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The 'shameless' victim of the 'shameful' offence

The requirement of corroboration and distrust of rape victims still dominate judicial trends in Bangladesh

Taslima Yasmin
THE courts in the subcontine nt including our Supreme Court had held in a number of decisions that in case of sexual offence there is no illegality in convicting the
accused on the sole testimony of the victim. But in reality, the courts have hardly applied this rule in a rape prosecution, particularly in Bangladesh.
Traditionally, a rape victim in Bangladesh is considered to be "untrustworthy” and her testimony in court is received with utmost suspicion. The suspicion of a rape victim falsely accusing an "innocent” person gives rise to two common assumptions with regard to her case before the courts: either that there has not been any sexual intercourse and the victim has falsely alleged the crime, or that the sexual intercourse was consensual. These two assumptions then validate the courts' emphasis on the strict requirement to corroborate or support the testimony of a rape victim with further evidences.
Same as our Penal Code, this particular distrust of the courts over the testimony of a rape victim and the consequent requirement of corroboration are imported from English common law as a legacy of the colonial jurisprudence. As early as in the 17th century, the English rape laws had undergone significant changes during the time of Sir Matthew Hale, an English jurist. The infamous "Hale warning", which was read to juries and cited by judges into the 1890s, advised that rape "is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused." Thus the contemporary English law authors had commented that the requirement of corroboration was designed to prevent "irrational women" from succeeding in false rape charges.
Accordingly, the colonial high courts had followed stringent evidentiary requirements to support a woman's charge of rape and by 1920s this practice was recognised as a "general rule" in the
high courts. For instance, in Mating Ba Tin u Emperor, a 1926 case, the Rangoon High Court observed that "it is notoriously very unsafe in such [rape] cases to rely on the uncorroborated evidence of the woman alone and to make it an exception to the general rule." English courts were thus gripped with the idea that a woman was perhaps fabricating a rape accusation and over time the initial judicial practice of giving warnings regarding the need for corroboration had changed into a compulsory jury warning.
Along with this warning, the relevance
of past sexual history, lack of physical resistance during rape, and delay in lodging complaint similarly went on to influence both the issue of consent and credibility. The effect was that these independent sources of evidence provided more trustworthy indicators than a victim's verbal evidence.
Although in modern criminal jurisprudence such requirement of corroboration has now become largely obsolete in rape convictions, the postcolonial courts in the subcontinent continued the tradition of "disbelief. The Indian Supreme Court had lately, in
a series of cases, questioned this English "rule of prudence" in requiring corroboration in rape charges. However, it appears from the analysis of the reported decisions of our courts, that this norm perhaps still dominates the judicial trends in rape prosecution in Bangladesh. The infamous 17th century's "Hale warning" lent authority to our courts even in 2007 in deciding that a sole testimony of a rape victim cannot be relied upon, along with quoting references from colonial courts' decisions of as old as 1916 that supported orthodox interpretation to the
requirement of corroboration. Hence, a victim of rape falls into further prejudice having to dispel, through an extremely difficult standard of proof, the perception built and carried forward by the courts for centuries that she must be "lying".
This prejudicial position of a rape victim is further intensified by the courts' strict adherence to the rule of presumption of innocence of the accused requiring the complainant to prove the guilt of the accused "beyond all reasonable doubts". Hence, the current approach of the courts places the victim
of sexual violence almost at par with an accomplice, facing rigid evidentiary standards. Thus factors like age and class of the victim, signs of physical injury or resistance, and character of the victim had often led to infer consent of the victim. Other corroborating evidences such as the prompt lodging of an FIR, medical examination reports confirming rape, consistent statements of independent and neutral witnesses, chemical examination of the wearing apparels, etc., had been persistently required to be proved by the prosecution before a conviction could be confirmed.
The process of inferring consent of the victim and testing her testimony with strict evidentiary requirement is frequently conditioned by the deep-rooted gender biases that stereotypes a rape victim and makes the journey even more challenging for her. The already difficult standard of proof is raised even higher when the victim is married, or is relatively aged, or comes from a low-income background. In such cases, there is a common assumption that she might have "consented" to the sexual intercourse. Such an assumption comes from the stereotypical ideas about women's sexuality which picture a rape victim as a helpless young girl for whom rape brings “deathly shame" and not as a woman whose bodily integrity has been violated. There have even been recent cases where the accused was able to successfully plead the colonial notions of the victim coming from "lower strata of the society" or being a woman of "ill-repute" or of "easy virtue".
Having said that, there are also instances where our Supreme Court has taken a pro-victim approach and progressively decided on the value of the testimony of the rape victim. However, such an approach is yet to become the predominant trend. Hence, it is only expected that our entire justice system would consciously remove this assumption of falsity over rape allegations and expressly recognise that rape is not just a stigma on the victim, but is a grave violation of her bodily integrity and sexual autonomy.
Taslima Yasmin Is an assistant professor in the Department of Law, University of Dhaka.
Email: taslima47@yahoo.com