Sk Farzana Ahmed
We have become accustomed to reading sickening news reports on rape, almost on a daily basis. In all cases, we experience a myriad of emotions such as shock, horror, and disgust at the act, and sympathy for the victim. And then we move on. But what of the victim? Does our society allow her to move on?
Based on an archaic law from 1872, rape victims who have already undergone a horrific experience, have to endure further emotional distress and humiliation. Victims are not allowed to focus on recovering their physical and mental well-being. Instead, they must immediately undergo the critical eyes of society and the court, thanks to a Victorian era law that provides for the questioning of the character of a complainant in a rape case.
Section 155 (4) of the Evidence Act of 1872 permits the use of character evidence in rape prosecutions. It states “when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.”
This is highly anomalous, as it diverts the focus of a rape trial away from the accused, and places the victim and her character under the spotlight. A woman’s character and sexual history have absolutely no bearing on determining consent, and yet are a common tactic used in rape trials to enable the accused to get off the hook.
The law in its current form creates the impression that it is only possible for a “chaste” woman to be raped, and that consent is of no consequence if the woman is “immoral.” The emphasis of defence lawyers is on proving the woman may be of generally immoral character, and therefore her testimony must be false and she could not have been raped.
Combined with the barbaric “two finger test” that rape victims have had to endure for many years, it is not at all surprising that a vast majority of rape cases in Bangladesh never come to trial. While there is no scientific or legal connection between rape, and habituation to intercourse, this evidence is frequently used to conclude whether rape took place or not. Ironically, Section 54 of the Evidence Act expressly excludes the character of the accused to be irrelevant, unless there is an attempt to prove that he is of good character.
As part of its mandate of ensuring access to justice for all, the Bangladesh Legal Aid and Services Trust (BLAST), a leading national legal aid and services NGO, has been campaigning for an overhaul of laws relating to rape in Bangladesh to address discriminatory provisions that impede women’s access to justice in rape cases. BLAST is currently working to ensure reform of the legal provision permitting use of character evidence in rape cases.
As part of this process, BLAST has been engaging with legal and development professionals who have been involved in providing support to female survivors of violence, including rape. Through organising expert meetings and conducting an informal perceptions survey, BLAST tried to gain an understanding of the practical effects of having a law such as Section 155 (4) on rape survivors’ right of access to justice.
The findings of the survey indicate, quite strongly, that legal professionals and rights activists overwhelmingly believe that the law in question is outdated, arbitrary and in serious need of reform.
In response to the question: “Do you believe that rape cases are less likely to end up in convictions because of Section 155 (4) of the Evidence Act 1872?” Three-quarters of respondents interviewed, agreed that in its current form, the law leads to a low conviction rate in rape trials. When asked “Do you feel that it is important to ask about the sexual history of complainants in rape cases, to ensure that the accused gets a fair trial?” An overwhelming majority also agreed that the use of Section 155 (4) was unnecessary in rape trials. Two-thirds mentioned that they had met complainants who had been questioned about their sexual history and character in court and all agreed that it resulted in rape complainants not pressing charges, in fear of harassment in court.
All respondents also agreed that the law should at the very least be amended, if not repealed, to guarantee fair trials for rape complainants. Any amendment should take into consideration the protection of the victim, while also ensuring justice for the accused. The respondents to the survey made several recommendations to ensure improved access to justice in rape cases, including the use of camera trials and amendments to safeguard against abuse of the law so that false charges of rape do not take place.
BLAST also collected anecdotal evidence from lawyers and rights activists who have been supporting female survivors of violence in accessing legal remedies through consultations. The discussions and recommendations received at these consultations corroborate the findings of the survey. A woman’s rights activist speaking in the context of violence against women in the CHT, stated that the common thread in discussions with indigenous female survivors of violence and their experiences of trying to access justice is the issue of the character of the survivor.
In speaking about instances where lawyers ask extremely demeaning and irrelevant questions, she recounted the case of a high school girl who had survived rape and was asked during the trial: “How she felt while she was being raped.” A senior lawyer from a leading human rights and legal services organisation stated that in her experience of supporting litigation cases on behalf of female survivors of rape, she found that the attitude among defence lawyers with regard to Section 155 (4) is that it gives them blanket impunity to ask any sort of question to a complainant.
Often lawyers abuse this provision of the law to instigate the victim into anger or having emotionally charged reactions to disprove her testimony. Another problem identified by legal experts was that underage victims were shown to be older than they actually were, to establish that they were habituated to sexual activities.
A research consultant of BLAST referred to a case where a sixteen-year-old girl was raped on her way to the madrasa. The verdict given was: “No sign of rape, and the complainant appears to be habituated to sex,” and the case was eventually dismissed. She mentioned how these trials seem to focus on the character of the victim, giving the impression that it is the victim herself who is under trial and must prove herself innocent.
Rape is a heinous crime that needs to be dealt with severely. Creating an environment that does not only allow, but also encourages victims to come forward, speak out, and seek redress, will be a major step forward. It will also enable us to change the mindset regarding rape that exists in our society. It is time the justice system, along with society, realises and accepts that we must judge the accused, and not the victim. This will be a step forward towards addressing the impunity surrounding the offence of rape in the country.
Sk Farzana Ahmed is a development professional, currently based at the Bangladesh Legal Aid and Services Trust (BLAST).
Source:
http://www.dhakatribune.com/juris/2015/mar/14/repeal-character-evidence-rape-trials#sthash.vJVjXftx.dpuf
