KARACHI: With low conviction rates and patriarchal attitudes prevalent in court rulings and legislation, progressive reforms of rape laws that ensure justice for victims are necessary and desirable.
One bill passed by the Standing Committee and currently pending before the National Assembly seeks amendments to the Pakistan Penal Code (1860), Code of Criminal Procedure (1898) and the Qanoon-i-Shahadat (1984) to improve upon rape prosecution.
However, a rigorous review of rape laws shows that wider consultations and more comprehensive reforms than those proposed by the bill are required; abhorrent and archaic statutory rules and judicial statements should be struck out.
A few of the amendments moved by PPP Senator, Sughra Imam, include:
• Resolution of rape cases within six months
• Protection of the identity of rape victims
• Penalties for disclosures of personal information of rape victims
• Mandatory medical test and extraction of DNA within twenty-four of hours of receipt of information of such an offence
Disclosure of identity of the victim of rape ─ Section 228A
Protecting the identity of rape victims may reinforce the notion of “shame” associated with rape and violate fundamental freedom of speech but in Pakistan, a victim’s right to privacy trumps all ─ especially in light of how victims of sexual offences are stigmatized and criminalized.
Medical examination of the victim of rape ─ Section 164A
Mandatory DNA sample testing by registered medical professionals could prove beneficial to prosecution. Although DNA tests need not be conclusive evidence of guilt, the amendment is a necessary antidote to Council of Islamic Ideology’s regressive proclamation last year seeking to undermine the probative value of DNA tests as primary evidence.
Every effort should be made to maintain dignity and minimize humiliation in rape investigations. Thus, the ‘two-finger test’ (a practice in which doctors attempt to determine if a rape victim is sexually active), for example, should be banned. In 2013, the Verma Committee suggested its abolition.
This test is used for two purposes in India and Pakistan ─ to police morality and to assess whether the hymen was ruptured as a result of rape. Such assessments have no place in a modern judicial system and have little to no evidential value. High Court judges should abstain from using such tests to dismiss a victim’s virtue and morality, and hence undermine her credibility.
Punishment for rape ─ Section 376
The bill also requires a three year sentence and/or fine for a public servant who fails to “properly and diligently” carry out an investigation. Police officers and public servants who take advantage of their position to rape women in their custody will be given a mandatory life imprisonment or the death penalty (DP).
Under current law, sentences for rape are the death penalty or a sentence of between ten and twenty-five years; for gang rape these are death penalty or life imprisonment.
While the egregious nature of a rape by a public official ─ whose job is to safeguard rights ─ must be underscored, a common misplaced view seems to be that recommending anything but death undermines the seriousness of rape and its traumatic effects on victims.
Moving towards holistic systemic change
Research shows that harsh penalties such as the DP are not a deterrent, and to advocate against the DP is not to understate its heinousness of this crime. Clearly, harsh sentences already exist for rape and have not led to high rates of successful prosecution.
In order to end sexual violence we need to devise holistic solutions that address women’s lack of power in society and operationalise thousands of state run help lines, shelters, victim support services, and legal aid clinics for women all over the country. These would be practical measures to ensure we see an increase in rape convictions. Instead of relying on boutique private efforts to address theses gaps, the government must mainstream such provisions.
Presumption as to absence of consent in certain prosecutions for rape ─ Section 114A
The proposed reforms also require that where a police officer, public servant or hospital staff is the defendant, there will be a presumption of lack of consent if the victim’s evidence before the court is that she did not consent. The legislature should specify whether such presumption is rebuttable or conclusive.
Under present law, there is seemingly conclusive presumption of lack of consent where the victim is under sixteen, under a fear of hurt or death, and when she believes, erroneously, that she is married to the defendant.
When rape law was significantly revamped in the UK leading to the enactment of the Sexual Offences Act (2003), the concept of consent was most significantly tweaked. The UK Parliament wrote in conclusive presumptions of lack of consent when the defendant deceives the victim by impersonating someone personally known to her or as to the nature and purpose of the act and six rebuttable presumptions.
Could the law be clearer if it spelled out additional circumstances where there is presumed lack of consent ─ such as threats to people close to the victim, where the victim is asleep or in a coma, detained, physically and/or mentally disabled, or under the influence of medication or narcotics ─ or more radically, wherever there is a significant power differential between her and the accused?
Also read: No justice for seven-year-old rape victim
Shaista Pervez’s (PML-N) bill is similar in key areas but has additional provisions:
• Penalizing “knowing disobedience” of public servant to follow the direction of the law in rape cases and other related offences. A fault-based system ensures culpability on the part of officials who will be punished for failure to investigate.
• Provisions for legal representation of victim
• Registered medical practitioners examining rape victims should be female
• Victim should be escorted by a female police officer
While even piecemeal rape reform is commendable and needed, one could aspire for more refinements.
Revision of the Definition of Rape ─ Section 375
The law should punish rape not just of female victims, but also men and transgendered people. Presently, Section 375 of the Pakistan Penal Code defines rape as a crime committed by a man against a woman.
Unequivocally, condemning marital rape and rape of sex workers (and ensuring they are not prosecuted in turn) could also go a long way in sending the right message to people about the rights of sex workers and undercut notions that such acts within marriage or in exchange of payment are always consensual. While law-making reflects society's wishes and needs, sometimes it can pull society up to par with human rights norms.
Ill-defined and vague colonial era laws, reminiscent of medieval honor for women, such as “outraging women’s modesty” should be struck out and other laws relevant to how women experience violence ─ including shaming and blackmailing through social media ─ should be enacted.
Law-makers should be cognisant of the particular vulnerability of women in conflict-stricken areas such as Balochistan and FATA, and enact laws and implement measures to prosecute members of the armed forces and others who are accused of such crimes.
What is needed is a more systematic review of laws covering sexual violence in its entirety. Instead of focusing inordinately on harsher penalties, we need to build up systems and mechanisms that are a key to implementing the law.
Read the anti-rape bill as on 13-1-2014 here.
Abira Ashfaq teaches Law and works with Human Rights organisations. She tweets @oilisopium