 (1) | June 2022 |

most rapes. Jaclyn Friedman and Jessica Valenti argued

that instead of adapting a more victim - centric approach,

we rearm ideal rapist stereotypes which result in

suspicion of the victim when the character of ‘monster’

doesn’t match up to an accused (Friedman & Valenti,

2008). As a result, we rearm and normalise the rape

culture which propagates victim blaming where victims

are afraid to speak up.

Harsher measures have the potential for the victim-

survivors to turn hostile or withdraw their cases, either out

of fear of speaking out or hesitancy due to the impact of the

stringent punishment on their relatives and acquaintances.

Furthermore, the response of the criminal justice system

towards acquaintance rape cases reects the prevalence

of sexist norms, stereotypes about ‘chastity ideals’, ‘ideal

rape victim’, over simplication of the complex process of

consent which reinforces the reality of not addressing the

fundamental cause rooted in complex societal structures

of women’s lived experiences (Gurnham, 2016; Satish,

2016). Consequently, such assumptions and myths about

‘real rape’ cases and ‘genuine victims’ builds a narrative of

‘false rape accusations or claims’ as being more widespread

and common than they really are, advancing the existing

disbelief about the credibility of victim-survivors in

the vast majority of cases (Gruber, 2009). Additionally,

when these beliefs intersect with dierent aspects of the

identities of victim-survivors, such as caste, religion,

class it leads to increased skepticism, especially among

the minoritised victim-survivors about being believed

by the institutions of the justice system and gives rise to

low reporting(Orenstein, 2007). ese aspects highlight

the harmful inadvertent eects that retributive measures

of the system have on the victim-survivors, instead of

facilitating their journey of justice.

2.3 Victim-Survivors’ Perspective on

Retributive Justice

e ‘common sense’ notion viewed victim-survivors of

crime as more punitive than non- victims (Pemberton,

2011). e crime victimization surveys refute this

‘common-sense’ notion and have shown that retributive

measures of dealing with crime in order to full the

victim-survivors’ need are misguided and Machiavellian

(Maruna, 2004; van Dijk & Groenhuijsen, 2007). Stringent

punishment and death penalty are oen regarded as a

policy intended to serve the victim-survivors to help

them achieve closure. However, death penalty and

punitive measures serving as drivers of achieving closure

for the victim-survivors are non- existent (Pemberton

& Reynaers, 2011). In the backdrop of Priyanka Reddy’s

rape case in Hyderabad and Unnao rape case in Uttar

Pradesh; the Union Minister of Ministry of Women and

Child Development, Smriti Irani said,

“ere are talks for enacting a provision of stricter

punishment for rapists. However, the government has

already come out with the provision of death penalty.

erefore, nothing can be more severe than handing capital

punishment (for rapists),” (TOI, 2019).

Under the current legal system in India, the trial is

fought between the state and the accused. e victim-

survivor is merely the witness to the crime and does not

have equal participation in the criminal proceedings. e

retributive process makes trials lengthy and cumbersome,

prolonging the victim-survivors’ suering (Maruna,

2004). ere are numerable studies which highlight the

reason why rape victim-survivors report crime to the

police. In their interviews with 60 women who have

reported sexual assault in Australia, Taylor and Norma

(2012) found that victim-survivors drive to hold the

perpetrator accountable for their acts rather than seeking

punishment or retribution. Brooks-Hay (2020)studied

accounts of 24 women in Scotland who reported rape or

sexual assault. e reasons for reporting were grounded

in ensuring their own safety, avoiding re-victimization

and seeking validation of the harm done. Relatively

few participants seek retribution for the oenders. e

ndings highlight the pertinent issue of lack of agency and

voice while participating in the criminal justice process.

Brooks-Hay (2020) also brings our attention to the

‘aspiration- reality gap’ due to the stark dierence between

the reasons and expectations attached to reporting the

crime and the reality in participating in the criminal

justice system and its outcomes. Feminists advocates have

stressed on understanding justice beyond the binary of

conviction and non- conviction of retributive process.

Victim-survivor centric justice is uid and includes

voice, recognition, dignity, prevention, communion,

Garima Jain and Ankita Mishra

Global Advances in Victimology and Psychological Studies 25

Vol 1 (1) | June 2022 |

agency, participation, validation, forgiveness, acceptance

and compensation (McGlynn & Westmarland, 2019;

Pemberton et al., 2017)

3. Retributive Justice and

Intersectional Identities

Another signicant limitation of the punitive measures

is their inordinate impact on the lives and families of

people from marginalised communities (Bernstein,

2012). By taking a ‘one-size-ts-all’ approach to justice,

retributive measures not only undermine the dierent

needs and experiences of victim-survivors, they also fail

to take into account the larger intersecting systems of

oppression(Deer & Barefoot, 2018)such as minoritised

caste, religion, socio-economic status and the like in

‘othering’ both victim-survivors and oenders from

minoritised communities (Bumiller, 1987). e Indian

criminal justice system is already rife with evidence of

excluding marginalised communities from accessing

justice, while simultaneously disproportionately

representing them in convictions and behind the

bars (Samya--Centre for Equity Studies, New Delhi &

Rosa-Luxemburg-Stiung, 2017). is puts the lives of

marginalised victim-survivors in jeopardy, giving rise to

considerable social and economic impoverishment, loss

of agency and autonomy and increased risk of violence

from within the system, thereby rendering the inadequacy

of the punitive measures in dealing with violence against

women.

Finally, we argue that the reliance on punitive and

harsher measures overlooks the whole spectrum of

violence meted out by those in power, such as custodial

rapes. Evidence suggests that women from marginalised

communities are more vulnerable to aggressive policing,

increased force and brutality, and sexual oences(Jacobs,

2017; Manian, 2022). Increasing the severity of

punishments in such cases can possibly lead to under

or no reporting by the survivors due to fear of authority

gures, dismissal by those in power when reported

or a likely decrease in conviction rates due to poor

practices in implementing such measures (Tromadore,

2016). is indicates the need to contextualise the

experiences of sexual violence of survivors in light of

their unique challenges and intersecting identities,

thereby underscoring the importance of an intersectional

approach to address crimes against women, instead of the

present generalised and de-contexualised nature of the

harsher and punitive measures.

We have argued why stringent punishments and

punitive measures rooted in the retributive framework

of justice are limited in their approach in addressing

violence against women. On the other hand, they have, in

practice, several unintended and damaging consequences

for the very people they were trying to protect, i.e.,

victim-survivors. In addition to it, they fail to serve the

purpose they set out to, which is acting as a deterrent for

future crimes; instead they act as a deterrent to reporting

of crimes and also have the potential to increase the

likelihood of further crimes. Additionally, more stringent

punishment and mass imprisonment do not seem likely

to reduce re-oending, rather have the opposite eect of

increasing the likelihood of oenders in engaging in more

crimes(Armatta, 2018; Petrich et al., 2021).

ese limitations suggest that it is important to

acknowledge the present inadequacies and realities of

the criminal justice system in the country and rethink its

approach to dealing with sexual violence against women

while also highlighting the need to go beyond the state

and seek alternative approaches in addressing this crucial

issue of sexual violence.

3.1 Strategies to Address Sexual Violence:

e Way Forward

While it is understandable that we cannot completely

do away with the criminal justice system, it is important

to re-examine and re-evaluate its current approach in

dealing with sexual violence. One of the major changes

that the State needs to consider is to take a more

responsive and active victim-centred approach by moving

beyond merely treating victim-survivors as witnesses to

the crime (White & McMillan, 2021). e shi from

the present punitiveness and incarceration focus of the

Indian criminal justice system to a more victim-survivor

centred institution will not only improve the experience

for the victim-survivors as they try to navigate the

dierent institutions such as police or judiciary, but also

provide them with the condence in the system as a space

Ten Years Since Nirbhaya: A Critical Analysis of Retributive Justice in Addressing Sexual Violence

Global Advances in Victimology and Psychological StudiesVol 1 (1) | June 2022 |

for realisation of justice(Carroll, 2022)” is change in

perspective towards a victim-survivor lens would go a

long way in addressing the issue of sexual violence from

within the system.

Furthermore, with respect to the justice needs of

the victim-survivors, Sered (2017) demonstrates the

commonly expressed ones include,

• having their voices heard,

• forming a coherent narrative about their

experience,

• regaining a sense of control in their healing

journey

• and a sense of safety from future hurt or harm.

In addition,Daly (2017)has suggested participation,

voice, validation, vindication and ‘oender accountability-

taking responsibility’ as the core justice interests of

victim-survivors. rough interviews with victim-

survivors, McGlynn & Westmarland (2019) discovered

that for the participants, justice was never directly

associated with increasing punishments and punitive

measures, which is in stark contrast to populist demands

and notions advocated post heinous crimes such as

Nirbhaya, Unnao and the like. Instead, they suggested

justice tobe ‘kaleidoscopic,’ implying that it is a continuous

process with a complex, nuanced, and ever-evolving

experience for the victim-survivors. ese several lines of

evidence indicate the need for the present criminal justice

system to be more victim-survivor centric in its approach

by increasing their participation and voice in the process

with increased sensitivity. It further highlights that by

being trauma-informed, the justice system can enhance

the victim-survivors’ sense of safety and accountability,

while also ensuring the prevention of future harm for

them.

As we highlighted earlier, addressing sexual violence

as an ‘individual’ problem, while ignoring the socio-

cultural and community context it is embedded in does

not seek to serve the larger systemic and structural issues.

e active role of grassroots organisations, women’s rights

groups and feminist movement in India in confronting

and tackling such issues and inuencing and informing

legislation about the role of the criminal justice system

has always been of fundamental importance (Dash,

2021) It is high time to recognise this invaluable

contribution therefore and work in tandem to strengthen

the partnership between the grassroots movement, civil

society, the third sector, State and the institutions of the

criminal justice system to be able to address the larger

structural issues while also dealing with cases of sexual

violence in a more holistic and promising way.

is brings us to the signicance of community-

based responses and approaches as alternative forms

of justice in sexual violence. As noted earlier, relying

exclusively on the criminal justice system to deal with

violence against women and girls is not the most ecient

and adequate practical response. In some cases it has the

opposite eects than what is desired, including exclusion

of marginalised communities and increasing risks of

re-oending. erefore, alternative systems rooted in the

restorative and transformational justice frameworks and

practices need to be developed to provide more humane,

safe and just choices to victim-survivors, including the

most marginalised survivors(Armatta, 2018; Kim, 2018).

Furthermore, these approaches have the potential to

reform, transform and be people-changing, therefore

reducing the risk of reoending by perpetrators(Petrich

et al., 2021). For example, the eectiveness of Nari-Adalats

(informal courts for women) as an alternative community-

centred, approachable and accountable venue for women

seeking justice has been documented in a few states of

India (Kethineni et al., 2016). is implies that there is

a necessity to go beyond the criminal justice system and

strengthen community-centred approaches embedded

in transformative ideals as alternative choices, not only

as justice and healing for victim-survivors but also for its

potential to change beliefs, norms and behaviours of the

oender and the larger socio-cultural community and

structures in which sexual violence is located.

4. Conclusion

e present paper has highlighted the inadequacies of

increasing punitiveness of the present criminal justice

approach response to sexual violence in India. It has

further provided recommendations for future trajectories

in dealing with sexual violence in the country, including

reforms in the existing justice system to be more centred

on the victim-survivors as well as suggestions for

Garima Jain and Ankita Mishra

Global Advances in Victimology and Psychological Studies 27

Vol 1 (1) | June 2022 |

promising alternative justice mechanisms for addressing

the issue of sexual violence holistically. We are aware

that there will be additional considerations to take into

account while implementing these suggestions and hence

do not intend this to be the last word on this crucial issue.

Instead, we acknowledge that there is a long way to go and

hope that a balance between reforming the existing system

and developing the alternative measures embedded in

transformative responses would have a lasting legacy of

social justice and change and is worth trying!

5. Statements and Declarations

All the authors were equally involved in the conception,

design, writing (initial dra, review, editing) of the

manuscript and have seen and approved the nal version

of the manuscript being submitted. ey warrant that the

article is the authors’ original work, hasn’t received prior

publication and isn’t under consideration for publication

elsewhere.

6. Funding

No funding or research grant was received in the course

of study, research or assembly of the manuscript. e

authors declare no competing nancial or non-nancial

interests that are directly or indirectly related to the work

submitted for publication.

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