Assignment Topic : Character (BLAST Rape Law Reform)

Course : Law of Evidence

Course Teacher : Ferdousi Begum

Name : Onika Rahman

Id . : 20-42446-1
Section: (A)

Character (BLAST Rape Law Reform)

The Evidence Act 1872 is one of the important act in the legal system of Bangladesh. It was
originally passed in 1872 during the British period . It is an act which includes set of rules & also
allied issues governing admissibility of evidence in the courts of law of Bangladesh. Though
there are 11 chapters in the Evidence Act 1872 , Character is one of the important of chapter II.
Moreover rape is also an crime which is relatable to this chapter of the Evidence Act 1872.In a
survey of Bangladesh it has been seen that 95% of urban areas & 88% of rural respondents
facing no legal effects for raping a women or a girl which show the harsh reality. Though during
a trial of a rape case the lawyers are being allowed to introduce character evidence against rape
complainants which is discriminatory.

BLAST launched the Rape Law Reform Now campaign in 2018 to identify protection gaps in
existing rape legislation which continue to perpetuate impunity and miscarriages of justice, and
act as a concerted advocacy movement to demand necessary legal and institutional reform.
Bangladesh Legal Aid and Services Trust (BLAST) organized a dissemination meeting at
Dhaka's Chhayanaut Auditorium today, January 20, 2020 to review section 155(4) of the
Evidence Act and shared the publication of a research report. The submission is prepared by
Bangladesh Legal Aid and Services Trust (BLAST), the Secretariat of the RLRC, with support
and input from sixteen other members of the RLRC. BLAST is a non-governmental legal
services organization working across the whole of Bangladesh, and draws upon its experience of
25+ years in providing direct legal services, including to women and girls who are survivors of
sexual and gender based violence (SGBV), as well as conducting research advocacy and strategic
litigation on gender equality and gender-based violence.
Evidence Act 1872, under section 155 (4) Impeaching credit of witness, according to 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. Though section 155(4) makes character evidence admissible which
is in relation to a rape complainant and if they were of a ‘generally immoral character .But there
is no legal definition of ‘generally immoral character’ so this rules can only be used by the
defence to adduce character evidence against any rape complainants. Although section 53 of the
Evidence Act 1872 discussed about the good character which is relevant .This section makes the
‘good character’ of an accused person relevant .On the otherhand section 54 of the Evidence Act
1872 makes the ‘bad character’ irrelevant.But the evidence ‘bad character’ would only be
relevant if the defence used in section 53 suggest that the accused was someone of ‘good
character’.Though section 155(4) has the reverse effect making negative character evidence
admissible against rape complainant where she is seeking for justice.
Abdul Majid Vs State case
a woman was sleeping in her house at night with her younger daughter .The accused entered and
forcibly raped her .Though in the cross-examination the defence made her admit that she was
given in marriage at four places and that she was divorced woman. Then the defence said and
alleged that she was a woman of loose character who involved in anti-social & immoral activities
and filed this false case as the accused along with others tried to put a stop to such
activities.Then the court found the accused guilty for the crime and sentenced him imprisonment.
another case is Uzzal alias Hossain Vs State
four men were accused of gang raping a teenage girl and also did photograph of this incident.
Several witnesses shows that her father went to the house of the accused to beg for the return of
the photograph but they didn’t & the girl did suicide.
The accused rebuked the father by suggesting his daughter was of ‘immoral character’ and
threatened that if he took legal action then his daughter's ‘obscene photographs would be pasted
at all the street corners’.In the trial , the defence suggested that she committed suicide not for
being raped but due to family reasons because she was ‘immoral character’and also said that the
girl had an affair with a boy in her village and her father refused her so that she had committed
suiside.Though the accused got the punishment for rape caising death. Both this cases of the
above illustrates that how the character assassination of the rape victim begins socially and is
then transported to the courtroom. This is something which must be prohibited in the society. It
also shows that the practice of using character evidence in the rape cases humiliate rape victims
is so pervasive.
The Monowar Mallik Vs State
is another example . In this cases a woman filed a rape case under Section 9(1) of the 2000 Act,
alleging that her neighbour, Monowar Mallik, caused her to have repeated sexual intercourse
through ‘false inducement’ by making her believe that “he had married her and the witness is the
religion”.When she asked him to marry her socially ,he refused and said that he had fulfilled his
wish.
The defence counsel in the Mallik case referred to another case
which is Misti and others vs. State to argue that ‘if the victim comes of an ordinary and lower
strata or she is proved to be woman of ill repute or easy virtue corroboration must be sought as a
rule of caution and prudence. Though in the defence in the Mallik case used character evidence
in favour of the victim and to distinguish the reliability of a rape complainant from a ‘respectable
educated family’ as opposed to one from a ‘lower status’. So this case shows that even though
Section 53 of the Evidence Act 1872 does not make ‘good character’ of a witnesses which is
relevant & the judges , lawyers may focus on the ‘good’ character of the victim and their family
to justify their conviction .
Another problem is found in some rape judgments - in addition to the good victim, bad victim
dichotomy.Though even where the defence has not adduced character evidence against the
complainant but this very fact has sometimes been used by judges as a reason to uphold the
truthfulness of the victim’s testimony. So that the defence raised questions about the victims
character.

The case Al Amin vs. State

the principle was established that the sole testimony of a rape complainant is sufficient for the
conviction of as rapist. But sometimes the defence lawyers misuse the character evidence .
Though Justice Huq decried the misuse of character evidence in rape trials in Shibu Pada
Acharjee vs. State and noting that the defence posed ‘wild and indecent questions’ to the rape
complainant, ‘touching her character’. He highly disapproved and deprecated such cross
examination nothing it could not be allowed to be carried out.
Penal code 1860 under section 375, According to that a man is said to commit "rape" who except
in the case hereinafter excepted, has sexual intercourse with a woman under circumstances
falling under any of the five following descriptions:
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 fourteen years of age.
Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence
of rape.
Exception. Sexual intercourse by a man with his own wife, the wife not being under thirteen
years of age, is not rape.
Even under section 376 said in this section punishment for rape. SoWhoever commits rape 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, unless the woman raped is his
own wife and is not under twelve years of age, in which case he shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both.

Reference Case : Sabbir Sheikh Vs. The State and another

Use of Character Evidence Act under Section 155(4) of the Evidence Act, 1872 specifically
allows defence lawyers to adduce character evidence against the rape complainant in order to
show that she was of a ‘generally immoral character’ with the intention of undermine her
credibility as a witness. This acts as one of the biggest hurdles in rape prosecutions since
defence lawyers reportedly frequently use this provision to shift the entire focus of the trial onto
the victim’s sexual history or lifestyle, by asking her degrading and invasive, and irrelevant,
questions in open court, in an attempt to impute ‘immoral’ behaviour, causing humiliation and
re-traumatisation in the process.
This section related case reference name : 12 DLR(SC) 165 Md. Abdul Khalek Vs. The
State.
Another case name : 19 DLR (SC) 259 Momtaj Ahmed Khan Vs. The State.

Recent rape incidents have led to widespread public protests and discussions on the causes
behind impunity for rape in Bangladesh. Some, including our lawmakers, have suggested the
urgent need for legal reform. Rights activists have long called for the amendment of Section
155(4) of the Evidence Act, which allows the defence lawyers to show that generally a rape
victim is a person of ‘immoral character’. This is repeatedly used in the courtroom against the
rape victims and survivors of rape.

The character evidence put an women in an uncomfortable place in the context of Bangladesh. In
a society where great emphasis is given on woman's chastity and where her standing within the
family and society depends on it, character assassination affects her in multifarious ways. She
also loses the value as a woman not only within her immediate family like her husband and
children but also within her extended family and in-laws family. So the character evidence
should be prohibited in such rape cases because of the dignity of a woman.