The government would do well to use the HC case as a springboard to outlaw marital rape
Mindsets matter. In the battle to counter rape and gender-based violence, overcoming and reversing harmful social attitudes is as vital as reforming outdated colonial-era laws.
Activists on the recent Muktir Michhil and Shekol Bhangar Padojatra’s marches placed great emphasis on equal rights, liberty, and the need to end victim-blaming. Everyone has a fundamental right to feel safe from fear of assault or harassment wherever they go; women should not be having to ask for this, as if it was a special favour.
The High Court ruling on November 3 requiring the government to explain why the provision inherited via the 1860 Penal Code, that a perpetrator who is married to their victim gets a defense to rape, should not be declared unconstitutional, is potentially helpful in reforming attitudes.
As an egregious and offensive defense, the merits of the petition brought by Bangladesh Legal Aid and Services Trust (BLAST), Brac, Naripokkho, and Manusher Jonno Foundation, speak for themselves.
Most people instinctively understand “no should mean no” and are happy to cheer when an attempted rapist meets a grisly death in a film. But they are also predisposed to believe in harmful myths like “unless a victim screams and punches, consent can be assumed” or “most rapes are perpetrated by strangers.”
Like murder, the truth is in most countries during peacetime, most victims of rape know their assailants, but it is common to associate the crime with strangers as such cases are most likely to be reported in the media.
This attitude, prevalent across the world, is one reason why intimate partner violence and the abuse of children in schools, religious institutions, and orphanages have historically gone under-acknowledged in many countries.
While under-reporting of rape is a universal issue, the lack of comprehensive definitions for sexual assault and the Penal Code limiting its definition of rape to penetration by a man against a woman, can only make this worse in Bangladesh. Should the government heed the petition to outlaw marital rape and end legalized impunity, this will accomplish more than abolishing an archaic rule. It will send the vital message that without consent, sex is unlawful abuse. This is essential to improve prevailing attitudes.
The government has plenty of incentive to follow the High Court’s lead. Empowerment of women is a key national policy which underpins many of Bangladesh’s development goals.
Legal reforms proposed by groups like Ain o Salish Kendra and the Rape Law Reform Coalition support the same aim. Indeed, those helping rape victims are probably more interested in seeing government initiatives like victim support and one stop crisis centres properly funded and implemented, legal aid expanded, and building on laws like the Domestic Violence Act in 2010 and Women and Children Act 2000, than in changing a few lines of a Victorian penal code.
It still makes sense to do the latter though, as little cost or time is needed and the changes could positively influence wider societal attitudes.
What does the existence of marriage as a defense to rape mean for instance, other than society treating married women as the “property” of their husbands?
Changing this is imperative both to support equality and make it simpler to explain the principle of consent.
From an early age, girls are subject to more conditioning, control, coercion, and double standards than boys. If everyday sexism and discrimination did not so often go unchallenged, we might be able to have higher expectations that existing laws to deter sexual violence and assist victims are properly implemented.
Sadly, it is of little surprise they fall short in practice and Bangladesh stood at only 142 out of 167 countries in the Georgetown Institute for Women, Peace, and Security rankings last year.
The government could do well by using the High Court case as a springboard to outlaw marital rape and decisively push forward with reforms to empower women and improve equality.
But even if it delays, I am sure the demands of recent women’s marches will percolate across society, because they make sense, support rights for everyone, and stand up for the spirit of liberation.
Niaz Alam is London Bureau Chief of Dhaka Tribune.