Thursday, 2 December, 2021

Rape Crime and Statute of Limitations

Md Mustakimur Rahman

Rape Crime and Statute of Limitations
Md Mustakimur Rahman

Popular News

A Dhaka tribunal on 11th November 2021 asked police to refrain from receiving a case if a rape victim comes to the police station after 72 hours of the incident. The reason behind this ruling is "semen cannot be traced after 72 hours," said Judge Mosammat Kamrunnahar of Dhaka 7th Tribunal for Prevention of Women and Children Repression while pronouncing the verdict in the Banani double rape case. But, in terms of criminal law, what does this "72-hour" limitation mean? Is there any statute of limitations in Bangladeshi criminal law? If not, can we impose limitations on criminal offences?

Statute of limitations is a legal defence that bars the prosecution if the concerning authority took no relevant legal action within the prescribed time. State legislatures may enact statute of limitations for a variety of reasons. For example, a law might exist because prosecuting a case after a particular time would be impossible. Witnesses may relocate or die. Evidence may be misplaced or deteriorated. Statute of limitations can be found not just in criminal law but also in civil, administrative and tax law.

In Civil Law systems, all crimes are subject to statute of limitations unless they are explicitly excluded from their application. In most legal systems, the length of prescription periods varies depending on various factors. The most important of which is the nature of the crime or the maximum penalty that can be imposed. The German Penal Code, for example, specifies prescription durations ranging from three to thirty years; nevertheless, the crimes of murder and genocide are not covered by such legislation. Prescription terms range from two to twenty years in the Italian Penal Code. In Spain, it is from one to twenty years under the Spanish Penal Code.

The rule applies in the Common Law systems where offences are not subject to statutory limitations unless specific statutory provisions expressly state otherwise. In Bangladesh, for example, there is no law governing the statute of limitations for criminal offences, although we have the limitation on civil issues. However, provisions on statutory limitations in the United States' current Penal Codes fall somewhere between the civil and common law systems. In general, unless specific rules provide otherwise, offences are not subject to statutes of limitation in the USA. However, most misdemeanours and some felonies are generally subject to statutory limitations, but murder and capital offences are usually not. The Federal Code's Title 18, Chapter 213 contains provisions governing statutory limitations. Capital offences are not subject to statutory restrictions under Section 3281. Non-capital offences are usually subject to a five-year prescription period. Like child abuse, terrorism, and crimes committed during wartime, certain offences are subject to extended prescription periods under the Federal Code. For some types of rape or all rape offences, many states in the USA do not have a statute of limitations.

According to the above description, it is clear that statute of limitations may apply depending on the seriousness of the offence. Rape, however, according to the FBI, is the second-most heinous crime in terms of severity. Thus, many countries either have no statute of limitations for rape or have a lengthy prescription period. Honourable Judge Mosammat Kamrunnahar, on the other hand, imposes a 72-hour limitation. She stated that "semen cannot be traced after 72 hours," therefore, police should refrain from receiving a case if a rape victim comes to the police station after 72 hours of the incident. While traditional forensic DNA analysis of sexual assault-type samples relies on identifying sperm cells recovered from the victim's body, clothing, or bedding, I am curious if sperm is the only form of evidence that can prove rape or other methods.

According to a French study, even if no sperm are identified, a back-up test may often detect the male Y chromosome. Even if there is only one male cell for every 5000 female cells, these chromosomes can be discovered. This technique was used to investigate 79 women who claimed they had been raped by Philippe de Mazancourt, a forensic biologist at the Raymond Poincaré Hospital in Garches, France, and his colleagues. In over 30% of the cases where normal sperm testing were negative, the researchers discovered Y chromosome fragments. They detected the Y chromosome in which some of the women were examined nearly eight days after being raped.

Besides, new tools are constantly being created as technology advances, altering the nature and availability of judicial evidence. We now have digital evidence in the form of smart phones, closed-circuit cameras, and audio recorders, among other things. The proliferation, connectivity, and capabilities of camera-embedded and internet-enabled mobile devices, which record more information about people's activities and communications than ever before, are revolutionising how criminal investigators and prosecutors gather, evaluate and present evidence at trial.

While the world is advancing and countries are repealing statutes of limitation on rape crime, we are reverting back by setting a 72-hour limit on the filing of rape cases. In reality, because the rapist knows that if he can retain the victim for 72 hours after the rape, he would not be prosecuted. This limitation, therefore, may increase the number of kidnappings and abductions. Thus, the ruling raises the question of whether a 72-hour time limitation would be advantageous to a rape victim or increase the societal danger.


The writer is a PhD Researcher, Department of Law, The Chinese University of Hong Kong.

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