Bar to disclose rape victim's identity

Rape is one of the most heinous criminal offences occurring in Bangladesh. From January to September 2014, a total 527 incidents of rape or attempt to rape was documented in Bangladesh by Ain-O-Salish Kendra (ASK). Among these only 291 cases were filed, 43 victims died after rape and 11 other committed suicide.

The tendency of unreported rape cases is said to be the fruit of social stigma associated with rape and prevailing patriarchal attitudes, protracted court proceedings, inadequate investigations by police, lacunae in law, particularly the absence of rape shield provisions, etc. To justify these claims and provide sufficient awareness, we first analyse the law in writing – to which the majority of the population is not familiar with. In turn we will set propositions for the protection of rape victim's identity.

According to section 375 of the Penal Code of 1860, rape is committed when a man has sexual intercourse with a woman against her will, without free consent, falsely getting consent by making her belief that she is lawfully married, when her consent has been obtained by putting her in fear of death or of hurt and with or without consent if she is under 14 years old.

In the explanation of this section an exception is cited where sexual intercourse with one's wife over 13 years is not considered rape. In the current context this definition fails to address the cases of marital rape wholly and enables sexual violence on girls over 14 years who are still children by definition.

In the Prevention of Oppression against Women and Children Act of 2000, the discussion of rape begins from section 9 which declares a person or group committing rape or attempting to do such is to be punished with rigorous life imprisonment and fine. Death penalty is applicable for the guilty party when the victim has died or has been inflicted injury due to rape. In case of rape under police custody, this law for the first time recognised the direct responsibility of police personnel who happen to be in-charge of the custody of women. Among others, section 13 of the aforementioned law provides that the child born of rape is to be maintained by the perpetrator himself.

For victims, however, unaccepted ignominy often follows from irresponsible dissemination, through distribution of their pictures and identity. This is interpretive of a breach of article 43 of the Constitution of Bangladesh, which safeguards one's right to privacy. With the recent disclosure of yet another rape victim from Comilla, debate has sparked over freedom of expression and the prior mentioned right. This is so despite that to protect the acquaintance of the victim, section 14 of the above mentioned Act restricts the publication or sharing of news which discloses identity of the rape victims. That can include pictures and specially pictures of the victims during or after attacked. If done the accused is punished with imprisonment, which may extend to two years or with fine not exceeding one lac taka or both.

In social media platforms, such regulations are often unheeded and since we do not have any social media law for such circumstances per se, right to safeguard oneself against irresponsible dissemination retains the status quo of a penumbra right.

Specifically, one might as well question the need to share or distribute the often very lurid and traumatised depictions of the victim, given the fact that the victim has already been burdened social stigma and insecurity. Unconsented, uninformed and irresponsible dispensation of such nature has the effect of desensitisation rather than victim's destigmatisation, owing to the fact that harm is aggravated by allowing disclosure of private facts without attaching any liability whatsoever to an identifiable and culpable individual. Hence, parceling out of insensitive imagery through social platforms is necessary by way of legal regress.

The writers are students of law.