A first encounter with criminal law is expectedly disconcerting. But mine has been exceptionally so. The gang-rape case of a 13-year-old female child victim in Ratta Amral, Rawalpindi, spoke of the baseness of human nature and the extreme vulnerability of rape victims in instances where the state, failing to apprehend their transgressors, facilitates the act of sexual violence against them. These instances represent the perversion of our state and its failure to employ its collective coercive and expressive forces to condemn and protect against heinous crime.
The ‘criminality’ of an act, in legal thought, is structured on its nature as a ‘public’ wrong. An act is not a crime solely because it is morally reprehensible and mandates censure, though this may be so. The ‘moral test’ is at best a normative standard that cannot, on its own, justify the invocation of the state’s coercive powers to penalise conduct. An act is a ‘crime’ because it entails a violation of values critical to the functioning of a community. An attack on the inviolability of human life and integrity, values that underpin the social fabric, is, therefore, an offence against the public and the state, which alone possesses the moral and physical capacity to protect these values. The responsibility to guard against crime falls on the state.
Rape is a physical and psychological attack on a woman’s body, her psychological well-being, integrity and privacy, affecting her ability to function in society. Rape is thus an attack on critical public values and mandates the mobilisation of the state’s protective and condemnatory forces. Where the police — the most visible and accessible functionary of the state and one essentially entrusted with the execution of its protective function — itself becomes the perpetrator of sexual violence, a critical contradiction arises in the criminal justice system.
About 827 cases of rape/gang rape were reported across Pakistan in 2011 (Aurat Foundation, Violence Against Women report). Police officials, in a worrying number of cases, are involved as direct perpetrators of rape, as aiders or abetters or as guardians of the accused, refusing or delaying, on various pretexts, the filing of an FIR and employing intimidation tactics to secure settlements between the victim and her aggressor, prohibited under the law (WAR Report, 2012). It is exactly this conciliatory and guarding role performed by police officials in the Ratta Amral rape case that is under question in a constitutional petition before the Supreme Court. Statistics demonstrate even more condemnable involvement of the police in rape cases. Twenty cases of rape committed by police officials were reported in 2011 and about 10 have thus far been reported in the first half of 2012. A gross majority of such incidents remain undisclosed. The horrific details of a few have attracted media attention: the gang rape of an 18-year-old girl by five members of the Muhafiz Squad in Shiekhupura this March; the gang rape of five female tourists, between 16 and 21 years of age, by three Border Military Police officers near Fort Munro in June; and the gang rape this August by the city and Kaghan police authorities in Manshera of a teenage girl, who has recently withdrawn her complaint, allegedly under pressure from the police.
As custodians of ‘public’ safety and security turn to attack those entrusted to them for protection, as coercive forces allocated to the police by the state to guard against public wrongs are employed to shield malefactors, whoever they may be, the state fails in the execution of its essential responsibility to defend the values upon which its structures rest. In a society where cultural norms and assumptions weigh in against victims of sexual violence, this state failure is of critical significance. Confronted already by attacks on their character and subjected to social ostracism, a rape victim’s fight for justice is made inexplicably harder and avenues of redress are considerably curbed when those at the fore of the criminal justice system are their chief transgressors. In such circumstances, the state becomes a sponsor of sexual violence, albeit indirectly. That the state reign over these miscreants in the police is critical, not only for the ends of justice, but also in the interest of its own legitimacy and self-preservation.
Published in The Express Tribune, November 20th, 2012.