As the file of the newest gang rape case in Faisalabad closed after the survivor dropped all charges against eight alleged perpetrators (three of whom were sons of a legislator belonging to the ruling Pakistan Muslim League-N), it brought in its wake the question about whether the state can re-open the case since it is a crime against the state and since all medico-legal evidence pointed towards the crime actually having taken place.
Under the Code of Criminal Procedure, says lawyer Zainab Qureshi, a consultant for the International Commission of Jurists, rape is a “non-compoundable” offence. This means the complaint cannot be quashed because the nature of offence is so grave that the accused cannot be allowed to go scot-free.
Since sexual assault is an offence against society, Qureshi further said: “Even in the event that the survivor refuses to come forward to pursue the matter, the state is under an obligation to investigate and prosecute the alleged incident.”
The reality, however, is quite different. “Rape survivors are pressurized into withdrawing the complaint and not pursuing the matter further through intimidation or out of court settlements.” Often it was observed, said Qureshi, that the police and the prosecuting agencies facilitated these settlements. “When faced with such circumstances the courts often acquit the accused under Section 265-K of the Code of Criminal Procedure on the basis of a ‘low probability of conviction’,” she said. But Qureshi says such settlements and acquittals are “null” in the eyes of the law.
“The state is under an obligation to prosecute regardless of the conduct/wishes of either party,” she pointed out.
Another question that comes to mind is whether the law criminalising rape is in itself flawed and whether lapses in the syatem are to blame for the abysmally low conviction rate.
Karachi-based lawyer Faisal Siddiqi says “It’s not the rape law that is flawed” and that he does not find “any legal textual problems” there. The problem, he says, lays elsewhere.
According to him, crimes against women “are just not on the radar” of Pakistan’s criminal justice system. “Until you de-trivialise sexual offences, there will be little headway.” Perhaps that is one reason, he said, that rape had a “near-zero conviction rate”.
He proposed that the problem needed to be tackled at the lower judiciary level.
“Like we have a terrorism monitoring cell in the Sindh High Court, maybe a rape monitoring cell could be set up that keeps a log of rape and gang rape cases coming to the trial courts complete with data on acquittals and convictions. The judges’ promotions could then be linked to their performance on those cases,” said Siddiqi, adding: “There will be a sea change in convictions if that happens.”
At the moment, he said, while there was a deluge of sexual offence cases being filed in the lower judiciary these get but a desultory look from the judges.
Maliha Hussain, director of Mehergarh, an Islamabad based non-profit that works with survivors of rape, also feels the higher ups both in the judiciary and the police (as one will not succeed without the other) need to hold their counterparts at the lower level accountable and responsible for the lapses.
“I am not sure if we need law reform to address the plight of rape survivors,” said Amber Darr, an advocate of the supreme court of Pakistan. But concurring with Hussain, she said: “Even the best law is useless if the system is not geared towards implementing it.”
To her mind, Pakistan’s legal system suffers from two fundamental and fatal shortcomings which directly impact rape survivors — the absence of women judges on the bench and the absence of a programme to protect rape survivors as they appear to give their testimony.
To the first shortcoming, she explained that simply having women judges may not solve the problem unless it was “supplemented by a direct effort to sensitise them in gender/rape issues”.
“I find a genuine belief among the legal fraternity, including the judges, that the woman is a liar and makes up stories,” says Siddiqi, adding that in the gang rape case of Kainat Soomro (for which he is the lawyer) the judge remarked in the courtroom, for all to hear, that hers was a “James Bond story”.
Hussain finds a “misgogynist” mindset displayed in the courtroom. She said, most judges find it “easy to blame the woman” as they are already suspicious of the survivor’s credibility.
Even from a lawyer’s point of view, Siddiqi said proving rape was far from easy. “The defense will put forth the argument that the act was consensual.”
The public nature of rape trials, say most experts, is very invasive and humiliating and a big reason why a survivor may recant her charges.
To that, Qureshi, who has a special interest in women’s rights, suggests: “The courts and law enforcement agencies (police, prosecutors etc.) should provide protection to the survivor and witnesses from intimidation by the accused parties. Additionally, laws should be introduced through which survivors are afforded special protections throughout the course of a rape trial.
Such protections include legal and psychological counselling at the time of making a complaint and during the trial; DNA testing; in-camera trials (trials closed from the public); giving testimony in court through video conferencing; screens in court separating the survivors and the accused etc.”
Darr feels it is the duty of the court to protect the rape survivor and pay proper regard to her vulnerable position.
According to Darr, the Foreign Common-wealth Office of the United Kingdom is working extensively with the superior judiciary and particularly with the anti-terrorism courts to institute appropriate witness protection schemes for witnesses in terrorism cases. “Why can’t such a programme be extended — at the initiative of the Pakistanis themselves — to provide protection to rape survivors so that they may give their testimony in a safe and secure environment?” she asked.
While she does not expect special treatment for the complainant, Hussain would at least like them to give the case a sympathetic hearing. “The judges are biased in favour of the defendant (who in rape cases is a man) and against the survivor who is virtually always a female.”
But that’s the way the Pakistani courts function. Judges, said Siddiqi, are duty-bound to guarantee the defendant a fair trial. Yet there is no parallel thinking of the rights of the complainant. “If the alleged accused is proved innocent and he is acquitted, the judge does not feel it his/her concurrent duty to redress the wrong and provide justice to the complainant in cases where it is proven that rape did indeed take place,” he pointed out.
Stacks of evidence, nary a conviction
By Irfan Aslam
Systemic flaws and cultural attitudes criminalise a female rape victim rather than enable her to become a survivor
The Human Rights Commission of Pakistan (HRCP), in its report for 2013, claimed that 2,576 cases of rape were registered in Punjab, as compared to 130 cases in Khyber Pakhtunkhwa and 27 gang-rape cases in Sindh. The commission’s figures don’t include marital rape, which it described as “a form of violence which figures nowhere in the Pakistan Penal Code”.
Punjab Police figures state that 1,651 rape cases were registered in the province in first six months of the current year, out of which challans were issued for only 990 cases. When we look at these numbers and also consider that convictions in rape cases are close to zero, It appears that any man can commit the most horrendous kind of crime against women with impunity.
“The number of cases in Punjab is far greater than the other three provinces, because of its (high) ratio of population. Rape is reported more too in Punjab,” argues Fauzia Viqar, chairperson of the Punjab Commission on Status of Women (PCSW). “There is feudalism in interior Sindh while Balochistan has almost no movement of women. There is far greater mobility of women in Punjab.”
While the incidence of rape remains high, Punjab too suffers from the legal and procedural issues surrounding rape. Then there are cultural attitudes, which criminalise a rape victim rather than enable her to become a survivor.
She dispelled the impression that many rape survivors are unwilling to register or pursue cases, pointing to the day-to-day incidents of suicide carried out by victims of sexual assault.
Society looks at the sufferer as if (getting raped) was her own fault. That’s why I founded an organisation which also provides shelter to rape survivors in Multan and Muzzaffargarh, and ensures their security not only from the accused but also from their relatives,” Mai explains. She thinks there hasn’t been an increase in the incident of rape in recent times, but more that people have greater awareness and they report more in police stations.
Viqar, however, points to problems with the police and their methods of policing. She argues that rape incidents continue with impunity because state institutions are not doing their job.
“Proper and flawless investigation into the cases is a must, but police in Pakistan are vastly inefficient. Then there is political influence in police and administrative matters, which are hurdles to the provision of justice,” she says. This ultimately leads to dependence on a higher authority, the chief minister for example, to take note of an incident. “If investigations follow their due course, nobody has to take any notice or pay visits to victims.”
Lawyer and rights activist Asad Jamal claims that most rape cases are manipulated by the police, while courts also don’t fulfil their responsibility and ignore drastic flaws in the investigation process.
“Rape is a non-compoundable offence and there cannot be any out-of-court settlements in such cases. But I have seen that even high courts accept a settlement (raazi nama) which is against the law,” says Jamal. “Judges’ behaviour also defies the law, as often they ask the survivor in court, before everyone else, whether she accepts the settlement. This does not make any sense.”
Jamal says even consensual sex with girls below the age of 16 falls in the category of rape, but most lawyers and judges are not aware of the law. He considers evidence-gathering another issue, saying that the forensic lab in Lahore, which cost billions of rupees, was not properly used and it takes month to carry out a DNA test when the evidence is almost destroyed.
Mai too is critical of the treatment meted out to rape survivors: “They get the same treatment in courts as they get in police stations. There is hardly any difference. Women are looked at from the same prism by all — whether it is the police, political (community) leaders or the government.”
Former Punjab Inspector General of Police (IGP) Ahmed Naseem claims that most registered cases of rape are, in fact, cases of elopement — which is not an offence under the penal laws.
“The women’s families, often under social pressure and following their lawyers’ instructions, twist the facts to turn the case into one of rape, since they know that rape is a grave offence. They create a scene, implicating the main accused person, of forcible abduction and rape as they know they cannot charge the man with whom the woman eloped with,” Naseem says.
The former IGP says that it’s not an easy task to forcibly take an adult woman and bundle her into a vehicle, as mostly portrayed in first information reports (FIRs). He adds that FIR figures are only allegations made by women’s families, and the situation is mostly cleared up in court, where a woman often issues a statement in favour of the accused and she is allowed to go home with him.
But Mai believes that in most of cases, the FIR is flawed to begin with — which leaves many a lacuna for alleged rapists to escape punishment. Often, courts and judges also see foul play on the part of the police but choose to ignore it. She claims that not a single police official has been punished for faulty investigation, which was essential to ensure proper prosecution.
“The so-called judicial activism in recent years has been of little help to victims. The former chief justice, Ifitkhar Muhammad Chaudhry, initiated it for personal gains and that’s what he achieved. There has been a little change in the attitude of courts towards rape victims,” she claims.
When it comes to the law, Viqar believes that the existing law, especially Qanoon-i-Shahadat, hinders provision of justice to rape survivors. “Under one of the clauses, the victims’ character or previous sexual experiences are also given consideration. This is quite irrelevant; it is rape if someone forces another person to have sex with them without consent,” she says.
The PCSW chief explains that MNA Shaista Pervaiz Malik has tabled a bill in the National Assembly for amendments to laws on rape, which seeks stringent punishment for the offender, proper investigation into the case, and punishment for delinquent/corrupt police officials for flawed investigation and protection of rape victims.
A similar bill was tabled in the Senate by Syeda Sughra Imam of the Pakistan People’s Party (PPP) earlier this year, which seeks amendments to remove lacunae in the PPC, CRPC and Qanoon-i-Shahadat Act. Imam told the Senate Standing Committee on Law and Justice that there was zero conviction in rape cases in the country during the last five years due to the flaws in the anti-rape laws.
She has suggested amendments to Article 218-A of the Constitution, dealing with investigation, proposing in the bill, “Whoever being a public servant, entrusted with the investigation of a case, registered under section 376 of the Pakistan Penal Code, fails to carry out the investigation properly and in breach of his duties, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
In another proposed amendment, she suggests changes to Article 228-A of the Constitution, dealing with the disclosure of the rape survivor’s identity. One of its sections states, “Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under Section 376 is alleged or found to have been committed (hereafter in this section referred to as ‘the victim’) shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.”
Viqar argues that both these bills should be put together for amendments to the law. She says there is little development on the legislation front, due to the business of the Parliament being disturbed because of the sit-ins in Islamabad.
Meanwhile, Jamal is adamant that inefficiency, negligence, bias and a high number of cases play their role in the flawed functioning of courts when it comes to rape cases. This leads to rapists easily getting off the hook. “Rape cases remain pending for years, and the victims have to experience the unbearable ordeal of recreating the scene of being raped again and again. This naturally hurts her self-respect,” he says.
Sometimes, the system works
The struggle for justice is one that requires almost superhuman levels of persistence and strength on the part of rape survivors
Over the years, sexual crimes have taken the lead when it comes to the reported cases of violence against women and children but it is still very rare for victims to approach for legal recourse and seek justice.
The cases of Mukhtaran Mai, Dr Shazia Khalid and Kainat Soomroo made headlines over the years but justice remains elusive to these three along with thousands of other sexual assault survivors. While Mai’s case is back in the news, Dr Khalid was forced to leave Pakistan. Last but not least, Soomroo’s alleged rapists have been freed by the court and her brother was killed, allegedly by her rapists’ kin.
Over the years, the number of rape, gang rape, incest and sodomy cases have increased in Pakistan. Data collected by the Human Rights Commission of Pakistan [HRCP] shows that in 2001, 372 cases of rape, including 145 cases of gang rape, were reported during the first eight months of the year while the number rose to 928 rape cases in 2009. In 2013, almost 3,000 rape cases were recorded by the HRCP, with 2,576 in Punjab alone.
These figures are only those that were reported in the media; a large number of cases go unreported, given the victims’ reluctance to come forward as well as the complicated medico-legal system that forces many to stay silent. Meanwhile convictions remain low, almost zero, while a large number of cases are either withdrawn or a compromise is reached. One such example is that of the ‘white corolla’ case where none of the victims pressed charges.
Though no concrete data is available on the number of rape cases pending in courts, over the past few years various news reports (though few and far between) have come out with stories where punishments awarded to rapists were highlighted, particularly in child abuse cases.
Earlier this year, Justice Ikramullah Khan of the Peshawar High Court denied the bail request of a rapist even after the seven year old victim’s family agreed to a compromise.
“The accused does not deserve to be released on bail despite both parties reaching a compromise because people like him are only playing with other people’s future,” a news report quoted Justice Khan as saying.
In 2013, a teenage boy was awarded imprisonment and fine by the Peshawar High Court for raping a minor girl and filming the assault. Despite such cases, the struggle for justice remains a long and arduous one.
“When a rape survivor comes to us, we do our best to get them through the steps. Counseling is the first step. For those who want to proceed to the court, we do tell them that it will be a long, tedious process before they get justice. The legal system is so lengthy and slow that many women do not pursue the cases. Those who do, back out after a few years realising that they are not getting anywhere. No matter how hard you try, if the survivor loses hope and motivation, then nothing can get them back on track,” says Asiya Munir, an advocate in the Sindh High Court and War Against Rape (WAR) legal representative for leading rape cases.
A Karachi based NGO, WAR investigates rape cases and provides free legal aid and counseling to the survivors if they choose to go to the court.
As per War Against Rape’s database, in 2003, 10 rape cases made it to court. Out of these, 6 were withdrawn, 2 were lost and one was won while in one case the accused expired. Things have not changed much in the years since; a lot of cases were withdrawn while those that are in court are bogged down by the slow legal system.
“On an average, WAR receives some 12 rape survivors but barely four would go to the court. The families back down or a compromise is reached. However, the media and society must focus on the wins that have happened and give support to other survivors,” says Munir.
“For a rape survivor, it is a long battle for sure but most back out at the earliest. I feel those who come forward are very brave and strong and I respect their drive to take the culprits to task. We must stand with them and support them.”
For a woman who has worked exclusively on rape and sodomy cases, Munir is no stranger to the hitches that come along the way, be it witnesses turning hostile or the defence lawyers throwing in a spanner and, worst still, the family of the victim walking away after a compromise.
“We have success stories; they are few and far between but they must be highlighted so that other survivors get hope.”
She goes on to highlight the success stories where courts granted punishments and imposed fines.
“The strongest punishment we have seen so far was 10 years imprisonment that the Sindh High court awarded to a rapist,” she says.
A young nurse was harassed by her neighbour. Despite repeated complaints, his behaviour went from bad to worse. Then in 2008, one day she was kidnapped, drugged and raped by the man; his wife and family members having full knowledge of the assault and supporting him.
WAR emerged with a win in the case of Baby Taj, a minor who was raped and murdered in 2006. The case ran for a long period and her father Barkat Shah, who was keen on seeing the killer behind bars, passed away in 2009.
Finally, in 2012, the child’s rapist and murderer was awarded a life term and a fine of Rs160,000 under section 302 of the PPC for murder and under section 10 (2) read with 365-B PPC for rape.
“Mostly, the survivors leave the cases half-way because of the pressure that they have to face. At WAR, we urge them to stay strong and have faith in themselves because this is what will help them in the long run the most,” Munir stresses.
On the subject of compromise, Munir says, “Out of court settlements are yet another reflection of the patriarchal mindset that is prevalent in the society. No amount of money can undo the harm and the trauma suffered by a rape survivor.”
She says that in her legal practice she has often seen judges become party to a case.
“They will insist on a ‘compromise’ saying that the life of the assault victim would be better off with some money. Judges need to be neutral and justice needs to be blind,” she says, adding: “We try our best to get justice for the survivors. The perpetrators must not forget that there is something called divine justice too and there is no escaping from it in the end.”
The days after
By Noman Ansari
For a rape survivor, the road to healing is often a lifelong and complex journey where support is paramount
Ours is a nation where according to an estimate by the Human Rights Commission of Pakistan, a woman is raped every two hours*, and gang raped every eight*hours. While it is well established how the judicial systems fails these people, there is also little awareness or support for the survivors of this barbaric ordeal.
Erum Ghazi, a therapist with vast experience in the field feels that rape survivors aren’t treated with the compassion they deserve, “The law enforcement agencies need to be trained by psychologists to handle such cases with sensitivity and the respect that someone seeking justice deserves. Which means specially trained officers should be interviewing the victim. Moreover, the media needs to know how to handle such cases in terms of what to say to a victim and what not to say. One rule of thumb to remember is to put yourself in their place: How would you like to be treated? What would you wish the other person would say? Basic humanity is what is needed here. The interviewers should have knowledge on how to deal with a situation like this, should feel kindness, compassion, empathy and understanding towards the victim, and must leave judgment and preconceived notions at the door. Open your heart and mind to another human beings pain and distress, as the person being interviewed has been through a harrowing ordeal, and does not need additional trauma.”
Frustratingly, the attackers often go unpunished while some of the responsibility of the attack is unfairly placed on the already overburdened shoulders of survivors. Erum states that this lack of justice adds to the trauma, and is compounded by survivor’s families who are more concerned with their standing in society than the well-being of the victim.
“The family stands by quietly while the rapist or abuser goes scot free. Tell your family it is their duty to stand by you. It is not the rape victim that needs to be stigmatised, it is the abuser.”
If anything, the therapist feels it is the justice system which needs to be stigmatised for failing those who seek redress.
Erum explains that victims of such sexual abuse can suffer from depression as well as borderline personality disorders that sometimes extend to psychosis, “This means that the person may be suffering from suicidal inclinations and may have made multiple suicide attempts, as well as inflicting self-harm. They may also suffer from dysfunctional personal relationships, eating disorders, obsessions, compulsions, anxiety, panic attacks, hyper-sexuality or even hypo-sexuality.”
As with any person who has suffered from a trauma, rape survivors can have days where negative emotions are triggered by seemingly innocuous happenings, “Post-traumatic stress disorder is rampant in these cases with the victim experiencing trauma again and again at the smallest triggering event. In the movie Ground Hog Day, the actor relives the day again and again. Now just imagine the trauma being relived day in and day out.”
Though many rape survivors in Pakistan are provided with therapy, their families are impatient when the signs of progress are slow, “Therapy is not a pill that you pop in your mouth and all will be well. It is not a magic wand nor is it an overnight change. It is a journey, a long process because what has happened is no small thing.”
For a survivor who has experienced little empathy, often the simple act of being heard can prove to be therapeutic, “What we do is listen first — the initial task is to do get all the information that you can and deal with the emotions to acknowledge and validate the clients distress. I work from a person-centred perspective and then bring in other elements, thus making my work eclectic. I find cognitive behaviour therapy helps with immediate issues and tasks; however more intense work is required which requires a more psychodynamic perspective. Moreover, I work from a holistic perspective; the mind, body, heart and soul are interconnected.”
Naturally, survivors try to make sense of their ordeal, “A lot of times the client will have spiritual crises, which needs to be dealt with. Questions like, where was god when I needed him? Why did he not help me? Am I being punished for some wrong that I did?”
Managing a survivor’s torment can be trying for even the most experienced therapist, “Listening to a victim talk about their innermost turmoil can be heartbreaking and the sense of helplessness and futility of a great wrong having been done and having no power to get justice for it is horrific.”
Aside from self-harm, certain rape survivors punish their bodies on a subconscious level by taking unhealthy lifestyle choices, “The body carries memories, so I start with the basic fundamentals, of recreating and replacing the old memories that the body has. The client learns to look after the body, by eating well, getting adequate and sound sleep, exercise, etc. [This is] incorporated into the treatment plan. Victims will stop eating or eat till they drop to numb the pain or as part of their depressive state. Physical areas are easier and very basic to begin with; we learn to walk first and then run. With therapy also I believe it begins with the basic and then goes deeper.”
While mending the body, Erum also focuses on the thought pattern of the survivor so that they can respond to their triggers better, “The person may start fearing everything and everyone. The slightest trigger may bring on a panic attack or severe anxiety or mood fluctuation.”
But the emotional battle can be quite complex, “Sadness, anger, lack of trust in oneself and others, these are some of the things that a person may go through. There may be repression and denial also. They may act as if nothing has happened, which is another form of defence mechanism used to deny the reality. If I think it did not happen or that it has had no impact on me then I will be fine.”
Sometimes the most powerful healing aid is spiritual, where survivors seek the deepest answers, “My job is not to convert them but to help them find the answers, and also to help them understand that not all questions will reveal their answers now, that they have to understand that there is a time and place for an answer. The universe or god or whatever we believe in has to run its course. We are mere cogs in the wheel in a bigger scheme. It starts with rebuilding faith in one self and a higher power, and ultimately learning to live and dream again.”
Published in Dawn, Sunday Magazine, October 26th, 2014