Anti-Rape Laws: Definition slanted against victims
When the law minister on Thursday announced that the law would be reformed to provide for death penalty for rape, activists, researchers and lawyers pointed out that far more crucial changes need to be made with immediate effect.
To begin with, for example, "rape" itself is restrictively defined only as penile-vaginal penetration -- although rape in reality constitutes many types of violent actions.
"In 2000, even though we have brought the Women and Children Repression Prevention Act to modify the punishment for rape, what it did not touch upon is the substantive definition of rape," said Taslima Yasmin, assistant professor at Department of Law, University of Dhaka.
"For this definition, in section 2 of the Act, it is mentioned to apply the definition given in section 375 of The Penal Code 1860; and with that, we have continued the 150-year-old archaic definition of rape," she said.
Section 375 defines rape as sexual intercourse with a woman against her will, without her consent, and adds that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. That is the extent of the definition.
Lawyers and activists say that the narrow definition of rape and some archaic provisions in laws relating to rape result in a low conviction rate, with a study last year estimating the rate to be three percent. Moreover, procedures -- such as the requirement of medical tests to find semen -- are also set up in a way that makes it hard to convict perpetrators and further adds to the trauma and scrutiny of survivors.
On October 5, when the Noakhali gang-rape survivor was first brought to the police station, the police filed a case under "attempt to rape" charges.
The charge was filed under Section 9(4)(B) of the Women and Children Repression Prevention Act, which covers the issue of rape.
"She was not raped," said the Begumganj police, even though they had in probability seen the extremely violent video where the survivor was repeatedly raped using hands, as well as a stick.
"I was not raped during the incident seen on video," the survivor told the police, even though she herself described in the first information report that the perpetrators used their hands as instruments in carrying out multiple acts of insertion.
It may have been that the survivor used "rape" to mean penile-vaginal penetration, which was not committed during the incident portrayed by the video. The survivor was, however, allegedly raped multiple times before by the prime accused Delwar.
"Attempt to rape" and "rape" charges have vastly different sentences -- the charge of rape carries a life sentence, whereas "attempt to rape" commits perpetrators between five and 10 years. The different sentences were set to reflect on the supposed proportionality of the crime.
But is the brutality of being raped with a stick, or hands, or the violence exhibited in the video in any way less severe in proportion than penile-vaginal rape?
"If we look at the global modern rape laws, this type of penetration [with objects or other body parts] and penile penetration are equally punishable offences and deserve an equal degree of punishment," Yasmin said, adding that not considering this rape evaluates it as a "lesser degree offence".
She said this also plays out practically as the "weight of the case gets lighter".
Nina Goswami, senior deputy director of Ain o Salish Kendra (ASK), said the lack of definition is a huge impediment to getting convictions in cases.
"This is why people give the highest priority to medical reports in rape cases, where there must be human semen. And that's why the perpetrators are not punished in most cases," she said.
"Without the presence of human semen, the victim's oral testimony and other witnesses' statements would be the major testimony but it is difficult to prove in reality, because getting the right witnesses is also difficult in rape cases. And this is how the cases become weak," she concluded.
The current conviction rate is unknown, although a statistic presented in an event called "National dialogue on action against sexual violence" organised last year by Ministry of Women and Children Affairs and the United Nations in Bangladesh stated it to be as low as three percent.
Earlier this year, this newspaper, quoting statistics of Bangladesh Shishu Adhikar Forum, reported that around three children are being raped in Bangladesh each day.
Nina Goswami pointed out that the narrow definition of "sexual intercourse with a woman" also makes it difficult to prosecute male rape.
"We have long been demanding this, as time has come to rethink and reform the definition. In fact, we cannot deal with the male child rape cases under this definition and these are dealt with by other laws as 'unnatural offences'," said Goswami.
The same goes for the rape of hijra or transgender individuals.
Furthermore, the law explicitly states that "Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape", thereby failing to criminalise marital rape. By not giving legal protection for victims of marital rape, the law ends up stating that marriage absolves an individual of the need to take consent before sexual intercourse.
But the definition is hardly the only section that needs reform, opined lawyers.
Rape survivors routinely have to face being defamed at court by The Evidence Act 1872 -- according to the provision of law, the complainant's character is judged so as to understand the merit of the complaint. That means the "character" of the rape survivor is directly used to judge whether or not her allegation is real.
"Section 155(4) of the Evidence Act 1872, expressly allows defence lawyers to introduce character evidence against rape complainants during trial," stated a report published by Bangladesh Legal Aid Services Trust (BLAST) titled "Between 'Virtue' and 'Immorality': Why Character Evidence Must Be Prohibited in Rape Cases".
In courts, defence lawyers try to establish a "lack of morality" in rape survivors by divulging details of their personal lives as a way of undermining their credibility, explains the report.
"Why does the raped woman need to prove her character in court?" said Salma Ali, eminent women's rights lawyer.
"In the Begumganj case, the survivor was separated from her husband for years. Will that be used against her as character evidence? In the context of our villages, it made her more vulnerable to rapists. Men consider themselves to be entitled to these single women," she said.
"If the character of the rape complainant can be proved immoral, it can impeach the testimony of the victim. And the victim then needs to prove her moral character. But what is the moral character, and up to who's standard? The character of a person cannot be relevant in a rape case, even if I'm a sex worker; I have the right to file a case for rape because the legal element is consent," said Taslima Yasmin.
As Salma Ali said, "The focus should be on more convictions. We need speedy trials and proper implementation of current punishments."