The sexual offences laws in Pakistan have always been a target for criticism, mainly because they fail to meet the standard of protection and justice that such laws ought to provide. The rise in child abuse and rape cases in Pakistan since the last two years has caused a public outcry demanding better protection for women and children. Not only have the actual number of rape cases gone up but the media coverage for such cases has increased too. This, along with the rise in the use of social media has helped in spreading the awareness of such issues, resulting in a higher demand for stricter and more effective sexual offences laws in Pakistan.

To target some of the problems and challenges faced by rape survivors, two new laws have been passed by the Pakistani parliament: The Anti-Rape (Investigation and Trial) Ordinance, 2020^[1] and the Criminal Law (Amendment) Ordinance, 2020.^[2]

Both these documents are in the form of an ordinance rather than an act, which means that they are not as permanent as an act but are a temporary form of legislation. This way of law-making is explained in Article 89 of the Constitution. It states that an ordinance is temporary in nature and stays as effective law for 120 days. After this period, its existence is subject to the approval of the parliament. It is, however, still an effective law for as long as it lasts. However, considering the urgency of the matter and the procedural delay that passing of an act would take, these Ordinances provide sufficient protection till an act is passed.

However, this temporary mode of law making may be questioned on the ground that enforcement of such essential and impactful changes be introduced in such a short-term legislating method. It would have undoubtedly been better if these Ordinances were passed as a law directly, with the certainty and permanency that an Act of Parliament brings. Nevertheless, the impactful changes introduced under these Ordinances are worth mentioning and that is what this article discusses.

The Anti-Rape (Investigation and Trial) Ordinance, 2020 was passed to introduce changes to the existing sexual offences laws in Pakistan. It aims to ensure efficient and speedy redressal of rape and sexual abuse crimes in respect of women and children through special investigation teams and special courts, providing for efficacious procedures, speedy trial, and evidence.

The Ordinance orders establishment of special courts throughout the country^[3]. These courts will try all offences related to rape and sexual crimes against women and children. Additionally, under section 4, the Ordinance empowers the Prime Minister to establish Anti-Rape Crises Cells throughout the country. As soon as an officer-in-charge of a police station receives any information regarding the commission of a sexual abuse crime, they are to pass on the information to the Anti-Rape Crisis Cell. These Cells will then be responsible for conducting the medico-legal examination of the victim without any delay. Their job is explained in section 5 as they will be responsible for securing, collecting and gathering any evidence that may seem relevant to the case, along with conducting a forensic analysis/examination.

The Ordinance, by establishing these bodies, aims for rape cases to be tried and decided as quickly as possible. It further states that the courts have four months to decide the case and   imposes imprisonment of up to three years and fine on any public servant who fails to carry out the investigation properly or diligently.^[4]

The Ordinance further establishes rules for victim and witness protection. It ensures concealment of identity, financial assistance, compensation, and re-location of the victims and witnesses.^[5] Similarly, Section 26 prohibits the disclosure of the identity of any victim or their family without the written permission of the victim themselves or their guardian (in case of a minor).

Additionally, under section 13, the Ordinance states that any evidence to show that the victim is generally of immoral character will be inadmissible and hold no value in the eyes of the law. This finally puts an end to the practice of victim blaming in rape cases.

Although, these changes targeting the protection of the victim’s identity and inadmissibility of any evidence that questions the character of the victim have been discussed and proposed in the Anti Rape Act 2016, the reformulation and reinforcement of these rights exhibits the importance of these sections. This will not only allow more victims to report these crimes, but also protect them from the humiliating ordeal rape victims face in a trial or in a society.

The Ordinance further sets up a special committee. The role of this committee is to take all steps for the purposes of effective compliance of this Ordinance. The committee may further, issue appropriate directions to the National Data-Base Registration Authority (NADRA) to prepare a register of sex offenders.^[6] This may assist in setting up a reporting mechanism for receiving information from the public about suspicious people or those suspected to have committed or capable of committing the offences targeted by this Ordinance. These implementations would help keep a record of all the past and potential offenders, ultimately ensuring awareness and checks on the offenders/reported offenders by the authorities.

One of the major amendments introduced by this Ordinance is encapsulated in Section 13, which targets the ‘two-finger virginity test’. This test, for years, has scarred rape victims. It has caused nothing but further trauma and distress for the victims. This section prohibits the test along with diminishing any value that was attached to it. This change has been demanded for years as this test was seen to be unreasonable and unnecessary. Finally ending any significance that was associated with this exorbitant test is a step in the right direction by our lawmakers.

This amendment can be seen in action in the recent case of Sadaf Aziz etc vs Federation of Pakistan etc (2021). In this historic judgement the Lahore High Court declared the two-finger virginity test and the hymen test to be unscientific, discriminatory, illegal and unconstitutional. It further orders the provincial government to devise appropriate protocols and guidelines to manage sensitively the care of victims of sexual violence, along with providing awareness to all stakeholders that these tests have no clinical or forensic value.[7]  

There is no doubt that the Ordinance targets some of the most demanded and needed changes in the sexual offences’ laws in Pakistan. It has established committees and cells that will help in the investigation and trial of sexual offences cases in Pakistan. The passing of this Ordinance is a positive step towards justice. However, although it does introduce impactful amendments towards gender-based violence and child protection, the Ordinance mostly focuses on implementing much needed reforms to the procedural and investigative aspects of the crime.

To address substantive aspects of sexual crime laws, the President passed The Criminal Law (Amendment) Ordinance, 2020. This Ordinance aims to effectually tackle the pervading instances of rape and sexual abuse in respect of women and children through changes in the substantive law.

One of the major changes provided by the Ordinance is contained in Section 2. Under this section, the offence of rape is redefined. It widens the definition of rape to include acts other than solely penetration. The Ordinance further adds two more circumstances in which an act of sexual intercourse may be considered rape. These circumstances include where the victim has unsoundness of mind or is intoxicated, and when the victim is unable to communicate consent. These changes highlight that in certain cases the victim may not be able to comprehend the act. This failure to dismiss the advances by the perpetrator have previously been used as ways to assume consent by the victim. This further created problems in rape trials putting a heavier burden of proof on the prosecution in proving that the victim could not have controlled the situation due to being intoxicated or mentally unstable.

This Ordinance further aims to limit the scope of the implied consent argument by making another landmark change by defining consent. A clearer definition of consent has been necessary for years. The 2020 Ordinance explains in section 2 that:

‘Consent means an unequivocal voluntary agreement when B by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act’.

It, moreover, clarifies that failure to physically resist the act of penetration will not, by the reason only of that fact, be regarded as consenting to the sexual activity. Thus, by clearly identifying that no consent impliedly exists in such cases, the burden of proof on the prosecution to prove that rape had been committed will reduce in such trials.

Updating the two most essential terms in sexual crime cases will impact the overall quality of sexual offences laws in Pakistan and finally bring them in line with the standards expected of such laws. These changes will cover a wider range of circumstances and situations under which a person was raped. Hence, this will reduce the burden that was previously on the victim to prove that rape had been committed as the definition of rape would now cover the victim’s vulnerable situation.

The Ordinance also introduced other major changes. It widened the definition of rape by adding men and transgenders as potential victims, finally making the definition inclusive of all humans. Furthermore, it introduced stricter punishments that specifically target ‘gang rape’, an offence where a person is raped by one or more persons constituting a group. The Ordinance under Section 3 introduces amendments to the Penal Code 1860 (hereinafter 1860 Act) by adding a new section namely Section 375A to the Act. Under this section, capital punishment, imprisonment for the remainder period of natural life, or imprisonment for life and fine to such perpetrators has been ordered.

In line with introducing stricter punishments for the offender, the Ordinance under section 5 has added a further new section namely Section 376B to the 1860 Act. This section orders chemical castration for exceptional first offenders and repeat offenders. To be clear, the chemical castration as under the Ordinance is different from what the Prime Minister initially envisaged, in that the Ordinance only supports chemical and not surgical castration with consent for rehabilitative purposes. A drug is used to reduce sexual drives, compulsive sexual fantasies, and capacity for sexual arousal in the offender. This is further explained as a process where a person is rendered incapable of performing sexual intercourse for any period of his life, as may be determined by the court, through administration of drugs which shall be conducted through a notified medical board.

Chemical castration is practiced in many countries, including Poland, Indonesia, South Korea, Russia, some parts of Australia and the USA. It is believed that this form of punishment may act as a deterrent and ultimately reduce sexual crimes rates.^[8] However, there is little evidence to support this claim as it is generally a myth that the severity of punishment discourages an offender to commit the crime.^[9] Chemical castration is argued to violate human rights as it can have unfavourable side effects that can last for a lifetime. Moreover, there are cases where the treatment does not have any effect at all, causing the perpetrator to commit the offence again. In some cases, the offender is driven by aggression and not sexual impulse, hence in such cases chemical castration may not be an effective solution. It also overlooks the fact that penetration can be through means other than the male genitals.^[10] However, the sole argument that this form of punishment reduces recidivism rates dramatically may be enough to gain the support of many in Pakistan. With the increase in child rapists and sexual offenders, this level of punishment seems fair as it minimises the ability of sexual offenders to reoffend and may even act as a deterrent to begin with. Although we cannot discount the fact that such a punishment will only be of concern if there is a conviction and unfortunately, the conviction rate in sexual offences cases in Pakistan is worryingly low at less than 3%.^[11] Therefore, to convict an offender without any delay and hindrance it is suggested that clearer guidelines and implementation requirements are needed.

The changes introduced by The Criminal Law (Amendment) Ordinance, 2020 and The Anti-Rape (Investigation and Trial) Ordinance, 2020 were undoubtedly required. Together, they help provide greater protection to the victims, while simultaneously proposing changes that aim to reduce the number of potential rapists. Although, it may be argued that solely targeting to deter rapists by implementing stricter punishments is not a very reliable method as it has been proved to be ineffective in many cases and countries before. Additionally, with stricter punishments comes a greater burden of proof on the prosecution. Even though it can be hoped that this does not become the case, it is worth mentioning that the courts may require more proof or evidence from the prosecuting party if the sentence to be imposed on the offender is severe.

Together both Ordinances address the procedural and investigative aspects of sexual crime cases as well as the substantive law and definitions relating to the crime of rape. Both these amendments are welcomed. While the outcome of these amendments still needs to be seen in practice, on paper they exhibit a step in the right direction.

 

Muryam Rehman Syed is an Advocate based in Islamabad, Pakistan. She completed her Bachelor of Laws in 2017 and advocates for women rights and equality in Pakistan. The views expressed are solely of the author.

 

 

Bibliography

 

1. Anti-Rape (Investigation and Trial) Ordinance 2020

 

2. Criminal Law (Amendment) Ordinance 2020

 

3. Chakrabarti A, 'What’s Chemical Castration — The Punishment Pakistan Plans To Introduce For Sex Crimes' accessed 1 March 2021

 

4. Desk N, 'Conviction Rate In Rape Cases Under 3% In Pakistan: Report' accessed 1 March 2021

 

5. Lombardo C, 'Pros And Cons Of Chemical Castration' accessed 1 March 2021

 

6. Pugh J, 'Why Is Chemical Castration Being Used On Sex Offenders In Some Countries?' accessed 1 March 2021

 

7. Tahir R, 'Sadaf Aziz V. Federation Of Pakistan: The End Of Virginity Testing In Pakistan?' (Oxford Human Rights Hub, 2021) accessed 11 March 2021