The colonial legacy of rape laws

Rape continues to be one of the most prevalent forms of violence against women in the world and Bangladesh is sadly no exception. Therefore, it should come as no surprise that for this year’s 16 Days of Activism Against Gender Based Violence (an international campaign which was originally launched in 1991), the United Nations decided to highlight sexual violence, particularly rape, as its main area of focus. In her message for the International Day for the Elimination of Violence against Women on November 25, UN Women Executive Director Phumzile Mlambo-Ngcuka said “If I could have one wish granted, it might well be a total end to rape.”

Many in Bangladesh will echo the wish of Phumzile, where rape appears to be ever increasing and a constant subject of social discourse. While legal reforms alone will not solve Bangladesh’s rape problem, it is an important piece of the puzzle and one which this article focuses on.

The starting point of rape law in Bangladesh is section 375 of the Penal Code 1860, passed during the British colonial era. As a product of its time, section 375 of the Code narrowly defines rape to be a gender specific crime (i.e. by a man against a female, who is not his wife). It sets fourteen as the statutory age of consent, meaning a man’s sexual intercourse with a female under fourteen (who is not his wife) will always be seen as rape in the eyes of the law, as girls under this age are seen as incapable of consenting to sexual intercourse. The punishment for committing rape is imprisonment for a term ranging up to ten years or life imprisonment (section 376). Marital rape is only criminalised if the wife is under the age of thirteen. The definition of rape excludes the possibility of men and hijras (transgender people) ever being victims of rape. Another embodiment of Victorian morality which continues to shape our laws is the notorious section 155(4) of the Evidence Act 1872, which allows defence lawyers to show that a rape complainant is of “general immoral character” to undermine her credibility in court. In practice, Section 155(4) has the effect of putting the rape victim on trial instead of the rape accused, as the focus on a woman’s morality egged on by the defence inadvertently leads to questions about a woman’s lifestyle, clothing and sexual history.

Since Bangladesh’s independence in 1971 and the enactment of the Constitution which ensures equality and non-discrimination as fundamental rights, rape law has been reformed thrice by three different governments as part of their wider efforts of introducing legislation on violence against women.

The first reform came in the form of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 under the military government of the late HM Ershad. It retained the Penal Code’s definition of rape but increased the punishment for convicted rapists and for the first time introduced the death penalty for rape related offences. Where the victim dies as a result of the rape (i.e. homicidal rape), punishment was the death penalty or life imprisonment. For rape causing grievous hurt or attempted rape, punishment was imprisonment for up to fourteen years or life imprisonment.

The second reform came a decade later in the form of the Nari O Shishu Nirjatan Daman Ain (Bishesh Bidhan) Ain 1995 also known as Women and Children Repression Prevention (Special Provisions) Act 1995 under the government of Bangladesh Nationalist Party (BNP), which repealed and replaced the 1983 Ordinance. Here again, the Penal Code’s definition of rape was retained but the statutory age of consent was increased to sixteen. Similarly, the reform mainly focused on increasing the penalties, and for the first time in our history, a mandatory death penalty was introduced for homicidal rape. For rape not leading to death, punishment can either be death penalty or life imprisonment. For the first time, life imprisonment became the lowest possible punishment for rape.

The third reform came five short years later, in the form of Nari O Shishu Nirjatan Daman Ain 2000 (Prevention of Women and Child Repression Act), under the government of Awami League, which repealed and replaced the 1995 Act. It, too, retained the definition of rape from the Penal Code but supplemented it with a short explanation which included consent obtained through fraud within the ambit of rape. The statutory age of consent was lowered to fourteen (but was subsequently raised to sixteen again by the 2003 Amendment to the 2000 Act). The mandatory death penalty for homicidal rape was removed, and punishment for any form of rape was either the death penalty or life imprisonment.

The 2000 Act goes the furthest in reform compared to its predecessors, in that it at least introduced minimum victim protection measures such as the prohibition on disclosing a rape victim’s identity (section 14), closed door examination of rape victims in court (section 20) and emphasised the need to conduct immediate medical examination of rape victims (section 32). It also specifically criminalised the failure to prevent custodial rape with five to ten years of imprisonment. This reflected the demands of the nationwide protests that spread from Dinajpur after Yasmin, a fourteen-year-old girl was heinously gang raped in police custody when she boarded a police van for a lift. Nevertheless, the focus is mostly on procedural law and penalties, with the substance of the rape offence being left unchanged.

Even though each reform came to repeal the previous legislation, as laws cannot have retrospective effect, it led to a bizarre scenario whereby accused rapists could face trial under three different laws, depending on when the rape took place and case against them was filed. If one opens any of the major law reports from the mid-2000s, they are likely to see rape cases being listed from the 1983 Ordinance, 1995 Act and 2000 Act, in the same year.

As the above overview should make clear, the gut reaction of successive governments faced by pressing demands for violence against women to be addressed, has been to simply introduce new and substantively similar legislation by replacing the older law mostly in name, retaining the archaic and outdated definition of rape and only altering (usually increasing) penalties and the statutory age of consent. Even more problematically, the successive governments failed to consider the constitutionality of discriminatory provisions such as section 375 of the Penal Code and section 155(4) of the Evidence Act, which clearly breach basic principles of non-discrimination and gender equality as guaranteed by the Constitution. It is a pity that in spite of our successful struggles to break-free from the shackles of colonialism, first in 1947 and then in 1971, rape victims in our country continue to be governed by the regressive laws passed by our colonisers.

Taqbir Huda is a Research Specialist at Bangladesh Legal Aid and Services Trust (BLAST), where he leads the Rape Law Reform Now Campaign.

Email: taqbirhuda@gmail.com

Source: The Daily Star