September 27th, 2020
By Basit Ali Shah
Fehmida Mirza, a federal minister, has confirmed that a draft law on investigation and prosecution of rape cases has been presented before the cabinet and will be vetted by the law committee before its approval. However, lawyers and legal experts say that the provisions recommended in the new draft already exist in the Pakistan Penal Code!
Fehmida Mirza, the Federal Minister for Interprovincial Coordination, says Shahzad Akbar, Special Assistant to Prime Minister, shared a draft of Anti Rape (Investigation & Prosecution) Act 2020 in a recent cabinet meeting after consultations with certain members of the National Assembly and Senators that had shown interest in the issue. “Shahzad Akbar’s draft was given in the shape of guidelines. It’s still a draft and has been sent to the cabinet committee on law, ” she tells journalist Munizae Jahangir on the Spotlight news program.
Mirza said the committee would actually look into the details of the draft saying much work has to be done before the draft could be sent back to the cabinet for approval. “The committee would also consider rape laws enacted around the world besides taking input from all political parties,” she says.
Draft law a hurried rehash of the existing Rape Laws!
The draft anti-rape law as reported in the media seems a hurried rehash of measures for rape offenses that are already enacted, says Shabbir Hussain, a senior lawyer with Asma Jahangir Legal Aid Cell, who has pleaded a multitude of rape cases on behalf of victims for the pro-bono legal firm. “For instance, the death penalty for gang rape offenders as well as for the offense of rape with the intention of murder are already listed in the Pakistan Penal Code,” he says, adding that the suggestion to make rape offenses non-compoundable, non-bailable and cognizable is misinformed as these provisions already exist in our penal code. Similarly, the draft law talks of a ‘definition of rape’ which is already there under Section 375 of the Pakistan Penal Code, Hussain says.
The other proposed measures on protection of victim’s identity, video link recording of evidence, free legal aid to rape victims, and in-camera proceedings have already been clearly mentioned in the Criminal Law (Amendment) (Offences relating to Rape) Act 2016, according to Hussain. Interestingly, the draft law proposes a limitation of 30 days for completing of police investigation in rape cases but it seems those who drafted the suggestions are unaware that under all cases police are bound to complete investigations under 14 days, Hussain adds.
What are the new suggestions?
The special court presided by a female judge
The draft law speaks of special courts to try rape offenses. The special court, presided by a female judge, will be bound to announce a decision within 45 days. Under the existing laws, courts are bound to decide on rape cases within three months, Hussain says.
However, Abid Saqi, Vice Chairman of Pakistan Bar Council, calls the suggestion of special courts a mere waste of resources. There is no need for a parallel mechanism to handle the Lahore motorway gangrape and other cases of heinous crimes against women and children, he says. In the opinion of Azam Nazir Tarar, Chairman of the executive committee of the PBC, public hangings or the constitution of special courts will not do much to deter offenders from committing heinous crimes against women and children in Pakistan.
Chemical castration is a reversible procedure
Prime Minister in a recent interview had favored chemical castration as one of the measures to deter a rising number of cases of rapes and sexual abuse in the country. The draft law proposes chemical castration of repeat sex offenders. There is no previous precedent of surgical or chemical castration in the country’s laws. Chemical castration involves a pharmacological therapy that reduces sex hormones (such as testosterone) and, in consequence, eliminates sexual desire. It is normally a reversible procedure, ending after the treatment is discontinued.
Registry of sex offenders
The draft law proposes a registry of sex offenders in the country. In 1994, the United States became the first country to enact the national-level sex offender registration law. There are 29 other countries that have enacted sex offender registration laws. In the United States, nearly every sex offense is registerable, and offenders are required to register for anywhere from two years to live, depending on certain circumstances. Sexual offenders on the list are required to notify authorities if they are traveling abroad. There is a proposal to assign monitoring of rape cases to the National Commission on the Status of Women.
Formation of rape crisis cells will be hard to implement
The draft law also suggests the formation of Rape Crisis Cells in the police department at the level of districts, provinces, and the federation. The crisis cells will be headed by female police officers of Grade 21, Grade 20, and Grade 18 at the district, provincial and federal levels respectively. In addition, the draft law proposes that the police investigating officer of a rape case will be a female officer of Grade 17 which is usually an Assistant or Deputy Superintendent of Police. According to Hussain, there is a dearth of senior investigation female police officers and the provincial governments will find it hard to implement the provision practically.
No funds for rehabilitation of victims and convicts
The draft Anti Rape (Investigation & Prosecution) Act 2020 also calls for the provision of rehabilitation facilities for rape and sexual abuse victims as well for the convicts. The country has presently no state-funded system to provide counseling and rehabilitation to victims of sexual abuse and violence.
Definition of consent
According to Hussain, the draft law rightly points out a lacuna in the shape of the ‘definition of consent’ under the Pakistan Penal Code. A definition of consent will help rape victims whose cases are prolonged after the accused pleads that the relationship was consensual. Similarly, the inclusion of transgender persons in section 376 (it currently mentions only male and female) will help transgender victims get justice quickly, Hussain adds.
‘A move to sidestep the main issue’
According to Nida Aly, executive director of Asma Jahangir Legal Aid Cell, demands public hanging and new laws for exemplary punishments in wake of the Lahore motorway gangrape are attempts to steer attention away from the real issue of police failure in terms of investigation and prosecution of sexual abuse crimes in the country.
“Parliamentarians are seen calling for stricter laws on rape and sexual abuse cases despite knowing that current laws already have reached the maximum punishment of death penalty and life imprisonment in such offenses, ” Nida Aly says in a discussion on ‘Addressing Rape and Sexual Violence Structurally’.
According to Aly, the least the authorities can do is to bring improvement in the first registration of cases and the first response team for victims of sexual abuse. There is a complete lack of trust in the police. Even as a female lawyer I will be reluctant to file a police complaint after being mugged on the street given the culture of hostility and social stigma towards women in police stations.”
“The failure of our criminal justice begins with the poor police investigation in rape cases,” Nida Aly says. Aly says that in recent rape cases police either protects perpetrators or the excess are committed by them.
Speaking about her experience dealing with rape cases of children, Aly says it is truly heart-breaking to see police officials wasting crucial scientific evidence in cases involving children aged between 12 to 13 years, adding that the police officials often do not have the medical examination of the victims conducted on time. If the supporting evidence is lost, this weakens the case before the court, she says.
There is another level of failure of the prosecution department when the rape cases reach the courts, she adds. “The prosecution department has the responsibility of establishing the guilt of the perpetrator before a court fails to do so.” The prosecution department has no training and gender sensitization whatsoever in how to deal with rape cases, according to Nida Aly.
Aly says it will be unfair to blame judges for the low conviction rates in rape cases. “A judge cannot do much if there is no evidence, no proper police investigation and charge sheet, ” she points out. The judges are bound to give a judgment on the basis of facts and evidence before courts.
Police reforms aimed at training of police personnel on how to preserve evidence in rape cases and education on gender sensitization can help raise conviction rates in rape cases.
The talk of enhanced punishment in rape cases is immaterial if the criminal justice system cannot ensure convictions under the present laws. Presently, there are 1.9 million cases pending before courts in the country, she points out.