‘Beasts was the adjective inscribed to rapists by the Prime Minister of Bangladesh. The vicious social disorientation of rape isnt a newly inducted criminal trend nor can it be attached distinctively to any society, culture or country. Appalling statistics have been engendered by various social and legal res-earchers. The United States solely reports of one-sixth or approximately 17-percent women being subject and object of rape. The Regional South-Asian countries have infamously been in the lime-light of rape unswervingly for a considerable period. A summation of 32,500 rape cases were registered in India in the annual span of 2017. Astonishingly, Pakistan harbors a rape case every hour. Bangladesh on the other hand has had its share of rape victims, the year 2019 embraced 1,413 rape victims which was numerically double the amount of the previous year. Article 16 of the Universal Declaration of Hu-man Rights provides for marital independence on attaining full age without any limitation, i.e., sexual rights are universal and such must be consented. It is well settled in law that interpretation and application of a statute should be pro-tanto appropriately con-sistent with established International Law save in so far the language used does not defeat the purpose of the statute. The already existent penal law being deficient in taming vehemence like rape in Bangla-desh necessitated the enforcement of Act XVIII of 1995, which was there after repealed and reenacted in the form Act No VIII of 2000. 

The enactment is a special statute with aspirations of minimizing and gradually eradicating crime against women and children. Rape can be categorized as genocidal as it immaculately transpires into the definition of genocide provided in the 1948 Con-vention on the Prevention and Punishment of the Crime of Genocide. To better understand lets scru-tinize a few definitions of rape. The lexis originates from the Latin term ‘rapio, which on translating literally means to seize. The primary definition is provided in Section 375 of the Penal Code, 1860, the same has been adopted in Section 2 sub-section 5 of Act No VIII of 2000 which states that rape is said to have been committed when a male compels sexual intercourse on a female against her will and without her consent where; 

i. Willingness or inclination to sexually involve with the male was absent;

ii. Intercourse was not consented, neither pre-viously nor instantaneously;

iii. Consent may have been attained under the dis-tress of injury;

iv. Consent was obtained by maneuvering the in-flicted into believing that the perpetrator was her lawful husband. 

Blacks Law Dictionary stretches rape further to unlawful sexual intercourse under the influence of intoxication or in a state of unconsciousness infer-ring to instability of the mind. Rape has further been expounded as the ultimate violation of ones own self, or of ones personality and not mere physical assault. Such vehement act proliferates vulnerability by adversely impacting the consciousness of the inflicted, in short torments the soul of the victim or the survivor. Further, intercourse with a minor under fourteen years of age has been established to be ipso facto rape. From the trend of definitions, it can be unvaryingly concluded that rape is the felonious action of coercive, forceful, assertive, and assaulted, un-consented, unwilled, unpermitted sexual inter-course where the victimized female is deprived of her honor, violated of her chastity and jeopardized of her social life. 

Bangladesh in the year 2020 embraced two variant pandemics, firstly the obvious Covid-19 and se-condly the upswing of rape. The latter led to organi-zed protests deprecating the rapists. The intention behind such pandemonium was heard and responded affirmatively by the government (Disha, 2021). Thence, the Statue was amended whereby maximum penalty was imposed for rape. 

Aims and Scope 

Astoundingly the aberrant action of rape has been on the upraise, the necessity to embrace special enact-ments to currently combat and to avert future occur-rences is substantively justified. This study attempts to navigate 

a. The Constitutional and Legal justification of the Amendment Act 

b. Extent of Statutory protection provided i.e., justice being served to the protected

c. Elaborate the understanding of the notion of Consent 

d. Misapplication of Law i.e.  Can the accused be falsely implicated?

This study attempts to elucidate rape nexus the recent amendment of Act No VIII of 2020 i.e., end-eavoring to illuminate the subject within the outline of the scope aforementioned in Section 1.1. This study is a normative legal research, and thus, will exhibit the results based on relevant content evaluation of available literature or secondary data. The preference of deploying qualitive juridical met-hod in the course of this study is because qualitive analysis signifies the interconnection and inter-dependency between concepts, hypotheses and data which is vast and varied, thereby escalating the complexity of its quantification. Moreover, the Legal System in Bangladesh is one recognized as Common Law, i.e., laws fashioned by judges through their judgements. The Appellate Division in the case of ACC vs Barrister Nazmul Huda held that law de-clared by the Division manifests mandatory binding effect on Courts lower than the Division i.e., the High Court Division and all subordinate Courts. Furthermore, all subordinate Courts are under the superintendence of the High Court Division and law declared by either Divisions of the Supreme Court befalls the subordinate Courts irrevocably and judgment (s) of the lower Courts must not contradict or be inconsistent to that passed by either Divisions as such is unlawful or illegal. The same is provided and approved constitutionally via. Article 111. With that in mind the comprehensive data is scrutinized, deciphered and cohesively organized into a unit. Therefore, the vindictive action of rape shall be scrutinized under the shade of scholarly researches, pari-materia enactments and reported litigations of Bangladesh and other States 

The 2020 Amendment 

In Ibrahim Dewan vs State, the presiding bench expressed the necessity to increment then penalty imposed on sexual perpetrators, and recommended that such penalty must be maximum, acting as a shield of deterrence for potential offenders. While also stating that the crime of rape is a menace to society and humanity in general. On October 13, 2020 ensuing the vicarious upraise of rape, penalty for such post attaining assent of the President, via an amendment ordinance of Act No VIII of 2000 was substituted from ‘lifetime rigorous imprisonment to ‘death, provided the charge of rape is proved be-yond every reasonable doubt against the accused. 

Wherein injuries inflicted during the occasion of commissioning rape results in death of the victim, awarding death sentence is only fair. Though the Constitution provides for protection of right to life and personal liberty which is however subject to reasonable limitation within the circumference of law. The same imposition is also manifest on free-dom of movement, freedom of assembly and asso-ciation and other Fundamental Rights. Heretofore, the repealed Act No XVIII of 1995 statutorily trans-acted the same aspects where originally the penalty prescribed for rape was that of death sentence in compliance to which the Appellate Division in the case of State vs Awal Fakir transpired to ascertain that under no circumstances the Court holds any dis-cretion to award remedial sentence lesser than statutorily defined as contemplated under section 423 of the Code of Criminal Procedure. Article 27 read with Article 28 of the Constitution of Bangla-desh provides for equality before the law while being indifferent to any subject of the state based on gender. Further, the constitution confirms the pro-tection of law being the inalienable right of every citizen where every citizen is guaranteed security of life and personal liberty and shielded against cruel inhuman or degrading punishment or treatment. In BLAST & Others Vs Bangladesh & Others, the rev-iew petition of the appellant, Md. Shukur Ali who was a death row convict and such was awarded for sexually assaulting the minor victim Sumi Akhter to death, the aforementioned constitutional provisions were invoked against the vires Section 6(2) and Section 34 of Repealed Act No XVIII of 1995 and Act No VIII of 2000 respectively where both of those sections provide for death penalty. The Court established that obliteration of capital punishment in Bangladesh in view of the social, economic and edu-cational upbringing would only fail to preserve the dignity of the downtrodden females of the state. Capital punishment is eradicated in most of the Wes-tern countries and the afore-stated case makes men-tions of the same. However, the results of the Gallup Poll conducted in 2016 generated as much as 60% (sixty percent) Americans supporting death penalty. A survey conducted by Sanjeev P Sahni and Mohita Junnarkar resulted in 77.7% (seventy-seven-point seven percent) among the 25210 participating India-ns opinionating in favour of capital punishment for the acrimonious crime of rape. The Asian Human Rights Charter advocates abolishing capital pun-ishment, however, also provides the flexibility of imposing such penalty for crimes of heinous nature where execution of the felon must be publicly car-ried out hence forwarding the deterrent aspect the amendment acknowledged to convey. A deterrent sentence is evoked when the perpetrator holds a position of dominance and misuses his position and especially when the inflicted is a minor. Moreover, while awarding the sentence after the offence of rape against the accused is proved beyond all reasonable doubts the enlisted aspects must be considered –

i. The age of the accused at the time of the com-mission of offence

ii. Profession, income and family dependency on accused 

iii. Position of the accused i.e., whether or not the infiltrator holds position of dominance over the victim and there exists possibility of exploiting such position

iv. The sentence must be pronounced while safe-guarding the offender

Conclusively, in the case of B.G. Goswami vs Delhi Administration, the Supreme Court of India esta-blished equilibrium between deterrence and refor-mative theories of punishment, stating that a sen-tence serves as a platform of realization for the acc-used that s/he has not only wronged ones own self but also the society in general. The penalty is awar-ded with two significant aspirations viz. first, to allow a platform of reformation to a convict to be a rehabilitated into a law abiding citizen. Second, to promote deterrence, i.e., the sentence serves to con-sequentially warn potential offenders. Hence, the legislative mind substituting remedial death sentence for the offence of rape is sufficiently justified and is well intra vires.    

Statutory Victim Protection 

In State vs Mostafizur Rahman while sympathizing the victims, the Apex Court stated that for an un-married girl to publicize the infliction of rape unto her is a symbol of utmost bravery. Socially, Bangla-desh is characteristic conservative whereby the victims are overlooked and outcaste which in turn obliterates the person of the victim, her diffidence, her aspirations, her chastity and those are infinitely valuable and violable assets. Considering the seve-rity complex of rape, prior to this enactment, the offence was included in the Schedule of the Special Powers Act, 1974, and was tried by the Special Tribunal. In Syed Sajjad Mainuddin Hasan vs State, the Apex Court held that the language used in Section 375 of the Penal Code, 1860 is non-sub-liminal in regard to penetration as mere penial insertion without consent is adequate to constitute the offence of rape. A contention for complete pene-tration in a case of rape is not a mandate, partial penial insertion with or without ejaculation as hymenial crevice rupture is not essential, the mere attempt of penetration is sufficient to constitute the offence. Redness and abrasion of the medial side of the labia majora with white fluid discharge infers minor penetration, i.e., sufficient to establish rape. Evidentially inference is drawn based on the veracity of the accusation, usually when the victimized woman is vulnerable and socially downtrodden comes forward narrating her shameful ordeal, she has no gain in falsely accusing anyone. Proactive resistance offered by a deceased victim conferring resentment between the accused and victim is admis-sible in evidence as a statement in an accusation of rape. Act No VIII of 2000 has an overriding effect, when the victim is a minor; it is only safe to presume that her genitals arent fully developed to accom-modate penial insertion. Traces of sexual violence and vulvar congestion found in person of the minor victim conclusively confirms rape. In Suroj Ali vs State, rape on the minor victim was confirmed by the medical officer and was corroborated by indepen-dent, non-partisan witnesses. Such being compli-mentary to one another allowed the Court to rightly draw the conclusion of conviction. Presence or availability of eye-witness (es) is the highest degree of evidence. Wherein, the examined witnesses con-sistently exert seeing the commission of the offence and profuse bleeding from the private part of the victim. On being medically examined, it was conclu-sive that such profuse bleeding resulted from forceful sexual encounter. Under such circumst-ances, the accusation of rape is undoubtedly proved beyond every reasonable doubt. The veracity of the FIR is confirmed and stays put when such is stood by the plaintiff during trial, confirmed and appre-ciated by medical evidence and corroborated by the statement or testimony of the inflicted victim. An uncorroborated testimony of a solitary witness is seldom safe to transact conviction; however, such is the case, particularly in sexual offences. However, there must not exist previous hostility between the victim and the accused and such must be corrobo-rated by neutral witnesses. A conviction should not be irrationally overturned like in the case of Badal vs State, whereby the appellant with another was alle-ged to have commissioned rape on a minor. The minor-victim was seen by the witness without her lower garment; however, the medical report found no sign of rape. Under such circumstances, the attempt to rape is inferred. Further, when an accused voluntarily confesses the crime extra-judicially about forcefully unclothing the victim and such extra-judicial confession is corroborated by the confessed-to individuals and the medical examination confirms that the deceased minor victim was exposed to attempt of rape before being murdered, such evokes the penalty for rape. Furthermore, deposition of a minor female victim consistently and accurately  depicting the occurrence and making mentions of discharge of the male fluid contemplates rape, the testimony can alone suffice as the ground for conviction as it is judicially regarded as a vital piece of evidence and corroboration should only be looked for when there exists compelling reasons for it, or the testimony raises doubt in the judicial mind, corroboration only assists in strengthening or further confirming an accusation. Conviction for the atro-cious crime of rape can be based on evidence of a solitary witness provided such is consistent, reliable and satisfies the judicial mind even without injury on the person of the victim.

Understanding Consent 

The definition of rape provided in Section 375 of the Penal Code, 1860 which was later adopted by the Prevention of Oppression against Women and Child-ren Act, 2000 has accentuated the concept of ‘con-sent, however, such has not been given any definite meaning within provisions of the afore-mentioned statutes. The sole statutory understanding of consent in Bangladesh has been embodied and clarified in the Contract Act, 1872. On coalesced reading of Section 13 and 14, it can be affirmed that consent is the establishment of agreement on the same thing in the same sense between two or more individuals without the external effect of coercion, undue in-fluence, fraud, misrepresentation and mistake of either fact or law. Inference of consent maybe con-nected to freedom of thought and conscience, a guaranteed fundamental right of every citizen.  In the case of Mohammad Koya vs. Muthukoya, it was held that under legal terms, consent is sturdier than know-ledge as it implies conscious assent. Moreover, consent has been demarcated as an agreement embarked on choice, made by an individual in the position of freedom and capacity to make that choice. Therefore, consent denotes voluntary partici-pation, post independently exercising between resistance and assent, while being aware of the significance and moral quality of the act. Consent can be synonymously attached to agreement, appro-val or permission given voluntarily by a competent person in regard of some act or purpose. The most explicit definition of consent to sexual intercourse has been disclosed in Section 74 of the British Sex-ual Offences Act, 2003 stating that someone agrees to vaginal, anal or oral penetration only if s/he agrees by choice to that penetration and has the freedom and capacity to make that choice which may either be implied or expressed, given freely to initiate sexual intercourse or sexual contact. The Irish Go-vernment incorporated the same definition in the Criminal Law (Sexual Offences) Act, 2017. Wills J in Clarence resonated that consent obtained by means of fraud or treachery is not be regarded as consent except when consent of a female for inter-course is obtained in exchange for bad money, con-sent is present even where it is obtained by fraud. The maxim of contract consensus ad idem i.e., agree-ment between two or more individuals on the com-prehended understanding of the contractual terms and conditions is pertinent in case of consent invo-lving intercourse. The Department of Justice of Canada outlined sexual consent in Section 273.1(1) of the Criminal Code as voluntary agreement to en-gage in sexual activity which however extends further to elaborately construe consent in the follo-wing subsections averring; 

i. Consent given by a representative of the com-plainant is not consent 

ii. Incapability on the counterpart of the com-plainant to consent e.g., age limitation 

iii. Obtaining consent via dominance by a man in a position of power 

iv. Expressly un-consented 

v. Rescinding previous consent either by express words or implied action

In the case of State of Himachal Pradesh vs Dharam Dass, the accused was rewarded acquittal as the prosecutrix had accompanied the accused and resided with him for about a week. The prosecutrix wasnt confronted by any threat yet elected not to narrate the incident to anyone. From those facts, the Court drew inference of consent to cohabitate with the accused as the prosecutrix was not a minor. Similarly, in the case of Biram Soren vs State of West Bengal, the prosecutrix distinctively knew the accused and intentionally did not reveal his identity earlier to anyone including her parents. The identity of the accused was disclosed by the prosecutrix only on a later date to the doctor, who examined the pro-fuse vaginal bleeding and confirmed sexual inter-course ‘for with ‘as its reason. Hence, the Court extracted inference of consent by the prosecutrix from the above and also the fact that the prosecutrix was not a minor and the delay in lodging FIR could not be adequately explained by her. Recorded denial on the counterpart of the victim to have been ex-posed to rape should be preponderating considered. The Court is not obliged to impose aspersion on her chastity that she had become the victim of rape which as a matter of fact is an infiltration on womanhood generally. Carole Pateman in her Article ‘Woman and Consent construes consent through the ideological figures of freedom and equality whereby rational persons obligate them to one another enter-ing voluntarily and mutually in amenable agree-ments. Consent further is implied when the par-ticipants of the intercourse are under marital bond, especially in a case where a child is begotten out of wedlock. In Shafiqul Islam vs State, the alleged victim, a Hindu girl eloped from her fathers house with her Muslim lover, accepted the religion of Islam and subsequently married him, the charges of rape against the appellant were found to be bogus. Moreover, in Firoz Chokder vs State, statement of the victim corresponded that she was the lawfully wedded spouse of the accused-appellant and that their marriage was solemnized by the Nikah Regis-trar, later sworn in an affidavit before the Notary Republic. Inference to being habitually involved in intercourse with the accused is drawn; hence the allegation of rape is unsustainable. Consent given freely as a result of free, cognizant and voluntary intermingling leading to intercourse does not invoke or fall within the purview of any legal action. Con-sent is characteristic prior agreement and such is groundless when attained after the commission of the act. Unarguably, rape is characteristic contra bonos mores however in todays world; consent alone does not sufficiently transubstantiate the hindrance of rape into the pledge of mutually desirable sex

Victimized Accused 

In their research, Charlotte Triggs OBE mentions that women lie about rape and has characterized rape as regret sex. J.P. Martin & D. Webster in their book ‘The Social Consequences of Conviction mentions ‘Once a man is convicted of an offence, and parti-cularly once he goes to prison, he will begin to lose the approval and support of his law-abiding family and friends. His ties to them will be cut or weakened. He cannot, however, exist without a degree of social approval from another and less scrupulous source. A systemic approach to identifying the existence of prima facie case by the police is deficit in law, such deficit when seen in the Indian perspective only accumulated 53.2 percent of false rape allegations between 2013 and 2014. In the month of October 2017, the world of social media was taken over by the #MeToo hashtag, where the women who have been sexually assaulted previously shared their stories. The Pew Research Centers 2018 conducted research, showed that 31 percent of Americans took offence where innocent men were falsely accused of sexual assault that ultimately resulted in com-promised reputation and wrongful conviction. The Apex Court of Bangladesh instituted the directory of evaluating the materials on record confirming the prima facie and nature of the allegation judiciously. Proceeding with a false allegation without confir-ming prima facie nature of such allegation is detrimental and also unnecessarily consumes the time of the Court as the allegations brought forward is eventually likely to be unsubstantiated in Court. The Judiciary of Bangladesh is well vested in actus curiae neminem gravabit i.e., the act of a Court of law shall prejudice no human. This doctrine em-bodies the jurisdiction of the Court to exercise based on necessity during a proceeding or an appeal even when the parties of the case has squashed their dis-parities. De Zutter, et al., in their research proposed the theory of fabricated rape to pertinently distin-guish between true and false facts. Where the alle-gations are based on truth, the facts are derived from rumination of events and where it is false the facts are decorated fiction. An allegation based on false-hood usually resorts to summarizing the facts. When the scandalous crime of rape actually occurs, inci-dents that traumatize the victim is narrated, the verbal altercations and interactions usually act as corroboration of the truth. Rape being unconsented, characteristic forceful sexual encounter contem-porarily leaves behind traces or marks of violence on person of the victim by virtue of the action. The absence of such serves as a focal point in exposing and differentiating false accusation from a true one. 

Allegations or the statements of allegation made or recorded by the victim must be proved in Court. Especially in cases where the prosecutrix is the lone witness and the only available corroboration of the incident is hearsay from the narrations of the pro-secutrix, the truth behind such allegation must be assessed. In the case of Abdul Latif vs State, apart from satisfying the aforementioned circumstance, the prosecutrix collapsed before the offence of rape was commissioned on her, it is only justified for the Court to presume that she could not have identified the rapist due to her insentient, hence did not risk convicting the appellant as the allegations could not be proved beyond reasonable doubts. False alleg-ations are usually the result of foreign ulterior mot-ives which is mostly of personal nature the likes of vengeance, hurt, protecting family honor, et cetera. Provided accusations of rape brought by one party against another between who established antagonism is prevalent, the facts of such allegations must be scrutinized with paramount care. Independent wit-nesses must be present to corroborate the accusation under such circumstances. In the cases of Md Sobuj vs State and Md Khairul vs State, both share the common bound of sexual accusation by a rival. In the former the enmity was due to personal differ-ences and the latter was based on land dispute. How-ever, in the former case, medical report was not done and in the latter case the report disfavored the pro-secutrix. Resultantly, no evidentiary trace of rape was found on person of the victims neither there was any corroboration by the disinterested neighbors. The evidentiary value of marks of violence on person of the victim has been transcript in the deci-sions of the Superior Courts innumerably. While establishing the facts of the case, the then wearing apparels of the victim must be produced and exa-mined and the description so provided must be at par to the sketch-map. In case, the sexual encounter did occur, the burden of establishing consent of the pro-secutrix befalls the accused exception being in the case of a fully grown adult woman where the prosecution must establish that such sexual enc-ounter was without the consent of the victim. In Golam Ahmed vs State, it was established that per-petual sexual encounters cannot be unconsented or obtained by fraud especially where the prosecutrix and the appellant reside together as a married couple for a considerable period of time. Hence, circu-mstantially the shared intercourse is not a single day event. Furthermore, in Sanjay Kumar Biswas vs State, the prosecutrix at her own concurrence arrived and stayed with Romeo at the refuge provided by the accused appellant. Amidst free mixing, it is only safe to assume that two adults of opposite sexes amicably indulged in intercourse. Thereby, the Bench con-cluded that consent was neither deceitfully nor forc-efully obtained. Resistive force must be applied by the victim to promulgate that the intercourse was unconsented. As resistance is usually not exercised in sexual encounters where the indictment is false and the alleged victim is a willing partner. Incli-nation of the prosecutrix to indulge in intercourse with the accused can be shown by- defaults of legal technicalities like inordinate delay in lodging FIR, non-examination by a medical officer and corro-borative evidences such as non-production and examination of independent, non-partisan, disint-erested witness privileges the accused with the benefit of doubt. Such liabilities of proof are over-looked when the victim is habitually involved in intercourse with the accused making the accusation uncredible. Sexual agreement is conclusive when the participating female is categorized as a sex worker. To establish rape on females of such profession, pe-rsuasive evidence and supportive corroboration is necessary. It is no surprise that innocent people have been falsely implicated and wrongfully convicted for rape previously. In the present scenario, keeping the recently amended penalty in view, the Courts ought to take utmost care in conducting litigations of such accusation to unmistakably separate a false alle-gation from a true one.  

The vehement action of rape is homogenously transparent to homicide of a victims chastity. From a general perspective, any action done with consent generates pleasure and vice-versa, the same is ex-clusively applicable in sexual contexture. The freedom of thought, conscience, and that of move-ment is constitutionally guaranteed, however, within the encirclement of limitation and such imposed con-straints are the unacceptable, unsocial, penal-able demeanors such as rape. From the course of this study, it is conclusive that rape is established when a female is forced into sex or an attempt of uncon-sented intercourse is perpetrated. Such forceful, unconsented act defers resistance whereby marks of violence found in person of the victim, the condition of the then wearing apparels, confirmation of the accusation by disinterested witness serves as strong pieces of corroborative evidence. The Nari-O-Shishu Ain is primely executed to suppress the outburst of violence against women and children. The accom-modation of the perniciousness of rape has served justice to its protected subjects as the designated Special Tribunals act fast and consistent. However, application is always accompanied by misappli-cation; use is always transverse to misuse. It is also evidently seen from this study that innocent people have been falsely implicated, again in the words of Charlotte Triggs OBE these are nothing but regret sex. Since, the amended penalty is capital, the presiding Courts ought to be extraordinarily cautious while hearing, scrutinizing and dispensing sentence as not to convict an innocent wrongly. Given, the social predicament of the country, the amendment is of utmost necessity to deter potential preparators. 

Such is visibly seen when the practice of throwing acid to permanently burn faces of females was pre-valent in the country. Then Government amended the penalty for such to maximum and successfully abolished the entire trend. This amendment finds its base in the same composition and expects to accomplish similar outcomes.

This research could not have been achieved its due results without open access to late Advocate S.M Nazrul Islam Thandus law library, Ullapara. In due recognition of such, the author embraces the ethical professional accomplishments and the forbearing ad-mirable personality of the late learned Advocate with standing ovation and prays for his honor in the hereafter.

There exists no potential conflict of interest between the author(s).