March 6, 2021
Despite the existence of a series of laws criminalizing rape, incidents of sexual violence, especially against women and children, are rising in Pakistan. Legal experts and civil society activists have repeatedly highlighted a huge issue regarding the implementation of these rape laws. This is partly because too many stakeholders within the criminal justice system including the police, are unaware these laws even exist; and partly because there is little gender sensitization or empathy towards rape survivors, be it women, children, or transgenders.
In a fresh episode of Voicepk.net‘s ‘The Rights Guide’, artist Salima Hashmi, one of few who speak out for women’s rights, explains what a rape survivor must do when he or she undergoes the traumatic experience.
In reality, there are few avenues where the survivor can get this piece of extremely important advice, and information, which will later help establish a solid legal case for the survivor.
A Weak Case for the Prosecution
From what it seems from media reports, sanctioning severe punishments such as chemical castration or the death penalty in rape cases have had no effect in deterring the crime or securing justice for rape victims, survivors, and their families. The conviction rate in rape trials remains as low as one per cent.
The dismally low chance of attaining justice is among the multitude of reasons why many rape survivors and affected families forgo reporting the incident.
Existing rape statistics are not even a true reflection of the actual number of crimes. It is just the tip of the iceberg. Yet these numbers have only been collected and collated so far by NGOs, or women’s rights organizations, not the government.
In a society that prizes so-called honour – tied only to women’s and children’s chastity – rape survivors and their families fear disgrace and backlash. Aside from the rape itself, this is another trauma they must face. In most cases of sexual abuse of minors, data reveals that the abuser is a family member or a close acquaintance, and this makes it difficult if not impossible for the rape survivor or the family to lodge a formal complaint.
In cases where the rape survivors do decide to press charges, they are unfortunately unaware of the necessary procedures to preserve evidence, conduct a medical examination, and levy the relevant charges.
WHAT ARE THE LAWS?
Rape is a criminal offence under Sections 375, 376 and 377 of the Pakistan Penal Code (PPC) 1860, and is punishable by death or life imprisonment.
Sections 375 and 376 were added to the PPC via the Protection of Women (Criminal Laws Amendment) Act 2006, which also repealed the zina-bil-jabr in the Hudood (Enforcement of Zina) Ordinance 1979. The Act also did away with the requirement of four male eye-witnesses to prove that a rape did take place, and the transfer of a rape charge to fornication against the plaintiff.
Section 375 – Rape
A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:
- against her will
- without her consent
- with her consent, when the consent has been obtained by putting her in fear of death or of hurt
- with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or
- with or without her consent when she is under sixteen years of age.
Under this provision, penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Section 376 – Punishment for rape
- Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall not be less than ten years or more, than twenty-five years and shall also be liable to fine
- When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life.”
Section 377 – Unnatural Offences
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years and no more than 10 years, and shall also be liable to fine.
Under this provision, penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Criminal Law (Amendment) (Offence of Rape) Act 2016
The Act increased the severity of penalties to those convicted of rape, as well as obstructing the work of police officers and government officials, and publicizing the identity of an alleged rape victim or outraging the modesty of a woman.
It also defined procedures, including the following.
- Only a registered medical practitioner employed in a government hospital may examine the accused in rape cases and collect DNA evidence
- The statement of a female rape survivor or victim of sexual harassment must be taken by an investigating officer in the presence of a female police officer or a female relative
- The rape survivor will be provided legal aid (if needed) by the Provincial Bar Council
- The Medical examination of the rape survivor will only be conducted after obtaining consent from the survivor by a registered medical practitioner as soon as possible after the alleged crime takes place
- The trial shall conclude within three months, failing which the matter shall be brought to the notice of the Chief Justice of the High Court for appropriate directions
- All trials will be conducted in camera, i.e. privately, and will not be made public
- Public servants (e.g. the police) who fail to carry out investigation properly will be punished with imprisonment of three years, or fine or both
Anti-Rape (Investigation and Trial) Ordinance 2020
The Act introduced chemical castration as a voluntary punishment in exchange for a life term for convicted sex offenders, under rules notified by the Prime Minister, and stipulated the establishment of special courts for the trial of scheduled offences, anti-rape crisis cells for more efficient collection of evidence (oral and forensic) during the medical examination of the victim, and a special committee to form panels of voluntary advocates in every to provide pro bono legal assistance to victims.
The Ordinance also banned the controversial “two-finger test” during medical examinations of rape survivors, and bound the courts to expeditiously decide a rape case within four months.
Criminal Law (Amendment) Ordinance 2020
The Ordinance also further expanded the ‘scope’ rape under section 375 of the Pakistan Penal Code, defining the act of rape as when
- a person (A) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of another person (B) or makes B to do so with A or any other person; or
- inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, urethra or anus of B or makes B to do so with A or any other person; or
- manipulates any part of the body of B so as to cause penetration into the vagina, urethra, anus or any part of the body of B or makes B to do so with A or any other person; or
- applies his mouth to the vagina, anus, urethra or penis of B or makes B to do so with A or any other person
WHAT SHOULD A RAPE SURVIVOR DO?
According to the instructions defined in law, the instant a rape survivor understand that it is safe to do so, they should contact a confidant and bring the crime to their notice, and reach the nearest police station to register a first information report (FIR) at the earliest possible notice.
The rape survivor should ideally avoid taking a bath or washing the clothes they were wearing at the time of the assault, as clothes may contain crucial evidence. It is important to be in the same condition until all the initial legal matters are observed.
Details matter in an investigation. The rape survivor should include any and all details when lodging an FIR, such as the name, appearance, dialect and voice of the accused, and the date, place, nearby landmarks and time of the incident. In case the appearance of the culprit(s) was obscured and is unknown, the incident as it happened and the statements of witnesses should be recorded in as much detail as possible. A signature or thumbprint will be required on the statement.
If the rape survivor is female, she may record her statement at the police station or at any other place of her choice, and can also choose which investigating officer to hear her complaint. A lady constable must be present at the time of lodging the complaint, or any female relative or friend.
After recording a statement the officer on duty should inform the complainant of their right to consult a lawyer, and the rape survivor can ask for a list of provincial bar council lawyers to represent them in a court of law. If the police refuse to lodge an FIR, the front desk/reception at the police station may register a complaint where a computerized receipt will be generated.
All legal documents and their photocopies must be kept safe.
The rape survivor can issue a complaint to the Inspector General of Police via a text or voice message to 8787. The relevant Superintendent of Police can also be requested to register a complaint. Rape survivors can also contact the Citizens-Police Liaison Committee (CPLC) if the FIR was not registered, or petition the courts.
WHAT HAPPENS WHEN A COMPLAINT IS REGISTERED?
In a rape case, the police are bound to commence the investigation immediately. In cases where the complainant is female, it is preferred that the investigation be carried out by a female officer who is at least an Assistant Sub-Inspector (ASI), however as there are very few women in the police force, it is most likely that a male officer will be handling the case.
In the investigation, the complainant, their confidant(s), witnesses and any other individual who can provide important information to buffer the case should record their statements. An immediate medical examination of the rape survivor will be conducted in the presence of a female medical officer, and DNA samples should be secured and sent to a forensic laboratory.
The investigating officer should collect all evidence and order a sketch of the crime scene, and clothes and other articles of the rape survivor should also be procured. The officer is required to make a memo which should also be signed by at least two witnesses. The rape survivor and/or witnesses may be asked to sit with an artist to create a facial composite sketch, which may aid the police in identifying and tracking the suspect. They may also be asked to identify the suspect in a parade from behind a screen in order to protect their identity and safety.
If the accused was identified, the police must arrest them immediately, confiscate all their belongings during a thorough search, and produce a memo which must be signed by at least two witnesses. Should the investigating officer fail to conduct a satisfactory investigation, a complaint can be submitted to higher authorities for a replacement, and the officer may be penalized with a fine or three years in prison.
A licensed medical officer employed in a government facility will perform a thorough medical checkup of the accused, and collect DNA samples which will then be sent to a forensic laboratory.
If the accused confesses to their crime, the statement should be recorded as per law.
Following the investigation, a police challan should be forwarded to the court – after the submission of a charge sheet, the court will initiate legal proceedings and record the evidence.
Both the parties will present their statements in court in closed hearings so as to protect the identity and privacy of the rape survivor, as well as to avoid any unnecessary trauma by putting them in the same room as their rapist(s). Publicizing the identity of the rape survivor without their consent in a manner that defames them may also be penalized with up to three years imprisonment.
Harassing the duty officer or the prosecutor, or using other unfair means, or filing a false case is also a punishable offence.
The courts are bound to announce a verdict in a rape case within three months. If the accused is found not guilty, they are released. If the verdict is against the accused, they will be handed down punishments per the discretion of the judge under the relevant laws.
