A “rape shield” law for Bangladesh
While rape is a commonly reported form of violence against women in Bangladesh, only over one half of women who experience rape actually seek any kind of remedy from the police. The review by one organisation, Ain O Salish Kendra (ASK), from newspaper reports reveals that, of the 707 cases of rape reported in 2014, only 401, or just over half resulted in cases being filed against the accused. In 2013, out of 998 reported incidents of rape, only 553 complaints were filed. Large numbers of women are deterred from going to courts due to a number of social, legal and institutional factors.
Bangladesh Legal Aid and Services Trust (BLAST), a national legal aid and services organisation, has identified several of the main barriers to access to justice, through research and discussions with lawyers and doctors. A key barrier identified is Section 155(4) of the Evidence Act 1872, relating to character evidence in rape cases.
This provision states 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 introduction of character evidence, which attempts to show that a person was 'immoral' is humiliating and degrading for the survivor. It also actively deters survivors from reporting rape. It results in a legal and moral anomaly where a woman who is alleging a rights violation is compelled to prove her 'good character' in order to secure justice. This burden placed upon a rape complainant discriminates against her in two ways: i) by subjecting women to a double standard based on their gender and ii) such a burden is not placed upon a complainant in any criminal offence other than rape.
Section 155(4) is a relic from the British colonial period. Ironically, it has long been repealed in the UK, but remains in force in Bangladesh. In the UK the 1975 Heilbron report recommended introducing a law to limit the circumstances in which character evidence could be adduced. In 1998 the Home Office recommended more changes to the law to protect the interest of the rape survivor. Finally the 1999 Youth Justice and Criminal Evidence Act imposed a blanket prohibition on use of evidence regarding the complainant's sexual history with the accused or any other person. It allowed a narrow exception, allowing use of past sexual history evidence only with the Court's permission. In determining whether or not to give such permission, the Court needs to consider allowing such evidence, which "might have the result of rendering unsafe a conclusion of the jury or… the court on any relevant issue in the case."
In Canada, the law initially allowed character evidence regarding a rape complainant on two grounds: consent and credibility. Debates on rape law reform began in 1975 following overwhelming evidence that the introduction of character evidence had a prejudicial impact on the complainant's case. In 1992, the law allowing character evidence was repealed. At the same time 'rape shield' laws came into force. These actively prohibit the use of character evidence in rape trials. They place strict guidelines for when and how evidence of prior sexual conduct can be used in rape trials. First, the burden is on the defence to show that such evidence relates to specific instances of the complainant's sexual activity. Second, such evidence is only allowed based on a judicial 'balancing test'. This test considers whether the probative value of the proposed evidence is higher than its prejudicial effect, including on the complainant's dignity and privacy. Third, such evidence is excluded when it refers to one of the 'twin myths', either that the complainant likely consented or that she is less worthy of belief. In a rape trial in Canada the defence cannot bring evidence to show that a rape complainant had sexual relations with other persons in the past and therefore, has consented to sex or is likely lying about the rape.
These Canadian reforms gave rise to an interesting constitutional law debate. The 'rape shield law' was challenged as violating the right of the accused to a fair trial. However, the Supreme Court of Canada upheld the law, stating that it was constitutional as the burden of proof still rested on the State to prove any offence beyond reasonable doubt. Thus, a person accused of rape was being held to the same legal standard as an accused in any other case.
The reforms in Canada and UK catalysed legal reform in South Africa. The South African Law Commission recommended repeal of the law in 1985. The reasons included that such evidence is not permitted in other cases, that it could negatively impact reporting of rape cases and that it is traumatising for complainants.
The new 1989 South African law of 1989 prohibits evidence of previous sexual conduct of the complainant. This prohibition is not absolute. Two narrow exceptions allow such evidence in cross-examination, when the prosecution has introduced it, or when the Court grants permission following an application. As in Canada, this completely excludes character evidence where it refers to the 'twin myths'. As in UK and Canada, the law emphasises the judge's discretion in permitting character evidence. It also states that in making this determination the following factors are significant: whether the evidence is fundamental to the accused's defence and whether it would encourage the reporting of sexual assault incidents. It also goes a step forward in protecting women's rights as it considers not only the privacy and dignity interest of the rape survivor in a specific case but considers the impact of each case on reporting of sexual violence in general.
Closer to home, the Law Commission in India first recommended reform of S155(4) in 1980. Almost a quarter of a century later, in 2003, the law was partially reformed to state that where it was clear that there was forcible intercourse, i.e. the consent of the complainant was not in question, character evidence could not be brought. In all other cases, character evidence would be admissible. In 2013, the Government of India undertook comprehensive reform of criminal laws relating to violence against women and children. The Criminal Law (Amendment) Ordinance, 2013 has now unequivocally deemed past sexual history evidence to be irrelevant to the question of consent and has also made it impermissible for such questions to be asked in cross-examinations.
Pakistan still allows for the use of character evidence although it no longer has in place the British colonial era law, which was replaced by the Qanoon e Shahadat Ordinance, 1984. The Law Commission of Pakistan has recommended reform but this has not been done so far.
Singapore, another Commonwealth country with an identical provision on character evidence, repealed the provision in 2012. It has not put in place any 'rape shield' law.
Furthering the process of reform to end impunity around rape is a definite need today. The comparative practices on the use of character evidence in rape prosecutions hold critical lessons for Bangladesh. The most significant trends in the progressive laws outlined above include an emphasis on judicial discretion, a case-by-case determination of the admissibility of character evidence, a balancing of the rights to dignity and privacy of the complainant, and the right to fair trial of the accused.
Repealing Section 155(4) and enacting 'rape shield' laws will encourage reporting of rape crimes and increase convictions through dealing with rape myths and stereotypes. It will also ensure the right of access to justice for rape survivors.
The writer is Research Coordinator at BLAST.