Sexual offences against women: looking beyond the statutes
Bangladesh passed a special law in 2000 to control and combat crimes against women and children. After 20 years of the enactment, the question still remains as to how effective the existing legal framework in fact is, to do so. Strict positivistic legal philosophy tends to take a top-down approach; the sociological school of thought, on the other hand, does otherwise. However, beyond statute-based laws, there are issues which directly have bearing on such offences. Discussion focusing on statutory laws as divorced from societal realities does not really hold good.
Cardozo, an American judge and sociological jurist, emphasised the necessity of judicial alertness to social realities. He gave a keen and comprehensive analysis of the judicial process. He said that the consideration of social policies loom large in the art of adjudication. In other words, the societal factors have been the
realities to interpret the law. The judge needs to interpret the social conscience to give effect to the law. Therefore, the sociological school of law always insists on liberal interpretation. The judicial proceeding in Bangladesh does not follow the liberal interpretation as much as the sociological school of law suggests. Cardozo wanted a relaxation in applying the rule of precedent where the application of previous decisions would clearly be inconsistent with the sense of justice or the social welfare. Bangladesh follows the common law system and Article 111 of the Constitution of Bangladesh says that the law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division
of the Supreme Court shall be binding on all courts subordinate to it. Hence, the scope for liberal interpretation of statutory laws is very limited in Bangladesh. Therefore, the law of evidence related to the admissibility of evidence and the presumption of immoral character of prosecutrix under section 155(4), definition of rape under penal code have not been interpreted to give an effect to the present context of Bangladesh.
Joseph Kohler, a German jurist, said that the significance of law lies in making a permanent cultural value in the society. Bangladesh has plenty of laws but the rate of compliance is very low. As long as the culture of non-compliance with law persists our culture, the crimes against women and children cannot but increase. Therefore, not only the violation of Nari o Sishu Nirjaton Daman Ain 2000, but also the violation of every other law is significant. All instances of deviation have to be taken into consideration in order to bring a law-abiding community to reality.
Law is only an element of the society. Eugen Ehrlich, an Austrian thinker, said that the positive law cannot be understood apart from the social norms of the living law. The living law is the inner order of association that is the law in practice in the society, as opposed to the law enforced by the state. He identified the living law with the law which dominates societal life, even though it has not been posited in legal propositions. At present, as well as at any other time, the centre of gravity of legal development lies not in legislation, nor in juristic science, in judicial decision, but in society itself. Recently, Modhumita Pandey, Professor in Criminology at Sheffield Hallam University, UK, interviewed hundred convicted rapists in Tihar jail, New Delhi, India and has identified some main reasons behind sexual violence. She found out that the domination of men in the society, social stereotypes against women and a persisting pattern of patriarchy and misogyny exists in different spheres of societal life. These living practices are associated with the mind of people of Bangladesh. They are mightier than the existing law to influence the human actions and thoughts. Therefore the culture of crimes against women and children is deeprooted in our society and needs to be addressed.
The writers are Advocate, Dhaka Judge Court and researcher respectively.