The consistent and apparently rising incidence of violence against women is a sign of both societal degeneration and the inability to understand the crux of the problem. In the strictly legal and criminal justice system context, there is misplaced belief that solutions to the current morass lie in simply enacting more laws and prescribing harsher punishments. The policy of prescribing harsh punishments is misguided because there is ample evidence globally that it doesn’t work. And while more laws for better prosecution may be needed, little to no groundwork is done before new enactments are introduced. One such example is the latest set of amendments to the criminal law framework — procedural and substantive — meant to increase prosecution of honour crimes. This move is likely to fail in its objective in more ways than one, and for more than one reason.
For instance, the fundamental lacuna in the law that allows out-of-court settlements or a compromise between private parties, that is the legal heirs of women and the offender who are mostly related in cases of honour crimes, remains in place. The procedural gaps, which ensure perpetrators go unpunished, were not understood before enacting these amendments, therefore the problem remains unaddressed. For instance, there’s evidence to suggest that many cases of honour killings are forgiven and the prosecution is disbanded even before the trial begins. These new set of amendments do not address this aspect of the problem. Conspicuously, therefore, we continue to lose the fight on two important fronts: impunity and the absence of preventive mechanisms.
Increasing prosecution for honour crimes will protect women victims of violence
Consider the following case. In May 2016, Zeenat, a young woman in Lahore who had married nineteen-year old, Hassan, a resident from her neighbourhood, was allegedly burnt alive by her brother with assistance from their mother. After Zeenat contracted a court marriage of her own free will, she started living with her in-laws. Soon enough, the family was approached by her brother for her to return to her parents’ home on the suggestion that she would be duly married and sent off in a traditional manner. According to her family, it was being done to rehabilitate the family’s ‘honour,’ as her act of marrying out of the family and without the consent of her brothers and mother had shamed the family. After Zeenat was killed, Hassan explained that she never wanted to go back to her parents’ home. “Zeenat told me that they [her family] would kill her,” Hassan says. He says that he was unable to do anything or to stop her when the elders of the family agreed that she must return to her family as they ran the risk of reprisal from her brothers. Zeenat was failed by society and the state. There are no effective means for women in this society to avoid violence when it becomes imminent, or to seek refuge or even help. Had there been a mechanism within or outside state institutions, Zeenat might have been able to reach out for help. It is here that the state needs to make interventions in the system.
Most situations where women are likely to face violence and death can be avoided if the state were to establish institutions that work regularly in communities to prevent violence against women. Unless the state attempts to address the problem through preventive mechanisms, the rising trend of violence against women cannot be expected to recede just by virtue of improvement in existing laws alone such as the Criminal Law Amendment (offences in the name or pretext of honour) Act, 2016.
Take the case of rape. The prosecution of rape is admittedly and abysmally low. The reason behind it is not that the substantive law is not good enough. Yes, there are issues there too but the main problem is that the circumstances in which women victims of sexual assault have to fight their cause are simply not meant to support her.
Zeenat’s is one in hundreds of cases demonstrating how the system is geared to work against victims of gender violence. In another instance, a 13-year-old girl who worked as a domestic servant in Lahore — and belongs to a poor Christian migrant family from a nearby town — was forced to withdraw a complaint of rape and reach a compromise with the accused after her case dragged on for six months. The DNA report did not even arrive. In fact, the police had failed to preserve evidence and send it to the laboratory, until it was pointed out, three days after the incident, when negligence or deliberate dishonesty on the part of the police officer was observed. Then, when I visited the district prosecutor’s office requesting speedy progress in the case, the concerned prosecutor cast aspirations on the young girl’s character because she was a domestic servant and advised dropping the case. The medico-legal officer who examined the victim did not know that sexual intercourse with a woman under the age of 16 was statutory rape. The compromise was agreed on by the father of the girl on her behalf, and it was him who received monetary compensation from the accused.
The case was consigned to record even before the charge could be framed. Rape is an offence that cannot be compromised or pardoned under the Pakistani penal law. It carries a harsh punishment of death or life imprisonment. Yet, lawyers are witness to compromises being filed and accepted in courts. This clearly shows that lawyers, prosecutors, judges, medical officers and other actors in the system are insensitive to the individual victim’s plight, as well as the destructive nature of such violence in the larger societal context. Given that no degree of harsh punishments can ensure equality, dignity and justice for women victims of violence, we need to correct the fundamental flaws within the criminal judicial system — before laws are amended.
(The writer is a human rights lawyer based in Lahore. He can be reached at firstname.lastname@example.org.)
Published in Dawn December 19th, 2016