PAKISTAN: The Injustice of Rape

Going by the charged reaction to the Mukhtar Mai verdict, it is clear that loopholes in the investigation mechanism and the law need to be fixed. Women victims of violence in Pakistan do not find redress whether through the courts or the country's policing and investigation apparatus.

The police refuse the mandatory registering of cases, and incomplete evidence-gathering through a weak investigation process results in judicial irregularities. It doesn't take the Mukhtar Mai case alone to show how or even why women are dealt poor cards.

The acquittal of five of the six accused of gang-rape was not simply because an SC bench ruled against Mukhtar Mai for reasons circulated (some suggesting the incident was fabricated; that her testimony alone was unacceptable) but because investigating authorities and lawmakers were lax, ill-equipped, unable to produce DNA and semen tests which should be used as required evidence in rape cases.

Her case goes back to 2002, when she was gang-raped on the orders of the local panchayat as punishment for her 12-year old brother's alleged illicit liaison with an older woman from the powerful Mastoi tribe. Fourteen men were initially charged, an anti-terrorist court sentenced six to death; and in 2005 the Lahore High Court overruled the judgment acquitting five, and commuted the sentence of the main accused to life imprisonment.

Omission of key evidence is negligence, say social justice crusaders as the SC ruling becomes cause for debate, with the press weighing the decision on their own turf without exercising restraint: a talk show host even set up ‘court' for the slotted one hour cross-examining Mukhtar Mai on the ‘witness stand' not as a victim but as a ‘shamed woman'.

Is the sensitive issue of rape understood as a crime with enormous psychological scars inflicted on the survivor aside from grievous bodily harm, scars remaining for a long time? In a country with misogynist politico-legal institutions rape shield laws could benefit women victims.

They are statutes (in the US and Europe) prohibiting evidence about a victim's character history, repute or past conduct
during a trial, making it easier to report the crime. When Mukhtar Mai decided to make her rape case known publicly, believing that justice would take its course, she was prepared to accept the court's judgment but given the alleged accusations of ‘a fictitious gang-rape', her case has highlighted that justice for women is perhaps impossible under the current scenario.

Two opposing schools of thought have emerged after the judgment. Criticised furiously, the decision to release the alleged perpetrators could in the future not only impact other such rulings setting a dangerous precedent. Because the state did not provide a watertight prosecution as was the case in 2005 due to the lack of independent evidence gathering, the SC bench had no choice: the flipside was keeping five men in jail for nearly a decade without evidence.

Justice Nasir-ul-Mulk's dissent judgment believes Mukhtar Mai's testimony because the fundamental statement in any rape case is of the victim constituting as important evidence. But in Pakistan the inefficient criminal justice system, the patriarchal mindset of the police and judiciary and the lack of sufficient medico-legal facilities frighten victims.

Justice Nasir-ul-Mulk's statement concurs that the jirga played a role in the rape and four persons facilitated and assisted the main accused but doesn't find sufficient evidence to stamp the charge of gang-rape on the accused. Jirgas cannot be allowed to arbitrarily punish in the form of watta satta marriages and gang-rape to settle disputes without being answerable to the law.

In a Pakistani court of law, the burden of proof is on the woman victim. “The high court … erred in holding that the delay in lodging of [an] FIR is fatal to… corroboration. The court had overlooked that there was corroboration of the complainant's testimony,” the judge explains. Mukhtar Mai's statement was not adequately recorded by the police nor have courts taken the statement as evidence. There were no sperm tests or DNA tests done to corroborate her version.

In 2010, the Human Rights Commission of Pakistan stated that according to police reports 2,903 women were raped. Eight women were raped everyday, including at least 51 gang-rape cases. The prospect of sitting in a police station and then a courtroom in Pakistan especially is enough to deter many women from bringing their cases forward.

Portrayed as ‘immoral' and party to the crime even her testimony at the case registration stage is botched and later her ability to identify her rapist (s) in court lead to character insinuations often by the police, media and even politicians. Historically the act of rape is about wielding power, about punishing women and morally condemning them and this takes on an uglier face in patriarchal societies.

Circumstantial evidence is not admissible. However, unrepressed tolerance of women's rights is expected from the superior judiciary when the crime reads heinous bodily harm. Why is it recurrent that often the legal paraphernalia silently expresses visible negation of the victim and her fate? Most importantly, protecting women legally has failed in Pakistan.

The Federal Shariat Court ruled that the Women's Protection Act, 2006 was unconstitutional because it sought to amend the Zina and Hudood Ordinances so that rape is not a confession of adultery.

There's a fallacy that regular evidence (medical examination, the victim's testimony) is not permissible in zina and rape trials.
Because zina remains an offence there is a risk that a victim reporting rape could be charged with zina. With the new amendments the procedure for a complaint is stricter ensuring that those making an accusation of rape cannot be tried falsely for adultery.

The Mukhtar Mai case will silence many women. It has become a symbol of everything that is wrong with Pakistan. Not because the Supreme Court has failed but because the entire mindset we live with has failed to understand what it entails to protect women and their rights.