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     Volume 8 Issue 89 | October 9, 2009 |

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Special Feature

How Rapists Go Free

Kajalie Shehreen Islam

Rape is perhaps the most dangerous weapon a man can use against a woman. It serves multiple purposes, not least of all dictating the power relationship between the sexes, putting women at the mercy of men, not only during the crime, but through the social ramifications which follow and which sometimes stay with the woman and her family throughout their lives. While rape is under-reported due to the social stigma associated with it, news of rape is still common in the media. Less common is the resolution of such cases where the perpetrators are brought to book.

Late last month, 10 activists of the ruling Awami League's (AL) student wing, Bangladesh Chhatra League (BCL), allegedly raped a teenage girl in Patuakhali. While two of the accused were caught on the spot and arrested, they were released the next morning. The following day, local AL leaders set up an arbitration in which 16 men who had kidnapped the girl, a student of Class 7, were fined Tk. 10,000 each and sentenced to 100 lashes. This punishment, according to a local AL leader, was not for rape -- an allegation which he refuted -- but for attempt to rape. The victim's family was not allowed to file a case and was instead compelled by the local leaders to sign on blank sheets of paper. The local police, on the other hand, claimed to have released the arrestees as there were no cases filed against them and refused to file any case themselves. Following the incident, the family of the victim, rather than the perpetrators, went into hiding. Local police officials then claimed that the victim herself had submitted a written statement declaring that she had not been raped. Meanwhile, local journalists who have reported on the incident have been threatened, while one was fired from his place of work.

This is one of at least three other instances of rape allegedly perpetrated by the BCL in the past three months. At around the same time as the above incident, a girl of Class 10 in Pirojpur was allegedly raped by a BCL leader. This time, the rape was recorded and distributed through cellular phones and flash drives, and also sold as CDs in video stores. While police raided the video stores and arrested a proprietor and an apprentice of two video stores and even a buyer of the CD, the alleged rapist is yet to be apprehended.

Adolescent girls are particularly vulnerable to violence, often perpetrated by local influential people.

An interesting blame game has developed. According to a Daily Star report, while the culprit admits to having raped the girl, he denies having recorded the crime and puts the blame on a political rival, supposedly intending to tarnish his image. The latter, in turn, claims to have recorded the rape at the instruction of the alleged rapist but denies any knowledge of its distribution and marketing. The police have filed a case against the culprits on charges of rape, blackmail and marketing of obscene video footage. This is the second such case, following one in Faridpur in July in which another girl was allegedly raped by members of the BCL and the crime recorded and distributed. No one has yet been arrested in that case.

According to Advocate Chanchal Mukherjee, Senior Staff Lawyer, BRAC Human Rights and Legal Services Programme, in close to 90 percent of rape cases in Bangladesh the victims do not get justice. While there are adequate laws in place under the Nari o Shishu Nirjaton Daman Ain 2000 (a law enacted for the protection of women and children from repression, last amended in 2003) with maximum punishment and which apply not only to rape but also sexual harassment, there are some loopholes which allow perpetrators to get away with impunity. These begin from the very first stage of filing the case.

The victim is first required to file a case at the local police station. In cases where the victim for whatever reason is unable to file a rape case, human rights organisations can do it on their behalf and they do so regularly. The police too can file a case but they rarely do.

'The logic they present,' says Advocate Mukherjee, 'is that where the majority of rape cases are ultimately dismissed as false, the cases that come to them might be so too.' Behind it, of course, pressure from local influential people to reject cases that may directly or indirectly implicate them and their cronies plays a part.

In the event that the police do not accept a rape case, the victim must go to the Nari o Shishu Nirjaton Daman Ain Special Tribunal. In places where there is no special tribunal, the district and session judge him/herself is the tribunal. The victim must then file an affidavit explaining that the local police had refused to take the case. This is written and submitted by a lawyer, after which the victim is sent for medical examination.

'This whole process takes three days, by which time there is hardly any evidence of rape to be found on the victim,' says Chanchal Mukherjee, 'and if she has bathed, then there is close to nothing. There may be signs of violence, but if the medical certificate -- upon which much emphasis is placed in such cases -- declares there is "no sign of rape", the judge can doubt the truth of the allegation. This is a big procedural loophole.'

A possible way around this, according to Mukherjee, is to enable the victim to bypass the local police and go straight to the courts in order to save time. Another possible solution, says the lawyer, is to have a separate unit at police stations which would deal exclusively with cases related to crimes against women. It is important for the members of this unit to be gender sensitised so that they have a positive attitude towards victims, which is otherwise rare in understaffed police stations which deal with all sorts of crimes.

A second loophole, according to Mukherjee, is the failure to enforce Section 17 of the Nari o Shishu Nirjaton Daman Ain. This provides for the punishment of the plaintiff in the event of the filing of false cases.

Rape cases are completely 'non-compoundable', according to Advocate Mukherjee, meaning that they cannot be settled in private. While some offences, such as minor fights can be settled through compromise, rape -- both under the Penal Code as well as under the special Nari o Shishu Nirjaton Daman Ain -- cannot.

Not only do arbitrations have no legal value, but those who arrange them and thus help perpetrators get away, are actually liable for abetting them in their crimes and can be considered as co-accused under Section 30 of the Nari o Shishu Nirjaton Daman Ain, says Mukherjee. This law is almost never enforced, however, and arbitrations and settlements are common. Whether through pay-offs or threats, the victims, who initially named their rapists, come to court and deny knowledge of their identity, resulting in their being declared innocent.

'Many cases are ultimately dismissed as false,' says Mukherjee, 'because the victims who initially identified the rapists were in the end forced to retract their statements. If Section 17 was enforced, people would not be able to take back their original statements as easily.'

These retractions occur mainly due to delays in the legal process, giving the parties involved ample time to seek a compromise, which is the reason behind the dismissal of 80 percent of rape cases in which victims do not get justice. They also ruin the motivation in victims to seek justice when those around them point out that justice has not been served over a long period and that they should opt for financial compensation rather than legal justice. Delays of any sort, and which unfortunately occur at every stage -- from the investigation to the testimony of medical examiners, etc. -- says Mukherjee, hinder the legal process.

Political or any other form of backing from influential people obviously makes it much more difficult to seek justice against the guilty parties. If they themselves are not directly responsible, their support helps the culprits at every stage, from preventing the police from accepting cases, to influencing the victims to withdraw them. In the Patuakhali incident, for example, local AL leaders were the ones to arrange an arbitration and let off the perpetrators of gang rape with a beating and a small fine, declaring that justice had been done. Until the submission of this piece, no one had been apprehended in the case. According to Advocate Mukherjee, whether rape or attempt to rape, as claimed by local AL leaders, both are punishable offences, the latter also a non-compoundable offence under Section 9 (4) (kha) of the Nari o Shishu Nirjaton Daman Ain, with a punishment of five to ten year's imprisonment.

In a relatively new trend, in at least two other rape incidents in the past few months, the crime was visually recorded and the footage distributed and sold. While abuse of technology has contributed to the easy and widespread distribution of such footage, it could be useful as evidence in the above cases if the perpetrators can be identified in them.

Under Section 63 of the Information and Communication Technology Act 2006 which deals with cyber crimes, the disclosure and confidential and private material is considered a crime with a maximum punishment of two years' imprisonment and a fine of Tk. 2 lakh. According to Advocate Chanchal Mukherjee, this is the closest we have to a law which could be applied to such crimes, as the Penal Code 1860 includes punishment for producing and distributing obscene material only in print form, such as books and newspapers. However, says Mukherjee, because these recordings were a form of deception, the crimes could also be prosecuted under the laws for cheating (under Penal Code Section 117), fraud (Section 463), etc. It can also fall under defamation, as, on top of the crime of rape, distribution of the footage also causes public humiliation, says Mukherjee.

In our country, laws on rape are found under Section 9 of the Nari o Shishu Nirjaton Daman Ain 2000. While the provisions, originally found in Section 375 of the Penal Code are no longer commonly used, they are still consulted for definitions of what constitutes rape. These put together, a child is defined as a person up to the age of 16, and both consensual and coercive sexual intercourse, with a person under the age of 16, is legally considered to be rape. Thus, even in cases where perpetrators claim to have had consensual sex with their victims, if the latter is a minor, the crime is one of rape.

While there are ample laws regarding rape, the key is their implementation. Women hesitate to report rape not only because they are stigmatised but also because they rarely get justice. Rape crisis centres could provide victims with immediate psychological, medical and legal help. Delays in the legal process make rape cases difficult to prosecute and allow time for compromise. Politically and otherwise influential people take advantage of this, aiding the perpetrators to get away. Legal officials, human rights organisations and the media must make people aware of the fact that rape cases cannot be solved through arbitrations which favour the rapists. The case must be tried in court and victims must stand by their allegations. In order for this to happen, however, they have to be given protection from their perpetrators. In a society where the victims of rape are shamed and the rapists get away with impunity, exemplary punishment must be awarded and the message made clear that crimes against women, regardless of the social position of the victims and perpetrators, will not be tolerated.





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