Against the archaic definition of “rape” | The Daily Star
12:00 AM, April 09, 2019 / LAST MODIFIED: 12:00 AM, April 09, 2019

Law letter

Against the archaic definition of “rape”

The existing Penal Code of 1860 that was promulgated during the British colonial era is mostly unchanged and archaic ever after 159 years of its adoption. Definition of rape enshrined in the section 375 is inter alia the most primitive rhetoric that defines the most heinous crime rape very narrowly. Though the punishment for the rape was upgraded by enacting the Prevention of Oppression against Women and Children Act of 2000, the definition of rape is still constrained in penile-vaginal penetration. Section 375 of the Penal Code defines rape as sexual intercourse by a man with a woman without her consent albeit there are five other grounds when sexual intercourse amounts to rape including, for instance when consent is obtained through fraud, threat of hurt or death. Most of the reported rape cases suggest that sexual intercourse without consent is alleged by most of the victims while filing the rape charges. The worrying fact is that the term “sexual intercourse” is not defined under section 375, although the explanatory part of the section states “penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape”. The courts have been interpreting the terms “sexual intercourse” and “penetration” to mean penile-vaginal penetration between male perpetrator and female victim that does not require ejaculation for intercourse to be rape. These narrow definition and historical interpretative praxis of the courts thoroughly exclude any other penetrative actions, such as oral sex, anal sex, digital penetration and penetrations by objects from the contour of the rape law. Two other serious lacunas of the section 375 are of the legalisation of marital rape and gender biased definition of rape that considers male as only perpetrator of rape. When most of the civilised countries are criminalising marital rape and defining rape based on gender neutrality because of proven reports of marital rapes and rapes of men, boys, transgender people and hijras, rape laws of Bangladesh are still ancient that does not suit with contemporary criminology and penology discourse. The neighbouring country of Bangladesh, India has overhauled the rape laws in 2013 based on Justice Verma Committee Report after the 2012 Nirbhaya gang rape case. After adopting Criminal Law Amendment Act of 2013, section 375 of Indian Penal Code defines rape as follows: A man is said to commit rape if there is:

Penetration of penis into vagina, urethra, mouth or anus of any person, or making any other person to do so with him or any other person;

Insertion of any object or any body part, not being penis, into vagina, urethra, mouth or anus of any person, or making any other person to do so with him or any other person;

Manipulation of any body part so as to cause penetration of vagina, urethra, mouth or anus or any body part of such person or makes the person to do so with him or any other person;

Application of mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person;

Lastly, touching the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person

Although India did not accept the recommendations of Justice Verma Committee Report completely, it did brought a new era of criminal justice system by redefining rape laws. Bangladesh also needs to ameliorate the ancient colonial rape laws to keep pace with civilised criminal justice system and to provide justice to all equally and neutrally.

 

Tarek Rahman

Student of LLM

South Asian University, New Delhi, India

Stay updated on the go with The Daily Star Android & iOS News App. Click here to download it for your device.

Grameenphone:
Type START <space> BR and send SMS it to 22222

Robi:
Type START <space> BR and send SMS it to 2222


Banglalink:
Type START <space> BR and send SMS it to 2225

Leave your comments

Top News

Top News

Top