By
Taqbir Huda
March 09,
2021
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.
A protester sitting on the street in front of the National Museum in
Dhaka wearing a saree printed with anti-rape slogans, on October 10, 2020.
Photo: Amran Hossain
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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.
Students protest against an alleged gang-rape and brutal torture of a
woman in the southern district of Noakhali, in Dhaka, Bangladesh on October 8,
2020. © 2020 Rehman Asad/NurPhoto via AP
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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, pyscho-social 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.
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Taqbir
Huda is a Research Specialist at Bangladesh Legal Aid and Services Trust
(BLAST) and leads the Rape Law Reform Now campaign.
Original
Headline: Ten reforms we need to end impunity for rape
Source: The Daily Star
URL: https://newageislam.com/spiritual-meditations/dismantling-complex-problem-rape-culture/d/124494