Researcher Fatema Sultana was shocked when she walked into a rape trial.
“As a middle class urban woman, my idea of a courtroom was one that was portrayed in film and TV, with separate docks and people involved in the case quietly sitting,” she wrote.
“When I went to a court outside the capital I got a terrible shock. There were countless people in the courtroom, all talking at the same time, while the court hears the cases filed under the Women and Children Repression Prevention Act.
“[The victim] begins recounting her rape in front of all these people. When she answers questions from the defence lawyer, all kinds of laughter, jeering and mockery erupt around her.”
In this 2015 study, Fatema, an anthropology teacher at Jahangirnagar University, found that not just the environment of the court but also the legal framework for rape trials endangered the victim and jeopardised the trial process.
The worst of these is a provision in the Evidence Act that allows the questioning of her “moral character”.
A colonial legacy
On Sunday, Shokhi, a project partnered by BLAST, in a draft policy brief called on the government to urgently repeal Section 155 Sub-Section 4 of the 1872 Evidence Act.
The section states: “When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix [the victim] was of generally immoral character.”
And such ‘evidence’ can be offered to court to undermine the validity of the victim’s allegations.
This provision, the brief said, allowed the defence to question a rape victim’s character and sexual history and shift the focus away from the accused.
The brief draws on a report by the Bangladesh Legal Aid and Services Trust (BLAST) that reviewed judgments reported over a 10-year period from 2000-2010, published in the Dhaka Law Report and the Bangladesh Legal Decisions.
The BLAST report finds that this “character evidence” has been taken into serious consideration in many of the judgments. But since the definition of “immoral character” was absent in the law, it was left to the court to decide what to admit as evidence.
In one case in 2010, where the victim was the sole witness, court appears to have considered the complainant’s climbing of a tree as evidence of her “bad character.”
The complainant was a domestic worker and was allegedly raped by her employer. In the judgment, the court stated: “…the victim entered into the house of the accused by climbing a Papua tree as the gate of the house was closed which also proves that the victim is a woman of easy virtue, so her evidence cannot be believed without the corroboration of reliable evidence…”
In another case from 2005, the victim, “an unmarried college girl who comes of a respectable educated family” was deemed to have good character and therefore a reasonable claim.
In her study, Fatema Sultana concludes that the definition of character is determined by prevailing social notions.
The Evidence Act of 1872 has remained unchanged since British colonial rulers introduced it here. There have been many calls to bring necessary changes.
Shokhi’s policy brief showed that in most countries, the colonial legal provision had been removed from the law and replaced with “rape shield” laws that protected victims from humiliation and further mental trauma during the trial.
It had been changed in the UK, in India, Australia and Singapore. The only country where the law still remains is Pakistan.
Experts say the provision is a further impediment to the various stigma and risks that rape victims already face in getting justice. About half of the reported rape cases in Bangladesh make it to trial. By an estimate of Bangladesh National Women Lawyers Association from 2014, 75% of rape cases fail to convict perpetrators.
According to the Violence Against Women (VAW) chart of Bangladesh Mahila Parishad, from January to July this year 526 women were raped, 119 were gang-raped, 41 were killed after rape, and 113 faced attempt rapes.
Who is really on trial in rape prosecutions?
Shokhi’s brief said that the focus on the victim’s character in rape prosecutions raised the question of who was in fact on trial in these proceedings.
The entire idea of evidence of character was confusing, said President of Bangladesh Mahila Parishad Ayesha Khanam.
Findings in researcher Fatema Sultana’s study show that the courtroom is a terrifying place for a rape victim, who is often isolated from her family and society, abandoned and living in support centres. She has more likely than not already passed many barriers to justice from society and law enforcement. But then she faces a trial where she has to prove her good character and ‘purity’.
“A woman who is alleging a rights violation is compelled to prove her good character in order to secure her justice,” said Ayesha Khanam.
Subjecting women to a double standard and focusing on the victim’s prior sexual conduct and character essentially puts the victim on trial, she said.
“A rape survivor first goes through physical torture and then when she comes to seek justice she gets psychologically tortured,” she added.
BLAST’s Research and Documentation Coordinator Barrister Nawmi Naz Chowdhury, who was part of the research team, said: “Women and girls seeking justice for rape face humiliating and irrelevant questioning about their sexual history in court.”
“The legislation has detrimental, prejudicial impact on rape trias and diminishes the likelihood of conviction for men who have committed rape,” Nawmi said.
Repeal of Section 155 (4) and enacting rape shield laws will encourage reporting of rape crimes and increase convictions through dispelling rape myths and stereotypes, Nawmi added.
BNWLA President Salma Ali said that in her experience many victims faced with such questioning run away, change their addresses and never return to trial again, even if the court issues summons.
“They were physically raped once, and mentally raped a second time in court through law,” she added.
Supreme Court Advocate Qazi Zahed Iqbal said several reforms were necessary to protect victims and reduce the possibility of mistrial.
“First, the legal provisions for questioning a victim’s character should be removed.
“Second, there should be provisions for camera [chamber] trials with as few people present as reasonable. Third, the outdated medical test called two-finger test should be removed,” he said.