Their call has come at a time when the government is considering amending laws to include capital punishment for rapists, in the face of rising protests
Legal experts and rights activists are saying the 160-year-old definition of rape and other related aspects of the country’s laws should be reformed first to ensure proper justice, rather than simply introducing the death penalty for rapists — a demand that has spread like fire over the past week in light of the sudden spike in sex crimes across the nation.
Their call has come at a time when the government is considering amending laws to include capital punishment for rapists, in the face of rising protests.
Experts and activists have also said that apart from reforming and updating archaic laws as soon as possible, authorities also need to immediately address systemic rape trial problems, and the absurdly low conviction rate in rape cases.
Section 9 of the Women and Children Repression Prevention Act mentions the punishment for rape and murder after rape. But the law does not define the crime itself. Instead, that definition of rape is in the Penal Code of 1860, of the British colonial era.
Section 375 of the Penal Code states: “A man is said to commit "rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions…”
Firstly- against her will; secondly- without her consent; 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; fifthly- with or without her consent, when she is under fourteen years of age.
The Penal Code also explains that “penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.”
The exception it mentions says “sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape.”
Regarding this, Bangladesh Legal aid and Services Trust (Blast) Senior Staff Lawyer, Barrister Sharmin Akter, told Dhaka Tribune: “We are still following the colonial law, whereas the United Kingdom has already introduced a provision to trial marital rape in their laws.”
“The archaic definition has to be changed and the law reformed,” she added.
Moreover, the “two finger” medical test system for rape survivors is still being used in the country despite a High Court order against it, she said.
Talking to Dhaka Tribune, Law Minister Anisul Huq said: “For now, we are thinking of introducing the death penalty [for rapists], and implementation of the High Court directives.”
“I do not know what is in the definition in the Penal Code’s Section 375. I will see what laws of other countries say on this issue,” he added.
Broader definition needed
A coalition of 17 rights organizations, including Blast and Ain o Salish Kendra (ASK), has been pushing the government for years, to reform laws concerning rape. In 2008 they also gave a 10-point recommendation to the authorities.
Four of them on legal reforms call for reformation of rape laws, in line with human rights standards, a broader definition of rape to make it non-discriminatory, defining penetration to cover all types of rape, allowing proportionality of punishment and the introduction of sentencing guidelines.
Saying courts now punish perpetrators in male child rape cases under the Penal Code’s Section 377, lawyers demanded that such cases should be tried under the Women and Children Repression Prevention Act and other applicable laws, because such crimes are tantamount to rape in a general sense.
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Section 377 states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment] for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
It also explained that “penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
Founding President of children’s rights organization, Children Charity Bangladesh (CCB), Barrister Abdul Halim, told Dhaka Tribune: “The court should also consider the Women and Children Repression Prevention Act, beside the Section 377, when trying a male child rape case.
“However, there is no such record till now where the authorities concerned have taken any other law into consideration apart from Section 377.”
‘How can this still exist?’
Bangladesh National Women Lawyers’ Association President, Advocate Salma Ali, said: “As human rights activists, we never support the death penalty.
“The conviction rate in rape cases is extremely low. Apart from the updating of rape laws, all systematic trial problems must also be addressed.”
She added that all rape related sections in the Code of Criminal Procedure (CrPC) of 1898 — which is also an archaic document — and the Penal Code, need to be updated and modernized.
“Particularly, Section 155/4 of the Evidence Act also needs to be changed as it assassinates the character of a rape survivor or victim,” Salma stressed.
This particular section states: “When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.”
“How can this [section] still exist in a civilized country?” Salma Ali, also a Supreme Court lawyer, expressed surprise, urging that preventive measures must be included in the existing laws.
‘Death penalty not the solution’
Talking to Dhaka Tribune, another Supreme Court lawyer, Barrister Jyotirmoy Barua, echoed Salma’s opinion concerning the reformation of archaic laws and the death penalty.
“The death penalty is not the ultimate solution. The current conviction rate will contradict that demand, if implemented,” he said. “The laws need to be updated and implemented justly.”
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“Punishment in the existing laws and implementation of the High Court directives can gradually stop rapes from happening. But social and cultural changes are also necessary for this to happen,” said Jyotirmoy, also a right activist.
He also expressed frustration with the Woman and Children Repression Prevention Tribunals still ignoring the High Court’s directives.
On July 18 last year, the High Court gave seven directives to judges of rape tribunals across the country, and asked them to finish the cases of rape, and murder after rape, within 180 days, by continuously holding hearings on every working day, in line with the Woman and Children Repression Prevention Act’s Section 20.
It also gave directives for the forming of monitoring committees to ensure the presence of witnesses, and their security, in court during hearings. The committees were also told to submit reports on their actions, to the Supreme Court and the home and law ministries.
Supreme Court lawyers said that they had absolutely no information regarding whether these directives are being followed by the tribunals, or whether the committees are sending the reports.
The bench of Justice M Enayetur Rahim and Justice Md Mostafizur Rahman issued the directives originally, on December 5, 2016, and reinforced them in July last year.
Last Wednesday, the bench expressed disappointment and displeasure with the failure of the authorities concerned, including all the tribunal judges in 22 districts and 42 district courts, with regard to their complying with the directives.
With the seven directives in July last year, the bench had also observed that a law needed to be formulated on an urgent basis in order to provide witness protection services.
According to the Law Commission, the final report on the “Victim and Witnesses Protection Act,” was submitted to the Law Ministry and Home Ministry on February 9, 2011.
But since then, there has been no new update with regards to this law.
In the absence of this law, lawyers say, many victims do not come forward to seek justice, as they face intimidation from perpetrators, and lack security.