“The Offence of False Rape Allegations”

- Aiman R. Khan

final_false rape allegation

Published On - June 27, 2017 [Vol. 6, Jan - Jun, 2017]

It may have taken grueling sessions to draft the UDHR, but today it is a subject of total mockery. The knowledge of Human Rights becomes just any other theory in front of a weeping rape victim. She faces total alienation, passing each day of her life wishing she was dead. Days go by creating another vacant position for a rapist. Then another girl is socially stigmatized and forgotten just like that. It was not until the Nirbhaya incident, when the world came together in support of rape victims. Rape laws all around the world became stricter and rapists, not spared. It is understandable, due to the level of extremity of such offence. But the strict liability of these Rape laws make it highly polarized against the offender. The higher the level of extremity, the easier it gets for allegations to arise. This means not withstanding anything the offender has to say, once someone is accused of rape, there is hardly any escape from it.

Rape is unquestionably a sickening act which compels us to rethink the time we are living in. It is an example of moral degradation which should not go unpunished. Offenders of this heinous crime must be brought under the law and victims of it, served justice.

On the contrary, there is evidence of False Rape Allegations which leaves, although not the same, but permanent marks on the accused. Let’s not totally eliminate the possibility someone who has been labelled as a sex offender, getting ostracised by the society. Such accusations can be for many reasons, such as an attempt to give one a bad name, revenge or any other motive. This devastating practice of blaming is prevalent mostly among young adults.

Consider the incident of Jay Cheshire, 17, who hung himself to death after being blamed for something he hadn’t done. He found it extremely difficult to deal with the police investigation following a false accusation of rape. Then there are many occasions when a consensual sexual encounter between couples magically turns into rape when the time is not right. One landmark decision given by an Indian Court was that if a woman is educated and above 18 years of age and yet does not exercise her right to say ‘no’ to a sexual relationship, then she cannot later allege rape when the relationship turns sour.[1]

The argument of consensual vs non-consensual sex remains matter of debate. Any sexual encounter may start with consent and a ‘No’ might arise in between the act. The actions following this ‘No’ is what constitutes to be rape. Such complexity creates a loophole in the laws on rape. Hence, it lets the society to master this blame game where one party is the victim and the other, the bad person. The laws around the world are reluctant to give any scope to the offender. There is little or absolutely no opportunity for offenders to prove they are innocent.

As opposed to the common scenario, this Indian case where a woman alleged a lawyer for raping her from 2010-12 was deemed to be a false accusation. According to Additional Sessions Judge Nivedita Anil Sharma, “No one discusses the dignity and honour of a man as all are fighting for the rights of women. Where’s the law to protect a man from a woman when he is being persecuted and implicated in a false case? Perhaps, it’s time to take a stand,”[2]

In UK, the Crown Prosecution Services has laid down a specific rule or the Guidance for Charging Perverting the Course of Justice and Wasting Police Time in Cases involving Allegedly False Allegations of Rape and / or Domestic Abuse which protects any victim of false rape allegations. In Bangladesh, although there is nothing specific like that, a person accused of a false rape may have little or no grounds of defence. Lacking the application of the Law of Tort, the defence of Malicious Prosecution is redundant in this country. However according to Bangladeshi Laws, the following are the available defences for a person falsely accused of rape:

Section 211 of the Penal Code 1860 talks about false charge of offence made with intent to injure. The section states that “Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death [ imprisonment] for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.[3]”

Section 194 of the Penal Code 1860 states giving or fabricating false evidence with intent to procure conviction of capital offence; if innocent person be thereby convicted and executed. According to this section, “Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is capital by any law for the time being in force, shall be punished with [imprisonment] for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and if an innocent person be convicted and executed in consequence of such false evidence, the person who gives such false evidence shall be punished either with death or the punishment herein before described.[4]”

The loss of reputation suffered by anyone blamed amounts to defamation, as mentioned in Section 499 of the Penal Code 1860. This section states that Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or published any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation or such person, is said, except in the cases hereinafter excepted, to defame that person.

Rape is, was and will be one the heinous forms of acts that are still in practice. Offenders of such acts if proven guilty must be brought under the law at any cost. But we should also keep in mind not to encourage miscarriage of justice. Labeling an innocent person as a rapist can be just as devastating as the rape victim herself. It is time we take the offence of wasting police time and furnishing false information seriously. The Penal Code may be strict towards offenders, but it should also look into protecting victims of false allegations of rape.

 

References:

 

[1] Hindustan times (2016) ‘If educated and over 18-yrs, woman can’t allege rape after consent: HC’ [available on http://www.hindustantimes.com/india/educated-women-cant-agree-to-physical-relationship-and-cry-rape-later-hc/story-sRvEg4rqG6E4pfigOhBHkJ.html]

 

[2] Times of India (2016), ‘Need Law against false rape cases’ [available on: http://timesofindia.indiatimes.com/india/Need-law-against-false-rape-cases/articleshow/50541240.cms]

 

[3] The Penal Code 1860 [available on http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=11]

 

[4] The Penal Code 1860 [available on http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=11]

About The Writer

Article Author Image

Aiman R. Khan

LL.B (Hons) (University of London) , LL.M (Eastern University), MSS (Dhaka University)

Trainee Lawyer , Judge Court

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