Primitive rape definition fails to punish perpetrator, provide proper justice to rape victim
The primitive definition of rape being followed for the last 160 years, fails to ensure punishment of culprits and provide suitable justice to victims in order to bring down the number of rape incidents in the country, said speakers at a national conference .
Bangladesh Legal Aid and Service Trust (BLAST) organized a daylong national conference on “Rape Law Reform” at the Centre on Integrated Rural Development for Asia and the Pacific (CIRDAP), in Dhaka on Saturday.
The areas of discussion included: importance of ensuring inclusive justice for rape, challenging discrimination and inequality in rape law, addressing procedural barriers to accessing justice for rape, and redressing rape by ensuring punishment, deterrence, and reparation.
Rape being the most brutal form of social deviance, is worsening the lives of women day by day, speakers said.
Farah Kabir, country director of ActionAid, said it is very surprising that the laws in Bangladesh are yet to ascertain a proper definition of rape, when the country has entered the digital era and is striving to achieve the status of a middle income country.
Speakers said the country had three laws before independence and three after independence, but none of them define ‘rape’ properly.
Dhaka University Assistant Professor of Law, Taslima Yasmin, in her presentation – Problem in the Definition of Rape: Limiting Justice for the rape victim – said the penal codes that cover rape do not define penetration, fail to elaborate the meaning of consent, and the validation of consent. Most importantly, the laws cover mostly women and girl children, but male children remain excluded from the definition.
The laws also fail to ensure prosecution for sexual offenses committed against transgender persons or hermaphrodites and the laws are yet to recognize marital rape.
Furthermore, the law that defined sexual intercourse under age 13 as rape, was recently extended to age 16 by the Child Marriage Restraint Act, 2017, but this needs to be redefined and set at age 18, she said.
Former Justice AFM Abdur Rahman said, while working with such cases, the first thing we feel is that the definition of rape in existing laws is inappropriate.
It is very obvious that the sense of social morality and crime is not the same as it was in 1860. With the passage of time, the definition should be redefined further. The definition has been worked on in 1995, 2000 and 2003 (amendment). But the amendments fail to provide proper justice to victims. The definition of rape needs to be amended and it is a timely demand, he added.
He said the Acid Control Act 2002 and Acid Crime Prevention Act 2002 were enacted with proper care, including two major targets: ensuring justice for the victim and prevention of acid throwing. The success of the law to improve the situation is huge. To lessen the number of rape incidents in the country, the law should be defined giving priority to these two objectives: ensuring justice, and prevention of rape
Former Justice Nizamul Huq said the current laws have partly described rape. As it is incomplete, currently, rape cases are difficult to prove in court.
The horrible scenario
Number of cases settled outside the courts is 10 times more than the cases filed
Building Resources Across Communities (Brac) while providing legal support throughout the country for such victims, has found that the number of cases settled out of court are 10 times more than those cases brought into the formal justice procedure.
The Program Manager of Brac Human Rights and Legal Aid Services, Advocate Mitali Jahan, said from January to November this year they have received 667 complaints of rape incidents from their 453 aid centres in 61 districts.
Of these complaints, they could only file 61 cases with the courts and the rest of the 606 cases have been settled out of court through village arbitration boards or other means.
Capital punishment is not the only way out
Farah Kabir said it has been seen that whenever death sentences are included in any rape laws, criminals find a way to emotionally blackmail the victim’s family into marrying off the girl to the perpetrator of the crime, thereby circumventing the punishment provision of the law.
Has the death penalty stopped incidents like rape or has the number of rapes declined in reality, she asked. Rather, we should think of alternative ways to punish such criminal behaviour, she said.
Former Justice Nizamul Huq said an amendment alone can never solve the problem; the mentality of judges should be changed, he said.
The court after receiving any complaint sends a query to the police. An alteration to the system is needed to be established, he said, adding that according to court directives, two points of information are sought: first, if the complaint is true, and what was the role of the police in filing the case. Police most often give information about the incident but not about their role.
The judges should be stricter during the trial so that the victim can never be mentally tortured during the trial. It is the duty of judge, but most often it is violated in the lower courts, he said.
Bangladesh National Human Rights Commission Member, Nurun Nahar Osmani, suggested an independent judiciary team should be formed under the district chief magistrate to investigate incidents spelling out the role of the police.
If a complaint or query is made, the police often declines and rejects the case instead of filing it. In this situation the condition of a probe report is easily predictable, she added.
Former Justice Abdur Rahman said we are very unfortunate that whenever there are discussions about amendments to the law, lawmakers and parliamentarians think the discussion is about increasing punishment rather than ensuring justice and prevention of rape incidents.
We need to work harder to stop such incidents, including taking initiatives to build greater social morality in people, he added.