Redefine ‘rape’ in Bangladesh Penal Code to protect hijra and transgender rape victims

Transgender is a blanket provided to those whose gender identity is different from the sex registered to them. The existence of hijra and transgender is not an alien concept in Bangladesh but after a long battle, in 2013, the government of Bangladesh recognised hijra and transgender persons as "Hijra lingya" – which refers to gender and sex both in Bangla. 

Though it is unclear from the government if they are identifying hijra as sex or gender, it is better to say that at least they have achieved the equal status of a person under the Constitution of Bangladesh. 

Even after having constitutional equality, hijra and transgender people are routinely victims of sexual offences. According to Bandhu's baseline Survey on Human Rights 2015, "42.2% of gender diverse population faced rape and 26.1% people faced gang rape. And in most cases, victims are not willing to file complaints at the police station in fear of facing more harassment".

Section 375 of the Bangladesh Penal Code defines rape to be done only by one notion 'man' to another notion 'woman' – which establishes that it has to be a penile-vaginal violation to be considered rape. This toxic masculine definition of rape from British Colonial times left no room to consider rape against a hijra and transgender person. Section 375 is so presumptive that it identified females as the only victim of rape, neglecting other genders.

Section 377 of the Bangladesh Penal Code states "Voluntary carnal intercourse against the order of nature" and explains penetration is sufficient to constitute carnal intercourse. This provision is very discriminatory and ambiguous by nature. This section used the term, 'whoever' which means the perpetrator can be any person beyond their gender identity. So, a hijra or a transgender person can be a perpetrator but not a victim as the provision specified victims as any man, woman or animal. 

On the other hand, the core material fact of section 375 is the 'will' and the 'consent' of the victim which is completely immaterial under section 377 as it doesn't mention anything about the consent of the victim.

Section 9 of the Nari-o-Shishu Nirjatan Daman Ain (Women and Children Repression Prevention Act) 2000 refers to rape as being committed against women and children. This section also specifies rape committed against a woman without marriage whose age is below 16, in which case the sexual activity has been done without the consent of the woman. This Act, which is considered a specialised law, also leaves no space to identify rape against hijra or transgender people.

According to the laws of Bangladesh, a hijra or transgender cannot be raped at all - they can only be 'sodomised.' Because hijra or transgender people are categorised as 'other' gender, that is not women, and the core requirement of 'penile-vaginal penetration' to consider rape is not fulfilled. 

On the other hand, Section 377 neither categorised hijra or transgender persons as victims nor mentioned anything about non-consensual or forceful sex to consider rape. Section 377 only criminalised carnal intercourse. Though Section 377 is not a rape law, it seems this section is not gender specific like 375 and it leaves space for non-female sexual offence victims. 

However according to the Universal Periodic Report, 2018, "no cases have been filed yet under this section." Section 377 is itself procedurally ill-equipped to deal with forms of sexual offence as the section finds the offence more material rather than the will or consent of the victim.

The gender-specific definition of rape and the existence of section 377 is vitiated by Articles 27, 28, 31 and 32 of the Constitution of Bangladesh where the State is bound to treat every citizen equally without any discrimination, and every citizen has the right to protect their life and personal liberty by law. 

Article 7 of the Universal Declaration of Human Rights (UDHR) states that "all are equal before the law and no one will be discriminated against under the protection law." The principle of human rights jurisprudence might hold the State responsible for ensuring equal protection under the law.

Rape or sexual assault is a heinous human rights violation. The government recognised hijra and transgender people but didn't enact any specific law to get them justice on the matter of sexual assault. So this definition of rape needs to be reformed and section 377 needs to be removed. 

Though the High Court of Bangladesh has raised questions on the legality of the gender-biased rape definition, it has not been reformed yet. When transgender or hijra people are not in the discussion of section 375, it becomes a dangerous law that can deny justice, liberty, the right to life and equality.

Suparna Roy is the Officer-Legal Support at Bandhu Social Welfare Society.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.