Very recently, a circular was issued by the Supreme Court saying that from now on, the testimony of women and children victims of rape and sexual assault, under Section 22 of the Women and Children Repression Prevention Act 2000, will be recorded only by female magistrates. This decision was taken based on the recommendation of the Supreme Court’s Special Committee for Judicial Reforms.
The reason for such a decision by the Supreme Court was stated to be the “hesitance” that women and children victims of sexual violence face when they often have to narrate the incident in front of male magistrates. This decision has been welcomed by all quarters, especially keeping in mind the context in which it had been issued (the case of the brave young girl Nusrat Jahan Rafi who went to the police to lodge a complaint regarding sexual harassment and was mistreated and harassed by the police in-charge of the station). We all know how her battle ended.
Should we breathe a sigh of relief by this very wise and timely decision by the Supreme Court? Well, few points are to be noted.
Firstly, the experiences of the practitioners and advocacy campaigners in the field suggest that most of the persons and officials who are assigned at the various stages of dispensing justice are more often influenced by certain myths and notions arising from age-old patriarchal structures, especially when they’re dealing with victims of sexual offences. Although we do not have data at hand to prove that most of the uncomfortable experiences that women rape victims have faced while giving their testimony under the 2000 Act were due to the presence of male officers, that’s the impression we generally get when working with rape victims. The myths surrounding rape victims are many: that a poor and elderly woman can’t get raped; that a rape victim must have bruises and injury marks on her body; that she must have had a love affair with the alleged offender which “exempted” him from committing any offence by violating her body; and that she must be making up a false case (the most common one).
Now, just to put the right words in place, a convincing justification for such a timely step from our Supreme Court would be the mindset of the persons dealing with the justice system, rather than the awkwardness or hesitation of the victim. Hesitation is natural when you have to disprove so many untrue assumptions while knocking on the doors of justice.
Speaking of patriarchal notions, another important concern is whether we can readily assume that women will always be beyond the influence of these notions. As evidence suggests, the perpetrators of violence against women are at many times women themselves. That Nusrat’s killing allegedly involved a woman is just a reminder of this fact. Hence, if the Supreme Court really intends to provide a better environment for rape victims, it can’t be assumed that assigning a woman magistrate would be the only effective solution. The solution to the problem is bringing a change to the attitudes and mindset of the persons engaged at all stages of the formal justice system. And in terms of judges and judicial officers, the Supreme Court needs to also put its foot down to ensure an enabling environment, which would be more sensitive to the sufferings of a victim of sexual offence and even more so for a child victim of rape.
The Special Committee which had recommended this step can perhaps take the lead and prioritise the actions to be taken in terms of ensuring easier access to justice for victims of sexual offences. A first step may be to identify the various hurdles a rape victim has to go through in order to get justice. Perhaps, activists and researchers who work in the field of law reforms with regard to rape can assist the committee in search of these answers. At the same time, effective sensitisation training for judges and judicial officers should be comprehensively designed, conducted and monitored to bring a positive change in the judicial approach towards rape victims.
Another crucial area to be looked at would be the stage of cross examination of a victim of rape and other sexual offences. The presence of character evidence in our Evidence Act as a part of colonial legacy and the consequent harassment that a woman victim of rape has to face during trial have been talked about many times in the past. Now that we do see a sign of hope, we surely can seek stringent guidelines from the apex court as to what questions can and cannot be asked to a child or woman when it is a case of sexual offence.
Research shows that the myths and cultural stereotypes surrounding rape victims mentioned above have also led to a heavier burden of evidence being imposed on a rape victim to prove her testimony. A rape victim’s testimony is hardly believed without it meeting strict evidentiary standards. However, we can recall decisions taken by the Supreme Court itself which held that the accused can be convicted based on the sole testimony of the rape victim.
Perhaps, the Special Committee for Judicial Reforms can think of ways so that examples of such cases, where the sole testimony of the rape victim had been relied on for conviction, would not be a rarity and the best practices of the Supreme Court would be adhered to, by all the subordinate courts including the Women and Children Repression Prevention Tribunals around the country.
We still have a long way to go in order to ensure proper access to justice to victims of sexual offences and there are mountains of hurdles that such victims have to climb, simply to ensure sanction against the offenders. The Supreme Court can certainly lead the movement to lessen the burden on victims of sexual violence in receiving justice.
Taslima Yasmin teaches at the Department of Law, University of Dhaka. She can be reached at firstname.lastname@example.org.