There has been much debate on rape law in our country due to the recent heinous incidents of rape. In response, the Govt. has passed an ordinance amending the existing Nari O Shishu Nirjatan Daman Ain, 2000 and increasing the sentence of rape into death sentence. Nevertheless, there has been controversy on whether this increasing of sentence will be able to reduce the crime or not, because, the perpetrators while committing the crime does not actually think about the punishment. In this article, our discussion shall be confined in determining the age of children as a victim and also as an offender in a case of rape.
According to section 2(k) of the Nari O Shishu Nirjatan Daman Ain, 2000 (Act No. VIII of 2000), Child means any person under the age of sixteen years. According to this Act, if any person under the age of sixteen years gets raped, he/she shall be protected under the provisions of this law. An ambiguity arises, when we look at the differences of gender in this law. Section 2(e) of this Act refers the definition of rape to the section 375 of the Penal Code, 1860. Section 375 of the penal code clearly defines rape as – ‘A man is said to commit “rape” who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions …………………………………………………… Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape’. It is evident from the definition that, accordig to our rape law, rape can only be committed by a man to a woman and penetration of the sexual organ of a woman by the sexual organ of a man is required to constitute a rape. But this definition clearly lacks the case of a rape of a male child or a male person by any man or woman. Therefore, in accordance to this section, a male child under the age of sixteen years does not come under the protection of this section. This reveals the gender discrimination of our rape law in cases of a male child and also of a male person. In such a case, a case of rape of a male child is filed under section 377 of the Penal Code, 1860 under the head of ‘unnatural offences’, which is solely discriminatory and clearly violates article 28 of the Constitution as this article ensures the fundamental right of non-discrimination on the grounds of sex.
Problem arises when the perpetrator of the crime is a person of or below eighteen years. According to section 4 of the Children Act, 2013 (Act No. XXIV of 2013), “Notwithstanding anything contained in any other law for the time being in force, all persons up to the age of 18 (eighteen) years shall be regarded as children for the purposes of this Act”. Therefore, any person up to age of eighteen year is called ‘children in conflict with law’ in accordance with section 2(3) of the Children Act, 2013 and he shall be protected under this law and cannot be punished with death or imprisonment for life (see, section 33). Therefore, it becomes clear that persons of the age of sixteen years and up to eighteen years, if gets raped, will not be treated as children under the existing law (Nari O Shishu Nirjatan Daman Ain, 2000). But, if they are the perpetrators of the crime, then will be treated as children under the existing law (The Children Act, 2013).
Another problem arises, if the victim is the wife of the perpetrator. In this case, as section 375 of the Penal Code, 1860 prescribes that, “whoever has sexual intercourse with his wife not being under thirteen years of age, is not rape”. As wife is an exceptional case, the provisions of the Nari O Shishu Nirjatan Daman Ain, 2000 will not be applicable in this case. Therefore, a child under the age of sixteen years is also not protected in this case.
From the above discussion, it is clear that, the existing rape law fails to protect children of same ages. The existing rape law is solely discriminatory because, the definition of rape law fails to protect the male children, which seriously violates the fundamental right of non-discrimination under article 28 of the Constitution of the People’s Republic of Bangladesh. In this case, it is urgent to amend the discriminatory provisions and fix the age of child without any discrimination for the victims and the perpetrators.