Of 'generally immoral' character

Chief Justice Surendra Kumar Sinha deserves kudos for his timely remarks against a draconian provision of the Evidence Act of 1872, which permits a man accused of rape to question the character of the victim to defend himself during trial.

The chief justice, who said this at a book launching programme on Tuesday, also spoke for change of Section 155 (4) of the Act which says, "... when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix [the girl or the woman who has been raped] was of generally immoral character."

How long will it take to get rid of the draconian provision?

The British had enacted this Act over 143 years ago. This Act that was a common or judgement law enabled accused rapists to raise the complainant's previous sexual experience as evidence in rape trials. The accused could exploit this law to discredit and demean the complainant's claim. Even after a century, the Act continues to taint rape trials.

In the face of growing demand for a change in the system, the first attempt was made in 1976 to curb the use of sexual history evidence when the government enacted the Sexual Offences (Amendment) Act. This legislation restricted the accused from providing evidence and cross-examining the complainant about any "sexual experience" with a person other than the defendant.

While the Sexual Offences (Amendment) Act 1976 was the first attempt to regulate sexual history evidence in England and Wales, research revealed that the "intention of the legislature was rapidly undermined". Therefore reforms were introduced again in 1999 when the government introduced the Youth Justice and Criminal Evidence Act. This act was amended to prevent the accused from presenting evidence of the victim's alleged past behaviour before a jury in England and Wales unless it was relevant to the case.

After partition in 1947, India also followed the Evidence Act 1872 though some amendments were made to the Act from time to time. The same draconian provision, however, continued to exist in the act. In 2003, provision was deleted by Indian courts in a move toward providing protection to rape victims.

But none of the successive governments in independent Bangladesh has made any move to change the provision, even though all of them have spoken about empowering women and 'upholding their dignity'. It is unfortunate that all the successive parliaments formed after the country's independence have also failed to make any move to change the draconian provision of the Evidence Act, despite the fact that the Constitution empowers parliamentary bodies to review the enforcement of laws and make suggestions to improve them.

The Law Commission has however made a move to draft proposals for the enactment of a new Evidence Act. Justice ABM Khairul Haque, chief of the Commission, has said that they have dropped the draconian provision of the Evidence Act of 1872 in their proposals. 

It may take a long time for the Law Commission to complete the process. The government, meanwhile, should take immediate steps to free the country from this heinous provision that allows the accused and their lawyers to point fingers at the victims while the criminal remains unpunished. On advice of the prime minister, the president can promulgate an ordinance to scrap the provision right now. Blaming the British for introducing this provision in 1872 can no longer be justified.

Law that limits an accused's ability to introduce evidence or cross-examine complainants about their past sexual behaviour is known as a rape shield law. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim. Some other countries have also introduced the rape shield laws.

Different states of the US began to protect victims of sex crimes in the late 1970s. They understood that these survivors often experience a sense of humiliation and embarrassment when they reported the crimes committed against them, as they felt like they were being judged instead of the criminals who committed the crime. These states recognised that the character, morality and sexual history of a victim are largely irrelevant to a sex crime trial.

In the late 1970s and early 1980s, almost every jurisdiction in the US adopted some form of rape shield statute. The laws in each state differ in the scope of the sexual behaviour and time limit of the shield. Many states do not permit any evidence relating to past sexual behaviour of the victim. This encompasses evidence of specific instances of the victim's prior or subsequent sexual conduct including opinion based evidence or evidence based on 'reputation'. The Violence Against Women Act of 1994 created a federal rape shield law.

In Australia, all states and mainland territories have rape shield laws that protect rape victims. The principal aim of these laws is to prohibit the acceptance of evidence of a complainant's sexual reputation and to prevent the use of sexual history evidence to establish the complainant as a 'type' of person who is more likely to consent to sexual activity.

When will our government enact such a law to protect rape victims?

The writer is a Senior Reporter at The Daily Star.