By: Zoya Anwer
With the passing of an anti-rape bill earlier this month, it appears that the amendments still have room for improvement because whilst some clauses are laudable, others can cause problems for the rape survivor, said Sara Zaman, addressing a seminar organised by War Against Rape (WAR) on Tuesday to discuss the bill.
The bill has directly addressed Pakistan Penal Code (PPC) 1860; Code of Criminal Procedure (CrPC) 1898 and the Qanun-i-Shahadat Order 1984, and the apprehensions raised earlier by the Council of Islamic Ideology (CII) have not been taken into account.
Briefing about some of the amendments in the bill, women’s rights lawyer Maliha Zia Lari said the Section 55 regarding life imprisonment for the offender had been applied in case the offender was found guilty. However, if a person rapes a minor or a mentally or physically disabled person, the crime would be punishable by death unless the survivor’s family pardons them, in which case the offender would be awarded a life sentence.
Public servants including police, jailers or MLOs would also face the same punishment if they use their position to rape. If the court delays the case by three months, the chief justice would be notified to take action against the court catering to the case.
The provision which makes the collection of forensic evidence of the offender compulsory has been lauded, because previously DNA samples were not considered as primary evidence due to the stance of CII in 2013.
“Given that the forensic evidence is often lost, public servants including the police and medico legal officer (MLO) would be held accountable if they do not cooperate in the due process and would be put behind bars for three years, a fine or both. The fine in this regard has been raised from Rs500 to Rs50,000,” Maliha said.
She added that disclosure of the survivor’s identity by any publication without written consent was also punishable and the trials for such cases were to be held in-camera to not cause any distress to the survivor.
Survivors’ history can’t be questioned
Many times, the accused were able to go scot-free using Qanun-i-Shahadat Order 1984, which brings the character of the survivor into question and gave a way out to them on the basis of morality. However, the new bill has scrapped that notion and the past of the survivor cannot be brought into debate.
“Earlier, many cases have been dropped owing to accusations levelled against the woman regarding her moral character. Now her sexual history would not be targeted to shift the blame from the accused to the survivor,” said Sara.
Still a long way to go?
However, the law is yet to give provision to cases when a man gets raped as it still comes under ‘unnatural offences’, Maliha said, because it was high time that the state treated sexual assault of a man as rape.
“It is also to be observed that whilst a maximum punishment, death or life sentence is given to the offender, no minimum punishment has been decided which usually leads to fewer convictions.
Also given the current stature of courts, the time frame given for the case following the report would compromise on the quality,” she pointed out.
Continuing about the flaws in the current bill, Sara Zaman stressed that the bill lapsed in
2014 had the clause which assured the presumption that the survivor did not give her consent: “But this bill hasn’t included this clause and the onus still lies on the survivor to prove that she was raped as contrary to the offender proving he hasn’t done so, in case of innocence.”
She added that the removal of past assault history in medical report would create hurdles because it is a necessary part of the report, and helps in better judgment.
Sara also raised questions regarding the implementation of law that although it was commendable that DNA sampling was now mandatory for the accused, the lack of resources posed hurdles because the forensic evidence has to be collected in due time, and although DNA labs are in the city, police authorities send them to Lahore or Islamabad which only delays swift justice.