Rape Considering The Legal Context
Shahriar Islam Shovon
A few days ago, there was a sensational incident of rape by showing the temptation of marriage and the main accused was a student of Dhaka University named Hasan Al Mamun, also convener of the Bangladesh Student Rights Council. The victim accused him of raping and then refusing to marry her. The question is, to what extent this is actually justified? Nowadays the concept of "rape" is a burning issue of our society. According to Ain o Shalish Kendra (ASK), in 2019, around 1413 were raped and gang-raped. However, we need to know the definition of rape according to our existing legislation.
According to section 375 of the Bangladesh Penal Code 1860 defines rape that, rape can be said to have happened in five cases. They are:
1. Against the will of women
2. Without the consent of the women
3. Showing fear of death or injury
4. With the consent of the woman, but the man knows that he is not the husband of the women and the man also knows that, the woman has mistaken him for a man who he believes is legally married to the man
5. With or without the consent of the woman if she is under 18 years of age. In other words, if he has sexual intercourse with a girl under the age of 18 in any way, he likes or not, it will be considered rape.
According to section 9(1) of the Women and Child Abuse Prevention Act, 2000 defines that, if a man without a marriage bond, with a woman over the age of 16 without her consent or by intimidation or frequently obtaining her consent, or if he has sexual intercourse with a woman under the age of sixteen, with or without her consent, he will be deemed to have raped her.
In common sense, the terms 'temptation' / 'Inclination' and 'rape' are totally contradictory. Rape is forcing someone to have sex. On the other hand, the word 'temptation' indicates a compromise. No one is ever tempted to have forced sex with someone. The purpose of temptation is basically to make the other party interested. An adult woman should know the consequences of a sexual relationship. Additionally, in most of the cases, women had consent for sexual intercourse. But subsequently, they take allegations against their partner when their relationship broke up! On the other hand, a woman should know that sexual intercourse without marriage is prohibited by our religion also.
But breaching any promise with someone is definitely great injustice and deception and any deception is a criminal offense. However, it is more logical that the case should not be a rape case but a fraud case. In the eyes of law, the term "Law" and "Morality" are two separate concepts. So, with consent, if a man has intercourse with a woman then it is not considered rape. In this regard, no woman should bring any kind of allegation based on a ridiculous phrase like 'rape for the temptation of marriage'.
The temptation to marry is like a contract and if the contract is not valid in court then it has no value. Most of them do not have any written document showing the temptation of marriage. In this case, sexual intercourse is not done by force, by showing fear, by showing fear of death or injury. Then according to the law, it is no longer considered rape. Then the temptation to get married will not come under rape. It will not come because she had intercourse with consent.
Many women will go astray if they cannot differentiate between consensual intercourse and rape. So, one must have full knowledge of the difference between rape and consensual intercourse. There is an established case named 'Hanif Sheikh (Md.) Vs. Asia Begum, 1998, 27 CLC (HCD) and the judgment of the Supreme Court clearly shows that if a woman has sexual intercourse with a man with the promise of marriage, then that woman will not get any legal remedy.
All the laws of Bangladesh have made it clear that if you have sex without consent, it will be considered rape. The promise of marriage has the full consent of both parties as it is not after the stage of rape and cannot be enforced by law. Finally, we can say that there is a lacuna of our existing laws that the concept of "rape is not well defined and also a misconception among mass people regarding this issue. In this respect, we need to clarify our laws.
(Mr. Shahriar is a student of Department of Law & Human Rights, University of Asia Pacific)