Time to initiate legal reforms in rape prosecution

The alarming rise in the incidents of sexual violence against women and children points at the failure of the existing law and justice system in prosecuting offenders of rape and ensuring justice for the victims. The sense of impunity among rape offenders seems so profound that even laws with the harshest punishments are not being able to create any fear in them. A timely and effective reform in the relevant legal framework is thus crucial.

There are currently 95 Women and Children Repression Prevention Tribunals in Bangladesh. Depending on the volume of cases, several districts have multiple tribunals. Rape is one of the several offences that these tribunals are authorised to try under the Women and Children Repression Prevention Act 2000 (WCRPA). In fact, a bulk of the cases these tribunals usually receive reportedly involve offences related to dowry demands. Considering the severity of rape and its current context, it is important to consider an option to prioritise trial of rape amongst all other cases of violence filed under the tribunals.

Instead of establishing a new tribunal for rape prosecution, a more practical option may be to designate a single Women and Children Repression Prevention Tribunal in each district to act as the specialised rape prevention tribunal, which would only try cases relating to rape filed under the WCRPA. In districts where there is only one tribunal, due to low number of cases, specific successive days in a week can be designated for the tribunal to function as the specialised rape prevention tribunal. Designating all rape cases under a single tribunal will not only help its judges to effectively monitor the progress of each rape case and to complete trial in a relatively speedy manner, it may also help identify the persons whose negligence or inefficiency had caused delay in a particular case. Having exclusive jurisdiction over rape cases would also ensure accurate and regular maintenance of case records, which will eventually help in ensuring monitoring and accountability of these specialised tribunals.

An effective system of accountability over rape cases is critical. To that end, creating a separate monitoring body in the Supreme Court of Bangladesh can be considered. The Chief Justice of Bangladesh may consider establishing a committee headed by a justice of the Appellate Division to monitor and evaluate reports and case records of the specialised rape prevention tribunals. Regular monitoring would help the body to identify the legal and procedural loopholes as well as inefficiencies of justice agencies. The body can accordingly recommend changes to the Chief Justice as well as to the government where applicable. However, it needs to be emphasised that such a monitoring body should include opinions of key experts in formulating recommendations, and its reports on the progress of the specialised tribunals should also be made publicly accessible.

It should be noted that the WCRPA itself contains a provision specifically addressing the issue of accountability of the tribunals. Section 31A of the WCRPA provides that if any case cannot be disposed of within the time specified in the law, the judge of the tribunal and similarly the concerned public prosecutor and police officers will have to send a report to the Supreme Court and a copy to the government. Although the provision says that for delay in disposal of cases under the tribunals, "appropriate authority" will take action against the person at fault, there is no mention of who qualifies as the "appropriate authority". Neither is there any further specification as to how such reports will be prepared or how they will be evaluated by the Supreme Court. A relevant Rules with procedural details is necessary to be adopted for application of this provision of the Act. However, since the enactment of WCRPA in 2000, no Rules has been formulated on any matter under the law.

Together with ensuring the procedural changes and accountability in rape prosecution, it is absolutely essential to bring comprehensive reforms in the existing rape laws. Although we had enacted a law in 2000 to try offences related to violence against women, for legal definition of "rape" we are still hanging on to the colonial rape law provision incorporated in the 1860 Penal Code. From the absence of proper explanations for key terminologies (e.g. "penetration", "sexual intercourse", "consent") to allowing absolute exemptions for the rapists of child brides as young as 13 years old—the definition is archaic, vague and gender-insensitive. The definition clearly needs to be reviewed thoroughly in light of modern developments in other pieces of domestic legislation that criminalise sexual offences.

Domestic legislation globally has also progressed remarkably with regard to protecting the legal rights of a victim of rape including protecting her dignity at all stages of the case. Yet, we are still holding on to the colonial evidence law of 1872, according to which, proving the "immoral character" of a rape victim may undermine the credibility of her testimony. Much has been written about the presence of the infamous "character evidence" provision in the Evidence Act, yet the law remains as it is.

Reforming the law and justice system for prosecution of rape is, therefore, a timely need. However, unless the allegations of inefficiency, irregularity and insensitivity towards rape victims are also addressed properly, reforming laws alone will not improve the current scenario for rape prosecution. Most importantly, the issue of sexual violence needs to be prioritised at the highest policy levels in order to bring meaningful and visible changes.

Taslima Yasmin is a legal researcher and teaches at the Department of Law, Dhaka University.

Email: taslima47@yahoo.com