FALLACY OF RAPE PREVENTION LAWS

‘Justice has been ensured by tying the knot between the rape victim and her rapist’. (Khulna, January, 2021)

‘While hearing a bail plea of a rape accused, the High Court ordered that if he agrees to marry the victim, it would consider its bail application’. (Feni, November, 2020)

‘Local salish board forced the rape victim to divorce her husband, and also imposed a fine worth BDT 60,000 against the husband as he failed to keep an eye on his wife’. (Rangpur, November, 2020)

These are a few news headlines just after months of High Court’s direction (to law enforcers) to take necessary measures to prevent mediation or arbitration in rape cases followed by a writ petition filed by Ain o Salish Kendro (Human Rights organization) in October, 2020 in this regard.

In the same month of 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 as well, where it incorporated the death penalty as the maximum punishment for single perpetrator rape, along with the present highest punishment of life imprisonment (under Section 9 of the Act).

Now the question lies: If amending laws, incorporating severer punishment, i.e., death penalty and High Court’s direction are enough to safeguard people from an atrocious crime like rape? If not, what is the underlying reason/s?

First and foremost, when looking at the definition, in our criminal laws (specifically under Section 375 of the Penal Code 1860 and Section 9 of the Women and Children Repression Prevention Act 2000), rape by definition can only be perpetrated by a man against a woman or child (who are below 16). In that case, what about the rape offences committed against men? According to data provided by Ain o Salish Kendro in the year 2020 alone, at least 20 boys endured sexual harassment. Moreover, the rape and sexual abuse of boys in madrasas by their male teachers is highly prevalent across the country. Two madrassa students were raped in Manikganj district by their teacher. Subsequently a complaint was filed under Section 9(1) the Women and Children Repression Prevention Act and later on, the accused was sentenced to imprisonment. (Samakal, 8 February, 2021)

 Here the fallacy is legal position of minor male victims of rape is different from that of adult male victims. As the 2000 Act defines a “child” as any individual under the age of 16, it would include male victims of rape under this age limit. This indicates that there is no such thing as an adult male rape victim in the eyes of the law. Though nowadays such incidents are reported as rape incidents instead of labelling as sodomy (common term used for unnatural offences under Section 377 of the Penal Code) is indeed a progress, but absence of an inclusive and broad definition of rape will continue to suppress such incidents.

Apart from the underlying hitches with the definition of rape, there are other legal factors which works against the victims. For example, a rape victim is further victimised because of a chauvinistic provision in an archaic law. This is the case of Section 155 (4) of the Evidence Act 1872, which is used for character assassination of victims during rape trials. It states that “when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix (victim) was generally of immoral character.” When stating the word “immoral character”, the Act does not define the exact criteria for determining a person’s immorality. Thus, the defense lawyers get to question the victim about her romantic or sexual history. In a rape case, where the actual concern is about “consent”, the defense lawyer tries to change the case’s direction using the aspect of the victim’s character. Women’s rights advocates have long sought to repeal this notorious Section, but so far, no progress has been made though time and again it has been assured that eventually this discriminatory Section will be repealed.

Rape is a non-compoundable criminal offence which cannot be settled through salish or out-of-court settlement. The irony is, not only the village salish board (locally known as matbars) even the officers of the court, i.e., judges are allowing such phenomena. In the case of Feni district, the High Court conditioned the rape accused that it will consider his bail application if he marries the victim, since they had a romantic relationship in the past. So, the court itself not taking notice of the absence of ‘consent’ of the victim which is paramount concern in a rape case. In another rape incident of Natore district, at first the Sessions Court dismissed the bail application of the accused. Later on, both the families of the accused and the victim informed the court they have settled down the matter and came to terms. Later on, in the presence of a marriage registrar they got married in the court premises. Then, the court finally granted bail to the accused. Even the courts are not immune to the idea of fallen rape survivors and often fall into stereotypes of the ‘hapless rape victims’ while passing judgments.

Such marriages are not uncommon in our society, especially in rural areas. Often, due to fear of stigma families of the rape victims left with no option but to take this decision. What we do not realize is, such decisions give the perpetrator/s an opportunity to get away with the heinous crime that they have committed.

During the first hearing of the writ petition filed by Ain o Salish Kendro, the High Court division also raised the similar concerns and elaborated that such marriages will not last long rather it must be devastating for the victim. The court further stated ‘this is just used as a ticket to freedom by the perpetrator and after 15 days of the marriage he will run away’.

So, getting back to our question, whether laws and court directives are enough to get justice in cases of rape? There is no cut and dry answer to it. Laws are in place but there exists ambiguity as well, which needs to be addressed.

In our part of the world, sex crimes, in general, are not treated as the insidious epidemic as it is. It is about time that our lawmakers consider these gaps within the rape legislation seriously by adopting a broad and specific definition of rape so that all the victims of rape (including adult male, transgender people i.e., hijras) can seek redress and repealing Section 155(4) of the Evidence Act which not only keeps an open door for injustice but also welcomes victim-blaming. Moreover, the worrying practice of mediation in rape cases where most often rape survivors end up marrying the rapist should come to an end. It is high time that the burden of trauma, shame and blame borne by the actual culprit, not the victims of such horror.