Defining rape as gender neutral

Under section 375 of the Penal Code of Bangladesh, 1860; rape occurs when a man has sexual intercourse with a woman under one of the circumstances like, against her will, without her consent, when her consent has been obtained by putting her in fear of death, or of hurt. The rape also occurs in the situation like when a man approaches with her consent and he knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married, with or without her consent, when she is under fourteen years of age.

An explanation of what qualifies as rape is provided at the end of the definition, which states: “penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.”

The statutory definition of rape in Bangladesh makes it clear that rape is a gender based offence which can only be carried out by a male through penetration and the victim can only be a female. Our criminal justice system only accepts penile-vaginal non-consensual intercourse as the offence of rape, a male perpetrator and a female victim. Anal or oral penetration by the penis or any penetrations by other objects are not included in the definition of such offence.

Though, under the section 375 of the Penal Code, a female cannot face the criminal trial as offender of rape. Interestingly enough, the same punishment for rape, i.e. capital punishment or life imprisonment, can be imposed on her for instigation or abetment of such offence. Section 30 of the Prevention of Oppression against Women and Children Act of 2000 confirms that the punishment for instigation or abetment of offence, under this Act, shall be the punishment provided for the commission of the offence or for the attempt to commit the offence.

It is needless to say, our archaic criminal law on rape is not gender neutral. Gender neutrality within rape statute is the concept that the criminal law should recognise that both men and women can be rape victims as well as perpetrators. Many scholars have criticised traditional rape laws that only prescribe penile-vaginal non-consensual intercourses, arguing that these laws exclude “a great deal of behaviour which is remarkably similar to the act legally distinguished as rape and...such exclusion appears to rest on no logical or justifiable grounds.”

Some argued that penile-vaginal intercourse is distinguished from other forms of penetration on the ground that penile-vaginal rape risk pregnancy. In response to such arguments Jenifer Temkin had noted, “ the fact that pre-pubertal, menopausal, sterilised, and infertile women as well as those practice contraception are all covered by the law of rape suggests that the risk of pregnancy is not of overriding significance in the definition of rape. “

Jurisdictions that have adopted gender-neutral laws include: Canada, all Australian states, the Republic of Ireland, Finland, England and Wales, and the vast majority of states within the United States. Gender neutrality, however, are not uniform in nature.

Though Rape is as an offence since ancient Roman time, across dozens of jurisdictions, gender neutral reforms have been adopted as part of a wider law reform agenda in an attempt to reflect a more modern understanding of the purpose of rape law.

For an instance, male rape was first recognised under English law in 1994 when the definition of rape was revised so as to include non-consensual, penile-anal intercourse of a woman and man. A further extension to the definition of rape resulted from the report of the Home office Review of Sex Offences, to include penetration of the mouth, is implemented into law by the Sexual Offences Act 2003.  The Review recommended this change based on the trauma that can be caused by such assault. Whereas, in Bangladesh, regarding the offense of sexual assault, the Penal Code offers section 354 addressing “assault or criminal force to woman with intent to outrage her modesty”, neither acknowledged the bodily harm of the victim or the physical or psychological trauma that a victim may go through in consequence of that assault.

To recapitulate, this is the high time for redefining rape as to adopting an expanded gender-neutral definition of rape and thus reshaping the obsolete British colonial hangover on Bangladesh Penal Code. A gender neutral law would certainly mark the beginning of a gender democratisation era in Bangladesh.

The writer is a lawyer at Dhaka Judge Court.