143-year-old law which allows rape accused to question victims’ character needs change

The Law Commission wants the repeal of a draconian provision of the Evidence Act of 1872, which permits a man accused of rape to question the character of the victim to defend himself during trial.

Section 155 (4) of the act says, “... when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix [the girl or the woman who has been raped] was of generally immoral character.”

The British had enacted the evidence act in 1872 with this provision, which still remains in force.

The commission is now drafting proposals for a new evidence law to replace the colonial era evidence act, the law commission chairman said.

“We have not included this provision [section 155 (4)] in our proposals. We don't want the existence of such a provision in the new evidence law,” Justice ABM Khairul Haque, chairman of the law commission, told The Daily Star yesterday.

He said a rape victim deals with an extreme trauma.

“Moreover, allowing the accused to question her character during trial means forcing the victim to face a double blow,” said Justice Haque, also a former chief justice, in defence of abolishing the controversial provision.

He said the law commission had almost completed drafting the proposals for the new evidence act.

“We have dropped many provisions from the existing law and drafted new ones,” he added.

On completion of the draft, the law commission would hold views-exchange meetings with legal experts before sending the proposals to the law ministry for transforming those into laws, said the law commission chief.

Asked about the use of this provision, a lawyer, who practices in Dhaka district judges and metropolitan magistrate courts, said counsels of accused of rape ask indecent questions maligning the character of a rape victim which is embarrassing for the victim and her family members attending the court proceedings.

Though the controversial provision has been there for over 143 years, no successive governments in independent Bangladesh has moved to repeal it.

Chief Justice Surendra Kumar Sinha on Tuesday at a programme spoke for changes in the controversial provision and urged women leaders to raise their voice against it.

 “What can be more unfortunate than this when the accused during trial raise question about the character of a woman who seeks justice after losing her honour,” said the chief justice.

 He said such a provision existed in the evidence act in India, and one rape victim died of heart attack in a court as counsels of the accused were raising questions about her character. Following the incident, the Indian government has amendment the provision.