By Nimra Azmi
In March 2015, the Pakistani Senate unanimously passed the Anti-Rape Laws Bill of 2014. (While the Anti-Rape Laws Bill has passed in the upper house, it is awaiting approval of the National Assembly or the lower house of the Pakistani Parliament, the Majlis-e-Shura.[1]) This Bill is the most recent major move made by either the Pakistani legislative or judicial system regarding rape. Proposed by Senator Sughra Imam of the Pakistan Peoples Party (PPP), the Anti-Rape Laws Act seeks to amend the Pakistani Penal Code, the Code of Criminal Procedure, and the Qanun-e-Shahadat Order (the laws of evidence).[2]
Many Pakistanis—as evinced by the unanimous Senate approval of the bill—believe that progressive reform of rape law is necessary to ensure that victims are able to pursue and receive justice and reform the laws that hinder them.[3] The Human Rights Commission of Pakistan posits that rape occurs every two hours in Pakistan and gang-rape every four to eight days.[4] When discussing the amendment, Senator Sughra Imam noted that “[I]n the last five years for instance, of the 103 reported rape cases registered in the Islamabad Capital Territory none of the culprits or accused have been convicted or brought to justice.”[5]
But can the Anti-Rape Laws Bill deliver the progress it promises? The Anti-Rape Laws Bill features a series of key components, and while two of them introduce something new to the body of Pakistani rape law, for the most part, the Bill regurgitates existent law in fresh packaging. Rape activists in Pakistan have noted that existent law is not properly implemented and as such fails to provide proper deterrence.[6] By largely reformulating components of a failed system without attempting to resuscitate or reinvigorate the system, the Anti-Rape Laws Bill may prove to be political posturing, window dressing designed to bolster support for the PPP without the ability to deliver reform.
Although the Bill generally reformulates existent law it introduces two new aspects: a partial rape shield provision and a presumption of victim non-consent. The rape shield provision makes it a crime, punishable by three years to print or publish the name of a rape victim, alleged or otherwise.[7] This provision follows in the steps of a September 2013 order from the Lahore High Court, which ordered compliance with Pakistan Electronic Media Regulatory Authority’s (PEMRA) decision to forbid the revelation of the identities rape victims who are minors.[8] It exempts police officers who disclose for the good faith purposes of the investigation; with the written authorization of the victim; or with the written authorization of next-of-kind when the victim is dead, a minor, or of an unsound mind.[9] This section also resembles Indian law on the issue, although the Indian law caps its punishment for the offense at two years, not three.[10] While not breaking new ground entirely, identity protection of rape victims is a landmark. If followed, it may serve to encourage women, who might have otherwise feared public censure, to bring accusations to the police, but enforcement will be necessary to its success. At the very least, the Lahore High Court has indicated an inclination towards protecting the identities of rape victims although whether that inclination remains when the victims are no longer minors remains to be seen.
Secondly, the final section of the Anti-Rape Laws Bill states that if the question of consent arises in a rape prosecution and sexual intercourse has already been proven and a woman denies consent before the Court, the Court will presume that she did not consent.[11] By creating a presumption of non-consent, the Bill addresses an issue that arose under the Hudood Ordinances and prevented women from making accusations: mainly, that if intercourse had been confessed to via accusation but rape could not be proven, the victim could be liable for unlawful sex.[12] Although the Anti-Rape Laws Bill does not contemplate the Hudood Ordinances, the presumption of non-consent gives weight to a victim’s word in a global culture that pathologically blames victims for the sexual violence inflicted on their bodies.
Nonetheless, much of what the Anti-Rape Laws Bill puts forth is old hat. The Bill amends the Pakistan Penal Code to state that a “public servant”—in effect, a law enforcement officer—charged with investigating a rape who fails to do so will be punished with a prison term for up to three years and/or a fine.[13] These sanctions are in line with the preexistent Police Order of 2002, which extends over all of Pakistan and presents a list of offenses for which an officer could be punished with a three-year prison term and fine. These offenses include “wilful[l] breach or neglect of any provision of law or of any rule or regulation or any order which he is bound to observe or obey” and “any violation of duty.”[14][15] Although the Anti-Rape Laws Bill makes the requirement vis à vis investigation of rape cases more express and coalesces the duties outlined in the Police Order, it does not enter anything into Pakistani law which was not previously required. Since the problems of under-investigation already existed despite the provisions of the Police Order of 2002, the distinct possibility remains that this provision of the Anti-Rape Laws Bill may prove to be only messaging with no teeth.
The third section lays out a number of offenses related to custodial rape, all punishable by death or life imprisonment as well as a fine. This section penalizes: a police officer who commits rape in a police station or raping a woman in custody; a public servant who uses his position to raping a woman; an employee of a woman’s or children’s institution (an orphanage, a shelter, etc.) who leverages his position to rape a victim; an employee of a hospital who uses his position to rape a woman in the hospital; raping a woman known to be pregnant; raping a “woman” under the age of twelve.[16]
This section is problematic on several levels. For one, it merely recriminalizes already criminal acts, laying out specific situations marked by power imbalance in which rape could occur. The section also identifies a twelve-year-old as a “woman,” although a sixth-grader is more appropriately called a child, especially in a piece of legislation touting itself as being progressive.[17] Finally, and perhaps most problematic, following in the steps of the PWA, this section is both expressly and deeply gendered. Unlike the Hudood Ordinances, which did recognize both men and women as potential perpetrators and victims, the Anti-Rape Laws Bill grinds into problematic gender norms of male rapists and female victims—and makes no mention of third gender people, despite their legal recognition in Pakistan as a gender category. Even boy children are not protected under this provision of the Anti-Rape Laws Bill. Women are the face of Pakistan’s rape crisis, but a truly progressive piece of legislation would seek to advocate for male and third gender victims as well and do away with the problematic dichotomy.
Next, Section 5 of the Anti-Rape Laws Bill inserts a new section into the Code of Criminal Procedure that makes it lawful for a medical examiner to examine the victim and a suspect arrested on reasonable grounds on the charge of rape to create a report recording any marks of injury and a DNA profile.[18] The language of the bill is unclear whether this examination is mandatory for an investigation. Some view this provision as an “antidote” the Council of Islamic Ideology’s (a constitutional body on Islamic law in Pakistan which advises the government and Parliament) 2013 statement denying the permissibility of DNA as primary evidence in rape cases.[19]
However, DNA testing is already used in rape cases in Pakistan and even the FSC referenced its value as corroborating evidence in a 2013 decision.[20] The Pakistani Supreme Court, in a 2013 decision in Akram Raja et. al. v. Gov’t of Punjab, held the importance of DNA testing in rape cases, finding that DNA tests “provided the courts a mean of identifying perpetrators with a high degree of confidence.”[21] If the Anti-Rape Laws Bill merely leaves the question of DNA to the discretion of the investigators, it does not move rape law in Pakistan save for the expressive significance of highlighting the acceptability of DNA evidence in rape cases—which the Supreme Court of Pakistan had already done. Moreover, this provision allows a suspect’s DNA to be collected at arrest, without process or other legal protection. Pakistan may be following a greater trend or looking to the U.S. for guidance—the U.S. Supreme Court permitted this type of DNA collection in 2013.[22]
The Anti-Rape Laws Bill also sets a six-month timeline for lower courts to decide rape cases, after which parties can appeal to the High Court.[23] This section attempts to cut through the backlog of rape cases and promote their speedy conclusion. However, the feasibility of this requires more than a law: it necessitates boots-on-the-ground reform of the court system, from increasing manpower to improving technology. Alacrity is important but so is a thorough application of justice and a six-month timeframe may sacrifice speed for quality and justice.
The Anti-Rape Laws Bill, while consolidating and defining norms and laws that already exist in the Pakistan legal system, actually puts very little new on the table—although what it does proffer can potentially be significant. The law may very well have been motivated by the desire to generate positive publicity for the PPP, without the unglamorous (and deeply complicated and difficult) process of effective legal and police reform in Pakistan. To truly effectuate rape law reform that serves Pakistani victims and society, the Pakistani government will have to do more and the Pakistani people will have to demand more.
Notes:
[1] See Senate Standing Committee Passes An Anti Rape Bill To Ensure Justice For Victims, Pakistan Tribe (Mar. 5, 2015).
[2] The Hudood Ordinances, which governed rape law under shari’a from 1979-2006, bear no mention in the Bill. This silence is despite the fact that the Pakistani Supreme Court has yet to rule on the Pakistani government’s appeal of the Federal Shariat Court’s decision suspending the 2006 Protection of Women Act. The PWA moved rape outside of the Hudood Ordinances and shari’a and into civil law. Instead, this bill treats the Hudood Ordinances reign over rape as dead letter. This commentary [link to commentary #2] outlines the Supreme Court case and its ramifications for rape law in Pakistan. For further on the Hudood Ordinances, this commentary delves into the language of the Zina Ordinance that pertains to rape.
[3] See, e.g., Abira Ashfaq, What You Need to Know About Pakistan’s New Anti-Rape Bill, Dawn (Mar. 5, 2015, 12:35 PM). Editorial, A Welcome Amendment, The Express Tribune (Jan. 21, 2015).
[4] Taha Kehar, Rape in Pakistan — The how and why, The Express Tribune (Jul. 6, 2013).
[5] Irfan Haider, Senate Passes Bill Against Honour Killing, Dawn (Mar. 2, 2015, 9:41 PM).
[6] See Kehar, supra note 4.
[7] See Anti-Rape Laws Bill, supra note 5, at § 3.
[8] LHC Bars Media from Disclosing Names of Rape Victims, The News International (Oct. 27, 2013).
[9] See Anti-Rape Laws Bill, supra note 5, at § 3. The Bill also exempts the publication of a High Court or Supreme Court judgment although it forbids the printing of any matter related to a court proceeding that discloses the victim’s name without the relevant court’s permission.
[10] Section 228A in The Indian Penal Code, Indian Kanoon.
[11] See Anti-Rape Laws Bill, supra note 5, at § 11.
[12] See Asifa Quraishi’s work.
[13] Anti-Rape Laws (Criminal Laws Amendment) Bill, § 2 (2014) (hereinafter Anti-Rape Laws Bill) (“Whoever being a public servant, entrusted with the investigation of a case, registered under section 376 of the Code, fails to carry out the investigation properly or diligently or fails to pursue the case in any court of law properly and in breach of his duties, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”).
[14] The Police Order, §155, Chief Executive’s Order No. 22 of 2002.
[15] §4 of the Police Order of 2002 provides a list of the duties of officers including the duties to “protect life, property and liberty of citizens,” “preserve and promote public peace,” “collect and communicate intelligence affecting public peace and crime in general,” and “detect and bring offenders to justice.” These duties also include “assist[ing] in preventing members of public from exploitation by any person
or organized groups,” “prevent[ing] harassment of women and children in public places,” and “afford[ing] relief to people in distress situations, particularly in respect of women and children.”
[16] See Anti-Rape Laws Bill, supra note 5, at §4.
[17] Pakistan is party to the Convention of the Rights of the Child, which requires defining a child as under 18 years of age. However, Pakistan has not passed legislation making the CRC binding law, meaning that it cannot be invoked in courts.
[18] See Anti-Rape Laws Bill, supra note 5, at § § 5 & 6.
[19] See Ashfaq, supra note 3. See also Umer Nangiana, Rape cases: ‘DNA test not admissible as primary evidence’, The Express Tribune (Sept. 24, 2013). .
[20] See Nadia et. al. v. State, P Cr. L J 1214 (FSC) (2013) (noting that the accused’s DNA evidence was not collected and finding that the victim’s testimony without corroborating medical evidence was not sufficient). See also Ammen v. State, P. Cr. L J 733 (Lahore HC) (2013) (mentioning that DNA tests were returned negative); Ul Haq v. State, YLR 2563 (Lahore HC) (2013) (observing that the DNA tests were negative).
[21] Akram Raja et. al. v. Gov’t of Punjab, SCMR 203 (SC) (2013) (Pak.).
[22] See Adam Liptak, Justices Allow DNA Collection After an Arrest, N.Y. Times (Jun. 3, 2013) (discussing the 2013 ruling in Maryland v. King).
[23] See Anti-Rape Laws Bill, supra note 5, at § 7.