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Violence against Women: About Shifting the Burden of Proof and
Ensuring Perpetrators' Punishment

The perpetrators -- and not victims -- of crime should be the ones held liable, argue
SHEIKH HAFIZUR RAHMAN and FARHANA HELAL MEHTAB

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Before the beginning of the Shahbag uprising and its spread in the whole of Bangladesh we have witnessed brutal, cruel and inhuman violence against women one after another. Starting from the case of Damini, who was brutally violated in a bus in New Delhi and succumbed to death, we have seen how girls have been subjected to violence in different places of this sub-continent, including Bangladesh and India. We are outraged to see how brutally acid is thrown on the faces and bodies of girls, how girls are violated and how girls are encountering violence in its severest forms and intensity. Our society is still very patriarchal and not sufficiently sympathetic to women. Though women have emerged as breadwinner, though they are taking part in policy-making in different sectors, though their participation in economic and development activities have erected a strong foundation for a prospective Bangladesh, we have miserably failed to ensure their security and dignity.

In most of the cases we finally cannot ensure justice for the girls who have encountered different types of physical violence and mental torment. Particularly, in rape cases most of the perpetrators stay beyond the reach of punishment. The accusatorial criminal justice system, together with the patriarchal psyche, has created huge harassment for the victims. It is said that a girl is first raped physically, she is raped a second time in court by the male advocates and for the third time she is raped by society. Apprehending the unbearable harassment and social stigma, many girls commit suicide. Instead of ensuring exemplary punishment for the perpetrators our society subjects the victims to huge harassment and social humiliation. Our society is so brutal and inhuman to a girl who becomes a victim of acid-violence, rape, sexual harassment or 'eve-teasing' or any other 'girl-related-offence' that they find it very juicy. They start finding fault with the girl and raising questions -- what was the problem with the girl? Why has she been a victim of this offence, why not thousand others? Probably 'she has instigated the man', or 'she had developed some affair with the man and became victim and she deserved it', or 'she should be decent and controlled in her behaviour, gesture, posture' etc. Matza and Sykes, interestingly, have listed five justifications or excuses which may be used by the delinquents to neutralise their criminal acts. One such justification is that criminals may assert that the victim deserves the injury. In sex crimes this type of justification is extensively used: 'She was asking for it, because of the way she was dressed'. (David Matza, Delinquency and Drift, John Wiley and Sons, New York, 1964) Unfortunately, many social people, both male and female, are devoured by the criminal psyche as we see the same criminal justifications are used by them to explain criminal behaviour when any girl becomes victim of an offence.

In the case of 'eve-teasing', acid-throwing or rape or any other like-offence, the perpetrators should immediately be arrested and kept within the iron walls. They should be given exemplary punishment (preferably death penalty in case of rape or acid-throwing) within a time-span of two to three months. That means police investigation into the alleged offence, giving police report, trial of the accused and awarding exemplary punishment -- all these must be done within two to three months. But unfortunately, police do not arrest the alleged offenders when they use power and money to evade arrest. There are allegations that when any rape victim goes to any police station either the concerned police officer does not put due importance on the case or he makes the case weak (remember that the police officer is part of patriarchy). There are allegations that sometimes police officers, in collusion with the malefactors, cook up the case and make the victim out to be a 'prostitute' or sex worker. Even in cases when the perpetrators are arrested, charge-sheeted and put to trial, it may not be possible to subject the alleged offender to exemplary punishment due to: (i) lack of evidence as 'alamats' of rape have not been duly preserved; and (ii) burden of proof as under the accusatorial criminal justice system the victim (and prosecution) have to prove that the crime has been committed by the alleged offender/offenders beyond any reasonable doubt.

Under the existing system, one of the cardinal principles of criminal justice is that the alleged offence must be proved to have been committed beyond any reasonable doubt. The age-old principle reads: “No innocent person be convicted, let hundreds guilty be acquitted”. (Smith and Hogan, Criminal Law, Oxford University Press, 2008) But there is a recent shift of this principle which the learned Judges of the International Crimes Tribunal-2 have mentioned in their recent judgment in the case of Quader Molla. Referring to the Indian Supreme Court the learned Tribunal Judges said that “A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.” Welcoming the recent shift of the principle we have to say that the development of the new principle is in its formative stage. The lower echelon of the criminal courts, which usually award prescribed punishment to the offenders, is still predominantly regulated by the principle that the alleged offence must be proved by the prosecution beyond any reasonable doubt and the burden of proof lies with the prosecution or the person who makes the allegation, meaning the victim of rape or acid violence. The judges are regulated by the principle that “No innocent person be convicted, let hundreds guilty be acquitted”. Taking advantage of this principle the 'money-greedy' lawyers usually create some 'confusion' or find out some 'anomalies' in the case which ultimately facilitates the release of the malefactors. But it is the police officers and public prosecutors who are mainly responsible for not ensuring exemplary punishment to the rapists or offenders committing barbaric acts of violence against women.

In Bangladesh, on average the conviction rate is not more than 15-20%. In Japan, the conviction rate is 99.7%, in USA 88%, in UK 81%, in neighbouring India it is 41.7%. The 15-20% conviction rate of Bangladesh indicates that criminal courts are not able to award punishment in 80-85% criminal cases. Weak police investigation or incorrect police report and failure of the public prosecutors and police officers to present a criminal case strongly before a criminal court are causes of this low conviction rate. Release of 80-85% perpetrators encourages the commission of crime on the one hand, and indicates the inefficacy of the existing criminal justice system providing justifications for the RAB to commit extra-judicial killing. These writers firmly believe that the public prosecutors' and polices' sincere effort and firm action can ensure punishment of the culprits in 80% criminal cases. For achieving that goal, police officers have to put sincere effort into the investigation and submit charge-sheet implicating the real offenders and the public prosecutors should be efficient, professionally sound and committed to ensure punishment for the real culprits. These writers highly recommend the immediate stoppage of the appointment of the public prosecutors on political consideration and expect the implementation of the already initiated move to recruit the public prosecutors by the Public Service Commission (PSC) from among the law graduates of Dhaka University, Chittagong University, Rajshahi University and other recognised public and private universities.

Considering their severity, inhumanity and cruelty, we cannot but mention some recent cases where women have been violated. When Damini breathed her last we felt very bad and we saw deep darkness in the society. Can you imagine the degree of barbarity and cruelty committed against a girl for which she had started screaming simply upon seeing a man? (We are talking about the girl from Tangail). We feared that the whole edifice of human civilisation might be broken down any time when we heard that a six-year-old-girl was raped and strangled to death by some Rais Uddin, though the girl probably did not even understand the meaning of rape.

The most unfortunate thing in rape cases is that the burden of proof lies with the victim. The victim has to prove how she was raped, when and by whom she was brutally violated. Burden of proof and age-old principle of criminal justice have been creating unbearable harassment and humiliation for the rape victim. Under the existing system the rape victim has to preserve the 'alamats', to be interviewed by the police officers again and again (dying Damini had to describe the incident of her rape to the police officer 10 times), to be examined by the doctors, to present her case in the trial and to be cross-examined (indecently) by the male advocates. To avoid the harassment and humiliation some rape victims commit suicide and some become mentally abnormal because of the procedure they have to undergo to prove their case for the punishment of the culprits. It is high time, we think, to consider change. Once any man has been alleged to have violated any girl he will be primarily presumed to be guilty and it will be non-bailable offence. The alleged man has to prove that he is innocent. It is to be mentioned that some civil law countries like France and Italy follow this principle.

In the context of rape incidents becoming endemic and criminal justice system's inefficacy to ensure exemplary punishment for the perpetrators, we propose the following recommendations to be taken into consideration by the policy-makers, women and people in general:

I. From now on the alleged offender in a rape case has to prove that he is innocent. The policy-makers have to take proper measures for amendment of the principle and criminal law.

II. Rape victim centres should be established in every thana complex comprising doctors, psychiatrists, female police officers, social welfare officers with logistics and necessary support system.

III. The women travelling early in the morning and night for going to their working place or for study or other necessary purposes should keep a rape-kit which will help them in identifying and punishing the perpetrators if they become victims.

IV. Some necessary 'biological-education' should be given to the girls and boys in schools so that they can understand probable physiological consequence of any such incident.

V. Special training programmes should be arranged for the police officers, public prosecutors, doctors, judicial officers and social welfare officers to create motivation among them to work sincerely and speedily in rape cases which will ensure exemplary punishment of the perpetrators.

There are some tests by which we can measure the standard of civilisation of a nation. One such unfailing test is that whether the women, children, old people and other vulnerable segments of society are respected and well-protected in a society. How can we claim civilised the way the women are treated in our society and the way thousands of women are subjected to cruel and inhuman physical torture and mental torment? Lastly, we propose to activate the social institutions and embed strong values into the mindsets of children in order to make them protectors of women's rights. Society will get very positive outcomes if it makes sure that every child learns to respect women from their family and at all levels -- in schools, colleges and universities -- it ensures free and healthy interaction among the boys and girls.

Sheikh Hafizur Rahman is Associate Professor of Law, Dhaka University and a criminology researcher.
Farhana Helal Mehtab is Associate Professor of Law and Departmental Head, Daffodils International University and a human rights researcher.
The writers can be reached at hrkarzon@yahoo.com.