Time to do away with character evidence | The Daily Star
12:00 AM, January 21, 2020 / LAST MODIFIED: 04:32 AM, January 21, 2020

Time to do away with character evidence

BLAST report on rape victims calls for scrapping of related provision

At the Court Street yesterday, a heavily pregnant 17-year-old waddled about from one lawyers’ chamber to another, looking for someone who can help her. She is about to deliver a baby in 20 days, and in this state, she had taken a public bus from Uttara all the way to the old part of the town.

But upon telling her story to legal counsels, she was denied any help.

Two years ago, when she was not even 15, she was in a relationship with a man whose age was nearly 30 years old and they consummated the relationship. “He kept promising me that he will marry me and take care of me,” said the teenager. As her relationship with her parents soured over her relationship, she agreed to run away with the man.

“But he did not marry me because I was too young and I was getting scared. So, I went to the police station and filed a rape case under Section 9(1),” she said.

Section 9(1) refers to the clause in the Sexual Offences Act 2003 that relates to engaging in sexual activities with minors, an act which is considered as statutory rape, based on the premise that minors are not able to give consent. The cut-off for consent according to the act is 18.

After the case had dragged on for more than a year, the man coaxed the girl to withdraw the case and marry him. Starry-eyed and eager to forgive, the girl tied the knot with him last year in March illegally in an underage marriage.

She conceived a child almost immediately, and in good faith that the to-be-father will not be leaving a child about to be born, she withdrew the legal case.

He, however, packed his bags and fled the scene immediately, leaving a pregnant teenager alone in this cruel city.

The Women and Children Repression Prevention Tribunals are not only frequented by “perfect” rape survivors -- girls and women who are unmarried, not sexually active. The justice system which promises to be blind and impartial is also the refuge for those who make mistakes, who have sexual relationships outside of the socially accepted confines of marriage, and who get raped nevertheless.

But a certain provision under the Evidence Act 1872 called Section 155(4) continues to be a bone in the throat for such rape survivors, opines experts.

“Section 155(4) of the Evidence Act 1872, expressly allows defence lawyers to introduce character evidence against rape complainants during trial,” stated a report published by Bangladesh Legal Aid Services Trust (BLAST) titled “Between ‘Virtue’ and ‘Immorality’: Why Character Evidence Must Be Prohibited in Rape Cases.”

In courts, defence lawyers try to establish a “lack of morality” in rape survivors by divulging details of their personal lives as a way of undermining their believability, explains the report.

“It is as if the rape victim has to be an unimpeachable character,” comments the author of the report Taqbir Huda, who works as a researcher at BLAST. What this means is that the perfect victim has no history that can be criticised in court.

“When lawyers are allowed to provide character evidence in court, it creates a “good” victim, “bad” victim dichotomy,” he continued.

The report recommends that Section 155(4) of the Evidence Act be repealed, “so the perceived ‘general immoral character’ of a rape complainant can no longer be used by the defence to impeach their credibility as a witness during trial.”

The assumption that some survivors are more believable than others was wholesale observed during the much-talked-about rape incident that took place in Raintree Hotel in 2017. The survivors had to face rigorous character examination in court because they had allegedly been swimming in the hotel pool with their rapists prior to the incident.

Last year, this correspondent witnessed a senior police official at a city police station, rebuking a girl who was raped in a car by a man she went on a drive with, by saying, “Why do you get into cars with unknown men?”

Besides, if anyone has ever been to the Women and Children Repression Prevention Tribunals, one would find that such intense debates about the survivor’s characters (like all matters of rape cases) happen in rooms that are crammed with an audience--lawyers of other cases, policemen, rapists, other victims and interested onlookers.

“Defence lawyers use character evidence as a tool of re-traumatisation and harassment by asking her degrading questions in an open courtroom, leading to this practice being labelled as the second rape,” stated the report.

“These cross-examinations should not happen in public,” stated Nurun Nahar Osmani, a retired District Judge and a former member, National Human Rights Commission of Bangladesh while talking to this correspondent.

“However, there might be adverse impacts if we cannot hear character evidence. This is only a side evidence,” she opined at a session, “Justice for Rape: Prohibiting Character Evidence in Rape Cases”, held in Chhayanaut yesterday.

Other retired justices also expressed similar reservations. “When there a rape incident, it is the victim’s words against the rapist’s. There are no other witnesses. So, the judges need to decide whether to believe the victim,” said Justice Md Nizamul Huq, former justice of the Appellate Division of the Supreme Court of Bangladesh.

“We cannot remove this provision because it saves people from being implicated in false cases,” stated Justice AFM Abdur Rahman, former justice of the Appellate Division of the Supreme Court of Bangladesh.

The former justices believe that a girl’s character should not impact the verdict if evidence is present. But it’s not always about the end result is it? Sometimes it is also about the process.

Here is what Justice AK Badruk Huq observed in Al Amin vs State in 1999, as cited by the BLAST report.

“In total disregard of the provisions of the Evidence Act regarding relevancy of facts, some defence lawyers attempt to cast a stigma on the character of the victim of sex crime and twist the interpretation of events given by her so as to make her appear inconsistent with her allegation.”

If such an observation could be made ten years ago, why does the debate still exist?

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