Admissibility of Complainant’s Character in Rape Trials: The Injustice
Afshana Akter Tuly ।। Imagine being the culprit and the victim at the same time. The one who suffers a loss is also responsible for the act causing it. This has been happening to women since who knows when. Though every research work done on criminality comparison rate between male and female invariably confirms a higher male representation in crime than that of women, the liability of a single female offender tends to fall on every person bearing the identity of ‘the gentle sex’. Not only do they bear the liability of their sex, but also for the crimes committed against them. A rape victim suffers more social and moral abandonment than the offender himself. The last resort, the legal remedies also in many cases fail to protect the victims as they are loaded with many inhuman and disrespectful provisions occasioning failure of justice.
The practice of relying on victim’s character evidence in rape trials has always been bad since it focuses on moral values than legal principles. The stereotype of the real rape victim involves a cautious woman who wears what she is supposed to wear, stays where she is supposed to be – in a good neighborhood at a reasonable hour. The more society blames the victim for her past tendencies or sexual behavior, the less she is likely to be believed. When such non-belief vitiates a proceeding, the victims become discouraged to come forward and report cases. Even if they do, there is likelihood that their allegations would not be believed to be true. A person consenting to intercourse with a particular person in a particular situation may not be willing to do so even in the similar situation with the same person. Previous consent doesn’t amount to continuous compliance. There is abundant evidence from psychology experiments which indicates how various rape myths and other sexist stereotypes play a vital role in determining whether and how much the victim is to be held responsible. Instead of acknowledging that women are in danger, society looks for psychological comfort by denying the problem and prefer victim blaming.[i]
Even if past tendencies of victim’s character are marginally relevant, admissibility of them are still objectionable as there is a probability that it’s probative value can substantially be outweighed by existing prejudice. Essentially a weak circumstantial argument may be considered predicting a person’s behavior. When bodily integrity is in question , it is doubtful as to whether a person’s behavior in a particular situation may be predicted based on her previous deeds. There is also a likelihood that the focus may shift from facts to the proof of complainant’s character.[ii] For people to address rape, they have to consider it for what it is. It is still crime, no matter what she wears, where she was or what kind of relationship she’d had before.
In response to movements against poor treatment of rape victims, reforms have been made in legislations in various countries where Rape Shield Laws have been introduced. Although legislations may differ considering relevant factors present in a particular state, Rape Shield Laws are predominantly contemplated to limit the availability of victim’s private life information that may crowd a rape trial unreasonably. It is based on logic, humanity and necessity recognizing that what a woman has done in the past in her sex life has got nothing to determine whether she has given her consent in a particular situation. Withholding information about a victim’s character and sexual history, Rape Shield promotes rape prosecution and prevents the court from relying on the rape myths.
The procedure of rape trial in Bangladesh has not been updated in consonance with the need of present time. The definition of rape is not amended. 160 years old definition given in section 375 of the Penal Code of 1860 is still followed. Section 155(4) of the Evidence Act of 1872 allows the defence to show that the victim is of immoral character and by proving that he can survive the rape complaint. A victim is often unwelcome and discouraged to prosecute rape due to this disrespectful provision. In reality, whenever a victim comes forward to stand trial, she has to go through the same horrible experience again and again, due to the existing procedural loopholes. The defence repeatedly brings her sex life to public and irrelevant and distracting information influence the conviction. Examples may be given to show how this unjust law deprives rape victims of justice. In Abdul Majid vs. State[iii], a divorced mother complained of being raped while she was sleeping in her house at night with her child. When the rapist was trying to escape, the villagers caught him and he confessed the crime.The trial court found the accused guilty of rape and senteneced him to life imprisonment. But on appeal to the High Court Division, he was acquitted as the court considering her marital status and chracteristics of sexual relations held that non-production of independent material witnesses gave support to the defence case that the woman was of loose moral character and was involved in immoral and anti- social activities. In Uzzal alias Hossain vs. State[iv] four men were accused of gang raping a teenage girl and photographing the incident. The girl’s father went to the house of the accused to beg for the return of the photographs but was threatened that his daughter’s ‘obscene photographs would be pasted at all the street corners’[v] if he took any legal action. They also suggested that the girl was of immoral character. The girl committed suicide by ingesting poison which her family alleged resulted from the men’s refusal to return the photographs. The trial court convicted the men under section 9(2) of the Nari O Shishu Nirjatan Daman Ain 2000 which deals with rape causing death. However, the High Court Division modified the conviction to one of section 9(1) finding that there was no causal link of the suicide to the rape. This case illustrates how a woman is harassed due to character admission socially and also in judicial proceeding. In Al Amin vs. State[vi] Justice A K Badrul Huq warned against the misuse of character evidence in cross examination which might dishonor the victim. He also highlighted that a woman subjected to sexual assault is not an accomplice to the crime but a victim and it is not desirable that she would be treated with suspicion.
However, it’s a major step towards bringing a change to the existing legal dilemmas and backlogs that the Government has initiated proceedings to amend the provision permitting the production of character evidence in rape trials which can hopefully be presented to the parliament in upcoming September. Many humanitarian and human rights organizations, who have been vocalizing for the change for a long time have already appreciated the decision.
Our criminal justice system is already burdened with so many anomalies that a large number of rape cases go unreported. Yet newspapers are abundant with headlines of rape incidents. If the laws discouraging victims from proceeding against the perpetrator still exist and the rapists have opportunity to escape the consequences, it will only worsen the situation. With a view to ensuring favorable environment for women who seek help from the criminal justice system, such disgraceful provision must be repealed. There is no alternative to Rape Shield Law and it shall be introduced without any further delay.
[i] Avivia Orenstein, No Bad Man!: A Feminist Analysis of Character Evidence in Rape Trials.
[ii] ibid
[iii] 13 BLC (HCD) (2008) 53
[iv] 59 DLR (HCD) (2007) 505
[v] ibid
[vi] 19 BLD (HCD) (1999) 307
(The views and opinions expressed by the writers are those of their own and do not necessarily reflect the views and opinions of Feminist Factor)
