Evidence Act too chaste for prosecuting rapists

"Licentious", "hired" or "unchaste" women, prostitutes, or women used to sexual relations cannot be raped, shows a report analysing judgements of cases, which took Section 155 (4) of the Evidence Act 1872 into consideration.

The report titled "Sotirai Kebol Dhorson Hoi" (Only the Chaste are Raped) showed what rape survivors, seeking justice, experience because of this section.

Fatama Sultana Suvra, assistant professor of anthropology, Jagannath University, prepared the report based on oral history and case analysis.

The findings show that a rape survivor's alleged character is taken into consideration at courts, and it affects the verdict.

Any suggestion that the victim is of "easy virtue" (sexually promiscuous behaviours or habits) may result in an acquittal of the defendant even if the court has found that non-consensual intercourse occurred, found the study. 

The report, published by Bangladesh Legal Aid and Services Trust (BLAST), was launched yesterday at Bangla Academy.

It recommended that Section 155 (4), which allows consideration of a woman's character constructed from her romantic or sexual history, must be repealed.

In preparing the report, the researcher went through documents of about 300 rape cases recorded by BLAST between 2000 and 2010 and talked to 15 rape victims, five doctors, five lawyers, three retired judges and five rights activists and five accused of rape cases.

Section 155 (4) reads, "When a man is prosecuted for rape or an attempt to ravish it, it may be shown that the prosecutrix (victim) was of generally immoral character."

In one judgment, presented in the report, where all seven accused of gang raping a 13-year-old girl were acquitted, the court took into consideration the girl's "romantic" relationship with one of the accused.

In the case State vs Sri Pintu Pal, filed in 2010 under the Women and Child Repression Prevention Act 2000, the accused was acquitted as the complainant was a domestic help and considered to be of "easy virtue".

The judgment read, "The plaintiff woman is of easy virtue so her dignity is low. As a result this accusation is not believable; court did not find any clear evidence to place their trust on the accusation brought by this woman of easy virtue."

In the case State vs Abdul Majid, where a divorcee with one child was raped by her neighbour in her own house, the judgment read, "The plaintiff is habituated to sex so it was not possible to obtain any evidence of rape. The victim is of 'immoral' character and involved in different unsocial and unethical activities." The accused was acquitted.

The report was prepared as part of the SHOKHI project, which focuses on women's health, rights and choices and is supported by the Dutch embassy. The project is led by BLAST in partnership with Bangladesh Women's Health Coalition, Marie Stopes Bangladesh, and We Can Alliance.

It was commissioned when BLAST was working to abolish the humiliating two-finger test, which is conducted on women or girls to check their virginity, said Najrana Imaan, team leader of SHOKHI.

"We wanted to find the legal basis of the two-finger test and came across Section-155 (4)," she said.

Society thinks that rape occurs only when an intact hymen is recently torn, when women are threatened with weapons, or left with severe injuries, or when they commit suicide from shame of losing their chastity, observed the report.

The report suggested legal and judicial reform which included abolishment of the two-finger test, collection of DNA evidence and use of camera trial for all rape cases.

ATM Fazle Kabir, member of the Law Commission, said in the newly drafted Evidence Act, Section-155 (4) was removed.

To prevent harassment of rape survivors, he asked judges to use their judicial power to stop defence lawyers from asking indecent, irrelevant questions in courtrooms.

Human rights activist advocate Sultana Kamal moderated the programme, while Ayesha Khanam, president of Bangladesh Mahila Parishad, Ella de-Voogd, first secretary of Sexual and Reproductive Health and Rights, embassy of the Netherlands, and Ali Asgar Swapan, special public prosecutor, Nari O Shishu Nirjaton Domon Tribunal 5, Dhaka spoke.