Defining Rape is a Great Obstacle for Trial it
Al Mustashim Nobi Niku:
Rape has become an uncontrolled problem in present day in Bangladesh. The number of rapes is increasing day by day. According to data collected from various organizations such as Ain-O-Shalish Kendra, Mohila parishad and others, 622 people were raped in Bangladesh in 2001. The number of rapes has increased to 1413 in 2019 and 1626 in 2020. According to the mentioned statistics, 3 to 4 are being raped every day in present day in Bangladesh. In the current situation in the context of Bangladesh, the important question now is “The question of women’s character traits is a big obstacle in preventing the crime of rape”? I will try to discuss different contexts of law with my limited knowledge as a law student.
To understand the trial of rape, we need to look at different aspects of the law. Let’s start discussing the different laws and sections mentioned:
In order for a woman to be raped under state law, the interpretation given under Section 375 of the Penal Code must be covered. If rape occurs under section 375, it is possible to conduct the trial in a normal way. However, in order to expedite the trial of almost all the current rape cases, the Nari O Sishu Nirjaton Domon Tribunal has been constituted under Section 26 of the Nari O Sishu Nirjaton Domon Ain. Section 9 of the Nari O Sishu Nirjaton Domon Ain clearly states the punishment for rape.
Impeaching credit of witness- Rape is a crime where the victim herself is the main witness. Since the victim herself is an important witness in the crime of rape, I am starting the discussion with Section 155 of the Evidence Act at the beginning of the legal discussion. Section 155 of the Evidence Act deals with “Impeaching credit of witness”. So, according to sub-section 4 of section 155 of the Evidence Act, if a woman alleges rape against accused, then the character of that woman can be questioned in court. As a result, the character of the victim may be questioned in court. That is, it is clear by section 155 (4) that when the rape itself is the main witness then the testimony of that witness can be weakened by this section.
Burden of Proof – Burden of Proof is very important in handling a case. So, now let’s discuss Section 101 of the Evidence Act because this section deals with Burden of Proof. According to our criminal jurisprudence the legal principle is “Hundreds of accused may be acquitted but one innocent shall not be convicted”. That is, under Section 101 of the Evidence Act, it is important to prove beyond reasonable doubt the Burden of Proof. Because if the offender fails to prove beyond reasonable doubt, the accused will be acquitted.
Let us now consider Section 155 (4) and Section 101 of the Evidence Act together. The court will not accept the victim as a witness if the raped woman or victim is found to be a bitch in court by section 155 (4). And according to the legal principle, the crime under section 101 has to be proved beyond the reasonable doubt of Burden of Proof. If there is a conflict between these two sections, the ground of the case will be weakened.
Proof of facts by oral evidence- Usually when rape occurs, no one but the victim and the accused are present at the scene. In most cases, incidents like rape are known after the rape has taken place. To the court, the signs of the scene and the people in the vicinity are more important as witnesses. Most of the witnesses came to testify in court believing what they heard. Oral document which the court accepts as secondary evidence under section 63 of the Evidence Act. The evidence of such witnesses is the medical evidence to increase their admissibility in court which is very important for all these cases. For example, medical information, DNA test or determination of age, inquest reports are documentary evidence. Refers to the documentary evidence mentioned under section 62 as primary evidence.
Oral evidence under section 59 of the Evidence Act will not be accepted as admissible evidence before the court unless it is supported by reason along with other documentary evidence. If a woman is found to have more than one sexual relationship in the medical grounds, then the defence council has the opportunity to present it to the court as documentary evidence against the woman. This opportunity of the defence council is ensured by section 155 (4) of the Evidence Act.
Defence Evidence- Evidence Act section 155 (4) allows the defence lawyer to legally question the character of a woman in court. As a result, the woman has to face the answers to various questions. One case is mentioned here-
In “Abdul Majib Vs State” case a woman alleged that while she was sleeping with her child at night, some of the accused forcibly entered the house and raped her. At cross-examination, the woman admitted that she had been married four times before and is now a divorced woman. As a result, the defence alleges that Victim is “involved in anti-social and immoral activities” and is a “woman of loose moral character”. The accused told the court that the victim had filed the case fraudulently as they was trying to stop the woman’s immoral activities. However, the trial court convicted the accused and sentenced them to life imprisonment.
It has been challenging for a rape victim or victim to get a fair trial by completing all these legal procedures. Repeated questioning of women’s characteristics hinders the judicial process. Below are my views on the subject:
- Section 155 (4) of the Evidence Act requires a rape victim to test her character at all times, which hinders the judicial process.
- Due to Section 155 (4) of the Evidence Act, the victim has to undergo a test of ‘moral character’ to conduct a rape case. At the end of the moral test, it became clear in court whether the woman was fit to sue at all. But Section 155 of the Evidence Act does not give a clear explanation of the misdeeds of women.
- Criminal offense is to prove beyond reasonable doubt the burden of proof. Questioning the character of that woman hinders the conduct of the case.
- In order to complete the rape trial, the easy way of questioning the character of the victim must be stopped and a clear explanation of what is meant by characterization in the law must be given.
The attitude that is expressed towards women in our society increases rape and violence against women. Lastly, we need to move society forward by embracing the idea that our state laws should be women-friendly and women’s rights should be protected.
Writer: LL.M Student, University Of Asia Pacific