Character assassination of rape victims
Despite being a heinous crime, sexual offences, specially cases of rape, mostly go unreported in Bangladesh. There are numerous reasons for this to happen. The biggest hurdle appears to be the adversarial court proceeding which is lengthy, complex and even fails to offer adequate protection to the victims of sexual offences. Section 155(4) of the Evidence Act 1872 allows the defence counsel in a rape case to show that the victim was of generally immoral character in order to impeach her creditworthiness in a court.
While it is understandable that the burden of proving the offence of rape rests with the prosecution and the presumption of innocence lies in favour of the accused, it is utterly degrading and humiliating for the victim.
Almost as old as 150 years, section 155(4) is no doubt an archaic law which requires significant reform. Bangladesh is in need of 'rape shield' laws which prevent questioning the victim about her past sexual morality or behaviour except in rare circumstances. Such laws also prohibit the publication of the personal details of the victim. Rape shield laws are common in various jurisdictions including, but not limited to, Australia, Canada, United States of America (USA), United Kingdom (UK), South Africa, Scotland, Singapore and India. Most of these jurisdictions carried out rigorous law reform process to protect victims of sexual offences from being questioned about their character recognising the prejudicial impact of adducing bad character evidence.
Section 155(4) is a relic of the British colonial period. UK and Indian legal systems, which heavily influence the legal system of Bangladesh, have repealed this provision already. Ironically, however, Bangladesh has chosen to continue with the doomed legacy!
In UK, section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits the accused from questioning the complainant or adducing any evidence about her sexual behaviour without the leave of the court. In addition, 'sexual behaviour' has been defined so widely that even evidence of mere flirting would ordinarily be encompassed within its definition and as such offering maximum protection to the victim. The court will not grant a leave unless specific exceptional circumstances arise under sub-section (3) or (5) and where refusal of leave might risk rendering of an unsafe conclusion by the jury. The 1999 Act imposes further restrictions, such as that the questions must relate to 'specific' instance(s) and that no question shall be asked if it appears to the court to be reasonable that the purpose or main purpose behind such question or evidence is to impugn the credibility of the complainant as a witness.
Under section 228A of the Indian Penal Code 1860, disclosing the identity of a rape victim is a punishable offence except in very limited circumstances. The Criminal Law (Amendment) Act 2013 brought about the rape shield law in the form of section 146 of the Indian Evidence Act 1872. It is worth noting that section 146 provides an 'absolute' rape shield without specifying any circumstances when the rape shield would not be applicable.
It is high time for Bangladesh to also introduce similar rape shield laws. Though it may not absolutely prohibit evidence/questions of past sexual behaviour of the victim, it may require the defence to make an application for leave of the court before adducing such evidence or asking such questions. The leave, however, may only be granted in limited circumstances without attacking the credibility of the victim. The court will have to play an extremely cautious and vigilant role while considering such an application. This is unlikely to hinder the defendant's right to a fair trial since the burden of proving the offence of rape still rests with the prosecution beyond reasonable doubt. On the contrary, the non-application of a rape shield law violates a woman's right to privacy by allowing her personal life to be put on public display during a rape trial.
With day and age, Bangladesh as a society is becoming more matured. People are now openly discussing and debating serious issues like rape, sexual assault, consent, etc. on the social media, which were previously a social taboo. While the society is adapting to the needs of the 21st century, it is high time section 155(4) should also go through a robust change for ensuring gender justice in the society.
The writer is a practising Barrister.