In Case of Definition:
It is incomprehensible that in this day and age we are forced to confront a situation whereby a rape victim is further victimized because of a chauvinistic provision in an archaic law. This is the case of Section 155 (4) of the Evidence Act 1872, as found in a research published by Bangladesh Legal Aid and Services Trust (BLAST), which allows the victim's character to be considered as part of the legal process in a rape case. This includes her romantic or sexual history – in other words whether she is 'virtuous' or not, to deserve justice after being raped. That this preposterous condition should still be applied while trying rapists is both incredulous and repugnant. It results in rapists to go scot free and the victims to be denied of justice. Rights activists have long been fighting to eliminate the degrading, invasive two-finger test that basically establishes whether a raped victim was a virgin or not before the rape. Section 155 (4) gives justification for this abhorrent test. A victim's character, her personal history, has nothing to do with the enormity of a crime like rape and therefore should not be used as a mitigating factor in the passing of the verdict. Reportedly, this newly drafted Evidence Act has removed this deplorable provision. But until this is passed as a law by the Parliament, the old provision can still be referred to. We therefore urge that the newly drafted Act that has done away with Section 155 (4) be immediately Approved. (Editorial Section 155 (4) goes against rape victims)
Scrapping of Unwanted Section of Evidence Act Called for :
Assault of women has, no doubt, snowballed into a violent malevolence over the years. There have been instances of young women, chased by men making vulgar overtures, jumping into ponds and drowning. Many a victim has, in recent times, taken recourse to suicide as a means of escape from the predicament. If cases are filed against the culprits, most of them are released after the trial using a section of the evidence act. As New Age reported on Monday, legal experts and rights activists on Sunday, therefore, stressed the need to cancel this section that allows Bangladesh’s legal system to label a rape victim as ‘characterless’ and, thus, help a rapist to get exonerated from any charge. They came up with this demand at the launching ceremony of a report titled ‘use of character evidence in rape prosecution in Bangladesh’ held at Bangla Academy in the capital. To be more specific, the section 155(4) of the evidence act stipulates, ‘when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutor (victim of rape) was of generally an immoral character. According to the speakers, the defense lawyers are in the habit of capitalizing on this section of evidence act by asking the rape victim indecent questions to prove that the woman had an immoral character beforehand. Consequently, very few of those accused of rape or other forms of sexual harassment have so far been penalized; in most cases, however, they managed to get away literally scot-free. The redundancy of this section can be proven if we highlight how incidents of rape occur in our society. Sometimes, a rapist resorts to tricks and enticement that he would marry his victim. It should also be noted that a woman’s refusal to submit to the man’s sexual desire, more often than not, inflicts a blow on his patriarchal ego, which eventually makes him desperate to rape the woman. It is, therefore, irrelevant to prove that the victim had an ‘immoral character’ in accordance with the dictates of the section. Getting away of most of the rapists scot-free can, thus, be attributed to this bad law which is being used by most of the defense lawyers to get their clients exonerated from any charge of rape although it has nothing to do with the case in question. It is often the victims who have had to bear the social stigma for the rest of their lives. The judge should, therefore, focus on whether any ‘sexual intercourse’ was actually committed against the will of the woman in question or whether her consent was obtained by intimidating her with death threats or by hurting her. If these are adequately substantiated by relevant evidences the accused of rape should be convicted. The authorities, at the moment, therefore, need to act expeditiously to scrap this unwanted section of evidence act that only helps the culprits to get away.
Evidence Act Too Chaste for Prosecuting Rapists :
Staff Correspondent
"Licentious", "hired" or "unchaste" women, prostitutes, or women used to sexual relations cannot be raped, shows a report analyzing judgements of cases, which took Section 155 (4) of the Evidence Act 1872 into consideration. The report titled "Sotirai Kebol Dhorson Hoi" (Only the Chaste are Raped) showed what rape survivors, seeking justice, experience because of this section. Fatama Sultana Suvra, assistant professor of anthropology, Jagannath University, prepared the report based on oral history and case analysis. The findings show that a rape survivor's alleged character is taken into consideration at courts, and it affects the verdict. Any suggestion that the victim is of "easy virtue" (sexually promiscuous behaviours or habits) may result in an acquittal of the defendant even if the court has found that non-consensual intercourse occurred, found the study. The report, published by Bangladesh Legal Aid and Services Trust (BLAST), was launched yesterday at Bangla Academy. It recommended that Section 155 (4), which allows consideration of a woman's character constructed from her romantic or sexual history, must be repealed. In preparing the report, the researcher went through documents of about 300 rape cases recorded by BLAST between 2000 and 2010 and talked to 15 rape victims, five doctors, five lawyers, three retired judges and five rights activists and five accused of rape cases. Section 155 (4) reads, "When a man is prosecuted for rape or an attempt to ravish it, it may be shown that the prosecutrix (victim) was of generally immoral character." In one judgment, presented in the report, where all seven accused of gang raping a 13-year-old girl were acquitted, the court took into consideration the girl's "romantic" relationship with one of the accused. In the case State vs Sri Pintu Pal, filed in 2010 under the Women and Child Repression Prevention Act 2000, the accused was acquitted as the complainant was a domestic help and considered to be of "easy virtue". The judgment read, "The plaintiff woman is of easy virtue so her dignity is low. As a result this accusation is not believable; court did not find any clear evidence to place their trust on the accusation brought by this woman of easy virtue." In the case State vs Abdul Majid, where a divorcee with one child was raped by her neighbor in her own house, the judgment read, "The plaintiff is habituated to sex so it was not possible to obtain any evidence of rape. The victim is of 'immoral' character and involved in different unsocial and unethical activities." The accused was acquitted. The report was prepared as part of the SHOKHI project, which focuses on women's health, rights and choices and is supported by the Dutch embassy. The project is led by BLAST in partnership with Bangladesh Women's Health Coalition, Marie Stopes Bangladesh, and We Can Alliance. It was commissioned when BLAST was working to abolish the humiliating two-finger test, which is conducted on women or girls to check their virginity, said Najrana Imaan, team leader of SHOKHI. "We wanted to find the legal basis of the two-finger test and came across Section-155 (4)," she said. Society thinks that rape occurs only when an intact hymen is recently torn, when women are threatened with weapons, or left with severe injuries, or when they commit suicide from shame of losing their chastity, observed the report. The report suggested legal and judicial reform which included abolishment of the two-finger test, collection of DNA evidence and use of camera trial for all rape cases. ATM Fazle Kabir, member of the Law Commission, said in the newly drafted Evidence Act, Section-155 (4) was removed. To prevent harassment of rape survivors, he asked judges to use their judicial power to stop defense lawyers from asking indecent, irrelevant questions in courtrooms. Human rights activist advocate Sultana Kamal moderated the programmed, while Ayesha Khanam, president of Bangladesh Mahila Parishad, Ella de-Voogd, first secretary of Sexual and Reproductive Health and Rights, embassy of the Netherlands, and Ali Asgar Swapan, special public. If the word 'evidence' includes electronic evidence such as electronic records, electronic message, electronic agreement, digital signature and any evidence with electronic form, it will be recognition of modern technology. The electronic form of evidence will be applied cautiously in some specific issues such as oral admissions. We know oral admission is a vital part of testimony. In case of oral admissions as to the contents of electronic records may be considered as irrelevant, unless the genuineness of the electronic record produced is in question. Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (referred to as the computer output) shall be deemed to be also a document. In case of keeping accounts entries in the books of account, we can also include those accounts as evidence which are kept in an electronic form as in most cases computer or such other sophisticated electronic equipment have become a very common phenomenon.
In Case of Presumption:
It is an inference or assumption of the truth or falsehood of a fact or proposition drawn by the court by a process of probable reasoning from some fact already proved or taken for granted. Custodial injuries: Custodial violence leading to injuries, rape or death of suspects or accused has become very common in our country. Human Rights organisations in their reports have also been referring to custodial deaths and expressing concern over their increasing number. But, even after all the observations and developments, the incidents of custodial deaths are continuing unabated. According to the human rights organisation Odhikar, 184 people have been reportedly extra judicially killed by the law enforcing agencies in 2007 and of them at least 69 died in the custody. It is not secret that while in police custody all kinds of third degree methods are used by police officers to extract information from the accused which, many a time, lead to custodial death. The courts have issued several guidelines for police (BLAST v Bangladesh 55 DLR 363 and Saifuzzaman v Bangladesh) in order to prevent the custodial death and torture, but they are observed more in breach. In case of prosecution of police in custodial deaths, it is very difficult to find any eye-witness. Besides, any other policeman never comes forward to give evidence against his fellow policeman accused of custodial death. Therefore, it is very difficult to implicate a policeman in the absence of evidence. Under the circumstances, it may be appropriate if the courts while trying a police officer accused of custodial death should presume that it has been caused by the police officer and the onus of proving innocent is fixed on the police officer. It is, therefore, necessary that changes in the Evidence Act are made regarding presumption by court if the death of a person takes place while he was in police custody. Such an amendment will definitely serve as deterrent to the police officer and reduce the incidents of custodial deaths.
Electronic record:
It is noted that in any proceedings involving a secure electronic record, the Court shall presume, unless contrary is proved, that the secure electronic record has not been altered since the point of time to which the secure status relates. Presumption as to electronic messages: The Court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent. Presumption as to electronic records five year old: Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorised by him in this behalf. Presumption as to electronic agreements: The Court shall presume that every electronic record purporting to be an agreement containing the digital signature of the parties was so concluded by affixing the digital signature of the parties.
In Case of Rape Victims:
Despite Constitutional provisions guaranteeing equality and special protection for women, there still exist few discriminatory provisions under various laws. Section 155 (4) of the Evidence Act, 1872, provided 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 archaic and unethical provision of this section is affecting victims of rape. I think this portion of this section should be deleted. It is common for the defense counsels to refer to prior sexual conduct of the complainant in their pleadings for demolishing her testimony that she does not consent, thus tarnishing the reputation and chances of marriage of the complainant. The amendment can protect the individual honour and dignity of woman. It is noted that in 2003, India deleted that clause and inserted a provision in Section 146 after clause (3) as “Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character”. The enactment of the Evidence Act 1872 was a landmark judicial measure in this subcontinent, which changed the entire system of concepts to admissibility of evidences in the courts of law. It is noted that the rules of evidences were based on the traditional legal systems of different social groups and communities of this subcontinent. Besides, while enacting the act the law makers keep in mind the customary practice of the people of that region. About after 136 years it is necessary to sophisticate the act to ensure justice.
TRYING RAPE CASES: Cancellation of ‘evidence act’ urged:
Staff Correspondent
Bangladesh Legal Aid and Services Trust launched a report on ‘Use of Character Evidence in Rape Prosecutions in Bangladesh’ at Bangla Academy in Dhaka on Sunday. — New Age photo Legal experts and rights activists on Sunday stressed for the need to cancel a section of the ‘evidence act’ that allows Bangladesh’s legal system to label a rape victim ‘characterless’ and help a rapist get exonerated. They made the demand in the launching ceremony of a report on ‘Use of Character Evidence in Rape Prosecution in Bangladesh’ organized by the Bangladesh Legal Aid and Services Trust at Bangla Academy, in the capital. The section 155(4) of the evidence act stipulates, ‘when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix (the rape victim) was of generally immoral character.’ While presenting her research, Jagannath University anthropology department teacher, Fatama Sultana Suvra, said she had studied 244 rape cases in 10 years, beginning in 2001 where section 155(4) of the ‘evidence act’ was used. She claimed to have found that the defense lawyers asked indecent and disgraceful questions to the rape victims to prove that the women had immoral characters. She said she found the women victims were raped by their known males who had promised them of marriage. In such cases, women were labeled as ‘characterless’ and the accused were acquitted. Addressing the ceremony, Law Commission Member Justice ATM Fazle Kabir said that his commission recommended the government to cancel the section because ‘there should not be any bad law like this one.’ ‘A judge will only see whether the sexual intercourse was committed against the will of the woman or if her consent was obtained by putting her in a fear of death, or hurting her,’ Kabir said. He explained that sometime a rapist resorted to tricks and enticement that he would marry her. This is how a woman may believe that the man will marry her, and gives her consent to the fornication. He urged the judges to use their power so that no lawyer can ask any indecent or disgraceful questions to the victims. The report suggested ensuring DNA test mandatory to identify the rapist, scrapping two-finger test of the victims and introducing modern forensic tests and camera trial. Moderated by Amrai Pari Paribarik Nirjaton Protirodh Jote chairperson Sultana Kamal, the ceremony was also addressed by Bangladesh Mahila Parishad president, Ayesha Khanom, BLAST’s honourary executive director, Sara Hossain, Nari O Shishu Nirjaton Damon Tribunal’s special public prosecutor, Ali Asgar Swapan and Netherlands’ embassy’s sexual and reproductive health and rights affairs first secretary, Ella de-Voogd, among others.
In Case of Expert's Opinion:
Opinion of a person not a party to the suit is not important. But there maybe some cases where, due to technicality involved, the court cannot form a correct opinion of its own. In such situations it becomes necessary to take the opinion of an expert in that field. An expert is a person who is especially skilled and has devoted time and study and thus is especially skilled on those points on which he is asked to state his opinion. In case of fixing the legitimacy of a child or identifying the criminals and victims DNA test can be most reliable means. In such cases the court can seek help from the scientists. Determining legitimacy of a child: There still lies an ambiguity in the contents of the section 112. Here the section states that if a child is born within 280 days, after dissolution of marriage, the legitimacy of that child is conclusive. Here, it seems that the law is a step ahead then the medical science, as the point regarding exact days of child birth is not settled in medical arena, till date. It is basically an issue of medical science which has to be dealt with sincere scientific aptitude and by Laws of Nature. Basically, this section was formulated in year 1872, nearly 140 years ago. But, in last three decades, there is an unpredictable growth of scientific temperament. And, even the Legal Community is showing the impression of the same. Here, introduction and admission of DNA technology can actually be fruitful, to meet the ends of the justice.
Identifying Criminals And Victims:
Forensic scientists can use DNA in blood, semen, skin, saliva or hair at a crime scene to identify a perpetrator. This process is called genetic fingerprinting, or more accurately, DNA profiling. In DNA profiling, the lengths of variable sections of repetitive DNA, such as short tandem repeats and minisatellites, are compared between people. This method is usually an extremely reliable technique for identifying a criminal. However, identification can be complicated if the scene is contaminated with DNA from several people. People convicted of certain types of crimes may be required to provide a sample of DNA for a database. This has helped investigators solve old cases where only a DNA sample was obtained from the scene. DNA profiling can also be used to identify victims of mass casualty incidents.
Conclusion:
Despite being a heinous crime, sexual offences, specially cases of rape, mostly go unreported in Bangladesh. There are numerous reasons for this to happen. The biggest hurdle appears to be the adversarial court proceeding which is lengthy, complex and even fails to offer adequate protection to the victims of sexual offences. Section 155(4) of the Evidence Act 1872 allows the defence counsel in a rape case to show that the victim was of generally immoral character in order to impeach her creditworthiness in a court. While it is understandable that the burden of proving the offence of rape rests with the prosecution and the presumption of innocence lies in favour of the accused, it is utterly degrading and humiliating for the victim. Almost as old as 150 years, section 155(4) is no doubt an archaic law which requires significant reform. Bangladesh is in need of 'rape shield' laws which prevent questioning the victim about her past sexual morality or behaviour except in rare circumstances. Such laws also prohibit the publication of the personal details of the victim. Rape shield laws are common in various jurisdictions including, but not limited to, Australia, Canada, United States of America (USA), United Kingdom (UK), South Africa, Scotland, Singapore and India. Most of these jurisdictions carried out rigorous law reform process to protect victims of sexual offences from being questioned about their character recognizing the prejudicial impact of adducing bad character evidence. Section 155(4) is a relic of the British colonial period. UK and Indian legal systems, which heavily influence the legal system of Bangladesh, have repealed this provision already. Ironically, however, Bangladesh has chosen to continue with the doomed legacy! In UK, section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits the accused from questioning the complainant or adducing any evidence about her sexual behaviour without the leave of the court. In addition, 'sexual behaviour' has been defined so widely that even evidence of mere flirting would ordinarily be encompassed within its definition and as such offering maximum protection to the victim. The court will not grant a leave unless specific exceptional circumstances arise under sub-section (3) or (5) and where refusal of leave might risk rendering of an unsafe conclusion by the jury. The 1999 Act imposes further restrictions, such as that the questions must relate to 'specific' instance(s) and that no question shall be asked if it appears to the court to be reasonable that the purpose or main purpose behind such question or evidence is to impugn the credibility of the complainant as a witness. Under section 228A of the Indian Penal Code 1860, disclosing the identity of a rape victim is a punishable offence except in very limited circumstances. The Criminal Law (Amendment) Act 2013 brought about the rape shield law in the form of section 146 of the Indian Evidence Act 1872.It is high time for Bangladesh to also introduce similar rape shield laws. Though it may not absolutely prohibit evidence/questions of past sexual behaviour of the victim, it may require the defence to make an application for leave of the court before adducing such evidence or asking such questions. The leave, however, may only be granted in limited circumstances without attacking the credibility of the victim. The court will have to play an extremely cautious and vigilant role while considering such an application. This is unlikely to hinder the defendant's right to a fair trial since the burden of proving the offence of rape still rests with the prosecution beyond reasonable doubt. On the contrary, the non-application of a rape shield law violates a woman's right to privacy by allowing her personal life to be put on public display during a rape trial.
References:
1. https://www.lawnotes.in/Section_155_of_Indian_Evidence_Act,_1872
2. http://www.thedailystar.net/law-our-rights/law-analysis/character-assassination- rape-victims-1405843
3. https://www.blast.org.bd/content/news/05-june-2016-news.pdf
4. http://www.vakilno1.com/bareacts/laws/indianevidenceact.html
5.https://www.google.com/searchq=penal+code+of+bangladesh&sa=X&ved=0ahUKE wioxu3psKfVAhVGHJQKHVP4C-0Q1QIIbCgD&biw=1366&bih=648
6. https://google.com/store/apps/details
id=com.penalcode.book.AOVMQDFQDHJQQFQO
It is incomprehensible that in this day and age we are forced to confront a situation whereby a rape victim is further victimized because of a chauvinistic provision in an archaic law. This is the case of Section 155 (4) of the Evidence Act 1872, as found in a research published by Bangladesh Legal Aid and Services Trust (BLAST), which allows the victim's character to be considered as part of the legal process in a rape case. This includes her romantic or sexual history – in other words whether she is 'virtuous' or not, to deserve justice after being raped. That this preposterous condition should still be applied while trying rapists is both incredulous and repugnant. It results in rapists to go scot free and the victims to be denied of justice. Rights activists have long been fighting to eliminate the degrading, invasive two-finger test that basically establishes whether a raped victim was a virgin or not before the rape. Section 155 (4) gives justification for this abhorrent test. A victim's character, her personal history, has nothing to do with the enormity of a crime like rape and therefore should not be used as a mitigating factor in the passing of the verdict. Reportedly, this newly drafted Evidence Act has removed this deplorable provision. But until this is passed as a law by the Parliament, the old provision can still be referred to. We therefore urge that the newly drafted Act that has done away with Section 155 (4) be immediately Approved. (Editorial Section 155 (4) goes against rape victims)
Scrapping of Unwanted Section of Evidence Act Called for :
Assault of women has, no doubt, snowballed into a violent malevolence over the years. There have been instances of young women, chased by men making vulgar overtures, jumping into ponds and drowning. Many a victim has, in recent times, taken recourse to suicide as a means of escape from the predicament. If cases are filed against the culprits, most of them are released after the trial using a section of the evidence act. As New Age reported on Monday, legal experts and rights activists on Sunday, therefore, stressed the need to cancel this section that allows Bangladesh’s legal system to label a rape victim as ‘characterless’ and, thus, help a rapist to get exonerated from any charge. They came up with this demand at the launching ceremony of a report titled ‘use of character evidence in rape prosecution in Bangladesh’ held at Bangla Academy in the capital. To be more specific, the section 155(4) of the evidence act stipulates, ‘when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutor (victim of rape) was of generally an immoral character. According to the speakers, the defense lawyers are in the habit of capitalizing on this section of evidence act by asking the rape victim indecent questions to prove that the woman had an immoral character beforehand. Consequently, very few of those accused of rape or other forms of sexual harassment have so far been penalized; in most cases, however, they managed to get away literally scot-free. The redundancy of this section can be proven if we highlight how incidents of rape occur in our society. Sometimes, a rapist resorts to tricks and enticement that he would marry his victim. It should also be noted that a woman’s refusal to submit to the man’s sexual desire, more often than not, inflicts a blow on his patriarchal ego, which eventually makes him desperate to rape the woman. It is, therefore, irrelevant to prove that the victim had an ‘immoral character’ in accordance with the dictates of the section. Getting away of most of the rapists scot-free can, thus, be attributed to this bad law which is being used by most of the defense lawyers to get their clients exonerated from any charge of rape although it has nothing to do with the case in question. It is often the victims who have had to bear the social stigma for the rest of their lives. The judge should, therefore, focus on whether any ‘sexual intercourse’ was actually committed against the will of the woman in question or whether her consent was obtained by intimidating her with death threats or by hurting her. If these are adequately substantiated by relevant evidences the accused of rape should be convicted. The authorities, at the moment, therefore, need to act expeditiously to scrap this unwanted section of evidence act that only helps the culprits to get away.
Evidence Act Too Chaste for Prosecuting Rapists :
Staff Correspondent
"Licentious", "hired" or "unchaste" women, prostitutes, or women used to sexual relations cannot be raped, shows a report analyzing judgements of cases, which took Section 155 (4) of the Evidence Act 1872 into consideration. The report titled "Sotirai Kebol Dhorson Hoi" (Only the Chaste are Raped) showed what rape survivors, seeking justice, experience because of this section. Fatama Sultana Suvra, assistant professor of anthropology, Jagannath University, prepared the report based on oral history and case analysis. The findings show that a rape survivor's alleged character is taken into consideration at courts, and it affects the verdict. Any suggestion that the victim is of "easy virtue" (sexually promiscuous behaviours or habits) may result in an acquittal of the defendant even if the court has found that non-consensual intercourse occurred, found the study. The report, published by Bangladesh Legal Aid and Services Trust (BLAST), was launched yesterday at Bangla Academy. It recommended that Section 155 (4), which allows consideration of a woman's character constructed from her romantic or sexual history, must be repealed. In preparing the report, the researcher went through documents of about 300 rape cases recorded by BLAST between 2000 and 2010 and talked to 15 rape victims, five doctors, five lawyers, three retired judges and five rights activists and five accused of rape cases. Section 155 (4) reads, "When a man is prosecuted for rape or an attempt to ravish it, it may be shown that the prosecutrix (victim) was of generally immoral character." In one judgment, presented in the report, where all seven accused of gang raping a 13-year-old girl were acquitted, the court took into consideration the girl's "romantic" relationship with one of the accused. In the case State vs Sri Pintu Pal, filed in 2010 under the Women and Child Repression Prevention Act 2000, the accused was acquitted as the complainant was a domestic help and considered to be of "easy virtue". The judgment read, "The plaintiff woman is of easy virtue so her dignity is low. As a result this accusation is not believable; court did not find any clear evidence to place their trust on the accusation brought by this woman of easy virtue." In the case State vs Abdul Majid, where a divorcee with one child was raped by her neighbor in her own house, the judgment read, "The plaintiff is habituated to sex so it was not possible to obtain any evidence of rape. The victim is of 'immoral' character and involved in different unsocial and unethical activities." The accused was acquitted. The report was prepared as part of the SHOKHI project, which focuses on women's health, rights and choices and is supported by the Dutch embassy. The project is led by BLAST in partnership with Bangladesh Women's Health Coalition, Marie Stopes Bangladesh, and We Can Alliance. It was commissioned when BLAST was working to abolish the humiliating two-finger test, which is conducted on women or girls to check their virginity, said Najrana Imaan, team leader of SHOKHI. "We wanted to find the legal basis of the two-finger test and came across Section-155 (4)," she said. Society thinks that rape occurs only when an intact hymen is recently torn, when women are threatened with weapons, or left with severe injuries, or when they commit suicide from shame of losing their chastity, observed the report. The report suggested legal and judicial reform which included abolishment of the two-finger test, collection of DNA evidence and use of camera trial for all rape cases. ATM Fazle Kabir, member of the Law Commission, said in the newly drafted Evidence Act, Section-155 (4) was removed. To prevent harassment of rape survivors, he asked judges to use their judicial power to stop defense lawyers from asking indecent, irrelevant questions in courtrooms. Human rights activist advocate Sultana Kamal moderated the programmed, while Ayesha Khanam, president of Bangladesh Mahila Parishad, Ella de-Voogd, first secretary of Sexual and Reproductive Health and Rights, embassy of the Netherlands, and Ali Asgar Swapan, special public. If the word 'evidence' includes electronic evidence such as electronic records, electronic message, electronic agreement, digital signature and any evidence with electronic form, it will be recognition of modern technology. The electronic form of evidence will be applied cautiously in some specific issues such as oral admissions. We know oral admission is a vital part of testimony. In case of oral admissions as to the contents of electronic records may be considered as irrelevant, unless the genuineness of the electronic record produced is in question. Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (referred to as the computer output) shall be deemed to be also a document. In case of keeping accounts entries in the books of account, we can also include those accounts as evidence which are kept in an electronic form as in most cases computer or such other sophisticated electronic equipment have become a very common phenomenon.
In Case of Presumption:
It is an inference or assumption of the truth or falsehood of a fact or proposition drawn by the court by a process of probable reasoning from some fact already proved or taken for granted. Custodial injuries: Custodial violence leading to injuries, rape or death of suspects or accused has become very common in our country. Human Rights organisations in their reports have also been referring to custodial deaths and expressing concern over their increasing number. But, even after all the observations and developments, the incidents of custodial deaths are continuing unabated. According to the human rights organisation Odhikar, 184 people have been reportedly extra judicially killed by the law enforcing agencies in 2007 and of them at least 69 died in the custody. It is not secret that while in police custody all kinds of third degree methods are used by police officers to extract information from the accused which, many a time, lead to custodial death. The courts have issued several guidelines for police (BLAST v Bangladesh 55 DLR 363 and Saifuzzaman v Bangladesh) in order to prevent the custodial death and torture, but they are observed more in breach. In case of prosecution of police in custodial deaths, it is very difficult to find any eye-witness. Besides, any other policeman never comes forward to give evidence against his fellow policeman accused of custodial death. Therefore, it is very difficult to implicate a policeman in the absence of evidence. Under the circumstances, it may be appropriate if the courts while trying a police officer accused of custodial death should presume that it has been caused by the police officer and the onus of proving innocent is fixed on the police officer. It is, therefore, necessary that changes in the Evidence Act are made regarding presumption by court if the death of a person takes place while he was in police custody. Such an amendment will definitely serve as deterrent to the police officer and reduce the incidents of custodial deaths.
Electronic record:
It is noted that in any proceedings involving a secure electronic record, the Court shall presume, unless contrary is proved, that the secure electronic record has not been altered since the point of time to which the secure status relates. Presumption as to electronic messages: The Court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent. Presumption as to electronic records five year old: Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorised by him in this behalf. Presumption as to electronic agreements: The Court shall presume that every electronic record purporting to be an agreement containing the digital signature of the parties was so concluded by affixing the digital signature of the parties.
In Case of Rape Victims:
Despite Constitutional provisions guaranteeing equality and special protection for women, there still exist few discriminatory provisions under various laws. Section 155 (4) of the Evidence Act, 1872, provided 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 archaic and unethical provision of this section is affecting victims of rape. I think this portion of this section should be deleted. It is common for the defense counsels to refer to prior sexual conduct of the complainant in their pleadings for demolishing her testimony that she does not consent, thus tarnishing the reputation and chances of marriage of the complainant. The amendment can protect the individual honour and dignity of woman. It is noted that in 2003, India deleted that clause and inserted a provision in Section 146 after clause (3) as “Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character”. The enactment of the Evidence Act 1872 was a landmark judicial measure in this subcontinent, which changed the entire system of concepts to admissibility of evidences in the courts of law. It is noted that the rules of evidences were based on the traditional legal systems of different social groups and communities of this subcontinent. Besides, while enacting the act the law makers keep in mind the customary practice of the people of that region. About after 136 years it is necessary to sophisticate the act to ensure justice.
TRYING RAPE CASES: Cancellation of ‘evidence act’ urged:
Staff Correspondent
Bangladesh Legal Aid and Services Trust launched a report on ‘Use of Character Evidence in Rape Prosecutions in Bangladesh’ at Bangla Academy in Dhaka on Sunday. — New Age photo Legal experts and rights activists on Sunday stressed for the need to cancel a section of the ‘evidence act’ that allows Bangladesh’s legal system to label a rape victim ‘characterless’ and help a rapist get exonerated. They made the demand in the launching ceremony of a report on ‘Use of Character Evidence in Rape Prosecution in Bangladesh’ organized by the Bangladesh Legal Aid and Services Trust at Bangla Academy, in the capital. The section 155(4) of the evidence act stipulates, ‘when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix (the rape victim) was of generally immoral character.’ While presenting her research, Jagannath University anthropology department teacher, Fatama Sultana Suvra, said she had studied 244 rape cases in 10 years, beginning in 2001 where section 155(4) of the ‘evidence act’ was used. She claimed to have found that the defense lawyers asked indecent and disgraceful questions to the rape victims to prove that the women had immoral characters. She said she found the women victims were raped by their known males who had promised them of marriage. In such cases, women were labeled as ‘characterless’ and the accused were acquitted. Addressing the ceremony, Law Commission Member Justice ATM Fazle Kabir said that his commission recommended the government to cancel the section because ‘there should not be any bad law like this one.’ ‘A judge will only see whether the sexual intercourse was committed against the will of the woman or if her consent was obtained by putting her in a fear of death, or hurting her,’ Kabir said. He explained that sometime a rapist resorted to tricks and enticement that he would marry her. This is how a woman may believe that the man will marry her, and gives her consent to the fornication. He urged the judges to use their power so that no lawyer can ask any indecent or disgraceful questions to the victims. The report suggested ensuring DNA test mandatory to identify the rapist, scrapping two-finger test of the victims and introducing modern forensic tests and camera trial. Moderated by Amrai Pari Paribarik Nirjaton Protirodh Jote chairperson Sultana Kamal, the ceremony was also addressed by Bangladesh Mahila Parishad president, Ayesha Khanom, BLAST’s honourary executive director, Sara Hossain, Nari O Shishu Nirjaton Damon Tribunal’s special public prosecutor, Ali Asgar Swapan and Netherlands’ embassy’s sexual and reproductive health and rights affairs first secretary, Ella de-Voogd, among others.
In Case of Expert's Opinion:
Opinion of a person not a party to the suit is not important. But there maybe some cases where, due to technicality involved, the court cannot form a correct opinion of its own. In such situations it becomes necessary to take the opinion of an expert in that field. An expert is a person who is especially skilled and has devoted time and study and thus is especially skilled on those points on which he is asked to state his opinion. In case of fixing the legitimacy of a child or identifying the criminals and victims DNA test can be most reliable means. In such cases the court can seek help from the scientists. Determining legitimacy of a child: There still lies an ambiguity in the contents of the section 112. Here the section states that if a child is born within 280 days, after dissolution of marriage, the legitimacy of that child is conclusive. Here, it seems that the law is a step ahead then the medical science, as the point regarding exact days of child birth is not settled in medical arena, till date. It is basically an issue of medical science which has to be dealt with sincere scientific aptitude and by Laws of Nature. Basically, this section was formulated in year 1872, nearly 140 years ago. But, in last three decades, there is an unpredictable growth of scientific temperament. And, even the Legal Community is showing the impression of the same. Here, introduction and admission of DNA technology can actually be fruitful, to meet the ends of the justice.
Identifying Criminals And Victims:
Forensic scientists can use DNA in blood, semen, skin, saliva or hair at a crime scene to identify a perpetrator. This process is called genetic fingerprinting, or more accurately, DNA profiling. In DNA profiling, the lengths of variable sections of repetitive DNA, such as short tandem repeats and minisatellites, are compared between people. This method is usually an extremely reliable technique for identifying a criminal. However, identification can be complicated if the scene is contaminated with DNA from several people. People convicted of certain types of crimes may be required to provide a sample of DNA for a database. This has helped investigators solve old cases where only a DNA sample was obtained from the scene. DNA profiling can also be used to identify victims of mass casualty incidents.
Conclusion:
Despite being a heinous crime, sexual offences, specially cases of rape, mostly go unreported in Bangladesh. There are numerous reasons for this to happen. The biggest hurdle appears to be the adversarial court proceeding which is lengthy, complex and even fails to offer adequate protection to the victims of sexual offences. Section 155(4) of the Evidence Act 1872 allows the defence counsel in a rape case to show that the victim was of generally immoral character in order to impeach her creditworthiness in a court. While it is understandable that the burden of proving the offence of rape rests with the prosecution and the presumption of innocence lies in favour of the accused, it is utterly degrading and humiliating for the victim. Almost as old as 150 years, section 155(4) is no doubt an archaic law which requires significant reform. Bangladesh is in need of 'rape shield' laws which prevent questioning the victim about her past sexual morality or behaviour except in rare circumstances. Such laws also prohibit the publication of the personal details of the victim. Rape shield laws are common in various jurisdictions including, but not limited to, Australia, Canada, United States of America (USA), United Kingdom (UK), South Africa, Scotland, Singapore and India. Most of these jurisdictions carried out rigorous law reform process to protect victims of sexual offences from being questioned about their character recognizing the prejudicial impact of adducing bad character evidence. Section 155(4) is a relic of the British colonial period. UK and Indian legal systems, which heavily influence the legal system of Bangladesh, have repealed this provision already. Ironically, however, Bangladesh has chosen to continue with the doomed legacy! In UK, section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits the accused from questioning the complainant or adducing any evidence about her sexual behaviour without the leave of the court. In addition, 'sexual behaviour' has been defined so widely that even evidence of mere flirting would ordinarily be encompassed within its definition and as such offering maximum protection to the victim. The court will not grant a leave unless specific exceptional circumstances arise under sub-section (3) or (5) and where refusal of leave might risk rendering of an unsafe conclusion by the jury. The 1999 Act imposes further restrictions, such as that the questions must relate to 'specific' instance(s) and that no question shall be asked if it appears to the court to be reasonable that the purpose or main purpose behind such question or evidence is to impugn the credibility of the complainant as a witness. Under section 228A of the Indian Penal Code 1860, disclosing the identity of a rape victim is a punishable offence except in very limited circumstances. The Criminal Law (Amendment) Act 2013 brought about the rape shield law in the form of section 146 of the Indian Evidence Act 1872.It is high time for Bangladesh to also introduce similar rape shield laws. Though it may not absolutely prohibit evidence/questions of past sexual behaviour of the victim, it may require the defence to make an application for leave of the court before adducing such evidence or asking such questions. The leave, however, may only be granted in limited circumstances without attacking the credibility of the victim. The court will have to play an extremely cautious and vigilant role while considering such an application. This is unlikely to hinder the defendant's right to a fair trial since the burden of proving the offence of rape still rests with the prosecution beyond reasonable doubt. On the contrary, the non-application of a rape shield law violates a woman's right to privacy by allowing her personal life to be put on public display during a rape trial.
References:
1. https://www.lawnotes.in/Section_155_of_Indian_Evidence_Act,_1872
2. http://www.thedailystar.net/law-our-rights/law-analysis/character-assassination- rape-victims-1405843
3. https://www.blast.org.bd/content/news/05-june-2016-news.pdf
4. http://www.vakilno1.com/bareacts/laws/indianevidenceact.html
5.https://www.google.com/searchq=penal+code+of+bangladesh&sa=X&ved=0ahUKE wioxu3psKfVAhVGHJQKHVP4C-0Q1QIIbCgD&biw=1366&bih=648
6. https://google.com/store/apps/details
id=com.penalcode.book.AOVMQDFQDHJQQFQO
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