In Bangladesh, the standard of proof in prosecution of crimes is beyond-every-reasonable-doubt. And any contradiction(s) within the entire fabric of the case can weaken the prosecution by casting doubt on the story propounded thereby. However, over and beyond the alleged truth of the case and the contradictions (if any), the judiciary is expected to be objective and an 'expressed' bias or suspicion towards either of the sides, always militates against such objectivity. Language as well as method of logical deduction can be of significance when such 'bias' or 'suspicion' is sensed and needs to be assessed.
In an old case (Md Abdul Khaleque and others v State) of 1960, it 'seemed' to the court that circumstances (the girl quite frequently lived with her mother coming away from her husband's house) point to the victim's having been involved in extramarital affair(s). The reason behind her raising the claims of rape, according to the Court, 'might perhaps' had been that on the occasion in question, 'marks' which 'could have been the result of passion had appeared on her face which she could not possibly hide.' And in line therewith, the Court went on to assume (!) that some of the accused persons whom the husband suspected as having an illicit affair with his wife, were falsely accused. It is submitted that the assessment of the adduced evidences could have been done in a different way.
Evidences may not prove the case of the prosecution and only this reason suffices to say that the defence wins. Logical deduction - based on assumption and not evidences - giving birth to an alternative story demeaning to the woman in question, only leads the readers to a sense of bias. In another occasion, (Mafizuddin Mandal v State (1962)), the victim could not produce her clothes and told the Court that she washed the same because she did not have any other to wear. It is undeniable that the absence of this evidence did weaken the prosecution's case. However, the Court's opinion to the effect that 'if she was so very chaste, her first instinct should have been to preserve the cloth intact at any cost…'does not seem very objective.
In the realm of case-laws related to rape, if even a couple of pro-woman decisions are to be cited, Saleh Muhammad v State (1966) will come out on top. Going quite against the then persisting trend of judicial attitude, it was observed that 'rape is possible without injuries in private parts and presence of spermatozoa is conclusive proof of sexual intercourse but not of rape, for they may have been removed by washing or discharge.' However, one noticeable thing is that in that case, the victim was an 'educated European lady'. This identity of the victim becomes relevant because regarding some defence suggestions (in respect of the victim's past sexual activities), the Court itself opined that those suggestions could be of use in case of 'unsophisticated' girls unlike the victim. What the Court meant by 'unsophisticated girls' is something which is known to the Court only. If it can be said that victims whom the Court do not find 'sophisticated' enough, easily become susceptible to a male-bias attitude, remains as an open-ended question.
Reference can also be made to some recent case-laws. In Shamsul Haque v State (2000), the prosecution claimed to be violated by the father of her friend and the Court opined without substantiation that 'it is highly unlikely and unnatural that a father will violate the…friend of his daughter…”. Nature of relationship between the victim and the alleged rapist can certainly be taken into account. However, a generalised opinion is something which can always be avoided for the sake of not compromising with objectivity. In another instance (Bazlu Talukder v State (1996)), it 'seemed highly improbable' to the Court that 'someone who wanted to marry the victim, would rape her along with his brother and nephews'. Depending on what specifics or attributes of 'the' defence in the particular case in question, this assumption yielding from a layman-ish generalisation, was drawn by the Court, was unfortunately not described.
In another instance (Sohel Rana v State (2005)), when materials on record indicated that the victim was senior to the accused, the Court frowned asking if it 'was possible on part of a boy who was junior to her…to commit rape on her forcibly'. Further, it went on to opine 'should she not try to resist him…..to save her virtue which was more precious to a maiden than the life itself.' In that case, the victim kept the matter a secret for quite a long time. This conduct, according to the Court, did not 'appear to be one of a virtuous girl eager and anxious to protect her virtue.' Keeping the matter a secret can certainly be taken into consideration to suggest that the prosecution's veracity shakes. But to suggest that keeping it a secret is not something that can be done by a 'virtuous and maiden woman eager and anxious to protect her virtue' is something that cannot be termed as a judicious opinion. Use of epithets such as 'virtuous' and 'maiden' only indicates a very parochial perspective.
It can be true for all the above-mentioned cases that the evidences and circumstances did not and/or could not lead the Court to find a definite conclusion on the happening of the alleged occurrence(s). This endeavour is in no way to advocate that the decisions were not rightly made. The concern lies only and entirely with the choice of words and lack (or absence?) of a sense of objectivity both of which can affect the decision making in a negative way.
THE WRITER WORKS AT LAW DESK,
THE DAILY STAR.