When rape is not 'just' a crime

A spate of horrifying incidents involving the rape of children has sent shockwaves across the nation. The headlines are relentless and deeply disturbing: a child found in a jungle with her throat slit after a brutal rape; a ten-year-old flower seller assaulted in Dhaka; and reports indicating that nearly nine out of ten rape cases in the first four months of this year involved children. According to Ain o Salish Kendra (ASK), in the 13 months since February 2025, there have been 776 reported rape cases, with minors accounting for nearly half of the victims. Adding to the alarm, a leading daily recently documented at least five brutal rapes in a single week, three of which ended in the victim's death.

As expected, courts, civil society organisations, and the National Human Rights Commission (NHRC) have responded with calls for urgent and decisive action, demanding swift and exemplary punishment for perpetrators. Yet experience shows that crime control and punitive measures alone do not make a society safe.

These events raise a more fundamental question: who will act-and how-to address these grave human rights violations (HRVs) against children? A critical distinction must be made. Are these incidents to be treated solely as criminal offences, or do they also constitute violations of human rights? The answer matters. Human rights law provides avenues for redress and accountability even where criminal prosecutions fail to secure convictions. This is precisely where the NHRC is meant to play a central role.

However, since its inception, the NHRC has largely sidestepped this responsibility, failing to meaningfully engage with HRVs that are intertwined with crime and the criminal justice process. Criminal law serves a dual purpose: it punishes offenders while safeguarding the rights of the accused, with courts bound by the "beyond reasonable doubt" standard. It does not, however, centre the protection of victims. That responsibility lies within the domain of human rights law, which is designed to ensure that the state and its institutions uphold their obligations and do not allow such violations to occur.

The commission's understanding of its mandate has, therefore, been deeply problematic. In practice, it has adopted a threefold approach that effectively sidelines HRVs. First, when a girl below the age of consent is subjected to rape, the act inherently constitutes a grave human rights violation, raising serious questions about institutional failure. Yet the NHRC has routinely reduced such cases to "mere crimes," failing to recognise their broader human rights implications. Second, in cases where incidents such as rape or sexual abuse were not immediately reported to the police, the commission has delayed intervention; once formal legal proceedings begin, it retreats, dismissing the matter as already under criminal investigation. Third, in the widely discussed Khadija torture case, the NHRC-despite not being a judicial body-effectively issued a verdict by applying the criminal standard of proof.

Moreover, in cases involving violations such as enforced disappearances, where the conduct is not explicitly codified as a criminal offence, the commission has declared them outside its jurisdiction, citing the absence of a criminal framework. In doing so, it has allowed the logic of criminal law to override its human rights mandate. Crime and criminal process have thus become a "killing curse" for human rights protection under the NHRC.

This pattern reveals a deeper institutional failure: a fundamental misunderstanding of what constitutes a human rights violation and how such violations must be addressed. Without a shift in this approach, calls for justice will remain reactive, and the structural conditions that enable these crimes will persist.

To illustrate, consider the case of a seven-year-old child raped by an adult male. This is, undeniably, a crime-one that may or may not be proven in a court of law under the stringent standard of proof beyond reasonable doubt. The role of the NHRC, however, is distinct and equally vital. Regardless of whether a criminal conviction is ultimately secured, the commission must ensure that the victim is protected from intimidation by the perpetrator, receives necessary medical care from the State, and is supported in a manner that affirms that the State stands with her-not her assailant. It must also monitor whether the police are properly collecting and preserving forensic evidence. If the investigation is not fair, prompt, and impartial, the entire criminal process risks collapse. In this sense, the NHRC occupies a critical intermediary position between the State's broader protective obligations and the functioning of the criminal justice system.

Like the other 119 National Human Rights Institutions (NHRIs) around the world, the NHRC was established primarily to address human rights violations (HRVs) committed by the State and its agencies-situations in which the State acts simultaneously as duty-bearer and, potentially, violator. Under both the Paris Principles and its founding Act, the commission's mandate is to determine the occurrence of HRVs that may not necessarily constitute offences under criminal law. It fulfils this mandate through investigation, inquiry, and by requisitioning reports from relevant government authorities.

In practice, the NHRC gathers evidence, reviews official reports, and determines the existence of HRVs based on prima facie evidence or the balance of probabilities-standards distinct from those applied in criminal courts. It may then issue show-cause notices to the government and formulate recommendations. Crucially, it must also seek compliance from the government and other public bodies, as such compliance ultimately reflects the state of human rights protection in the country.

However, for the commission to function effectively, it must operate within a clearly defined remedial framework. This framework must include both preventive and protective dimensions. It should go beyond compensation to incorporate guarantees of non-repetition, public apologies by the State, institutional assurances, and the development of preventive guidelines to address systemic failures. It must also encompass restitution, rehabilitation of victims, and a coherent strategy to ensure that the criminal process itself is effective and victim-centred.

Consider, for instance, the recent case involving the rape and killing of a six-year-old girl. Did the NHRC take any action under its founding Act? In most such cases, the commission refrains from engagement, citing the existence of an ongoing criminal process. Yet this is precisely where its intervention is most needed. The commission should have examined the incident and sought detailed reports from the government on several critical questions: What preventive measures were in place at the public park to ensure that a child could not enter without appropriate supervision? Who was responsible for overseeing the premises, and what duties did that individual perform? What rules or protocols exist to safeguard children in public spaces? Should the State, through the Inspector General of Police, issue a formal apology and provide assurances that such incidents will not recur, along with a clear articulation of the preventive and protective measures to be implemented?

To date, the commission has yet to frame comprehensive rules of procedure for investigating HRVs as distinct from criminal offences. Since its inception, it has repeatedly called for expanded powers, yet it has not clearly articulated why it seeks authority akin to that of a court, despite not being a judicial body. It is time for the NHRC to look beyond its current limitations and draw lessons from neighbouring countries such as India and Nepal, where NHRIs operate effectively within a non-criminal mandate. By adopting established good practices, the commission can begin to build a robust institutional framework capable of preventing gross violations of children's rights and ensuring meaningful accountability.

Md Abdul Halim, Bar-at-law and advocate, Supreme Court of Bangladesh. halim_md@yahoo.co.uk