Bangladesh Court Questions Legal Definition of Rape to Ensure Gender Equality

The High Court has questioned why the definition of rape in the Bangladesh Penal Code will not be amended to provide legal cover to both men and women victims.

The court’s question came in the form of a rule issued by the bench of Justices Md Mozibur Rahman Miah and Khizir Hayat on Sunday following a preliminary hearing on a writ petition filed by three individuals, including a lawyer.

The court asked the secretaries to the Ministry of Law and Justice, Ministry of Home Affairs and the inspector general of police to respond within the next four weeks.

Soumen Bhowmik from Gazipur, Supreme Court Advocate Tasmia Nuhiya Ahmed and social worker Masum Billah filed the petition.

Lawyer Tapash Kanti Bal argued for them while Deputy Attorney General Bipul Bagmar represented the state.

Under section 375 of the Penal Code, a man having sexual intercourse with a woman will be considered rape if one of the following five incidents occur:

“Firstly. Against her will.

Secondly. Without her consent.

Thirdly. With her consent, when her consent has been obtained by putting her in fear of death, or of hurt.

Fourthly. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. With or without her consent, when she is under 14 years of age.”

The Women and Children Repression Prevention Act, however, specify the age in the last condition to be 16 years.

The definition considers “penetration to be sufficient to constitute the sexual intercourse necessary to the offence of rape”.

Lawyer Tapash said, “We’ve challenged section 375 of the Penal Code, where the definition only considers vaginal penetration as rape.

“But if the word is simply penetration, committing the act in other parts of the body… will be considered to be rape.

“We’ve demanded gender neutralisation of the law’s definition.”

The writ petition was filed in January last year during a spike in the sexual harassment of boys and men.

“We are unable to adjudicate such tortures as rape. So we’ve moved the High Court for amendment,” said Tapash.

The petition says that section 375 of the Penal Code only defines the case of a woman’s rape by a man, but does not include repression of women on women, women on men, men on men or a transgender on another.

Therefore, police accepted such offences in cases under section 377, which consider the act as “Unnatural Offences”, elaborating that, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

According to section 9(1) of the Women and Children Repression Prevention Act 2000, the punishment for rape is death penalty or rigorous life imprisonment in addition to fine.