Incidents of rape have been making headlines on a daily basis for quite a long time now. An alarming increase in the number of this gruesome sexual violence, now requires us to revisit the rape laws in play in Bangladesh and review the entire criminal justice system in this regard as well.
The special law that deals with rape is the Nari O Shishu Nirjaton Daman Ain, 2000 (as amended in 2003). For a woman aged above 14, rape happens, according Section 9(1) of the Ain, when sexual intercourse takes place without lawful marriage, against the woman's will or by obtaining her consent fraudulently or by putting her in fear. For a woman aged under 14, sexual intercourse itself amounts to rape, and here, consent is immaterial.
Under section 9(2) of the Ain, if in consequence of rape or of any act committed after rape, the woman or the child dies, the man shall be punished with death or with life imprisonment and with fine not exceeding Tk one lakh. If more than one man rape a woman or a child and that woman or child dies or is injured in consequences of that rape, according to section 9(3), each member of the gang/group shall be punished with death or rigorous imprisonment for life and also with fine not exceeding Tk one lakh.
Attempt to rape a woman or child is punishable with imprisonment which may extend to 10 years, but which shall not be less than five years, and fine. Attempt to cause death or hurt after rape, on the other hand, is punishable with imprisonment for life and fine.
The law also provides that if a woman is raped in police custody, each and every person under whose custody the rape was committed, shall be punished for failure to provide safety to the woman in question. The imprisonment may extend to 10 years but not less than five years of rigorous imprisonment, coupled with fine.
The laws seem stringent in terms of providing punishments. However, the stringent laws do not seem to play an effective role in tackling rape as an offence committed on regular basis against women in Bangladesh.
Taslima Yasmin, assistant professor of law at Dhaka University, spoke to The Daily Star on the current situation as well as the legal framework.
She observed that it is high time the policy makers in our country took rape justice seriously. It is essential, according to her, that sexual offences, including rape, are prioritised as an issue, and addressed with utmost care.
Regarding laws, she commented, "We do have stringent laws in place that provide for harsh punishments for rape. However, it is now clear that the existing laws have failed to work as deterrent factors for the perpetrators. The deep-seated culture of impunity has almost become a norm and the potential perpetrators are not fearful of the laws or the punishments that such laws provide for, anymore."
"Now it is time to rethink the legal framework; we need to emphasise more on the effective implementation of the existing laws. The Nari o Shishu Nirjaton Daman Ain of 2000 has introduced stringent punishment for rape; however, the substantive definition of rape is drawn from the Penal Code, 1860, which is a colonial holdover. Lessons need to be learned from different countries in reforming the rape laws and making those suitable for the present times," she said
"The procedural laws also need to be revisited and reformed (for example, it is high time we reformed the provision of Evidence Act, 1872 that makes room for character assassination of a rape victim during trials," she added.
Additionally, she observed, "Gender-sensitivity in dealing with rape cases needs to be ensured at all levels for individuals who are engaged in investigation and justice dispensation. We need to ensure competence, transparency, and sincerity from all criminal justice actors in this regard."
When asked if reforming laws alone will be enough, she opined, "Beyond laws, we also need to think about the societal issues that contribute to the increase in sexual crimes like rape. Gender inequality and misogyny permeating different spheres of the society now need to be addressed with comprehensive plans as well as policy initiations."