Kamran Reza Chowdhury/Dhaka,Bangladesh
Bangladesh’s cabinet on Monday approved a legal amendment to bar defense lawyers from questioning the character of plaintiffs in this cases, except in special circumstances approved by the court, and to remove a related clause from a law that dates back 150 years.
Human and women’s rights activists cautiously welcomed the approved change to the Evidence Act of 1872, which, they had alleged, allows victims of sexual assault to be further “raped” through defense lawyers’ questioning.
“The cabinet at today’s meeting approved our proposal to amend the Evidence Act of 1872 which allowed the defense lawyers to raise questions about the character of witnesses. According to the amended version, no questions should be raised about the moral character of the witnesses without the permission of the court,” Law Minister Anisul Huq told BenarNews after the meeting.
“The rights activists have been demanding the amendment of the law as two sections, 146(3) and 155(4), stand in the way of delivering justice to rape victims,” he said.
The amendment moves to the parliament where it is expected to pass before becoming law.
Activists including Bangladesh Legal Aid and Services Trust (BLAST), human rights organization Ain-O-Salish Kendra and women’s rights group Naripokkho filed the petition to amend the act on Nov. 14, 2021. They said abuse of the two sections had been so widespread that rape victims refrained from seeking justice to avoid obscene questioning by defense lawyers.
As written, section 146(3) states that defense lawyers can raise question about the personal life, status and “injure the character” of the witnesses of cases including rape cases. Section 155(4) on “impeaching credit of witness” says, “when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.”
Attorney General A.M. Amin Uddin told BenarNews on Monday that the cabinet agreed to drop section 155(4) and amend section 146(3).
“According to the amendment, defense lawyers can raise questions about moral character of witnesses only if allowed by the court,” he said.
Ayesha Akhter, a BLAST senior advocacy officer, praised the decision.
“We thank the government for dropping section 155(4) of the Evidence Act of 1872. This section allowed the defense lawyers to raise obscene and unutterable questions and comments about rape victims during cross-examination. Thus, the rapists got advantages during the trial,” she told BenarNews on Monday.
“According to the amended version of the section 146(3), the defense lawyers would be allowed to raise question about the moral character of the witnesses of the rape cases with the permission of the court. Now, justice seekers would look to judges to see whether they would allow defense lawyers to raise such questions,” she said.
Akhter said other sections of the 1872 act could be applied against rape victims and must be removed or amended. She said she wanted a justice system where a sex worker could seek justice if sexually assaulted.
“This is not acceptable that a rape victim will not get justice because of her previous sexual life,” she said.
BLAST and the other rights groups filed their petition in November 2021 after a judge acquitted five rape suspects, having determined that two women had previous consensual relations with two of the defendants.
The trial resulted from a May 6, 2017, incident involving a Dhaka University student who filed a complaint stating that she and another woman went to a birthday party at a hotel where they were raped by two men while three others assisted. Police arrested all five and brought charges against them.
Lawyer welcomes decision
Khandker Mahbub Hossain, a former president of the Supreme Court Bar Association, welcomed the cabinet decision.
“Evidence is the most important part of delivering justice. Any mistake or flaw in evidence would block justice. A minimum flaw in presenting evidence may give a rapist an advantage,” he told BenarNews.
Victims are often bombarded with obscene, abusive and humiliating questions during trial, Hossain said.
“Though the plaintiffs are protected by the court, defense lawyers use very abusive language while cross examining rape victims because of the two sections of the Evidence Act, this practice impedes justice,” he said.
“Many rape victims, especially women from dignified families, do not dare file rape cases because they know that they would be further humiliated in the court.”
While supporting the changes, Hossain said there should be some avenue to challenge allegations.
“Very often we see that some women bring fake rape charges against innocent people. There are instances that a particular woman brings series of rape charges against different people,” he said. “In such cases, the court may allow the defense lawyers to raise questions.”
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