It’s no rape: They danced, drank, swam

Apan Jewellers owner's son Shafat Ahmed and all four other accused in the Banani Raintree hotel rape case were acquitted yesterday, more than four and a half years after the incident allegedly took place.

Judge Mosammat Kamrunnahar of the Women and Children Repression Prevention Tribunal-7 of Dhaka passed the acquittal order in the sensational case in a packed courtroom around 2:45pm.

Referring to the two girls who brought the allegation of rape, she said they were partner to sexual intercourse wilfully because they willingly went to a party, danced, drank alcohol and they swam in the pool.

The judge noted that the case was lodged 38 days after the incident happened, and so no DNA evidence could be found. "Semen cannot be traced after 72 hours…"

She recommended that police should not accept any rape case if the complainant goes to the police station 72 hours after an incident.

The judge also reprimanded the investigation officer of the Banani case for "wasting valuable hours" during which "many important cases" could have been dealt with.

Soon after the media reported the acquittal of the five -- Shafat, his friend Nayeem Ashraf Halim, driver Billal Hossain, bodyguard Rahmat Ali, and Sadman Sakif -- outrage poured on social media.  

Many netizens condemned the recommendation that police should not take any rape case after 72 hours of a rape. Around midnight, several women rights organisations staged a demonstration in Shahbagh.

Advocate Salma Ali, president of Bangladesh National Women Lawyers' Association, which provided legal counsel to the victims, said the judgment was appalling.

The victims' legal team said rape by legal definition means sexual intercourse without consent. So, it does not matter whether the two girls went willingly to the party or whether they went swimming.

"I cannot accept a judgment like this. A woman who has been raped should be allowed to file a case after months or even years following the incident. A lot of courage is required to file a rape case," said Salma.

"So, the time frame should not matter here … most victims can't go to the court within 72 hours. Circumstantial evidence should be enough."

Last year in October, the High Court bench of Justice Md Rezaul Haque and Justice Bhishmadev Chakrabortty passed a judgment saying that any rape accused cannot be exonerated only due to the lack of medical evidence.

The court also said an accused can be sentenced based on the victim's testimony and circumstantial evidence.

Dr Bilkis Begum, coordinator of the One-Stop-Crisis Centre (OCC) of the Dhaka Medical College Hospital, said they collect medical evidence up to five days after an alleged rape incident. The OCC conducts the physical examination of rape and sexual abuse victims.

"The ideal victim is someone who comes straight to the hospital after the rape. In that case, there will be a 99 percent match. Even simple tasks like going to the bathroom or bathing, or washing the clothes can compromise the quality of the semen. Most adults bathe immediately after being raped, while children urinate themselves, requiring immediate cleaning," said Dr Begum.

'CHARACTER ASSASSINATION'

While delivering the acquittal order, Judge Kamrunnahar said the prosecution failed to prove the charges brought against the five accused.

The medical report stated that the victims were habituated to having physical relations and that their physical condition was similar to that of someone who engages in regular sexual relations, she said.

Judge Kamrunnahar noted the charge sheet in the case quoted Dr Sohel Mahmud, head of the department of forensic medicine at Dhaka Medical College, as saying, for each of the girls, "no sign of forceful sexual intercourse was found on her body, but she had had knowledge of sexual intercourse."

The victims' legal team said during the cross-examination, Section 155(4) of the Evidence Act 1872 was used to assassinate the characters of the victims.

A report published by Bangladesh Legal Aid and Services Trust (BLAST) last year said, "Section 155(4) of the Evidence Act 1872, expressly allows defence lawyers to introduce character evidence against rape complainants during trial."

In courts, defence lawyers try to establish a "lack of morality" in rape survivors by disclosing details of their personal lives as a way of undermining their credibility, explains the report.

Salma said it does not matter what past relations the victims had because sexual intercourse without consent is legally defined as rape.

"In South Asia, there are many judgments that have observed that rape of a sex worker is also an equally serious crime as that committed against any other woman. So, it does not matter."

Advocate Faruque Ahmed, the victims' lawyer, criticised the judgment. "The trauma the victims went through during this trial cannot be described," he said.

Judge Kamrunnahar further observed that during the investigation, no witnesses could confirm whether the victims were in that hotel that night.

The judge observed that the hotel register did not have the names of the victims and that the devices of the accused did not have the videos that they allegedly took of the victims during alleged rape.

"The investigation officer admitted that he could not show any proof that the victims were in the hotel that night," she said.

The chargesheet mentioned that during digital forensic examination three videos were found to be deleted and the files were corrupt and could not be recovered or analysed.

The case was filed with Banani Police Station on May 6, 2017 accusing Shafat, Nayeem and the three others of raping the two private university girls. The incident had happened on March 28, 2017.

On June 7, 2017, Ismot Ara Ame, inspector of Women Support and Investigation Division of Dhaka Metropolitan Police and investigation officer of the case, pressed charges against the five accused.

On July 13 the same year, the same tribunal framed charges against the five men.