Section 155(4) of the Evidence Act, 1872 allows evidence of the victim's immoral character to be offered by the defence. The rationale behind this archaic provision is twofold- to prove the likeliness of the victim to consent to the conduct charged and to prove the victim worthy of disbelief. The character of the alleged rapist cannot be questioned unless he takes advantage of the 'mercy rule' and offers evidence of his own good character. This is applicable to all the accused persons in criminal proceedings.
This is an utterly outdated approach and in this context, Bangladesh lags behind many countries including the USA, the UK, Canada, South Africa, Scotland, Singapore and India. They have already taken and/or changed their stances considerably. In India, questions regarding previous sexual experiences have expressly been made irrelevant in the context of sexual offenses. Keeping pace (!) with Bangladeshi legal system, among others, Pakistan still allows impeachment of the rape victim's character.
In the wave of a nationwide movement, a legislative change was brought about in the USA. The underlying idea was to limit irrelevant queries digging deeper into the rape victim's character. Introducing a special exception for the cases of sexual offenses only, the rape shield laws allowed the prosecution to offer evidence of the alleged rapist's prior sexual misconducts.
Introducing the exception similar to that of the USA, South Africa has gone one step ahead. Between two of the parties, whoever wants to offer character evidence, has to make a formal application to the Court. The burden is on the defense or prosecution to show that the opposition's character evidence has significant value. Additionally, the court has to cautiously follow certain guidelines in order to determine if the evidence outweighs its prejudicial effects.
Taking a holistic approach and learning from some counterproductive stands taken by different countries, a possible way out can be suggested for Bangladesh. The provisions of producing character evidence cannot straightaway be repealed overnight. That way, legal practice might devour the reform intent as it was witnessed by India.
Character evidence is offered by bringing the victim's previous sexual history and putting innumerable indecent questions forward. This way, section 155(4) seems to be an exception to section 151 which imposes a bar on asking indecent and scandalous questions. An argument in favour of this exception is to prove the likeliness of giving consent, the core fact in issue in a rape case. Harping on the same strings, technically it can be said that the likeliness of threatening the victim to endure such a gruesome conduct can be proved only through impeaching the moral character of the accused.
Like that of the USA, an exception to the general rule of not questioning the character of the accused thus can be introduced in cases related with sexual offenses only.
The shield should be lowered for both the parties. Character evidence can be produced only upon the acceptance of an application made to the Court. The burden to prove its probative value should be on the party asking for it. While accepting or entertaining a particular application, the court should play an extremely cautious and vigilant role. This can make the trial at least less of an ordeal for the victim.
The law itself treats a rape victim with suspicion judging her subjective sense of 'morality' and categorically divides the women into two groups, let alone the society. It is high time we started thinking about a change to come.
The Writer is a regular contributor of the Law Desk, The Daily Star.