What Should Be the Appropriate Punishment for Rape?

TASNIM TABASUM AURTHI

Rape- a word that evokes deep anguish, social anger and legal complexities. The moment a rape incident is reported, especially on social media like Facebook, the first reaction from the public is almost always the same ‘the rapist should be hanged publicly’. This reaction, through emotionally charged, reflects collective outrage, it also bypasses legal scrutiny and due process, often leading to what is known as ‘Media Trial’.

This paper seeks to explore what an appropriate punishment for rape should be- not only from a moral standpoint but more importantly, from a legal and rational perspectives, including the loopholes in the current system, misuse of rape laws, the danger of emotional overreaction and possible reform.

Understanding Rape in Legal Terms: 

Under Section 375 of the Penal Code of Bangladesh, rape is defined as a man having sexual intercourse with a women under specific coercive or deceptive circumstances, including:

1. Against her will.
2. Without her consent.
3. With her consent, when she believes he is her husband.
4. With or without her consent, if she is under 14 years of age.

Exception: Sexual intercourse with one’s own wife is not considered rape if she is not under 13 years of age.[1]

Punishment under Bangladeshi Law:

Section 376 of the Penal Code provides the punishment:

• Whoever commits rape shall be punished with imprisonment for life, or imprisonment extending to 10 years, and liable to a fine.
• If the women raped is his wife and is not under twelve years, the punishments may extends to two years or a fine or both.[2]

The Complexities of the Concept of Consent, Will, Context and Misuses of Law:

To understand let’s consider two hypothetical but realistic situations:

Scenario 1:

An adult and his girlfriend are in a consensual relationship. They have engaged in sexual activity in multiple times. After a breakup, the girlfriend claims that during one instance, she did not give consent.

Scenario 2:

A married couple explores BDSM, which may leave physical marks. After a fight, the wife claims she was raped, and medical evidence (e.g., semen, scratches) exists.

Both situation highlights a Gray Area. In both cases:

• There was an established consensual relationship.
• Physical evidence could exist due to consensual sex.
• The intention, context, and truth of consent are difficult to measure retroactively.

Herein lies the danger of a one-dimensional approach like the public demand for hanging rapists. These examples highlights the difficulty in determining consent. When the relationship history includes mutual sexual activity, the law must tread carefully to distinguish between genuine assault and misuse of legal provisions for personal vengeance of leverage.

Loopholes and Challenges:  

1. Gender Bias: The law presumes that the perpetrator is always male and the victim always female. It fails to recognize male, transgender or non-binary victim.
2. Marital Rape Is Excluded: Under Section 375 except when the wife is under thirteen, creating a legal loophole inconsistent with modern Human Right Standard[3].
3. The Potential Misuse of Rape Allegations: False allegations can destroy lives. Rape laws can be misused on domestic disputes, custody battles or for blackmail[4]
4. Media Trials and Character Assassination: The media often acts as judge and jury, pushing narrative before the court process even begins undermining the presumption of innocence and may incite public lynching[5]
5. Ambiguity of Consent: The law does not sufficiently address situations where consent is ambiguous or withdrawn after the act.

Appropriates Punishment: A Balanced Approach:

1. Minimum Standard Punishment

  Under Penal Code 1860, s 375-376,

• Minimum 10 years’ rigorous imprisonment, extendable to life imprisonment depending on aggravating factors.
• Compensation to the death victim, in accordance with the UN Declaration of Basic Principles of Justice for Victim of Crime and Abuse of Power (1985)[6]
• Mandatory Rehabilitation of the Offender, align with the UN Sustainable Development Goal 16 promoting just and inclusive institutions.[7]

• Enhanced Punishment for Aggravated Rape:

Enhanced punishment is justifiable:

• The Victim is Minor.
• The crime involves Gang Rape or Death.
• The offender holds a position of trust (e.g. teacher, law enforcement).
• The offender is a repeat sexual predator.

• Rejection of Public Execution:

Though public sentiment may demand harsh punishment like public hanging, such practices violate:

• International Convention on Civil and Political Rights (1966), art 7 – prohibits cruel, inhuman, or degrading punishment[8].
• Bangladesh is a signatory to the ICCPR and thus bound to uphold this standards.

The UN Human Rights Committee has repeatedly stated that Public Execution are incompatible with human dignity[9].

Yes, rape is a monstrous crime. Yes, the rapist must be punished – but punished through a Fair, Evidence-based, and Legally sound process, not public fury. Justice must not only be done but be seen to be done rightly.

A society that demands justice must also uphold the Principles of Justice- even when the crime is horrific. Otherwise, we risk becoming a mob, not a civilization.

Let us ensure our outrage does not cloud our reason. Instead, let it lead us toward legal reforms, gender sensitivity, and judicial integrity- so that the punishment for rape is always appropriate, not arbitrary.

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[1] Penal Code 1860 (Bangladesh), s 375.

[2] Penal Code 1860 (Bangladesh), s 376.

[3] Ibid s 375 exception; see also Independent Thought v Union of India (2017) 10 SCC 800 (Indian Supreme Court).

[4] Lalita Kumari v Government of Uttar Pradesh (2014) 2 SCC 21 (SC) (India)

[5] UN Human Right Committee, ‘General Comment No 20’ (1992) CCPR/C/21/ Rev.1/Add.4.

[6] UN General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (29 November 1985) A/RES/40/34.

[7] UNGA, Transforming our world: the 2030 Agenda for Sustainable Development (21 October 2015) A/RES/70/1, Goal 16. 

[8] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 7.

[9] UN Human Rights Committee, ‘General Comment No.20: Replaces General Comment 7 concerning prohibition of torture and cruel treatment or punishment’ (1992) para 6.

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