Legal tangle over 'chaste' and 'immoral' women

http://www.thefinancialexpress-bd.com/2015/01/06/74461 VOL 22 NO 56 REGD NO DA 1589 | Dhaka, Tuesday, January 06 2015

Legal tangle over 'chaste' and 'immoral' women M S Siddiqui According to perceptions of society including police, prosecutors, judges, and, even, survivors, the victims of rape are divided into two categories: those who are 'rapeable' and those who are not.

Records reveal that around 75 per cent of the alleged rapists get acquitted by presenting evidence under Section 155(4) of the Evidence Act, 1872. The Act has made the distinction between the 'rapeable' and 'non-rapeable' females with the onus lying on the victim to prove that she is not.

The victim having an age above 18 years has to prove that she is not habituated to sex -- the first step of proof that there may be a possibility of being raped. The second step of proof is the act of rape. The process starts with the patient being examined medically within 24 hours of rape. It becomes difficult forensically to prove that a rape has occurred. The 'male organ penetration' continues to be the governing factor in the offence of rape. Sexual assault is categorised on the basis of the proximity of penetration. Thus, an unsuccessful attempt at penetration is categorised as attempt to rape, and warrants only half the punishment (Section 376 r/w Section 511).

Quite often, on being unable to prove penetration, judges find themselves trying 'rape' cases under the more watered down sections: 'outraging the modesty of a woman' for instance, carrying much lighter punishment or acquittal of the accused.

The process of medical examination is under the rule of the notorious so-called 'two-finger' test on a rape victim, which is to check the elasticity of the victim's female organ. Old tears on the hymen and vagina also do not prove that a girl or woman is 'habituated to sex'. The size of the vaginal opening has no bearing on a case of sexual assault but, going by the number of fingers admitted, a doctor gives his opinion on whether a woman is 'habituated to sex' or not.

Section 155(4) of the Evidence Act, 1872 says: "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."

The word 'prosecutrix' means "a female victim of a crime on whose behalf the state is prosecuting a suspect." Considering our social norms and legal provisions, if it can be proved that a rape victim is sexually active with the accused or multiple partners, it is also proved that the victim is 'immoral' and the rape charge gets lighter.

The Evidence Act already contains general provisions in Sections (150) about Procedure of Court in case of question being asked without reasonable grounds, (151) about Indecent and scandalous questions (153), exclusion of evidence to contradict answers to questions testing veracity and (154) which imposes limitations on the extent to which counsels can attack the character of a witness. The problem is that Section 157(4) explicitly gives the accused the right to attack the creditability of the victim of rape or attempted-rape by showing that she is of 'generally immoral character'. It is arguable that the explicit provision in Section 157(4) is not limited or excluded, by implication, by Sections 150, 151, 153 and 154. At the same time, Section 54 states: In criminal proceedings (of course including the rape case) the fact that the accused person has a bad character is irrelevant, unless evidence has been given that s/he has a good character, in which case it becomes relevant. The Section 155 (4) is in contrast with Section 54 and discriminatory against a woman.

The practice and rule embed a requirement that women maintain an ideal of sexual abstinence to obtain legal protection. It rests on the twin myths - first, the "unchaste women are more likely to consent to intercourse" and secondly, in any event, they are "less worthy of belief". There are similar rules throughout the world. This 'chastity' requirement, which is based on common law, is clearly outmoded and has been reversed by statute in the most common law jurisdictions i.e.

USA (1974), UK (1976), Hong Kong (1978), Malaysia (1988), Canada (1992), India (2002) and New Zealand (2006). Bangladesh still has such 'common law'.

In England the law against rape evolved, and had a major overhaul in the case of RvR, (1992), in which the House of Lords held that if a man has forcible sexual intercourse with his lawfully wedded wife, that shall amount to rape. In 2003, India took an initiative to amend the corresponding Section 146(3) of its evidence act on the ground that no one should be allowed to question in the cross-examination of the prosecutrix (the victim) as to her general immoral character. More recently, the Supreme Court of India included in a verdict that the statement of a rape victim would be sufficient to punish an accused.

There is, in fact, no example where a rape allegation was taken into account once it was proved that the victim had prior physical relation with the accused. The defence proved that there was an affair between the victim and one of the accused. They also managed to prove that the girl was 'immoral' because she had affair with another man. Generally, the main purpose of admitting prior sexual history of the complainant is to impeach the credibility of the complainant and/or to support a 'consent defence'. Where consent is concerned, it is illogical and unreasonable to make any inferences about the complainant's consent to have sex with the defendant on the basis of the complainant's sexual conduct with other third parties. Consent is not transferable from one party to another. Consent in a rape case must be specific to the accused.

It is in the public interest to repeal Section 157(4) of the Evidence Act because: (1) It is based on the outmoded concept that only 'chaste' women should be afforded legal protection, (2) the moral or immoral behaviour of a woman has no logical link to her credibility or to the question of whether she consented to sexual intercourse in the specific case, (3) admitting evidence of a complainant's prior sexual conduct can be extremely prejudicial to her and create an unfair bias against her in the court's decision-making process, (4) it entrenches the risk of public humiliation

to and scrutiny of a victim's behaviour and deters rape reporting, which is already very low, (5) it codifies victim-blaming, (6) all or most other common law jurisdictions have already repealed this law.

It is not the function of rape evidence law to perpetuate and enforce moral judgements on women's sexual lives but to promote the discovery of the truth. The legal system and society has wrong perception that 'immoral women' can never be raped. The process has placed the onus on a woman: she is eligible to be raped and she has actually been raped. If the system and law has some kindness to a 'minor' victim, the law has linear view that the onus is on the accused to prove his innocence.

Now, the global opinion is that the law relating to sexual assault be made gender neutral, that is, men and women can be charged with the rape of men, women and children. This means the sexual assault of minor boys has been made prosecutable under the law. The sexual activities between married couple also are on mutual consents; otherwise, those amount to marital rape.

The law should shift the burden of proof of consent to the accused.

Specific provisions ought to be there that would deal with the medical examination of the victim as well as the accused by a registered medical practitioner. It is suggested that women who are victims of rape should be questioned only by a female police officer, in absence of whom a qualified woman from a recognised social organisation should do the questioning. The disclosure of the victim's identity shall be made a punishable offence.

The definition of rape may be changed with the focus being shifted from 'rape' to 'sexual assault'; with this the definition goes beyond penile penetration to include penetration by any part of the body and objects, taking into account cunnilingus and fellatio. The 'act' should be treated as 'assault', not one of 'rape'.

The offence of rape is a violation of fundamental rights protected by the Constitution of Bangladesh, and the Universal Human Rights. In an Indian rape case incident not long ago, a woman was the victim, and the offender was railway police personnel. The Indian Supreme Court has observed, "Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would be avoidable under public law. It was more so, when it was not a mere violation of any ordinary right, but the violation of fundamental rights was involved. The petitioner was a victim of rape, which was a violation of fundamental right of every person guaranteed under Article - 21 of the Indian Constitution."

The judgement suggested graded sentences, with higher punishment for rape committed by the relatives and persons in 'trust or authority', public servants, management and staff of hospitals. It also proposed the introduction of a new section in the law, which would include sexual harassment at the workplace.

The writer is a Legal Economist. shah@banglachemical.com