19th October 2021

By Asra Haque


LAHORE

In his address to the sixth National Judicial Conference of Federal Service Tribunal on Saturday, October 16, Federal Minister for Law and Justice Farogh Naseem stated that the rape survivor’s “character”, that is both their reputation and disposition, will not be relevant during investigation under the draft Anti Rape (Investigation & Prosecution) Bill 2020.

The Anti-Rape Laws were first promulgated as an Ordinance under a Presidential decree in December 2020, exactly three months after the gruesome gang-rape of a French national near the Lahore-Sialkot Motorway. Following their lapse, the laws were consolidated under a draft bill, which was passed by the National Assembly (NA) on June 10, 2021 and referred to the Senate.

The Senate Standing Committee on Law and Justice on September 1, 2021 approved the Bill following some amendments, including the formation of special courts to hear rape cases and to resolve such trials within four months. The amended bill is now pending approval from the Senate and the NA.

During the conference, Minister Naseem provided that often a survivor’s character is cross-questioned whenever someone has been accused of rape, and that regrettably the investigation and trial in the case fixates itself on the survivor’s character sexual history rather the facts and merits of the case. He added that a woman’s character will no longer be relevant in rape cases under the new law.

However, legal experts have reiterated their concern that the proposed bill does nothing new – rather, it includes provisions that already exist in other laws which governments have, in the past, failed to implement successfully, if at all.

Lawyer, columnist and legal advisor for the Center Reproductive Rights Sara Malkani told Voicepk.net that activists and experts have vocalized that the provisions contained in the draft bill repeat those of present laws. However, those very provisions have not been properly implemented, and ushering in a new law with the same pitfalls will render no change.

“The courts are irregular in following existing laws. Some judges are knowledgeable of these laws, others are not. Often lawyers are also unaware of these laws, where prosecutors also fail to properly guide their clients,” she said, highlighting that implementation, a crucial factor to providing justice to victims of sexual crimes, is most concerning both for existing laws and for the proposed Anti-Rape Bill 2020.

She pointed out that the Qanun-e-Shahadat Order (QSO) 1984 had been amended in 2016 so that a woman’s character or sexual past cannot be produced in court as evidence in rape trials. However, with reference to Supreme Court Judge Justice Syed Mansoor Ali Shah’s judgment, Executive Director of the Asma Jahangir Legal Aid Cell stated that people can still find a way around this to raise questions as to a woman’s character.

Justice Shah’s 2020 judgment pertaining to a rape trial held that a woman, whatever her sexual character or reputation may be, is entitled to equal protection of law. Moreover, he stated that courts should also discontinue the use of painfully intrusive and inappropriate expressions, like “habituated to sex”, “woman of easy virtue”, “woman of loose moral character”, and “non-virgin”, for the alleged rape victims even if they find that the charge of rape is not proved against the accused as such expressions are unconstitutional and illegal.

However, per the provisions of Article 146 of the QSO, the court may forbid questions pertaining to character if it finds that they are ‘indecent’ or ‘scandalous’, but can allow them if they relate to facts-in-issue or to matters necessary to be known in order to determine whether or not the facts in-issue existed.

“In practice, [officials] can talk as much as they want about the Anti-Rape bill, but it has yet to be passed,” Aly stated. “Both ordinances have expired and all provisions contained in the draft law do not apply right now. While,yes, under the bill the two finger test and excessive questioning of the rape survivor are not allowed, and a rape survivor is to be given witness protection, but it is not a law right now. It is just a bill.”

While there is often an attempt at raising doubts as to a woman’s character in rape cases, convictions are not deterred primarily on these grounds. The dismally low conviction rate of less than 3% in rape trials is due to either or a combination of the rape survivor resiling from her statement, exceedingly long trials that can take years to reach their conclusion, settlements or third-party interferences, or the survivor herself losing interest in the case.

“In the past, however, bringing up the woman’s sexual history was enough in some cases to defeat her,” Aly went on to say. “But there is now a lot of awareness. [The Anti-Rape Bill], as well as banning the two-finger test under this bill means that there is growing awareness and sensitivity about not bringing up a woman’s character in court.”

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