To ensure justice to rape victims and protect them from deliberate humiliation, Bangladesh should enact ‘Rape Shield’ law and abolish or in some cases amend the provisions of the Evidence Act
Crossing the radar of numerous hurdles, when a rape victim finally approaches the court to seek justice, she gets victimised the second time because the court seeks 'Character Evidence' from her. Usually in most of the rape cases, the victim is the sole witness; hence, she has to relive the pain all over again while describing the events to prove her character and purity in public at the court.
Whereas the victim urges for justice against the accused, ironically she is treated more like a 'criminal'. However, the fear of suffering victim blaming discourages victims to report rape incidents and the perpetrators escape successfully.
Section 155 (4) of the Evidence Act 1872 plays a vital role in favour of the accused in a rape case, that allows questioning the 'character' and 'sexual history' of the victim to impeach her creditworthiness. This section provides that "when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally [immoral character]". The term 'immoral character' is not defined anywhere in the Act and the task is left to the judge's discretion. Thus, in many of the cases the 'character' of a victim is determined by stereotype social notions that the victim is a 'woman of easy virtue' if she comes from the poor section or the victim is of bad character even if she has consensual sexual history.
In India, in Sree Pinto Pal vs State, 30 BLD (HCD) (2010) case, the victim was labelled as a 'woman of easy virtue' because she worked as a maid in the house of the accused. Whereas in Misti and others vs State, 6 BLC (HCD), it was held that as the victim is the daughter of a college professor, she comes from a respectable educated family and has a good background, they are not expected to lodge any false case outraging the honour of the family.
The character evidence is often used in rape trials, especially when the question of victim's consent in the act arises. The accused adduces the character evidence and past sexual history of the victim to establish the presence of consent. Even if a victim has previous consensual sexual relationship with the accused or anyone other than the accused, she is considered to have consent in the present event as well. Consequently, in the trial, very often she is discredited as a woman of 'immoral character'. Thus, it may be inferred that 'a prostitute can never be a raped and seek justice in any way whatsoever'.
To ensure justice to rape victims and protect them from deliberate humiliation, Bangladesh should enact 'Rape Shield' law and abolish or in some cases amend the provisions of the Evidence Act. Section 155(4) of the Act should be repealed to make character evidence and past sexual history of a rape victim inadmissible in rape trials. Moreover, there is one more gateway through which victim's character can be impeached. Section 146 (3) of the Act lets the defence ask any questions that tend to shake the credit of the witness during cross-examination.
In the US, evidence that is invoked to prove victim's sexual engagement elsewhere and her sexual predisposition is inadmissible under both Rule 412 of the US Federal Rules of Evidence and Section 41 of the Youth Justice and Criminal Evidence Act, 1999. Similarly Canada, New Zealand, Australia and India, amongst many other countries, have made character evidence of the rape victims inadmissible.
Lesson to be taken, India has recently introduced rape shield law. They have inserted section 53A that makes character evidence inadmissible in rape trials and have repealed section 155(4) of the Evidence Act 1872. They also amended section 146(3) of the Act to further block the room for admissibility of character evidence.
On September 2020, Magura Chief Judicial Magistrate in a case of cyber abuse has saved the victim from social stigmatisation. For the first time in Bangladesh a judgment was delivered without mentioning the victim's name instead a pseudonym was used. The archaic and unmerited provisions of the Evidence Act violate a rape victim's right to privacy and right to life at large. To prevent the victim from further social ostracisation and to protect her privacy, the practice of pseudonymous litigation in rape cases should be encouraged. Section 14 of the Women and Children Repression Prevention Act, 2000 prohibits the public disclosure of victim's identity through news. Provisions extending the scope of section 14 of the said Act should be introduced for prohibition of complete disclosure of the victim's identity.
The legal framework of a nation should go hand in hand with its dynamic social order. The colonial legal provisions that clog justice should no longer be in vogue. Repealing and amending above mentioned impugned sections combined with introduction of Rape Shield law can be the way forward. Unlike ours, a justice system that is designed to protect the victims of rape and thrives to restore their rights can said to have enough credibility. Alarming increase in rape needs state actions aiming at preventing this gruesome crime and convicting the perpetrators. The time has come for Bangladesh to realize a society free from exploitation can protect its women and prevent miscarriage of justice.
The writer is a 4th Year LLB student at theUniversity of Chittagong