The much-needed anti-rape bills

According to reports, in the last five years, the courts have not handed down a single conviction in rape cases

In contradistinction to the legislature’s characteristic stalling on critical legal reforms, the Senate, last week, adopted the Anti-rape Bill proposed (over a year back) by a PPP senator and referred it for deliberation before a joint session of parliament. Interestingly, deliberations on a somewhat similar Criminal Law (Amendment) Bill, tabled in the National Assembly by a PML-N MNA, are already underway in the lower house. It is hoped that the referral will help build cross-party consensus and speed up passage of the reforms.

The import of this legislative development cannot be overemphasised. The number of cases of rape reported each year in Pakistan run into some thousands. Very few, however, ever reach their logical conclusion. The conviction rate in cases of rape stands at a miserably low figure of two to four per cent (WAR, 2012). According to other reports, in the last five years, the courts have not handed down a single conviction in rape cases. This may be by reason of lacunae in the law, shoddy investigation techniques, attitudinal biases within the prosecutorial process, or an intimidating and non-facilitative criminal justice system, which, along with external social pressures, compels witnesses to resile from their testimony, victims to retract their complaints or enter into what are illegal out-of-court settlements.

The law of rape has, until now, remained largely indifferent to these obvious failings of the criminal justice system. The existing legal regime regulating rape is based on a century-and-a half-old provision of the Penal Code of 1860 and general procedures prescribed in the Code of Criminal Procedure, 1898. This colonial treatment of rape has sustained since independence. Amendments made to the law thus far have only focused on two aspects: the age of lawful consent to sexual intercourse and the imposition of alternative or stricter punishments.

The Protection of Women (Criminal Laws Amendment) Act of 2006 made the most recent contribution in this regard — raising the age for valid consent to 16 years and reinserting provisions governing rape, repealed by the Zina Ordinance of 1980, back into the PPC (the 2006 Act, however, maintained the death penalty for the offence introduced under the Hudood laws). The removal of the offence of rape from the ambit of the problematic Hudood Ordinances that had notoriously permitted the anomalous and unjustified inversion of a rape victim’s complaint into a charge of zina (adultery) was, without doubt, a milestone. However, the 2006 Act left much to be achieved.

The legislative proposals now pending before parliament may cover some ground. These proposals entail a rethinking of the legal regime governing rape in Pakistan, and seek to address flaws in the criminal justice system through amendments to the substantive and procedural law of rape. The amendments, on the one hand, add greater nuance to Section 376 of the PPC, by making separate provisions for the prosecution of child rape, rape of a pregnant woman, custodial rape, rape by repeat offenders and rape causing grievous injury. In order to address loopholes in the investigation of rape, the amendments, on the other hand, subject delinquent investigating officers to criminal penalties, lay down specific guidelines for conducting a medical-legal examination of the rape victim, mandate the administration of DNA tests and the preservation of DNA samples. Such measures, it is hoped, shall help secure the collection of quality evidence, thereby curtailing the legal trend towards acquittals.

Cognisant of the need to guard the rape victim from the trauma of social rebuke and to protect her privacy, the proposed amendments also criminalise the non-consensual disclosure of her name in print and electronic media. Yet, social condemnation is just one aspect of the continued ordeal a rape victim may have to confront. Many describe the trial and prosecution of rape as a second assault. Proposed amendments to the procedural law provide measures that could help ease the ordeal of investigation and trial. These include: the mandatory presence of female police officers or female family members at the stage of reporting and investigation; in-camera trials (or the use of screens) to ensure that the rape victim does not confront the accused in court; legal aid; the provision of a specific time frame for conclusion of the trial to ensure against protracted and dragged-out proceedings. References to a rape victim’s immoral character and previous sexual experience during trial may be equally distressing and intimidating, and legally should have no bearing on the determination of consent for the purposes of rape. The bills propose the adoption of rape-shield laws, which render such references immaterial and impermissible.

Yet, proposed amendments are not comprehensive, and leave untouched a critical aspect of the law: the very definition of the offence of rape. Pakistani law is premised upon a traditional definition of rape, which makes no provision for more variant modes of commission of the offence. Under the existing law, only penovaginal intercourse can constitute what in legal parlance is referred to as the actus reas of rape. Object rape or forcing an individual to engage in intercourse with another do not fall within the ambit of rape under the PPC. The Indian jurisdiction has pushed forward necessary reform in this area of law. The Indian Criminal Law (Amendment) Act 2013, amended the Indian Penal Code 1860 (having the same inception as and substantial textual commonality with our Penal Code) to broaden the scope of the offence of rape, and brought within its ambit object rape, penetration of bodily cavities other than the vagina and manipulation of the victim’s body to cause such penetration/insertion. Jurisdictions in the West have likewise moved away from this conceptually dated definition of rape. The amendments, however, are in no way context-specific. A report published by an NGO, War Against Rape, in 2012, identified in categorical terms the need to widen the definition of rape to accommodate alternative modes of commission.

Nonetheless, the passage by parliament of the anti-rape bills (in their existing form) would be a critical and noteworthy legislative development in our jurisdiction. Detractors may term these bills as a jump up the bandwagon of legal reform without regard to ground realities and resource capacities. Studies documenting emergent patterns of rape and challenges encountered in its prosecution, however, have made apparent the need for a more nuanced treatment of an offence and procedural sensitisation to the special vulnerabilities of a rape victim. The proposed amendments, then, are not based on theoretical arguments, but have been advanced in response to hard facts. It is hoped that legislators will respond positively to the anti-rape bills and will not permit mere technicalities or party politics to water down essential amendments to the law. This is necessary in the interest of human rights, women’s rights and for maintaining the relevance and effectiveness of the criminal law in Pakistan.

Published in The Express Tribune, October 13^th, 2015.

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