Rape victim’s character can no longer be questioned

The much talked about Evidence Act (Amendment) Bill 2022 incorporating the admissibility of digital evidence by the court was passed unanimously in parliament yesterday.

The proposed law also said that in a trial for an offence of rape or attempt to rape, no questions can be asked in the cross-examination regarding the victim's character or previous sexual encounters.

It also mentioned that such questions can only be asked with the permission of the court, and only if it is necessary for the sake of justice. The passage of this amendment will repeal the existing section 155(4) of the archaic Evidence Act-1872. The section states that when a person is accused of rape or sexual violence, it can be shown that the accuser has an "immoral character". 

Law Minister Anisul Huq placed the bill, which was passed unanimously by a voice vote.

Opposition Jatiya Party and BNP MPs thanked the government for placing the bill, saying that through its passage, the provision so humiliating for women in the Evidence Act has been repealed.

Terming the bill "historic and time befitting", the opposition MPs also said this long-standing demand of rights activists has finally been fulfilled. 

While placing it, Anisul said there has been a trend of raising obnoxious questions about a victim's character.

"Now, no such question can be asked without the court's permission."

Rights activists have welcomed the move as the character of sexual violence victims can no longer be brought into question and digital evidence can be produced in courts.

They have long argued that defence lawyers attacking victims with demeaning and obscene questions during cross-examinations was a huge deterrent in the process of justice, which only contributed to normalising sexual violence.

According to the proposed law, digital record or electronic record means any record or information generated, prepared, sent, received or stored in magnetic, electro-magnetic, optical or micro films, computer memory, computer-generated microfiche including audio, video, DVD, CCTV footage, drone data and records from cell phone, hardware, software or any other digital device as defined in Digital Security Act, 2018.

Besides, finger, palm and iris impressions, digital footprints, and signatures and certificates will also be admissible as evidence.

As online trials had to be conducted amid the Covid-19 pandemic, digital evidence and other such relevant documents began coming as well.

In the draft law, a provision was made to ensure the forensic examination of digital evidence if the court thinks it necessary.

However, if anyone tampers with evidence, the person concerned will be punished as per section 211 of the Penal Code or section 57 of the Digital Security Act.

Fauzia Moslem, president of Bangladesh Mahila Parishad, said, "We have long been calling for the removal of every discriminatory section of the existing laws and policies, including sub-section 155 (4) of the Evidence Act, 1872, which says that 'when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character'.

"The new law will definitely help the rape victims, who are routinely blamed and shamed in courts about their character, social class, attire, past sexual history and lifestyle, and we are very happy about it."

She added, "However, based on our real-life experiences in dealing with the legal procedures, so many excellent laws have been passed, aimed at the protection of the rights of the victims. But in terms of implementation, we still have a long way to go."

Khushi Kabir, rights activist and also the coordinator of Nijera Kori, said there was no point in dragging the character of a victim in terms of any criminal offence.

"For example, if someone is a victim of physical assault, mugging, or attempted murder, their character does not come into play to get justice. Similarly, rape and sexual violence are criminal offences and the victims' character and past sexual life cannot be relevant in any way.

"Even though it's late, I appreciate that it has finally been addressed. At the same time, we [rights activists] demand the amendment of every law and section discriminatory to female victims and their constitutional rights."