Legal loophole helping rapists must go

The two university girls who fought a legal battle for more than four years seeking justice for allegedly being raped in Banani Raintree hotel are now enduring double whammy.

They lost the legal battle as the trial court acquitted all the five accused from rape charge. Secondly, the victims were disgraced socially as their personal lives and privacy were made public in the trial.

Thus, they have become the latest victims to an archaic and colonial legal provision that approves the repugnant practice of questioning the victims' characters by focusing on their past sexual behaviour.

So, the main culprit is Section 155(4) of the Evidence Act of 1872 that has kept favouring rapists for around 150 years. The lawyers make efforts to establish a "lack of morality" in a rape survivor by disclosing details of her personal life as a way of undermining the credibility of her testimony against the rapist on the dock.

The defence lawyers of the Raintree rape case took advantage of this legal provision to convince the court that the two justice-seekers are "of immoral character".

But Judge Mosammat Kamrunnahar could have prevented the defence lawyers from abusing the law by raising irrelevant issues during the trial – had she not ignored the High Court directives issued in 2018. She could have rejected the medical report that unnecessarily focused on the two victims' past sexual lives had she followed the High Court directives.

"Physicians/forensic experts shall issue medical certificates about examination of rape, they shall not use the degrading words 'habituated to sexual intercourse' and shall not ask any questions of her previous sexual experience," said the High Court in the verdict in rape cases.

Justice Gobinda Chandra Tagore and Justice AKM Shahidul Huq delivered the verdict that banned the two-finger test. In the verdict the High Court also said the Women and Child Repression Prevention Tribunal shall ensure that no lawyer asks rape victims any degrading questions that are not necessary to ascertain any information of rape.

The judge in question failed to follow the High Court directives in the Banani Raintree hotel rape case.

She neither rejected the medical report that used the degrading words "habituated to sexual intercourse" nor stopped the defence lawyers from abusing it.

Moreover, while delivering the acquittal order, the judge observed that the medical report stated that the victims were habituated to having physical relations and that their physical condition was similar to that of someone who engages in regular sexual relations, according to media reports.

She also pronounced that the two girls who brought the allegation of rape were partners to sexual intercourse wilfully because they willingly went to the party, danced, drank alcohol and swam in the pool.

To establish her arguments, she overlooked the legal principle of "CONSENT". She seems to have forgotten the laws that past sexual relationship with a man does not give anyone the licence to have sex with a woman forcibly and without her consent. The law even allows a sex worker to sue a man if he forced her into having sex with him without her consent. The judge in question seems to have forgotten that even a wife can sue her husband for having sex with her forcibly and without her consent – which is called marital rape.

Thus the reasoning the judge made in her verdict to acquit the accused may lead to a dangerous conclusion: a girl or a woman who is habituated to having physical relation cannot be said to have been raped even though a perpetrator forces her to have sex with him regardless of her consent. If her logic stands, a sex worker can never be raped. This is a completely unacceptable argument. And this is dangerous because such a notion will let loose anarchy in the society. Such observation may erode further the rape victims' confidence in the trial courts.

The judge in question also ignored the High Court's directives made in another case – the Al Amin versus State case. Two decades ago Justice AK Badrul Huq in this verdict condemned the practice of defence lawyers misusing character evidence.

"The court must not sit as a silent spectator while the victim of sex crime is being cross-examined by the defence. The court must effectively control the recording of evidence in the court. The court must ensure that cross-examination is not made a means of harassment and causing humiliation to the victim of sex crime," reads the High Court verdict.

The High Court further states, "It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of sexual assault and it is improper and also undesirable to test her testimony with certain amount of suspicion, treating her as if she was an accomplice."

Alas! The lower court judge in the Raintree hotel rape case herself focused on the victims' past sexual life to reject their case. They launched the legal battle seeking justice. They lost the battle. And lost more as they were judicially labelled as women with questionable character.

The judge seems to have forgotten that it does not matter what past relations the victims had because sexual intercourse without consent is legally defined as rape.

It seems the judge felt irritated with the case as she reprimanded the investigation officer of the Raintree rape case for "wasting valuable hours" during which "many important cases" could have been dealt with.

Out of her annoyance, she further observed that police should not accept any rape case if the complainant goes to the police station 72 hours after an incident. This observation triggered public outcry and condemnation. Such a timeframe, as right activists say, will inspire perpetrators to hold back their victims from filing cases within the stated 72 hours. A rape will be no more a crime on expiry of that timeframe!

The controversial verdict came hot on the heels of actor Pori Moni's case. Thanks to the intervention by the High Court the actor got remedy and the two judges have sought unconditional apologies to the apex court for placing Pori Moni on repeated remands unnecessarily.

Again, it is the higher court that did not waste time to take action against judge Kamrunnahar. Chief Justice Syed Mahmud Hossain deserves kudos for the prompt action against the judge who was suspended on Sunday from her judicial powers.

But the State cannot shrug off the responsibility of this unpleasant saga as the country has yet to get rid of the archaic legal provision that allows lawyers defending rape accused to question the character of victims to undermine their testimonies against the perpetrators.

In 2015, the Bangladesh Law Commission sent a recommendation to the law ministry for scrapping the provision. The then chief justice had also publicly denounced the controversial legal provision.

Five years down the line, the recommendation still remains ignored. The law minister has, however, said recently that the government would repeal the provision and place a bill in parliament in January.

Scrapping the legal provision that degrades human lives needs to be the order of the day. This can be scrapped any time either by passing a bill by parliament or promulgating an ordinance by the president. For this no scrutiny is required.

Take note that India, Pakistan and Bangladesh inherited the Evidence Act from British rulers. India and Pakistan have already repealed the heinous legal provision that allows defence lawyers to question the character of rape victims.

Many countries such as the USA, the UK and Australia have already enacted laws putting bans on questioning past sexual lives of victims in rape cases.

But Bangladesh still lives with the archaic legal provision which runs counter to the rule of law and human dignity.

Shakhawat Liton

Shakhawat Liton is deputy executive editor at The Business Standard