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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 57
February 23 , 2008

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Human Rights advocacy

Children born of rape are deprived of their rights

Snigdha Madhuri
Photo: Star

Soheli Akhter of Manikganj curses herself for what happened to her in the last few years. She was married off in 1999, but her husband divorced her within three months to marry another woman. Six months later she met the worst thing that could happen.

Soheli (Not her real name) was raped by two goons at her neighbour's residence. She kept the dreadful incident secret as the rapists of the same village threatened to kill her. But that did not remain secret as Soheli became pregnant.

Soheli's father arranged an arbitration meeting, but the rapists flatly denied raping Soheli. On March 28, 2008, She gave birth to a lovely baby girl.

Soheli then filed a case with the Women and Children Repression Prevention Tribunal seeking justice and maintenance for the child. As happens always, the allegation of rape could not be proved for lack of evidence. The court acquitted the accused, leaving the child's maintenance issue unresolved.

There is nothing unique in the case of Soheli. Many rapists in Bangladesh go unpunished, as the crime they commit cannot be proved for lack of evidence and legal complications, and the children born of rape are deprived of their rights to maintenance.

Provisions 13(1) (C,D) and 13 (3) of the Women and Children Repression Prevention (amendment) Act, 2003 deal with the issue of children born of rape.

These provisions say that the responsibility of providing maintenance of a child born of rape goes to the state and it will bear the expenses of the child until s/he reaches 21. In case of a female over 21, the state will keep on providing maintenance until her marriage while for a disabled child until s/he is capable of doing so.

Under the law, the government can realise the maintenance cost from the rapist. If it is not possible to realise the money from the existing property of the rapist, it can be realised from the property the rapist will possess in the future.

“Although the law mentions these matters, it is hardly enforced,” says Farida Yasmin, deputy director of Bangladesh Legal Aid and Services Trust (BLAST).

Asked why this law is not being enforced, Farida says, “The law itself is full of lapses. It says the victim has to prove the rape allegation and eyewitnesses are required to prove rape. In most cases, it is not possible for the victims to prove the rape allegations.”

Farida says, “Even if the rape allegations are not proved due to lack of eyewitnesses, the court can order DNA test. For that the criminal law will have to be amended to include DNA testing. If it can be done, criminals will be easily identified.”

Bangladesh Mohila Parishad general secretary Ayesha Khanam is also in favour of making DNA test compulsory to identify criminals. According to her, lack of transparency, accountability and independence of the judiciary, gender insensitiveness of lawyers and lack of positive attitude towards women are the reasons behind the non-enforcement of the law.

Lawyer Anisur Rahman, also a teacher of Stamford University of Dhaka, says, “As per the criminal law, the victim has to prove the rape allegation, which is very hard indeed.”

For the effective enforcement of the Women and Children Repression Prevention (amended) Act, 2003, he emphasises the issues listed below:

* Not only the maintenance, the child born of rape will have to be made heir to the property of the father amending the law

* In a rape case, the onus of proof may be shifted to the accused. As a result, the accused will have to prove that he has not raped

* The lawyers will have to be more efficient, conscious and gender sensitive

* Everyone involved in the process of trial, including judges, lawyers, bench officials and peons will have to be gender sensitive shedding chauvinism

There may be separate courts to deal with rape cases.

Lawyer Salma Jabin, who is the coordinator of the litigation unit of Ain O Shalish Kendra, says: “There are three cases with us about children born of rape. Two of the cases are under trial, while verdict has been pronounced in the remaining one.”

But, the verdict has not gone in favour of the victim and Salma Jabin blames traditional pro-male perception and legal complications for this.

Farida Yasmin of BLAST says eminent lawyers and the civil society have recently requested the human rights organisations to come up to provide the cost of DNA test for identifying rapists. They also emphasise reduction of the cost of DNA test and extension of DNA profiling laboratory facilities across the country.

About the effectiveness of the DNA test, Yunus Ali, a scientific officer of National Forensic DNA Profiling Laboratory, says, “In many cases it's not possible to prove rape allegations for lack of evidence. So, DNA test is very important to identify criminals. The success rate of DNA test in identifying the father of a child is cent percent. He also strongly emphasises collection and preservation of exhibits for successful DNA tests.

-- News Network.


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