On ‘Death Penalty’ and the need for other reforms in rape laws
The mistaken belief of patriarchal masculinity and the subjugation of women with the want of treating them as an object have spurred the number of rape cases in Bangladesh over the years. This article focuses on the significance of death penalty in rape cases and few other reforms that should be considered in the rape laws in Bangladesh for effective access to justice.
According to Ain o Salish Kendra (ASK), 975 women were raped, including 208 subjected to gang-rape, from January to September 30 this year. Of them, 45 were killed after rape and 12 others killed themselves. Besides, it said, 161 women were subjected to sexual harassment and 12 of them took their own lives during the period. While in the past years, 1,413 women fell victim to rape in 2019, 732 in 2018 and 818 in 2017 respectively, according to reports given by ASK.
With the upsurge in the number of rape victims, it has recently outgrown all its previous records during the COVID-19 pandemic. On the other hand, unreported incidents by victims due to obvious reasons of social and cultural impunity had given the perpetrators way more opportunities than before. Amongst the many cases, the most preponderant are the recent incidents of gang rape in Sylhet and sexual violence in Noakhali which have been wake up calls for the law and policy makers of the country. Bangladesh Cabinet on the 12th of October speedily approved a draft law to include death penalty as the highest punishment for rape. To this effect, the Nari O Shishu Nirjaton Daman Ain (Amendment) Ordinance, 2020 has also been promulgated without further delay.
Earlier, the rape laws in the country were dominated by the regressive laws passed in the British colonial era. The punishment for rape as stipulated in section 376 of Penal Code 1860 ranged from a term of ten years with a maximum life imprisonment and fine. Only in extreme cases where the victim died as a consequence of committing rape, the defendant would have been convicted with death penalty.
It is believed that imposing death penalty for rape defendants will drastically decrease the commission of crime due to the fear of extreme punishment. It should act as a preventive measure as well as serve the purpose of deterrence in the greater community. Therefore, it is a timely initiative for Bangladesh to walk in this line considering the uncontrollable rate at which rape is increasing.
However, there are also a number of other restraining reasons which as a whole are making the country unable to uproot this menace. These include questioning on the basis of character of the rape victim, lack of victim protection measures, reluctance of police officers to file the case, victim humiliation, political backing and of course a lengthy trial often resulting in the case being settled.
Section 155(4) of the Evidence Act 1872 allows questioning the character of rape victims to impeach her credibility. Hence if she can be proved to have a bad reputation or character in the court which is a very common scenario, the defendant can easily escape full liability. This is a recurring issue which needs amendment. Also, lack of victim protective measures precludes the victims from opening up about the incident in fear of threat and further injury. Section 14 and section 20 of the Nari O Shishu Nirjaton Daman Ain 2000 prohibits the disclosure of identity of the victim and encourages examination within closed door room by the judge. However, lack of implementation of these provisions still persists vastly.
Absence of any victim and witness protection laws in Bangladesh also exposes the victims and witnesses to unwanted danger leading to further social repression. Neighboring countries such as Pakistan has already enacted the Witness Protection, Security and Benefit Act 2017 while India is on its way with the approval of the Witness Protection Scheme 2018 by the Supreme Court of India.
To conclude, a holistic approach needs to be taken by the Government. Imposing death penalty as the maximum punishment for rape was much-awaited but this will not be enough to combat the crime if access to justice is not ensured in the coming days.
The writer is an Associate at Tashmia Prodhan & Associates.