Fighting Rape with Legislative Reform

[TRIGGER WARNING]

“Legal language does more than express thoughts. It reinforces certain world views and understanding of events.”[1]

The crime of rape is old in age, unbroken in status, horrendous in effect and universal in terms of jurisdiction. In this regard, almost every country in the world has time and again introduced certain reforms, worked on punishment theories, amended the definition to widen the scope of rape and taken steps to study and research the factors causing the prevalence of this despicable crime. Like any other country in world, Pakistan has also witnessed worrisome incidents of rape, continually knocking on the collective conscience of our nation and the state. Two such cases have been the Zainab Case and the Motorway Gang Rape Case.

Zainab, aged about 7 years, had been abducted on the 4^th of January, 2018 in her native town, Kasur (in the province of Punjab) while she was on her way to Quran recital classes. Five days later, her body was found dumped at a garbage disposal site near the city of Lahore. The autopsy report revealed that she had been raped and tortured before being strangled to death. Her rapist and murderer, 24-year-old Imran Ali, was arrested and identified as a serial killer, responsible for at least seven previous rapes and murders of minor girls in the adjoining area. In the other case mentioned above, a Pakistani-French woman, along with her two children, encountered two men when her car broke down on the Lahore-Sialkot motorway. The men broke in to their car, robbed them and raped the woman in front of her children.

Both incidents generated a lot of national and international criticism and forced state machinery, law enforcement agencies and legislators to re-evaluate and reconsider the existing laws on the crime of rape, its investigation methods, the difficulties faced by victims and survivors during litigation, other trial issues and the steps to prevent this crime. The federal government promulgated some pieces of legislation to tackle the crime of rape in the shape of the following two Acts and two Ordinances:

• Zainab Alert, Response and Recovery Act 2020 (ZARRA 2020);
• Legal Aid and Justice Authority Act 2020 (LAJA 2020);
• Criminal Law (Amendment) Ordinance 2020 (CLA 2020); and
• Anti Rape (Investigation and Trial) Ordinance 2020 (ITO 2020).

DEFINITION OF RAPE

Section 375 of the Pakistan Penal Code (PPC) 1872 defines what rape is, which may either be rape by force or statutory rape. When rape is committed by use of force against someone’s will or consent, it is rape by force. When rape is committed with a person who is under the age of giving consent, i.e. under 16 years of age according to the PPC, it automatically falls under statutory rape, regardless of whether there was any consent.

The definition of rape has been amended to extend its scope through the ITO 2020. The word “man” has been substituted with the word “person”. Furthermore, the term “person” has been explained to include females, males and transgender persons. The term “sexual intercourse” has been removed from the provision, instead certain acts constituting sexual assault have been inserted to extend the scope of the definition of rape which was previously limited to only an action committed through penetration in natural course. The act of rape under ITO 2020 aims to cover any sexual assault involving any penetration against natural course. Moreover, section 375-A has been newly inserted through the ITO 2020 to provide for a separate provision covering the offence of gang rape and assigning joint and equal liability to every person acting in furtherance of a common intention to commit rape.

PUNISHMENT

Through the ITO 2020, the sentence of “twenty five years” has been substituted with the words “or for imprisonment for the reminder period of his natural life”. Section 376-B has been newly inserted and the punishment of chemical castration has been introduced for exceptional cases and repeat sex offenders.

ESTABLISHMENT OF AGENCY

Through ZARRA 2020, a separate agency is to be established for raising an alert response and ensuring the recovery of any abducted child under the age of 18 years. The agency is to manage a nationwide hotline (1099) and coordinate with the Pakistan Telecommunication Authority (PTA) for sharing alerts through SMS and the Pakistan Electronic Media Regulatory Authority (PEMRA) for broadcasting alerts through tickers and maintaining data on abduction incidents, etc.

ESTABLISHMENT OF SPECIAL COURTS

Through the ITO 2020, special courts are to be established to try the scheduled offences. The President, in consultation with the Chief Justice of Pakistan, shall appoint as a judge of the special court any person who is or has been a Sessions Judge or Additional Sessions Judge, or has been an Advocate of the High Court for a period not less than 10 years and is not older than 70 years of age at the time of appointment. The ITO 2020 further provides that the President, in consultation with the Chief Justice of Pakistan, may designate as many courts of Sessions Judges or Additional Sessions Judges as special courts throughout the country. The President, after consultation with the Chief Justice of Pakistan, may even transfer the trial and proceedings of a case to any special court anywhere in Pakistan. The special court shall have exclusive jurisdiction to try the scheduled offences.

ESTABLISHMENT OF ANTI-RAPE CRISIS CELL

The ITO 2020 provides for the establishment of an Anti-Rape Crisis Cell which shall be headed by the concerned Commissioner or Deputy Commissioner. The same shall comprise the Medical Superintendent of public hospitals, one independent support advisor and the District Police Officer or Police Officer heading a division deemed fit by the Prime Minister. At least one member shall preferably be a woman. The Anti-Rape Crisis Cell, for the purpose of offences mentioned in Schedule-II of the Ordinance, shall be obliged to do the following:

• conduct a medico-legal examination within 6 hours from the receipt of information;
• secure, collect and gather evidence as may be expedient;
• conduct a forensic analysis/examination;
• register a First Information Report (FIR); and
• perform any other action as is necessary.

The ITO 2020 has prohibited the two-finger test for the purpose of medico-legal examination of the victim or survivor. Any evidence to suggest that a victim or survivor is of “immoral character” shall be inadmissible. Testimonies of the victim or survivor, as well as the accused, shall be video recorded, preserved and reduced to writing. The ITO 2020 also binds the officer in charge of a police station to inform the Anti-Rape Crisis Cell about the commission of an offence as soon as he or she receives any information in this regard.

SPECIAL COMMITTEE

The ITO 2020 provides for the constitution of a special committee by the Ministry of Law and Justice, comprising members and in the numbers as the Ministry may deem fit on a pro bono or honorary basis. The special committee shall take steps to ensure the compliance/implementation of ITO 2020 and for this purpose it may reach out to any federal or provincial Ministry, Division, Office, Agency or Authority. The special committee may also issue directions to the National Database and Registration Authority (NADRA) to prepare a register of sex offenders, the details of which may not be published or released except before a court of law or law enforcement agencies. The special committee may comprise of individuals from a federal or provincial Ministry, Division, Department, Authority or Office, or members of the legal or medical profession, the legislature, retired judges, serving or retired public servants, the civil society or non-governmental organizations.

AUTHORITY FOR LEGAL ASSISTANCE

The federal government has also established an authority for the legal assistance of victims and survivors of the scheduled offences through the Legal Aid and Justice Authority Act 2020. The Ministry of Law and Justice may designate or appoint a Prosecutor General and a special prosecutor for prosecution of the scheduled offences.

SURVIVOR, VICTIM AND WITNESS PROTECTION

The ITO 2020 provides for the protection of victims, survivors and witnesses of the scheduled offences. Such protection shall include special security arrangements, concealment of identity, relocation, safe houses and daar-ul-amaans, recording of testimonies through video conferencing, financial assistance and compensation to legal heirs, etc.

INVESTIGATION

The ITO 2020 has separated the scheduled offences for the purposes of investigation. It provides that the investigation of offences mentioned in Schedule-I shall be carried out by a police officer not below the rank of B.P.S 17 and preferably by a female officer. Investigation with regard to the offences mentioned in Schedule-II shall be carried out by a joint investigation team comprising the district police officer, police superintendent, deputy superintendent and station house officer, with one member preferably being a woman.

INDEPENDENT SUPPORT ADVISOR

The ITO 2020 also provides for an independent support advisor to accompany the victim or survivor during court proceedings, in order to reduce of the risk of duress, victimization of any nature, or any adversity afflicted upon the victim or survivor. An independent support advisor may be a psychologist, doctor, lawyer, paralegal, ‘lady health worker’, social worker or member or nominee of the civil society.

IN CAMERA TRIAL

The ITO 2020 provides for an in camera (private) trial of the scheduled offences. It provides that a statement under section 164 of the Criminal Procedure Code (CrPC) 1908 shall be recorded only once through video and preserved and reduce to writing. The opportunity of direct cross-examination shall only be given to the counsel of the accused, or the court, and not to the accused himself. The accused may only pose a question to the victim or survivor through the presiding officer, if found appropriate by the presiding officer. The ITO 2020 further provides that any offence connected with the scheduled offences may be tried in the same way as part of the scheduled offences. The ITO 2020 prohibits the disclosure of identity of victims or survivors without any prior written permission from them or their guardians. Breach in protecting identity will attract prosecution of the offender.

SPEEDY TRIAL

The special court, upon taking cognizance of a case under ITO 2020, shall decide the case preferably within 4 months. It shall not grant more than 2 adjournments during trial. If defense counsel does not appear after two consecutive adjournments, the court may appoint another counsel, having a standing of at least 7 years in criminal matters, for the defense of the accused, from a panel maintained by the special committee. The special court shall supply copies of the judgment to the accused and the prosecution free of cost on the day the judgment is pronounced. Record of the trial shall be transmitted to the concerned High Court within 3 days. Any person aggrieved at the judgment of the special court may appeal to the High Court within 30 days and any such appeal shall be decided preferably within 6 months. Pending appeal, the High Court shall not release the person convicted by the special court.

CONCLUSION

Despite the valid criticism from rights groups and numerous survivors of violence against women, the initiative taken by the government may still be considered a step in the right direction, however, there are certain provisions which do require inclusivity, empathy, clarification, reconsideration and revision in order to remove duplicity and confusion as well as ensure, maintain and respect the principle of separation of powers. In the author’s view, the following provisions require reconsideration:

• The definition of rape under CLA 2020 and the acts that constitute rape shall also cover the offence of sodomy already existing under section 377, PPC. This needs clarification and removal of duplicity.
• The insertion of the punishment of chemical castration from section 53, PPC is also under debate.
• The Prime Minister’s power to transfer scheduled offences from the special court to an ordinary criminal court has the potential to interfere in judicial functions and undermine the doctrine of separation of powers.
• The provision with regard to victim, survivor and witness protection shall either duplicate or come into conflict with the Witness Protection, Security and Benefit Act 2017.
• The establishment of an anti-rape crisis cell consists of district management officers, medical superintendents and independent support advisors under the same banner. The independent support advisor, being a companion of the victim or survivor as well as part of the investigation cell at the same time may pave way for questioning the fairness of the investigation.

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References

[1] (Finley, Lucinda, Breaking Women’s silence in Law: The Dilemma of Gendered Nature of Legal Reasoning, 64 Note Dame L. Rev.886, (1989), p.888.)

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The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.