Commentary by Mahfuz Anam: Honourable judge, we respectfully but vehemently beg to differ
Judge Mosammat Kamrunnahar, of the Women and Children Repression Prevention Tribunal-7, found all the five accused "not guilty" in the rape case of two university students filed with Banani Police Station on May 6, 2017. The honourable judge found the case weak, lacking in evidence and bereft of crucial witnesses. How accurate and legally correct these views are will, no doubt, be further examined by higher courts on appeal.
Our problems – and I mean serious ones – lie elsewhere. They are in some of the observations she made while pronouncing her verdict. She reportedly advised the police not to take any rape case if it is lodged 72 hours after the incident. Why? "Because semen cannot be traced after 72 hours, because DNA test is vital to prove a case of rape."
May I most respectfully ask whether or not a crime of rape lasts only for 72 hours? After that limit does the crime just vanish into thin air? There is a victim right in front of our eyes -- suffering both physical and emotional wounds. But there is no perpetrator? If police are advised not to take any case after 72 hours, doesn't it mean that a rapist is no longer a rapist after that time limit. Because if the police do not register a rape case, then the victim has nowhere to go to begin the process of seeking justice.
To the best of my knowledge, there is no time limit for any crime. For all crimes -- petty or grievous -- once committed, the long arm of the law, however late, will find the criminal. That is the faith we repose on our legal system regardless of how much it runs counter to facts. So, when no other crime is "time-bound" why should rape be an exception? It is one of most frequently committed crimes against women, and by making it time-bound, did we not just add a newer form of discrimination against women? It comes from the very tribunal that has been set up to give special protection from gender-based crimes to our women and girls. How ironic!
A very simple question to the honourable judge -- hasn't a potential rapist just been encouraged to commit rape and pay some local goons to prevent the victim from going to the police station for the following 72 hours – by threats of bodily harm to the victim or her family or damage to property? And by the magic of words of an honourable court, doesn't the offender become fully exonerated of the dastardly crime that he committed and become an innocent person as if nothing has happened? The only difference would be that, unlike an innocent person, he would now be planning to get his second, third, fourth victims, since all he has to do is prevent the victims from lodging FIR for the next 72 hours.
I have no doubt that our honourable judge is fully aware of the tremendous emotional, cultural trauma and family pressure a girl has to face to go for legal action against rape. Already the existing legal framework is not helpful to women. The evidence act's gender bias has been forcefully brought out by legal experts over the years.
With the 72-hour limit in her mind, we would humbly request the honourable judge to try, for a few minutes, to enter the traumatised mental and emotional mind of a rape victim, especially one of a very young age. The first thought that goes through her mind is to hide the incident. If she is a little more mature, she would rush to confide to her parents and, depending on their strength, both financial and social status wise, the parents would seek advice from close relatives and locally important people. Obviously, suggestions would vary and may even be contradictory. If the parents are very supportive and the victim opts for the legal course, then comes the question of affordability. If everything falls into place, then the struggle starts with convincing the police to accept the case. In the meantime, the family of the rapist – usually high-ups in the village power structure, otherwise the son wouldn't dare rape anybody in the first place -grinds their own axes and makes all out attempts to dissuade the police from doing anything. All this while vilifying the victim through character smearing with the help of social media and word of mouth.
In the above background, the honourable judge wants the "semen test" to be done in the first 72 hours otherwise, advises the police not to take the case. Seriously, is justice being served here or a mockery is being made of the poor, powerless, resource-less, influence-less people of rural Bangladesh, especially the vulnerable young women.
The matter becomes sadder still when one reads further the observation as reported in the media. (It has to be kept in mind that our court reporting is usually based on the verbal pronouncements of the judges on which reporters can only take notes but cannot record it nor take photographs of the texts. Our reporting in this particular case was also based on the usual practice, based on the verbal statement of the judge when she was pronouncing it). The honourable judge said that the two girls came to the party, drank with the accused and danced with them – and therefore it couldn't have been rape. She said, "they were partner to the sexual intercourse willfully because they willingly went to the party, danced, drank alcohol and they swam in the pool".
In effect, not only the accused have been found "not guilty" but the victims have been found guilty of creating a condition which made their sexual assault by five men, so to speak, normal and made them "partners in sexual intercourse". The honourable judge assumes that "coming to the party, dancing, swimming" amount to consent for sexual intercourse. But the law does not permit her to come to that conclusion. The law, we repeat, says "no is a no". If a woman says "no" regardless of what happened before, it is a "no" and sexual intercourse at that stage is rape. It does not refer to what happened before.
Begging pardon of the honourable judge, we humbly pose the question that doesn't your views amount to meaning that any young woman who responds to a friend's (the victims were very much known to the perpetrators) invitation to a party in a hotel (the girls felt safe as the invitations were from friends), swims in the pool and has a few drinks can be raped with impunity because she did "all this" willingly? Just because she came, and drank and swam so she was willing to have sexual intercourse? Isn't that what the judge's observations mean? So, all the young women who came to that party that night could have been raped and be considered "partners in sexual intercourse"?
May we humbly and very respectfully ask the judge whether she is aware of the concept of "no means no". A woman can join a friend's party because she wants to, she can have a drink or two because she wants to, she can even swim in the pool because she wants to. How can this be taken as consent for sexual intercourse, which the judge appears to imply? Modern legal statutes have gone so far ahead as to recognise sex workers as victims of rape if there is intercourse without consent.
What the honourable judge has done is legitimise a stereotype – women who are trying to break the glass ceiling and take on many of the jobs generally reserved for men must be of questionable moral character and as such, predatory men can make them prey of their lust. It is also true that many women are less shy about physical relationships than before. That is not the point. The point is that the decision is hers – and only hers to make - and not by the man who may read whatever his lustful fantasies may drive him to. A "NO MEANS A NO". And that is also what our law says. A sexual act without the consent of the woman is rape. What a man interprets to be her consent does NOT matter. And there is no two ways about.
Honourable judge, I am in serious doubt as to whether or not I have understood you correctly? I would sincerely like to believe that I have not, and all that I wrote above were results of my misunderstanding of what you meant. In that case, I most humbly and sincerely apologise. But in case I have not, and that there is truth in what I and millions of other women and men have understood your words to mean, then a reciprocal gesture of humility would help us all to strengthen our faith in the wisdom of our honourable judges.