What is and isn't in the draft Evidence Act (Amendment)

She was only five and a half years old. Her mother is a house help and a gatekeeper of one such house raped her daughter in 2019. Since then, the child had to tell her ordeal at various stages of the case including police station and court. Even a woman constable asked, "Why did the child go to the gatekeeper? Perhaps, she is a bit close to men. The child is beautiful and if a man finds her alone he would do so. Why didn't the mother keep a watch on her?

This is the statement of a relative of the child, who became a victim of rape. According to a recently released research report titled ‘Impact of easy accessibility of pornography and its relevance with violence against women and girls in Bangladesh’, 53 per cent of respondents think girls or women who were raped or sexually harassed have something to be blamed too.

Non-government organisation D-net carried out the research across the country under Manusher Jonno Foundation (MJF)’s violence against women prevention programme.

Perception found in the research has a sort of legal validity and such has been the practice at court as per several sections of 1872 Evidence Act. Legal counsellors of the defendants harass the rape victims taking advantage of this old law.

Defence’s counsel questions the character and the past life of a woman, who becomes victim of rape, at a packed courtroom. The counsel wants to prove that she met such tragedy because she is not woman of a good character. And in case, the rape victim is a girl, defence’s counsel then lunches all-out effort to prove that the child sustains injuries in her private parts while playing game or for another reasons. They then try to establish a relationship between the child’s mother and the accused rapist or make a story out of everything.

These are the remarks of Fahmid Akter, a lawyer of One-stop Crisis Center (OCC) of Dhaka Medical College Hospital. The centre provides various services including medical and legal services to women and children facing various forms of violence including rape.

Porthom Alo collected the primary information of 7,864 cases over six crimes including rapes, murder for rape, murder for dowry and provocation to suicide, that were tried at five special tribunals of Dhaka from 2002 to 2016. Following a long investigation, Prothom Alo published a report in 2018. The report said rape and sexual harassment complaints face endless hassle from police station to court in addition to public shame and repulsion. Rape complainants get utterly upset due to police station and court environment, attempt to prove her ‘characterless and medical examinations. They also have to face disbelief. No one comes to file a case unless she finds any alternative.

The High Court banned the so-called two-finger test and the indecent method to inspect the hymen of women who have been raped. In that 2018 verdict on two-finger test, the High Court ordered the judicial court to ensure so that the victim is asked no offensive question.

Women rights activists have long been demanding the repeal of the provisions of the law, which are disrespectful to women. At last, the cabinet approved the draft of "Evidence (Amendment) Act 2022" at its meeting on 14 March with prime minister Sheikh Hasina in the chair. The draft law states a decency must be maintained in questioning victims and the court would fix what sort of question would be asked. It also said digital evidence can also be produced in the case.

According to law ministry sources, the approved draft law repealed the section 155(4) of the Evidence Act. This certain provision states when a man is prosecuted for rape or an attempt to ravish, it may be shown that the female victim was of generally immoral character. That means question can be raised on the credibility of the deposition by a woman bringing a rape or a rape attempt allegation by proving her as a person of immoral character.

Section 146(3) of the Evidence Act allows raising questions on witness’s character to verify credibility. The draft of the Evidence Act states in case of rape no question can be raised on the victim’s character under this section.

Lawyers fighting legal battle for rape victims said if the draft law is passed and enacted, rape victims will then be saved from the harassment at the court.

Women and children repression prevention tribunal public prosecutor (PP) Ali Asgar said the amendment to the law can be considered a big achievement of women movement and the government deserves the credit too. Victim faced questions on whether she is a sex worker or how many times she got married even though there was no relation to rape. If the amendment is made, lawyers will no longer be allowed to ask questions other than the matter related to the case.

The word ‘habituated’ was written in medical test for rape, it has been revoked now. Two-finger test has also been abolished at the court directive. Male physicians can no longer run forensic test of the victim and this has been effective now. If anyone files an appeal or if the court takes into consideration, the court then can hold closed door hearing in rape case. The amendment is the result of these achievements. Now its success or failure depends on how much of it will be implemented after the draft law is enacted.

Bangladesh Legal Aid and Services Trust (BLAST) and Ain O Salish Kendra (ASK) and Naripakkho filed a writ at the High Court on 16 November seeking the cancellation of sections 155(4) and 146(3) of the Evidence Act.

BLAST honorary executive director Sara Hossain filed the writ petition on behalf these three organisations. The law ministry was made defendant in the petition. And, the draft of Evidence Act (Amendment) was approved following various process at the law ministry.

BLAST advisor and Supreme Court lawyer Md Tazul Islam said various activities of their alliance were organised for amending the provisions of the law including section 53 and 150 that allow raising questions on victim’s character.

*This report appeared in the print and online edition of Prothom Alo and has been rewritten in English by Hasanul Banna