Can Definition of Rape Protect to Our Victim?

Al Mustashim Nobi Niku:

The number of rapes is increasing in Bangladesh. In the eyes of the law, rape must come under the definition of rape as per Section 375 of the Penal Code. The important question now is “whether the rape law provided by the penal code is fully covered of the victim’s rights”

Section 375 of the Penal Code XVI defines rape. This section define intercourse with a woman in five situations as rape. Such as:

1. Sexual intercourse against will.
2. Sexual intercourse without consent.
3. Consensual intercourse for fear of death or injury.
4. Give consent for sexual intercourse when a woman believes that the person is her legal husband but the person knows that he is not her legal husband.
5. If a woman under the age of fourteen agree to have sex, it will be rape.

This section further states that penetration will be sufficient to constitute a crime of rape.

There is an exception to this section, the exception being that if the wife is under thirteen years of age, then consensual intercourse with his own wife will be considered rape.

Under Nari-O-SisuNirjatonDomon Ain Section 9 (1), if a man marries a woman over the age of sixteen without her consent or by intimidation or fraudulently obtaining her consent, it will be consider as a rape. And if a woman under the age of sixteen has sexual intercourse with or without her consent, then she will be considered to have raped.

The definition of rape given in Section 375 of the Penal Code under our criminal law has given precedence to gender inequality. Under this section only rape of women has priority and in some cases children. There are some significant shortcomings in the definition of rape in the law which are mentioned below:

• The definition of rape in our penal code makes it clear that rape can only be committed against a woman and will only happen through a man. The section does not mention about male rape.
• The definition of rape mentions consent and expression of will. But the definition fails to explain how consent or will can be proven.
• Although the law mentions women and female children, it does not address the issue of deadly sexual violence against male children.
• Failed to ensure trial of sexual offenses against transgender people under the aforementioned rape definition.
• This definition of rape does not recognize marital rape.
• This definition of the Penal Code does not imply rape if has consensual sex with a married woman which aged up to 13. Which is against the Child Marriage Prohibition Act 2017.
• Penetration is sufficient to consider sexual intercourse in the case of rape described in Section 375 of the Penal Code. But nowhere is ‘penetration’ explained. In many cases it is not possible to prove rape because there is no clear explanation of the ‘penetration’ of the law.
• The rape cases now requires proof of physical resistance against rape. Which is not mentioned in the definition.

In a rape case, both will and consent are very important. These two elements must be present during sexual intercourse. Let’s discuss two issues.

Suppose the victim wanted to have sex but did not consent during sex. The person then has sex with the victim without her consent, but it will be rape. In another situation, a man threatened the victim with sexual intercourse by using his power and in this situation the victim agreed to have sex with that person, but the victim did not consent voluntarily. There will be rape in this incident too.

Arafa Begum, the complainant in the “Idris Miah VsArafa Begum and Ors” case. Stated in her plea that she had an extramarital affair with her father-in-law from 08-11-1992 to 23-01-1995 after her husband left. As a result, she became pregnant and gave birth to a female child. Here, it appears to the High Court, the complainant was coexisting with the father-in-law and did not file any complaint against the father-in-law at that time. So in the eyes of the law the victim had consent to this sexual intercourse.

Again in the “Sanjay Kumar Biswas Vs State” case, the court said, both the accused and the victim were adults. The two had sexual intercourse at will. The case lacks coercion or fraudulent conduct. The accused was acquitted due to lack of evidence of rape in the case.

In another case, the victim in the “Najim Uddin (Md.) Vs State” case claimed that he agreed to a physical relationship as a result of the accused’s fraudulent behaviour. It appears to the court that this was Victim’s voluntary work. Section 375 of the Penal Code does not directly address the situation of obtaining consent in a fraudulent manner. In the eyes of the law, the expression “consent” means the voluntary consent of an adult.

In another “Nazmul Islam alias NazuVs State” case, the victim was 17 years old. In the case mentioned, it has been said that consensual sex will not be considered as rape. The victim’s allegations were proved in the case and the accused had sexual intercourse with the victim. It will not be considered an offense under Section 9 (1) of the Nari-O-SishuNirjatonDomon Ain for having the consent of the victim during sexual intercourse and it will not be considered as rape under Section 375 of the Penal Code.

On the other hand to prove rape, the victim have to prove that she resisted to protect herself from rape. Which is mentioned in “SohelRana (Md) Vs State” case.

From the above discussion I think the definition of rape needs to be reformed. Here are some possible solutions:

• The law requires precise interpretation of will and consent.
• The definition of rape should be given equal importance to violence against women and violence against men.
• Violence against men and violence against transgender people must be linked to the definition of rape.
• Rape laws must provide legal explanations regarding penetration.
• Under Section 375 of the Penal Code and Nari O SishuNirjatonDomon Ain, the age limit for a child must be 18 years. Which is prescribed under Section 4 of the Sishu Ain / Children Act 2013.

According to the constitution Article 27, everyone is equal in the eyes of the law. Society needs to be freed from the problem of rape and enforce strict laws to control violent heinous crimes like rape as well as build moral values ​​of citizens.

Writer: LL.M Student, University Of Asia Pacific