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Rape and the law: The Post-Delhi Syndrome

SAQEB MAHBUB focuses on the anomalies in the legal system that denies justice to rape victims.

In this day and age of multiple 24-hour news channels it is hard to miss a story wherever in the world it may be staged. Recently, the case of a Delhi medical student being gang-raped and mutilated on a moving bus therefore caught the attention of the Bangladeshi audience with almost as much fervour as the Indian one. The attention it was granted in Bangladeshi public and social media was surprising considering the fact that even though incidences of rape or gang-rape leading to death, and other acts of violence against women and girls occur regularly in the country's rural and urban areas, these stories usually have difficulty making it to the back pages of newspapers.

Nevertheless, the fact that our local media jumped on the global bandwagon came as a blessing. Just as the Delhi protests started giving impetus to countless news-channel talk-shows and instigated a peoples' movement all across India, the Bangladeshi newspapers caught hold of and extensively covered the story of a 14-year-old girl being gang-raped in Tangail, an incident that had occurred a week before the Delhi rape.

Prito Reza

One thing that the Delhi rape case, the subsequent protests and the subsisting movement has shown is that violence against women is an issue that needs to be dealt with -- both socially and legally. The Delhi protests, made successful by the student population, achieved an amazing social feat: they brought men to the streets -- a feat that women's groups and other civil society actors have long strived towards. Men being the chief perpetrators of violence against women, the active participation of men in the protests and in the overall civic movement is perhaps the biggest success story that has come out of this so far. As Bangladeshis, we are outraged and concerned by the horrific incident in our neighbouring country but one can also hope that lessons are drawn by us from the social movement that has followed there. It is quite heartening to see people gather on the streets in these past few weeks to unitedly call for an end to such violence. In such times, it is important to be precise in what our demands from the law are and to create a vision of how the law can play a positive role in fighting such endemic violence against women.

The main focus of this article is on the role that law and law enforcement can play. However, before we tackle gaps and issues within our current legal framework, one must address an issue brought forward by popular demand on the need for legal reform regarding rape laws.

Within a space of a couple of days of the Delhi protests, the dominant slogan that emerged out of it was “Hang the Rapists”. The language was imitated by many in the TV debates on the issue and was certainly the most voiced opinion in the interviews of ordinary people on the streets of India. The fact that the Indian Penal Code did not bear a death sentence for rape as such became the single most important legal issue. Notably, the Bangladesh Penal Code 1860 and the Nari O Shishu Nirjatan Daman Ain of 2000 have life imprisonment as the maximum punishment for rape, although the latter provides for death penalty in cases of death by rape. The question therefore arose -- is the absence of the death penalty a significant cause for the prevalence of these incidents? Or, in other words, can introduction of the death penalty effectively deter such incidences?

The Delhi movement for law reform has not, however, confined itself to the issue of death penalty only. Alternative punishments such as “chemical castration”, a treatment that would kill a sex offender's sexual libido, have also been suggested. But a significant limitation in the mainstream discourse has been the absence of ideas beyond reform of the punishment for rape, which assumes that perpetrators of rape would be deterred by the simple act of replacing one statutory punishment for another. In effect, the discourse has been mostly limited to thinking of the best punishment for such perpetrators.

Inevitably, what has been ignored is the ground reality that reporting of such violent crimes are disproportionately lower to the actual number of incidences, that the perpetrator can often not be identified by law enforcement authorities; that if identified, he may not be found; that if found, there may be insufficient or inadequate evidence against him at trial; and if there is a successful conviction at trial, the delay in the entire process may have been so much that the whole idea of deterring the next potential offender may be completely frustrated. Keeping these issues in mind, this article aims to explore the law reform debates in light of these realities after tackling the issue of whether capital punishment is indeed an effective measure -- whether “hanging the rapists” was a course of action that deserved the hype.

The Justice JS Verma Committee on sexual offences against women set up in India in response to the Delhi incident on January 24, 2013 rejected chemical castration as an appropriate sentence on the grounds of being unconstitutional and inconsistent with basic human rights and for its failure to treat the social foundations of rape. It specifically stated that death penalty would constitute a “regressive step” and that it “may not have a deterrent effect”. Instead, similar to the suggestions of this author, it recommended comprehensive changes in criminal law including inter alia changes to the definition of rape, speedy justice and the proper implementation of existing laws.

It must, however, be noted that since the Delhi victim has subsequently died as a result of her injuries, the perpetrators of the act are currently facing murder charges, punishable with the death penalty, anyway. The discussion in this article and the opinions voiced are, nevertheless, based on the initial reactions and the calls for death penalty for rape even before the victim had died.

Rape and the death penalty
The death penalty is perhaps the oldest form of punishment still surviving in the present world, but it is also a practice that is on its way out in the global arena. From “crushing by elephant”, a method of execution native to the Indian subcontinent that dates back 4000 years, execution methods have evolved to the modern day “hanging” in this part of the world. Methods such as decapitation, electrocution, stoning, lethal injections and gas chamber executions are still used elsewhere. But on the whole, capital punishment is now largely seen, firstly, as an affront to the human right to life and the freedom from cruel and degrading punishment, and, secondly, as a deterrent that is not effective enough to warrant such a draconian punishment.

According to Amnesty figures, out of the 195 independent member states of the UN, 100 countries (51%) have completely abolished the death penalty, 52 countries (27%) have it in law but do not practice it, while only 43 countries (22%), including Bangladesh, maintain it in both law and practice. Over the last 10 years, i.e. 2003-2012, 24 countries have abolished the death penalty, making it an average of 2.4 countries deciding against it every year. Furthermore, out of the 43 countries that still maintain the death penalty, only 15 countries have it as a punishment for rape. Therefore, for Bangladesh or India to join a rapidly thinning club would be going against a strong global trend of abolishing the death penalty.

An effect of going against the global trend that could frustrate real justice lies in the attitude that countries without the death penalty have taken towards countries that do execute. A sensational example is that of Noor Chowdhury, a convicted and self-proclaimed perpetrator of the assassination of Sheikh Mujibur Rahman and his family, who has so far been able to evade justice in Bangladesh by living in Canada. The sole basis of Canada's refusal so far to deport him to Bangladesh has been that Chowdhury carries with him a death sentence and will be hanged if he is deported, a form of punishment that Canada has taken a stance against.

Nevertheless, keeping aside global trends, is the death penalty even an effective way of curbing the crime it seeks to punish? Researchers have grappled with this question for a long time with no conclusive results. The most common argument against death penalty is that perpetrators commit crimes with the intention of not getting caught, and so the subsequent sentencing is likely to have little deterrent effect. Even if it did, perpetrators are unlikely to have weighed out the pros and cons of death penalty versus life imprisonment in deciding whether or not to commit the crime. It would also not deter crimes of passion, crimes under influence of drug or alcohol and by those who do not have mental capacity.

Additionally, real justice may be hampered for rape survivors, as judges will require higher burdens of proof before passing such a harsh sentence. According to Amnesty, a 2009 survey of criminologists showed that 88% believed that death penalty is not a deterrent. The famous sociologist Thorsten Sellin's careful comparisons of homicide rates in different states of the USA from 1920 to 1963 resulted in findings that led to huge doubts about the deterrent effect of the death penalty for murder. His writings brought about a diminishing reliance on the capital punishment and number of executions fell drastically in America. On the other hand, supporters of the death penalty have argued that the death penalty does indeed have a strong deterrent effect, as people will fear death more than any other form of punishment. They argue that death penalty is not only a deterrent but a permanent incapacitation of the perpetrator being able to commit a similar crime in the future, and as, society's best interest is served in the prevention of such crimes -- the strongest punishment should be used. From this one thing is clear, the state of the death penalty debate is one full of confusion, controversy and disagreement.

The reason for this lack of clarity in empirical data is perhaps logical. There are a host of factors which can curb serious crime, such as better policing and security, stronger social and moral values, better education, to name a few. To disentangle the deterrent effect of the death penalty, or any other penalty, from this myriad of other factors in play is a near impossibility. So, for instance, it will be very hard for someone to argue that the number of murders in the streets of certain American states are lower than in the UK (where there is no death penalty), just because in the American states murderers are executed. Rather, the murder rates could be lower for at least a dozen different reasons and circumstances.

As it stands now, the death penalty does not exist for rape either in India or Bangladesh. If it is to be introduced, there must be strong empirical evidence to suggest that it would deter future criminals from committing it. But at this moment, such empirical evidence is difficult to generate; all that exists is mostly contentious. On the basis of this, focusing on the statutory punishment is arguably the wrong approach, or at best, an incomplete one.

Rather, the bulk of the effort should be on solving the real problem -- bringing perpetrators to justice and ensuring that they do face the punishment that already exists. The following sections will aim to provide the aspects of our criminal justice system that are responsible and can be improved to bring rapists into the scope of the criminal justice system and have a real effect in reducing rape and violence against women.

Creating an environment where rape can be reported
The law or the functionaries of the state cannot even begin to play a role if rape is not reported. The social stigma attached to being raped discourages women from even disclosing it to close family members let alone resorting to the police. Even when family members are informed, such is the prevalent culture that families try their best to “resolve the issue” in any other way but taking the help of the law. In such circumstances, a gender-sensitive police force adequately trained and equipped to deal with rape survivor complainants is a must for prevention of the impunity that perpetrators of rape often enjoy. This should be complemented with support services, such as psycho-social counselling, access to legal aid and general support during the investigation and trial procedures, and most importantly, public legal education on rights and remedies available under the law.

Proper investigation and arrest of perpetrators
The criminal justice process will fail to punish a perpetrator of rape if the state does not provide for effective investigative agencies. The murder case of the journalist couple, Sagar Sarwar and Meherun Runi, is a glaring example of how weak our investigative agencies can be in solving cases. According to newspaper reports, the police had made the elementary mistake of letting in anyone and everyone into the crime scene, making it near impossible for any subsequent forensic investigation to be successful. After they had failed to identify the killers for more than two months, the High Court ordered the Rapid Action Battalion (RAB), a force hardly known for or trained with investigative skills, to probe the double-murder. RAB, as part of its investigation, exhumed the bodies of the slain journalists for DNA samples, which, with some foresight, could have easily been taken by the police before the bodies were buried. The samples were then sent to the USA for testing because our forensic laboratories were not equipped enough for a DNA-test.

All these efforts at investigating the murder of Sagar and Runi have not even resulted in identification of the killers let alone their arrest, and such results are likely to be repeated in cases where rape perpetrators cannot be identified or found. Without a specialised investigative agency equipped with modern facilities and training, criminals will be above the law whatever the statutory punishment for their crimes may be. Even if they are identified, whether our law enforcement agencies and border guards are vigiliant enough to prevent them from running wild and crossing borders, is doubtful.

Even in cases where alleged perpetrators of rape and other serious crimes are arrested, poor investigation and evidence collection leads to contradictions and loopholes in the police reports and medical reports. Evidence collection for rape cases face particular challenges, such as lack of adequately trained doctors and facilities, lack of access to DNA testing in most rural areas, delays in getting emergency medical access, and intrusive and archaic methods of evidence collection. These defects in the reports are commonplace in the criminal justice process of Bangladesh and even true criminals deserving convictions can use them to obtain acquittals or light sentences.

Therefore, to deter and prevent rape, any country needs a dedicated investigative agency of high standard and a force which is able to track and arrest alleged perpetrators so that they can be brought in front of a court of law with enough credible evidence against them to be tried, convicted and sentenced.

Prevention of delays in the trial process
The age-old principle of “justice delayed is justice denied” cannot be more significant than when it is a case of rape that we have in hand. The extreme psychological effect that this particular kind of criminal act has on the victim and her family is immeasurable. The social stigma that society attaches to victims of rape in this part of the world is also a factor that cannot be ignored. In such a setting, a long delay in passing a sentence or executing that sentence can not only be an affront to the justice system but a distressing phenomenon for the victim and her family to deal with.

A significant reason why delays in trials has a negative effect on justice being delivered is “decaying effect” the time-lag has, firstly, on the interest of the victim in pursuing the case, and secondly, on the quality of the evidence. Long delays can make the victim either lose interest or become frustrated with the process. If the time between the date of the incident and the day the witness stands on the dock to testify is too long, it is likely that their recollection of the incident will be less than ideal. In some cases, important witnesses may relocate or even pass away, all of which in turn will play to the accused's advantage. In a UNDP study titled “Evidence Based Analysis of the Trial Courts in Bangladesh” that this author was a part of, it was found that often this time-lag can be several years. Although in rape cases filed under the Nari O Shishu Nirjatan Daman Ain there exists a time limit of 180 days for the trial to be concluded, even these cases can go on for longer in practice. Firstly, it is not a mandatory time limit and secondly, a lot of external factors such as shortage of judges, witnesses not being present or found or willing, and so on, make it mostly impossible for the courts to restrict themselves within the limit.

Along the same lines, an additional problem is that the Investigation Officers (IO), who investigate the cases and submit reports based on which charges are framed, are transferred inter-district very frequently. So if a trial does not begin within a short time, which it hardly does as the UNDP study found, there is a very complex and time consuming process that the court has to go through in order to locate the particular IO and summon him from his location of transfer to testify in the trial. In that case, the initial delay causes even further delay.

Apart from general issues of inefficient case management that lead to the delays in hearing cases, the Bangladeshi justice system suffers from an acute shortage of judges, and in some districts like Dhaka and Chittagong, even courtrooms. In the course of the UNDP study, lawyers had blamed judges (along with their lawyer colleagues) for needless and countless adjournments that delay the justice process. Judges in turn were found to blame defence lawyers for making too many adjournment petitions and also the huge number of cases in their daily cause list, which would then compel them to grant adjournments in some cases to make time to fully hear at least some of the other cases.

It would seem that the basic problem starts from the fact that there are not enough judges which leads to the accused taking advantage by repeatedly asking for and getting adjournments to delay their convictions. Furthermore, even when convictions are handed out, the alleged perpetrators have opportunities of appeal, a process which again suffers from the same problem of delay being caused by shortage of judges and bad case management.

A holistic approach?
The crime of rape is one of the most horrendous and deplorable crimes known to man. It is even further aggravated when it takes the form of a gang-rape. To prevent it or deter it is certainly a duty of the state, but it is also the duty of the citizen to ask the state for such. In democratic societies like Bangladesh or India, where state action, at least to an extent, can be driven by public opinion or sentiment, it is important for the citizenry to demand for the right things.

Death penalty for rape and capital punishment in general, arguably, as the discussion above suggests, is an outdated concept in the current global atmosphere and no evidence conclusively suggests that it sufficiently deters future occurrences. So shifting some of the focus to the more behind-the-scenes aspects of the criminal justice system, for instance, effectiveness and quality of investigation and speed of trials is perhaps the need of the day. India's initiative of new fast-track courts created in the wake of the Delhi protests is certainly commendable and, depending on how they perform, they can be an example Bangladesh can learn from.

In future discourse of law reforms it is important to go beyond the proper implementation of current laws and policies and to expand the definition of justice to be afforded to survivors of violence to include compensation and rehabilitation, protection schemes for witnesses and survivors and development of a criminal justice process that is both gender- and victim-friendly.

Saqeb Mahbub is a Barrister-at-Law and an Associate at Huq and Company, a Dhaka-based law chambers. He writes on legal and constitutional issues and is the author of a book titled "Secularism and the Constitution of Bangladesh: Issues and Concepts" published by LAP, Germany. The writer can be reached at [email protected]