The Legal Trauma of Rape

This article was originally published in Newsline’s March 2010 as a box in article Fight to the Finish

Each year, WAR targets to take 20 cases of rape to court. This number never exceeds 15, and even fewer get justice. Since the merit of the case is determined by the charge that is framed, the testimony of witnesses and the medical report, discrepancies in the system contribute in a large way to unending trials and unfavourable verdicts.

“Every law has three different components,” says Sarah Zaman, WAR project coordinator. “One is the substance, which is the actual written law, then is your structure, the people who are actually enforcing the law like the police, lawyers and judges, and then there is your culture. When you talk about equity and justice, it is based on all three of these. They need to work simultaneously to have an impact.”

Thus, even if corrective measures are introduced to the substance (law), if the structure is left unaltered, then the procedural discrepancies render the law ineffective. “There are a lot of grey areas in cases of rape and unless your judges and lawyers have a very good grasp and understanding of the issue and the subtleties of trying a rape case, they will not be able to give very informed decisions,” says Sarah. “You also need lawyers or prosecutors who know enough about the issue to be able to present the case in a convincing manner and actually get a favourable verdict.”

Whether it is the lack of awareness or a lack of will, or both, the very people who should facilitate justice end up obstructing it. The framing of the charge is essential to the trial of a case, says WAR lawyer Farida Moten, “If the FIR and charge is registered under the Hudood Ordinance, then the case goes to the Shariah Court. If it is registered under the Pakistan Penal Code [PPC] then it is tried in the trial court.” For survivors to benefit from the distinction between rape and zina, the charge has to be registered under the PPC.

The Women’s Protection Bill 2006 had come into effect when Naseema Lubano registered her case in January 2007. Despite that, the police registered her case under the Hudood Ordinance instead of the PPC.

There are also situations in which the police refuse to register an FIR altogether. In such a case, WAR personnel accompany the survivor to the police station and speak to the relevant officer or to a higher-up. However, if they still do not cooperate, then the organisation holds press conferences or issues press releases and statements mentioning the particular police station that is not cooperating.

“The police don’t understand that their job is to register a case, to investigate it and to present their findings to the court. Everybody at their own level plays judge,” says Sarah.

Unless the survivor is physically present, an FIR cannot be registered. It is not easy or always possible for survivors to come forward due to a number of factors, and the fear of the police and court culture, which passes judgments on a survivor’s personality, her character, her history and her sexual history, also keeps them away. The law does not take into account the intimidating environment a psychologically disturbed survivor is placed in. Allowing someone to register an FIR on behalf of the survivor should be permitted, as is the case in other countries, says Sarah.

The medico-legal report, which sets the very basis of a case, states only whether a woman is ‘sexually habituated’ or not. Scars, burns, or other marks of torture or physical abuse are not reported. Finger testing is the only method applied, which checks the elasticity of the vagina and the presence of the hymen. “This method reveals nothing about the act or the crime that was committed. And if the survivor is a married woman, she obviously is sexually habituated; what then constitutes medical evidence?” Sarah asks.

That evidence can be collected from places such as under the nails, behind the ears, or that a woman’s belly can be checked for traces of semen, is not known to medico-legal practitioners, neither are they equipped to collect such samples.

Often, women remove vital evidence out of shame and guilt: they wash their clothes or take multiple baths, removing possible traces of semen.

Also, a lot of survivors and their families seek out-of-court settlements because getting one lakh of rupees is a far better deal than doing the rounds of court for three years and becoming social outcasts. Time caps for rape cases, be it for the registration of a challan by an investigation officer to the report of a medico-legal examiner to the actual case itself, need to be put in place.