Rape Cases and Physical Violence during Communal violence
Rape Cases and Physical Violence during Communal violence
Introduction:
Rape is the most perverted expression of sexual abuse and from a feminist perspective it is the worst kind of illegal patriarchal practice. Unfortunately rape and sexual abuse of women is prevalent in every society, even in the most developed nations, in varying degrees and in different forms.[1] During communal violence, there is always a plan of the group involved in the violence to spark the fear through rape.[2] In any communal violence, rape becomes the unspoken fear at the back of many minds in religious minorities.[3]
Communal violence is a consequence of the spread of communal ideology.[4] Communal violence is committed across ethnic or communal groups which includes conflicts and other forms of violence between communities of different religious faith or ethnic origins.[5] Stanley J. Tambiah identified that the reasons of communal violence are deeply rooted mainly on hatred, hostility and retaliation.[6] Unfortunately, communal violence continued[7] in independent Bangladesh even after its Independence in1971,[8] but back then it was difficult to get information as incidents were not reported properly.[9]
During communal violence, mass people are killed or driven away from their native land on the basis of differences with the prevalent racial, religious or linguistic group.[10] Women and girls become the worst victims of communal violence.[11] The violence inflicted on women by men of the opposite religious group during communal violence involves kidnapping, rape, and mutilation of the genitalia or public humiliation.[12] Perpetrators of violence use rape as a weapon to terrify the entire community and to force families to get out of their homes in times of communal violence.[13] The social stigma attached to rape and its linkage with women’s chastity and honour of the family promotes a silence among the victim[14] of rape during communal violence.
This chapter will address the issues, which an activist, lawyer needs to know while assisting a victim of rape and physical violence during communal violence. Human rights activists, community leaders and lawyers need to understand the legal framework while they are working with the victims of rape and physical violence. This chapter will focus on the following issues:
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International legal framework regarding rape and sexual harassment during communal violence |
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Nature of violence upon women and girls during those communal violence |
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Laws of Bangladesh addressing rape and communal violence |
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Incidents and reasons behind communal violence in Bangladesh |
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Case Studies |
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Steps an activist or an advocate undertake to assist the victims of rape during communal violence |
International legal framework regarding rape and sexual harassment during communal violence:
Both rape and sexual harassment is strictly prohibited under international law. Rape and sexual violence during communal violence is also prohibited under the principles of international humanitarian law (IHL), if the communal violence is considered as non-international armed conflict. For example, the communal conflict between the Christian majority and the Muslim minority group in Central African Republic (CAR) is termed as non-international armed conflict.[15] However, as per the International Committee of the Red Cross (ICRC) two criteria have to be met before a communal violence can amount to a non-international armed conflict, i.e., the armed groups involved must show a minimum degree of organization and the armed confrontations must reach a minimum level of intensity.[16] Currently, the following international legal framework is available regarding rape and sexual harassment during communal violence:
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SL No. |
International legal framework regarding on rape and sexual harassment |
Articles |
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1. |
Customary Law |
Rule 93 provides that State practice establishes prohibition of rape and other forms of sexual violence as a norm of customary international law. |
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2. |
Rule 156 provides that serious violations of international humanitarian law constitute war crimes. Sexual violence as a war crime. |
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3. |
Geneva Convention relative to the Protection of Civilian Persons in Time of War,1949 |
Article 27(2) provides that (...) Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. (...) |
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4. |
,1993 |
Article 18 provides that 'Gender-based violence and all forms of sexual harassment and exploitation (...) must be eliminated
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Communal Violence and Bangladesh:
In 1992, the destruction of the Babri Masjid in India led to large scale communal violence in Bangladesh. Incidents of looting of Hindu shops and business, targeted sexual violence took place and minimum of 10 people died.[17]
In 2012 series of attacks on Buddhist temples, houses of inhabitants in Ramu Upazila in Cox’s Bazar District was held by the local mobs on the midnight past 29 September 2012.[18] But no rape cases were found to be reported.
The Tribunals –1 of the International Crimes Tribunals of Bangladesh in February 2013 sentenced Delwar Hossain Sayeedi, Vice-President of Jamat-e-Islami, to death, for committing crimes against humanity during the 1971 War of Liberation, which includes charges of arson, looting, forced conversion and made emigration of Hindu communities.[19] Following the verdict, Hindu homes, business and places of worship were targeted all over the country during a series of attacks by the supporters of Jamat-e-Islami over a period of weeks.[20] On 5 December 2015, a series of blasts targeting a Hindu ceremony in Dinajpur left six worshippers injured.[21]
On October 31, 2016 in Nasirnagar, Brahmanbaria district, a mob of at least 100 Muslims violently attacked a Hindu village. The attack left dozens injured and at least 15 Hindu temples and over 200 homes badly damaged and looted. Smaller attacks against Hindus in the area also were reported.[22]
Reasons behind Communal Violence:
The problem of communal violence has been classified by different scholars, like - Mohsin Iqbal Najar, Arunima Dey etc., attributing various causes and suggesting differentmeasures to counter it[23]. These scholars (i.e, Mohsin Iqbal Najar, Arunima Dey)[24] have proposed a multiple factor approach in which they give importance to several factors together. Ten major factors have been identified behind communal violence:
The religious difference is used to ‘hide’ non-religious social needs, aspirations and conflicts.[25] Furthermore, violence against women can be considered as a way for the men to reclaim their masculinity.[26] One can claim that women became ‘objects of violence,’’ since their bodies were anchored to the ideology of religious and national honour.[27] It can be said that ‘women’s bodies represented the ‘purity’ of the nation and religion, thus were guarded heavily by men, an attack on these bodies became an attack on nation and religion.[28] Furthermore, during communal violence where women’s bodies are considered as the most potent and symbolic targets, suicides committed by women can be praised as heroic acts of religious pride.[29]
National legal framework on rape and sexual harassment during communal violence:
Rape is forcible ravishment of a woman/girl without her consent.[30] There is no particular legal provision, which directly provides remedy regarding rape and sexual harassment during communal violence. There are general provisions in the Constitution and Criminal Laws of Bangladesh to ensure physical protection and dignity of women, providing punishment for rape.
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SL No. |
National legal framework on rape and sexual harassment |
Articles/Sections |
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1. |
The Constitution of the Peoples Republic of Bangladesh, 1972 |
Article 27: All citizens are equal before law and are entitled to equal protection of law. |
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2. |
The Constitution of the Peoples Republic of Bangladesh, 1972 |
Article 28 (1): The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. Article 28 (4): Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens. |
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3. |
The Constitution of the Peoples Republic of Bangladesh, 1972 |
Article 31: This article ensures the protection of the law and to be treated in accordance with law. |
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4. |
The Penal Code, 1860 |
Section 354 provides that Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. |
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5. |
The Penal Code, 1860 |
Section 375 defines rape and section 376 provides punishment for rape as Imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, unless the woman raped is his own wife and is not undertwelve years of age, in which case he shall be punished withimprisonment of either description for a term which may extend to two years, or with fine, or with both. |
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5. |
Nari O ShishuNirjatan Daman Ain (Women and Children Repression Prevention Act), 2000 |
Section 9(1) ensures the punishment for rape as death or lifetime rigorous punishment. Section 32A provides that Deoxyribonucleic acid (DNA) in accordance with the provisions of the Deoxyribonucleic Acid (DNA) Act, 2014 (Act No. 10 of 2014), in addition to the medical examination under section 32 of the person accused of the crime and the victim of the offense under this Act to be examined. |
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6. |
National Women Development Policy, 2011 |
As per this policy, clause 8,18,19 talks about rape and elimination of any kind of discrimination. |
The following tabular shows the status of offences under section 354, 376 of the Penal Code-1860 in SCHEDULE II of The Code of Criminal Procedure, 1898.
SCHEDULE II (The Code of Criminal Procedure-1898)
Tabular Statement of Offences
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1 |
2 |
3 |
4 |
5 |
6 |
7 |
8 |
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Section. |
Offence. |
Whether the police may arrest without warrant or not |
Whether a warrant or a summons shall ordinarily issue in the first instance |
Whether bailable or not. |
Whether compoundable or not. |
Punishment under the Penal Code. |
By what Court triable. |
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354 |
Assault or use of criminal force to a woman with intent to outrage her modesty. |
Ditto |
Ditto |
[Bailable |
Compoundable when permission is given by the Court before which the prosecution is pending |
Imprisonment of either description for 2 years, or fine, or both |
Ditto. |
As per Article 28 of The Constitution of Peoples Republic of Bangladesh, the State may make special provisions in favour of women or children or for the advancement of any backward section of citizens. Thus, it can be said that for ensuring remedies for the victims of rape and sexual harassment during communal violence,the State may take necessary measures for making special provision.
Case Studies:
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Rape victim of 1947 Violence The stories of what happened to women during partition are marked by a particular brutality, perhaps partially explained by the intensely political nature of the rift. Borders and Boundaries: How Women Experienced the Partition of India, by Ritu Menon and Kamla Bhasin,[31] opens with one woman’s testimony that recalls an especially gruesome detail: she saw patterns of tooth-marks disfiguring the skin of many rape victims. In Borders and Boundaries, the authors detail cases in which women’s bodies were tattooed with symbols of their attackers’ religions. Several attacks included men carving political slogans, such as “Pakistan Zindabad” (Pakistan forever) or “Jai Hind” (Long live India) into a woman’s skin demonstrating the ways that women’s bodies formed living trophies of war. |
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Purnima Rape Case During Communal Violence in Sirajganj[32] During ninth parliamentary election 2001, probably 200 minority women were raped in scattered nationwide communal violence following the election and Purnima is one of them. On October 1, Purnima Rani Shil (13) along with her friends went to Purbo Delua High School in Ullahpara, Sirajganj to their private tutor. They didn’t know that the teacher was working that day as a polling agent of Awami League (AL). On seeing them he told them to sit in the polling room while he left for a bit. He didn’t come back. By this time, people coming into vote thought Purnima and her friends were polling agents of AL. A week after the incident, on the evening of October 8, around 60-80 people came to purnima’s house and started beating up Purnima and her family members. They started to pinch Purnima, took away her clothes and tied her face with a gamcha. Then they took her to a nearby empty field and raped her one after another until she lost her consciousness. |
2.6: Steps an activist or an advocate should undertake to assist the victims of rape and physical violence: (Please click here)
Format of a FIR ((Fictitious):
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To Subject: Entry of an Ejahar.
Dear Sir, I beg most respectfully to state that I am Surovi Debi, S/O Salam Khan, Village - Banker Hat, Police Station - Bhola Sador, District - Bhola. I am a student of class 8. On October 1, 2001, the day of the ninth parliamentary election, I along with my friends went to konoha High School in Banker Hat, Bhola to my private tutor. We didn’t know that our teacher was working that day as a polling agent of Awami League (AL). On seeing us, he told us to sit in the polling room while he left for a bit. He didn’t come back. By this time, people coming into vote thought me and my friends were polling agents of AL. A week after the incident, on the evening of October 8, around 60-80 people came to my house and started beating up me and my family members. They started to pinch me, took away my clothes and tied my face with a gamcha. Then two of them named Khairul and Shawon took me to a nearby empty field and raped me one after another until I lost my consciousness. Then I was admitted in the Bhola Sadar Hospital and now I am under treatment. I am late for two days to lodge the petition because of my treatment. I, therefore, pray and hope that you would be kind enough to arrest and present the above miscreants before the court of law for trial and punishments.
Date: 03-10-2001 I remain Sir Surovi Debi |
Format of a Naraji Petition (Fictitious):
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Chief Metropolitan Magistrate Court, Bhola. Information: Bhola sadar thana, case no- Section: 375/376 of Penal Code.
Surovi Debi ---------------- Claimant Vs.
Khairul Islam Shawon Talukdar ------------------------ Respondent
Subject: Filing Naraji Petition against the final report submitted by the Investigating Officer.
That the claimant beg most respectfully to state that: 1. That the claimant filed a FIR on 3rd October, 2001. 2. That the investigating officer was investigating regarding the issue stated in FIR. 3. That the claimant mentioned name of two respondents who did the crime. 4. That the investigating officer did not investigate properly and influenced by the respondents and submitted the final report as this final report does not include the name of the respondents as the claimant mentioned in the FIR. 5. That being aggrieved by this final report, the claimant filed this naraji petition. 6. That if the investigating officer investigate properly and took the statement of the witnesses properly, he surely could submitted the correct version of the report. Therefore, it is necessary to do further investigation otherwise the claimant will not get the justice.
Therefore, the claimant is requesting to this honourable Court to order for further investigation for ensuring justice.
Date:
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Please click here to find a format of a CR case.
Exercise:
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On September 8, 2013, during the communal violence in leaf village Asha rani (Pseudonym) (15) had hidden herself in sugarcane field to escape from the attackers. Suddenly, three attackers from the attack discovered her hiding in the field. She was raped by three men namely Asmat, Delwar, Fahim and was threatened with the dire consequences by the trio. After this incident, she felt hopeless as her house had been burned and she was too weak to find her relatives. After that day she was found by her pishi, Korobi. Then she wanted to file FIR but her parents shut her mouth and asked her not to tell anything to anybody. But she has decided to file FIR. When she went to the police station of leaf village with the FIR, the officer in charge of the police station denied accepting it. Then she has decided to file a Complaint Register case (CR) case to the court. However, the Court has denied to accept the case. |
Suppose, you are an activist/a lawyer. Now-
- Write a FIR regarding this given fact on behalf of Asha Rani.
- Write a Naraji Petition regarding this given fact on behalf of Asha Rani.
Outcome of this Chapter:
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SL No. |
Outcomes |
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1. |
Analysing the incidents and reasons for communal violence in Bangladesh after 1971 |
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2. |
Identifying the nature of violence upon women and girls during those communal violence |
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3. |
Understanding the laws of Bangladesh for addressing rape or any kind of violence towards women |
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4. |
Case Studies |
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5. |
Steps an activist or an advocate undertake to assist the victim of rape and physical violence |
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6. |
Gathering knowledge about the format of FIR |
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7. |
Gathering knowledge about the format of Naraji Petition |
[1]Mahmood, F. (2019, July 19). Protecting Our Daughters A Real Multitask. The Daily Sun. Retrieved from: https://en.banglatribune.com/opinion/opinion/59909/Protecting-our-daughters-A-real-multi-task Accessed on: 03.01.2021.
[2] Khan, Y. (2017). The Great Partition: The Making of India and Pakistan. Yale University Press.
[3] Mondal, C.G. (2019). The Trajectories of Hindu Existence in Bangladesh: A Politico-Legal Exploration. ELCOP Yearbook of Human Rights, p. 131.
[4] Chandra, B. (2017). Communalism and the State: Some Issues in India. Social Scientist Stable.
[5] Horowitz, D.L. (2000). The Deadly Ethnic Riot. University of California Press.
[6]Stanley, T. (1990).Presidential Address: Reflections on Communal Violence in South Asia. The Journal of Asian Studies, 49(3),741-760.
[7] Under threat: The challenges facing religious minorities in Bangladesh. (November, 2016). Minority Rights Group.
[8] ibid
[9] Khan, M. (2010). Bangladesh: Partitions, Nationalisms and Legacies for State-Building. SOAS, University of London.
[10]Bangladesh: Elections Scarred by Violence. (April 29, 2014). Human Rights Watch.
[11]Dey, A. (2017). “Violence Against Women During The Partition of India: Interpreting Women and Their Bodies in the Context Of Ethnic Genocide”. ES Review. Spanish Journal of English Studies, p. 103-18.
[12] ibid
[13]Mondal, C.G. (2019). The Trajectories of Hindu Existence in Bangladesh: A Politico-Legal Exploration. ELCOP Yearbook of Human Rights, p. 131.
[14]Mahmood, F. (2019, July 19). Protecting our daughters a real multitask. The Daily Sun. Retrieved from: https://en.banglatribune.com/opinion/opinion/59909/Protecting-our-daughters-A-real-multi-task Accessed on: 03.01.2021.
[15]Marcucci, G. (2019). The War Report 2018: Central African Republic: Sectarian and Inter-Communal Violence Continues, The Graduate Institute Geneva, 2 – 3.
[16]Lawland, K. (2012). Internal Conflicts or Other Situations of Violence – what is the difference for victims? ICRC. Retrieved from: https://www.icrc.org/en/doc/resources/documents/interview/2012/12-10-niac-non-international-armed-conflict.htm, Accessed on 03.03.2021.
[17]Minorities at Risk Project, Chronology for Hindus in Bangladesh. (2004). Retrieved from: https://www.refworld.org/docid/469f3869c.html. Accessed on 03.03.2021.
[18]Ethirajan, A. (2013, February 1). Bangladesh Buddhists pick up pieces after mob rampage. British Broadcasting Corporation News. Retrieved from: https://www.bbc.com/news/world-asia-21161354 Accessed on 03.03.2021.
[19]The Chief Prosecutor vs. Delowar Hossain Sayedee, ICT-BD (ICT-1) Case No. 1 of 2011. Also see: Hossein, A. (2014, September). Bangladesh Islamist Delwar Sayeedi death sentence commuted. The British Boradcasting Corporation. Retrieved from: https://www.bbc.com/news/world-asia-29233639 Accessed on: 04.02.2021
[20] Comprehensive summary of attacks on Hindu community since 28 February 2013. (2013). Ain o Salish Kendra.
[21]Reuters, ‘Six injured in bomb attack on a Hindu gathering in Bangladesh’, 5 December 2015.
[22]Mondal, C.G. (2019). The Trajectories of Hindu Existence in Bangladesh: A Politico-Legal Exploration. ELCOP Yearbook of Human Rights, p. 129.
[23]Pandey, V. (2018). Internal Security and Community Policing. Allied Publishers. P. 326-328.
[24]Dey, A. (2017). “Violence Against Women During The Partition of India: Interpreting Women and Their Bodies in the Context of Ethnic Genocide”. ES Review. Spanish Journal of English Studies, p. 103-18.
[25]Stanley, T. (1990) Presidential Address: Reflections On Communal Violence In South Asia. The Journal Of Asian Studies, 49(3), 741-760.
[26]Dasgupta, S. (2014). The extraordinary and the everyday: locating violence in women’s narratives of the Partition. Routledge.
[27]Dey, A. (2017). “Violence Against Women During The Partition of India: Interpreting Women and Their Bodies in the Context Of Ethnic Genocide”. ES Review. Spanish Journal of English Studies, p. 103-18.
[28]Staeheli,L.A, Kofman, E, Peake, L.J. (2004). Mapping Women, Making Politics: Feminist perspectives on political geography. Routledge, P.153-168.
[29]Dey, A. (2017). “Violence Against Women During The Partition of India: Interpreting Women and Their Bodies in the Context Of Ethnic Genocide”. ES Review. Spanish Journal of English Studies, p. 115.
[30]Wasim Miah & Ors Vs. The State 12 BLT (HCD)-40.
[31]Menon, R. Bhasin, K. (1998). Borders and Boundaries: How Women Experienced the Partition of India. Rutgers University Press.
[32]Jahan, N. (2019, February 1). A victim no more. The Daily Star. Retrieved from: https://www.thedailystar.net/star-weekend/politics/news/victim-no-more-1695727 Accessed on: 04.02.2021