Ten reforms we need to end impunity for rape
In keeping with this year's theme for International Women's Day, I, as a legal researcher, #ChooseToChallenge how ineffectively our lawmakers have dealt with rape, one of the defining manifestations of gender inequality. Ever since the birth of our country, laws relating to rape (and violence against women more broadly), have been reformed a number of times, but each time the focus was almost exclusively on making punishment stricter.
According to a recent report submitted by the Special Crime Branch of the Police Headquarters to the Supreme Court, a total of 26,695 rape cases were filed across the country in a 58 month period (between January 2016 and October 2020). This means that, on average, over 5,500 rape cases were filed each year and the actual yearly breakdown showed an upward trend. Considering the fact that a study by Partners for Prevention found that over 90 percent of rapists in Bangladesh faced no legal consequences for raping a woman or girl, the actual figure for rape occurrences is likely to be several times higher.
In solidarity with the anti-rape protests that broke out in October 2020 (and ahead of the reform that was ordained by the President in reaction to it), we at the Rape Law Reform Coalition, a collective of 17 human rights organisations, issued a 10 point demand on rape law reforms. Sadly, this fell on deaf ears and a hasty reform of our rape legislation was made which reflected none of our demands, and will bear little fruit in practice. This is precisely why we need to publicise these 10 demands until they are heard by those who have the power to implement them.
Our first demand is for reform of rape laws to be formulated in line with human rights standards. This will help ensure that any reform is in conformity with the constitutionally guaranteed fundamental rights that were put in place by the founders of our nation to guide any law making. It must also be in line with international human rights law—including the Convention on the Elimination of Discrimination Against Women, Child Rights Convention and the International Convention on Civil and Political Rights—and guided by the recommendations made by the concerned UN treaty bodies over the years. On the one hand, this will ensure protection and access to justice without discrimination for all rape victims/survivors irrespective of gender, sexuality, religion, race, ethnicity, disability, age and nationality. On the other hand, it will also uphold safeguards on fair trial for those accused, a legal requirement we often forget. One may recall with particular horror the time certain members of our parliament asked for accused rapists to be killed in crossfire—without a trial—while debating in the parliament itself.
Our second demand is for the legal definition of rape in Section 375 of the Penal Code 1860 to be broadened so it covers all forms of non-consensual penetration, irrespective of the gender of the perpetrator or victim/survivor. The current definition excludes adult male and transgender rape victims/survivors, denying them the right to seek justice for being raped.
Our third demand is for penetration to be defined in our laws so the recognition of rape is not restricted to penile-vaginal penetration only. Instead, it must recognise all forms of non-consensual penetration of any part of the victim-survivor's body through the use of objects or any other part of the perpetrator's body, as being rape.
Our fourth demand is for proportionality of punishment, which is a basic principle of criminal justice, to be respected and for sentencing guidelines to be introduced. Currently, the only two available punishments for rape are life imprisonment and the death penalty. Allowing judges to only mete out the two most severe forms of punishment that the law can prescribe has meant that only the most severe (or grotesque) rape cases ever end in convictions. This is because the severity of punishment tends to share an inverse relationship with conviction rates. Judges must be allowed to give punishment which is proportionate to the kind of rape that has been committed. In this regard, sentencing guidelines should require judges to factor in both mitigating circumstances (such as the age or mental health of the accused) and aggravating circumstances (such as the use of weapon, force or violence and causing permanent physical or mental impairment of the victim/survivor) when deciding which punishment must be given.
Our fifth demand is for the government to ensure that the justice process is made accessible to rape victim-survivors with disabilities. We can do so by modernising the Evidence Act 1872 to ensure persons with speech, hearing or intellectual disabilities are able to testify without facing any procedural barriers due to their disability during rape trials. Relatedly, police stations and courtrooms must be accessible, such as by having step-free access for those with mobility impairments.
Our sixth demand is for the amendment of Section 155(4) and other relevant sections of the Evidence Act 1872 so the use of character evidence is prohibited in rape trials. Currently, defence lawyers ask humiliating questions and make similar suggestions in an attempt to show a particular rape complainant is of "immoral character" and therefore undermine the value of her testimony in court. This particular reform should also ensure judges are duty bound to prevent defence lawyers from asking degrading questions during cross-examination of complainants.
Our seventh demand is for the draft Victim and Witness Protection Act (first proposed by the Law Commission in 2006) to be enacted. This law would allow for institutional protection, emergency shelter, pyschosocial support and/or relocation, as required, of victims/witnesses. Most crucially, it will ensure institutional protection is continued until the victim and witness's safety is no longer threatened and satisfactory alternative arrangements have been made. It is precisely the lack of this guarantee which allows the rapist's side, who are usually at a power advantage, from threatening the rape survivor's side to the point they either abandon the prosecution case or are prevented from filing a case in the first place.
Our eighth demand is for the government to establish a state compensation fund for rape survivors. This will enable rape victims/survivors to apply for compensation as of right, irrespective of whether the perpetrator can or has been identified and/or prosecuted for the offence. Currently, the lack of such a system allows rapists to purchase impunity by offering rape survivors or their families paltry sums of money touted as "compensation" in exchange for the criminal case being withdrawn.
Our ninth demand is for the government to ensure gender-sensitisation training for justice sector actors—conduct trainings for police, lawyers (prosecutors and defence), judges and social workers so rape survivors are treated with gender responsiveness and sensitivity when reporting a rape, and during investigation and prosecution. Laws are only as good as the attitudes of those enforcing it.
Our tenth demand is for consent classes to be introduced in schools. We are well aware that formal legal or institutional reform alone can never end impunity for rape. To eliminate rape culture, social reform is indispensable. Introducing lessons on capacity and consent into educational curricula will go a long way in countering misogynistic social norms which undermine female agency and the right to choose.
These ten reforms would only scratch the surface when it comes to dismantling the more complex problem of rape culture. However, implementing these will certainly take us a lot closer to ending impunity for sexual violence than the kind of reform our lawmakers have implemented so far. So let's know them, let's understand them and let's demand them till they are met.
Taqbir Huda is a Research Specialist at Bangladesh Legal Aid and Services Trust (BLAST) and leads the Rape Law Reform Now campaign.
Email: taqbirhuda@gmail.com