RAPE and other forms of sexual violence are weapons of domination and they increase in frequency when perpetrators and potential perpetrators realise that they would not be prosecuted. Who gives them this confidence? A dysfunctional criminal justice system, poor investigation, the inability of survivors to seek justice and social and political structures that 鈥榮helter鈥� such perpetrators are some of the contributing factors.
Rape is not only a criminal offence. It is a human rights violation when there is a failure of the state mechanisms to control it. It is also a human rights violation when perpetrated by state actors such a law enforcement personnel, when it is carried out as part of any official process such as an investigation or in custody. It may even be used as a method of torture.
The recently deposed government and the political party in power won the national elections in 2009. All later national and local elections were connived. In order to maintain a hold over the governance of the country, rules for some were relaxed and law enforcement indulged. All opposition and dissent were met with violence, torture, disappearance, harassment and persecution under controversial laws. Offenders and criminals who can create violence and perpetrate offences received shelter and patronage from political leaders.
There was hardly any rule of law. The judiciary and law enforcement personnel were politically appointed and the criminal justice system was dysfunctional. Under such circumstances, it is easy to understand why women were reluctant to seek justice even for rape. The interim government is faced with the monumental task of trying to bring things on track and matters of violence against women, children and members of 鈥榲ulnerable鈥� groups 鈥� which are issues always neglected 鈥� must also be brought to the forefront.
鈥楾raditional鈥� factors that have always deterred survivors and victim families from seeking justice for rape, include social and economic barriers such as the 鈥榮hame鈥� associated with rape, the effect this 鈥榮hame鈥� has on the family and the fear that the survivor would be perceived as of immoral character and any sisters she has may not get married as a result. The costs of litigation, medical expenses and travel to court for hearing is also something that not all families can afford. Then, there are the threats to the family by the perpetrators and their supporters or family to either refrain from filing a complaint or to withdraw a case. All these social and economic factors play a role in encouraging perpetrators and potential rapists.
The main law defining the offence of rape is Section 375 of the Penal Code 1860. According to this law, in order to constitute the offence of rape, five conditions are given, including the commission of sexual intercourse against the women鈥檚 will or without her consent. The criminal definition of rape is, thus:
鈥楢 man is said to commit 鈥渞ape鈥� who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:
鈥楩irstly. Against her will.
鈥楽econdly. Without her consent.
鈥楾hirdly. With her consent, when her consent has been obtained by putting her in fear of death, or of hurt.
鈥楩ourthly. 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.
鈥楩ifthly. With or without her consent, when she is under fourteen years of age.
鈥楨xplanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
鈥楨xception. Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape.鈥�
The following issues in this definition are cause for concern. The assumption that only women can be raped. The existing definitions of rape are far too narrow. Men, boys, the transgendered and those of other orientations, are excluded. This, of course, prevents them from seeking justice.
Peno-vaginal penetration is to be proved as part of the rape and other forms of sexual violence are not included. The fifth condition in the definition is that if a man has sexual intercourse with a women with or without her consent and she is under the age of 14, it will be considered rape. This is quite serious. It brings into question the age of majority in the case of rape and indirectly justifies child marriage where the bride is between the age of 14 and 17 years.
The issue of marital rape is glaringly absent. It is only indirectly mentioned if the wife is below the age of 13 years. There is no law or legal provision defining, preventing and prosecuting acts of 鈥榠ncest.鈥� There is no law or legal provision defining, preventing and prosecuting rape in custody. There is not separate punishment for the rape of minors below the age of 18.
The Repression on Women and Children (Prevention) Act is a law that was enacted to focus on crimes against women and children. This law also has a definition of 鈥榬ape鈥�, but this differs from the definition contained in the Penal Code. The law may be translated to state: 鈥業f a man has sexual intercourse with a woman (over the age of 16 years) out of marriage and without her consent or with her consent if it was given under threat or connivance, or with or without her consent if she us under the age of 16 years, then he is said to have committed the offence of rape.鈥�
Although the age has been changed to 16 years from 14, in the second law, the issue of minority can still be called into question. However, for all purposes, the conditions of 鈥榬ape鈥� contained in the Penal Code (apart from the issue of age) are followed. Both the definitions of rape seem to rely on the proof of resistance by the victim. Neither of the definitions mention compensation to the victim. Although protection to witnesses or victims is absent in the Penal Code, the act does state that the name and address of rape victims must not be disclosed and provides for in camera examination of rape victims in court. The act also contains a provision against the filing of false cases or complaints against a person for the purpose of causing harm to that person. In a case of rape, this provision may act as a deterrent to lodging genuine cases as the survivor may genuinely fear not being believed in court and that this provision may be used against her.
The Repression on Women and Children (Prevention) Act does take note of gang-rape and rape occurring in custody although it only mentions police custody. Clause 5 of Section 9 of the 2000 act states that if any women is raped while in police custody, those who were responsible for her custody will be liable. The definition fails to note that 鈥榩laces of custody鈥� also include prisons, prison wards in hospitals, mental asylums, etc. While still on the topic of rape in custody, it must also be mentioned that Bangladesh has a Torture and Custodial Death (Prevention) Act 2013. This act does have several flaws. One of them is that it does not mention gender-based violence or rape as potential forms of torture. However, if custodial rape is to be included as a form of torture, care needs to be taken to allow victims to seek justice under the provisions of the Repression on Women and Children (Prevention) Act 2000 and the purview of the special tribunal. Otherwise there may be a conflict between these two important laws. Section 9 (5) of the 2000 act already has a provision regarding rape by police. This may be amended and extended to all forms of law enforcement and other forms or places of 鈥榗ustody鈥�. The focus must be on the crime of 鈥榬ape鈥� and the relevant law.
The latest barrier to effective justice for rape victims is the amendment of the Repression on Women and Children (Prevention) Act to include the death penalty as the maximum punishment for rape. The bill was passed in November 2020. Previously, Section 9 of this act laid down life imprisonment as the penalty for rape. This will now be amended to capital punishment. This decision was met with serious criticism from women鈥檚 groups and civil society organisations. Death penalty has not stopped any crime from happening. Furthermore, imposing an absolute punishment is no substitute to changing social mentalities that encourage the perpetration of gender-based violence, including rape. Again, death penalty may encourage perpetrators to kill the victims to prevent the crime from being reported.
In 2011, the High Court Division laid down a detailed definition of sexual harassment and stalking in the matter of Bangladesh Women Lawyers鈥� Association versus Bangladesh. The High Court also ordered that the Repression on Women and Children (Prevention) Act should be amended and the definitions should be included. This has not been done. Sexual harassment is an unfortunate social practice and contributes to diminishing the social and academic life of girls and women. It often is the reason a rape occurs.
Witnesses to an offence or who have knowledge of the intention of the accused are not just an important source of evidence. They is a source of empowerment for the survivor/victim family which can help to ensure that justice is served. In Bangladesh, there have been incidents where witnesses for the prosecution have been threatened or are fearful of going to court. This is more common where the perpetrator wields some social influence or is protected by powerful politicians and the such. The non-appearance of key witnesses to an offence obviously damages the case for the prosecution. However, in Bangladesh, there is no law protecting victims and witnesses. This is another gap in the criminal justice system.
Often, the police refuse or are reluctant to file first information reports of incidents of rape. The first information report is the document that reports a probable offence at the police station and is the basis of police investigation. According to a 2021 report of Dignity Alliance International, 鈥榦ne of the four survivors interviewed in Bangladesh also reported that police initially refused to file the case and only did so after public protests forced them into registering it (with a delay of around a week).鈥� Police investigations are far more common when there is a huge public outcry regarding the incident or where the rape victim had also been killed. The situation regarding the lack of interest in investigating rape cases became so bad that in 2016 the women鈥檚 rights organisation Naripokkho and other non-governmental organisations filed a writ petition demanding justice. The writ petition was based on the gang-rape of a Garo woman by five men in a microbus on May 21,鈥� 2015. She was sent for a medical examination to Dhaka Medical College Hospital two days later. Protests by women鈥檚 rights, adivasi rights and human rights organisations demanded urgent action. There were also several reports stating that there had been a delay in recording the first information report and the delay in sending her for medical examination. As a result, five rights organisations, Naripokkho, Bangladesh Mahila Parishad, Jatiya Adivasi Parishad, Bangladesh Legal Aid and Services Trust and Ain O Salish Kendra filed a writ petition in the High Court Division.
The petitioners argued that the police delay in responding to the complainant amounted to a breach of her fundamental rights to equality, non-discrimination and equal protection under the law with respect to obtaining a prompt and effective remedy against violence. They stressed on the 鈥榠mportance of ensuring a prompt and non-discriminatory response to recording of complaints and medical evidence collection, in the context of serious under reporting of incidents of violence against women and girls by victims. They cited provisions of the Nari O Shishu Nirjatan Daman Ain 2000 (amended 2003) [the Repression on Women and Children (Prevention) Act], regarding the holding of medical examinations, and the rights to equality before the law, non-discrimination on grounds of race, religion, sex, caste and place of birth, and equal protection of the law under Article 27, 28 and 31 of the constitution, as well as the state鈥檚 obligations under the Convention on the Elimination of All Forms of Discrimination against Women to which Bangladesh is a party.鈥�
On May 25, 2015 the court issued a rule nisi on the authorities concerned to explain the delay by the police in recording a first information report as well as the delay in sending the woman to the victim support centre for medical examination. 鈥楾he court also asked the authorities to explain why they should not compensate the victim and take disciplinary action against the police officers responsible for such delay. The court directed the authorities to issue a circular to all police stations to ensure that they respond to victims promptly and without any discrimination based on race, religion, gender, caste or place of birth, and to submit a report identifying those responsible.鈥�
After that, the respondent government authorities filed affidavits indicating the steps they had taken to comply and the 鈥業nspector general of police issued a circular providing guideline to police officers while dealing with cases of violence against women and children, setting up of a three member committee to inquire allegations regarding delays in recording the FIR and conducting medical examination, as well as disciplinary proceedings against two police officers for their inefficiency and injudiciousness while performing their duties.听 A Division Bench of the High Court heard the matter on 14.02.2016 and 18.02.2016, where the petitioners made further arguments in response to the submissions of the respondents. The petitioners requested the Court to issue specific guidelines with regard to the steps and procedures to be taken when dealing with complaints of rape, particularly with regards to support for the victim at all stages of the legal process.鈥�
Despite the directives of the High Court and the circular of the inspector general of police, there is still a reluctance in recording first information reports and carrying out investigation by the police. The reluctance to record a first information report of rape and carry out an investigation are indicative of how the police view the crime. It is also an indication of how society perceives women鈥檚 issues and their security. It is not merely cases of rape that are not investigated properly. The same situation in faced by survivors of dowry violence, acid attacks and other gender-based crimes.
Given the social stigma and taboo that surround rape, medical investigations are also uncomfortable procedures for survivors. There have been incidents where local hospitals are unable or unwilling to take the responsibility. According to the 2021 report of Dignity Alliance International, 鈥楤oth survivors and stakeholders from Bangladesh noted that often when survivors approached local and sub district hospitals after being raped, they are sent to a district hospital due to lack of facilities, causing delays in the examination process.鈥� A 2020 study on medical examinations for rape victims even shows that in analysing 140 rape cases filed with the police, it was found that for 95 per cent of the victims, the examination was carried out after a week and sometimes after a month of the incident.
In order to determine whether a female has been raped, vaginal penetration and rupture of the hymen is still the yardstick. A test, commonly known as the 鈥榯wo-finger test鈥� is carried out to check on virginity. It allows doctors to inspect the hymen of women who have been raped. This is also supposed to test vaginal laxity and decide whether the victim is habituated to sexual intercourse. The test is extremely humiliating and violative for a woman who has never had intercourse and for a married woman, it is definitely not a useful indicator. To prove the allegation of rape, this humiliating test has to be carried out. The test also contradicts the principle that survivors of violence must not be faced with legal recourse that traumatises them or violates their physical and mental integrity, as included in the International Covenant on Economic, Social, and Cultural Rights 1966 and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985.
In 2013, Bangladesh Legal Aid and Services Trust moved the High Court challenging the test. In response, the High Court 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 would not be declared illegal. The court also asked the health ministry to form a committee of experts to develop a detailed guideline to provide support for 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 recognises that the test is 鈥榰nscientific鈥� and 鈥榟orrendous.鈥� Although a draft guideline was penned by the health ministry, it is not clear whether it has been implemented as yet. It is safe to say that the 鈥榯wo-finger test鈥� still remains in place as one of the components to prove rape, along with DNA testing and other evidence.
Not all incidents of rape leave bruises or evidence of struggle on the survivor/victim鈥檚 body. Not all results in a ruptured hymen. Unfortunately, the lack of such 鈥榮igns of rape鈥� often results in an inconclusive medical report or a report that states that there is no evidence of rape. Thus contributes to the lack of prosecution and casts doubts on the validity of the claim of rape. Improper investigation and disregard of the survivor鈥檚 mental state add to the injustice.
Bangladesh has a patriarch society, with undercurrents of misogyny. Then, there is the fact that sex and matters relating to it are taboo topics and are not discussed within the family or in public. A woman or girl鈥檚 virtue is the pride of her father. Therefore, many victims do not speak of the incident because of the repercussions that may fall upon her family. Victim-blaming is very common, especially when it comes to incidents of rape, stalking and harassment, acid violence and other acts that target women. Furthermore, due to patriarchy, the incident of rape is seen as a dark shadow over the father and his 鈥榠zzat鈥� or reputation/prestige in society or the locality. Due to these reasons, seeking justice in court is shied away from and the perpetrators roam about free. Many victims prefer to stay invisible. This encourages more rape and also emboldens potential perpetrators.
In such a social setting, controlling stalking and sexual harassment, which are common precursors of rape, is tough. Due to a lack of proper social and moral education, many young men are immature and not open enough to realise that they perpetrate an offence by stalking or harassing. Their families are either unaware of such behaviour or if they do know, in all probability, they ignore it or do not recognise its potential to grow into something more dangerous. Cyber stalking and harassment can be done undetected and even by enhancing the offence by creating fake accounts on social media. Such 鈥榟abits鈥� may potentially evolve into the more physical crime of rape.
Sometimes, if families do seek justice, they do so through an informal village arbitration, headed by the local chair or an influential member of the locality. Here, rape is reduced to a moral offence and not a criminal one. Unfortunately, victim-shaming most often guides the decision and the victim鈥檚 family is taken advantage of while the rapist gets off with a lighter sentence. Sometimes both the victim and the rapist are 鈥榩unished.鈥� It is unfortunate that victims resort to informal bodies when they should be seeking justice in a proper court for a crime. 鈥楩amily honour鈥� and 鈥榤oney鈥� often cloud the judgement of fathers of rape victims and after they receive 鈥榗ompensation鈥� from the rapist, the matter is dropped. There is no justice for the survivor.
There are no support groups for victims/survivors of rape, no social forum where they can get together or be counselled. Some legal aid organisations offer counselling, but not everyone can or is willing to seek assistance. The reasons are obvious.
On February 24, 2021, the High Court Division issued a rule asking the government to explain why it should not be directed to outline a scheme to ensure compensation for rape victims to make their constitutional right to life effective and meaningful. It also asked the government to show cause as to why it has failed to take appropriate steps for rehabilitation of rape victims. The rule was issues after the hearing of a writ petition filed by rights organisation Children Charity Bangladesh Foundation on January 2, 2021. The fact that a writ petition had to be filed against the government鈥檚 inaction, lack of compensation and rehabilitation for survivors of rape shows clearly the lack of initiative, empathy, sensitivity and justice in this regard. In February 2007, the Law Commission forwarded a report and a draft bill to the government, proposing and justifying a law that would provide compensation and other relief for victims of crime, including rape. This bill is yet to be discussed.
Bangladesh is a party to major international human rights conventions, including the ICCPR, the ICESCR and the CEDAW. It has laws that deal with issues of acts of gender-based violence. It has a constitution that guarantees equality before the law and non-discrimination. Nevertheless, in practice, we see that there are needs for major upheavals and amendments to the way women, their security and the violence they face are addressed. The current attitudes from society and the criminal justice system act as a catalyst to push survivors of rape away from seeking recourse. Such attitudes encourage perpetrators and potential perpetrators to commit violations against women. As the adage goes 鈥榳omen鈥檚 rights are human rights鈥�, the reluctance of the police and justice system bring home the fact that the lack of effective investigation and justice for rape amount to human rights violations.
In order to ensure that the crime of rape is dealt with in a befitting manner, the interim government must immediately amend the definition of rape and recognise that this is a crime perpetrated regardless of gender and age. It must criminalise incest and marital rape. The interim government must amend Section 10 of the Repression on Women and Children (Prevention) Act to include the definition of 鈥榮talking鈥� and 鈥榮exual harassment鈥�, as given in the 2011 High Court judgement in Bangladesh National Women Lawyers鈥� Association versus Bangladesh. Social movements and social media campaigns need to be initiated to change people鈥檚 attitudes towards 鈥榯aboo鈥� subjects so that victims have safe spaces to report and share their stories. Every police station should have in place trained, empathetic personnel ready to take care of victims of all forms of sexual violence and every hospital should have case workers and trained staff to tend to them. Rape is never the victim鈥檚 fault and social attitudes towards this crime and towards the survivors and victim-families, need to change. Now is the time to make sure this is hammered home.
听
Saira Rahman Khan teaches law at BRAC University.
