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By Jalal Uddin Ahmed

Every time an incident of rape comes to light, our social media gets blazed with talks about how this is becoming an epidemic, how women are constantly being harassed on the streets and how majority of this incidents don’t come to light because of our social situation – all of which is true. But after few days of writing emotional statuses and sharing posts we all go back to our normal ways. We don’t talk about the lacunae in our laws when it comes to rape. We don’t talk about the fact that there are loopholes within our legal system which allows the perpetrator to get off the hook. We don’t talk about how our laws are inconsistent with the times and how we need to change the laws in order to ensure that the rapists are brought to the book. Once we have had our emotional outburst, we forget about the issue altogether.

“Impeaching credit of witness”: Scrutinizing our Evidence Act

Section 155(4) of The Evidence Act,1872 states that “when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.”

Firstly, a woman’s character and history of her sex life has no relation on the determination of consent, but unfortunately it is a widely used tactic in rape trials to enable the perpetrator to go scot free. Secondly, it diverts the spotlight away from the rape and onto the victim. In a society like ours where victim shaming in crimes like rape, molestation and eve-teasing is common, this section allows the rapist to be admonished of his crimes if his lawyers get to prove the victim had prior consensual sexual relations. Thirdly, the section in this wording, can also be interpreted in the sense that only “chaste” women can be raped. This gives the idea that women who are of “questionable morals” does not need to give consent.

“The plaintiff woman is of easy virtue so her dignity is low. As a result this accusation is not believable; court did not find any clear evidence to place their trust on the accusation brought by this woman of easy virtue.”

An Indian Court judgment on State vs Sri Pintu Pal (2010)

Bangladesh Legal Aid & Services Trust(BLAST) last year published a report titled “Sotirai Kebol Dhorson Hoi” (Only the Chaste are Raped) showed what rape survivors, seeking justice, experience because of this section. In one of the judgments presented in the report, all seven accused of gang raping a 13-year-old girl were acquitted because the court took into consideration the girl’s “romantic” relationship with one of the accused. In the case State vs Sri Pintu Pal, filed in 2010 under the Women and Child Repression Prevention Act,2000, the accused was acquitted as the complainant was a domestic help and considered to be of “easy virtue”. The judgment read, “The plaintiff woman is of easy virtue so her dignity is low. As a result this accusation is not believable; court did not find any clear evidence to place their trust on the accusation brought by this woman of easy virtue.” In the case State vs Abdul Majid, where a divorcee with one child was raped by her neighbor in her own house, the judgment read, “The plaintiff is habituated to sex so it was not possible to obtain any evidence of rape. The victim is of ‘immoral’ character and involved in different unsocial and unethical activities.” The accused was acquitted. [1]

Other harassments faced by the victim

Besides the harassment faced by the victims in court by defense lawyers who ask such indecent questions that the victim is ashamed to answer them, even before the trial begins a victims ordeal for justice starts. As if losing her honor was not enough, everything seems to work against her — from recording her statement at police stations mostly manned by male officers, to the insensitive two-finger test.

The two-finger test or virginity test allows doctors to inspect the hymen of women who have been raped. To prove her complaint before the case is ready for trial, the victim must go through this test, however indecent it may sound.Also medical experts worldwide, including in Bangladesh, say this test is unreliable. In their views, if the victim is married, middle-aged or has conceived multiple times, then how could this test help find any evidence?

In 2013, BLAST went to the High Court Division challenging the test. In response, the High Court Division in October that year questioned the legality and authenticity of the test. It also issued a rule asking the government to explain why the test will not be declared illegal.The division also asked the health ministry to form a committee of experts to develop a detailed guideline to provide support to rape victims on examination and treatment, and submit the guideline to the court in three months.The ministry has submitted the draft guideline, proposing abolishing the two-finger test. The guideline itself recognizes that the test is “unscientific” and “horrendous.”The rule remains pending before the High Court. [2]

One other aspect is the so-called ‘media attention’ of rape cases we see in mass-media, which is probably the worst possible use of the right to free speech. Instead of pin-pointing the perpetrators and their whereabouts (which, interestingly took a positive turn in the latest rape case in Banani), often media try to sell the news of rape in a sensational, click-bait manner, dissecting into the private lives of the victim and often diverting the horrifying crime to a melancholy of cringed love affair. Patriarchal social attitude, in many cases seen to side with the male perpetrators if the victim belong to a upper social class, or happened to be free, outgoing or in most unfortunate cases, culturally active. We have seen a lot of these in a number of cases where the social media population actively delved into the issue to vilify the victims rather than focusing on the criminals. There is no legal barrier to check the abuse of information which amounts to character assassination of the victim, one of the reasons a number of victims do not want to come in the light to fight for her rights.

No provisions of marital rape

The exception of the section 375 of The Penal Code, 1860 states that, “Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape.”

It is evident from the section that marital rape isn’t considered rape under Bangladeshi law. Even under the Women & Children Anti-Repression Act,2000 or the Women & Children Anti-Repression (Amendment) Act,2003 states nothing about marital rape. The law of 2000 has provisions for punishment of men who “to satisfy his sexual urge illegally, assaults a woman sexually or makes any indecent gesture, his act shall be deemed to be sexual oppression and he shall be punished with imprisonment for either description which may extend to seven years but not less than two years of rigorous imprisonment and also with fine”.[3] Although The Family Violence (Defense and Protection) Act,2010 just touches on the topic by mentioning the words “violence which affects the wife’s status and honor”, which is clearly not enough. [4]

Conclusion

It is high time we bring changes in our laws – Justice ATM Fazle Kabir, member of the Law Commission has said that in the new draft of the Evidence Act, Section 155(4) has been scrapped.[5] But a lot is yet to be done. We need to amend our Penal Code to introduce the concept of marital rape and also include it in the special laws as well. Unless we talk about this things and ensure their changes, rapes are gonna take place every day in Bangladesh and the perpetrators are going to walk away scot-free due to the lacunae in our laws.


Jalal Uddin Ahmed is currently studying in the LL.B (Hons) program in the University of Dhaka. Got very interested in the subject by seeing the show Boston Legal. A realist in life,when it comes to the world of law,he likes to think of himself as a naturalist. His ultimate aim is to become the Chief Justice of Bangladesh. Plan B is to become a lawyer like Denny Crane.


Reference:

[1] “SotiraiKebolDhorson Hoi” – Bangladesh Legal Aid Services Trust(BLAST)

[2] ANALYSIS: Bangladesh’s 144-yr-old law favours rapists – ShakhawatLiton,Asian News Network

[3] Explanation of section 9 of The Women & Children Anti-Repression Act,2000

[4] Let the silence be audible:Marital rape in Bangladesh – Aiman Rahman Khan,Future Law Initiative

[5] TRYING RAPE CASES: Cancellation of ‘evidence act’ urged – The New Age,June 6,2016

 

 

 

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