January 26, 2021 In Newspaper Post


The gaps in our laws we need to address

Sabrina Zarin, Barrister-at-Law, (Hon’ble Society or Lincoln’s Inn, UK) and  Advocate of the Supreme Court of Bangladesh, Partner in FM Associates, talks to The Daily Star’s Moyukh Mahtab about needed reforms in sexual violence and harassment laws in Bangladesh and the importance of raising awareness, especially among children.

Could you give us an overview of the laws and legal policies regarding sexual violence and sexual harassment in Bangladesh?

The first that comes to mind is the Nari O Shishu Nirjatan Daman Ain 2000 (Prevention of Women and Child Repression Act) where different sorts of assaults are defined. In it, rape is defined; the punishment for rape, gang rape, attempts to rape are covered. Forced suicide because of harassment is also included. Then we have the Domestic Violence (Prevention and Protection) Act 2010, where sexual assault has been defined. We also have the Penal Code (sections 354 and 509) which covers aspects of sexual assault. We also have the Pornography Act 2012, the Telecommunication Act 2001, the Digital Security Act 2018, which cover different aspects. Section 76 of the Dhaka Metropolitan Police Ordinance 1976 speaks about teasing women. Furthermore, Labour Act 2006 (amended in 2013 and 2018) covers misconduct, and sexual harassment can be covered under it.

But sexual harassment has not been defined explicitly in any law. We have a 2009 judgement which was given by the current chief justice (who was then in the High Court Division) Justice Syed Mahmud Hossain, and Justice Qamrul Islam Siddique, where sexual harassment was first defined. If this is turned into law, it would cover a wide range of issues. The judgement clearly defines what sexual harassment is, what to do if it happens, how to take action, the procedure of action, the action for false allegations, how to prevent sexual harassment, how to make your workplace or organisation free from harassment. It is also directed that until a law comes into effect, organisations should have their own sexual harassment guidelines and regulations.

Given the rising numbers of sexual violence and harassment cases in the country, are the laws we have now enough?

The thing is, there have always been rape cases and assault cases in courts. Only three percent of rape suspects are convicted. Why is the conviction rate so low? The lower courts are usually stricter. Various issues come into play in the higher courts—for example, death sentences reduced to life terms. The cases can drag on for years.  As a result, people have this notion that they can get away with committing rape.

What happens after someone is raped? It’s a traumatic experience, and the first thing most women would do is go and wash themselves. But the first thing they should do is go to a government medical centre and get a check-up and a report. That’s the first thing one should do. People need to be aware.

I think we should have a provision for teaching children and making them aware. Children are also victims of sexual harassment. There was a show in India where actor Aamir Khan talks to child survivors of abuse and also about how parents should teach their children about these issues. To be aware about what constitutes harassment and to have the courage to inform their parents is important. There is also the issue of society: what will people say? When it comes to witnesses, they cannot always master the courage to come forward with information, fearing consequences. In the worst-case scenario, the survivor is asked to marry the rapist. And women are sometimes forced to marry their rapists to be rid of the shame associated with it. Sometimes, the rapists themselves propose to marry them in order to obtain bail from the courts.

Are reforms needed in our existing laws?

We don’t have a separate rape law; it’s included in the Nari o Shishu Nirajton Daman Ain. There was a judgement in 2016 where Justice Farah Mahbub had suggested some reforms. It is there as a guideline. They are quite useful.

It says that information relating to rape or sexual assault must be taken into cognisance in writing, irrespective of the place of occurrence. As you know, in our country, cases must be filed at the police station of the area where the crime has been committed. But in cases of rape, any police station would have to register the complaint. The suggested reform also includes making a designated website and hotline for complaint, provision of punishment in case of the failure of an officer to register complaints. It says that a round-the-clock female police officer, not below the rank of a constable, must be present in each station and the identities of victims have to be kept confidential. Police stations should have a list of female social workers who may be of assistance; the victim’s statement should be recorded in the presence of a lawyer or friend nominated by her. It directs provisions for informing the victim support centre and providing of interpretation services. DNA chemical tests should be mandatory and sent to the forensic labs within 48 hours.

We don’t even have the concept of marital rape in this country. In England, there is a judgement through which marital rape was incorporated in the law. We have not implemented it in this country. No one talks about the issue, which needs to be included in our definition.

Are there gaps regarding how rape is defined?

The definition of rape in the Penal Code is a colonial one. It’s unfortunate that the criminal justice system defines rape without much change in it. The Indian Penal Code has moved on from this colonial definition. The British law has gone far ahead with a separate statute for sexual offenses. India has a 2013 separate law for sexual harassment at workplace.

In our definition, penetration is deemed sufficient for rape to have occurred—but penetration is not defined. The traditional meaning of sexual intercourse is used to define rape, which leaves out many other ways rape can occur. It also fails to elaborate on the meaning of the term “consent”. So, rape is viewed in a manner framed by gender stereotypical notions.

Section 90 of the Penal Code describes the validity of consent, but it does not address how consent is interpreted in a rape prosecution. The Indian Supreme Court on several occasions has interpreted consent under Section 90 to extend the definition of rape to incidents committed with the false promises of marriage. That has to be clearly defined. Section 375 criminalises sexual intercourse by putting a woman in fear of death or hurt. This should also apply to a situation in which the victim is threatened by someone to whom she is related.

Our definition of rape is in reference to only a woman. This excludes male children as rape victims. The Nari O Shishu Ain does not differentiate between a boy child and a girl child in its definition, and section 9 makes reference to a child in making provision for punishment of rape. But because of how rape is defined and penetration is interpreted, a male child or same-sex rape victim will not find any redress. The penal code also applies to women victims only. For an adult transgender person, it is difficult to pursue justice.

Forcible intercourse with a girl child who is not below 13 years has not been criminalised as rape if the child is married to the perpetrator. This reinforces the penal code in that an intercourse with a child below 16 will not be considered rape if the perpetrator is in a marital relation with the girl. This is a major flaw which we need to address.

Our distinction between a married woman and an unmarried woman for the charge of rape should be immaterial. In the absence of physical force, considerations of consent take a backseat in our legal system.

What are the immediate issues we should address?

We need a witness protection act, especially for ensuring justice for rape survivors. This would mean necessary security measures for the victims so that they can testify without any fear of threat. This should extend to the post-trial state also. In 2006, the Law Commission prepared a Witness Protection Act. The draft made some important provisions, including the right to institutional protection which would be only removed when there is no more threat.

We need enactment of this law and a law for sexual harassment. Next is the implementation of the law. The law is only useful when we are aware of the law—so raising awareness is important. We should talk to our children. We need to start from our homes. In schools, maybe we can have something which gradually teaches children these issues from a certain age.

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