April 8, 2023
By Xari Jalil
Two years after the Anti-Rape Act was passed by the assembly in 2021, it is important to look at where the country is standing regarding its implementation. The Act has promised many structural changes, including the establishment of Anti-Rape Crisis Cells, the establishment of Special Courts, special sexual investigation units (SSIU), etc.
In Pakistan, the conviction rate for sexual crimes stands at a dismally low 3.6 percent while at the same time, sexual crimes are as high as before. In Punjab – where violence against women has been recorded to have been the highest in terms of reporting, police, stations have recorded 3,642 rape cases and 309 gang rape cases registered in 2022. Of course, this is only the tip of the iceberg. Hundreds more possibly remain unreported due to cultural and social taboos among other reasons. In the trial courts of Punjab, over 7,000 cases of sexual violence are still pending.
In this webinar, Voicepk invited a panel of experts to discuss these very issues that plague the situation. On the panel was former MNA and Senator Ayesha Raza Farooq. She is the chairperson of the Special Committee of the Anti-Rape Investigation and Trial Act, 2021.
About where Pakistan stands on the implementation of the Anti-Rape Act 2021, Ayesha Raza said that the Anti-rape Committee had notified three sets of rules at present and was taking a multipronged approach in tackling the issue.
“Reporting of sexual crimes is so low in our country and whatever is already being reported – there is so much victim blaming and shaming and the environment is so hostile, that survivors avoid coming out to report the case,” she said. “Once the case is in court it takes years and years for the trial to carry on.”
Ayesha Raza said that it was a very dismal situation in which the Act came about in 2021.
“The Anti-Rape Act Committee which I am heading has been successful in its tenure of just a few months in passing three kinds of rules. The Anti-Rape Investigation Rules have been notified with the help of the Minister of Law and Justice; we have also notified the trial procedure rules, as well as the Anti-rape Crisis Cells and the Medico-Legal Rules have been notified by us.”
She said that Special Courts had been designated across the country meant only for sexual offences. In the same way, special prosecutors had also been notified. With the Anti-Rape Crisis Cells (ARCC), all facilities are to be under the same roof for the victim including filing an FIR, medico-legal examination facilities, an independent support person to provide counseling, and one female will always be present in attendance. The committee has also planned to set up a sex offender register and for this, a subcommittee has been formed, so that it is easy to highlight such sexual predators in other cases.
“It’s important to note that we make laws but we do not give any attention on giving awareness about the law,” she said. “It’s integral that at the grassroots level, if any woman or child is raped, the case must be reported at once at an ARCC or a local police station. A lot of important evidence is lost in late reporting. We are looking at training of the police, the forensic team, judicial officers who look at such cases. A lot of work has been done. It’s an issue across party line and we are getting a lot of support from the government departments in this regard.”
Regarding resources, Ayesha Raza said that they did not have indefinite funds at the moment, but existing structures were being utilized. “Special courts are designated courts that already exist,” she said. “In the same way, there have been special prosecutors designated. We are still working on rules being notified as well as trying to visit districts and areas across provinces whether the work is being translated on the ground or not.”
Ayesha Raza said that the law gives wide-sweeping powers to the committee regarding the implementation of the Act.
“We will also give the funds to the provinces and we have a lot of development partners who have come forward to tackle this menace,” she said. “Everyone must realize that rape is not just a crime against an individual, it is a crime against the State. And the perpetrator, if not arrested, will be a risk forever to others in society.”
‘Two Finger Test still being used despite being banned’
Meanwhile Dr Summaiya Syed, the Karachi Police Surgeon clarified that nowhere in the law, was the two-finger test (TFT) considered as an essential part of the medical examination of a rape survivor.
Justice Ayesha and Justice Mazhar in the Punjab and Sindh high courts respectively have banned the TFT. This test basically checks the ‘looseness’ of the vaginal canal and was a form of determining ‘chastity’ in the olden days. And the determination was made in such a way that if the woman could tolerate two fingers in the vaginal canal then it was considered alright, and ‘chaste’, not used to sexual intercourse. This is extremely unethical, inhumane: judging the woman’s chastity on the tone of the vagina.”
Dr Summaiya said a mother who had given birth would not have the same kind of vaginal tone but that did not mean she could not be raped and that this was the test to determine this.
“TFT was never instrumental in declaring whether there was any sexual violence or not,” she said. “However it removes the onus from the examining medical officer. If the vagina admits three fingers, she is declared ‘open to intercourse’, then there is no need to collect any more evidence – this is the generic thought pattern of the examining MO. The Anti-rape Act clearly says that whether it’s a virgin or non-virgin, a child or an elderly, a married woman or unmarried woman, the TFT has no place in the examination.”
However, she said it was true that the TFT was still being illegally used by some medical officers. To monitor MLOs and medical officers it was important to make spontaneous checking rounds and see what kind of working methods were being used, she said. It was important to make MOs understand that using the TFT would have legal consequences,
Dr Summaiya also said that they were trying to cut down expenses by introducing locally produced sexual kits to help train officers.
She said rules were developed but SOPs were now needed. “We need a multi-sectoral approach so all departments can coordinate with each other,” she said.
Rana Hassan Abbas, a designated public prosecutor for GBV said that it was still too early to judge the results of this law, but still, we are seeing a lot of improvements in conviction rates. At first, the victims’ statements could be recorded under section 164, even through video, but that was not under the law as it is now. Therefore it is a lot better now. It has become a lot easier to collect evidence through video.
“Why isn’t the conviction rate improving? I can think of two or three reasons. One is that there are too many fake cases – at least 50 percent of cases are fake. Even genuine cases go toward compromise sometimes, and those that are meant to blackmail people also often go toward compromise. When I say fake it means the complainants say that the cases were filed on basis of misunderstanding, or pressure through police,” he said.
Rana Hassan also added that the allocation of a special fund for rape investigation is necessary. “We were supposed to be allotted a special fund under the law, but I think it has not yet been given to us, and so it has not been used.”
Rana Hassan added that there was no separate room in the special GBV courts where the victim could be given legal counseling. “If I am sitting at one table telling the victim what to say, not too far is another table where the police is sitting hearing everything. There are also no independent court advisors. Many victims are extremely poor.
Meanwhile, AIG Maria Mehmood who is a Gender Crimes expert also spoke in the webinar.