Late on the night of September 13, 2013, all television channels were in frenzy — expressing shock and disgust. A five year old had been raped and left in critical condition outside Ganga Ram Hospital. Video footage of the child being taken into the hospital, her father begging that the culprits be brought to justice and CCTV evidence of a stranger bringing the girl to the hospital were played on a loop. Television anchors called for the heinous act to be punished and the public watched aghast. This had happened in the urban developed city of Lahore.
The frenzy lasted about a week, and then everyone forgot.
Ten months on, the investigation has not yet reached a conclusion. A few days after the incident, the rape of a seven year old came up in newspapers. This time there was less horror. No one knows the fate of that case either.
When news reports tell us that the rate of conviction for rape cases in Pakistan over the last five years is zero, it should not be that hard to believe.
“I sent a question to the Ministry of Interior in December 2013, asking how many rape cases had been registered and how many of those had been convicted. I was told the rate of conviction was zero,” says Senator Syeda Sughra Imam, who raised the issue before the Standing Committee for Law and Justice on June 26, 2014. “In the last five years, of all rape cases registered, where an FIR was lodged and the magistrate had taken notice, there is no conviction.”
Imam has proposed a bill to amend rape laws “to increase conviction”. It is an attempt to change the investigation and judicial process where she feels changes need to be made.
In the process of investigation, the bill proposes to take stricter punitive measures against the police for faulty investigation. She says this should not only discourage the negative attitude the women face when they attempt to report rape but also prevent custodial rape.
What is clear from these proposed punitive measures is that women lodging an FIR for rape in police stations are not treated with the sensitisation that is required to deal with such situations.
“Many police officers and are convinced that most cases of rape are false. They believe that our society is conservative that no respectable family would allow its women to come forward and report rape,” says Sahar Bandial, a Lahore-based lawyer who has worked on various cases of rape.
This is the first thing that discourages women from reporting rape. However, once the FIR has been lodged and notice taken by authorities, it is still difficult for a rape case to reach a legal conclusion.
So what else is responsible for the “zero” conviction rate? “At times people lodge an FIR but fail to pursue the case,” says Umar Mahmood Khan, another Lahore-based criminal lawyer who has also worked on rape cases. He goes on to say that at times there are cases of elopement behind rape cases since families find it easy to deal with rape rather than face the social consequences of elopement. “Later, the girl declares she went willingly, and the case is dropped.”
For those investigating rape, fictitious cases are a real problem. “A lot of people use rape allegations to settle scores. This is very common in South Punjab,” says Zulfiqar Hameed, DIG Investigation Lahore. “It is these fictitious cases that lead investigation officers to assume that all rape cases are made up.”
The judicial process is also long and tedious and rape cases are not exempt from this procedure. Mukhtaran Mai’s very high profile case, despite media attention, took eight years to receive a final verdict. It requires commitment on the part of the victim since the environment in the court is hostile to the victim.
“In some cases the victim also changes her testimony by the time she reaches the court,” says Bandial. This shows a mistrust of the system. “Most people prefer an out of court settlement,” adds Khan.
The defence lawyers are not sensitised to the victim and the emotional trauma she has been through. The victim is also the primary witness in rape cases and the legal system in Pakistan relies on witness testimony as primary evidence, placing more burden on the witness.
“She is asked questions by the defence lawyers such as the position of the rapist and how she felt because they want to confuse her and intimidate her,” says Bandial. The use of DNA evidence as the primary source of evidence can reduce this burden on the victim’s testimony preventing her from reliving the traumatic experience. Imam has also introduced this as a proposed amendment.
Another aspect of cross examination that makes it difficult to pursue rape cases is that the testimony of the victim is taken in front of the accused. “In a case in 2013, the court ruled that the rape victim should not be required to testify in front of the accused but this is not followed. Such mechanisms have been put in place in the US, UK and even India,” says Bandial.
Rape Shield Laws, that exist in a large number of countries around the world including the US and Canada, prevent the victim from being cross-examined in front of the accused culprit. They also protect the victim’s identity and ensure that her past record is not looked at during trial.
The implementation of such rules in Pakistan is important since the Law of Evidence 151(4) allows the defence to show that the woman may be of immoral character.
Khan does not agree that this law exclusively leads to a low conviction rate. “The judge might show some leniency in such cases towards the culprit but it does not result in an acquittal,” he says.
Similarly, another clause 21(j) from the Law of Evidence also places undue burden on the victim based on assumptions of how a moral woman might act. Most believe that the lack of consent can only be shown by injury or bruises, showing that she physically resisted.
“Not all women resist,” says Bandial. She cites the case of an eight month pregnant woman who was raped. “She was not going to resist for fear of harming the baby. In such cases the system is tilted in favour of the culprit, since there is also this assumption that no one would want to rape a married or divorced woman.”
Hameed stresses that when there are no marks of physical injury, doctors declare that it is not a rape. He points towards medico-legal procedures that need to be updated and improved. “The only test taken is that of medical swabs and that too at times can’t be done because a few days have passed,” he tells TNS.
Banidal proposes setting up separate courts to try sexual offences. This might help reduce the time that normally takes to pursue a case, while introducing more sensitisation towards the matter as well.
The problem with rape cases at all stages in Pakistan shows a clear lack of understanding of the crime. Those reporting the crime, investigating it and presenting it in the court room need to understand the psychological reasons and impact of rape as well. The focus needs to be shifted to look at rape in an objective manner beyond the socio cultural taboos put in place by our society.
Imam’s bill, still under review by the Law and Justice Standing Committee, might help to address some of these systemic and procedural problems.