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A sympathetic ear

  • Published at 12:31 am May 10th, 2019
Gavel
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A rape victim should not have to give her statement to a male magistrate

Rape is a grievous and alarmingly frequent crime that we have been witnessing in this country almost every single day. We have laws to ensure the punishment of the offender, but this has done little to lessen the problem.

Loopholes in the laws

Whenever the victims come to provide their testimony, it becomes difficult for them to place their statement before a magistrate. Why is this so? Because our judicial proceeding is not up to date. 

Also, no provision has been made that allows female magistrates to record the statements of the rape victim. It is only natural that the victims hesitate in answering the questions asked by the magistrate when the magistrate is not female.

Section 22 of the Women and Child Repression and Prevention Act, 2000 talks about the “the ability of the magistrates to take the confession anywhere.” This section also talks about the first-class magistrate to record the statement of the victim. So, this section does not mention clearly the terms for the male or female magistrate.

Rather, it puts emphasis only on the first-class magistrate. It is disgraceful for the victim to place their statement before the male magistrate; female and child victims are made to give their accounts to male magistrates in many cases, and such victims feel uncomfortable and shy to narrate the complete incident in detail.

Comparing the laws

If we compare the existing code of criminal procedure in India and Bangladesh, it is noticeable that, in India, upon receipt of information about the commission of offense of rape, the investigating officer shall take immediate steps to take the victim to any metropolitan or preferably judicial magistrate for the purpose of recording her statement under S.164(5) of Code of Criminal Procedure (CrPC) 1973. 

The section states: “The investigating officer shall, as far as possible, take the victim to the nearest lady metropolitan or preferably lady judicial magistrate. The investigating officer shall record specifically the date and the time at which he learned about the commission of the offense of rape and the date and time at which he took the victim to the metropolitan or preferably lady judicial magistrate.” 

The existing CrPC in Bangladesh has no specification about recording statements of the female and the child rape victim.

Among the recent harassment incidents committed in the country, the one against Nusrat Jahan Rafi is one of the more heart-breaking cases. Following allegations of sexual misconduct, the former OC in charge of recording a statement of the victim recorded a video of Nusrat without her consent, and spread the footage on social media. 

However, on April 16, the High Court Division Bangladesh prescribed a circular ordering the government to follow certain guidelines. This mentions that, from now on, only female magistrates will record statements of female and child victims of rape and sexual harassment in order to ensure fair investigation and justice. 

It is a relief and hope that while female magistrates record the statements for fair investigation on rape and sexual harassment, the victims will feel less hesitation about making their statements and giving detail, and will hopefully not feel like they are in a very uncomfortable situation.

Another crucial area which is untouched -- the victims of rape and sexual offenses have to face a number of questions at the stage of cross-examination. The existing Evidence Act 1872 doesn’t have any prescribed manner of questionnaires that should be followed. 

A question that is to be asked to the adult might not be appropriate for the child victim. We see a sign of hope that the Supreme Court may set the standard guidelines or nature of questions to be asked to a child or woman in case of rape or sexual offense.

It is worth mentioning that, for our society, these kinds of rules or decisions was badly needed for a better judicial system. And is a decision that is appreciated and welcomed by all. 

It can be assumed, without any shred of doubt, that such a landmark decision will play a vital role to ensure justice in our society. 

Shahriar Bin Wares is a student of law.