Rape-politik: Herein lie the answers

To work towards ending the rape menace, solutions must be found in laws and the medico-legal system.

Sarah Zaman July 16, 2013
To work towards ending the rape menace, solutions must be found in laws and the medico-legal system. PHOTO: FILE

KARACHI: As women are barely represented in the criminal justice system in Pakistan, there is greater likelihood that the facts of a rape case will be misconstrued, twisted and dramatically changed till they become consistent with a patriarchal view of the world. Add to this view a class complex and you get routine disbelief and rejection of what a woman claims to be true, particularly if she is poor.

Rape rages across Pakistan but a vast majority of cases remain hidden from the public eye. An increased number of child rape cases in Karachi over the past few years accompanied by severe torture and sometimes manslaughter has brought the average victim’s age down to 14 from 18.

It has in part also helped debunk the myth that only bad girls are raped. How a 3 year old child is expected to err on the side of caution when trusting someone is as reasonable as expecting an adult woman to take on a gun-wielding rapist. The power dynamics between the victim and the assailant are essentially the same, even if there isn’t a weapon involved.

Of rape laws and bias

Rape laws have been debated in Pakistan forever and the Hudood laws added further complexity to the issue. Ironically, these laws were promulgated the same year the world witnessed the passage of the Convention for the Elimination of all Forms of Discrimination Against Women (CEDAW), which Pakistan subsequently ratified. Although those dark times are behind us when a woman needed four creditworthy males to corroborate her rape, structural and institutional reforms necessary to give credence to improved laws have been conveniently ignored by successive governments, irrespective of how pro-women they claimed to be. It is too sensitive and complex a subject for lawmakers to address, particularly since religious backlash is inevitable.

The interplay between various socio-cultural, political, structural and legal complexities is important to understand to be able to explain why getting away with rape is so easy in Pakistan. An understanding of codified laws as well as the executing bodies including police, medico-legal, forensics and judiciary, is crucial to understand why women would think a hundred times before taking legal action.

British jurist Mathew Hale first popularized the idea that rape is a charge “which is easily made and, once made difficult to defend against, even if the person accused is innocent”. This is often referred to as the ‘Hale Warning’ and cautions the judiciary to try rape cases with utmost scepticism before they deliberate the innocence or guilt of a defendant.  The reality is of course contrary to what Hale propagated back in the 17th century. As we inherited Commonwealth laws upon separating from British India, our judiciary still holds scared the notion of ‘reasonable doubt’. It effectively turns this principle on its head, discrediting woman as pathological liars who like to implicate incorruptible men.

The bias against the survivor is set in stone by Article 151(4) of the Law of Evidence (1984), which allows defence to impeach a raped woman’s credibility in court by invoking her past sexual behaviour. The National Commission on the Status of Women had recommended the striking out of this clause in 2003.

Consent is the defence’s first and final strike to undermine a case’s veracity. Consent is seen as implicit in lack of marks of violence on a woman’s body, as defence argue and judges believe that if a woman was truly raped, she would offer utmost resistance and end up black and blue as her efforts are defeated. Resistance cannot be assumed by a golden ratio, yet our courts are not satisfied unless they can ‘see’ that raped has been committed.

Although codified law as of 2006 says that a woman less than 16 cannot legally consent to sex, there is a constant turf war between Sharia laws and the Pakistan Penal Code on the issue.

The law also says that if a woman delays reporting, it can be used against her in court. This is sanctioned under Article 121(j) of the Law of Evidence. Given that reporting is inadvertently delayed due to stigma, shame and self-blame, it is little wonder that defence should have a field day if she delays reporting or if the police turn her away when she attempts to register her case.

In addition to these discriminatory laws, there are no legal provisions criminalizing and prescribing punishments for object rape, necrophilia, marital rape and incest, despite reported cases (marital rape being an exception as they form part and parcel of domestic violence charges).

Lower courts where most rape cases are initially tried and are quashed have no separate waiting rooms for litigants, no shields for protecting minors during identification of the accused, and no in-camera trials unless vehemently demanded. In effect, there are no shield laws protecting survivors from the double trauma of appearing to testify in court.

For their part, politicians are quick to pay lip service and dispense cash payments in a show of sympathy and sometimes if these gestures are spurned, they publicly blame the survivor. This attitude effectively kills the already slim chances of an unbiased litigation and/or a favourable verdict in court.

Medico-legal services – a dearth

In terms of medico-legal services without whose report, a case’s papers are not complete for litigation, there are only 5 women medico-legal officers posted across three government hospitals in Karachi, catering to the medico-legal needs of approximately 9 million women. Aside from rape cases, these doctors also conduct examinations in burn, hit-and-run, bullet injury, suicide, bomb blast and murder cases involving women. These doctors are severely undertrained and perpetually strapped for resources. There is no cold storage facility for freezing semen samples to conduct DNA tests. Even if a DNA test result may implicate a man for rape, there’s no surety that there will be a conviction forthcoming. One may only track the history of the Quaid-e-Azam Mausoleum case to get a sense of redundancy of DNA testing in Pakistan. The CII’s recently cast DNA evidence aside in rape cases, deeming it secondary evidence only useful in paternity dispute, even if its findings can be more conclusive than largely ineffective medico-legal examination. This declaration by the CII is timely, as the judge in the Quaid-e-Azan Mausoleum case which was recently lost, made the exact same observation in his concluding remarks. It is another story that he holds that women still need witnesses to support their claim.

Rape survivors are never tested for HIV/AIDS, never given emergency contraception and hardly ever referred to a psychologist. In a 2005 research study of the sector by War Against Rape and Aahung revealed that only 54% medico-legal officers take consent from survivors prior to the examination. In many countries including India, failure to take consent in itself amounts to sexual assault due to the invasive nature of the examination.

Numbers say it all

Statistic gathered by WAR since 2004 reveal the following:

  • More than 70% cases are never reported to any authority in

  • It can take anywhere between 3 to 10 years for a case to reach a verdict in court

  • The drop-out rate in rape cases is as high as 20-30%

  • More than 25% families are dislocated from their homes to avoid persecution and stigma

  • It costs upwards of 10,000 Rupees to get a DNA test done (samples for which are sent to other provinces), which is almost always borne by the survivor and her/his family

  • About 30% to 40% cases of rape are decided out-of-court through settlements brokered by police, lawyers and judges and/or because of social pressure to forgive and move on

  • The FIR is not lodged in about one-third cases where medico-legal examinations have been conducted

  • In nearly 27% of registered cases, the charge sheet is never submitted in court as the case is disposed due to lack of evidence

  • The conviction rate in rape cases is about 2-4% of cases that go through the system.

Solution Talk

By any measure, these statistics do not inspire much hope, but there are solutions and certainly, some success stories. Recently some landmark judgements have been given in rape cases, which can serve as a resource to prosecutors in preparing for future cases. In particular, a recent ruling against a rape case verdict by Rawalpindi High Court where the father of the victim informed the court that he had agreed to taking Rs. 1,000,000 as ‘compensation’ for his daughter’s rape, was set aside by the Supreme Court of Pakistan (Criminal Petition No. 38 of 2012). The SC verdict granted many demands made under the petition for improving the criminal justice system’s response to such cases.

Similarly, investments are being made to train women law-enforcement officials across Pakistan, while they have been authorized to investigate and report on their findings. More women are being trained to take up offices across courts which may well help change their culture and make them more accessible and less intimidating for women. Additionally, numerous pro-women legislations have been passed, including the Sindh Domestic Violence law on March 1 this year.

Such changes are desperately needed if women are ever to convince a society where men determine their fates, that rape occurs and that every case is a different story, to be handled as such: with care, empathy, respect for fundamental human rights and a change in the mental scripts that dictate that a woman must prove that she was raped to be worthy of credit.

Published in The Express Tribune, July 16th, 2013.