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http://www.thefinancialexpress-bd.

com/new/2013/11/09/2986

For an end to rape victims' humiliation


M S Siddiqui Pursuing PhD in Open University, Malaysia e-mail: shah@banglachemical.com
The results which assert that a victim was not a virgin at the time of her rape are frequently used in the courtroom to cast public doubt on her moral character and to reduce the weight of her evidence, writes M. S. Siddiqui........... Rape is defined as the unlawful sexual intercourse by a man with a woman without her consent, against her will or with her consent obtained by force, fear or fraud, or with any woman with or without her consent, below the age of sixteen years. Sexual activity requires consent, which is defined as voluntary and positive agreement between the participants to engage in specific sexual activity. The consent should be communicated duly with clear and positive manner. The definition of rape varies both in different parts of the world and at different times in history. It is defined in many jurisdictions as sexual intercourse, or other forms of sexual penetration, of one person by another person without the consent of the victim. The United Nations Office on Drugs and Crime defines it as "sexual intercourse without valid consent, and the World Health Organization defined it in 2002 as "physically forced or otherwise coerced penetration even if slight of the vulva or anus, using a penis, other body parts or an object". Any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth, or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio, or anal penetration. Evidence of emission of semen is not required to prove sexual penetration (720 ILCS 5 Criminal Code of 1961 12-12(f)). The Bangladesh laws regarding rape are stated in the section-375 of penal code-1860, Section-6 of repression of women and children (Special provisions) Act 1995, and section 3 of suppression of violence against women and children, 2000 without any definition of rape. A verbal consent is not an absolute requirement for consensual sexual activity, verbal communication prior to engaging in sex helps to clarify consent. Communicating verbally before engaging in sexual activity is imperative. However consent must be clear and unambiguous for each participant at every stage of a sexual encounter. The absence of "no" should not be understood to mean there is consent. A prior relationship does not indicate consent to future activity. Each and every sexual activity should be with a fresh full consent.

The sexual activities may be carried out by physical force, coercion, abuse of authority or against a person who is incapable of valid consent, such as one who is unconscious, incapacitated, or below the legal age of consent. Different types of rape include date rape (drug facilitated sexual assault or an acquaintance rape) , gang rape, marital rape (sex with spouse without consent), incestual rape (between prohibited relationship like sister, khala, fufu etc), child sexual abuse, prison rape, acquaintance rape, war rape and statutory rape (age below 16 but with or without full consent). The basic criterion of rape is free consent of woman. Consent need not be expressed, and may be implied from the context and from the relationship of the parties, but the absence of objection does not of itself constitute consent. Lack of consent may result from either forcible compulsion by the perpetrator or incapacity to consent on the part of the victim (such as persons who are asleep, intoxicated or otherwise mentally helpless). In Britain one can be convicted of rape even if person has consent. In a recent case, The High Court has ruled on a case where a woman consented to only limited sexual contact. To be explicit, she agreed to sex on the specific condition that her partner didnt ejaculate inside her. The accused ejected inside. It is held that the person deliberately ignored the basis of her consent to penetration as a manifestation of his control over her. The same conditional consent is applicable in case of husband and wife. The investigation under law and practice of rape allegation and trial make it very difficult to prove the actual rape because it is difficult to establish whether it is a consented sex or actual rape. India has similar Penal Code 1980 like Bangladesh and their 84th Law Commission report on rape and allied offences suggested that free and voluntary consent be substituted in place of consent. The former implies active consent, and thus removes the possibility of the Courts interpreting silence or non-resistance as consent. Similar definitions of consent are also used in other countries, all of them placing a high degree of importance on the consent being active. Under Bangladeshi law, the proof of consent lies on previous sexual activities, evidence of force on the body and other evidence from body and cloth etc are essential. The forensic experts examining rape cases must follow a government-prescribed medical examination procedure which requires them to give details of the victims internal organs. It is important to realize that women may not always protest or cry out for help while being raped through terror or for minimizing the damage inflicted upon her, but this should not be construed as consent. The doctor (male of female) asks for patients permission to medically examine and treat the effects of the sexual assault and carry out a medico legal examination that may involve inspecting her mouth, breasts, vagina, anus and rectum, removing her clothing, and collecting her scalp hair, pubic hair and blood, as well as saliva, semen, bloodstains and foreign materials from her body. Also asks for her permission to disclose the results of the medico-legal examination to the police. It advises her that she is free to revoke consent at any time during the examination or to decline any portion of it. They also gathers information regarding the victim such as name, address and age as well as any relevant medical or surgical history, including date of last menstrual period and contraception use. There are more detailed information asked about the location, date and time of the assault, the number of assailants involved, and their names if known. Asked for the details regarding the type of

assault (e.g., vaginal, anal and oral penetration), the use of condoms or lubricants, as well as weapons or objects. They documented any vaginal discharge or bleeding and any activities engaged in by the victim since the assault (e.g., whether she has removed clothes, bathed, douched, urinated and defecated). They collect itemizes clothing, specimens and samples taken (e.g., oral swabs, vulvas swabs, vaginal swabs, bloodstains, seminal stains, head and pubic hair, nail scrapings or clippings, blood, and foreign material). They also record the quantity of each specimen or sample, or if not collected, lists the reasons why. They record body diagrams the physical injuries sustained and note Description of injuries according to their type, size, shape, colour, borders and age. The form has provision for examiner to include opinion of the cause of injury (e.g., sharp object, cloth or rope). Also documented the emotional state of the patient (e.g., distressed, agitated, shocked, hopeless and controlled). After the detailed examinations and reports and treatment given and follow-up for possible sexually transmitted infections and pregnancy. Records injuries and their related treatment and follow-up, psychological assessment and counseling provided, and referrals made to other services. The most sensitive test is two fingers test among other medical tests, to know the condition of the hymen. The two-finger test is used to gauge if a woman who is alleging rape is habituated to sex and if her hymen is broken, under a law enacted in 1872 when the country was under British colonial rule. The two-fingers rape test involves a doctor inserting fingers in a rape victim's vagina to determine its "laxity" and decide if she is "habituated to sex." Defense lawyers often use this evidence to discredit the testimony of unmarried rape victims, who are dismissed as bad women. The two-finger test is all a myth and not scientific evidence showing that if two fingers pass or don't pass, it has anything to do with being habituated to sexual intercourse or penetration at all. Additionally, the two-finger test problematically relies on and perpetuates myths about the hymen as an indicator of virginity. This is the second rape on rape victim in the name of collection of evidence. The results which assert that a victim was not a virgin at the time of her rape are frequently used in the courtroom to cast public doubt on her moral character and to reduce the weight of her evidence. The majority of men accused of rape do not, in a court of law, attempt to contest the act of intercourse itself. Rather, they assert that the sex was consensual. To prove this point, the defense builds a case that the victim had loose morals or was habitually promiscuous. It is easier to prove that the girl is of 'bad character. The results of two-fingers test figure prominently in courtroom arguments as medical proof of a woman's promiscuity. If the victim is a married, middle-aged or a woman who has conceived multiple times then the test unable help find any evidence. The assumption made by those administering the finger test in hospitals or invoking it courtrooms, is that once a woman has had sex, she is incapable of being raped. The defense of accused argues as per test report with a plea that the woman is not of good character since habituated in sexual activities. The humiliating and barbarian two fingers test result very often go against the victim,

because there is no relation between sexual activities of an unmarried woman and sex without consents. This test is yet another assault on a rape survivor, placing her at risk of further humiliation. The entire system is set up to disbelieve any woman who complains of sexual assault, which is why the test has survived for so long.

There was a study in 2003-2006 Bangladesh at Sher-e-Bangla Medical College, Barisal. 176 cases of alleged rape were studied the outcome are that 130 cases had consented sexual intercourse. 46 victims were subjected to rape. Cases include different age groups, their occupations, living areas, time of arrival for medico-legal examination have been studied. The outcome of test result is not satisfactory. A woman has previously had sexual relations is not relevant to the question of rape. The actual issue is whether she consented or not in particular sexual activity in question. So the two-fingers test is irrelevant. Sexual history of the victim is not legally relevant to whether sexual assault or rape has occurred, and the law needs to change to reflect this. The definition of rape needs to be revisited so that consent is the only relevant criterion and expanded to include sexual assault, marital rape and not focus solely on penetrative sex. The two-finger test should be abolished and need to amend the medical evidence collection form accordingly and amendment of relevant laws such as the Evidence Act, Penal Code and Suppression of Violence Against Women & Children Act to replace the definition of rape with sexual assault. The circumstantial evidences should be taken into consideration and in some cases DNA test may be recommended for fair trial of offence of rape.

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