FOR the rape survivor and her family, the tragedy of rape changes everything and irrevocably determines all aspects of their lives. Until the rape litigation ends, the tragedy of the rape incident consumes their daily lives.
Therefore, a successful rape litigation leading to a conviction of the perpetrators of rape is literally about saving the rape survivor and her family.
So, the question is simple — how do we increase the conviction rate in rape trials, or more precisely, how do we save the rape survivors and their family by getting them justice?
Although I was formally trained in law abroad I learnt most of my lessons about rape trials from my encounters with a girl from Gothki district, Sindh, namely Naseema Lubano and her rape trial. The rape law in practice (rather in theory) in Pakistan, and an understanding of the multiple problems of rape survivors and their families, is the key to understanding the problem of a lack of convictions in rape cases.
Naseema Lubano is a daughter of a hari family from Gothki district. In broad daylight, she was kidnapped, gang-raped and molested by the landlord and his 10 men. Like all stories of rape, the story would not have begun but for the indescribably courageous decision of Naseema and her family not to suffer this grave injustice in silence.
The courage and morale was reinforced by the critical role played by the local as well as the national press recognising her as a victim and survivor although later on, the press lost interest.
The initial role of the state was also critical in registering the FIR, arresting some of the perpetrators, a decent investigation by the investigation officer but an investigation which could have been much better and the shifting of the family to Karachi.
But later, abandoned by the state in Karachi and with unfulfilled promises from numerous individuals and organisations, this displaced family with no food or shelter, lack of health facilities and no means of livelihood was saved, physically and socially through the critical interventions of some members of civil society.
War Against Rape, an NGO, offered some financial and medical help, Engro offered a job to the father, Muneer Malik's legal office offered their legal services pro bono and also offered monthly financial help, and female PPP MPAs arranged for permanent residence for the family in Karachi.
The role of the superior judiciary under the leadership of Chief Justices Iftikhar Chaudhry and the late Sabihuddin Ahmed was also critical because the trial of the rape case was transferred to Karachi. But the trial took three years to complete with the sessions judge in Karachi pronouncing judgment that gang rape had indeed been committed but (shockingly) holding that the allegation of kidnapping and molestation were exaggerated by the rape survivor and, thus, convicting only one perpetrator and freeing six others. The appeal is still pending before the Sindh High Court.
What are the lessons of the Naseema Lubano story?
First, the inexhaustible courage of the rape survivor and her family has to be reinforced by continuous, not sporadic, public support. The role of the press, especially the local press, is critical but equally critical is the continuous recognition by the state, civil society organisations, political parties and legislators. Rape survivors and their families need to be socially monitored and honoured by continuous recognition in order to end their isolation and perceived shame.
Second, a small but effective body with limited funds and access to key facilities, under the joint management of the state and civil society organisations, can provide effective financial and physical stability to the rape survivor and her family. As the story of Naseema suggests, it doesn't require mega resources.
Third, as a matter of policy, rape cases should only be investigated by a senior police officer, and not by the local police officer, and all rape investigations by this senior officer should be monitored by a special committee formed by the IG police of the province. The investigation is critical because a defective investigation destroys the chances of an effective prosecution.
Fourth, another key difference between a conviction and acquittal of a perpetrator is the presence of a responsible and reasonably competent lawyer for the rape survivor. Lawyers are expensive creatures and rape cases can only provide them with moral capital and fame.
The key is to attract young lawyers who are yet to be corrupted by the legal profession. Such a minority mass of young lawyers are available but there is a need to discover, motivate and organise them, with limited legal funds at their disposal.
Fifth, rape trials take place at the level of the subordinate judiciary and the subordinate judiciary is, frankly, not receptive to the concerns of the poor litigants especially a poor woman litigant.
The subordinate judiciary is not familiar with the basic rape judgments of the superior judiciary, is insensitive to the difficulties of evidential matters in rape cases and generally irresponsible in conducting a rape trial. This situation can be dramatically improved by effective monitoring of rape cases by the superior judiciary. Why not have a monitoring cell for rape trials at the high court level in the same way as the National Reconciliation Ordinance cases are monitored.
Is the above possible? Unlike other issues, there is a consensus in Pakistan that rape survivors should get justice.
It is also obvious that the above additional measures neither require massive funding from the IMF nor any transfer of technology from the West nor any revolutionary interventions; it simply requires key individuals and institutions to improve, organise and enhance what they have already achieved in the Naseema Lubano case.
What stops us is not our lack of decency or ability or resources but our constant descent into hopelessness and cynicism as a nation. This prevents us from listening to the Naseemas around us.
The writer is a lawyer.