e_Paper, Friday, August 25, 2017

2
FRIDAY, AUGUST 25, 2017
DT
News
The second rape
A colonial law and a courtroom ordeal doubly traumatise rape victims
• Afrose Jahan Chaity and
Shegufta Hasnine Surur
SPECIAL
Researcher Fatema Sultana was
shocked when she walked into a
rape trial.
“As a middle class urban woman,
my idea of a courtroom was one
that was portrayed in film and TV,
with separate docks and people involved
in the case quietly sitting,”
she wrote.
“When I went to a court outside
the capital I got a terrible shock.
There were countless people in the
courtroom, all talking at the same
time, while the court hears the cases
filed under the Women and Children
Repression Prevention Act.
“[The victim] begins recounting
her rape in front of all these people.
When she answers questions
from the defence lawyer, all kinds
of laughter, jeering and mockery
erupt around her.”
In this 2015 study, Fatema, an
anthropology teacher at Jahangirnagar
University, found that not
just the environment of the court
but also the legal framework for
rape trials endangered the victim
and jeopardised the trial process.
The worst of these is a provision
in the Evidence Act that allows the
questioning of her “moral character”.
A colonial legacy
On Sunday, the women’s rights
group Shokhi published a policy
brief calling on the government to
urgently repeal Section 155 Sub-Section
4 of the 1872 Evidence Act.
The section states: “When a man
is prosecuted for rape or an attempt
to ravish, it may be shown that the
prosecutrix [the victim] was of generally
immoral character.”
And such ‘evidence’ can be offered
to court to undermine the
validity of the victim’s allegations.
This provision, the brief said,
allowed the defence to question a
rape victim’s character and sexual
history and shift the focus away
from the accused.
The brief draws on a report by
the Bangladesh Legal Aid and Services
Trust (BLAST) that reviewed
judgments reported over a 10-year
period from 2000-2010, published
in the Dhaka Law Report and the
Bangladesh Legal Decisions.
The BLAST report finds that
this “character evidence” has been
taken into serious consideration in
many of the judgments. But since
the definition of “immoral character”
was absent in the law, it was
left to the court to decide what to
admit as evidence.
In one case in 2010, where the
victim was the sole witness, court
appears to have considered the
complainant’s climbing of a tree as
evidence of her “bad character.”
The complainant was a domestic
worker and was allegedly raped
by her employer. In the judgment,
the court stated: “…the victim entered
into the house of the accused
by climbing a Papua tree as the gate
of the house was closed which also
proves that the victim is a woman
of easy virtue, so her evidence cannot
be believed without the corroboration
of reliable evidence…”
In another case from 2005, the
victim, “an unmarried college girl
who comes of a respectable educated
family” was deemed to have
good character and therefore a reasonable
claim.
In her study, Fatema Sultana
concludes that the definition of
character is determined by prevailing
social notions.
The Evidence Act of 1872 has
remained unchanged since British
colonial rulers introduced it here.
There have been many calls to
bring necessary changes.
Shokhi’s policy brief showed
that in most countries, the colonial
legal provision had been removed
from the law and replaced with
“rape shield” laws that protected
victims from humiliation and further
mental trauma during the trial.
It had been changed in the UK,
First, the legal provisions for questioning
a victim’s character should be removed.
Second, there should be provisions for camera
[chamber] trials with as few people present as
reasonable. Third, the outdated medical test
called two-finger test should be removed
in India, Australia and Singapore.
The only country where the law
still remains is Pakistan.
Experts say the provision is a
further impediment to the various
stigma and risks that rape victims
already face in getting justice.
About half of the reported rape cases
in Bangladesh make it to trial. By
an estimate of Bangladesh National
Women Lawyers Association from
2014, 75% of rape cases fail to convict
perpetrators.
According to the Violence
Against Women (VAW) chart of
Bangladesh Mahila Parishad, from
January to July this year 526 women
were raped, 119 were gangraped,
41 were killed after rape,
and 113 faced attempt rapes.
Who is really on trial in rape
prosecutions?
Shokhi’s brief said that the focus
on the victim’s character in rape
prosecutions raised the question
of who was in fact on trial in these
proceedings.
The entire idea of evidence of
character was confusing, said President
of Bangladesh Mahila Parishad
Ayesha Khanam.
Findings in researcher Fatema
Sultana’s study show that the
courtroom is a terrifying place for
a rape victim, who is often isolated
from her family and society,
abandoned and living in support
centres. She has more likely than
not already passed many barriers
to justice from society and law enforcement.
But then she faces a trial
where she has to prove her good
character and ‘purity’.
“A woman who is alleging a rights
violation is compelled to prove her
good character in order to secure
her justice,” said Ayesha Khanam.
Subjecting women to a double
standard and focusing on the
victim’s prior sexual conduct and
character essentially puts the victim
on trial, she said.
“A rape survivor first goes
through physical torture and then
when she comes to seek justice she
gets psychologically tortured,” she
added.
The five tribunals have
received 4,436 rape
cases for trial so far
between 2003 and 2016
Of the 2,057 cases
disposed in the five
courts of Dhaka that hold
rape trials, the accused
were convicted of a
crime in only 16
In the Dhaka courts
over the last 14 years,
the disposal rate of
rape cases stands at
about 46%, while the
conviction rate is an
appalling 0.77%
BIGSTOCK
BLAST’s Research and Documentation
Coordinator Barrister
Nawmi Naz Chowdhury, who was
part of the research team, said:
“Women and girls seeking justice
for rape face humiliating and irrelevant
questioning about their sexual
history in court.”
“The legislation has detrimental,
prejudicial impact on rape trias
and diminishes the likelihood of
conviction for men who have committed
rape,” Nawmi said.
Repeal of Section 155 (4) and
enacting rape shield laws will encourage
reporting of rape crimes
and increase convictions through
dispelling rape myths and stereotypes,
Nawmi added.
BNWLA President Salma Ali said
that in her experience many victims
faced with such questioning
run away, change their addresses
and never return to trial again,
even if the court issues summons.
“They were physically raped
once, and mentally raped a second
time in court through law,” she
added.
Supreme Court Advocate Qazi Zahed
Iqbal said several reforms were
necessary to protect victims and reduce
the possibility of mistrial.
“First, the legal provisions for
questioning a victim’s character
should be removed.
“Second, there should be provisions
for camera [chamber] trials
with as few people present as
reasonable. Third, the outdated
medical test called two-finger test
should be removed,” he said. •