Rape is a crime of violence, not sex. It is a heinous crime against a person’s dignity. Justice Krishna Iyer in the case of Rafiq v the State of UP said that the murderer kills the body of a victim but the rapist kills the soul. The first codified law regarding rape and its punishment is found in the Code of Hammurabi.[1] Later on, most of the legal systems around the world from time to time recognized this crime. The way people understand, fantasize and fulfil their sexual desires changes. With the changing behavior of people, the definition of rape has also been changed from time to time. In recent times, use of foreign object, anal penetration, oral penetration and some other forms are used as a means to fulfil sexual desire. In the past, only penile-vaginal penetration was considered to be the element of rape. Recently, however, many countries like the USA, the UK and India have redefined penetration and included penile-vaginal penetration, penile-anal penetration, object-vaginal penetration and some other forms in the definition of rape.

The main purpose of this writing is to find out how the terms ‘sexual intercourse’ and ‘penetration’ as to constitute rape have been explained in the penal laws of Bangladesh. While analyzing the laws and judicial trends, the author has tried to compare the legal development of rape jurisprudence in the USA, the UK and India. Specifically, the author has tried to find out the lacuna with the prevailing concept of ‘penile-vaginal’ penetration and suggests some changes in rape definition.

Legal Framework as to Definition of Rape in Bangladesh

In Bangladesh, the Penal Code, 1860 (PC) is the parent law where the crimes are defined and punishments are prescribed. However, for special circumstances special laws were enacted, one of which is the Nari O Shishu Nirjatan Daman Ain 2000. Section 2 of the Act, instead of defining the word ‘rape’, refers to Section 375 of the PC for the definition of the same, subject to the provisions of Section 9. Hence, for the definition of rape one needs to analyze section 375 of PC which says that a man commits rape who has sexual intercourse with a woman (some other elements are also there: consent, age etc). However, there is no comprehensive definition of ‘sexual intercourse’ in the Code.

Surprisingly, explanation of this section says that only penetration is sufficient for sexual intercourse. However, the nature and extent of penetration has not been defined let alone the inclusion of anal sex or use of foreign body or oral penetration. In State v Shahidul Islam alias Shahid,[2] the court held that to constitute rape complete penetration is not essential, even partial or slightest penetration with or without emission of semen and rupture of hymen (a membrane which partially closes the opening of the vagina and whose presence is traditionally taken to be a mark of virginity) or even an attempt of penetration is sufficient to prove rape. Unfortunately, Bangladesh, if compared with the USA, the UK and India, still holds that archaic ‘penile-vaginal’ definition of rape embodied in the PC without making any change.

Development in the USA and the UK

In the USA in 2012, an updated definition of rape was incorporated which states that penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim shall be considered as rape. This definition includes most probable ways of sexual assaults and avoids the archaic concept of penile-vagina penetration. In the UK, to cope up with the changing situation of the society, changing trends of the laws are always seen. Reform of rape law began with the enactment of the Sexual Offences Act 1956 defining rape as unlawful sexual intercourse with a woman without her consent, knowingly or recklessly. However, this position was changed by Section 142 of the Criminal Justice and Public Order Act 1994 by providing that rape could be committed on a woman or a man. In 2000, a review of the law on sex offences was published by the UK Home Office titled, ‘Setting the Boundaries: Reforming the Law on Sex Offences’. This review recommended a re-definition of rape and sexual assault and subsequently the legislative authority of the United Kingdom, in 2003, enacted a new law named Sexual Offences Act, 2003 where rape has been redefined. They included the intentional penetration to the vagina, anus (the opening at the lower end of the digestive tract through which solid waste is eliminated from the body) or mouth of another person with penis where the other person has no consent and the person penetrating does not reasonably believe that the other person is having consent. They have departed from penile-vaginal penetration concept and have contemplated other forms of rape.[3]

Development in India

Even our neighboring country India has made massive changes in the rape definition. The Nirbhaya case paved the way to make changes in the definition of rape under section 375 of the Indian Penal Code (IPC). One of the attackers inserted a rod into the victim’s private parts damaging her intestines. The doctors found that her intestines (the lower part of the alimentary canal from the end of the stomach to the anus) were pulled and ripped out. The incident led to widespread protest and demonstration across the country. As a result, the scope of section 375 of IPC was widened to include all forms of oral, vaginal, and anal sex which violates the dignity of the women. In 2013, the Indian parliament amended section 375 and incorporated acts like penetration of penis into vagina, urethra, anus or mouth, or any object or any part of body to any extent into the aforesaid woman body parts (or making another person do so) as sexual assault.

Judicial Trend in India and Bangladesh

Before the Nirbhaya case, Indian courts took the penile-vaginal penetration as the only way of rape. There are a large number of decisions of the Honourable Supreme Court of India wherein it was held that penetration of even slightest degree will be sufficient to attract the offence of rape.[4] In Aman Kumar v State of Haryana, it was held that partial penetration of penis within the labia majora (the two outer rounded folds of adipose tissue that lie on either side of the vaginal opening) of the vulva without emission of semen is sufficient to constitute rape. However, after the amendment of Indian Penal Code in 2013 the position changed. In Santhosh v State of Kerala, where the court held that penetration made in between the thighs of a girl amounts to rape. The reasoning of the court is that the effect of manipulating the thighs to be held tightly together is to cause penetration of the crevice, when the muscles engulf the object which penetrates to create or simulate the same effect as in a normal penile-vaginal intercourse.

In many cases it is seen that the judiciary of Bangladesh was gracious enough in allowing noteworthy decisions of other jurisdictions to get admittance or entry into the legal regime of Bangladesh. In case of rape, however, the judiciary is stick to the penile-vaginal penetration only.[5] The Supreme Court of Bangladesh in State v Sukur Ali[6] held that if the medical officer finds an abrasion of the medial side of labia majora and redness around it with white discharge, it can be concluded that there was partial penetration within labia majora or vulva which is sufficient to constitute rape.

Present Scenario in Bangladesh

During COVID-19 pandemic in 2020, reportedly there were 365 cases of rape and sexual harassment. Of them, 227 were rapes, 60 were attempted rapes, and 66 were sexual harassments, while nine were victims of child pornography. It is also evident from the Sajeda (pseudo name of the victim is used for her privacy) rape incident that took place at Kalabagan in Dhaka that the use of foreign object is existent in Bangladesh. Additional Deputy Inspector General of Criminal Investigation Department (CID) M Quamrul informed the press that a foreign body was used during the sex due to which she was bleeding profusely and died.[7] Dr Sohel Mahmud, head of the forensic department at the Dhaka Medical College, who conducted the autopsy said in the positive that it was a rape, more than a rape. However, the case is still pending before the trial court and we need to wait for the decision of the court.

The Way Forward and Recommendations

The fact that the development of rape definition in the USA and the UK took place with the changing need of the society. Even in India, considering the gravity and inhuman nature of committing rape of Nirbhaya, the definition of rape has been modified to make the perpetrators strictly liable. Bangladesh is no exception to this. The nature of sexually assaulting women and committing rape have changed with the changing fantasy of the criminals. In Bangladesh, incident of sexual abuse of women and children other than penile-vaginal penetration is also observed. Sajeda (pseudo name) rape case is the burning example like Nirbhaya case in India. Unfortunately, the existing definition of rape under section 375 of PC does not directly cover all forms of sexual assault, otherwise than penile-vaginal penetration, as rape.

However, a close reading of section 375 reveals that the term ‘sexual intercourse’ has not been defined and is subject to judicial interpretation. Furthermore, the section also does not in any way limit the term penetration to mean penile-vaginal penetration only. Sexual abuse of children by means and manner other than penile-vaginal penetration is common and may take the form of penile-anal penetration, penile-oral penetration, finger-vaginal penetration or object-vaginal penetration. Such penetration  causes  lasting  psychic damage to the victim. In such a situation, a  restrictive  meaning  attached  to penetration is likely to prove inadequate. The problem that we may face in near future is whether those acts will be considered as rape if any woman is sexually abused, without penile-vaginal penetration, by using foreign object or by doing oral or anal sex. The higher judiciary of Bangladesh has a wide range of power to interpret the law, specially penetration under section 375 of PC, to include all forms of penetrative sexual assault onto vagina, urethra, anus or any other parts of the body of a woman. Apart, the law regarding rape needs some modifications and for that purpose following recommendations may be considered:

  1. Clearly define the term penetration in explanation 1 in the way – ‘Penetration of penis or insertion of any object or part of the body, to any extent, into the vagina, mouth, urethra, or anus of a woman, or making her do so with him or any other person’.
  2. Add explanation 2 with the words ‘For this section, vagina shall also include labia majora’.
  3. In the definition of rape in section 375, there should be an explanation saying that penetration shall mean penetration to any extent whatsoever, inasmuch the penetration is never complete in the case of children.

It is hoped that the policymakers rethink about the definition to bring changes with the changing fantasy of the rapists to make the rape law time befitting.

[1] Sally Gold and Martha Wyatt, ‘The Rape System: Old Roles and New Times’ (1978) 27 Catholic University Law Review 695.

[2] (2006) 58 DLR 545.

[3] Sexual Offences Act, 2003, s 1 (UK).

[4] State of UP v Babulnath (1994) SCC 29.

[5] (2006) 58 DLR 545.

[6] 9 BLC 238.

[7] ‘Use of foreign body behind Anushka’s death: CID’ The New Nation (Dhaka, 1 March 2021) <https://thedailynewnation.com/news/280026/Use-of-foreign-body-behind-Anushka/’s-death:-CID> accessed 9 January 2022.