Rape is a heinous sexual violence and a violation of an individual's dignity. The Penal Code 1860 (PC) is the primary law in Bangladesh that defines most of the crimes and specifies the penalties. The Nari O Shishu Nirjatan Daman Ain 2000 is one of the special laws that was passed in response to the large number of violent incidents relating to violence against women and children. Section 9 of this Act lays down the punishment of rape, whereas section 2 of the Act gives the definition by referring to section 375 of the PC. Section 375 of the PC states that a man commits rape if he engages in sexual activity with a woman under certain circumstances e.g., against her will, without her consent, when her consent is obtained by putting her in fear of death or hurt, etc. Age, marriage status, and other factors are also included. However, the Code does not provide a thorough definition of "sexual intercourse".

Remarkably, the explanation in this section claims that sexual activity necessary to constitute the offence of rape requires penetration. However, the type and degree of penetration, as well as the use of foreign bodies, oral and anal sex, have not been incorporated. The court held in State v Shahidul Islam alias Shahid (2006) that complete penetration is not necessary to prove rape; even small or partial penetration, with or without semen emission and hymen rupture, or even an attempt at penetration, is sufficient.

Indian courts considered penile-vaginal penetration to be the strict requirement prior to the Nirbhaya case. Later, the Supreme Court of India has ruled in numerous cases that even partial penetration is enough to constitute rape. In Aman Kumar & anr v State of Haryana, it was determined that for rape, it is adequate if the penis partially penetrates the labia majora, without causing semen to be released. Things further changed after the Indian Penal Code was amended in 2013. In Santhosh v State of Kerala (Criminal Appeal no. 1311 of 2016), where the court ruled that a woman is raped if someone penetrates her between the thighs. As per the court, such penetration creates a result similar to that in a typical penile-vaginal intercourse. However, Bangladesh has not adopted these reforms and continues to adhere to the outdated "penile-vaginal" definition of rape included in the Penal Code, in contrast to the USA, UK, and India. Unfortunately, the existing definition of rape under section 375 of the Code does not directly cover all grave forms of sexual assault, other than penile-vaginal penetration, as rape.

Now the approved draft of the Nari O Shishu Nirjaton Daman Ordinance 2025 seeks to widen the definition of rape by moving beyond the penile-vaginal understanding of rape.This could prove to be a step in the right direction, provided the criminal justice actors are duly sensitised to the change and its potential.

The writer teaches law at American International University-Bangladesh.