Capital punishment for rape

At last, the government has proposed an amendment to the current law related to rape, enhancing the level of punishment. Rape and sexual violence has assumed an epidemic proportion. The recent horrific gang rape in Noakhali and the one in Sylhet, as well as innumerable others within a very short period of time, has led to public outrage, culminating into protests on the streets. According to Ain-o-Salish Kendra (ASK), at least 975 rape cases were reported in the country between January and September 2020. And that includes 208 gang rapes.

The government, in light of public demand, has announced the death penalty for the crime of rape. As well intentioned as it may be, we must point out that merely changing the existing law or bringing in new legislations would not automatically stem the plague the country is beset with. There are several aspects that one must be cognisant of, without addressing which it would not be possible to prevent rape. There is the legal, the procedural, as well as the societal angles which must also be addressed.

In so far as the legal aspect is concerned, there is unanimity in the demand for defining or redefining rape. Section 375 of the Bangladesh Penal Code 1860 is anachronistic, and the explanation therein is even more so. We feel that attempting to rape should also be considered as rape. Apart from this, laws should be brought in to provide protection for not only the victims but also the witnesses, simplifying the Evidence Act related to rape and the process of investigation, which more often than not ends up with the victim being even more victimised and consequently, irreparably traumatised. There is need, as a former Justice of the High Court Division says, for careful drafting and coordination of medical and psycho-social responses with legal responses.

The second aspect is the procedural, which cannot be delinked with the social aspect because of the taboo that the victim is subjected to. We should ask ourselves why 78 percent of rape victims (16, 804) between 2001 and 2013 chose not to pursue their cases even after taking the initial step of seeking medical treatment. This is the data from the government established one stop crisis centres. The fault is in the system; this is despite the appropriate laws. Thus, there is a need for making the legal procedure and investigation process more victim friendly, where the onus of proof should not be on the rape survivor. Furthermore, settlement of rape cases through local arbitration should be made a punishable offence.

It is because of flawed investigation, political influence and money that most of the cases fail to reach convictions. As another NGO report on the incidents of reported rape cases in six districts between 2011 and 2018 shows, of 4,372 cases, only five people were convicted. The reasons are evident.

Legislation only does not redeem a situation. Enabling conditions should be created for effective implementation of law, and that is what is necessary too for the prevention of rape.