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November 13,2016

Understanding the anti-rape law

Ayesha Yezdani

On October 6, parliament amended the existing laws on rape – a welcome development coming in on the heels of media focus on an anti-honour killing act. The new anti-rape law attempts to address loopholes in the law which may be the reason for disturbingly low conviction rates for sexual offences.

The reasons behind the low reporting rate aren’t hard to imagine. The prevalence of victim-blaming, victim-shaming and social exile of survivors, and a lack of protection and support from the courts as well as law-enforcement agencies means injured parties do not come forward and assailants aren’t deterred. The new legislation is supposed to redress these issues.

One of the amendments is to Section 55 of the Pakistan Penal Code (PPC) which now holds that life sentences on offenders of assault and use of force on a woman to strip her of clothing as well as unnatural offences, rape, and crimes involving aggravating circumstances (fasad-fil-arz) cannot be commuted. In other words, the life sentence cannot be reduced to one less severe. On the face of it this seems like a significant positive change. The life sentence expresses the fact that rape is a heinous crime; it underlines its gravity and may lower the rate of sexual offences. Howeve,r fairness in law requires that punishment be equal to the offence and Section 55 is over-penalising defendants.

Punishment should be proportionate to the crime and this amendment does not address differences in the offences and the measures of culpability. The hope of early release and lowered sentences gives an incentive to inmates to rehabilitate and turn their lives around when given the opportunity to reintegrate into society. The state should conduct research on the effect of commuting in such cases and its subsequent impact on recidivism before commuting is mandatorily disallowed.

The new act confronts the issue of misconduct by public officials by way of amendments to Section 166 (2) (PPC) which prescribes a sentence of up to three years for a public official who fails to investigate cases diligently. Section 186 supplements this by adding that those who obstruct an official from carrying on an investigation or hampering an inquiry will face a sentence of three months to year along with a fine of up to Rs50,000.

These prescriptions mean that officials who fail to carry out their responsibilities and live up to the standards expected of public officeholders will be held accountable. It empowers the victim as their right to pursue justice now comes with the added benefit of legal consequence for those who try to suppress that right either through bias or bribery. This highlights the seriousness of the offence. Parliament could, however, go further by prioritising training, sensitisation, and counselling of police officers rather than incarcerating erring officers. Prison sentences could then be reserved for only those who routinely and egregiously fail in their duties to investigate or those who collude with perpetrators to settle cases outside the judiciary.

Section 166 requires the official to pursue a case ‘properly’ and ‘diligently’. These may be vague terms and without a standard set out as to what behaviour and action is ‘diligent’ makes it harder to prove when an officer has failed in their duty. These terms are subjective and may need to be interpreted by courts.

Other changes to the imposition of penalties for offenders are found in Sections376 (3) and (4) (PPC). These sections state that offenders to the more serious categories of rape (of a minor or disabled person, or by a police officer) will be subjected to the death penalty or life in prison. More severe sentencing underlines the seriousness of rape and has a very explicit official condemnation of the crime by the government. However, parliament should not prescribe the death penalty for rape to reflect its heinousness, but should instead focus on what sentence is fair and provides justice to victims. Pakistan’s flagrant use of the death penalty is considered by many, including Human Rights Watch, to be a violation of human rights.

Section 376 (PPC) also provides for a new fast track trial of three months with an appeal time of six months. The fast track trial is incentive to injured parties to see a case through; no one wants to be embroiled in lengthy proceedings and the continued pressures that come with it. However, with a faster trial there is greater possibility of either due process not being followed or leaving greater room for error. This is worrying because such crimes now come with the possibility of the death penalty. Given the severe penalties, there should be more focus on fair proceedings as to avoid injustice.

The new legislation has also amended the Criminal Procedure Code (CrPC) to introduce protections for survivors that create a safer and more receptive environment for them to bring forth cases. Sections 154, 161 and 164A (CrPC) contain allowances for the presence of female officers when lodging complaints, female medical examiners and female companions or family members. If implemented correctly, this could increase reporting of crimes if women have support and feel less “alone”. It also removes the reluctance some women may have in dealing with a male officer. With a female officer/examiner, one hopes that the shame and embarrassment along with apprehension of judgement that accompanies sexual crimes would be reduced.

In similar hopes, Section 161A (CrPC) requires that the police officer recording information advises the victim of their right to legal representation and gives a list of provincial lawyers if the party requires legal aid. This creates some confusion since it is the government’s job to prosecute crimes. Often victims cannot afford legal assistance and so do not proceed with the case because of financial constraints. Thus the law should be clear and emphasise the duty of public prosecutors and explicit about when a victim would need to hire private counsel.

Perhaps most ground-breaking is the new Section 164B in the CrPC which now makes provision to allow for DNA testing of the victim with their consent or the consent of their legal or natural guardian (in the case of minors). This provision will ensure that solid evidence will exist in a rape case to exonerate or condemn a defendant beyond a reasonable doubt while at the same instance ensuring that the victim gets justice. A further requirement that such evidence can only be obtained when there is reasonable grounds to believe that medical testing will lead to evidence is a way of ensuring that the individual’s right to privacy is not compromised.

One of the major obstacles to taking action in court for victims is the publicity it brings. This means that victims of sexual crimes are afraid of action being taken by the assailant, the public or even people in her own social circle including family. To combat this, CrPC Section 352 now provides that hearings are to be held in camera and not in open and public court with access being available only by application to the presiding officer.

The victim and witnesses can also be provided screens to protect their identity. Though anonymity is crucial in providing security to the victims and to protect them from further trauma, trials behind closed doors can impede upon the right to fair trial The idea of applying for permission to attend a trial can lead to undue hindrance for people who have a right or interest to attend the trial. It may therefore be more appropriate to have an open and public trial where the judge has the discretion to refuse entrance to people based on an analysis of safety and security for the victim or at her request.

The new rape law does take considerable steps in providing more protections to victims and parliament’s intention behind the passing of this act needs to be commended. However, the act does need to be taken with a pinch of salt and used as a base upon which further research can be conducted to further improve the legislation.

The writer is a law student at the University of London. She is also a member of “Qaaf se Qanoon,” a legal clinic at SZABIST.

Twitter: Qaaf_Se_Qanoon


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