Improvements in Pakistan’s rape laws

Although sexual violence is endemic in a country like Pakistan, recently there has been some good news on the legal front: laws have been fine-tuned, and in some cases, changed, in order to help victims of rape with the legal process of reporting the crime and taking it to court.

This was the crux of a recent news article by Mahim Maher, who had gone to Hyderabad for a WAR (War Against Rape, one of Pakistan’s most critical women’s organizations) conference on rape and sexual assault. There, Sarah Zaman, who headed WAR for six years, elaborated on these changes to the laws, which I will summarize here:

Rape no longer falls under General Zia’s notorious Hudood Ordinances: Rape has been deemed a separate offence from adultery since 2006, when the Protection of Women (Criminal Law Amendment) Act was passed. It now comes under the ambit of Section 375 in the Pakistan Penal Code. Ten years later, in 2016, the Criminal Law (Amendment) (Offense of Rape) Act 2016 meant that women in Pakistan no longer go to jail for reporting rape and being accused of adultery. The significance of this change cannot be stressed enough: it means the culture of refusing to report rape cases out of fear of going to jail has been recognized as an obstacle to legal recourse for rape victims.

Negligence of public servants refusing to register a rape case can result in jail time for the official: Neglecting to investigate a rape case can result in a three year jail term for any medico-legal officer, police officer or any other government servant under Section 166(2) of the Pakistan Penal Code.

A formal judgment on a rape case must come within three months of the case being filed, and an appeal has to be adjucated six months from the original rape conviction. Under the Code of Criminal Procedure  Section 344(A), if this does not happen, the case is then sent to the Chief Justice of the High Court.

Rape cases can no longer be settled through “compromise,” jirga, or any other extra-judicial, parallel legal system. This too was abolished in 2006 under the Protection of Women Act.

The rape victim’s identity must not be disclosed: the Code of Criminal Procedure  Section 352 states that a rape trial must be conducted “in camera”, that means in a judge’s chamber or private place. The victim’s identity can be concealed using screens or a video link for her testimony. Her identity is not to be broadcast anywhere without the court’s explicit permission.

Right to legal representation and female supervision: The victim must be informed of her right to legal representation, and an investigation officer (IO) will register the case in the presence of a female police officer, or female family member. The presence of another woman is a vital change: it is common knowledge that many rape victims have gone to register their cases, been separated from their family members, and assaulted again. This happens a lot to trans women who go to the police station as well. Sections 161A and 164A of the Criminal Procedure Code cover these requirements.

DNA in rape cases: although men have fought hard against this change, it is now a requirement that DNA be collected in a rape case within 72 hours, to prove that sexual intercourse took place. A medico-legal examination can prove that the said intercourse happened by force. (Maher’s article elaborates on the difficulties of collecting DNA in rape cases in Pakistan). This is covered by Section 164B of the Criminal Procedure Code.

Previous sexual history no longer relevant: You cannot bring up a woman’s past sexual history in a rape trial in order to destroy her credibility as a victim, after the deletion of the Section 151(4) Qanun-e-Shahadat (Law of Evidence) 1984. It has always been the thinking that if a woman was not a virgin, she could not claim rape. This law is meant to counter that chauvinistic assertion. Neither can a woman’s past history be used to assert that she is immoral, and somehow invited the alleged perpetrator to rape her.

We have a long way to go in Pakistan (and indeed the world) in terms of how well rape cases are prosecuted and how frequently rapists are convicted. Around the world, conviction rates for rape are shockingly low, because men have created the legal systems. But thanks to the untiring efforts of women activists in Pakistan, these absolutely vital changes have been adopted in Pakistani law. Procedural implementation is another story, but all stories have to start somewhere.

We need to work now on eliminating the humiliating two-finger test in the medico-legal procedure of medical examination after rape, which is meant to prove that a girl or woman is not a virgin. I remember looking at a friend’s medico-legal textbook and seeing images of a woman’s vagina with and without a hymen. The absolute barbarity and inhumanity of such a qualifier of a woman’s purity has no place in the desperate and delicate hours and days after a woman or girl has been raped. It is, in the words of the Times of India, “unscientific, illogical and illegal” (it was outlawed in India). It is also another type of assault on a woman’s body, and can lead to bleeding, the transmission of disease, and psychological trauma.

I urge Pakistan’s lawmakers to eliminate this from the medico-legal textbooks and procedures. We must restore the dignity of those girls and women who have been raped or otherwise sexually assaulted, and an invasive, unnecessary test that reinforces our medieval thinking about women and purity has no place in our lawbooks and medical schools in the 21st century.

What improvements we have may seem so little to those with Western eyes. But every change to our laws, every improvement, is a chip knocked out of rape culture in Pakistan, and a triumph for women’s rights, which are so desperately needed in our country. Let me make it perfectly clear once more: Islam may give women their rights, but men have taken them away.

We need feminist action to pressure lawmakers into creating mechanisms that protect the rights of girls and women. Just like these improvements in the laws, and the mechanisms that make it easier for women and girls to report rape and to bring the rapists to justice, they will come about through women’s work, not the empty mouthings of religious men, who have traditionally tried to block all pro-women laws in Pakistan and still oppose a domestic violence law and a law raising the age of marriage for girls from 16 to 18.