‘Virtue’ of rape victims: If Pakistan and India declared it irrelevant, why can’t we?

For far too long, Bangladeshi society has been consciously or subconsciously, cultivating the rape culture in several forms; from legislative provisions that question the choices of the victim rather than the rapist to community acceptance of rape as a loss of family honour, the collective mindset is moulded by centuries of patriarchal traditions, institutions, and lack of accountability.   

In essence, Bangladesh's legal system still suffers from a colonial hangover, and often reflects the mindset of that era.  

In most cases, the same laws have been repealed in other comparable jurisdictions, and in fact, even in the United Kingdom itself.  

India and Pakistan, the countries that share similar social structures, history and common law system, have undertaken significant reforms in this field, and have shed off the colonial mindset that allowed for questioning the 'immorality' of women in cases of rape.  

In contrast, Bangladesh has been lethargic in its handling of the provisions.  

While significant progress has been made in empowering women with legislative and social structures, the handling of a provision such as Section 155(4) of Evidence Act 1872 may be termed as a 'stain' on the legislature of Bangladesh.  

The provision is effectively a discriminatory colonial-era law on 'character evidence', often used by the defence lawyer as a tool on victims. It enables them to harass the victims with degrading questions to discredit their case.  

This outdated, patriarchal and unethical provision is affecting victims of rape because the supposedly 'immoral character' of the victim is often used to suggest presumption of consent in cases of rape. This shifts the focus from the abuser (man) to the victim/ survivor (woman).  

This bias also reflects in the way news is reported in the media, often using passive language to report the heinous crime. "We talk about how many women were raped last year, not about how many men raped women," said Jackson Katz, the co-founder of 'Mentors in violence prevention' in his TedTalk. 

The passive tone in the sentence construction of headlines has a political effect; more often than not, they are missing an 'active agent' in the headlines, e.g. 'A woman was raped' rather than 'A man raped a woman'. This makes the reader associate rape with women, and shields men through omission.

If we fail to recognise the existence of an issue, to begin with, then how can it be addressed? As we see, more resources are channeled towards 'protecting' or 'blaming' the victims than holding the abusers accountable. Unfortunately, our legal system's focus is also limited to that.

Justice Md Nizamul Haque, former Justice at the Appellate Division of the Supreme Court of Bangladesh, in a seminar stated that Section 155(4) must be repealed to protect a rape survivor from being asked humiliating questions during rape trials. The main focus in rape trials should be issue of consent.

How has India dealt with 155(4)? 

In 2003 and 2013 respectively, India introduced the rape shield law, as they inserted Section 53A, that makes character evidence inadmissible in rape trials and renders any questions of character and past sexual history of the victim 'irrelevant'. 

The Government of India repealed section 155(4) of the Evidence Act 1872 and additionally amended Section 146(3) of the Act to further block the usage of character or past sexual history of the complainant or victim.  

However, prior to this historic decision, there was an active discourse on the issue which was raised by the Law Commission. 

In 1980, the Law Commission of India suggested reconsidering the provision, saying that it may cause 'serious hardship', 'humiliation' and 'permanent scars on her peace of mind and psychological wellbeing'. As a result, it suggested three amendments to the legislation:

1. Amendment of Section 155 (4): The Law Commission had recommended to modify and to be 'confined to sexual relations with the accused and that too only where consent is in issue', but the Parliament of India went a step further, and instead of simply "modifying" Section 155(4), repealed the law entirely.

2.  Amendment of Section 146: Victim's character and sexual history cannot be questioned. The Parliament of India amended Section 146 of the Evidence Act to apply this law not only to rape but other related offences, such as sexual harassment, assault, stalking etc.

3. Insertion of Section 53A: Victim's character and all sexual history irrelevant 

The Indian Parliament declared the victim's character and sexual history (with and without the accused) to be completely irrelevant in cases of rape, sexual violence, and other similar acts of violence.

Pakistan and character evidence 

Given the significance of the conservative Muslim culture in Bangladesh, it is important to consider how an Islamic country dealt with the same law. 

Pakistan repealed the character evidence act – deeming it unconstitutional and a violation of the principles of gender equality enshrined in the Holy Qur'an.

Initially, Pakistan replaced the colonial Evidence Act 1872 with its own, Qanun-e-Shahadat Order 1984 ('The 1984 Order') with minimal revisions. 

The 1984 order's Article 151 (4) was the Pakistani equivalent to section 155(4) of the colonial evidence act that Bangladesh adopted. 

In 2009, this act was challenged before the Federal Shariat Court and in spite of heavy opposition, the court decided to repeal it all together, declaring it unconstitutional.

"Article 151 (4) of Qanun-e-Shahadat Order, 1984 is discriminatory on the basis of sex and violates Article 25 (2) of the Constitution as it purports to impeach the credit of a woman, and above all it negates the concept of 'gender equality' as enshrined in the Holy Qur'an." 73

What can Bangladesh learn from this?

There is a general consensus in the legal systems of the aforementioned neighbouring countries that section 155(4) is not in compliance with global human rights standards. 

The decision to repeal it is backed by discourse, research and evidence. The reflection of this law can be seen in the way the minds of the society work. 

However, as is evident from these examples, simply repealing 155(4) is not enough. We must implement laws that will clearly declare the irrelevance of the victim's character and sexual history.

In addition to that, Section 146 must be amended so that the sexual history of the victim cannot be questioned – otherwise repealing character evidence alone would have miniscule effect on the delivery of justice. 

India has done this with section 53A and the amendment of 146(3). Moreover, we must also introduce gender education, access to legal aid for victims and take other necessary measures in this regard. 

Additional to the ones mentioned above, the scope of the provision of Section 14 of the Women and Children Repression Prevention Act, 2000 should extend, i.e. it prohibits the public disclosure of the victim's identity through news, and should be introduced for prohibition of complete disclosure of the victim's identity. 

This was witnessed in September 2020, where Magura Chief Judicial Magistrate in a case of cyber abuse upheld its legislative duty to keep the identity of the victim private. A judgment was delivered without mentioning the victim's name, instead a pseudonym 'Kalpa' was used. 

The archaic and unmerited provisions of the Evidence Act violates a rape victim's right to privacy and right to life at large. To prevent the victim from further social ostracisation and to protect her privacy, the practice of pseudonymous litigation in rape cases should be encouraged. 

As such, it is imperative for the government to realise that minor amendments to a colonial burden that we have been carrying for 50 years since independence, will go a long way, and knowing the significance of the year 2021 for Bangladesh, will be a landmark achievement for the country. 

This article starts off a partnership between The Business Standard and Youth Policy Forum (YPF). YPF is a youth-led initiative aimed at the research and advocacy of evidence-based policy, from grassroots to parliament. With over 10k forum members and 85 core team members, YPF is excited to share their findings on local,national, and international policy issues every week with you.