The Nation
August 15, 2015, Zainab Zeeshan Malik
However, legislative developments have failed to address Pakistan’ abysmally low conviction rate for crime of sexual violence against women and girls. In an attempt to address the impunity enjoyed by perpetrators, the Senate Standing Committee on Law and Justice approved a draft of the ‘The Anti-Rape Law (criminal Amendment) Bill, 2014 in January 2015. The draft law, currently pending before National Assembly, purports to introduce notable reforms in rape prosecution, including expedited trials, protection of the identity of the rape victim; penalties for disclosure of the identity of the rape victim and mandatory DNA testing.
Whilst introducing some desirable amendments to criminal procedure governing rape prosecution, the effectiveness of the Bill is limited to outside the doors of the courtrooms where the nature of the crime and the culpability of the accused is determined. A perusal of reported judgments reveals that the judicial reasoning on rape is predicated on misogynistic views on what constitute “appropriate” female sexual conduct. During a rape trial, judges , prosecutors and defence lawyers engage in a discursive battle to determine whether or not the rape victim is a good or a bad woman. Anthropologist Levi Strauss theorized that women are symbols in a ‘matrimonial dialogue between men’. A ‘good women’ is significant in the dialogue as she is exchangeable in marriage and is hence not available for sexual experimentation. The ‘bad woman’ however, holds little value as a commodity of exchange to any man therefore, her sexual violation serves as little affront to society. Rape is therefore an offence on men’s property rather than women’s dignity. Nowhere does Strauss’ theory hold more weight than in a rape trial in Pakistan. Most rape judgments start off with a predetermined script of competing arguments to place the victim in one of the categories. Once a victim is classified as a “bad woman”, the facts will, almost always be interpreted to conclude that the rape was a consensual sexual act.
This can be illustrated by looking at two judgments of the Federal Shariat Court, Muhammad Yameen v. State and Muhammad Akhtar v. The state where the factual events of the offence were largely similar. In both cases the women were raped by strangers who broke into their respective houses while they were alone. Both women raised hue and cry and attracted the attention of neighbors who rushed to the scene causing the perpetrator to escape. However, in the former case the victim was described by the court as a “respectable wife and mother of four daughters” in whose case it was “impossible to believe that she will put her honor and of her entire family at stake by lodging a false complaint”. In the latter case the victim was described at the outset as an “unmarried girl of 16 years [who] had lost her virginity and become habitual to sexual intercourse”. It is worth noting that there are no scientific means to determine “virginity” and “habituation to sexual intercourse” and the classification is made through unsound gender stereotypes and societal norms governing female morality. The court stated that “it would be highly unsafe to believe the [statement] of an unchaste girl”. The wife and mother holds significance to men due to her relational status as a wife and mother, whereas the unchaste girl is available for sexual experimentation as a result ‘unrapeable’. It is thus no surprise that the former case resulted in a hefty conviction whereas the latter was termed as a consensual sexual act.
Judicial language serves as an effective tool in appropriating the facts to lead to a predetermined outcome depending upon whether a woman has been type-casted as either good or bad. In the case of Muhammad Hanif v. The State (1993 Pcr.LJ 651) the judgment takes lengths to describe the “weeping cries” of who it terms the “virgin daughter” and keeps referring to her resulting “precarious condition”. The accused is, on the other hand, cast as an evil figure who “salvaged the victim in a brutish manner”. In contrast in Ghulam Mohy-ud-Din v. the state (2012 Pcr.LJ 1903) the court describes the victim as a “person of doubtful character, who has a habit of involvement in sexual activities”. In this case the court termed the recovery of the firearm from the accused and the bruises on the victim as “immaterial”.
There is therefore a need to divert the attention of women’s rights advocacy from legislative development to the mysoginistic stereotypes underlying rape adjudication. Legislative developments will only be effective if accompanied by a gender sensitization of our judiciary. There needs to be on overhaul of the modes of judicial reasoning that the judiciary has carried forward and perpetuated as legal precedent since the creation of Pakistan. Rape needs to be judicially reconstructed as a crime against women’s dignity and bodily integrity rather than an affront to the patriarchal structures in which access to a woman’s body is determined by what value it holds any value for the men she is related to.
The writer is a lawyer currently working with the Justice Project Pakistan.
August 15, 2015, Zainab Zeeshan Malik
The women’s rights movement in Pakistan has much to be proud of in effecting legislative reform criminalising Violence against Women over the last ten years. The Protection of Women (Criminal Law Amendment) Act, 2006 was a milestone in women’s rights advocacy. The offences of rape and fornication were removed from the Hadood Ordinance and reinserted into the Pakistan Penal code. The Prevention of Anti Women Practices Act became a part of national law in 2011 explicitly penalizing misogynistic practices such as acid violence, forced marriage and honor killings. Women are now also safeguarded from sexual harassment in the workplace through legislation passed in 2010.
However, legislative developments have failed to address Pakistan’ abysmally low conviction rate for crime of sexual violence against women and girls. In an attempt to address the impunity enjoyed by perpetrators, the Senate Standing Committee on Law and Justice approved a draft of the ‘The Anti-Rape Law (criminal Amendment) Bill, 2014 in January 2015. The draft law, currently pending before National Assembly, purports to introduce notable reforms in rape prosecution, including expedited trials, protection of the identity of the rape victim; penalties for disclosure of the identity of the rape victim and mandatory DNA testing.
Whilst introducing some desirable amendments to criminal procedure governing rape prosecution, the effectiveness of the Bill is limited to outside the doors of the courtrooms where the nature of the crime and the culpability of the accused is determined. A perusal of reported judgments reveals that the judicial reasoning on rape is predicated on misogynistic views on what constitute “appropriate” female sexual conduct. During a rape trial, judges , prosecutors and defence lawyers engage in a discursive battle to determine whether or not the rape victim is a good or a bad woman. Anthropologist Levi Strauss theorized that women are symbols in a ‘matrimonial dialogue between men’. A ‘good women’ is significant in the dialogue as she is exchangeable in marriage and is hence not available for sexual experimentation. The ‘bad woman’ however, holds little value as a commodity of exchange to any man therefore, her sexual violation serves as little affront to society. Rape is therefore an offence on men’s property rather than women’s dignity. Nowhere does Strauss’ theory hold more weight than in a rape trial in Pakistan. Most rape judgments start off with a predetermined script of competing arguments to place the victim in one of the categories. Once a victim is classified as a “bad woman”, the facts will, almost always be interpreted to conclude that the rape was a consensual sexual act.
This can be illustrated by looking at two judgments of the Federal Shariat Court, Muhammad Yameen v. State and Muhammad Akhtar v. The state where the factual events of the offence were largely similar. In both cases the women were raped by strangers who broke into their respective houses while they were alone. Both women raised hue and cry and attracted the attention of neighbors who rushed to the scene causing the perpetrator to escape. However, in the former case the victim was described by the court as a “respectable wife and mother of four daughters” in whose case it was “impossible to believe that she will put her honor and of her entire family at stake by lodging a false complaint”. In the latter case the victim was described at the outset as an “unmarried girl of 16 years [who] had lost her virginity and become habitual to sexual intercourse”. It is worth noting that there are no scientific means to determine “virginity” and “habituation to sexual intercourse” and the classification is made through unsound gender stereotypes and societal norms governing female morality. The court stated that “it would be highly unsafe to believe the [statement] of an unchaste girl”. The wife and mother holds significance to men due to her relational status as a wife and mother, whereas the unchaste girl is available for sexual experimentation as a result ‘unrapeable’. It is thus no surprise that the former case resulted in a hefty conviction whereas the latter was termed as a consensual sexual act.
Judicial language serves as an effective tool in appropriating the facts to lead to a predetermined outcome depending upon whether a woman has been type-casted as either good or bad. In the case of Muhammad Hanif v. The State (1993 Pcr.LJ 651) the judgment takes lengths to describe the “weeping cries” of who it terms the “virgin daughter” and keeps referring to her resulting “precarious condition”. The accused is, on the other hand, cast as an evil figure who “salvaged the victim in a brutish manner”. In contrast in Ghulam Mohy-ud-Din v. the state (2012 Pcr.LJ 1903) the court describes the victim as a “person of doubtful character, who has a habit of involvement in sexual activities”. In this case the court termed the recovery of the firearm from the accused and the bruises on the victim as “immaterial”.
There is therefore a need to divert the attention of women’s rights advocacy from legislative development to the mysoginistic stereotypes underlying rape adjudication. Legislative developments will only be effective if accompanied by a gender sensitization of our judiciary. There needs to be on overhaul of the modes of judicial reasoning that the judiciary has carried forward and perpetuated as legal precedent since the creation of Pakistan. Rape needs to be judicially reconstructed as a crime against women’s dignity and bodily integrity rather than an affront to the patriarchal structures in which access to a woman’s body is determined by what value it holds any value for the men she is related to.
The writer is a lawyer currently working with the Justice Project Pakistan.
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