What changes does the recent ordinance make to our law on violence against women?
On 13 October 2020, our central law dealing with violence against women, i.e. Nari o Shishu Nirjatan Daman Ain 2000 (Women and Children Repression Prevention Act 2000) was amended for the second time since it was enacted, by an ordinance. There are five key changes that the ordinance makes to the 2000 Act that are worth discussing.
Firstly, it reintroduces the death penalty as the maximum punishment for single perpetrator rape. This has easily been the primary focus of the amendment in both parliament and public discourse. However, the nuance that this discussion was lacking is the recognition that death penalty was already prescribed for rape leading to death and gang rape under section 9 of the 2000 Act. So the one form of rape which did not have the death penalty as the maximum punishment under the 2000 Act i.e. single perpetrator rape, also has it now.
Secondly, and perhaps less discussed, the amendment also introduces the death penalty as the maximum punishment for even attempt to cause death or hurt after committing rape under section 9(4)(a) of the 2000 Act. Previously the only punishment for this offence, like single perpetrator rape, was life imprisonment.
Thirdly, it makes a small but significant linguistic correction to section 9(5) of the 2000 Act, which deals with custodial rape, by replacing the word "dayi" (responsible) with "dayprapto" (in charge). Before the amendment, section 9(5) read: "If while in the custody of the police any woman is raped, then those whose custody in which the rape took place, that individual or those individuals who were directly responsible (dayi) for the woman's [safe] custody, they or each of them, if not proved otherwise, for their failure in [ensuring safe] custody, shall be liable to imprisonment for a term not exceeding ten years, but not less than five years rigorous imprisonment, and a fine not exceeding ten thousand taka." The word "dayi" (responsible) has now been replaced with "dayprapto" (in charge).
Fourthly, it makes dowry violence leading to simple hurt a compoundable offence (meaning it can be settled out of court). This change is quite significant because this is the first time that an offence under the 2000 Act is being treated as compoundable. Typically petty crimes like theft and defamation are considered compoundable offences to allow victims the flexibility of settling the matter out of court, usually for a sum of money. The 2000 Act dealt with some of the most severe forms of violence against women and children which were initially thought to not be compoundable. Section 11 of the 2000 Act, which deals with dowry violence, categorises the offence into three, by the level of harm that has resulted: death, grievous hurt and simple hurt. The least severe form of harm i.e. simple hurt, is now going to be compoundable. Certain lawyers fear that this may mean that victims seeking justice for dowry violence which led to grievous hurt may be forced to settle the matter out of court with their injury being treated as simple hurt instead.
Fifthly, the ordinance brings focus to the importance of medically examining the accused, and not just the victim-survivor. To this end it introduces mandatory DNA testing of both the survivor and the accused according to the provisions of the DNA Act 2014. However, in doing so it states that this test may be done "with or without their consent", which appears to mean that even if a victim survivor refuses to a DNA test, they may still be compelled to undergo it. This of course raises important concerns about a victim-survivor's agency. Interestingly, consent is a prerequisite to DNA testing under the DNA Act 2014 itself. Section 6 of the 2014 Act, for instance, states that no DNA sample shall be collected (for investigation purposes) from any person under the Act, without obtaining the written consent in the presence of a minimum of two witnesses. The only two exceptions to this rule are: for those considered legally incapable of giving consent (e.g. minors), in which case their guardians would consent on their behalf and DNA testing through court order, where consent of the person would no longer be needed. Therefore, the amendment appears to bypass the general rule of consent being a prerequisite for any form of DNA testing.
The ordinance does not introduce a non-discriminatory definition of rape, which would also recognise male rape, rape of hijras and marital rape, as we needed it to. It does not introduce a survivor and witness protection system drafted by the Law Commission 14 years ago, as we it needed to. It does not prohibit defence lawyers from raising questions about a survivor's character in court by repealing section 155(4) of the Evidence Act 1872, as we needed it to. It does not allow judges to have sentencing discretion for rape so the basic principle of proportionality of punishment could have been ensured, as we needed it to. It does not grant rape survivors the right to seek compensation for harm, as a matter of right, from court and a state compensation fund, as we needed it to. It is not the reform we needed, but the one we ended up with.
Notably, since these changes were made by an ordinance and not an Act of Parliament (since parliament is not currently in session), Article 93 of our Constitution requires it to be laid before parliament at its first meeting following the promulgation of the ordinance. The ordinance will cease to have effect at the expiration of 30 days after it is so laid, or, if and when a resolution disapproving it is passed by parliament before the expiration period. Therefore, once the ordinance comes under parliamentary scrutiny, one may hope that it thinks to implement reforms which are actually necessary to end impunity for rape, as have been suggested by relevant experts for a while now.
Taqbir Huda is a Research Specialist at Bangladesh Legal Aid and Services Trust (BLAST) and leads the Rape Law Reform Now campaign.
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