Shaping justice — tracing the evolution of rape laws in Pakistan

Shaping justice — tracing the evolution of rape laws in Pakistan

Rape, an abhorrent crime that flagrantly violates the fundamental rights of survivors, inflicts deep and lasting physical, emotional, and psychological trauma. Within Pakistan, significant strides have been made in developing and refining rape laws to ensure justice for survivors. As a lawyer deeply committed to seeking justice and safeguarding the rights of all, my analysis delves into the dynamic evolution of these laws over time.

My pursuit is to gain a comprehensive understanding of the profound impact that these laws and their application have on both the survivors and society at large.

Engaging in this exploration, I, like any empathetic individual, find myself experiencing an undeniable chill down my spine. The sheer gravity and horror of the cases that unfold in our society on a daily basis are profoundly unsettling. It is precisely this uneasy feeling that fuels my determination to advocate for change, shed light on the darkness surrounding these cases, and strive for a future where such crimes are eradicated. Survivors find solace in a system that prioritises their well-being and seeks justice with unwavering resolve.

Rape laws in Pakistan

Pakistan’s legal system inherited rape laws from the British colonial era, primarily based on Victorian principles. Until 2006, the law governing rape was the Pakistan Penal Code (PPC) Section 375, which defined rape as non-consensual intercourse with a woman. However, this definition was heavily criticised for being gender-biased, as it only recognised female victims and excluded male victims or cases of same-sex rape. Thus, the development of law came forth.

In 1979, the Zina Ordinance was introduced during the military regime of Gen Ziaul Haq. Through this, harsh penalties were imposed for adultery and rape. While these amendments aimed to protect women, implementing the ordinance often punished the victim rather than the perpetrator. Victims were required to produce four male witnesses to prove their case, creating major hurdles for survivors seeking justice.

Recognising the shortcomings of the existing legal framework, the government of Pakistan took steps to reform rape laws. In 2006, the Women’s Protection Act brought significant changes by replacing the Zina Ordinance. The amended PPC Section 375 redefined rape and expanded the definition to include male victims and cases of same-sex rape. It also included sexual assault as an offence, addressing a broader range of sexual offences.

In 2016, further amendments were made to strengthen rape laws. The Criminal Law (Amendment) (Offences Relating to Rape) Act addressed issues such as child abuse, harassment, and the improper medical examination of victims. It also introduced modern forensic technology to rape investigations to improve the procedure for collecting evidence.

In 2020 and 2021, the government passed further amendments against sexual violence. These included the establishment of special courts for rape cases, a national sex offender registry, and increased punishments for rape convictions, including chemical castration and the death penalty in some cases.

The Anti-Rape Act

The Anti-Rape (Investigation and Trial) Act was introduced in 2021. It was a big milestone for rape victims, particularly when compared to the previous Act that governed such cases. This crucial legal reform brought about substantial amendments to the existing framework, with the primary objective of better safeguarding and supporting survivors of sexual assault.

We now delve into the transformative changes that the Anti-Rape Act has brought, drawing a comparison with prior legislation.

Expanded definition of rape

In contrast to the previous legislation, which had a limited and specific definition of rape, the Anti-Rape Act adopts a more comprehensive approach. It encompasses a wider range of sexual offences, such as gang rape and marital rape, empowering authorities to effectively address different forms of sexual violence.

Recognising the need for deterrence, the Act mandates stricter punishment for sexual offences — the previous Act had been criticised for its lenient penalties in rape cases. The new Act included the possibility of life imprisonment and in certain instances, the death penalty. These stringent measures show that the law makes room for perpetrators to face severe consequences for their heinous actions.

Unlike its predecessor, which lacked adequate provisions for the protection of survivors, the Anti-Rape Act places great emphasis on shielding survivors from further harm. Through measures that protect the identity of victims during legal proceedings, the Act seeks to mitigate the risk of stigma and retaliation. Additionally, it calls for establishing dedicated survivor support centres that provide them with essential medical, legal, and counselling services.

Speedy trials and special courts

The Anti-Rape Act also recognised the importance of expedited justice for rape survivors. By introducing measures for time-bound trials and creating special courts specifically tailored to handle sexual offence cases, the Act aims to streamline legal proceedings and minimise the trauma survivors face during prolonged court processes.

A notable area for improvement in the previous Act was the absence of provisions for witness protection. In stark contrast, the new Act incorporates critical measures to safeguard witnesses from intimidation, encouraging them to come forward and bolstering the prosecution’s case.

Addressing a significant gap, the Anti-Rape Act highlights the importance of public awareness and education about sexual offences. By fostering a more informed society that comprehends the gravity of such crimes and actively works towards their prevention, the Act aims to create a lasting cultural change.

Implementing the Anti-Rape Act has marked a considerable step forward in the legal treatment of rape cases in Pakistan. Its broader definition, stricter penalties, and unwavering focus on protecting and supporting survivors have fortified the legal framework with a more victim-centric approach.

However, it is vital to acknowledge the persisting challenges in translating these legal advancements into tangible improvements for all victims. Issues such as underreporting, social stigma, and delays in the legal process warrant sustained attention. Continued efforts are essential to fully recognise the Act’s transformative potential, encompassing effective implementation and comprehensive societal engagement. Only through such concerted actions can the Act create a more safe and equitable environment for survivors of sexual violence.

High-profile cases

There have been numerous high-profile rape cases that have led to nation-wide calls for stricter legislation and enforcement of existing laws.

a. The Mukhtar Mai case: In 2002, Mukhtar Mai, a woman from a rural village, Meerwala, Punjab, was gang-raped to take revenge for a family dispute. The case garnered international attention and exposed the flaws in the legal system’s handling of rape cases. Mai’s resilience and activism spurred a national conversation on rape laws and their enforcement.

b. The Zainab Ansari case: In 2018, the rape and murder of seven-year-old Zainab Ansari in Kasur, Punjab, sent shockwaves across Pakistan, not only shattering the nation, but also exposing the shortcomings of the existing legal framework and police procedures in addressing sexual violence cases.

The case left an indelible mark on the nation’s collective conscience, leaving the entire country in deep mourning. This tragic event is a painful reminder of the urgent need to confront the pervasive scourge of child abuse and gender-based violence plaguing our society.

Amidst this dark chapter, there came an outpour of solidarity as people from all walks of life joined hands to demand justice for Zainab.

As we navigate the aftermath of this heart-wrenching tragedy, we must not allow our grief to fade into the background. Instead, we must channel our emotions into decisive action. Holding ourselves accountable, we must work towards a comprehensive overhaul of our systems, implementing stringent laws, and enhancing law enforcement and the judicial process. Only through proactive measures can we effectively prevent such abhorrent crimes and ensure that those responsible face the total weight of the law. Every child deserves a life free from fear and violence.

c. Motorway rape case: The Motorway rape case occurred on the night of Sept 9, 2020, when a woman was travelling from Lahore to Gujranwala via M-11 in Punjab with her two children. Her car ran out of petrol, leaving the family stranded on the highway. While waiting for help, two armed men approached her and raped her, in front of her children.

The Punjab police launched an extensive ‘investigation’ into the case and arrested the suspect within days after the event occurred.

However, the Lahore Capital City Police Officer (CCPO) Umer Sheikh publicly made insensitive comments that implied that the victim shared some responsibility for the outrageous and inhumane crime against her.

Sheikh said that the woman should have taken due precautions before leaving such as taking the more populated route (GT Road) and checking her fuel tank.

The investigation exposed the flaws in the existing legal framework and underscored the urgency for comprehensive reforms in laws, police procedures, and societal attitudes towards combatting such heinous acts.

The incident and the CCPO’s comments sparked national outrage and protests demanding safety for women, better law enforcement, and CCPO Sheikh’s removal.

Furthermore, the case shed light on critical gaps in providing timely assistance and support to survivors. Initiatives to establish better and more efficient helpline services and safe spaces for survivors to seek help and report crimes gained traction. This is particularly crucial because rape survivors in Pakistan often grapple with immense distress, shame, and fear of social stigma, making it challenging to come forward and seek justice.

It has been over three years since this incident, nonetheless, Pakistan continues to face challenges in combating sexual violence effectively.

Sustainable and large-scale change requires institutions such as the government, law enforcement agencies and institutions at large to invest in making the country safer for women. It requires sensitisation and a deep commitment to the cause, rather than big statements and responses in the face of high-profile cases alone.

In March 2021, the suspects were charged with multiple offences, including rape, robbery, and terrorism. The court played its role in sentencing the two perpetrators to death for their crimes. The court’s swift judgment was widely appreciated, signalling a potentially strong message to potential offenders.

Fast-tracking the road to justice

While legislative reforms have been made to improve rape laws, challenges persist in their implementation.

Survivors often face reluctance from the police to register their complaints or collect evidence promptly. The lack of sensitivity and professionalism in dealing with rape cases causes further trauma for the victims.

Victims often hesitate to report rape due to fear of social stigma and victim-blaming. Social pressure to protect family honour and lack of confidence in the police leads to underreporting.

Lengthy legal proceedings and delays in court trials are also common occurrences. This deters survivors from pursuing legal action. The requirement of producing four male witnesses to prove rape under the Zina Ordinance has also been a major roadblock in securing convictions in the past.

While this requirement is now removed, obtaining other forms of evidence that may sometimes be near-impossible remains challenging, to say the least.

The criminal justice system faces many challenges, including an overwhelming caseload and resource constraints. These issues contribute to sluggish progress in rape cases, protracted trials, and a distressing lack of sensitivity when dealing with survivors’ claims.

To address these pressing concerns and to provide a more effective and empathetic approach to addressing rape cases in Pakistan, a proposal for implementing a fast-track legal system is warranted.

This entails a specialised system designed explicitly for addressing sexual violence cases, ensuring swift and efficient processing of such sensitive matters. By streamlining the legal procedures and dedicating technical personnel to these cases, the fast-track system aims to expedite justice and reduce the trauma and frustration experienced by survivors during prolonged legal battles.

Moreover, the system would prioritise providing support services for survivors, including access to counselling and guidance throughout the legal process. It is a holistic approach that acknowledges survivors’ emotional toll and strives to create a safe and supportive environment for them to seek justice.

By establishing a fast-track legal system, the nation can demonstrate its commitment to protecting the rights and well-being of its citizens. It can instil confidence in survivors that their voices will be heard and justice will be served promptly. It is a proactive measure that will foster a more just and empathetic society where survivors of sexual violence are empowered to come forward, knowing that their cases will be handled with urgency, care, and respect.

The evolution of rape laws in Pakistan reflects an ongoing commitment to combat sexual violence and deliver justice to survivors. While legislative reforms have been initiated, there remains a pressing need to enhance the implementation of these laws and transform societal attitudes.

The accurate measure of success lies in the experiences of survivors who have bravely navigated the legal system and received the justice they deserved. These stories inspire hope and underline the significance of a well-functioning legal framework in securing justice for survivors and deterring potential offenders.

However, witnessing the recurrence of such heinous crimes is disheartening, indicating much to be done to address the root causes of rape and its prevalence in society. It is time that we earnestly examine our past mistakes and take proactive measures to prevent further atrocities.

To truly combat sexual violence, we must foster a culture that prioritises respect, consent, and gender equality. This entails comprehensive education and awareness to challenge harmful beliefs and behaviours. Additionally, there must be a collective effort from all stakeholders to hold perpetrators accountable and ensure that survivors are treated with empathy and support throughout the legal process.

It is imperative that we collectively channel our emotions into decisive action. We must steadfastly challenge the culture of victim-blaming and stand in unwavering solidarity with survivors, offering them the support and empathy they deserve. We must demand that our institutions prioritise the safety and protection of every citizen, especially women so that no one lives in fear while commuting or navigating public spaces.

Only by learning from our past and working together to build a society that prioritises safety, dignity, and equality can Pakistan hope to eliminate the scourge of rape from its community and pave the way for a brighter and more compassionate future.

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