7th December 2021
Speaking on the lack of implementation of rape laws, panelists at the Asma Jahangir Conference 2021 – Challenges to Human Dignity held that there is a need to recontextualize rape as an exercise in power rather than simply a sexual crime, and called for removal of hurdles to implementation of existing anti-rape laws.
The session titled Anti-Rape Legislation – Barriers to Implementation was held on November 21, and was moderated by Associate Director of the Legal Aid Society, Maliha Zia, with Pakistan Tehreek-e-Insaaf (PTI) Senator and Chair of the Senate Human Rights Committee, Waleed Iqbal; Superintendent of Police and Director of the National Police Academy, Maria Mahmood; former Chair of the Punjab Commission on the Status of Women, Fauzia Viqar; former Executive Director of Group Development Pakistan (GDP) and child rights expert, Valerie Khan; and Executive Director of the Asma Jahangir (AGHS) Legal Aid Cell, Nida Aly on the panel. United Nations Special Rapporteur on Violence against Women, Reem Alsalem, joined the session from Beirut, Lebanon via Zoom.
Alsalem stated that the problem lies in the context of rape. Within the criminal justice system, the popular perception is that most reported rape cases are “fake”. She questioned what was meant by “fake” as often women are used by their families for personal gains or to exact a vendetta. In such instances, although the case may not be fake, however the justice system will consider it so. She asserted that because of this, there are many rape apologists regardless of how effective the legislation, which subsequently impedes its implementation.
She pointed out that the Committee on the Elimination of Discrimination against Women (CEDAW) found that stereotypes indeed affect the victim’s case in fair trials. Furthermore, it is well-documented that even under existing laws, rape is not frequently reported, prosecuted or lead to convictions. Alsalem urged that criminal provisions should define the conditions under which consent can and cannot be given.
Aly explained that Pakistan’s abysmally low conviction rate in rape cases is mainly due to out-of-court settlements. She held that due to the failure of the system and of first responders (i.e. the police), key evidence is lost and reports are filed months later, delaying the case and giving suspects the time and space needed to pressure the survivor or victim’s family into a compromise. She said that there is no accountability for the police and suspects.
Aly was of the view that there is no dearth of anti-rape legislation, however the problem lies in their implementation. She questioned whether the Criminal Law (Amendment) (Offences Relating to Rape) Act 2016 was ever implemented in full, reiterating that the government is active in creating laws but not in implementing them. Aly provided that over 34,000 cases were registered under the Anti Rape (Investigation and Trial) Ordinance 2020 since its promulgation in December of 2020, however no mechanism under this law was followed. The Capital City Police Officer (CCPO) informed the Lahore High Court (LHC) that there were no resources to create and run Joint Investigation Teams (JIT) and crisis cells.
Speaking on sexual crimes against children, Khan believed that the judiciary has heard and is responding to the outcry against sexual violence, and have decided to go beyond the hearing to take into consideration the recommendations of experts on the topic. For this purpose, the judiciary has set up gender-based violence courts in multiple districts to hear such cases, including sexual violence against adults, while an accused or victim child can avail sensitized justice from child courts.
She said that one of the main reasons for not giving the best evidence is the trauma and secondary victimization that any victim of sexual violence experiences at the investigation stage, the pre-trial stage, the trial stage and even the post-trial stage due to threats and intimidation. Khan noted that the judiciary has taken the step to change the mindset and establish capacity-building programmes.
Mehmood said that there needs to be more sensitization training and greater involvement of women in the police force in order to better respond to rape cases. She noted that power dynamics play a big role in rape and harassment, and therefore women need to be seen in positions of power to counter that.
With regards to police accountability, the Superintendent said that accountability has always been for the police and are always punished for faulty cases. She urged for accountability for all, such as medical officers that conduct deficient examinations, for forensic evidence getting lost in the system, and so on.
Mehmood asserted that the authorities need to have faith in the police to keep records of sex offenders, rather than leave it to NADRA as it will facilitate prompt response and ensure a clear chain of command. Uniformed services work in a strict hierarchy, and this hierarchy needs to be defined, it needs to be transparent so everyone know what they are responsible for, she said.
Senator Iqbal said that the government will be updating legislation to expand rights for transgender folk, women and children. While he acknowledged that new laws are drafted, it is not the severity of the punishment that overcomes criminal activity but the certainty of punishment. Victim blaming plays a huge part in the cultural mindset, which the Senator traced to training at a subliminal level within the home, at schools and the passing of laws that restrain women, but do not ask men to respect women and the law.
He believed that there is a need to build narratives in media against violence and sex crimes against women and children, which will enable the authorities to stop such crimes if they do so occur, like the Greater Iqbal Park harassment incident on August 14, 2021.
Senator Iqbal assured that the government has an oath to preserve, protect and defend the Constitution of Pakistan, and it is therefore it must uphold its duty to protect the fundamental rights of the people. He appealed to the audience and to the general populace to write to their senators if there has been a lapse in the provision of one’s rights, and they will do their best to uphold their duties.