We have a shared vision of addressing violence and discrimination against girls and women in the world and believe that all our voices are needed to achieve lasting change. This space is designed to bring together writings and ruminations on GBV movement-building and shifts in the law. Bangladesh Legal Aid and Services Trust (BLAST) is one of Bangladesh’s leading legal services organizations. In this post, they speak on the landmark 2022 amendment to the country’s The Evidence Act, 1872, and the determined advocacy that led to the change.
On November 3, 2022, Bangladesh finally repealed the gender-discriminatory provisions in its colonial-era Evidence Act of 1872 on questioning women rape survivors on their ‘character evidence,’ including their sexual history during trials. This change came after years of advocacy, including a recent public interest litigation by rights organizations and activists.
In 2010, the Bangladesh Legal Aid and Services Trust (BLAST) commissioned in-depth research on rape-related laws and procedures by analyzing case records from 2000 to 2010; these were of cases in which BLAST had provided litigation support to the survivors. This study identified a number of legal and procedural gaps. These included the continued use of the two-finger test for the medico-legal examination of women and girls who are rape survivors; questioning women and girls on their ‘character’ or sexual history; the discriminatory definition of rape; and the continuation of the marital rape exception.
Based on these findings, BLAST initiated further evidence-generation activities to support advocacy for the repeal of Section 155(4) of the Evidence Act. Together with other rights-based organizations, the demand for the repeal of this provision was also made during the review session of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) for Bangladesh in 2016. Despite the then-Chief Justice and the Law Commission acknowledging the need to reform the Evidence Act in 2015, there was no progress toward the repeal, prompting BLAST to strengthen its efforts. As part of this process, BLAST mobilized rights organizations, particularly women’s rights organizations, interested individuals, and activists in one platform to strengthen voices and build a national momentum to bring about rape law reforms.
Based on these findings, BLAST designed and started advocacy campaigns targeting policy actors and planned related strategic litigation. This resulted in the launch of the Rape Law Reform Now campaign in 2018 to identify and analyze the protection gaps in existing rape legislation, which continue to perpetuate impunity and miscarriages of justice. The campaign was intended to act as a concerted advocacy movement to demand necessary legal, institutional, and procedural reforms. As part of the campaign, BLAST held a series of expert consultations, seminars, workshops, and meetings with relevant stakeholders, such as lawyers, academics, judges, law enforcement officers, activists, medical experts, and community-level organizations on different thematic areas.
Founding the Rape Law Reform Coalition
To strengthen and support the campaign, the Rape Law Reform Coalition (RLRC) was formed in 2019, comprising 17 organizations working on ensuring justice for rape. BLAST supports the Coalition as its Secretariat. The Coalition’s Technical Committee focuses on identifying patterns, gaps, and improvements needed to ensure a non-discriminatory, accountable, and transparent judicial process for rape survivors while ensuring effective punitive measures for the accused and compensation for victims and survivors commensurate with the degree and intensity of the crime. In the immediate aftermath of the outbreak of the COVID-19 pandemic, the number of reported rape cases increased, and by October 2020, many heinous incidents of rape were witnessed in Bangladesh, including live-streamed videos of physical assaults that went ‘viral.’ In solidarity with the anti-rape protests which erupted across the country in 2020, the Coalition identified and issued a set of 10-point demands. Community-level consultation meetings across the country with different stakeholders, including judges, lawyers, police, and CSOs, made it possible to maintain a bottom-up approach to understanding the realities of seeking legal protection from a broader lens and work accordingly.
One of the ten-point demands focused on the repeal of Section 155(4) of the Evidence Act. This controversial provision expressly allowed defense lawyers to introduce character evidence, including sexual history when questioning the prosecutrix of a rape case. This provision has been used to compel survivors to relive traumatic experiences during cross-examination.
Ensuring the inadmissibility of character evidence in rape trials became a key demand of the Rape Law Reform Coalition and was echoed by stakeholders at expert consultation meetings. The Coalition also recommended the amendment of Section 146(3) of the Evidence Act 1872, which allows for questions injuring the character of a witness during cross-examination. After rigorous research drawing together the findings of these consultations, BLAST published a report titled “Between Virtue and Immorality: Why Character Evidence Must Be Prohibited in Rape Cases,” which consolidated past research findings and recommendations to highlight the need for reforms and proposed required changes.
Filing Public Interest Litigation
On November 14, 2021, three rights organizations – BLAST, Ain-O-Salish Kendra (ASK), and Naripokkho – filed a public interest litigation (Writ Petition No. 10476/2021) before the High Court Division. They sought a declaration that Sections 155(4) and 146(3) of the Evidence Act are void, being gender discriminatory and in violation of Article 27 and Article 28 of the Constitution, which mandate equality and prohibit discrimination based on, among others, sex. Alongside the Coalition making continuous demands for reform, nationwide anti-rape protests were held by a range of organizations challenging the existing legal provisions and framing demand for action. At the motion hearing of the petition, the Attorney General of Bangladesh informed the Court that the Ministry of Law had already, on November 16, 2021, taken steps to prepare a draft amendment bill to repeal Section 155(4) of the Evidence Act. The Court kept the matter on record and fixed January 4, 2022, for the hearing and, on that day, directed the Government to submit a report to the Court on the progress of the steps taken by the government.
Based on the research findings and considering the justice system’s approach toward rape case prosecutions, the RLR Coalition then developed an amendment bill to limit the use and applicability of character evidence in sexual violence cases. It submitted the Bill to the Chair and Members of the Parliamentary Standing Committee on the Ministry of Law, Justice, and Parliamentary Affairs (‘the Standing Committee’) and other Members of Parliament at a consultation held on November 18, 2021. On behalf of the RLR Coalition, the BLAST advocacy team then met with other members of the Standing Committee to discuss the need for amendment and submitted its reform proposal.
On August 31, 2022, the Evidence (Amendment) Act 2022 was published in the Government’s official gazette.
Reform is passed
Finally, on November 3, 2022, the Law Minister, Anisul Huq, placed the amendment bill in Parliament, where it was passed unanimously. The amended law prohibits any questions to be asked in cross-examination as to the general character or previous sexual behavior of the victim. It states that such questions can only be asked with the permission of the court and, if necessary, for the ends of justice.
However, the Coalition expressed concerns in a press release about leaving scope for judicial discretion in allowing character-related evidence. The RLRC expects the engaged lawyers and the concerned judge to use the amended provision with reasonable care and that the relevant bodies shall strongly monitor the process.
Drafted by Esrat Jahan Siddiki, Program Coordinator-GBV, BLAST, with comments from Dr. Bina D’Costa, Professor, Australian National University and Senior Research Advisor, BLAST; Advocate Tajul Islam, Advisor (Advocacy and Research), BLAST; Dr. Sajeda Amin, Senior Associate, Population Council; and edited by Sara Hossain, Honorary Executive Director, BLAST.