KARACHI, Feb 10: Today, only a fraction of rape victims report the crime, still fewer pursue the case in the courts.

To encourage more rape victims come forward in the courts, lawyer Shakira Tariq, for War Against Rape (WAR), has called for certain procedural changes in the laws dealing with rape. “We need a special law for rape victims so that the judge always hears such cases in the chamber to ensure privacy.”

Privacy is crucial in such cases as the victim is required to recount the details of the case; she is subjected to cross-questioning which can be humiliating, particularly when conducted in an open court in presence of the relatives of the accused. Moreover, the defence lawyer often claims that the victim is not of good character which is why the incident occurred.

Ms Tariq also recommends that where possible, a female magistrate and judge hear such cases. “Sometimes the male magistrates harbour bias against the victims or lack sensitivity,” she says.

To illustrate the point, she gives two instances: “In 1998, I took up the case of a 12-year-old, who was raped for several months by her father. The sessions judge awarded the father a maximum punishment of 25 years. The father lodged an appeal at the Federal Shariat Court where the judge took the view that a father can’t commit this to his own daughter and gave him an acquittal, without examining the evidence.

“Again in 1998, when the victim of a gang-rape appeared before the magistrate, the judge remarked at her plain looks, ‘Who would resort to such an act with a girl like this?” Given the feelings of humiliation that the victims suffer and the long delays in such cases — it is three to four years before the case is completed — the dropout rate of victims from the court is high. “Of the 22 cases of rape that I undertook in the past three years, almost nine have stopped coming to the court.”

Ms Tariq feels that having a separate court for all victims of sexual abuse would protect them from prying eyes and idle gossip and help the cases proceed faster. Till such a court is set up, she suggests, such cases should be given priority in the ‘cause list’ and taken up in the morning to prevent needless wait of the victims in the courts. She also advocates workshops and seminars for lawyers and magistrates to sensitise them to gender issues, including rape.

It may be mentioned here that the report of the Commission of Inquiry for Women (Aug 1997) had recommended that the government should, in collaboration with expert groups and individuals, “develop a comprehensive policy” for gender sensitizing educational and training programmes in the public training institutes, including judicial training institutes for fresh the entrants and in-service subordinate judiciary. However, no such steps have been taken so far.

Public prosecutor Zeb Jawed also underlines the suffering of rape victims, particularly if young, when they undergo cross examinations in the court. She recounts the case of incest of a 14-year-old whose mouth was taped by her father and she was blindfolded and raped on several occasions after her mother left home for work.

“Although the mother, grandfather and uncle were witnesses in the case, the girl was so traumatized that she could hardly answer the questions put to her in the court. In fact, she did not want to go to the court at all, and her mother, who had lodged the FIR, would force her to do so.

“I have seen even older girls get confused in the court, especially when subjected to cross-examination. On such hearings particularly the court fills up.”

Ms Jawed upholds the idea of a special law for rape cases so that these can be heard within the judge’s chamber.

She also supports the idea of a special court for Hudood Ordinance cases. “After all we do have banking courts and courts for anti-corruption cases.” Today, she says, many cases in Kutchi Abadis go unreported.

A High Court lawyer Shoaib Ashraf, however, differs. He holds the view that a change in the procedural law will not make much difference in the reporting of rape cases.

“We already have a provision for chamber proceedings in the CrPC section 352. All that a lawyer has to do is to ask the judge to hold the proceedings in the chamber. Again, in the Qanoon-i-Shahadat, article 146, indecent questions are not permitted in the court and a protest can be raised at any such attempt.”

Given this, Shoaib Ashraf is of the view that only a change in the law will not encourage more rape victims to register their case in the court.

“The burden of proof in rape cases should be on the accused instead of the victim, as is practised in India. There, the victim does not have to go to the police station to register the case, rather police come to the victim’s house to lodge the FIR.”

Again, in India, delay in lodging FIR and conducting of medical examination, considering the social norms and traditions, are also not seen as crucial in rape cases. Rape is treated as a class apart. “It is understood that given the enormity of the crime, there will be family consultations and delay, and this does not go against the victim.” To those who object that a woman may falsely allege rape, he says, “No woman can falsely implicate a man in a crime at the cost of her honour and lifelong repercussions. Besides, the judge will also consider any evidence provided by the accused.”

In India, a change in the law relating to rape has led to many women come forward to report rape. This has been observed both by the Indian lawyers and the NGOs, with whom Shoaib Ashraf has discussed the matter.

In Pakistan, the burden of proof in narcotic cases is upon the accused from whom the contraband is recovered (Section 29 of the Control of Narcotic Substances Act, 1997). “Rape cases, however, are far more serious and this calls for a change in the law.”

Shoaib Ashraf also calls for the repeal of the Hudood Ordinances as it is being exploited and the victims under the law have been turned into the accused by the police, if their demands are not met. “Several such cases have been reported. And this is the main reason why victims don’t come forward to lodge a complaint.”

Even the Shariat Court has called for a change in the law so that there is a clear difference between zina and zin-bil-jabr and the punishment so awarded.

However, he asserts that if the Hudood law remains in the present shape or is modified, the burden of proof can still be placed upon the accused to protect the victim.