Tortious remedies for the rape survivors

A prominent human rights organisation Ain o Shalish Kendra reported that there was 4,787 incidents of reported rape cases in Bangladesh from January 2020 to September 2024. This implies that nearly one woman was raped in every nine hours in Bangladesh. According to legal experts, even this horrific rape data is quite underrepresented because many cases go unreported as the survivors fear stigma, get discouraged by close ones, or harbour general distrust in the justice system. In these circumstances, in addition to giving punishments to the convict, tort remedies can be a pivotal tool as they focus on the victim and make the convict accountable for rehabilitation of the victim.

The current justice system for rape victims primarily focuses on retributive justice, which refers to punishing the perpetrator proportionate to the crime committed. But this process largely overlooks the rehabilitation of the victims. In Bangladesh, it becomes extremely difficult for rape victims to live through social stigma and social misperceptions. This is even more evident when the woman is underprivileged or lives in a rural area. Moreover, rape causes serious physical and mental harm and needs speedy treatment, which also involves excessive financial burden. However, the current justice system fails to address these issues. In Bangladesh, the legal framework addressing rape is regulated by sections 375, 376 of the Penal Code 1860 and Women and Children Repression Prevention Act 2000 (WCRPA). Section 9 of the WCRPA provides death penalty as the maximum punishment for rape. In some cases, the victim also receives minimal financial compensation.

Unlike the criminal justice system, where the main focus is to punish the offender, tortious remedies' primary focus is on compensating the victim for the harm caused in every way possible and for future support and betterment of the victim. There are several remedies under tort law e.g., compensatory damages and punitive damages. The best tort remedies that would be ideal for rape victims are compensatory damages covering medical bills, therapy costs, and lost earnings due to trauma, and also acknowledging the emotional distress, pain, and suffering of the victim. Punitive damages aim to deter similar incidents from taking place again.

In the case of British American Tobacco Bangladesh Company Ltd v Begum Shamsun Nahar (66 DLR (AD) 80), the fact was that the victim was sexually assaulted, and the company, instead of remedying the situation, fired her. The victim sought damages from the company in the amount of Taka 2,50,38,000.00. This is the first tort law-based case against sexual offence in Bangladesh, demonstrating the potential of tort remedies in addressing sexual harassment and gender-based violence. Beyond merely punishing the convict, monetary reparation allows victims to rebuild their lives. It provides the financial support needed to recover from the harms sustained, access necessary resources, and move forward with both strength and independence.

In the socio-economic context of Bangladesh, where rape is considered a shame for the victim and embarrassment for her family, where financial constraint causes women to have an early marriage, be deprived of education, and so on, tort remedies can play an important role in addition to the ordinary remedies within the criminal justice system.

The writer is student at the Department of Law, North South University.