Changes to the rape law in the offing. Is there reason for hope?

In early October 2020, hundreds of Bangladeshis — mostly women – took to the streets to protest video footage of several men assaulting a woman in Noakhali. The woman was also stripped. The video went viral. 

Although the video was soon taken down, it spurred, perhaps for the last time to date, a large-scale protest in Bangladesh on social issues, beyond political parties and the Dhaka University campus.

Against the backdrop of nationwide anti-rape protests, the Rape Law Reform Coalition (RLRC) - collective of 17 human rights and women's rights organisations in Bangladesh - issued a 10-point demand. Later in the same year, the Bangladesh parliament approved mainly two amendments — incorporating the death penalty in cases of aggravated rape and the repeal of Section 155(4) of the Evidence Act, which had allowed the introduction of character evidence to discredit rape survivors. 

That was the last time when an amendment was passed regarding rape law in the country. 

Fast forward to 2024. The Law Commission sent the drafted Women and Children Repression Prevention Act, 2021 to the Dhaka Metropolitan Police (DMP) for recommendations. TBS has a copy of the draft.

Titled Concept Paper for Drafting Women and Children Repression Prevention Act, 2021, experts say the document, despite laudable provisions related to dowry and domestic help violence, still carries a number of shortcomings. It fails to include all citizens - such as male and transgendered persons – as victims of rape, and does not directly mention marital rape, among other issues. 

Is sexual relationship under false pretense rape?

According to police headquarters information in 2023, 20,000 cases were filed under the Women and Children Repression Prevention Act 2000.  Additionally, 1 lakh 55,438 cases are under trial, of which, 34,000 have been pending for more than five years.

According to law enforcement and legal professionals, a vast majority of rape cases pending before the courts in Bangladesh involve consensual sexual relationships under false pretenses of marriage. Given that the lowest possible punishment for any form of rape in Bangladesh is life imprisonment, there is disagreement on how the law should respond to such cases.

Currently, section 17 of the 2000-Act addresses incidents of false allegations i.e. if a person falsely accuses someone of rape. However, it does not address the issue of fraudulent consent per se. 

"There are scores of cases in the country, where the woman files a rape case against a man because he refused to marry her. The woman previously engaged in a physical relationship [intercourse] on the promise of marriage," explained Mahmuda Afroz Lucky, Deputy Police Commissioner (Superintendent of Police), Legal Affairs, DMP, who has been involved in DMP's proposals. "Then should such a case also be deemed as rape?"

Photo: Reuters

Although the draft copy proposes an attempt to clarify the issue of fraudulent consent, it does not offer details or specifications. DMP recommends the law address this type of case and that the accused not face the same punishment as that of a perpetrator who had committed rape. 

"I have heard several judges and lawyers in Bangladesh assert this (that such cases form the vast majority of rape cases in Bangladesh). However, such assertions are anecdotal at best since there are no official rape statistics in Bangladesh which categorise the type of cases being filed," said Taqbir Huda, Founding Member of RLRC. 

"While most would agree that these cases do not warrant life imprisonment, there is disagreement on how the law should respond to such cases," explained Huda. "Some argue these should be considered rape, some argue they should be treated as separate offences like fraud, while some argue that they should not be criminalised at all." 

"Legal reform efforts should facilitate these debates to identify the most plausible solution." 

What about men and transgender persons?

A 2015 survey by Bandhu Social Welfare Society found that 42.2% of gender diverse population in Bangladesh were victims of rape and 26.1% of gang rape. The absence of a law safeguarding transgender keeps many away from filing a case at the police station. 

Time and again this has been pointed out by human rights organisations in the country and beyond. In fact, one of the 10 demands put forth by the RLRC in 2020 was, "to broaden the definition of rape to make it non-discriminatory." 

The legal definition of rape in Section 375 of the Penal Code 1860 is limited, and it should "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," Taqbir Huda wrote earlier. 

The Law Commission's approximately 50-page draft of the 2021 Act carries no mention of transgender individuals or third gender. However, one of DMP's recommendations is the inclusion of a transgender clause. 

Since the Law Commission's 2021 Act draft so far only addresses women, it is unclear whether DMP's suggested clause will apply to transgender men as well. 

"Transgender, both men and women. Anyone who is a transgender person," replied Lucky.

There are other changes in the draft copy which may have inadvertently undermined the rights of other genders, specifically male children, to seek redress.  

One of the main changes is dropping the word "children" from the Women and Children Repression Prevention Act, 2021 meaning if passed, it will become the Women Repression Prevention Act, 2021. The draft explains that the Children's Act 1974 was inadequate but the latest Children's Act 2013 is sufficient, under which anyone under 16 is considered a child. Therefore, the draft proposed that all provisions related to children be consolidated under the 2013 Act. 

Photo: Reuters

The problem is, at present, the Children's Act 2013 does not carry any provision pertaining to rape. This would mean, male children would be excluded from the Women Repression Prevention Act without receiving any protection from the Children's Act.

"If the proposal is to remove the gender-neutral definition of child from the 2000 Act and replace it with a gendered one, which only covers crimes against female children, what will become of other child victims of rape, such as male children or hijra children?" asked Huda. 

DMP's Lucky reiterated the same sentiment. "If [Act 2021] is to pass, the Children's Act 2013 amendments need to be made effective at the same time."

What about male adult victims of rape, where would those cases go? "Penal Code 377 is sufficient to address those cases," said Lucky. 

Penal Code Section 377 addresses "carnal intercourse against the order of nature" under "unnatural offences" which has been repeatedly critiqued by rights organisations, because it is a law used to criminalise same-sex relationships. In a 2013 multi-country study by the UN, it said 2,374 men reported being raped by another man in Bangladesh. 

What exactly is rape?

Rape, by definition, is sexual assault without consent. In the 2000 Act, and special laws on violence against women before that, the issue of 'consent' is limited to non-marital cases, meaning marital rape was granted an exemption. 

The Law Commission's draft copy also addresses the issue of consent quite extensively, indicating that it applies to those older than the age of 16 (if there is an incidence of rape involving a victim younger than 16, consent is inconsequential). It does not however explicitly mention marital rape, leaving it unclear whether the consent mentioned here actually covers marital rape. 

Ayesha Akter, senior advocacy officer, BLAST (Bangladesh Legal Aid and Services Trust) said, "This year, we will be focusing on three of the 10 demands [RLRC issued 10 demands in 2020]: 1) consent. Our focus is to emphasise this. Without consent, the act of penetration should be considered as rape and tried as such. This should include marital rape as well." 

The issue of consent also ties with the larger issue of the definition of rape. According to Ayesha, the coalition will also focus on their demand to redefine or expand the definition of rape. "This means, rape does not have to mean penetration. [for instance] The act of coerced oral sex should be considered as rape." 

Although the draft copy recognises the need to expand the definition of rape from what is understood as per Penal Code 1860, it mentions anal and oral sex by coercion only once. The draft mentions rape by instrument twice.  

Photo: Reuters

Are DNA tests always necessary?

Do you remember the 2021 Raintree rape case? Two women said they were raped in a Banani hotel and went to court after filing the case. The court's verdict acquitted all the five accused. 

This is what Judge Mosammat Kamrunnahar said, "The prosecution failed to prove the charges beyond a reasonable doubt because DNA tests and evidence did not prove the rape allegations. Victims went to the hotel voluntarily and took a swim there. 38 days after the incident, they said, 'We have been raped.' This case is baseless."

Notice how DNA test results were cited by Judge Kamrunnahar in her ruling to dismiss the Raintree rape case. However, DNA results will not prove rape allegations after a certain time, because the semen will no longer be present in the body. 

Nonetheless, in early 2020, section 32A was added to the 2000-Act — an amendment making DNA testing mandatory for the accused and the victim. The Law Commission's draft copy also includes provisions related to "speedy treatment of women victims of crime, filing of cases, evidence if any, and other tests including DNA"  

Many lawyers, activists and law enforcement officials agree that not all victims of rape will immediately lodge a case against his/her perpetrator, due to the toll on the victim. However, this "delay" does not make the allegations untrue by any measure. In such cases DNA evidence becomes void for all intents and purposes.

Additionally, "we must take into account if there is more than one perpetrator involved. In those rape cases, DNA testing is also void," said DMP's Lucky. 

One of the DMP's recommendations is to conduct "the DNA testing on a need-to-need basis," said Lucky, adding, "If the victim comes forward after a certain time and the DNA test result proves to be void, then what is the point?" 

Is capital punishment a deflection?

In Bangladesh, laws pertaining to rape are governed primarily by the Penal Code 1860, and the Prevention of Women and Children Repression Act, 2000. The amendment in 2020 for Act-2000 said the highest form of punishment for rape will be capital punishment. 

This faced a lot of backlash both at home and abroad. 

In a press release in October 2020, Amnesty International's South Asia Researcher, Sultan Mohammed Zakaria, said, "This regressive step is a fig leaf that deflects attention from the lack of real action to address the appalling brutality faced by so many Bangladeshi women. Executions perpetuate violence, they don't prevent it."

Acquittal rates go up resulting in lower conviction rates in rape cases, according to experts. And what happens on the ground? 

"Although the amendment [capital punishment as the maximum punishment for rape] came into effect to deter rapists by causing fear among them for the repercussions [and in effect reduce the incidence of rape], we have not seen that to be the case," said Lucky. 

"We would see [earlier] that raped victims are spared after the act. But now, it is more likely that the victim is killed, so that there is no one to speak up [and charge the perpetrator with possible death penalty]," she added. 

Although capital punishment sprouts now and then in the draft copy of the Act-2021, the draft copy proposes a more restrained use of capital punishment. It is not the sole punishment for cases of aggravated rape, but rather an alternative to long imprisonment sentencing, when deemed necessary.   

TBS' Crime Reporter Zia Chowdhury contributed to this report.