Severe punishment, not a panacea for sexual offence

Sohagi Jahan Tonu's alleged rape and murder has unveiled some of the fundamental flaws of our criminal justice system related to sexual offences. Reportedly, Tonu had been gang-raped before she was brutally murdered. Although the law provides for capital punishment for gang rape, it did not deter the perpetrators. It is apparent from the last two periodic reports of Bangladesh to the UN Committee on the Elimination of All Forms of Discrimination against Women, a body that monitors State compliance with the UN Convention on the Elimination of All Forms of Discrimination against Women, that the number of reported incidences of rape has not at all declined over the past decade despite the fact that capital punishment remains on the books for this offence in Bangladesh.

It may be recalled that Ms. Radhika Coomaraswamy, the UN special rapporteur on violence against women, identified low conviction rates and lack of gender sensitive judiciary in her 2001 report (E/CN.4/2001/73/Add.2, 6 February 2001) as major drawbacks of our criminal justice system. Even though Coomaraswamy's mandate dealt with the issue of trafficking of women and girls, her observations were relevant also to the general context within which sexual violence most frequently occurs. In effect, Coomaraswamy identified our low conviction rate and lack of gender sensitive judiciary as important hindrances to the effectiveness of our criminal justice system, which have little to do with these verity of punishment. It deserves mention that, long after 14 years of Coomaraswamy's report was submitted to the UN in 2001, the situation has not improved. In its initial state party report on ICCPR for example, Bangladesh stated that out of a total number of 29,464 cases of violence on women that were disposed of during the period 2009-2014, only 3,676 persons were convicted.

The effectiveness of any criminal justice system depends on its capability to identify the actual offenders and to punish them by proving their guilt beyond reasonable doubt. Effective dispensation of criminal justice requires a balanced approach to the application of several fields of law such as (1) penal law with regard to interpretation of the definitions of crimes, (2) law and procedure relating to investigation including forensic examination, (3) law of evidence, (4) trial procedures, and (5) punishment. However, despite the best of law and procedure on the books, the attitude of judicial officers remains instrumental because that can determine the outcome in the actual administration of justice. For instance, if crimes are poorly defined, the entire criminal justice system suffers from indeterminacy. Likewise, misapplication of the law of evidence can mislead the court into improperly considering unreliable or irrelevant evidence. The Tonu case reminds us of how poor law and procedure can undermine investigation and effective criminal justice.

It is worth mentioning at this juncture that the author of the present essay co-authored an important study with Dr. Lyal S Sunga for the National Human Rights Commission which examines the law and procedure for the investigation and prosecution of sexual offences in Bangladesh and makes concrete recommendations for legal reform [A Critical Appraisal of Laws Relating to Sexual Offences in Bangladesh (Dhaka: NHRC, 2015)]. In a nutshell, the study found that various definitions of sexual offences in Bangladesh's current penal laws are antiquated and also overly narrow in scope, covering certain acts in an outdated fashion, and ignoring others more relevant in the present day context. Penal law for example inadequately defines the offence of 'insulting modesty of women' and fails to recognise transgender persons and hermaphrodites as potential victims of sexual offences. In Bangladesh, there are major gaps in the procedural regulation of forensic examination of victims of sexual offences.

Another very important failure the study highlights is the marked tendency of our judiciary to presume consent or willingness on the part of the victim to the alleged non-consensual sexual intercourse where there are no marks of a violent struggle or injury on the victim's body. In effect, this shifts the evidentiary burden improperly to the victim to prove that she was compelled to submit to threat, coercion, or that she suffered from intoxication or other mental condition that made her consent impossible. The study also found that section 155(4) of the Evidence Act, 1872 one-sidedly permits the accused to lead evidence to show the immoral character of the complainant which places him in a superior evidentiary position with regard to the victim. Moreover, Bangladesh's penal law prescribes scales of punishment that are riddled with inconsistencies that fail to match seriousness of the punishment to the gravity of the offense.

Sadly, policymakers in Bangladesh seem not to have heeded UN special rapporteur Coomaraswamy's critique, and instead of reforming the law as well as judicial attitudes to sexual offenses, the emphasis has been placed completely on increasing the severity of punishment. But the bigger lessons in Bangladesh for criminal trial and punishment for sexual offences is first, severe punishment is not an alternative to just and effective administration of criminal justice, and second, where the conviction rate is very low, severity of punishment is doomed from the start in terms of deterrence. More than 250 years ago, in his major work 'On Crimes and Punishments (1764)' Cesare Beccaria rejected the death penalty, among other cruel, inhuman or degrading punishment, on the ground that capital punishment was neither useful nor necessary as a form of punishment.

The writer is an Advocate, Supreme Court of Bangladesh.