The medical report in the Raintree rape case ignored a High Court order and ministry instructions on not mentioning the "previous experience of sexual intercourse" of the victims.
Besides, the court in its observation during the delivery of the verdict in the case also cited the part from the medical report, which the HC ordered to be dropped, terming it "disrespectful".
Legal experts say preparing the medical report by ignoring the HC order is a "punishable offense", and the observation of the court mentioning the "disrespectful words" is "illegal".
Advocate Salma Ali, president of Bangladesh National Women Lawyers' Association (BNWLA), said an HC order or instruction is a law as per the constitution. Any defiance will be considered as contempt of court and of the constitution. The doctor may face punishment if the HC is informed about the defiance.
Referring to the HC order on the rape case medical report, the lawyer said the Women and Children Repression Prevention Tribunals must ensure that no lawyer asks any degrading questions of rape victims which are not necessary to ascertain any information of rape.
"Even after such an HC order, I do not understand how the judge herself uttered the disgraceful words in the observation to justify the acquittal of all the accused," Salma Ali wondered.
While responding to a writ, the HC in 2018 issued an eight-point instruction, including the point that "physicians shall issue medical certificates about examination of rape, but they shall not use the degrading word 'habituated to sexual intercourse' and shall not ask any questions of her [the victim's] previous sexual experience."
Upon the instruction, the health ministry in 2019 issued a circular asking physicians to abide by the HC order.
But in the verdict in the Raintree rape case on 11 November, Judge Mosammat Kamrunnahar in the observation said, "The forensic report suggests there was no evidence of forcible sexual intercourse. Even the report states 'habituated to sexual intercourse'. Even after that, I do not understand how the charge sheet was submitted accusing the five individuals."
"That judge [Mosammat Kamrunnahar] violated the remarkable HC order in a sensational case thanks to lax control and monitoring of the lower courts by the judiciary," eminent jurist Shahdeen Malik told The Business Standard.
He said it is shameful for the entire nation as the court itself raises questions about the character of the litigants in a bid to minimise the offense committed, and eventually deprives victims of justice. It will set a bad precedent that is likely to threaten justice for rape victims in future.
In May 2017, a university student filed a rape case with Dhaka's Banani police station against five individuals, including Safat Ahmed, son of Apan Jewellers owner Dildar Ahmed.
According to the case, the accused detained the plaintiff and her friend in Dhaka's upscale Raintree Hotel and raped and assaulted the two women. The case caused a stir on social media, adding a louder voice to anti-rape movements both online and offline across the county.
A medical board on 3 June that year submitted the forensic report of the rape victims to police.
Sohel Mahmud, head of the medical board for the forensic tests of the two university students, said the medical examination had been conducted 40 days after the incident. And the medical report mentions that no semen was found in the DNA profiling.
The forensic certificate mentioned separately for the two victims that "she has knowledge of sexual intercourse", The Business Standard has seen the report.
"But that does not mean anything disgraceful to them," argued Sohel Mahmud. Asked whether the part is mandatory for the report, he said, "Not mandatory, but it has been mentioned for a long time as a tradition."
Barrister Sara Hossain, honorary executive director of Bangladesh Legal Aid and Services Trust (BLAST) told the TBS that the medical report resorted to deception as it stated "she has knowledge of sexual intercourse".
"In fact, both 'habituated to sexual intercourse' and 'has knowledge of sexual intercourse' are the same," said Sara Hossain.
She said the HC order not only prohibited the 'habituated to sexual intercourse' part but also mentioned that the victim must not be questioned about her previous sexual experience.
"The medical report violated the HC order," noted the lawyer.
Tribunal did not pay heed to HC earlier too
The Raintree case plaintiff's lawyer Faruk Ahmed and the tribunal's public prosecutor Farhana Ahmed Orange said they had raised objections about the "disgraceful words" in the medical report when it was submitted to the tribunal.
Orange said the HC came up with the landmark judgment amid the tribunal's recording of witnesses, and they informed the tribunal about the HC updates.
"Even an application was filed seeking rectification of the report, but the tribunal did not take cognisance of the matter," Orange noted. She believes if the tribunal had wanted, the disrespectful medical report could have been corrected.
Cashing in on the medical report, lawyer Faruk Ahmed said the defence lawyer repeatedly raised questions about the character of the two victims. Even at one stage of the argument, the victims were referred to as "prostitutes".
Lawyer Faruk said the tribunal did not bar the defence lawyers from using such "disrespectful and disgracing words".
But defence lawyer Kazi Najibullah Hiru said no questions were raised about the character of the two university students. "Rather, we maintained the medical report findings for the argument."
He said that the two women are not really the "victims"; it was rather that five "innocent" individuals have been made "victims with a false case".
Law Minister Anisul Haque told TBS that partial action had been taken against the judge for making the illegal observations. All the observations of that judge would be scrutinised for further action.
"Besides, steps will also be taken after discussing with the Chief Justice so that judges remain more cautious while dealing with such cases," noted the minister.
BNWLA President Advocate Salma Ali mentioned that expressions such as "habituated to sexual intercourse" in medical reports even after the HC order are quite frequent.
She said there have been at least 50 cases in the last three years where the forensic reports had noted "habituated to sexual intercourse".
For instance, a married woman was raped in Faridpur in September last year. BNWLA assisted the plaintiff in the legal battle.
In that case, the medical report mentioned "habituated to sexual intercourse". The matter was brought to the notice of the tribunal, but to no avail.
Salma Ali said the matter will be brought to the notice of the HC.
A Chattogram tribunal announced the verdict in a rape case in June this year. In that verdict, the court mentioned that the teenage victim was "habituated to sexual intercourse", which was also in the medical report. The court acquitted both the accused in the case.
Salma Ali said an appeal has been filed with the HC challenging the Chattogram court order.