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OP-ED: Is the death penalty enough to prevent rape?

  • Published at 10:49 pm October 24th, 2020
death penalty
Representative photo of death penalty sentencing. BIGSTOCK

There is much yet to be done to eradicate the rape epidemic

The movement against rape and sexual harassment gained renewed momentum around a month ago. Protests have not remained limited to Dhaka, but have spread all over the nation. All eyes were on what measures the pertinent authorities would take to bring an end to this hideous trend of rape and sexual harassment against women.

President Abdul Hamid signed an ordinance on the October 13, 2020, to amend Section 9 of the Nari o Shishu Nirjaton Domon Ain 2000 (Women and Children Repression Prevention Act 2000) incorporating death penalty, for perpetrators of rape, along with the present highest punishment of life imprisonment.

Although the government acted in favour of what the people in general desired and protested for, the action has sparked a debate regarding the consequences of amending the law, especially in a country where 975 women were raped in the first nine months of the year -- one fifth of them being gang rapes, while 43 of the 975 victims were killed or committed suicide after being attacked, as reported by Ain o Shalish Kendro (ASK).

Many experts and activists are saying that the amended law may further put the lives of the victims in danger as “a tendency to murder after rape may grow among the rapists to erase evidence.”

However, the Minister of Law, Justice, and Parliamentary Affairs Anisul Huq expressed optimism about the insertion of the death penalty in the legislation and believes that adopting necessary measures like “speedy and fair trials” and “proper investigation without any political or other interference” will significantly control offenses against women and children.

But the question remains: Is amending the law on severity of punishment enough to overcome the hideous trend of sexual offenses against women? Do we think simply fixing the legislation on punishment is enough to bring justice to the victims?

The trial is a chain process. Lack of adequate evidence, getting wrong guidelines from the prosecutor, voids in the law, filing false police investigations, piling of unattended cases, etc remain among the shortcomings, and not fixing these elements will continue to hinder the whole process of bringing justice to the victims.

What, then, can possibly be done to overcome the void that is already there in both the substantive and procedural law?

First and foremost, the definition of “rape” under Section 375 of the Penal Code 1860 needs to be amended. It defines “rape” as follows:

“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 consent when she is under fourteen years of age.

“Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape.

“Exception: Sexual intercourse by a man with his own wife, the wife not being under 13 years of age, is not rape.” 

he definition solely focuses on women, when in a country like Bangladesh, Hijras are recognized as a third gender and allowed to cast votes in national elections, but are not entitled to seek justice when sexually assaulted.

Also, “marital rape” in Bangladesh is a very common issue, but it is particularly addressed as exception in the definition of rape. A woman being married to a man does not mean the woman gives irrevocable consent to the man at his will for as long as they are married. The exception does not take this issue into consideration.

In the 19th century, the impracticality of marital rape under English law was suggested by Sir Matthew Hale in the book named Historia Placitorum Coronae (History of the Pleas of the Crown). It suggested that by providing consent to marriage, a wife had given her body and irrevocable consent to sexual intercourse with her husband to her husband.

However, this principle was later withdrawn in the case of “R vs R [1991] UKHL,” where the House of Lords upheld that under English criminal law, it is a crime for a husband to get involved in any sexual activity with his wife against her consent. It is high time for Bangladesh, too, to remove the exception of marital rape and treat it as a serious crime like any other sexual offense.

Apart from the general substantive and procedural criminal legislation in Bangladesh, ie the Penal Code 1860 and the Code of Criminal Procedure 1898, there are other special legislations that have been introduced and enacted over the years. These are: Nari o Shishu Nirjatan Daman Ain 2000, the Dowry Prohibition Act 1980, the Domestic Violence (Prevention and Protection) Act 2010, and the Family Courts Ordinance 1985.

Even after implementing these acts, ensuring justice for victims has remained a challenge because of the void in the legislation, which eventually led to low numbers of convictions. Hence, directives as “guidelines” were introduced by the High Court for the pertinent authorities so that victims could feel free to come and file cases as soon as they were victimized, and also to ensure protection, security, investigation, and justice for women and children who are sexually abused or raped.

Although the number of cases filed by victims seems to be increasing, no significant change has so far been seen in the frequency of sexual offenses so far, as we continue to see reports of sexual offenses on a regular basis in the news.

The government deserves credit for swiftly incorporating a significant amendment on the severity of punishment against sexual offenses. However, the relevant authorities and officials must consider the shortcomings on the major issues that have been raised.

Until and unless we look deep into these matters and fill the void, ensuring justice for all victims may remain too big a challenge to overcome, even after establishing this groundbreaking decision of the death penalty as the highest level of punishment for rape.

Ayesha Fariha, barrister, is a Lecturer and Academic Guidance Tutor at London College of Legal Studies (South).

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