Bangladesh must update colonial-era law to deliver justice for sexual assault (experts)

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“No law in Bangladesh considers this to be rape or a crime,” said Maleka Banu, general secretary of the Bangladesh women’s rights group Mahila Parishad.

In September last year, a woman was beaten and undressed in Begumganj in Noakhali. Police arrested several suspects more than a month after the incident of a rape trial when an online video of the torture went viral, sparking public outrage.

“But it’s not defined as rape because the perpetrators touched the female’s genitals with their hands or penetrated them with bamboo, not their male sex. The punishment is less severe in such cases, ”said Jinat Ara Haque, executive coordinator of the We Can campaign.

“It is a case of torture but in a different form. It is not considered a rape incident because the male genitals were not involved,” Jinat said. “Thus, expanding the definition of what constitutes rape is an absolute necessity. “

As Bangladesh grapples with an increase in sexual violence against women, girls and in some cases men, boys or transgender people in various forms despite its achievements in empowering women, Activists and legal experts believe that updating colonial-era law by expanding the definition of rape can ensure justice for victims.

“People face sexual violence in many ways. Therefore, the definition (of rape) in the law has to change, ”Maleka said.

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The Bangladesh Penal Code of 1860 states that a man commits “rape” who, except as hereafter excepted, has sex with a woman against her will or without her consent.

If the woman has given her consent for fear of death or being injured; or with her consent, when the man knows he is not her husband, and her consent is given because she believes he is another man to whom she is or believes she is legally married will also be considered as a “rape” under the law.

The last circumstance considered “rape” under the law is when she is under the age of 14, regardless of whether it happened with or without her consent.

The law says that penetration is sufficient to constitute the sexual intercourse necessary for the offense of rape.

The exception mentioned in the law is: sexual intercourse of a man with his own wife, the woman not being less than 13 years old.

“In fact, we need a lot of reform,” said lawyer Fawzia Karim Firoze. For example, she said, Bangladesh law does not deal with marital rape. “This is a large area. We need to reform these things after research.”

Taqbir Huda, a researcher at the Bangladesh Legal Aid and Services Trust or BLAST, also believes that changes need to be made to the penal code, the code of criminal procedure of 1898, the evidence law of 1872 and the prevention of law enforcement. women and children. Law of 2000.

“We asked to define rape in a way that does not allow discrimination so that rape victims can seek justice under the law of the land.

“Under current law, men can rape and women and girls can be raped. This means that if a man or transgender person is raped by someone, they fall into legal loopholes because they are not defined. “

In such cases, he said, article 377 of the Penal Code is their only recourse. The section on “unnatural sex” considers intentional carnal sex against the order of nature with any man, woman or animal as an offense.

The British penal code made by Raj, which is currently used in Bangladesh, does not work in modern Britain. Britain’s current rape law was passed in 2003. Under the country’s Sexual Offenses Act, the definition of rape does not discriminate against sex. Rape is defined as non-consensual penetration of the male genitals into a person’s vagina, anus, or mouth.

In the amendment to the Law on the Prevention of Punishment of Women and Children made last year, the definition of “rape” remained unchanged from the Criminal Code, which means that it does not deal with reports. forced sex or sexual violence against underage boys.

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In the same article, “a child” is defined as any person under the age of 16, which is an obscure legal definition where one can assume that “any person” refers to boys, girls and even transgender people.

BLAST researcher Taqbir denounced the fact that the rape of underage boys in the country is dealt with under the “unnatural sex” section of the Penal Code, where the penalty for such crimes is a maximum of 10 years. jail.

If deemed appropriate, this particular law can also be used against sexual relations of homosexual or LGBT communities.

Declaring that the maximum penalty for rape, according to the Prevention of Punishment of Women and Children Act, is a death penalty, Taqbir said that although rape of boys under the age of 16 can be dealt with by law. law, the police force people to prosecute. on the rape of underage boys under the “unnatural sex” section of the Penal Code due to a “lack of knowledge”.

“Madrasa cases (rape of boys in madrasa) are forcibly filed under article 377 (of the penal code). It is our institutional failure that we cannot make the police understand it,” Taqbir added. , in a frustrated tone.

Further, highlighting the inconsistency in various legal definitions of “children,” Taqbir said: “The Children’s Act (2013) defines children as persons under the age of 18. In the Law on the Prevention of Punishment of Women and Children, persons under the age of 16 are children. Now, if a judge gives priority to the children’s law, rapes committed against people under the age of 18 would not be taken into account. “

“These two acts are special acts. Special acts always have priority over general acts if they contradict each other. What will happen when the contradiction is between two special acts? “

Jinat Ara highlighted several other inconsistencies in laws regarding violence against women and children in Bangladesh. “The age of marriage for girls is 18. But they can consent to sex at the age of 16.”

“But in the Penal Code, if a girl is married, she can give her consent for sexual intimacy at the age of 14. A girl cannot get married at the age of 14, but if she is married, she can consent. These things are really confusing. “

According to the Prevention of Punishment of Women and Children Act of Bangladesh, consensual sex with any girl under the age of 16 is considered “rape”.

WITNESS PROTECTION AND FINANCIAL SUPPORT

BLAST researcher Taqbir believes that adequate security is not provided for witnesses, which is one of the obstacles to justice for rape victims.

According to Section 155 (4) of the Evidence Act, it can be shown that the “prosecutor, or victim, was of a generally immoral character”.

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Human rights activists have long called for amendments to the section. Recently, Law Minister Anisul Huq said that an initiative was underway to reform the section.

“The court can respect a woman after you prove that she is not of a general immoral character. But who will deal with the abuse she faces in police stations? A victim’s safety is crucial in this. these places, “Taqbir said, demanding” witness protection. ” Act ”not only for cases of rape but for all forms of crime.

“And one more thing, a compensation system should be in place. Sometimes financial assistance is required by the victim immediately after a crime has been committed. That is why such a system is needed. ‘demand now because we are now a middle income country. “

PRESERVE THE EVIDENCE

Jinat Ara emphasized the modernization and sustainable development of the procedures for collecting and preserving evidence.

“The United States can collect samples for up to two weeks by swabbing or other tools. These mechanisms are not available in our country. The procedure for collecting evidence is not up to the standards of the modern world. . “

To convey the importance of reforming the evidence-gathering process, Fawzia Karim said: “Say, for example, a woman has committed violence against her husband, or the husband has done the same with his wife. Sometimes witnesses record these things. Now when, as a witness, I go to court with the recorded documents, the court refuses (most of the time) to see the documents or it does not always have the necessary system in place.

“Digital evidence can be presented to the criminal court. But how many other courts across the country have such a system? New things need to be included in the evidence law.”

ABM Khairul Haque, a former chief justice, said the Law Commission is working on children’s issues in laws.

“We hope to submit a report within the next three months. All forms of torture against children are addressed in the project we are preparing.

The Minister of Justice could not be reached for comment despite several attempts to contact him.


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