By: Hina Hafeezullah Ishaq
There needs to be a specific law that allows for special rules of evidence for children, like video evidence, special screens, in camera proceedings, etc
She was like a frightened doe, wary of every movement, pale and withdrawn, a frail body clad in a chaddar. She walked into my office over seven years ago, hiding behind her equally distraught mother. She was ‘A’, an-11-year-old victim of rape, and eight months pregnant, malnourished, an orphan Christian girl. Her widowed mother worked as a menial worker at a government hospital. ‘A’ had been employed as a housemaid at her perpetrator’s house and was raped, her mouth tied with her duppatta (veil) and a gun pointed to her head by him when his wife was at her parents’ for the delivery of their child. Fearful, shocked and beaten, she lost consciousness. Her rapist threatened to kill her and her family if she told anyone. Scared and traumatised beyond comprehension, she stopped going to work. One day, while at the hospital with her mother, a midwife suspected something, and an ultrasound revealed a six-month pregnancy.
‘B’ was a 15-year-old girl raised in an extremely protective environment. She was raped by her own father, twice, and threatened with the death of her younger siblings if she told anyone. Her mother, a victim of violence herself, had left six months earlier but her children were forcefully restrained. ‘B’ managed to escape with the help of teachers and friends at school and got to her mother. A trial took place and a death sentence was handed out.
‘C’ was a young boy who was sodomised and strangled to death by his former employer. A life sentence was given to the perpetrator. And so the list goes on and on. The three v’s — victim, violence, vulnerable — are defined as: a ‘victim’ in this context means a woman, child or vulnerable person who suffers an act of violence and/or injury in relation to any offence; ‘Violence’ means any act of gender-based violence or violence directed towards children or vulnerable persons that results in or is likely to result in physical, sexual or mental harm, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life; a ‘vulnerable person’ means any person, irrespective of gender, whose ability to protect herself/himself from violence, abuse or neglect is significantly impaired due to physical, sensory, or mental disability or illness or handicap or old age or any other special reason, and includes a household worker.
‘Physical disability’ means any impairment that limits the physical function of limbs or fine or gross motor ability and includes impairments that limit other facets of daily living. ‘Sensory disability’ means impairment of one of the senses and includes visual, hearing, olfactory, gustatory and somato-sensory impairment, and ‘mental disability’ means arrested or incomplete development of mental capacities and includes mental impairments such as mental retardation, organic brain damage, learning disabilities and mental illness encompassing a variety of psychological disorders that cause severe disturbances in thinking, feeling and relating to others so that persons suffering from such have a substantially diminished capacity for coping with the ordinary demands of life.
We were too late to help ‘B’, but there are many young boys and girls who are victims of violence, including sexual violence, violence that disrupts one’s life, has the ability to instil fear that reaches the depth of one’s soul, paralysing life itself. Deeply affected by such cases, I started to experiment with ways to make a victim feel more protected in order to enhance the quality of their testimony. In X’s case, we made a request to the court to bring in screens to shield the minor victim from the accused, and to hold an in camera trial to protect her, a request that was granted and resulted in cogent testimony. I wrote articles, sent recommendations and proposals to the relevant quarters and worked on legislation with the previous government in Punjab. There is no express provision of law that provides for special measures for vulnerable victims.
The victims are exposed to the perpetrators in open court and have to testify whilst facing their accused directly. There needs to be a specific law that allows for special rules of evidence for children, like video evidence, special screens, in camera proceedings, etc. Repeated adjournments in sexual abuse cases place an extraordinary amount of pressure on the victim, which includes psychological, physical and emotional. By subjecting her or him to an environment of fear and hostility, the longer the trial takes, the quality of evidence is diminished. There needs to be a ceiling on the time period of the trial, especially of child victims/survivors, ranging from 90 days to six months, and the practice of imposition of heavy costs for delay as well as striking off the right to defend needs to be put into practice.
A recent incident in England has prompted me again to write on this issue. A young victim of forced child prostitution was cross-examined for 12 days by seven defence barristers. England and Wales have decided to launch a “review of aggressive courtroom cross-examination of vulnerable victims”, which is aimed at finding ways to “curb hostile practices”. The Minister for Justice said, “Vulnerable victims currently often faced reliving the ‘most horrific experience they have ever had’, sometimes for days on end, when cross-examined in court.” The review will consider “whether a victim should have to answer the same question put by more than one barrister and fresh guidance for judges in how to deal with such cases.”
English law currently places restrictions on the kind of questions that can be asked and on aggressive questioning, but there is no limit on the duration of cross-examination and how many counsel can question the victim. The Crown Prosecution Service in collaboration with the government is working on guidelines in cases of child sexual abuse, which include: cross-examination by defence, behaviour of prosecutors, agreement among defence counsel to choose a lead counsel, duration of cross-examination and a mandatory ground rules hearing to be held in advance of the trial to prepare the victim for trial. A pilot scheme has been announced by the Justice Ministry “to use pre-recorded evidence for vulnerable victims and witnesses so that they are no longer cross-examined in open court.”
Our superior courts have already ruled that the purpose of cross-examination is to bring out the truth and have frowned upon excessive and unnecessary lengthy cross-examinations that aim to wear down the witness in an attempt to lead him/her into error, but again there is no formal legislation or mandatory rules and guidelines in this regard.
A couple of months ago, I was leafing through a law journal and came upon a judgment that included familiar language and proposals. A petition was filed before the Supreme Court last year incorporating everything I had been consistently writing about, and consulting on and advocating. The Punjab government acknowledged that work on legislation was already underway, which it indeed was. It is heartening to see that not everything I write goes to waste and some people actually took the initiative to get all those recommendations implemented.
People are the same everywhere. It is human nature. The incident in England stands as a testament to this fact. What sets us apart is the ability to recognise our shortcomings and failings and the resolve to rectify them. England is on its way there. Pakistan still has to make provisions for prevention, protection, compensation and rehabilitation of vulnerable victims of violence.
The writer is an advocate of the High Court