IN a complex and diverse world, recourse to stereotypes and generalisations is perhaps an inevitable facet of human behaviour. Stereotypes and resulting inferences manifest on a day-to-day basis in a range of social contexts and interactions and need not always be prejudicial. However, where laws, policies, and judicial reasoning embody and perpetuate these stereotypes, they give rise to discrimination and undermine equal enjoyment of human rights.
In Pakistan, this is particularly true of gender stereotypes and their impact on redress and accountability for sexual violence. Despite some notable law reform in recent years, a variety of stereotypes regarding the respective roles of men and women in society and their sexual behavior continues to influence impartial reporting, investigation, prosecution and adjudication of cases of rape, hampering access to justice for sexual violence.
Rape as a crime against ‘honour’: In Pakistan, as well as most of South Asia, rape (and other sexual violence) is generally understood as a violation of honour. This understanding also manifests itself in how rape is defined. In the Urdu language, for example, rape is commonly referred to as ‘ziyadati’, which can be defined as ‘being wronged’. Other words frequently used for rape include ‘asmat darii’ and ‘izzat lutna’, both defining rape as deprivation of honour.
That rape ‘dishonours’ the victim is a recurring theme that is, disturbingly, also perpetuated by the courts.
These terms and the underlining assumptions reflect an approach to sexual violence that is not concerned with the infringement of a woman’s integrity or autonomy, but instead with what is perceived as an assault on honour — the honour of the woman, her family, and her community. Instead of promoting concern for the dignity and emotional and physical wellbeing of the woman, they reflect the belief that a woman’s involvement in sex outside of marriage — with or without her consent — has ‘shamed’ her.
That rape ‘dishonours’ the victim is a recurring theme in public discourse, and disturbingly, is also perpetuated by courts in their judgements. In one case, for example, the Lahore High Court held that the father of a victim of rape and murder had to “swallow the humiliation resulting from the publicity of his daughter’s rape”, and in another, the LHC refused to believe that a “virgin educated girl would put her honour and dignity as well as that of her family at stake” by fabricating a rape allegation.
While the rape victim is thought to be ‘dishonoured’ by acts of sexual violence, the perpetrator of rape is painted as a lustful predator who commits a crime of passion, not violence.
Decades of research have shown that the expression of dominance and power, not the act of sexual intercourse itself, is the dominant driver of rape. Despite these findings, there is still a tendency to attribute sexual urge and lust as the primary causes for rape: ‘Ravish’ is used synonymously with rape in many legal provisions, judges continue to describe ‘animal lust’ as the impetus for rape which leads to the ‘defloration’ of victims.
Rape and ‘morality’: The characterisation of rape as a crime of ‘lust and passion’ which ‘dishonours’ the victim presupposes an archetype rape victim — a young, ‘moral’ and ‘chaste virgin’. Where victims and survivors of sexual violence do not meet this archetype, rape allegations made by them are often dismissed and they are stigmatised, or even prosecuted, for their perceived immorality.
Following a recent alleged gang rape in Lahore, for example, the media reporting of the case was rife with such stereotypes. One newspaper suggested in its gossip section that the complainant and one of the alleged rapists were involved in a ‘tryst’ in the hotel room where the alleged rape took place, going on to dismiss the gang-rape allegation. The reporting by electronic media was even more telling. Messages exchanged between the complainant and one of the alleged rapists were splashed across television screens, and their prior relationship was considered proof that the gang-rape allegation was fabricated.
Such stereotyping shapes the investigation of sexual violence, and often, also judicial decision-making. Courts are more inclined to believe the testimony of complainants where they meet the ‘young, chaste and virgin’ archetype, and either dismiss the complaints or require further corroboration where the rape victims or survivors are older, or are perceived to be — as described by various courts — of ‘easy virtue’ and of ‘loose character’.
In one judgment, the Sindh High Court observed that the fact that “the woman was used to sexual intercourse would lend support to the version that the alleged intercourse may not have been performed against her wishes”. This can be contrasted with the Peshawar High Court’s more sympathetic view where the complainant was “a schoolgoing virgin/tender age girl”, who “could not be believed to put her career, personal respect and family honour at stake by fabricating a false allegation of such nature”.
This stereotype of the ideal rape victim is not a judicial creation but is the law of the land. Even though the sexual history of the victim is irrelevant to whether rape has occurred, Section 151(4) of the Qanun-i-Shahadat Order, 1984, states that the credibility of a witness may be impeached where “a man is prosecuted for rape or an attempt to ravish” and it is “shown that the prosecutrix was of generally immoral character”. The ‘two-finger test’, to determine a victim’s sexual history is still frequently used as evidence in rape cases.
Pakistan’s Constitution expressly provides that “there shall be no discrimination on the basis of sex”. The UN Convention on the Elimination of all Forms of Discrimination Against Women, which Pakistan acceded to in 1996, reinforces the principle of equality and obligates states to eliminate wrongful gender stereotyping. Yet, Pakistan continues to be ranked as amongst the most dangerous countries in the world for women; has an abysmally low rate of convictions of less than 5pc for people prosecuted for rape; and the prejudicial stereotypes associated with rape continue to doubly persecute victims and survivors of sexual violence.
Any efforts to make Pakistan a safer place for women will have to counter the stereotypes associated with sexual violence, moving away from understanding rape as a crime of lust that ‘dishonours’ women to what it really is — a violent assault against the physical and mental integrity and autonomy of the rape survivor.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn, January 11th, 2016