“A WOMAN, whatever her sexual character or reputation may be, is entitled to equal protection of law. No one has the licence to invade her person or violate her privacy on the ground of her alleged immoral character.” In a patriarchal society where a woman’s worth, often her very life, is premised on her perceived reputation and chastity, these words by the Supreme Court are no less than revolutionary.
They remind the criminal justice system that dignity is inherent, it is inviolable, and a woman’s sexual history has no bearing whatsoever on her credibility as a witness/complainant. Indeed, the landmark ruling — in a review petition filed by three men convicted of rape — which was released on Thursday, goes further. It holds that “reporting sexual history of a rape survivor amounts to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Article 14.”
In other words, the character assassination that rape survivors are often made to endure at the hands of the defence is in itself illegal and unconstitutional. Harrowing legal proceedings are a major reason why women either balk at reporting rape in the first place or give up pursuing justice halfway through the trial.
The verdict authored by Justice Mansoor Ali Shah also notes the gender bias in medico-legal reports that freely resort to expressions such as “habituated to sexual intercourse”, “woman of loose moral character”, “non-virgin”, etc to describe the alleged victim. Echoing a judgement by the Lahore High Court in January this year that banned the humiliating ‘two-finger test’ of alleged rape victims, the apex court ruling says that physical examination of a rape complainant should only be done to determine whether the crime of rape was committed against her, “not to determine her virginity or chastity”. Indeed, even a sex worker can be subjected to rape, and she too has a legitimate expectation that law enforcement will investigate her complaint properly, apprehend the culprit and put him on trial.
Of course, it will take time for attitudes to shift in this misogynistic society, where women’s agency and autonomy are seen as alien concepts, where women are considered repositories of male honour, and where many of them have paid with their lives for believing they have the right to spurn unwanted suitors. However, the Supreme Court’s words matter; its decisions have weight.
When the highest court in the land takes such an unequivocal stance on a woman’s inherent right to dignity, without pandering to regressive notions of ‘culture’ and ‘tradition’, it cannot but nudge society a little more towards a humane ideal. Consider this was once a country where women who could not bring four witnesses to the crime of rape against them could be charged with adultery and thrown into jail. And rejoice at how far we have come.
Published in Dawn, March 29th, 2021
