Sexual offence: Does the severe punishment act as a panacea?

Recently, an eight-year-old girl, who is now battling for her life in the capital's CMH, was raped by her sister's father-in-law while visiting their home in Magura.

This incident has unveiled several fundamental, thought-provoking issues, namely, whether severe punishment should be considered a panacea for sexual offences and the impact of populism on adjudicating criminal offences in Bangladesh.

Populism in criminal justice

Populism, as a political and social phenomenon, has increasingly influenced legislation and governance in various areas, including the criminal justice system. In Bangladesh, populist discourse and policies have shaped court procedures, police actions, and public perceptions of justice. 

While populist ideology often appeals to the public by promising swift and decisive action against crime, it can also lead to challenges such as compromised judicial independence, excessive executive power, and human rights violations.

In Bangladesh, populist leaders and politicians frequently exploit crime and justice issues to gain public support. Tough-on-crime policies, promises of swift punishment, and portrayals of criminals as threats to national security are common themes in political discourse. Populist ideology often results in a more punitive approach, shifting the focus from due process and rehabilitation to deterrence and punishment.

The risks of populist justice

In favour of populism, it can be argued that populist rhetoric often leads to increased police presence and robust crime-fighting tactics, which may enhance public confidence in law enforcement. However, in practice, populist leaders may pressure the judiciary to issue rulings based on public sentiment rather than legal standards, undermining judicial neutrality.

Law enforcement officers frequently resort to force to achieve rapid results, including confrontations and extrajudicial executions. The pursuit of swift justice may lead to the disregard of procedural protections, increasing the risk of wrongful convictions and miscarriages of justice.

Recently, Law Adviser Asif Nazrul stated, "Law enforcement agencies must complete the investigation of rape cases within 15 days and the trial within 90 days." He further added, "The accused cannot be granted bail on the grounds of not completing the trial within 90 days. If there is any negligence on the part of the administration, specific provisions for punishment will be added to the law."

However, according to Section 20(3) of the Nari o Shishu Nirjaton Ain, the trial of rape cases must be completed within 180 days. Deoxyribonucleic Acid (DNA) testing plays a pivotal role in proving such offences. However, there are very few laboratories in Bangladesh capable of conducting DNA tests. As a result, it often takes several months to obtain the test report and identify the actual perpetrator.

Before establishing a sufficient number of laboratories and providing other technical support, it is completely unrealistic for any stakeholder to demand that law enforcement agencies complete investigations within 15 days and trials within 90 days. 

Although Asif Nazrul mentioned that the interim government would take steps to set up DNA forensic labs in every district, implementing such a project would take several months or even years. This kind of populist doctrine often aims to control and appease the general public.

Moreover, in criminal cases, charges must be proven beyond a reasonable doubt against the accused. Until then, an individual is presumed innocent. There is a well-known proverb: "Justice hurried is justice buried." This is why the concept of populism poses a barrier to the proper application and implementation of the legal system.

The right to legal counsel and due process

Another concerning populist notion is that the accused should not have the right to choose their legal counsel and that any lawyer who defends them should face public backlash. However, the Constitution of Bangladesh clearly upholds the right to legal representation. 

Article 33(1) of the Constitution states, "No person shall be denied the right to consult and be defended by a legal practitioner of his choice." Therefore, the right to legal counsel is a fundamental right, and any violation of this right allows the affected individual to file a writ petition under Article 102 of the Constitution.

Lessons from the case of Dhananjoy Chatterjee

Amidst this populist ideology, the case of Dhananjoy Chatterjee serves as a critical lesson for the judiciary, stakeholders, and the public. It remains one of the most contentious and debated criminal cases in India. Dhananjoy Chatterjee, a security guard, was convicted of raping and murdering an 18-year-old schoolgirl. He was sentenced to death and executed 14 years after his conviction.

However, concerns about his guilt, the investigation's methodology, and legal proceedings sparked significant controversy. The judiciary was under pressure to deliver a verdict quickly and failed to adhere to proper legal procedures. This case serves as a stark reminder of the principle that "even if 100 offenders go free, no innocent person should suffer."

A sustainable approach to justice

To address the current situation and ensure fair justice in society, it can be argued that the death penalty is not the only solution. Stoning rapists to death is certainly not the answer. The real solutions lie in gender-sensitive criminal justice procedures, accessible complaint systems and trials, specific convictions, psychological assistance for victims, widespread and effective education on violence against women, and the training of law enforcement and judicial professionals.

States that are unwilling or unable to invest in these measures typically seek quick fixes that fail to address the root causes of rape, neglect victims in policymaking, and do not contribute to the development of a rights-based society. Demands for the death penalty for rapists distract attention from victims, dilute fundamental concerns, divert resources, and are ultimately unsustainable.

Studies show that imposing the death penalty for rape increases the likelihood that women and children will be murdered after being assaulted. Research also indicates that the death penalty may discourage victims from reporting rape when the perpetrator is a family member, which is often the case. Furthermore, the death penalty for rape reinforces gender stereotypes and perpetuates the sexist notion that rape is worse than death or that a victim's life effectively ends after the assault.

Instead of resorting to populist rhetoric and punitive policies, a more comprehensive and justice-oriented approach is required to ensure that victims receive the support and protection they deserve while upholding the principles of due pro cess and human rights.

Kanak Kanti Karmakar is a Lecturer in the Department of Law & Justice at North East University Bangladesh, Sylhet. 

Pritom Kanti Karmakar is a LLB Student at Stamford University Bangladesh, Dhaka. Email: pritomkarmakar36@gmail.com