The myths regarding rape and the shortcomings in our laws

According to Ain o Salish Kendra, 975 women were raped in Bangladesh between January and September this year. While the numbers are alarmingly high, various rights group have claimed that the actual figures are even higher since rape go unreported due to the social stigma attached to it.

More often than not, it is the victim who is vilified publicly and considered fully or partially responsible for "inciting rape". Such practice is widely known as "victim-blaming". Some common myths that people tend to use to justify rape include, "men become helpless once aroused" or "women provoke men by wearing revealing clothes".

A survey conducted by The Independent on a sample of 1,104 UK adults, revealed that 55 percent males and 44 percent females believed that there is a positive correlation between a woman's revealing clothes and the probability of her facing sexual harassment. Therefore, regardless of the social and economic status of the populous, the myth is prevalent.

Countless researches cumulatively debunked such myths. As such, there is no correlation between a woman's clothes/moral character and rape.

Rape occurs solely because of the twisted process of thinking of the perpetrator. For example, research conducted by Dr Bows at Durham University concluded that rape is not about what the victim is wearing or the biological desires of the offender. Rather, it is about oppression and the yearning to control women through physical dominance.

Thus, most cases of sexual harassment occur within the household of the victim. Hence, the victim-blaming ethos of the society propagates such myths to keep its image of "honour" intact.

It assumes that dishonourable people are victims of dishonour that they perpetuated, relinquishing the condemnation of the true criminals.

Besides, as per scholar Beverly A McPhail, rape takes place based on numerous motives, including, sexual gratification, revenge, recreation, power, and attempts to achieve or perform masculinity.

The key reason behind the rise in rape in Bangladesh is deeply rooted in the patriarchal mindset of our society, where men from a young age are raised to feel "entitled" and women as inferior to men.

A 2013 UN survey of 10,000 men in Asia-Pacific found "over 80 percent of men who admitted to rape in rural Bangladesh was motivated due to the belief that men have a right to have sex with women regardless of consent".

The current law governing rape in Bangladesh is the colonial section 375 of the Penal Code 1860. It is heavily flawed and backwards in today's context. It excludes male, transgender and intersex victims since rape is defined as "committed by a man against a female" and it also excuses marital rape if the wife is not under the age of thirteen.

The law further states "penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.", however, it does not define "penetration". Similarly, the law also does not define what amounts to "consent".

Another archaic law, that is, section 155(4) of the Evidence Act 1872 allows defence lawyer in a rape case to prove that the complainant is "immoral" and is often blatantly used to justify rape by presuming consent and questioning the complainant about their clothes and sexual history.

It is high time that rape laws are reformed, and these outdated and unfair laws are set aside so that rape survivors do not feel discouraged to take legal action against the offender.

In response to nationwide protests against recent gang rapes, the Government has decided to introduce the death penalty as the highest form of punishment for rape.

The proponents argue that the death penalty should be the sole penalty for rape, even if the victim is not murdered as amending laws to follow such a strict regime would help to create awareness among potential rapists.

It is necessary to have fear towards the breach of the law because it is deemed necessary for prevention.

However, there is no conclusive evidence to show that the death penalty is an effective deterrent to reduce rapes. Capital punishment for gang rapes and death resulting from rape already exist under the Women and Child Repression Prevention Act, 2000. Regardless of this, gang rapes have sharply risen in 2020.

Likewise, in response to the 2012 Delhi Nirbhaya case, the Indian Government announced the death penalty would be applicable in cases of death resulting from rape. However, this did not lead to a decrease in rape rates, and similar incidents of violent rapes continue to occur in India to this day.

Importantly, various rights groups and scholars have argued that introducing death penalty will increase the likelihood of rapist murdering the victim after rape so that the rapist cannot be identified. Additionally, it may lead to a decrease in reporting since, in most rape cases, the rapist is an acquaintance, friend or family member of the victim. Hence the death penalty will further burden rape survivors with the thought of sending them to their death. 

According to a report by Odhikar, a Human Rights NGO, on statistics of the death penalty in Bangladesh between 2010-2019, a total of 2068 convicts were sentenced to death, and only 30 were executed. The death penalty will not be effective in reducing rape, given the current circumstance of Bangladesh's criminal justice system where cases drag on for years, and conviction rates are alarmingly low.

In Bangladesh, using sexual violence to subdue women and children has become a part of our cultural and social norm. Therefore, it will not be easy to prevent rape and other forms of sexual violence and will take years of work before any real change is visible. The logical response to eradicate the crime should not be to impose tougher punishments for rape but to systematically change the prevailing misogynistic mindset of the masses, reform the colonial rape laws, and amelioration of the criminal justice system.

[This is the first part of a broad article that we have written on this issue. In the second part, several possible approaches would be put forward that, in our view, can play a crucial role in preventing a rape or ensuring justice for the survivors of rape]

Authors:

Maisha Zaman is a final year student of University of London.

Nabil Hazzaz is an accredited international civil commercial mediator.

Rawnak Tahnia is a marketing enthusiast who is doing a double major on Marketing and Supply Chain from Brac Business School.

Arafat Reza is employed as a Teaching Assistant at the LCLS (South).