Rape Laws Defeat Justice

Albeit rape is one of the primeval crime and a common phenomenon around the globe but the position of women are more vulnerable in this milieu in Bangladesh due to many factors including but not limited to medieval definition of rape and legal framework, lack of proper investigation and speedy trial, character assassination outside and inside the court, unfavourable social surrounding, unjust humiliation to the victim and her family, least chance of getting proper remedy, continuous harassment etc. However, rape is not only an atrocious crime against the body of a woman but also a crime against basic human rights and a violation of the victim’s most cherished fundamental rights, namely, the right to life. 

In addition to this, Bangladeshi patriarchal society tagged a seal upon the rape victim that because of rape she is losing her honour and dignity as if society put honour into the vagina while the fame of rapist remains intact! Also our spoiled mentality love to stamp the victim as “dhorshita” meaning the woman being raped instead of blaming the perpetrator.

However, while the country is changing towards modernity, there still we foster 157 years old penal provision to prosecute the offender! According to that backdated law, rape can only be committed under any of the following circumstances:

If a man has sexual intercourse with a woman firstly against her will or secondly without her consent or thirdly with her consent, when her consent has been obtained by putting her in fear of death, or of hurt; fourthly, with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married and fifthly, with or without her consent, when she is under fourteen years of age.

However, there is a thin distinction between the two identical words “will” and “consent” describes in the first and second circumstances of committing rape respectively. Former denotes a desire, longing, ability to do something that you intend whereas later is permission or acceptance to do something or in other words it signifies agreement to a certain proposal. However, consent has to be given prior to the act; an accused cannot say that a woman consented to intercourse after he had sex with her. The presumption of consent must not be subjective that means the accused cannot argue he believed there was consent. Rather, he must demonstrate that he believed there was consent because he took reasonable steps to ascertain consent to the specific sexual activity.

Furthermore, accused cannot presume consent himself because of absence of actual physical resistance to the act of penetration. Nonetheless, the phrase ‘against her will’ reflect ideas that victims of rape must behave in a certain manner for the offence to be made out. This should be removed in recognition that respect for sexual integrity and autonomy does not require the victim to fit into any stereotypes on how he or she should behave.

However, the statutory definition of Rape in Bangladesh makes it transparent that rape is totally a gender biased offence which can only be carried out by a male through penetration and the victim can only be a female. To be specific, our criminal justice system only accepts penile-vaginal non-consensual intercourse. Penetration of the anus, urethra or mouth by the penis, or penetration of vagina, anus, urethra or mouth by objects other than penis is struck out of the definition from the 1860’s Penal Code (PC).

Gender neutrality within rape statute is the concept that the criminal law should recognize that both men and women can be rape victims as well as perpetrators. Hence the pronoun ‘her’ used in the definition should be replaced with gender neutral language in recognition that men can also be victims of rape and sexual assault. Similarly references to ‘man’ in mistaken identity should be reframed in gender neutral terms.

Nevertheless, under the Section 375 of the PC, a female cannot face the criminal trial as offender of rape, interestingly enough, the same punishment for rape, i.e. capital punishment or life imprisonment, can be imposed on her for instigation or abetment of such offence. Section 30 of the Women and Children Repression Prevention (WCRP) Act, 2000 confirms that the punishment for instigation or abetment of offence, under this Act, shall be the punishment provided for the commission of the offence or for the attempt to commit the offence.

Another mentionable problem which Bangladesh suffers concerning legal framework dealing with rape is absence of recognition of marital rape in any of the penal law. No married woman can seek legal protection if she is being raped in home by her husband. This discriminates between married and unmarried women. Under the present law, married women are deemed to give their consent forever at the time of solemnization of their marriage and are frequently obliged to have sex, even if she is not willing, with her husband. Additionally, our laws have no remedy against gang rape. Only the WCRP Act has mechanism for capital punishment if any woman or child dies in consequence of gang rape or injury causing out of rape.

It is important to remind, one has absolute right to withdraw the given consent at any point of sexual intercourse and continuation contravening that, even further penetration to any extent after withdrawal of consent shall commit rape. Hence, none can argue that he did the act with her loved or known one. Even if we imagine a situation where the victim likes to pretend she does not consent as it increase her sexual pleasure and shout “no” seriously while anyone penetrates to her shall also commit rape. Because, the offender must consider all the relevant circumstance reasonably and objectively to believe her consent. Moreover, uttering “No means No” or “Only Yes means Yes” is not necessary to reflect the consent even a damn lady can refuse to have sex by her attitude. Therefore, blaming victim’s attire, gesture, returning of home at late night or going to a party at night in an unknown atmosphere is not at all a valid justification behind committing rape. 

However, there is huge anomaly in determining age of consent to sexual activities in different laws of Bangladesh. The WCRP Act, 2000 defines child as below 16 years old person and any person having sexual intercourse with a below sixteen years old girl whether she consents or not and whether he lawfully marries her or not shall be prosecuted for rape. On the contrary, the Majority Act, 1885 implies the age of majority to give valid consent as 18 years. Then what will be the consequence of a consensual intercourse between 16-18 is unclear from the law. Furthermore, the PC, 1860 stipulates sexual intercourse a man’s own wife not being under thirteen years of age, is not rape whereas the WCRP Act of 2000 penalizes sexual intercourse between a legally married couple where the age of the wife is below 16 years! Additionally, under the Shariat, Muslims are allow to marry at the age of puberty and the Muslim Personal Law (Shariat) Application Act, 1937 stated that the rules of Muslim marriage shall be applicable to the Muslims that also creates another confusion regarding age of consent to determine commission of rape.

Yet we do not have any victim and witness protection law in this land. Another reason behind barrier for rape victim to seek justice is lack of gender sensitivity in our judicial system. Most of the rape cases are deal by the male personnel. From the very beginning of a case, a victim feels shy to disclosure all the matters before a male. Moreover, our police and other stakeholders are not properly trained to deal with the matter delicately. Though we have a victim support centre in the capital but that is not sufficient to handle huge number of cases occurred all over the country frequently.

However, most powerful reason behind non access to justice by the victim is character assassination by the defense lawyer during trial. Section 155(4) of the colonial Evidence Act 1872, relating to character evidence in rape cases permits the defense counsel to bring previous bad character of the victim to the court to vitiate her credibility. The section says "when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character."

The motivations behind this ancient rule are to prove the likeliness of the victim to consent to the conduct charged and to impeach her creditworthiness during the trial. Ironically, the character of the alleged rapist cannot be called in question under S. 54 of the Evidence Act unless he takes advantage of the 'mercy rule' and offers evidence of his own good character.

However, we need a 'rape shield' law which prevent questioning the victim about her past sexual history or behaviour except in rare circumstances. Generally previous character has rare connection with the case due to the issue of consent basically in the existing case. A person having several previous sexual records has equal right to get justice against an unlawful sexual intercourse and a mere history of past record may not diminish the merit of the present case.

Another point to remember is that, there is no time limit to file criminal case albeit it is suggested to file the case within possible shortest time to establish the allegation strongly and to prove the crime more easily. Despite that, lapse of time cannot make the matter silly. Apart from confession given by the accused, circumstantial evidence and in depth forensic examinations can bring the offender(s) before justice. However, if police show disinclination to register the case; victim can file complaint directly to the magistrate. Further, if the investigating officer becomes bias or does not investigate properly then the complainant has an option to apply to the court for proper investigation of the matter.

Trauma caused by sexual assault and compensation for that is highly neglected in the PC which only penalizes assault or criminal force to woman with intent to outrage her modesty that neither acknowledged the bodily harm of the victim nor the physical or psychological trauma that a victim may go through in consequence of that assault.

It becomes a trend now that the criminal often take photograph or record video of sexual offences and disseminate it in various ways. However, he Bangladesh parliament has legislated the Pornography Control Act in 2012 by which this type of awkward can be tackled effectively. If anybody forces a woman to produce pornography or take photo/record video with or without her consent shall be liable maximum rigorous imprisonment for seven years and fine up to 200,000 taka. In addition, if a person tries to blackmail anyone or damages anyone's social or individual reputation through pornography, s/he shall be punished with the same. Hence, apart from much discussed s. 57 of the Information Communication Act, 2006, a rape victim whose photo was being taken or video recorded can file a separate case under the Pornography Control Act, 2012.

Hence, there is every reason for an overhaul and comprehensive review of rape laws to take place, given the reality in Bangladesh of rape survivors not being able to get redress in these cases.

A shorter version has been published in the Young Observer of the Daily Observer on 1 June 2017