How ancient history of laws regarding rape still haunts us

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Aqib Tahmid:

Aqib Tahmid

There is a widely criticized peculiar archaic legal provision prevalent in our legal system and in the Evidence Act 1872, Section 155 (4), that sets out a primitive understanding of rape requiring the complainant to prove that she is not of ‘bad character” or not a Promiscuous woman. 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.” Through this provision, there is a requirement for a woman to prove that she is of good character in order to secure justice in relation to a rape case. This provision clearly shifts the focus of the trial from the accused to the victim.

Interestingly, this said provision of the evidence act or the nature of it can be traced to the ancient archaic laws of Israel, considering the similarities it has in common with ancient laws of Israelites.

The era that preceded the birth of the Jesus Christ had some peculiar, depressing laws with regard to rape all around the globe. The eastern laws of Babylonia, Assyria and the western laws of ancient Greece or Rome had carried no concept of “rape” let alone their provisions of punishment as a crime.

The strangest laws were that of Israelites in the ancient east. The Israelites made a distinction between what happens inside the city and in the field. Basically, if a woman was raped inside the city walls, it was assumed that she could have cried out for help if it wasn’t actually consensual. So, if she didn’t cry out for help, then it would mean that the consent was there. This archaic peculiar reasoning of assuming “consent” of having sexual relation has appeared “as a ghost from the past” in our legal system, in the garb of legal provision, in the evidence act 1972 sec 55(4), that enables the perpetrators of a rape to go unpunished by proving that the consent of having sex was there on the part of the woman.

Similarly, another ancient law of Israelites has reflected in one of our laws that were approved, not long before, by the government on February 27, 2017, that allows the marriage of girls under age 18 under “special circumstances”. There is no minimum age for these marriages. In the ancient Israel, A woman would be deemed blameless if she was raped outside the city walls since there would be no one around to help her but she would be forced to marry the person who raped her. This ancient rule still haunts us till today since the newly approved law by the government that allows child marriage in “special cases” has left a scope of legitimizing statutory rape through the interpretation of the said law.

 

In accordance with the government, the goal of legalizing child marriage in “special circumstances” is to respond to situations involving “accidental or unlawful pregnancy” of unwed girls. This law, by not defining “special cases” or “greater good”, created a scope of interpretation that could make rape legitimate in the eyes of law.

In the case of rape of an underage girl and if she became pregnant as a consequence, her family would try to espouse her with the man who raped her to secure the honor of the family. Thus, a woman would face serious human rights violation as a result and would also face humiliation and disgrace. This law would encourage more rapes rather than preventing it. In Ancient Roman era, the senior male within a household retained the right to kill a related woman if she was engaged in pre-marital or extra-marital relations to protect the honor of his family. This was known as honor killing, but in this era, to secure the honor, a family is legally given the chance to marry her under age daughter off to the man who raped her. Though, not similar in nature, this law shows the same hostility to the victims of rape as same as it was shown by the ancient roman laws in the ancient era, as in both the cases the victims of rape are the sufferers. The ancient roman era honor killing evolved today in our legal systeminto a forceful “Honor marriage” that serves the purpose of securing honor of the rape victim’s family at the expense of the dignity and liberty of the rape victim.

So, to ensure the right of access to rape survivors these depressing archaic laws regarding rape needs to be repealed since these laws are inconsistent with this modern era.

Aqib Tahmid is a student of law in Chittagong University

 

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