It could encourage perpetrators to hold back victims for 72 hours: Sultana Kamal

The Business Standard spoke with Sultana Kamal, the renowned human rights activist and founding president of the Manabadhikar Shongskriti Foundation, about her thoughts on the observations made by the judge in the Banani double rape case

On Thursday (11 November), Dhaka 7th Tribunal for Prevention of Women and Children Repression acquitted all five accused in the Banani double rape case (Safat Ahmed- son of Apan Jewellers owner Dildar Ahmed, Shadman Sakif and Nayeem Ashraf alias Halim, Billal Hossain and Rahmat Ali) due to lack of evidence. 

Judge Mosammat Kamrunnahar asked the police not to receive a case if a rape victim shows up at the police station more than 72 hours after the incident as "semen cannot be traced after 72 hours."

She also rebuked the investigation officer for submitting a "biased charge sheet" despite the fact that no evidence was found against the five accused, as well as for "wasting the court's 94 working days."

The medical report, the entire document, and 22 prosecution witnesses were found to be insufficient to prove the case, which was filed 38 days after the reported incident.

Furthermore, the two girls were said to be "partner to the sexual intercourse willfully because they willingly went to the party, danced, drank alcohol and swam in the pool," according to the judge.

As soon as the judgment was pronounced, it sparked a firestorm of controversy. The Business Standard spoke with Sultana Kamal, the renowned human rights activist and founding president of the Manabadhikar Shongskriti Foundation, about her thoughts on the observations made by the judge in this case.

TBS: Was it appropriate for the judge to ask the police not to take a case if a rape victim shows up at the police station after 72 hours of the incident?

Sultana Kamal: It is important to make it clear in the very beginning that I am not commenting on the judgment pronounced in this case by the Tribunal.

A judge is required to give his/her decision in a case based on the evidence presented in court. It's possible that the judge couldn't find the accused guilty based on the evidence so presented in this case. 

My opinion here is solely addressed to the observations she made while pronouncing the judgment.

With that being said, the first thing I'd like to point out is that while it has been medically established that semen cannot be traced after 72 hours, other technologies like DNA testing methods can be applied to aid the police or court in finding evidence of rape. 

It is beyond the honourable judge's jurisdiction to rule that the police should not receive a case after 72 hours. She has no power to give any direction. Direction can only be given by the High Court. 

This is a dangerous and reckless statement. This has elements to encourage perpetrators to look for ways to keep the victim from going to the police for 72 hours, increasing the risk of further harm being done to them and their family members.

It also ignores the fact that, in some cases, external barriers, such as the fear of being ostracised, criticised, or retaliated against, may deter victims/survivors from seeking legal protection in time.  

In this particular case, it was mainly because of the non-cooperation of the police that the complainants were not able to file the case within the 72 hours limit.

Although the police are not bound by this direction and are bound to legally take cases after 72 hours, it opens the door for more such crimes to be committed against women without fear of being brought to books.

The Code of Criminal Procedure, 1898 does not impose any limitation on filing cases against criminal offences. It makes me wonder how the honourable judge of the 7th Tribunal against women and children repression could set such a limitation. She has used her judicial power excessively here, which is not desirable at all.

TBS: What are your thoughts on the judge's observation that "the victims in this case were partner to the sexual intercourse"? 

SK: The honourable judge has called into question the character of the complainants. Section 155(4) of The Evidence Act, 1872 states that "when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character". 

However, in 2018, the two-finger test that was conducted to prove the offence of rape was abolished following a case brought by human rights activists under the leadership of Bangladesh Legal Aid and Services Trust (BLAST). 

In that case, it was also said that the history of the complainant can not be considered in such instances. No legislation to that effect has yet been passed by our legislators, so section 155(4) remains in effect.

But, very recently, our law minister has said that they have started the process of abolishing this law. In fact, Law Minister Anisul Huq informed BBC Bangla that the amendment bill will most likely be introduced in parliament in January. 

It is disappointing to see a judge bringing up the issue of past sexual experience of the rape victim/survivors while delivering her judgement.

TBS: Was the judge right in rebuking the investigation officer for conducting a weak investigation?

SK: The honourable judge could have asked him to reinvestigate the case. Instead, she used that as a justification to put the blame on the survivors which are tantamount to the denial of justice to them. 

It's pertinent to mention here that in 1999, Justice Badrul Haque Bachchu pronounced in a judgement that the statement of the victim is to be taken as evidence supported by circumstantial evidence.

This was reinforced in 2016 through another judgment pronounced by Justice Farah Mahbub. In the present case, the judge didn't even come close to this notion. 

The observations made in this case will negatively impact the efforts of all concerned working towards ending violence against women while encouraging the anti-women elements in the society which is very unfortunate.