Colonial definition of rape is a major loophole in rape case trials

The father of the child who was raped and brutally murdered in Pallabi speaks at a roundtable titled “Child Abuse in Bangladesh and the Way Forward” at the Shaheed Abu Sayeed Convention Centre in Dhaka on Saturday.File Photo

Bangladesh has developed a dangerous culture of collective distraction. Whenever a new crisis emerges, public attention immediately shifts, leaving previous issues unresolved and forgotten. One controversy overshadows another so quickly that serious national concerns disappear from public discourse before any meaningful action can be taken. Public outrage in Bangladesh has increasingly become temporary, emotional, and selective rather than sustained and reform-oriented.

Recently, widespread outrage over child rape incidents shifted national attention away from the measles vaccine debate. Before that, other pressing social and political issues similarly vanished from discussion as newer incidents dominated headlines and social media timelines. The father of a recent child rape and murder victim expressed this painful reality when he said that the public would speak about his daughter for perhaps fifteen days before eventually forgetting her, just as they had forgotten countless others. His statement was heartbreaking, but it also reflected the truth about how society responds to an issue on temporary basis.

The problem is not simply the existence of public outrage. The deeper problem is that outrage rarely translates into structural reform. Instead, the country moves from one sensational incident to another while the underlying causes remain untouched. As a result, horrific crimes continue to occur repeatedly, while victims and their families continue to suffer within a justice system that consistently fails them.

The statistics surrounding rape in Bangladesh are deeply alarming. In 2025 alone, the country recorded 7,068 documented rape cases, and nearly 70 per cent of the victims were girls under the age of eighteen. These numbers are horrifying enough on their own, but the justice statistics are even more disturbing. Only around 3 per cent of rape cases reportedly end with punishment, while nearly 70 per cent result in acquittal. These figures expose a severe crisis within the criminal justice system.

Moreover, these statistics only represent documented cases. A significant number of rape incidents remain unreported because victims fear social stigma, public humiliation, intimidation, and the emotional burden of lengthy legal proceedings. In many cases, survivors are blamed rather than supported. Families often choose silence over legal action because pursuing justice can itself become another form of punishment.

Even among those who seek justice, most fail to receive it. Imagine the trauma experienced by victims and their families after enduring years of legal battles, social harassment, repeated questioning, and public scrutiny, only to watch the accused eventually walk free. Such outcomes not only destroy confidence in the legal system but also send a dangerous message to offenders that accountability is unlikely. Certainly, false allegations may exist in some instances, as in any criminal offence, but it is impossible to believe that false accusations account for seventy per cent acquittals while only three per cent of accused offenders receive punishment.

One of the major reasons behind this alarming conviction gap lies within the legal definition of rape itself. Bangladesh continues to rely on a colonial-era definition that is outdated, narrow, and inadequate for addressing modern realities of sexual violence. This outdated framework has effectively become a protective shield for offenders because the legal threshold required to prove rape, remains extremely restrictive.

Although rape cases are prosecuted under the Women and Children Repression Prevention Act 2001, the Act itself does not define rape. Instead, courts continue to rely on Section 375 of the Penal Code of 1860. In other words, Bangladesh is still depending on a legal definition created more than 165 years ago during British colonial rule. While Bangladesh, India, and Pakistan all inherited the same Penal Code after partition, India has since taken significant steps to modernise its rape laws in response to changing social realities and increasing demands for justice.

The central weakness of Bangladesh’s colonial rape definition is its narrow understanding of penetration. The current law primarily requires proof of penile penetration during sexual intercourse against the victim’s will or without her consent. In practice, proving full penetration is often extremely difficult, especially in cases where forensic evidence is weak, delayed, or unavailable. This creates a major obstacle for prosecutors and frequently allows offenders to escape conviction.

By contrast, India substantially broadened its rape definition through amendments to Section 375 of the Indian Penal Code, particularly after the 2012 Delhi gang rape case that shocked the nation and triggered legal reforms. The Indian definition now recognises penetration “to any extent” and includes oral penetration, penetration with objects, penetration involving bodily manipulation, and other forms of sexual assault. This expanded definition reflects a more realistic understanding of sexual violence and significantly reduces loopholes that offenders previously exploited.

Bangladesh does not need another cycle of short-lived outrage followed by collective forgetfulness. It needs a justice system capable of protecting victims, punishing offenders, and restoring public confidence in the rule of law

Bangladesh’s rape law also suffers from another serious deficiency: it does not adequately define “consent” or “will.” This absence creates enormous room for manipulation during trials. Defence lawyers frequently attempt to portray rape as consensual intercourse and often raise irrelevant questions regarding the victim’s character, sexual history, or virginity status.

Such arguments not only humiliate survivors but also reinforce harmful social attitudes that blame victims rather than perpetrators.
India addressed this issue by incorporating a clearer legal understanding of consent within its rape law.

The Indian Penal Code defines consent as an “unequivocal voluntary agreement” communicated through words, gestures, or verbal and non-verbal communication. Importantly, it also clarifies that the absence of physical resistance does not automatically imply consent. These additions represent a far more victim-sensitive and modern legal approach. They recognise that fear, intimidation, trauma, or power imbalance may prevent a victim from physically resisting an assault.

Bangladesh urgently needs similar reforms. Merely demanding speedy trials or harsher punishments after high-profile incidents will not solve the problem. In fact, focusing only on a few sensational cases often distracts attention from broader institutional failures. Social media outrage may temporarily pressure authorities into action, but temporary reactions cannot substitute for long-term legal reform.

When seventy per cent of accused offenders are acquitted while only three percent receive punishment, the legal system unintentionally encourages impunity. Offenders begin to believe that the chances of facing consequences are minimal. A justice system that repeatedly fails victims does not simply deny justice in individual cases; it weakens public trust in the rule of law itself.

Therefore, Bangladesh must move beyond selective outrage and emotional reactions. The country must address the structural roots of the problem through comprehensive legal reform. A major amendment to the definition of rape has become absolutely essential. The law must expand the scope of rape, modernise the understanding of consent, eliminate colonial-era limitations, and prioritise victim protection within the judicial process.

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Without such reforms, sustainable change will remain impossible. Public outrage over individual cases may continue to generate temporary attention, hashtags, and media discussions, but none of these will meaningfully reduce sexual violence unless the legal framework itself changes. Bangladesh does not need another cycle of short-lived outrage followed by collective forgetfulness. It needs a justice system capable of protecting victims, punishing offenders, and restoring public confidence in the rule of law.

* Shakhawat Hossain is a lecturer of law at Canterbury Institute of Management, Sydney

* Nissat Hossain Aarshi is a job consultant at Atwork Australia