Who defends the rape survivor?

We live in a country where women who are survivors of sexual violence not only have to go against the traditional grain of society but the justice and law enforcement systems as well. Our antiquated laws, medical procedures to prove rape, the cruel character shaming and the general social impunity granted to men makes one wonder how brave a woman has to be to even demand justice.

It's been almost a week since newspapers started reporting on the rape at gun point of two university students in a hotel in Banani. We know five men have been accused, that the women have been threatened against going to the police, and that when they did go to the police, their characters were questioned and it took 48 hours to register the case. We know that among the accused is a son of the owner of a leading jewellery brand, who despite being home for days after the case filed, was not interrogated let alone arrested by the police. We know that keeping to the norm in this country, his father defended his actions. By the time the police did raid his home on May 9, a full three days after the case was registered, the accused and his passport were missing.

Yet, social media is full of people defending the rape of these two women as "divine justice" for their supposed transgressions: they should not have gone out to a "party", they should not have been friends with men, and they should have fit the narrow ideals of what the role of women is in a society. I do not know what to say to these people, for despite the reality they witness, they are blind to the concept of consent. But for those, who feel compelled to point out that for now, we should put the word "alleged" before the word rapist, or question why the women waited more than a month before going to the police, please remember the society we live in.

Let us start with why the women waited a month before going to the police. According to their testimonies, aides to the accused filmed them while they were being raped. They were threatened that the clips would be released on the internet if they did, and also told that because of the power and money of the accused, the police would not be able to do anything to them. These women knew the consequences of going public: that they would be shamed, their characters put to the stand and that there would be enormous pressure on them and their families. The officer in charge in Banani police station BM Forman Ali, who is now on a five-day-leave, had initially asked if the women were "nortoki" or dancers from the hotel. Why else would women be at a party there? (Samakal, 10 May, 2017)

Questioning of the women's character is part of the criminal proceedings of rape cases. As Ishita Dutta in her paper in the book Of the Nation Born: The Bangladesh Papers, points out this "Good Girl-Bad Girl Dichotomy" shifts the question of ascertaining the guilt of the accused to "whether the survivor was chaste enough to have made a true accusation." She writes how under Section 155(4) of the Evidence Act 1872, "the victims testimony may be discredited by showing that she was of 'generally immoral character'."

"We need policy and law reforms. We need cells at police stations and medical facilities where they will be heard and not further abused. We need institutional changes in the way the police act towards the survivors. Till then, the least we can do is not question if these women are speaking the truth.

What is heartbreaking is that despite the courage it took for these women to finally seek justice, as the head of forensic medicine at DMC who headed the board that examined the women says, it would be difficult to find evidence of rape if the incidents took place over a month ago. But, even if they had gone the next day, what are the chances that justice would be facilitated? It took two examinations before it was officially established that Shohagi Jahan Tonu was indeed raped before she was murdered. The legal definition and medical tests proscribed by our law also means that any delay, even due to unavailability of medical facilities, would essentially make it harder to collect forensic evidence. The laws which lay out the procedure of collection of evidence date back to the colonial period, and as such barbaric procedures such as "the two finger test" to determine if rape had occurred are still used. The two finger test rests on the presence or absence of the hymen – a procedure which is not only medically anachronistic, but also seems to assume only a woman who has never had any sexual relation before can be raped.

Dutta points out how while globally the legal definition of rape has evolved to the establishment of consent, in Bangladesh the "offence of rape can only be established where there is 'forced penetration.'" That is, even if a person is sexually assaulted, say at gun point, but there was no physical force used on her, it would be difficult to prove in court that rape had occured. Instead of proof of consent, required by most countries today, courts here rely on proof of force used.

So even though the question of consent is present in our laws, in court that is not the priority. To illustrate the point, take the following example. The Department of Justice of Canada, defines consent as "the voluntary agreement of the complainant to engage in the sexual activity in question. Conduct short of a voluntary agreement … does not constitute consent". It then sets out the situations which would entail lack of consent such as cases "where the accused induces the complainant … abusing a position of trust, power or authority". That is, rape would be defined not in terms of whether the woman was physically forced into the act but by whether she voluntarily consented to that act.

If these were not enough barriers, in court, the women are again subjected to similar attacks on her character. Since the laws allow for considerations of the "purity of character" of the woman, her life is dissected in a patriarchal, unfriendly environment in court. The initial reluctance and questioning of character when filing cases, as was claimed by the women who were raped in Banani, point to an institutional structure which is far from being gender sensitive. It does not give women a safe space where they can seek refuge and justice, but from the filing of the case to the court proceeding, puts them through the trauma of having to prove that they are not immoral people who somehow "asked for it".

Then comes the "pressure"; from society and from the perpetrators. And if the perpetrators are powerful men, we even see instances where the police officer questions the women if they are filing a case to claim money from the accused. The accused might even go missing just before the police put up a show of action and end up in a different district, where they will not be found.

When women, under these constraints, still appeal to our courts of law to seek justice, it is cruel to start our discussion with questioning whether she is lying or not. We as a society cannot get over the idea that women supposedly have the upper hand or some ulterior motive when reporting sexual violence. 

That is not to say that we can bypass the legal requirement of proof when it comes to rape or any other crime. That we are sometimes bound to take a stand speaks of failures of our justice system. We need policy and law reforms. We need cells at police stations and medical facilities where they will be heard and not further abused. We need institutional changes in the way the police act towards the survivors. Till then, the least we can do is not question if these women are speaking the truth.

The writer is a member of the editorial department, The Daily Star.

REVISION: Paragraphs 7 - 9 ("Dutta points out..." to "If these were not enough barriers ...") have been revised in this article. Originally it read that the idea of consent is not present in the law, when actually it is. The issue is with the burden of proof in court, where proof of violence is required rather than proof of consent.