The disrobing of Draupadi, a miniature of the Basohli School, attributed to Nainsukh, c.1765
If you are ever raped in Pakistan one of the best things you can do is throw the law book at the cops because there have been many important legal changes that can work in your favour.
“A lot of us who have taken the police head on tell them Section this and Section that… [then] see how they take you seriously,” advises Sarah Zaman, a development specialist who headed War Against Rape for six years. “Then they realise that the person they are dealing with knows something and they shouldn’t pick a fight.”https://www.youtube.com/embed/SsUh6svp9Kk
Take for example the fact that a section has been deleted so that now the prosecution cannot bring up a victim’s sexual history during a rape case, which is a change most people are unaware of.
Zaman went into great detail about these legal changes at a one-day conference on rape and sexual assault, held in Hyderabad on Saturday, June 15 by the Women’s Action Forum. This article uses her talk to create a guide on sections of the law anyone can quote in order to demand their rights in a rape case. If you have any further questions leave a comment at the end and SAMAA Digital will get answers from the experts who were at the conference.
PPC = Pakistan Penal Code, 1860
CrPC = Code of Criminal Procedure, 1898
What you need to know has changed:
The laws themselves
One of the biggest changes we need to know about is that rape (zina bil jabr) was finally separated from zina (adultery) and was made an offence under the Pakistan Penal Code instead of the Hudood Ordinance. “It stopped unproven cases of rape from being converted into those of fornication or adultery,” according to Bolobhi.org.
This change came about in 2006 as a result of the Protection of Women (Criminal Law Amendment) Act 2006. You will find rape in Section 375 of the Pakistan Penal Code now.
Ten years later, the law was changed again, in 2016, to the Criminal Law (Amendment) (Offense of Rape) Act 2016.
Why was this significant? Since the law was changed, not a single woman has been charged with zina and sent to languish in jail and several rape cases were reported and went to court, according to Farieha Aziz of Bolobhi, writing in Newsline magazine eight years ago.
If a public servant doesn’t do their job in a rape case, they can go to jail
Quote this section: Section 166(2) of the PPC
One of the biggest changes is that if any government servant doesn’t properly investigate a rape case or doesn’t diligently follow it, or doesn’t take the prosecution through to its logical conclusion, they can be sentenced to three years maximum and/or be fined.
“Medico-legal officers are public servants,” said Sarah Zaman. The law applies to a police officer, a jailor, a medical examiner. They are not allowed to intentionally create hurdles, mislead, jeopardise, or defeat an investigation.
“There are many cases where we know the police wallah is not doing his job,” said Zaman. “But we are not invoking the law against this.” People are not aware of the law so they can use it. You can now register a case against such government servants.
If a public official rapes then there is culpability for that too.
Deadlines on cases
Quote this section: Section 344(A), CrPC
A case of or attempt of abduction and kidnapping for illicit intercourse, rape, unnatural offences or sexual abuse must be decided within 3 months, after which it shall be sent to the notice of the Chief Justice of the High Court.
There is a time cap on rape case that they cannot take more than three months. “We looked at the data from Khyber Pakhtunkwa and there was not a single conviction that was given a verdict in three months,” said Zaman. (This sentence previously said ‘case’. It has been corrected to ‘conviction’. Verdicts have been passed and there have been acquittals).
The appeal has to happen in six months. If you factor in the time it takes to prepare an appeal, then any rape case can be wrapped up in a year’s time.
But she added that it was another matter if the rape case is settled out of court. They found that the KP prosecution services report said that 12 out of 38 cases were settled out of court. This was in 2016-2018 from district Nowshera, KP. It was called a “compromise”.
“But we know that compromise was finished from the law in 2006,” said Zaman. “Muafi sullah, muq-muqa, none of this can happen any more.”
Anyone can look up a famous 2013 judgement of the Supreme Court that clearly says this in a Rawalpindi case in which a father took one million rupees in compromise.
You can’t give ID of victims
Quote this section: Section 352, CrPC
Trial to be in camera: Trials of cases of abduction and kidnapping for illicit intercourse, rape, unnatural offences and sexual abuse shall be conducted in camera. An application made by parties, may result in allowing particular persons to have access to or remain in Court. Special measures may be adopted for protection of victim etc. including use of screens, video link etc.
Another thing in the new law is that the victim’s identity will not be disclosed. If there is an alleged rape, not even an FIR, you cannot broadcast the information anywhere, nor can you share any of the information, without explicit permission from the court. (This sentence previously said ‘information’. The correct word was ‘permission).
The trial from day one till the end will be done in camera, meaning in the judge’s chamber or in a private place. The trial includes everything from statements to the cross examination. There are supposed to be screens but this is not always possible in our courtrooms, which are often (but not always) too small. This is a very sobering point to note for the media that jumps to cover rape stories.
Quote this section: Section 164A CrPC
Quote this section: Section 161A CrPC
Right to legal representation: The police officer shall inform the victim of her right to legal representation after recording information of an offence or an attempt of offence.
An Investigation Officer or IO will register the FIR—not a head moharrar, added Zaman. It has to happen in the presence of a female police officer. If a female officer is not available, then it should be done in the presence of a female family member.
The police have to maintain a referral directory of lawyers and tell everyone woman in a rape case that she has the right to a lawyer. They have to share their names and their numbers. But as Sarah Zaman pointed out, this system is not in place anywhere.
Medico-legal & DNA in rape cases
Quote this section: Section 164B CrPC
DNA shall be collected from victim with consent of victim or natural or legal guardian within optimal time period of receiving information about offence. DNA samples must be sent to a forensic laboratory at the earliest.
Here’s the thing to know: Getting DNA samples of a rapist doesn’t prove rape. DNA only proves that sex took place. It is a medico-legal exam that is crucial because then they can testify that they found other evidence on the body that rape has taken place.
The law says, however, that DNA testing must be done. So, it specifies that it is a woman’s legal right to have the DNA testing done in 72 hours. After 72 hours, sperm is useless, but hair, body tissue and other residue/material evidence can be used for DNA.
According to Zaman, if you study old cases, you’d see that the courts used to rely on the tendency that the man confessed, or that it was believable that rape had taken place because there were marks of violence proving the woman had really been forced.
The good news is that since 2006 when the law was changed, a shift has been seen in judges considering circumstantial evidence more. (This is partly also because of nonavailability/ inaccessibility or unreliability of medico-legal services or reports). The law itself says a woman’s testimony itself is enough, said Zaman. “It inspires confidence. If you are convinced this happened to her, you can given a sentence based on that.”
And so, the focus has been removed from proving and documenting the marks of violence, but it has gone towards DNA, she said. For that you need the additional burden of a medico-legal examination.
“The biggest thing they want to prove is that there are scratches, wounds, and that the woman was forced. Only a medico-legal doctor can note that.” The problem is that medico-legal officers perform the two-finger test which is not appropriate any more.
The problem is that the woman has to prove rape instead of the man proving he didn’t do it, said Zaman.
We also do not have enough medico-legal officers in Pakistan and forensics or DNA labs. We do not have rape kits, which are used elsewhere in the world. “Apparently 40 (not 70 as previously said here) new positions have been sanctioned for Sindh for medico-legal officers,” she said. No postings have taken place. “I know that there are a grand total of four or five female medico-legal officers in Karachi only. And as you know, the MLO doesn’t just do rape cases, they do examinations in many other cases.” (Correction: the number was stated to be 12. It is actually only 4 or 5 MLOs). Only 4% of police are female officers in in Sindh.
Zaman said that apparently a forensics lab has been opened in Jamshoro and Khyber Pakhtunkhwa has three labs. “But the main one in Peshawar doesn’t do rape cases, it does narcotics, ballistics etc,” she added. KP has about 20 DNA analysts and 17 MLOs. Khyber Medical College was declared the lead agency to bring about medico-legal reforms and provided a whole set-up for forensics, toxicology and DNA. “The facility is there but there aren’t people to run the machines,” said Zaman.
Watch this video to learn how a rape kit should be performed: How a rape kit works by the Cleveland.com
You can’t bring up sexual history
Quote this fact: Sexual history can no longer be used to impeach her credibility as a witness. Section 151(4) Qanun-e-Shahadat (Law of Evidence) 1984 has been deleted.
Another major important change in the law is that the prosecution cannot use a woman’s sexual history against her in the case. So now the prosecution is not allowed to say she was immoral. This has been deleted from the Law of Evidence Order (Qanun-e-Shahadat), 1984: “Section 151(4) – Impeaching the Credit of Witness – When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.” This has been changed in the PPC and CrPC.
“We know that it is always the case that someone says, ‘Well you must have done something to attract [rape],’” Zaman said. “This is the kind of talk a woman faces from home, to the police station, to the courtroom.”
Note: Some corrections and amendments and additions have been made to this article. This story was originally published on June 20, 2019.
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