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Dhaka Tribune

Is death penalty for rapists a good idea?

The draft of the proposed amendment to the act is likely to be placed at Monday's cabinet meeting for approval

Update : 10 Oct 2020, 08:26 PM

The government has decided to reform laws to guarantee justice for rape victims or survivors with a view to ensuring a safer environment for women and girls across Bangladesh. 

Following the ongoing protests over the growing number of rape incidents in the country, the Law Ministry on Thursday announced its intention to amend Section 9(1) and some other sections of Women and Children Repression Prevention Act 2000 (Amendment 2003), including the death penalty as the highest punishment, alongside the existing rigorous life imprisonment and fines for rapists.

The draft of the proposed amendment to the act is likely to be placed at Monday's cabinet meeting for approval.

Rights activists, researchers, and law practitioners said, although the government is becoming harshest on such offenders with its latest initiative, they should focus on the reformation of laws to consider the wellbeing of rape survivors, which would be more supportive for them.

The reformation must include provisions of providing compensation and issues related to rebuilding their future, they said. 

President of Bangladesh National Women Lawyers' Association (BNWLA), Salma Ali, said capital punishment has already been evident in the Penal Code for murder after rape. 

She apprehended the fresh initiative would add another complexity to the judicial process. 

The Supreme Court practitioner said the Indian government also incorporated the death penalty for rape after the 2012 Nirbhaya gang rape and murder case.

However, the death penalty inclusion has failed to curb rape incidents in India and  have continued to make headlines there, she said. 

"What we need is to fix the loopholes in the laws. Protection of the evidence and witnesses, providing compensation for survivors and creating efficient manpower are the key factors," the BNWLA president said.  

Research Specialist of Bangladesh Legal Aid and Services Trust (Blast), Taqbir Huda, said responding to public demands by incorporating the death penalty would be a win-win for both government and protesters, but rape victims or survivors would not benefit. 

Mandatory capital punishment was first included in Women and Children Repression (Special Provisions) Act, 1995, which the Supreme Court declared unconstitutional in 2015. 

The Appellate Division had ruled that offenders could be sentenced to death or life term for killing after rape, scrapping the provision of a death sentence for the offenceof rape alone, under the 1995 law.

The rule came following an appeal filed by Blast in 2010 challenging the High Court's verdict that had upheld the death penalty of 14 year old Sukur Ali.

Blast and 16 other Dhaka-based national and international non-governmental organizations (NGOs) formed the Rape Law Reform Coalition in 2018 that identified 21 issues through a series of discussions with rights activists from NGOs, representatives from law enforcement agencies and the Women and Children Repression Prevention Tribunal, the Ministry of Woman and Children Affairs, and experts. 

On Wednesday, the coalition issued 10 point demands on justice for rape, including the missing links in the Women and Children Repression Prevention Act 2000 (Amendment 2003), which the government has taken initiative to amend.

"We need to be careful and make wise decisions. Otherwise we might fall 25 years behind [same as 1995] and have to repeat the same fight regarding the laws [as happened in the Sukur Ali case]," Taqbir said. 

The reformation of the act should prioritize the wellbeing of rape survivors, not the punishment, he added.

Redefinition of rape needed 

According to Bangladesh law (Penal Code 1860), rape requires sexual intercourse, with or without the consent of a woman, depending on the situation.

Senior Deputy Director of Ain o Salish Kendra (ASK), Nina Goswami, said the conventional definition of rape does not cover many incidents of sexual violation in the country, and subsequently perpetrators are acquitted of charges. 

She said the definition needs to be modernized, and the same was echoed by Taqbir. 

The definition of rape must cover all forms of non-consensual penetration, irrespective of gender of the perpetrator and the victim/survivor, he said.

The US definition is of this kind, which states -- "The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim."

Compensation and govt fund

The government usually bears the primary treatment cost of a rape survivor and the expense of a lawsuit after the charge sheet is submitted. 

Rape survivors and their families who may be struggling financially, often backtrack on their moral convictions to continue the lawsuit. 

That is the reason, BNWLA President Salma Ali said, there should be a government fund from which rape survivors can be compensated. 

"It will boost their morale as well." 

In the USA, a victim gets compensation from the Federal Crime Victims Fund, which was established under the Federal Victims of Crime Act of 1984. It covers lost wages or loss of support, medical costs, and mental health counselling. 

In the UK, compensation is provided to victims by the Criminal Injuries Compensation Authority (CICA) where victims can apply for compensation ranging from £1,000 to £500,000.

ASK lawyer Nina Goswami said the government itself breaches the law when a woman is victimized and cannot enjoy particular rights ensured by the constitution.

"And so the government has to provide the compensation." 

Protection of witnesses

Blast Researcher Taqbir said muscle power and financial ability provoke a criminal to go violent. 

"The way they can rape women using their muscle power, they could influence the witnesses in the same way during legal proceedings. And so the protection of eyewitnesses is needed," he said. 

There is no protection of rape survivors and eyewitnesses outside of court, which discourages them to fight for their justice, the researcher observed. 

Nina Goswami said the Women and Children Repression Prevention Act 2000 (Amendment 2003) mentions how witnesses are to be brought to court by law enforcement but that is rarely seen. 

"There is no sight of witness protection which is weakening the judicial system only. These loopholes need to be fixed immediately," she added. 

Reformation for implementation process 

The previous laws have created obstacles for judicial discretion pushing the prosecution of rape cases into difficulties. 

Supreme Court provisions have scope for exercising the power of judicial discretion in sentencing, said Taqbir, adding that this can ensure justice for rape survivors, depending on the level of crime. 

Nina said many lawyers do not know how to interview and question a rape survivor. 

The tribunal needs a pool of lawyers who would be women friendly and skillful in dealing with sensational cases and survivors who are stigmatized.

Salma Ali said Bangladesh has only 94 Women and Children Repression Prevention Tribunals where trafficking cases and other repression cases have also been filed. 

Every upazila needs to have at least one such court so that such cases can be disposed of in the least possible time, she said. 

Bangladesh lacks to-do or not to-do lists (like India) for law enforcement dealing with rape survivors. Officers also require extensive training for these purposes, she added.

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