Offender has to prove he is innocent

Violence against women is a century-old social menace. Recently, we have been witnessing brutal, cruel and inhuman violence against women one after another, shocking our conscience.  Remember the 14-year old school girl of Tangail, who experienced such a forcible violation that she used to scream at the sight of any male person while lying in her bed at Dhaka Medical College Hospital? Can you imagine the notoriety and cruelty of the incident when a six-year-old-girl was raped and strangled to death, though the girl probably did not understand the meaning of rape?
In most of the cases we ultimately cannot ensure justice for the girls who have encountered different types of physical violence and mental torments. Particularly, in rape cases, most of the alleged offenders in one way or other escape punishment. Rather, the victims are subjected to huge harassment. The accusatorial criminal justice system, examination of rape-victim by a male doctor, investigation of a rape-case by a male police officer, perfunctory functions of the public prosecutors are mainly responsible for the humiliating and ignominious harassment of the rape-victims.  It is said that a girl is first raped physically, she is second time raped in the court by the male advocates and third time she is raped by the society. Apprehending the unbearable harassment and social stigma, many girls have committed suicide.
In the cases of eve-teasing, acid-throwing or rape or any other similar offences, the perpetrators should be arrested immediately and be kept within the iron walls. They should be given exemplary punishment within a short time. That means police investigation into the alleged offence, giving police report, trial of the accused and awarding exemplary punishment—all these must be done within 2/3 months. But unfortunately, police do not arrest the alleged offenders when they use power, money, political or other influence to evade arrest. There are allegations that when any rape-victim goes to any police station either the concerned police officer does not put due importance to the case or he makes the case weak (remember that the police officer is a part of patriarchy!) There are allegations that sometimes police officers, in collusion with the malefactors, cook up the case and make the victim look like she was a prostitute. Some criminal lawyers are also alleged to do the same thing. Even in cases when the perpetrators are arrested, charge-sheeted and put to trial it may not be possible to subject the alleged offender to exemplary punishment due to: (i) lack of evidence as 'alamats' of rape have not been duly preserved; and (ii) burden of proof.
Under the existing system, one of the cardinal principles of criminal justice is that the alleged offence must be proved to have been committed beyond any reasonable doubt. The age-old principle reads: “No innocent person be convicted, let hundreds guilty be acquitted”. But there is a recent shift of this principle which the learned Judges of the International Crimes Tribunal-2 have mentioned in their recent judgment in the case of Quader Molla. Referring to the Indian Supreme Court the learned Tribunal Judges said that, “A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape.”  But development of the new principle is in its formative stage and the regular criminal courts in Bangladesh are still predominantly regulated by the age-old principle. The courts want to see that the alleged offence has been proved by the prosecution beyond any reasonable doubt and the burden of proof lies with the prosecution or the person who makes the allegation meaning the rape-victim or victim of any other violent crime. In most of the cases the public prosecutors and police officers do not put their sincere effort to prove the incident of rape beyond reasonable doubt. Exposing another reality of the story will be outrageous as poor and marginalized rape-victims cannot afford a 'strong and efficient' lawyer. The rapists come out of the gallows, putting the rape-victim in a condition of 'life or death'.
It is to be noted that in Bangladesh in an average the conviction rate is not more than 15-20 percent. In Japan the conviction rate is 99.7%, in USA 88%, in UK 81%, in neighbouring India it is 41.7%. The low conviction rate in Bangladesh encourages commission of crime. These writers firmly believe that the public prosecutors' and police' sincere efforts can ensure punishment of the culprits in most of the criminal cases. Particularly, where the women are victims of violence, responsible state departments should take effective and prompt actions to bring the perpetrators to justice.
The most unfortunate thing in rape-cases is that the burden of proof lies with the victim. The victim has to prove how she was raped, when and by whom she was brutally assaulted. Under the existing system the rape-victim has to preserve the 'alamats', to be examined by a male doctor, to be interviewed by one or more police officers (dying Damini had to describe the incident of her rape to the police officer 10 times!), to present her case in the trial and to be cross-examined (indecently) by the male advocates. To avoid the harassment and humiliation some rape-victim commit suicide and some become mentally disturbed because of the procedure she has to undergo in order to prove her case for the punishment of the culprits. It is high time, we think, that this practice be changed. Once any man has been alleged to have harassed any girl he will be primarily presumed to be guilty and it will be non-bailable offence. The alleged man has to prove that he is innocent. It is to be mentioned that some civil law countries like France and Italy follow this principle.
In the context of the rape-incidents becoming endemic and criminal justice system's inefficacy to ensure exemplary punishment for the perpetrators, we propose the following recommendations to be taken into consideration by the policy-makers, women and people in general:
I.    From now on the alleged offender in a rape case has to prove that he is innocent. The policy-makers have to take proper measures for amendment of the principle and criminal law.
II.    Rape-victims are to be examined by female doctors and their cases are to be investigated by  female police officers.
III.    Rape-victim-centre should be established in every thana complex comprising doctors, psychiatrists, female police officers, social welfare officers with logistics and necessary support system.
IV.    The women travelling early in the morning and night for going to their working place or for study or other necessary purposes should keep a rape-kit which will help them in identifying and punishing the perpetrators once they become victim.
V.    Some necessary 'biological-education' should be given to the girls and boys in schools.
VI.    Police officers, public prosecutors, doctors, judicial officers and social welfare officers should be specially trained to motivate them so that they work promptly and effectively to ensure punishment of the perpetrators when any woman becomes victim of a violent crime.
How can we claim ourselves civilized if thousands of women are subjected to cruel and inhuman physical torture and mental torments? One of the unfailing tests of measuring civilized standard of any society is the way women are treated there. Putting women in a secured and dignified position indicates high civilized standard of a society. Law and its proper implementation can ensure punishments of the malefactors and minimize the frequency of violent-crimes against women. But placing women in a secured and respectful position is a far wider task which requires all the social institutions to set in action.

Sheikh Hafizur Rahman: Associate Professor of Law, Dhaka University, and Criminology-Researcher.
Farhana Helal Mehtab: Associate Professor of Law and Departmental Head, Daffodil International University, and Human-Rights-Researcher.