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No more pardons for rape

Updated February 08, 2018

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Last week, a 17-year-old rape survivor became one of the few victims of sexual assault whose plight piqued our collective conscience.

A hearing-impaired girl, she was sexually assaulted over two years ago by an accused who subsequently absconded.

It was last week that the accused finally appeared in court for interim bail — only to be pardoned by the girl’s father, despite her desperate protests.

Whilst previously claiming to have witnessed the occurrence himself, the father subsequently claimed that he filed the case by mistake.

The scene that played out in court was truly heart-wrenching; however, in a criminal justice system that fails to extend protective safeguards for survivors of sexual assault, it was hardly far from the norm.

In a country where civil society estimates that four women are raped everyday and conviction rates are next to zero in most districts, it is little surprise that a significant majority of rape cases are compromised before the trial is concluded.

The public outrage resulting from last week’s events have focused on the criminal justice system's treatment of crime as a private dispute between two parties and therefore reconcilable at their will.

Whilst the ability to compromise remains a fundamental flaw in prosecution for a broad range of crimes, the same does not hold true for rape.

Rape, as defined under Section 367 of the Pakistan Penal Code, 1860 (PPC), is a non-compoundable offence.

This means that regardless of any agreement/settlement between the complainant and the defence, the state is under an obligation to pursue the matter until it reaches its verdict.

In 2012, the brutal gang-rape of a 13-year-old girl in Rawalpindi brought to light the rampant practice of out-of-court settlements between parties as the basis of awarding acquittals.

Despite confirmation of the occurrence of the offence by the medical officer, the police failed to register a First Information Report against the accused.

It was only once the victim attempted to take her life did the Supreme Court take notice of the incident and direct the police to finally register the complaint.

However, once the case was fixed before the trial court, the father of the victim approached the court stating that he had entered into an out-of-court settlement with the accused parties under the auspices of a jirga and wanted to drop the charges of gang-rape.

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Despite the non-compoundable nature of rape and gang-rape under Pakistan’s criminal laws, the trial court acquitted the accused under Section 265-K of the Code of Criminal Procedure — a provision that provides courts discretion to acquit accused parties at any stage due to a low probability of conviction.

The validity of the acquittal on the basis of compromise was assailed before the Supreme Court in a public interest petition by lawyer, Salman Akram Raja, and civil society activist, Tahira Abdullah.

The Supreme Court declared the acquittals of rapists on the basis of compromise by trial courts as a nullity of law.

The Court stated that “rape was an offence against the whole society” and that even if the victim did not come forward to produce evidence due to an out-of-court settlement, it was the responsibility of the state to pursue the case to its end.

However, despite the decision of the country's top court, out-of-court settlements often remain the only means of resolution available to victims of rape.

Out-of-court settlements are routinely brokered by police and jirgas who pressurise the families of the victims to accept arbitrary decisions — often through intimidation and outright threats.

Despite a judgment of the Supreme Court in 2006 declaring decisions of jirgas in criminal matters as unconstitutional, disputes between parties, including sexual assault, are routinely referred to these often all-male bodies for resolution.

As the primary consideration of these bodies is to maintain order in society, the response to allegations of rape focuses on appeasing the male family members involved rather than ensuring justice for the victim.

Under these proceedings, the victim is treated as much as an accused party, on account of bringing dishonour to her family, as the rapist.

It is thus not uncommon to sanction rape of a woman from the family of the perpetrator by the victim’s family in order to balance the loss of honour.

The decisions of jirgas often enjoy the protection of police on account of their links to political leaders within the constituency.

In August 2017, a jirga ordered the rape of 16-year-old girl in Raja Ram near Multan, following allegations that her brother had raped a 12-year-old girl.

A law enacted in 2011, titled the The Anti Women Practices Act, stipulated penalties for the use of women in dispute resolution or in customary practices.

However, the response of police is primarily reactive and focused only on cases that are reported in the media.

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Notwithstanding the role played by jirgas in resolving rape cases, victims and their families often prefer entering into out-of-court settlements rather than standing a trial.

The criminal justice system, like the informal jirgas, treats the victim as an accomplice in her own violation. A victim’s testimony is adjudicated against misogynistic stereotypes regarding her character and sexual history.

In fact, her testimony is disregarded as false from the second she comes forward with a complaint, as a true victim of rape would never dishonour herself by drawing attention to her loss of honour.

During the course of the trial, the victim is subjected to scathing cross-examination by the defence, often in the presence of her rapist and in open court and is thereby forced to relive the traumatic violation.

Witnesses and victims are provided no protection against the accused and are left at the mercy of threats and intimidation, until they are forced to abandon charges.

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Despite the directives of the Supreme Court, trial courts are all too happy to accept these settlements stemming out of the desperation of those that they are tasked with protecting.

In the Supreme Court decision in 2013, wherein the unconstitutionality of out-of-court settlements was assailed, directives were issued to protect victims and their families against pressure to enter into out-of-court settlements with the accused.

These directives included measures such as recording of victims testimony before female magistrates, in camera trial, administration and preservation of DNA tests and samples, and psychological counselling for the victim.

However, four years on, application continues to be limited. In 2016, the National Assembly enacted legislation protecting the identity of rape victims and laying down procedures for medical examination and DNA testing.

But statistics on rape continue to soar unaddressed and every day we are confronted with incidents of sexual assault more harrowing than the one reported the day before.

Despite recent developments, conviction rates remain unchanged and most victims are forced to reconcile with the accused after having abandoned all hope for justice.

The government of Punjab, in 2017, set up a pilot court named Gender-Based Violence Court in Lahore, under the directions issued by the Supreme Court in 2013.

Tasked exclusively with handling cases of violence against women, the court is a welcome step towards introducing gender-sensitive reforms in a criminal justice system that routinely fails half of the country’s population.

Nonetheless, the public discourse needs to focus on systematic policy and legal reforms to establish gender-responsive judicial institutions rather than operate on the basis of piece-meal legislation and impassioned responses to individual cases.


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