An unpardonable sin

Undoubtedly, rape is among the most prevalent crimes in the world and Pakistan is no exception. It’s harrowing to know that a woman is raped every two hours, according to a TV survey based on the data collected from Punjab’s home department and the Ministry of Human Rights.

Victims of sexual abuse, mainly women, have limited access to justice, owing to the inefficacy of anti-rape laws, social stigma and the judiciary’s lack of ingenuity. Those courageous victims who attempt to make a complaint face the apathetic attitude of the police, their first point of contact, who reprimands victims for being a part of it, if not entirely responsible. Fortunately, if an FIR is registered, and subsequently a rape case is prosecuted, the victim suffers a secondary trauma of a trial that is held in open court in presence of media, and onlookers are found mocking and ridiculing the victim.

Disgustingly, in court, the defence is free to probe the sexual history of the victim and often cites the lack of medical evidence or the non-presence of visible marks of violence on a woman’s body that indicate consensual sex. Therefore, bail in rape cases is granted easily in absence of strong evidence against offenders who, once released, torment the victims and their families for ages for want of tangible protection by the State.

A rape prosecution relies heavily on the victim’s testimony, which is central to the success of the case. If the complainant is no longer interested in pursuing a case, the prosecutor is left with no room but to drop charges against the offender. Rape under Section 320 of the CrPC is a non-compoundable offence due to its gravity, and the criminal nature of the crime that the accused can’t be allowed to go scot-free. It’s a crime not only against a person but the whole society gets affected, which mandates the state to take necessary actions to fend off the complainant and ameliorate them.

A landmark judgment by a Karachi district court struck down the out-of-court settlement in a five-year-old rape case where a 24-year-old schoolteacher was sexually abused in 2017, and a compromise was reached between the offender and the victim’s father to form the basis of accused’s acquittal. However, the judge, under Section 345 of CrPC, pronounced that grave offences like rape are non-compoundable crimes which cannot be quashed by the court even if there is an out-of-court settlement.

In presence of a statute prohibiting compromise in rape cases, and a landmark judgment of the lower court, the practice of out-of-court settlement is still rampant in Pakistan due to patriarchal norms. It is often found that judges, attorneys and police broker a “compromise” between the parties that sets precedent for others. Since a raped woman is considered as polluted in our society, her future could only be secured by associating her for a lifetime with the delinquent through marriage. Soleminising rape by “tying the knot” helps the rapist escape justice and leads to undesirable outcomes for the victim such as marital rape, domestic violence and mental trauma that she continues to sustain till her death.

In a male-dominated judiciary and a presence of few female public prosecutors, court judgments reflect views about rape victims — perhaps stemming from the belief to guard a woman and her sanctity by mediating a compromise that eventually saves the victim and her family’s social status. Hence, the victim ends up withdrawing her complaint, which leads to a low probability of conviction.

To ensure justice is dispensed in rape cases and to thwart offenders’ attempts for pre-trial settlement, judges and prosecutors must take a victim-sensitive approach and not pronounce judgments under the influence of various cultural and gender biases that may jeopardise the judiciary’s credibility. By enforcing the true nature of Section 375 of CrPC, as laid down in precedents, the judiciary could help the victim get justice in a country like Pakistan, where women are still treated as mere chattel of men.

Published in The Express Tribune, March 1^st, 2023.

Like Opinion & Editorial on Facebook, follow @ETOpEd on Twitter to receive all updates on all our daily pieces.