Rape is giving sex to somebody who doesn't want it. Bangladesh law restrictively defined only as penile-vaginal penetration, although rape in reality constitutes many types of violent actions. Section 375 of the Penal Code 1860 states: A man is said to commit "rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five situation of lack of consent.
Al through there are many distinct forms of sexual violence, in the context of rape. Nine forms of rapes are: (1) communal rape; (2) gang rape; (3) political rape; (4) rape of minors; (5) marital rape; (6) army rape during war or peacekeeping; (7) institutional rape such as in hospitals, remand homes, or prisons; (8) rape in economically dependent circumstances; and (9) rape within political organizations. Thesaurus.com defined 'rape' as "Unlawful sexual intercourse or any other sexual penetration of the vagina, anus, or mouth of another person, with or without force, by a sex organ, other body part, or foreign object, without the consent of the victim". A woman is unable to consent because of - (1) her age; (2) unconsciousness; and (3) idiocy or imbecility or that it was obtained by fraud. A cessation of genuine resistance will not amount to her consent.
The Penal Code also explains that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. The Prevention of Oppression against Woman and Children Act of 2000 also give the same view of rape. The law doesn't define penetration and not elaborate the meaning of consent or how consent can be proved. Consent must be free consent. The law requires proof of physical resistance as evidence of refusal of consent. In addition, males raping females and female children is the only recognised form of rape currently. The definition of rape is not updated. Bangladesh is still following the 150 years old definition given in the Penal Code, 1860 by the British rulers. The marital rape without consent is out of preview of the law.
The law cover women and children but serious sexual violence against male children is left uncovered. It also fail to ensure prosecution for sexual offences committed against transgender persons not does it cover the marital rape. It also does not criminalize the rape with child bride of 13 years and above, which is also contradictory with the Child marriage Act. The crime of rape is often conceptualized as torture, inhuman or degrading treatment. Although there are contradictions between definitions of sexual intercourse, sexual assault, sexual violence and rape.
The definition should cover the all the acts committed via sexual violence. It also include coercion of the person to sexual relations, buggery or to committing of other actions of a sexual nature by threat of destruction, damage or withdrawal of property or with use of material or other dependency of the victim both male and female.
The rape is not always easy to prove if one of two elements - sexual intercourse or the absence of consent - is also absent. It is much harder if consent distinguishes a sexual expression of love between two people and rape, which is possible. For instance, when two man and woman love each other and have sexual intercourse, it happens, of course, with consent of both sides.
However, it can also happen that there is consent at the beginning, but later one of partners does not want to continue so the other one uses force and abuse. In this situation, what began as consensual sexual activity has now been transformed into rape. In essence, there must be an understanding the consent can be withdrawn once given. Bangladesh has culture of presume such incidence as rape from the initial stage of such relationship without out considering the time of withdrawal of consent.
The Rape Law Reform Coalition, a body comprised of 17 rights organisations have 10 demands from the law, and the death penalty is not one of them. It aims to identify gaps in the legal and institutional framework that prevent justice for rape victims/ survivors, and to formulate reform proposals. They are demanding to redefine rape to cover all forms of non-consensual penetration, irrespective of gender of the perpetrator or the victim/ survivor. The definition of 'penetration' for the purposes of determining rape, to include penetration by the use of objects or any other part of the perpetrator's body.
The Section 155(4) and other relevant sections of the Evidence Act should amend to end admissibility of character evidence of complainants in rape trials. Such reform should also ensure judges are duty bound to ensure that defence lawyers do not ask humiliating or degrading questions during cross-examination of complainants.
The term 'child' under the Nari O Shishu Nirjaton Domon Ain 2000 to include male children. They also demand a Victim and Witness Protection Act according to the draft prepared by the Law Commission in 2006/ 2011), for institutional protection, emergency shelter, livelihood support, psycho-social support, and protection of identity or relocation as required, of victims/ witnesses and ensure protection is continued until the victim and witness's safety is no longer threatened and satisfactory alternative arrangements have been made.
Their demands include changing the definition of the law to include victims of all genders, defining "penetration" to include rape using objects, banning the use of character evidence against rape survivors during trial, allowing judges to hand out punishments proportionately and as per their discretion, ensuring that courts and systems are inclusive for survivors with disabilities and enacting the witness protection law.
The death penalty now only one punishment, the judges reportedly will feel the pressure of being a hundred percent sure that the complaint is valid, and they demand a lot of evidence and scrutinise it to the dot. As a result the rape complainant has to bear a heavier burden of proof than what a victim of a normal crime would have to. The death penalty would only make it harder for judges to serve justice.
The coalition demand the law to enables judges to exercise discretion in sentencing and formulate necessary sentencing guidelines which ensure proportionality of punishment and take into account both mitigating circumstances (such as the age or mental health of the accused) and aggravating circumstances (such as the use of weapon, force or violence and causing permanent physical or mental impairment of the victim/ survivor).
Instead of death penalty, Bangladesh may consider to redefine rape to ensure that all forms of non-consensual penetration are covered by it, irrespective of gender of the perpetrator or the victim/ survivor. The definition of rape should reflect that consent may be revoked at any point and that the absence of proof of force or physical resistance does not establish consent.
An amendment is a must in Section 155(4) of the law of evidence and other relevant provisions to abolish admissibility of character evidence of complainants in rape trials. The defence lawyers should not allow to ask humiliating or degrading questions during cross-examination of rape complainants.
The death penalty may create opportunity of misuse of the law and corruption. Bangladesh need a perfect definition of rape includes the sexual intercourse, sexual assault, sexual violence and enforcement of law. The consent of should be based on circumstances not on the basis of evidence of physical resistance. Some other laws should be amendment for enforcement of laws to punish the rapists.
The writer is a legal economist.
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