Written by: Alexander Lee
As part of her message for the International Day for the Elimination of Violence against Women on 25th November 2019, the UN Women Executive Director Phumzile Ngcuka said: “If I could have one wish granted, it might well be a total end to rape.” While this might be a practical impossibility, many Bangladeshi citizens will identify as kindred spirits in a country where rape has been an issue of increasing severity and the subject of much parliamentary discussion.
Development of Statute Law
At the heart of rape law in Bangladesh is s375 of the Penal Code 1860, Chapter XVI of Offences Against The Human Body which came into force during its period of British colonial rule:
‘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 following descriptions: Firstly. Against her will. Secondly. Without her consent. Thirdly. With her consent, when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With or without her consent, when she is under fourteen years of age. Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception. Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape.’
On 13th October 2020, Bangladeshi Law Minister Anisul Haq issued an ordinance approving the amendment of existing rape penalty laws under s376 of the Penal Code 1860:
‘Whoever commits rape shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, unless the woman raped is his own wife and is not under twelve years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.’
The amendment as part of The Women and Children Repression Prevention (Amendment) Bill 2020 legalizes capital punishment as a new maximum penalty for single perpetrator rape under s375 of the Penal Code. This increase in criminal liability stems from public outcry in response to a dramatic rise in the number of high-profile sexual assault cases in recent years. 
Rape Cases and Statistics
Recent incidents include the arrest of several members of the Bangladesh Chhatra League, a student political organisation, for gang raping a woman in northern Sylhet, as well as the detention of a local Awami League official and a few other accomplices who engaged in gang assault and sexual harassment of a 35-year-old woman in the south-eastern district of Noakhali a few weeks later.
Responses of anger mainly came from female students and activist groups in Dhaka who protested with calls for the death penalty and slogans like ‘Hang the rapists’. Statistical evidence suggests that their resentment is not without justification. Compared to war-torn Congo (the so-called ‘rape capital of the world’) in which the American Journal of Public Health found that 400,000 females aged 15-49 were raped over a 12-month period in 2006 and 2007, Bangladesh has ‘only’ seen 1,000 women raped in the first nine months of 2020. In fact, these rates have more than doubled in the last year, with reports in 2019 of ‘just’ 330 women raped according to the Human Rights Activist Group, Odhikar.
It should be noted that these figures might be even higher as the number of unreported cases is not known. Reasons for potential claimants refraining from reporting cases of rape could derive from the innate difficulty in proving rape claims which mainly rely on who provides the more convincing ‘he-said, she-said’ rhetoric, and the fear of retaliation by perpetrators if they are acquitted. In addition, prior to late 2018, the ‘two-finger test’ used during a rape investigation - in which a medical practitioner inserts two fingers up the woman’s vagina in order to determine whether the woman is ‘habituated to sex’ - was widely criticized as demeaning and could steer female victims away from reporting such incidents. Finding that it has no scientific value, this test was since banned by the Bangladesh High Court . Alarmingly, 95.1% of Bangladeshi men who committed rape have not experienced any legal consequences as a result of their crime, which further condones this ‘rape culture’.
The Death Penalty and Public Response
Is the introduction of the death penalty a welcome or an unwelcome change in the law then?
It appears that the main aim of the introduction of a maximum capital punishment sentence is deterrence. The Bangladesh cabinet secretary, Khandker Anwarul Islam, spoke to the press regarding the implementation of the new laws: “The people who intend to commit rape will think twice if death is the punishment for the crime. It will definitely have a positive impact.” This sentiment has been echoed by Ms. Miti Sanjana, a lawyer practising in the Bangladeshi Supreme Court, who believes that the death penalty will curb sexual crimes better than a life sentence and that it is much needed for the country. Speaking to Deutsche Welle, she commends the judicial system in recognising rape as one of the most heinous crimes possible and stresses that it is ‘highly unlikely that the amendment of the sexual crime-related law will encourage the rapists to murder their victims’ because of the pre-existing capital punishment sentence for murder.
On the other hand, public response to the death penalty has been mixed from the youth protestors.
Dhaka University student Billal Hossain, speaking to Anadolu Agency, demonstrated his support for the new laws because of its ability to ‘control [rape] effectively’ but also remarked that this largely depends on the intentions of the ruling party and whether they can wield such power responsibly. Progati Barman Tama, the General Secretary of the University’s unit of the Socialists Students' Front, highlighted the importance of quashing the culture of ‘political impunity’ along with the importance of bringing the criminals themselves and, most importantly, their ‘masterminds’ to justice. The implementation of the death penalty for rape will not reap the rewards of its intended ‘deterrence’ effect if the true culprits of such crime are not punished for their actions because of their political status in Bangladeshi society.
Simultaneously, there are also significant oppositions.
Besides the obvious moral and inhumane grounds, one of the primary arguments against the death penalty is the required presumption for the crime to be equivalent to death in order to impose such a punishment. Feminism aims to dispel the myth of the destruction of a woman’s honour after being raped, meaning that female targets of sexual assault would be considered useless to society. In essence, some feminists seek to empower women by attempting to do away with the social stigma around the shame endured/suffered by a rape victim – but the manner in which they do this, by saying that “rape is a tool of the patriarchy” is horribly erroneous. It is worth mentioning that the act of rape is not confined solely to men. The attribution of crime to a specific gender is ironically sexist in itself. Based on a ‘convenience sample of 13,877 students in 32 nations’, a 2011 study by the Department of Education and Science of Spain found that 2.4% of males and 1.8% of females admitted to having physically forced someone into sex the previous year.
Moreover, up till now, there has not been any conclusive evidence which verifies the imposition of the death penalty as a curb to any crime including rape. In fact, 10 out of 11 countries examined by the Abdorrahman Boroumand Center in 2018 – a Washington, DC-based organisation that promotes human rights and democracy in Iran - saw a decline in murder rates the following decade with the abolishment of capital punishment for murder. Hence, it is possible that imposing the death penalty for rape in Bangladesh might instead encourage subsequent murder, scaring away more victims to report the crime.
Therefore, in reality, the death penalty papers over the cracks in the already flawed judicial system of Bangladesh, where rape survivors are systemically ridiculed and ignored. Even when successfully reported, cases are likely to be sloppily investigated and easily dismissed. As described by Meenakshi Ganguly, the South Asia director at Human Rights Watch, the conviction rates for rape in Bangladesh are “abysmally low” with some studies illustrating merely 3% were found guilty. Furthermore, it has been advocated by the South Asian Researcher of the Al Sultan Mohammed Zakaria that the current legal system “is a fig leaf that deflects attention from the [real pervasive problem] faced by so many Bangladeshi women”. The country has chosen to only retribute against culprits, supplying ‘no access to legal aid, medical care, safe shelter, witness protection, or psychological and social counselling for survivors of violent sexual assaults’, and its laws are fundamentally flawed.
Human Rights groups and various legal practitioners have repeatedly called for a repeal of s155(4) of the Evidence Act 1872, which states:
‘When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.’
The reason for such a cause is that these laws encourage the denigration of a woman’s character as a defence and feeds into the ‘she was asking for it’ narrative that plays down the suffering of the victim. As a result, this would discourage them from stepping forward to pursue criminal action due to fear of the resulting social stigma.
Unsurprisingly, women are not the sole victims of this failed system. While Article 376 of the Penal Code sets out punishments for rape, it did not include adequate protection to the male gender, intersex, transgender or hijra people from sexual assault. It even excludes marital rape, whereas other jurisdictions like the UK have revoked as in R v R.
Indeed, the Bangladeshi government is taking a step in the right direction by addressing the ever-growing issue of rape in the country. However, if it truly wants to minimise or idealistically eliminate such crimes from occurring, more effort must be put in to not just deter potential offenders, but also to offer sufficient support to its victims.
Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.
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