THE PLIGHT OF A SURVIVOR An analysis of different anthropological and legal aspects on the prevalence of rape, particularly in Southern Punjab - .

Noor Zafar

Noor Zafar is a graduate of the B.A., LL.B (Hons) programme of the Shaikh Ahmad Hassan School of Law (SAHSOL), Lahore University of Management and Sciences (LUMS). All pre-submission editing for the paper was done by Marva Khan, who holds an LL.M. from Harvard University and is a member of faculty at the Shaikh Ahmad Hassan School of Law (SAHSOL), Lahore University of Management and Sciences (LUMS). 96 Pakistan Law Review [Vol: IX

ABSTRACT

The discussion in this paper revolves around the prevalence of rape cases in Pakistan, with specific focus on the area of Southern Punjab. The main issues under consideration are: the high number of rape cases in a scenario which witnesses a low report and conviction rate; the way state institutions deal with assault victims, which exposes them to undignified, if not cruel, treatment; and the societal perception that a large number of cases are falsely reported as rape. The paper will look into the laws in Pakistan penalizing rape and similar Islamic provisions on the matter. The historical and anthropological views of the offence will also be looked at. Original research has been conducted for this paper which has been coupled with other resources to present the paper’s conclusions. The final recommendations argue that Pakistani laws against rape, notwithstanding amendments made in the last decade, still need to be improved to allow adequate relief for victims of rape and effective deterrent for perpetrators. Concurrently, it is maintained that the real obstacle to effective legal prosecution of rape is the societal take on female sexuality and honour, which affects the way rape crimes are reported to and prosecuted by the police and other state institutions.

2018] The Plight of a Rape Survivor 97

I. WHAT IS RAPE?

Rape is defined by the Cambridge dictionary of English language as ‘to force someone to have sex when they are unwilling, using violence or threatening behaviour.’1 Women are not the only victims of this heinous crime, as children and men are often victims of rape. This is usually mirrored by legal definitions of rape in those jurisdictions where gender neutrality to rape is accepted.2 However, the term rape in Pakistan’s context, is usually taken as meaning a man forcing intercourse upon a non- consenting woman. This is reflected in the ’s definition of the crime of rape, which begins with the words: ‘A man is said to commit rape who has sexual intercourse with a woman…’3 The number of rape cases against women is quite high in many countries around the globe, which legitimates the impression that this world has failed them. For instance, according to a survey conducted by Rape, Abuse & Incest National Network (RAINN), one out of every six women in the United States has been a victim of attempted or completed rape once in her lifetime.4 In the United Kingdom, 23,851 reports of adult rape were recorded by the police during the year 2015-2016, with almost all cases involving women.5 A 123% rise in rape cases was recorded in UK from 2011-2012 to 2015-2016.6 In a survey conducted by the European Union Agency for Fundamental Rights (FRA), it was found that Sweden had the third highest incidence of rape cases after Denmark and Finland.7 This evidences the perception that

1Cambridge Dictionary, Rape, https://dictionary.cambridge.org/dictionary/english/ rape. 2See, e.g., the United Kingdom’s Sexual Offences Act 2003, Section 1(1) which defines Rape as follows: ‘A person (A) commits an offence if— (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents.’ 3See infra chapter VI, for the full section. 4RAINN, Victims of Sexual Violence: Statistics (2016), https://www.rainn.org /statistics/victims-sexual-violence. Based on US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Crime Victimization Survey, 2010-2014 (2015). 5Vikram Dodd & Helena Bengtsson, Reported in England and Wales double in four years, , 13 October 2016, https://www.theguardian.com/ society/2016/oct/13/reported-rapes-in-england-and-wales-double-in-five-years. 6Id. 7FRA – European Union Agency for Fundamental Rights, Violence Against Women: an EU-wide survey, (Luxembourg: Publications Office of the European

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regardless of all the achievements and developments of the twenty first century, what remains unchanged is the female’s fear of suffering rape, which corresponds to its high incidence worldwide. In Pakistan, where a portion of the public believes that a high number of rape accusations are false,8 the government has recently passed progressive laws regarding the issue of rape. However, implementation of these laws is still a pressing issue: there is no justification for the low conviction rate in rape cases and for the unsafe environment women are confronted with, especially and police stations; moreover, societal attitudes towards the victims puts them under pressure and fear of proceedings and the subsequent impact on their honour if the crime were made public. Before considering in detail the Pakistani legal framework dealing with sexual violence, an analysis of the offence’s historical and anthropological dimensions will be conducted in the next sections.

II.

Historically, rape has been documented to occur during war as well as during peaceful times. Women, for many centuries were viewed as ‘victor’s spoil’ in many societies. For instance, in ancient Greece, victors in war acquired a ‘right to rape’.9 In every form of national or international armed conflict, irrespective of whether its basis was political or ethnic or religious, women of the losing side were often victims of systematic rape.10 Until last century, not much attention was paid to the topic of rape, especially how male genitals were used as a weapon to maintain dominance over the female sex.11 For instance, Sigmund Freud, who introduced the

Union) 2014, 24, http://fra.europa.eu/en/publication/2014/violence-against-women- eu-wide-survey-main-results-report. 8The statement is based on the results of the author’s research conducted in Southern Punjab. 9Babalola Abegunde, Re-examination of Rape and Its Growing Jurisprudence under International Law 6 J. Pol. & L. 187, 187 (2013). 10Id. 11SUSAN BROWNMILLER, AGAINST OUR WILL (New York: Open Road Media) (2013) 11-12. 2018] The Plight of a Rape Survivor 99

concept of primacy of the penis,12 refused to look into the concept of its use as a weapon,13 and so did his followers.14 It was Wilhelm Reich who introduced the concept of ‘masculine ideology of rape’, in the opening chapters of his book ‘The Sexual Revolution’ (1945)’.15 Even he could not explain the concept in more detail, as it was not easy for him to detest his male privileges by going against his own nature and mindset at that point in time.16 It is generally accepted that social orders have mostly been male- dominated, whereby women were not equal to man before the law.17 By an inevitable construction of their genital organs, men were supposed to be the natural predator and women their prey.18 This predator-prey analogy seems appropriate to express the fact that predators are always the dominant species in relationship to their prey, and almost all societies and cultures have had male as the ruling, dominant gender.19 Different accounts of the history of rape have tried and understand which factors may have led early incidents of rape, which were perpetuated through time up to the present day. Similarly, Thornhill and Palmer scientifically investigated the hypothesis that rape is biological in nature as it is a reproductive adaptation, by backing their assertions with data collected from different experiments. Eventually they reached the

12According to Sigmund Freud, the founder of psychoanalysis, there is phallic phase in childhood development. During this phase, for the first time sexual difference between the two sexes is encountered and it is figured out primarily through genitalia, specially the penis. Freud construction of the phallic phase shows the penis as a symbol of power. See Abigail Rine, Phallus/Phallocentrism in RYAN ET AL. EDS., THE ENCYCLOPAEDIA OF LITERARY AND CULTURAL THEORY, II (Hoboken, NJ: Wiley Publishers) (2011). 13BROWNMILLER, supra note 11, at 11-12. 14Id. 15Id. 16Id. 17The myth of a matriarchal ancient world has been debunked by CYNTHIA ELLER, THE MYTH OF MATRIARCHAL PREHISTORY: WHY AN INVENTED PAST WON’T GIVE WOMEN A FUTURE (Boston: Beacon Press, 2000). For the opposite view See MERLIN STONE, WHEN GOD WAS A WOMAN (New York, NY: Harcourt Brace Jovanovich) (1976). 18BROWNMILLER, supra note 11, at 16. 19Exception can be made for 8th century (CE) Nuguo society in Tibet, which might be understood as pointing to a true matriarchy, in terms of female rule, matrilineal succession, and matrilocal residence: Jennifer W. Jay, Imagining Matriarchy: ‘Kingdoms of Women’ in Tang China, 116(2) Journal of the American Oriental Society, 220, 223-224 (1996). 100 Pakistan Law Review [Vol: IX

conclusion that, although based on biological characteristics, rape is not inevitable.20 Rape also has been construed as the pathological result of two factors: the psychological dysfunction of individual rapists on one side and the sexism inherent in male-dominated societies on the other.21 Notwithstanding the efforts, various historical analyses have proven inconclusive on the issue as to why rape is committed. It is therefore necessary to move on towards analysing the socio-anthropological dimensions of the phenomenon.

III. ANTHROPOLOGICAL PERSPECTIVE: SOCIAL CONTEXT

There are four dimensions to the anthropological perspective on gender violence.22 The first is that the issue is seen as a creation of different social movements and political debates which are subject to change with the passage of time.23 Rape is an ancient phenomenon; what has changed is that now this offence is being linked to the prevalent gender practices in different societies and it is consequently being studied in light of subjugation of the female gender.24 The second dimension is that an anthropological perspective does not see gender as being a fixed concept.25 Gender is a social construct and different socio-political elements collectively form a definition of gender. These include nationalism (women are seen as mothers of nations and men are seen as soldiers),26 kinship systems and also the forms of marriage. The third dimension is that an anthropological perspective looks at things from a broader perspective, by putting them in context.27 Even violence between the genders is seen from a

20RANDY THORNHILL & CRAIG T. PALMER, A NATURAL HISTORY OF RAPE (Cambridge, MA: MIT Press) (2001). 21William M. Shields & Lea M. Shields, Forcible Rape: An Evolutionary Perspective, 4 Ethology and Sociobiology 115-136 (1938), http://www.ehbonline. org/ article/0162-3095(83)90026-2/pdf. 22SALLY ENGLE MERRY, GENDER VIOLENCE: A CULTURAL PERSPECTIVE (Hoboken, NJ: Wiley Publications) (2008) 19-20. 23Id. 24Id. 25Id. 26Id. 27Id. 2018] The Plight of a Rape Survivor 101

wider perspective, against the backdrop of violence by different states, communities and institutions.28 Last, an anthropological perspective is comparative in its approach.29 Gender violence and rape are global phenomena and these are matters of grave concern faced by almost all countries around the globe, although there may be a difference in the frequency and form these crimes take in different contexts.30 The results of cross-cultural anthropological studies deviated from the idea of biological nature of rape and suggested that sexual behaviour of different human beings was an expression of different cultural forces, with prevalent cultural practices impacting on a person’s sexual behaviour.31 A study conducted on different tribal societies observed that rape was more likely to occur where some specific cultural arrangements were in place, such as male domination, separation between sex and interpersonal violence.32 These were societies where peace and harmony amongst the opposite genders had been severely disturbed, and rape was interpreted as a sexual expression of that disruption.33 Rape was also used as a tool to maintain dominance over an entire race. For instance, in American slave South, during a period that ranged over two centuries,34 female sexuality was squashed to maintain a slavery- conducive status quo.35 Rape was more than a mere tool of violence in the American treatment of black women.36 It represented an institutional crime: the subjugation by white men of black people for economic and societal gain.37 Rape at war time is also a well-known social phenomenon. An example that is most relevant to the topic under discussion in this essay is the mass rape during the Bangladesh war in 1971. Almost 200,000 to 400,000 Bengali women and girls were raped by Pakistani soldiers.38 Angela

28Id. 29Id. 30Id. 31Peggy R. Sanday, The Socio-Cultural Context of Rape: A Cross-Cultural Study, 37(4) Journal of Social Issues 5-27 (1981), http://onlinelibrary.wiley.com/doi/10. 1111/j.1540-4560.1981.tb01068.x/abstract. 32Id. 33Id. 34BROWNMILLER, supra note 11, at 153. 35Id. 36Id. 37Id. 38Lisa Sharlach, Rape as Genocide: Bangladesh, the Former Yugoslavia, and Rwanda (22)1 New Political Science 89, 94 (2000). 102 Pakistan Law Review [Vol: IX

Debnath argues that although rape during wartime was not a new phenomenon, however, it was during the Bangladesh war that the international community recognized that systematic rape could be used as a weapon to put people under a state of terror.39 Another example of this was the forced sexual enslavement of Korean women by Japanese soldiers during the Second World War.40 The Balkan wars in the early 1990’s involved the systematic use of rape against Bosnian women by Serbian soldiers. Sexual violence was common practice during the Rwandan genocide of 1994 as this war witnessed the almost daily raping and killing of minority’s Tutsi women by the ethnically dominant Hutu men.41 These recent atrocities have led to calls for construing systematic rape as a form of genocide.42 An interpretation of rapist behaviour has been provided by left realist authors, who believe that situations faced by humans involve a freedom of choice in a world that has determined everyone’s circumstances.43 Human nature and moral choices of individuals play an important role in the study of criminology, as Jock Young states: As an activity, crime involves a moral choice at a certain point in time in changing determinant circumstances. It has neither the totally determined quality beloved by positivism, nor the wilful display of rationality enshrined in classical legal doctrine. It is a moral act, but one which must be constantly assessed within a determined social context. It is neither an act of determined pathology, nor an obvious response to desperate situations’.44 Behaviour of humans is seen as a problem-solving activity by left realists. Accordingly, criminals exercise their own moral choices, and they are to be held fully responsible for their deviant behaviour.45 Hence crime is

39Angela Debnath, The Bangladesh Genocide: The Plight of Women, in SAMUEL TOTTEN ed., THE PLIGHT AND FATE OF WOMEN DURING AND FOLLOWING GENOCIDE (New Brunswick, NJ: Transaction Publishers) (2009) 47-66. 40ENGLE MERRY, supra note 22, at 165-166. 41Id. 42Sharlach, supra note 38. 43JAYNE MOONEY, GENDER, VIOLENCE AND THE SOCIAL ORDER (London: Palgrave Macmillan) (2000) 111. 44Jayne Mooney, The prevalence and social distribution of : an analysis of theory and method, PhD thesis submitted to Middlesex University Law School (1994) 171. Available from Middlesex University’s Research Repository at http://eprints.mdx.ac.uk/6383/. 45Id. 2018] The Plight of a Rape Survivor 103

seen, again by Young, as ‘one form of subcultural adaptation which occurs where material circumstances block cultural aspirations and where non- criminal alternatives are absent or less attractive.’46 Hence, regardless of the different reasons someone might give for committing an offence, it is mainly a matter of choice from a left feminist realists’ perspective; a moral choice one can be held accountable for. Therefore, the social context occupies a central position in the analysis of criminal behaviour, whereby rape can only be studied in its specific context. In view of this, an analysis of rape in the socio-anthropological milieu of Pakistan will follow.

IV. WOMEN, RAPE AND PAKISTAN

Pakistan was declared to be the third most dangerous country for women to live in according to the results obtained in a Trust Law poll in 2011.47 The Human Rights Commission of Pakistan found that 597 women and girls were gang-raped, 828 raped and 36 stripped in public in the country in 2014 only.48 In the same year, WAR (War against Rape) had reported that four women were raped every day in Pakistan.49 A senior member of Punjab Chief Minister’s Special Monitoring Unit for Law and Order, Salman Sufi, stated that, in 2016, six women fell victim to murder or attempted murder, eight were raped, eleven were battered and assaulted and thirty-two were abducted daily in Punjab alone.50

46Id. 47Lisa Anderson, Afghanistan is most dangerous country for women, Trust Law Poll, Thomson Reuters Foundation News, 15 June 2011, http://news.trust.org//item/?map=trustlaw-poll-afghanistan-is-most-dangerous- country-for-women/. 48Human Rights Commission of Pakistan, Rights of the disadvantaged, State of Human Rights 201, 214 (2014), http://hrcp-web.org/hrcpweb/data/ar14c/5- 1%20women%20-%202014.pdf. 49Aamir Khan, WAR report 2014: Four women raped every day in Pakistan, , 2 July 2015, https://tribune.com.pk/story/913772/miserable- figures-rape-a-bigger-problem-than-meets-the-eye/. 50PPWB prepared with consultations: Sufi, The Pakistan Observer, 28 February 2016, https://pakobserver.net/ppwb-prepared-with-consultations-sufi/; Punjab

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A 28.2% increase was seen in crimes against women from 2013 to 2014, but the conviction rate was still between 1 and 2.5 per cent. Only 50% of 36,349 reported cases of crimes against women were officially recorded by the police (challaned) during the year 2013-2014.51 Reports from the year 2013- 2014 also mentioned that out of 9808 cases received, DNA results were negative in 84%, positive in 15% and irrelevant in 1%.52 In terms of willingness to prosecute the crime during 2013-2014, all victims were eager to prosecute aggressively within 24 hours of the crime, while the percentage fell as the time lapse between the occurrence of the incidence and reporting increased. The average will to prosecute aggressively after 24 hours of the crime was found to be less than 60%.53 Furthermore, from January 2013 to June 2017 around ten thousand cases of rape were reported in Punjab.54 This data was disclosed in the statistics compiled by Punjab Commission on the Status of Women from information available with the Inspectorate General of Punjab Police.55 Current Chief Justice of Supreme Court of Pakistan Hon. Justice Mian Saqib Nisar had taken suo motu notice of rape cases of minors in , but despite his efforts such cases are recorded as still being on the rise.56 From January 2018 till the month of August, a total of 77 rape cases were reported in Lahore alone.57 Southern Punjab is an area of Pakistan with a high number of cases involving violence against women. This has led to the first Violence against Women Centre, an initiative by the government of Punjab aimed at ensuring

women protection bill prepared with consultation of society, scholars, The Nation, 28 February 2016, https://nation.com.pk/28-Feb-2016/punjab-women-protection- bill-prepared-with-consultation-of-society-scholars. 51Aurat Foundation, Violence Against , Annual Report 2014, xix, www.af.org.pk/PDF/VAW%20Reports%20AND%20PR/VAW%202014.pdf. 52Id. 53Id. 54Sher Ali Khalti , 10,000 rape cases reported in three and a half years, The News, 9 September 2017, https://www.thenews.com.pk/print/230885-10000-rape-cases- reportedin-three-and-a-half-years. 55Id. 56Asif Chaudhry, Official data since January 2018: No conviction in 141 child rape cases reported in Lahore so far, The , 10 August 2018, https://www.dawn. com/news/1426078. 57Id. 2018] The Plight of a Rape Survivor 105

legal aid and protection to women who are victim of violence, to be established in in 2017.58 Rape and abuse of women in police custody is a prevalent practice in Pakistan. A report by stated that almost 70% of the women in police custody in Pakistan were abused at the hands of jailers and other police officers.59 The report mentioned case from the time when hudood laws were in force in 1988.60 Three women accused of sexual offence were held in custody for 48 hours.61 After that, the women were produced before a magistrate and found to be innocent.62 During this time, all three women had been brutally raped by several police officers, one 60 years old woman was penetrated with a baton.63 This is only one illustration of a culture of abuse of prisoners in police stations in Pakistan. Thirty years have since passed, but things have seemingly not improved much. A report on ‘thana culture’64 was issued in 2016 by Human Rights Watch.65 It mentioned the problems faced by women during police investigation proceedings, especially when they brought complaints of sexual assaults in police stations and ask for a First Investigation Report (FIR) to be filed.66 It was reported that because of prevalent societal attitudes and the treatment given to the victim by the police and judiciary, violence against women still remained underreported to a larger extent.67 Women facing such situations are still not seen as victims by state institutions (police and judiciary), rather they are blamed for inviting the attack.68

58Violence against women centre opens in Multan, The Nation, 26 March 2017, http://nation.com.pk/national/26-Mar-2017/violence-against-women-centre-opens- in-multan; Multan is the most populous city of Southern Punjab. 59Dorothy Q. Thomas, Double Jeopardy Police: Abuse of Women in Pakistan, Human Rights Watch Report (1992), https://www.hrw.org/reports/1992/pakistan/. 60Id. 61Id. 62Id. 63Id. 64Thana is the word for police stations in Urdu, the national language of Pakistan. 65Najm-ul-Sahr-Ata-ullah, Saroop Ijaz, ‘This Crooked System’: Police Abuse and Reform in Pakistan, Human Rights Watch Report, 25 September 2016, https://www. hrw.org/report/2016/09/25/crooked-system/police-abuse-and-reform-pakistan. 66Id. 67Id. 68Id. 106 Pakistan Law Review [Vol: IX

V. RAPE AND ISLAM

Islam is the state religion under Article 2 of Constitution of Pakistan (1973), and the Islamic Republic of Pakistan has a majority of Muslim population; therefore, the Islamic legal position on rape is central to the discourse regarding this offence in Pakistan. The Quran is the most authentic primary source of Islamic teachings; however, its verses are interpreted in present day matters by looking at Sunnah of the Prophet (S.A.W) and using different methodological tools. Although rape is not explicitly mentioned in the Quran,69 it is malum in se, and early Islamic jurists had no difficulty in considering it a crime, in the form of usurpation of property. This was expressed by using the word ightisab, which means ‘usurpation, illegal seizure, coercion, ravishing, violation and rape’.70 Islamic early sources make a clear distinction between rape and zina.71 Women who had been raped always had a defence against the accusation of zina, and this proves that the two were mutually exclusive.72 The construction of rape as ‘forcible illicit sexual intercourse’ made it necessary to prove the occurrence of the act of intercourse, but this did not mean that rape and adultery overlapped. This is also shown by the fact that when rape was claimed, other women were entrusted with the victim’s bodily examination and her testimony was also considered – something that is not admissible for hudd punishments, the category of crimes which includes zina.73 The above mentioned claims are substantiated by examples from the lifetime of the Prophet (S.A.W.) It has been quoted that during the lifetime of Prophet Muhammad, a rapist was punished based on only the testimony of the victim. Wa’il ibn Hujr reported that a woman publicly identified a man who had raped her. The people caught the man and brought him to the Prophet Muhammad. He told the

69AFIYA SHEHRBANO ZIYA, SEX CRIME IN THE ISLAMIC CONTEXT: RAPE, CLASS AND GENDER IN PAKISTAN (Lahore: ASR Publishers) 7-9 (1994). 70Azman M. Noor, Rape: A Problem of Crime Classification in Islamic Law, 24 Arab Law Quarterly 417, 427 (2010). 71These concepts were mistaken to overlap by the judicial system in Pakistan during the legal framework for rape and adultery created under Zia-Ul-Haq’s regime. See infra, Chapter VI which discusses Pakistani criminal law’s provisions on rape and adultery. 72See Delfina Serrano, Legal Practice in an Andalusī-Maghribī Source from the Twelfth Century CE: TheMadhāhib al-ḥukkām fī nawāzil al-aḥkām, Islamic Law and Society, 7(2) Islamic Law in Al-Andalus 187, 198-201 (2000). 73Id. at 200. 2018] The Plight of a Rape Survivor 107

woman to go, and ordered that the man be put to death.74 There is another widely quoted example of a woman who brought her infant to the mosque and publicly spoke about the rape that had resulted in her pregnancy. When confronted, the accused admitted the crime to the Caliph Umar, who then ordered his punishment. The woman was not punished.75 Witness testimony, confession and physical evidence are seen as important elements in terms of proving an allegation of rape in Islam,76 but it is clear that there is no concept or precedence for blaming or punishing the victims of in Islamic jurisprudence.77 Prevailing modern Islamic jurisprudence sees rape as falling under the legal category of offences known as hirabah (being worse than destruction of property or usurpation of money according, for example, to Ibn Rushd)78 and jirah (wounds).79 This position also provides for a civil remedy in form of financial compensations in rape cases, this is done keeping in mind the emotional and physical harm resulting from the incidence.80 As the category of hirabah does not fall under the hadd crimes, for which stricter proof is necessary, for these offences only ordinary evidentiary requirements should be met.81 This view is shared by several contemporary Islamic scholars, such as Professor Nayazee, Javed Ahmed Ghamidi, Tufail Hashmi, and Asifa Qureshi.82 They maintain that normal evidentiary requirements such as circumstantial evidence should suffice and there should not be any requirement of four male witnesses.83 A minoritarian interpretation, construes rape as a variant of adultery (zina),84 but the intrinsic damage, both physical and psychological, the

74Noor, supra note 70, at 433. 75Asifa Quraishi, Her Honour: An Islamic Critique of The Rape Provisions in Pakistan's ordinance on Zina, 38(3) Islamic Studies 403, 417 (1999). 76Id. 77Id. at 431. 78See Moeen H. Cheema & Abdul-Rahman Mustafa, From the to the Protection of Women Act: Islamic Critiques of the Hudood Laws of Pakistan, 8 Journal of Islamic & Near Eastern Law 1, 31 (2008-2009). 79Quraishi, supra note 75, at 417. 80Id. 81Id. 82Muhammad Munir, Is Zina bil-Jabr a Hadd, Tazir Or Syasa Offence?A Re- Appraisal of the Protection of Women Act, 2006 in Pakistan, 14 Yearbook of Islamic and Middle Eastern Law 95, 103 (2008-2009). 83Id. 84Hina Azam, Rape as A Variant of Fornication (Zinā) In Islamic Law: An Examination of the Early Legal Reports, 28(2) Journal of Law and Religion 441, 458 (2012-13). 108 Pakistan Law Review [Vol: IX

victim suffers, is still recognised as integral to the crime.85 To prove that the victim of rape is not liable to any form of punishment, a hadith related to Ibn Mâjah and authenticated by al-Nawawî, Ibn Hajr, and al-Albânî is used. Prophet Muhammad was once heard quoting, ‘Allah has pardoned my people for the acts they do by mistake, due to forgetfulness, and what they are coerced into doing’.86 As rape is an act of coercion, victims of sexual assault are pardoned by Allah according to the words of the Prophet (S.A.W.).87 An intermediate stance holds that even if rape comes under the category of hirabah, still all the requirements to prove a hadd punishment should be fulfilled, including the two witness rule.88 The various possible interpretations of rape in Islamic law have been briefly perused, and they provide an indispensable background to understand present day’s Pakistani legislation on the matter. The sad reality is that the interpretation followed by the legislature in Pakistan during Zia’s regime, which allowed the law to be used to the detriment of women,89 was not based on sound interpretation of Islamic sources.90

85In a more recent work on Sexual Violence in Early Islamic Sources, Azam finds that in early Islamic sources rape was not treated exclusively from within the domain of violations to haquq Allah, like zina, but also as a violation of interpersonal rights due to the personal and psychological damage it inflicts: See Elyse Semerdjian, Sexual Violation in Islamic Law: Substance, Evidence, and Procedure by Hina Azam (review), 13(2) Journal of Middle East Women's Studies 315, 315-316 (July 2017). 86Hadith 39, Al Nawawi, quoted by Islamic Research Foundation International (IRFI), What is the punishment for rape in Islam? What happens to the rape victim? http://www.irfi.org/articles4/articles_5001_6000/what%20is%20the%20punishment %20for%20rape%20in%20islamhtml.htm. 87Azam, supra note 84. 88ZIYA, supra note 69, at 8. 89Id. 90The Council of Islamic Ideology of Pakistan recognised in 2007 that ‘…the Hudood Ordinance does not conform fully to the Qur’an and Hadith. Partial amendments to this Ordinance cannot bring it to accord with the letter and spirit of the Qur’an and Sunnah. A thorough revision of the Hudood Ordinance is necessary in order to make it more responsive to the philosophy of crime and punishment in the Qur’an and Sunnah as well as more effective in a modern judicial system’. Council of Islamic Ideology of Pakistan, Analytical Report and Recommendations on Hadood Ordinance, 4 (12 May 2007) http://cii.gov.pk/publications/h.report.pdf. 2018] The Plight of a Rape Survivor 109

VI. RAPE LAWS IN PAKISTAN

In the Pakistan Penal Code (Act XLV of 1860) (hereinafter PPC), the offence of rape has been defined under section 375 and its punishment prescribed under section 376.

“375: A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions, (i) against her will; (ii) without her consent; (iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt; (iv) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or (v) with or without her consent when she is under sixteen years of age. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.”91

“376: Punishment for rape (1) Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall not be less than ten years or more than twenty-five years and shall also be liable to fine. (1A) Whoever commits an offence punishable under subsection (1) or subsection (2) or section 377 or section 377B and in the course of such commission causes any hurt punishable as an offence under section 333, section 335, clauses (iv), (v) and (vi) of subsection (3) of section 337, section 337C, clauses (v) and (vi) of section 337F shall be punished with death or imprisonment for life and fine. (2) When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life. (3) Whoever commits rape of a minor or a person with mental or physical disability shall be punished with death or imprisonment for life and fine. (4) Whoever being a public servant including a police officer, medical officer or jailor, taking advantage of his official position, commits rape shall be punished with death or imprisonment for life and fine.”92

91Pakistan Penal Code (Act XLV of 1860). 110 Pakistan Law Review [Vol: IX

The aforementioned provisions were originally present in Pakistan Penal Code (PPC). However, in 1979, they were removed from PPC and were inserted into the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter ‘Zina Ordinance’).93 It was in 2006 that the major amendments were introduced in the Zina Ordinance and this very section 19 was shifted back into the Pakistan Penal Code through the promulgation of Protection of Women (Criminal Law Amendment) Act, 2006.94 The 2006 Act was enacted during President ’s government as a result of different women’s rights groups’ efforts.95 The above produced section 375 and 376 of PPC are the final outcome of the modifications made to them by the Criminal Law (Amendment) (Offences Relating to Rape) Act, XLIV of 2016 (hereinafter Rape Act 2016). The latter Act has also introduced norms to protect the identity of rape victims.96 The Zina Ordinance was promulgated by the then President Zia-ul- Haq, who apparently had a mission of Islamisation of laws in Pakistan. The distinction between zina (adultery) and zina-bil-jabr (rape) had been blurred in the Zina Ordinance, where both were defined as “sexual intercourse without being validly married”.97 It also set a requirement of four witnesses in cases of zina (adultery).98 This ordinance on zina did not consider zina- bil-jabr as being amongst those crimes that belonged to the category of hirabaah, instead rape was considered a form of zina.99 An example of the confusion created was the case of rape of a blind girl Safia Bibi who was thirteen years old when she was raped: she was punished for fornication in the lower court, rather than her rapist being punished.100 Jehan Mena v. State is another case whose judgment was quite similar to Safia Bibi’s case.101 The lower Courts in both cases made the same error of interpretation and assumed that since the victim who alleges rape also agrees to having had an unlawful sexual intercourse, therefore the allegation itself may be used as evidence against the victim for prosecution of zina bil raza (adultery or fornication). This was a serious error of interpretation, not only in the context of Zina laws but also in the context of criminal evidence and

92Id. 93Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, s. 19. 94Protection of Women (Criminal Law Amendment) Act, 2006, s. 5. 95Munir, supra note 82, at 96. 96By a new section 376-A inserted in the PPC. 97Munir, supra note 82, at 98. 98Zina Ordinance, s. 8. 99Quraishi, supra note 75. 100Safia Bibi v. The State, PLD 1985 FSC 120. 101PLD 1983 FSC 183. See also Munir, supra note 82, at 98. 2018] The Plight of a Rape Survivor 111

criminal procedure laws. None of these two cited cases were upheld by the High Courts. Rather the High Courts moved swiftly, removed that error and acquitted both women. The requirement of four witnesses was challenged in court in Rashida Patel v Federation of Pakistan102. The Federal Shariat Court (FSC) had stated in the judgment that although the requirement of four witnesses to prove zina was a necessary requirement, if four witnesses are not available, a woman can appear before the court or circumstantial evidence may be used, however, the hadd punishment could not have been awarded on the basis of that evidence.103 The convict shall only be held liable to tazir punishment.104 Since provisions regarding rape in PPC were taken from there and inserted in the Zina Ordinance, they were also being tried under the hudood laws being subjected to same evidence criteria set for the offence of zina (adultery and fornication) in the Zina Ordinance.105 The most recent set of amendments to Pakistan’s rape laws have been introduced by the Rape Act, 2016.106 Apart from the modifications to Section 376 of PPC mentioned above,107 the act provided norms for the resolution of rape cases within six months, protection of the identity of rape victims, penalties for disclosures of personal information of rape victims, mandatory medical test and extraction of DNA within twenty-four hours of receipt of information of such an offence.108 The current law regarding rape, even after the approval of abovementioned bill, suffers greatly from major shortcomings, notwithstanding visible changes brought in the overall legislation. The main issue is that the definition of the crime of rape in the Pakistan Penal Code is still gender biased, where it seems that only women can be raped. This leaves out of view the whole issue of same-sex rape. Cases of boys and young adult men who suffer rape are regulated under Section 377.109

102Rashida Patel v Federation of Pakistan, PLD 1989 Federal Shariat court 95. 103Id. 104Id. 105Id. 106Hassan Belal Zaidi, Anti-honour killing, anti-rape bills finally passed, The Dawn, 7 Oct 2016, https://www.dawn.com/news/1288569. 107Supra note 98. 108Abira Ashfaq, What you need to know about Pakistan's new Anti-Rape Bill, The Dawn, 5 Mar 2015, https://www.dawn.com/news/1167324. 109Section 377 of the Pakistan Penal Code covers unnatural acts. It is suggested that specific norms should be inserted to cover homosexual rape of minors, due to the grievous nature of the act. For domestic rape see infra, Chapter VIII. 112 Pakistan Law Review [Vol: IX

Although the negative repercussions in their lives may be less visible, they are not less serious than those faced by women. Another key flaw is the implementation of the laws and delay in disposal of justice in courts, as cases are not always speedily decided.110 Written laws are of not sufficient as long as their proper implementation is not guaranteed to the general public asking for justice.

VII. IN PAKISTAN

In Pakistani society, the belief is sometimes found that rape charges are fabricated. This stems from misogynistic views, often espoused even by state officials. One such example can be of former President of Pakistan, General Pervez Musharraf’s interview to in 2005, post the Mukhtaran Mai tragedy.111 General Musharraf was quoted as having said: ‘If you want to go abroad and get a visa for Canada or citizenship and be a millionaire, get yourself raped’; if these were his real words, this clearly showed how he viewed rape victims deciding to go to court.112 He openly blamed women for bringing false accusations,113 although he considered to be a liberal and pro-women leader, as he favoured the partial repeal of the Hudood Ordinance 1979.

However, anti-rape victim mindset has been a part of Pakistan’s culture long before Musharraf, and religious injunctions on modesty may have played their role in its development. Islam teaches women to cover

110Beelam Ramzan, Justice Denied, The News International, 23 January 2018, https://www.thenews.com.pk/print/271765-justice-denied. 111Mukhtaran Mai had been raped by four men in Muzaffargarh district in Southern Punjab, Pakistan on June 22, 2002. This was done on orders of ‘Jirga’ (village elders) as Mukhtaran Mai's brother Abdul Shakoor had been accused of having an illicit affair with a girl named Salma who belonged to the tribe of rapists. Farooq Tirmizi, Mukhtaran Mai: A story of extraordinary courage, The Express Tribune, 22 April 2011, https://tribune.com.pk/story/154316/mukhtaran-mai-a-story-of-extra ordinary-courage/. 112Maham Javaid, Pakistan’s history of rape impunity, Al-Jazeera America, 28 Jan 2016, http://america.aljazeera.com/opinions/2016/1/pakistans-history-of-rape-imp unity.html. 113Id. 2018] The Plight of a Rape Survivor 113

their bodies and behave modestly, for instance in Quranic verses 33:59,114 24:31115 and 33:55116, but it is not without instructions for men, who are advised to control their desires and feelings as well. For instance verse 24:30 of the Quran tells men to lower their gaze.117 However, as Pakistani society is markedly male-dominant, in interpreting the above mentioned verses, more stress has been laid on the women’s obligations to be careful and cautious rather than on those directing men to behave with appropriate restraint. These religious and cultural aspects have led to the development of the current prevalent societal structure and mindset, where the entire burden to ‘save’ oneself from sexual violence is on females. As a result of this, many still consider rape victims as being responsible for their fate, because it is assumed that they failed to comply with religious and societal injunctions on modesty. A general overview of the main preconceived notions that seem to affect the key agents involved in rape incidents is necessary at this point. While discussing the history of international jurisprudence on rape, Abegunde wrote that historically, the law of rape was mainly focused on the protection of female virginity.118 During those times, the complaints of non- virgins were usually ignored.119 It won’t be entirely incorrect to say that Pakistan’s courts are still functioning on this pattern. When a complaint is brought to court, judges and lawyers are highly concerned about the virginity of alleged victims, although in the recent case Sabir Hussain v. The State, Honourable Justice Qazi Muhammad Amin Ahmed dismissed as

114‘Tell thy wives and thy daughters and the women of the believers to draw their cloaks close round them (when they go abroad). That will be better, that so they may be recognized and not annoyed’. 115‘And tell the believing women to lower their gaze and be modest, and to display of their adornment only that which is apparent, and to draw their veils over their bosoms, and not to reveal their adornment save to their own husbands or fathers or husbands fathers, or their sons or their husbands' sons, or their brothers or their brothers' sons or sisters sons, or their women, or their slaves, or male attendants who lack vigour, or children who know naught of women's nakedness. And let them not stamp their feet so as to reveal what they hide of their adornment’. 116‘It is no sin for them (thy wives) (to converse freely) with their fathers, or their sons: or their brothers, or their brothers sons, or the sons of their sisters or of their own women, or their slaves. O women! Keep your duty to Allah. Lo! Allah is Witness over all things’ 117‘Tell the believing men to lower their gaze and be modest. That is purer for them. Lo! Allah is Aware of what they do.’ 118Abegunde, supra note 9, at 187-188. 119Id. at 187. 114 Pakistan Law Review [Vol: IX

‘uncharitable’ the attempt made by the defendant’s counsel to use the victim’s previous sexual history as ground to have her testimony rejected.120 This recent decision may still not reflect the overall attitude of the justice system towards this issue. There was a case from the district of Multan (a city in Southern Punjab) in which one of the major factors that led to the grant of bail to the accused was that the alleged victim was a girl of ‘easy virtue’ as her medico-legal report suggested that her vagina could admit ‘two fingers’.121 The reasons behind the grant of bail might have been valid, but the way the two finger test – which is a highly invasive and contentious mechanism in itself - was given so much importance and the labelling of the victim are quite disturbing facts.122 The two finger test is quite invasive and it gives a perception that a married woman cannot be raped or, more generally, that women do not have autonomy over their bodies. The Indian Supreme Court took the absurdity of the two-finger test into account and it was banned in a 2013 judgment.123 The bench comprised of Justices B.S. Chauhan and F.M.I. Khalifulla who wrote: ‘Undoubtedly, the two-finger test and its interpretation violate the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, give rise to presumption of consent.’124 The ruling of the Indian Supreme Court was followed by the Indian government guidelines in 2014, which instructed doctors to display sensitivity while examining rape victims. These steps deserve praise, as they require great courage in a context like India or Pakistan where traditional means of medical examination are still in vogue. Hence, different standards of proving virginity such as the two-finger test should be condemned and courts in Pakistan should follow the example set by the Indian Supreme Court in order to get rid of such practices.125

120Criminal Appeal 434-J LHC (Bahawalpur Bench) 2017 (5 Nov 2018). Reported on LEAP Pakistan, https://www.leappakistan.com/attempted-rape-proved-without- forensic- crutches/. 121Tahir Alias Biloo v. The State, 2010 PCr.Lj 954 Lahore. 122Id. 123Lillu @ Rajesh & Anr vs State of Haryana, (2013) 14 SCC 643. See also Reetu Sharma, 2-Finger Test on Rape Victim and Controversy: All You Need to Know, One India, 1 June 2015, http://www.oneindia.com/feature/2-finger-test-on-rape- victim-controversy-you-need-know-1771253.html. 124Id. 125The OHCHR, UNW and WHO have recently (17 October 2018) issued a joint statement condemning the two-finger test as having no scientific basis and as a violation of the rights of girls and women. ‘Virginity testing’: a human rights violation, with no scientific basis - UN, UN News, 17 October 2018, https://news. un.org/en/story/2018/10/1023401. 2018] The Plight of a Rape Survivor 115

Although fornication and adultery punishable crimes in this country, however rape, an extreme example of sexual violence, ought to be treated distinctly. If a female is forced to have sex against her will, it is a huge violation of her privacy, personal autonomy and physical integrity. The fact that a woman has had sex in her life before the incidence of rape, does not make the rapist lesser guilty or any less responsible for the crime committed. In another case from Mian Channu District (Southern Punjab), the virginity of the alleged victim and the fact that her hymen was not freshly torn were given much importance.126 Although the medico-legal report did not support the allegations brought by her, the way the court took into account the woman’s virginity before anything, appears to reveal underlying bias, whereby the character of a victim becomes very important while dealing with her allegations in sexual assault cases.127 Courts, while trying rape cases, should follow the example of Honourable Justice Qazi Muhammad Amin Ahmed mentioned above,128 and consider the evidence relevant to the circumstances of the case at hand, without going into details of the history and prior life of the victim and the criminal. The word used for rape in Urdu, that is the national language of Pakistan, is ‘Asmat Dari’. ‘Asmat’ is a word that means ‘Chastity’ and it is used to signify terms such as ‘Honour’, ‘Integrity’ etc. ‘Dari’ literally means ‘taking away’. Asmat Dari’s literal meaning is ‘taking away someone’s chastity.’ When used in a larger cultural context, the word ‘Asmat Dari’ would be implied as meaning ‘taking away someone’s honour’. The words themselves seem to imply that women who are not virgins cannot be raped, because having lost their virginity they have also allegedly lost their honour. A basic analysis of the term and a single glance into the meanings of the different words that are joined to make up this term, gives us an idea of the broader themes and issues surrounding the phenomenon of rape. If a woman is being forced into having sex against her will, then how and why can this assault have an impact on her honour? Rapists cannot take away the honour of any woman. One major issue in Pakistan, as in many other regions of the world, is that a woman’s honour and integrity is attached solely with control over her reproductive organs. This mindset also resulted from the findings of primary research done for the purposes of this paper. Not only a woman’s honour is attached to her obedience to societal dictates on female sexuality, but the honour of her entire household depends on it. In Pakistan,

126Noor Samad v The State, 2011 MLD 730 Lahore. 127Id. 128Shahid Hussian v. The State, CA 417-J LHC (Bahawalpur Bench) (2017). 116 Pakistan Law Review [Vol: IX

unfortunately, the tribal system is still prevalent in certain areas and a deeply rooted caste system exists in rural areas and even in some urban areas. These are some of the reasons why old practices of controlling and using women as commodities are still witnessed in Pakistan. The mindset whereby a woman’s sexual behaviour is used to measure the reputation of the family, tribe or society as a whole, is of major concern, as it may foster acts of violence, especially sexual violence, against women. For instance, if a man enters into some kind of a dispute with another man he loses and wants to wreak his vengeance by bringing dishonour to the other, he may be considering molesting the females in the enemy’s house. Apparently, in Pakistani society nothing brings greater dishonour to a family than sexual assault on their women. A woman suffering loss of her virginity, although non-consensual, can bring dishonour to her and her family that would stay for a lifetime. Another important factor is that the victim would be judged as if she had been involved in the crime and would be held at least to be co-responsible if there is slight indication of any kind of familiarity with the culprit. Having identified some general cultural and societal patterns of thought and behaviour regarding rape in Pakistan, certain aspects of rape culture specific to the area of Southern Punjab will be discussed, on the basis of a small-scale first hand research conducted by the author on this particular issue.

VIII. PERCEPTIONS ON RAPE IN SOUTHERN PUNJAB

For the purposes of this paper, a small-scale research on public perceptions regarding rape and rape laws was conducted in the city of Multan in Southern Punjab. The findings from the survey involving two hundred and fifty people showed lack of information and clarity on this sensitive matter.

A. Results and findings from surveys Out of the 250 questionnaires filled, 120 were filled by males and 130 by females. Amongst the females 80 were students between 18 and 25 years of age and the rest were women above the age of 35. The males who 2018] The Plight of a Rape Survivor 117

filled the surveys were mostly from 25 to 40 years old, and there were a few boys and young adults whose age was between 15 and 25 years. Most of the people were from Multan, except a few who belonged to some adjacent areas such as Muzaffargarh, Rajan Pur and other neighbouring districts. Most of the men who were interview had a job, even if they were students, therefore they declared their own income rather than their household income. The male average income was somewhere between 50,000 to 100,000 Rupees. Most of the females were housewives and students and they declared their household incomes which fell somewhere between 80,000 to 200,000 Rupees. All people interviewed had received formal education and their income, either personal or collective as a family, situated them well above the average of Pakistani society.129 The research consisted of a questionnaire with twelve multiple choice questions; ten interviews were also conducted with open ended questions asked to professionals who had greater proximity with rape cases due to their jobs. The answers to the questions have been analysed with reference to the gender of the person who answered, as one of the primary aims of the research was to expose how gender influences perception on sexually related crimes. The first question was about allotting responsibility for rape.130 70 out of 120 males (58%) replied ‘Yes’, 30 (25%) said ‘No’ while there were 20 (17%) who chose the third option. 85 (65%) females said ‘No’, but surprisingly there were 40 (31%) who said ‘Yes’ and 5 (4%) chose the third option.

129The average income of Pakistani households is much lower than that. In 2016 a private financial market analysis firm estimated it to be near 650 USD per year, which meant at that time around 6,000 PKR per month. CEIC, Pakistan Household Income per Capita, 2005-2016, https://www.ceicdata.com/en/indicator/pakistan/ annual-household-income-per-capita. The Pakistan Bureau of Statistics in 2015 estimated the per capita income at 1513 USD per year, which meant around 13,000 PKR per month. It needs to be considered though, that the latter figure was reached by calculating Pakistan’s population at 189 million in 2015, which is clearly underestimated. Shahbaz Rana, Per capita income: A Pakistani now makes $1,513 a year, The Express Tribune, 20 May 2015, https://tribune.com.pk/story/889024/per- capita-income-a-pakistani-now-makes-1513-a-year/. 130Do you think that women should be held equally responsible in rape cases as men? i) Yes. ii) No. iii) I don't know. 118 Pakistan Law Review [Vol: IX

For the second question, which explored the causes of rape,131 85 out of 120 (71%) males chose the second option ‘Women leaving house without a veil’, while 20 (17%) chose the first option ‘Illicit affairs of men and women’, 10 (8%) of them chose the third option ‘Patriarchy’, while the remaining five gave their own reasons similar to the first two options. Out of 130 women 52 (40%) attributed rape to illicit affairs, 47 (36%) chose to ascribe it to lack of veiling, while only 22 (17%) women chose patriarchy as a reason for rape cases. There were eight women (6%) who chose the fourth option and held that internet and media provided now easier access to pornography and saw this as a reason for the increase in incidence of rape. Question number three directly tackled perceptions on gender superiority. 132 It received mixed answers from both genders: 65% of males said ‘Yes’ and 35% said ‘No’. While 60% of women said ‘Yes’ and 32% women said ‘No’ and 8% chose the third option. One interesting factor in the answers to this question was that all married women thought men considered women to be inferior. Female students mostly said ‘No’. This shows that married women who have had to face discrimination had a clearer idea towards the oppressive attitude of men towards women in the area. The fourth question explored the impact of male domination on women’s social and professional lives.133 It was answered by 80% of men in the negative, 10% replied affirmatively and 10% were uncertain. On the female side, 75% answered ‘Yes’ and 20% said ‘No’, with 5% not knowing. This was a question were the type of answer obtained depended almost entirely on the gender of the person who responded. The fifth question134 revealed data about rape incidence in Southern Punjab, and it came as a shock for most of the people who answered the questionnaire. 84% of the males and 90% of the women said ‘No’. This

131In your opinion, what are the factors that lead to the occurrence of incidence of Rape? i) Illicit affairs of men and women. ii) Women leaving house without a veil. iii) Patriarchy. iv) Any other reason. 132Do men in Southern Punjab consider women as being a subordinate gender? i) Yes. ii) No. iii) I don't know. 133Does the mindset of men, considering women as inferior beings and getting jealous of more successful women, make it difficult for women to leave the four walls of their home? i) Yes. ii) No. iii) I don't know. 134Southern Punjab is known to be amongst those areas of Pakistan that have a very high incidence of rape cases. Did you know that already? i) Yes. ii) No. iii) I had an idea. 2018] The Plight of a Rape Survivor 119

result is quite surprising as or other abuse cases are very frequently reported in newspapers. Answers of sixth question135 showed the mistrust by the public in the law enforcement agencies, especially the police. Almost 80% of males attributed the low conviction rate for rape to corruption in the police, 16% blamed it on societal attitudes towards rape victims, while only 5% held the judiciary responsible for it. The majority of women (65%) held the police responsible, 20% the society while 15% pointed out the judiciary as responsible. Question number seven136 again showed a considerable gender spread. While 92% males did not consider Southern Punjab to be more restrictive towards women than the rest of Pakistan, only 65% of the women were of the same opinion. A good one third of women were either sure or had at least a doubt about this being true. The eighth question137 was more legal in nature and therefore difficult for a lay man to understand. 57% of men thought that extra-judicial settlements in rape cases were due to rapists’ stronger socio-economic background. 25% identified the weaker financial position of rape victims as the main factor for extra-court transactions and only 15% perceived the entire legal system as being biased in favour of perpetrators. Only 3% tried giving their own reasons mainly stating that there is no other solution as rape cases are mostly false accusation. The overwhelming majority of women (85%) went for the second option, 12% chose the third option. Only 3% of women chose the first option. Question nine138 was about the resiling of witnesses, in answer to which 78% of men chose to blame it on procedural delays while the

135The conviction rate in rape cases is 1 to 2%. What do you think is the reason behind this? i) Police's Corruption. ii) Delay in disposal of justice by the judges. iii) The victim's family trying to suppress the news because of fear of the society. 136Is there a greater inclination in people from Southern Punjab towards limiting their women to the domestic sphere? i) Yes. ii) No. iii) I don't know. 137Why is that most of rape cases that come to court end up in a compromise (out of court settlement)? i) The entire legal system is working in a way that favours the criminal. ii) The women who are the victims of this cruelty do not have sufficient resources. iii) Criminal come from a stronger socio-economic background. IV) Any other reason 138Why do witnesses (in rape cases) take their statements back?

120 Pakistan Law Review [Vol: IX

remaining 22% saw threats and pressure from the criminals as the main cause of the phenomenon. On the other hand, 88% of women thought that witnesses resile because of threats and intimidations by rapists. Only 12% chose the third option. This is one question that showed a stark difference between the answers of men and those of women. Question number ten139 was about ‘false accusations’ which is a major concern for lawyers and activists working in Southern Punjab. In this question two third of men believed that almost half of the accusations are made up, while almost one-third thought only 30 per cent of allegations were fake. The fourth option was chosen by 5% of male participants, who gave percentages way above 50%. Some of them even said that all rape cases were based on false accusations. Again, here the gender divide came in sharp relief, as 79% of women reckoned that a mere 10% of accusation could be false, while the rest indicated 30% as the most likely figure. The eleventh question required on opinion to be expressed on the appointment of more female officers being likely to bring any potential change in the scenario.140 It was responded in the negative by larger proportions of both genders, 80% of males and 70% of females, while 20% on both sides said ‘Yes’. The last question141 was about DNA tests in rape cases. Almost everyone from both genders said ‘Yes’, (92% of men and 98% of women) and nobody said ‘No’ to its use.

B. Conclusion of Survey Results Interviewing 250 people out of a population of millions of people might not be considered a significant sample, and there is no doubt regarding the fact that the results and findings of this survey cannot be taken as representative of the opinion of the majority of Southern Punjab i) Because of threats from criminals. ii) Because they are false witnesses. iii) Because of too many hearings and delay in decisions. iv) Any other reason. 139What in your opinion could be the ratio of false accusations from the side of women? i) Lesser than even 10%. ii) More than 30%. iii) Almost 50%. iv) Way more than 50%. v) Any other idea 140Would appointing more female police officers bring any positive change? i) Yes. ii) No. iii) I don't know. 141Is using the DNA test as evidence in rape cases the right step? i) Yes. ii) No. iii) I don't know. 2018] The Plight of a Rape Survivor 121

population. However, the results do give us a glimpse of how the educated middle class perceive the crime of rape, their prevalent attitude towards the victim and how criminals, police and courts are looked at by the general public. Here each person represents a different household and it could be argued that each person who was interviewed displayed the general mindset of a household. Southern Punjab has one of the lowest literacy rates in Pakistan. People who were able to read and understand the survey questions, i.e. mainly students - especially medical students and people working for banks and schools - represent a small portion of society in that area. It is important to notice one general trend found in all questionnaires filled, that they seemed confused regarding their own stance. In answering some questions, they were seen taking an anti-victim approach, while in answering other questions, the same people were seen to be going against the police, courts and chose the options in favour of the victims. This is something that was found in every single questionnaire and it probably shows that people do not have an informed opinion regarding this issue. Lack of awareness campaigns and discussion at different platforms could be termed as a reason for this dearth of knowledge and understanding regarding this particular issue amongst the masses. Another objection to the authenticity of the information extracted from the questionnaire could be that people from lower economic class who are amongst the most vulnerable in falling victim to this hideous crime have not been included in the survey. One reason for not including them is that they are way too reluctant to talk about the issue. As these surveys were done personally without representation from any government or non- governmental organization, people specifically from the lower economic class did not seem willing to come forward and express their opinions regarding different issues included in the survey. Notwithstanding all this, this survey still provides the reader with some vital information regarding the mindset and perceptions of people from Southern Punjab towards different issues relevant to this topic.

C. Interviews Some lawyers, police officers and doctors were also interviewed for the purposes of this article. One thing that was common in their answers was their belief that there is an extremely high percentage of false charges of rape brought to 122 Pakistan Law Review [Vol: IX

court because of personal disputes.142 This does not mean that actual cases do not occur in connection with personal disputes. There are cases when actual rape was committed because of a dispute over a petty issue, for instance there was a case from Muzaffargarh district where a married woman was raped because earlier her uncle had asked for her hand in marriage and she had turned down the proposal.143 She was later raped at her uncle’s house while she was married to another man.144 There are also instances where an actual case is painted as being a false allegation by the rapist. The prevailing perception about false accusations is exploited by rapists to get away with their misconduct. There was a case from the city of Bahawalpur in which a cleric raped an eleven year old girl in a mosque and disputed the case against him as false by framing it as an attempt by the girl’s father to avenge a property dispute.145 Madaris (Islamic educational institutions with boarding facilities) are places known for high incidence of offences of this nature,146 as people leave their children in these places at very young age while fully trusting the administration.147 A large number of madaris are functioning in Southern Punjab and there is frequent news of the occurrence of on their premises, although most cases are not brought to court.148 In another case a six year old was raped in a madarassa in Vehari -Southern Punjab.149 Another major reason behind lodging false charges of rape given by the interviewees was that the girl’s family, in cases of their daughter’s romantic elopement, sometimes bring rape charges against the boy involved, to preserve their household honour. This scenario seems to repeat what was mentioned above,150 about the link between household dignity and control of female sexuality. In a case illustrating this, a girl, who was not yet sixteen, was married to a man against her father’s will.151 The father brought a case of rape against the man. The Judge stated that the provisions of

142Interview no 8 from annexure 2. 143Md. Ajmal v State, 2010 YLR 1207 Lahore. 144Id. 145Shahid Nawaz v The State, 2014 YLR 2647 Lahore. 146Id. 147Id. 148Id. 149Id. 150Supra Chapter 7. 151Allah Nawaz v. Station House Officer, Police Station Mahmood Kot District Muzaffargarh PLD 2013 Lahore 243. 2018] The Plight of a Rape Survivor 123

section 375 of the PPC,152 which declare consensual intercourse with a female less than sixteen years of age, to be , were not to be applied strictly if the girl had consented to the marriage so openly.153 Only three persons interviewed acknowledge that there is a high incidence of actual rape cases, not higher than other areas of Pakistan, but still quite high.154 According to them, multiple reasons lead to actual cases not being reported to the concerned authorities: lack of awareness and loopholes in the reporting mechanism; rape cases are very hard to prove, as the level of proof required is still too harsh i.e. there is a very high standard of evidence required to prove the rape charges. Four people155 in their interviews showed great concern over two other forms of sexual violence. One is child abuse156 and the other is incest or rape by very close family members, for instance, maternal and paternal uncles.157. A female lawyer in her interview stated that incest is the most common type of actual rape cases that she had prosecuted during her career as a lawyer in Southern Punjab, and she gave an example as well.158 There was another very disturbing case from Layyah that involved rape of a girl by her own father.159 The judge of Federal Shariat Court said that no girl would

152Section 375 clause 5 of Pakistan Penal Code defines non-forcible sexual intercourse with a girl who is under sixteen years of age as rape. 153Id. 154Interviews no 2,5 and 6 from Annexure 2. 155Interview 4, 6, 7 and 8. 156Child abuse is presently regulated by sections 377A and 377B of PPC, inserted by the Criminal Law (Second Amendment) Act, X of 2016, which provide sanctions for sexual conduct falling short of intercourse, with persons whose age is less than eighteen. 157Intercourse with a minor and incest are at the moment still regulated by sections 375 and 376 of PPC. If the minor is below the age of sixteen, the act will be considered to be rape irrespectively of consent (s. 375(v)). If the minor is between sixteen and eighteen years of age, and there is no consent to sexual intercourse, the act will fall under the category of rape (s. 375(ii)). In both cases the punishment is death or according to section 376(3), which applies to all cases of rape of minors. If the minor is between sixteen and eighteen years of age, and there is consent to sexual intercourse, the act will fall under the categories of ‘adultery’ or ‘fornication’ and will be regulated, respectively, by the Zina Ordinance or by Section 496B of PPC. For the definition of minor See PPC, s. 299(i)(a) and (i). As mentioned above in Chapter 4, for same sex rape the provisions of PPC, s. 377, apply see supra note 109. 158Details can be found in interview 2 of annexure 2. 159Zulfiqar Ali v. The State, 2012 YLR 847 FSC. 124 Pakistan Law Review [Vol: IX

bring such an allegation against her own father without any reason.160 There was concrete evidence in favour of the victim, and these words of the judge showed that courts show sympathy towards the victims in such reprehensible cases of extreme violations of a female’s rights.161 Incidences of incest occur globally and some research has already been done on this topic. A group known as Gebhard’s group from the Institute of Sex Research conducted a study on rape by fathers,162 and found that such criminals, as a group, appeared ‘conservative, moralistic, restrained and religiously devout’.163 We have already discussed that women are considered as the bearer of family’s honour and Southern Punjab is a comparatively less educated and more conservative society than the rest of Pakistan. The characteristics of rapist fathers given by the study mentioned above can be found in the majority of Southern Punjab’s population as well. The Gebhard’s group tried to look into the reasons that led to ordinary men abusing their daughters. They found certain common factors in all of the cases.164 Those were, the state of being too close or ‘propinquity’, the father being alcoholic or in some cases the rapist fathers belonged to such backgrounds where incest was not considered a taboo.165 The rape cases involving fathers arguably fall in the worst category of rape cases as they can have the most devastating effects on the victim. For instance, most of the psychiatric case studies of prostitutes have shown that most of them, apart from those who were forced into this profession, had faced sexual assaults of some sort in their childhood.166 A New York pimp said in his interview that most of the girls he had were raped by fathers or uncles in their childhood.167 This shows us the intensity of mental pain and suffering faced by the victim, when the person who is supposed to play a protective role becomes the abuser. Until a few decades ago, there was an added pressure on victims in cases involving fathers because initially the courts were reluctant in proceeding with the cases.168 In the beginning of the twentieth century, a case was brought to Washington State Supreme Court by a girl named Lullu

160Id. 161Id. 162Brownmiller, supra note 10 at 280-281. 163Id. 164Id. 165Id. 166Id. at 279. 167Id. 168Id. at 281. 2018] The Plight of a Rape Survivor 125

Roller against her father.169 The girl alleged to have been rape and filed a suit for damages.170 The case was dismissed, the judgment stated, ‘The rule of law prohibiting suits between parent and child is based on the interest that society has in preserving harmony in the domestic relations.’171 But now the situation is changing, at least in cases of such great magnitude. As it can be seen from the case from Layyah, quoted above,172 even judges from Pakistan were not ready to believe that a girl could ever bring a false case against her own father. Furthermore, in Southern Punjab most of the cases either end up in extra judicial compromises or the witnesses take their testimony back. Resiling of witnesses and compromise agreements are two very important issues in the context of rape cases in Southern Punjab. Most of the participants in the interviews173 seemed to blame the phenomenon on the fact that, in their opinion, many cases involve false accusations. Whenever cases are not real, courts would keep on prolonging the proceedings, and in the meanwhile, the parties in cases involving ‘love affairs’ may agree to reach a compromise, where the alleged victim and culprit are married to each other. After that, the families decide that there is no point in following the case as it would bring shame to the household. As far as the matter of resiling of witnesses is concerned, this happens when they are not real eye- witnesses, either because they were declared as witnesses by the police, or due to the fact that when parties bring their own witnesses, they are close relatives of the victim and the accused.174 There are usually no eye- witnesses in rape cases as this is something that does not take place at open places in front of public.175 Hence, the main focus of the people belonging to different professions and backgrounds while discussing the resiling of witnesses and compromise agreements was that these two phenomena tend to happen mostly in those cases that are based on false accusations.176 Pointing out that real cases do many times go unreported, three participants mentioned the ‘wadera culture’ or feudal system in Southern Punjab.177 They said that a lot of incidents that came to their knowledge involved rape of a woman from a lower socio-economic background by a

169Lulu Roller v. E. W. Roller, 37 Wash. 242, 79 P. 788 (27 Feb. 1905). 170Brownmiller, supra note 10, at 280-281. 171Id. 172Zulfiqar Ali v. The State, 2012 YLR 847 FSC. 173Annexure 2. 174Interview no 1 and 7, Annexure 2. 175Id. 176Id. 177Interview 5,7 and 9, Annexure 2. 126 Pakistan Law Review [Vol: IX

landlord belonging to a feudal background. These cases are never or rarely reported, because the ‘real victims’ who belonged to modest backgrounds usually avoid coming forward and reporting the crime as this would badly affect their family’s reputation. Interviewee number ten spoke about the prevalence of in Southern Punjab and other areas of Pakistan. This is an underreported crime even in developed countries of the world. A study involving 70,000 college women in U.K showed that every one in eight women had been the victim of acquaintance rape.178 Ninety per cent of the women had not reported the crime to the police.179 Victims of acquaintance rape face additional difficulties in proving the charges.180 The conviction rate in rape cases is quite low worldwide and ‘factors such as uncorroborated testimony, the absence of physical evidence showing resistance or vaginal tears due to the lack of lubrication, evidence of drug or alcohol use, or a prior relationship between the victim and perpetrator make convictions difficult to achieve’.181 The same happens in Pakistan’s police stations and courts as prior relationship is taken as meaning that there was an element of ‘consent’ from both parties. A report mentioned above regarding ‘thana culture’ criticized the state institutions for inappropriate treatment of the victims of sexual assault cases.182 The prevailing public perception about most rape accusations being unfounded, which is reflected in this survey’s interviewees’ opinions, may be one of the main factors contributing to the hostile behaviour of police officers against the victims. In Pakistan, in a lot of areas, panchayats183 are still working as a parallel judicial system. Some religious groups are quite strong as well, but they usually don’t try to intervene in courts’ decisions as opposed to Muslim scholars in Pakistan’s neighbouring country India. Perhaps that is because the courts already take Islamic provisions into account as was seen in the Rashida Patel case mentioned above.184 In India, where the same does not happen, a heated debate started on Islamic legal provisions regarding rape

178VERNON R. WIEHE & ANN RICHARDS, INTIMATE BETRAYAL: UNDERSTANDING AND RESPONDING TO THE TRAUMA OF ACQUAINTANCE RAPE (Thousand Oaks, CA: SAGE Publications) 98-99 (1995). 179Id. 180Id. 181Id. 182Ata-ullah & Ijaz, supra note 66. 183Councils consisting of elders of a particular area. 184Supra note 106. 2018] The Plight of a Rape Survivor 127

after some newspapers featured the story of Imrana’s rape in 2005.185 Imrana, was a 25 years old Muslim girl from Uttar Pardesh.186 She was married to Noor Ilahi with five children, and was raped by her father-in-law Muhammad Ali.187 The panchayat had decided that Noor Ilahi was no longer her husband as, after having been raped by her father-in-law Muhammad Ali, she had become his wife.188 The Dar-ul-Uloom (Council of Islamic Scholars) at Deoband affirmed the decision of panchayat.189 There was a debate on the authenticity and constitutionality of the religious groups that seemed to be working as a parallel judicial system.190 The victim, Imrana, however refused to accept the decision of both the panchayat and religious scholars. She filed a separate case in civil courts.191 This was a very disturbing case as the victim was being asked to marry the culprit. Example of an Indian Muslim would not be out of context while talking about rape culture in Pakistan as both countries have a somewhat similar culture when it comes to gender bias. Examples of decisions by panchayats can be found in Pakistan as well. One such example is Mukhtaran Mai’s case from the area of Jatoi Southern Punjab, who was raped by four men on order of a panchayat.192 This was done because there were allegations that her brother had an illicit affair with a girl who belonged to the family of rapists.193 This shows the importance given to the decisions of panchayats in our culture.194 Another important factor that could be observed in case of Mukhtaran Mai was that she was a widow and that was the main reason that her father and uncle brought her from their house, instead of bringing any of the unmarried girls.195 It is said that they believed that as she was already a widow, her chances of getting married again were quite low. This again highlights the fact that great importance is given to virginity of women in Pakistani

185Barbara Metcalf, Imrana's Rape: Debating Islam and Law in contemporary India, in DEANA HEATH & CHANDANA MATHUR, AND GLOBALIZATION IN SOUTH ASIA AND ITS DIASPORA (London: Routledge) 106-127 (2011). 186Id. 187Id. 188Id. 189Id. 190Id. 191Id. 192Reuters, Pakistan Court acquits Suspects in Mukhtaran Mai's Case, The Dawn, 13 March 2014, https://www.dawn.com/news/622672. 193Id. 194Id. 195Interview no 4, Annexure 2. 128 Pakistan Law Review [Vol: IX

culture.196 Only married woman and unmarried virgin woman are thought of as being worthy of respect in Pakistani society. The need is felt to reconsider the role played by panchayats and the credibility of their decisions. Some of the cases involving a proven false allegation of rape have been mentioned above, together with a discussion on the mindset of people of Southern Punjab. However, it cannot be stated as a fact that majority of the cases are based on false accusations. To state this would be assuming something without sufficient and concrete evidence. A large-scale research is needed to further evidence this claim. Even if this claim were proven to be true, the only thing that it would imply is not that rape is not occurring in Pakistan, but simply that most of the real victims hesitate to come forward and confront the culprit. The inherent bias against the victims in courts and police stations, where often nobody is ready to believe them and the unreasonably high standard of proof required to prove the allegations of rape, in a context where sometimes proper evidence collection or processing infrastructures are not readily available, discourages victims to report and help prosecute cases. Lack of awareness amongst the masses about the relevance of the timing of reporting crimes and the use of DNA evidence is also an issue.

IX. UNSAFE ENVIRONMENT FOR SEXUAL ASSAULT VICTIMS IN POLICE STATIONS

All offences in Pakistan have to be reported to a local Police station close to the place of occurrence by lodging a First Information Report (F.I.R.).197 According to a news report published in 2017, the percentage of female police officers in Pakistan was very law, as women made up less than 2% of the total police force of the country at that time.198 Out of 391,364 police officers across the country, only 5,731 were women according to a report compiled by National Police Bureau (NPB).199 Gilgit-

196Id. 197Make Up Less Than 2pc Of Country’s Police Force: Report, The Dawn, 26 April 2017, https://www.dawn.com/news/1329292. 198Id. 199Id. 2018] The Plight of a Rape Survivor 129

Baltistan had the highest percentage of female staff in their police force i.e. 3.4%.200 The Federal capital of Pakistan, , had 278 females which constituted 2.8% of the total number. Punjab is the province with the highest population and it had a total of 2,804 female police officers that makes up to 1.8% of the total, while Sindh had 1,498 female police officers which is 1.5% of the whole force.201 had 683 women working in a total of 68,106 police officers and this meant a mere 1% of the total police force were women.202 The data given, combined with the examples given above203 of how sexual assault victims are treated at police stations, show that in Pakistan’s male dominated police stations, there is an inherent bias against the victims of rape, which makes it problematic to register and investigate such cases.204Actual victims may not report the crime because of the fear of being judged and mistreated in the police stations during the registration and investigation of their claims. It is an imperative need of the criminal justice system in Pakistan to appoint more female staff in police stations, of all provinces of Pakistan, together with additional training for all police personnel to sensitise them to the needs of victims of rape and sexual abuse in general, thereby enabling meaningful change to the plight of the abused by eliminating all kinds of discrimination and ill treatment faced by sexual assault victims.205

X. CONUNDRUM OF FALSE ALLEGATIONS AND ‘’

The trend of victim blaming was seen in the research carried out in Southern Punjab. The surveys and interviews conducted for the purpose of

200Id. 201Id. 202Id. 203Supra Chapter IV. 204Ata-ullah & Ijaz, supra note 65. 205The closing down of the only women police station in Islamabad is not a good omen, as this may have represented a viable avenue for female victims of sexual assault. Munawer Azeem, Women police station exists in name only, The Dawn, 29 July 2008, https://www.dawn.com/news/313916. 130 Pakistan Law Review [Vol: IX

this paper show that blame, for the occurrence of rape, is thrown on victims due to an underlying socio-cultural perception that the majority of cases are based on false allegations. This leads to victims facing dreadful problems during the process of reporting and investigation. The prevalence of actual instances of rape has already been mentioned in this paper, due to which Pakistan is not considered to be a safe place for women to live in according to surveys and research conducted by different international organizations.206 Statistics showing the high incidence of actual cases have been mentioned and discussed as well.207 Some of the cases involving a proven false allegation of rape have been mentioned above and the mindset of people of Southern Punjab, judged from a small-scale research has been discussed. However, it cannot be stated as a fact that majority of the cases of rape are based on false accusations. Instead, the conflicting opinions from official data and data collected from interviews make it quite clear that turning a blind eye to the plight of rape survivors seems to be common behaviour in Pakistan. Victims are being conveniently termed as ‘liars’ and this perception is one of leading factors giving rise to rape victims’ ordeal, if they decide to seek justice. Hence, there is a need to create awareness about the magnitude of the problem of victim blaming amongst the masses and a further need to find a way to change embedded preconceived notions. There is no denying the fact that false allegations do exist. The main reasons of wrong accusations discovered during primary research have already been discussed in this paper. However, the statistics on rape cases from different organizations show that false allegations can’t be termed as being the ‘prevalent’. In case there is ever a fabricated rape allegation in court that has been proven to be false in light of strong evidence, action can be taken against the accuser by the accused.

206Supra chapter IV. 207Id. 2018] The Plight of a Rape Survivor 131

CONCLUSION AND RECOMMENDATIONS

Different surveys and reports compiled by different human rights organizations have shown that Pakistan is one of the worst countries for women. The statistics mentioned in this essay have shown a high incidence of rape in Pakistan and at the same time very low conviction rate of criminals. Different factors are responsible for the low convictions in rape cases i.e. delay in disposal of justice by the courts, hostile environment for victims in police stations and the concealment of the incident by family of the victim because of the fear of society being a few of those reasons. Most of the people when asked about the rape proceedings, during the research conducted, said that they did not believe in high ratio of actual cases. They said that a large number of people brought cases of rape or sexual assaults that were completely fabricated. The prevalence of false cases is a perception mainly and it cannot be stated as a fact. The allegation of a large number of fake cases in courts cannot be substantiated with the help of concrete evidence based on statistics as no large-scale research has been done regarding this issue in Southern Punjab. In this complex scenario, there is no single factor which can be taken into account while talking about the issue of large number of rape cases. There are multiple lenses through which this problem can be looked at. Whether it is the state’s institutions insufficiency that leads to the low reporting rate from actual victims, or it is the large number of false cases that leads to the inhumane treatment of real victims by state officials are questions that still remain unanswered. Some of the recommendations or policy suggestions regarding Southern Punjab, that have been compiled after taking into account both cultural and legal aspects to the issue involved, are as follows:  The definition of rape should be made gender inclusive.

 Different frameworks for implementation of existing laws especially the anti-rape bill should be established and strengthened.

 Recruitment of more female police officers and availability of more female lawyers might be helpful for those women who come from a conservative background and are hesitant and afraid of communicating their problems with a male. The female police officers should be trained to handle assault victim’s cases with special care keeping in mind the sensitivity of the issue. 132 Pakistan Law Review [Vol: IX

 Awareness campaigns for people of all ages should be held that should try and create awareness, starting from the grass root level. The standard of evidence for proving a rape charges should be properly expounded to the public, including DNA testing and other requirements of evidence in rape cases. Awareness campaigns should guide people on intricacies involved in the procedure for proving a rape charge so that affected parties do not have to face unjust treatment in future.

 A culture of more open and frequent communication within family members should be fostered, encouraging a less restrictive parental approach in children’s upbringing.

 Steps need to be taken to eliminate the victim blaming culture, which is a major hurdle in the way of filing cases by actual victims.

 Efforts to deter the practice of bringing false charges for personal vengeance should be made at every level.

 Where compromises are reached and victims and/or witness resile, courts should be given special powers to investigate the reasons behind it. It could be the pressure from the side of culprit that may lead to such decisions by victim’s family. It is argued that implementation of these recommendations would lead to more effective rape prevention, prosecution and to a lessening of the terrible plight of rape survivors in Pakistan.

2018] The Plight of a Rape Survivor 133

ANNEXURE 1

QUESTIONNAIRE

A questionnaire involving twelve questions in Urdu language was conducted in city of Multan which is considered to be the most developed city in Southern Punjab. Questions about gender, age, profession, monthly income and education of the persons filling the survey were also included but have been omitted here to protect confidentiality. The questionnaire included the following questions: Q1: Do you think that women should be held equally responsible in rape cases as men? i) Yes. ii) No. iii) I don’t know. Q2: In your opinion, what are the factors that lead to the occurrence of incidence of Rape? i) Illicit affairs of men and women. ii) Women leaving house without a veil. iii) Patriarchy. iv) Any other reason Q3: Do men in Southern Punjab consider women as being subordinate gender? i) Yes. ii) No. iii) I don’t know. Q4: Does the mindset of men, considering women as inferior beings and getting jealous of more successful women, makes it difficult for women to leave the four walls of their home? i) Yes. ii) No. iii) I don’t know. Q5: Southern Punjab is known to be amongst those areas of Pakistan that have a very high incidence of rape cases. Did you know that already? i) Yes. ii) No. iii) I had an idea. Q6: The conviction rate in rape cases is 1 to 2%. What do you think is the reason behind this? i) Police’s Corruption. ii) Delay in disposal of justice by the judges. iii) The victim’s family trying to suppress the news because of the fear of the society. Q7: Is there a greater inclination in people from Southern Punjab towards limiting their women to the domestic sphere? i) Yes. ii) No. iii) I don’t know. Q8: Why do most of rape cases that come to court end up in a compromise (out of court settlement)? i) The entire legal system is working in a way that favours the criminal. ii) The women who are the victims of this cruelty do not have sufficient resources. iii) The criminal coming from a strong background. iv) Any other reason. 134 Pakistan Law Review [Vol: IX

Q9: Why do witnesses take their statements back? i) Because of threats from criminals. ii) Because they are false witnesses. iii) Because of too many hearings and delay in decisions. iv) Any other reason. Q10: What in your opinion could be the ratio of false accusations from the side of women? i) Less than 10%. ii) More than 30%. iii) Almost 50%. iv) Way more than 50%. v) Any other idea. Q11: Would appointing more female police officers bring any positive change? i) Yes. ii) No. iii) I don’t know. Q12: Is using the DNA test as evidence in rape cases the right step? i) Yes. ii) No. iii) I don’t know.

2018] The Plight of a Rape Survivor 135

ANNEXURE 2

INTERVIEWS

DISCLAIMER: This annexure contains the transcripts of personal interviews conducted by the author. The opinions and expressions used by the persons interviewed have not been edited to preserve their original contents and tone. The views so expressed are of the persons interviewed alone, and do not reflect those of the author, the Pakistan Center of Legal Research and Publication and its associate institutions. *** All personal data and other information that could lead to the identification of the interviewed persons have been omitted to preserve confidentiality. Interview no 1: Lawyer Date of interview (28th December 2016) Question 1: Why do witnesses back out in rape cases? What are the main reasons behind resiling of witnesses in rape cases? Answer: The first reason is that they are not eye witnesses. The police usually involve them in the case as supposed witnesses (farzi gawahaan). They don’t have any knowledge of the real facts of the case or any concrete evidence that they can bring to courts. That is why they are reluctant to appear in court. When they do appear, sometimes the judge is not present. Some other times the opposing party tries to get the proceedings delayed. Because of all of that, the witnesses have to face financial problems as they leave their work to appear in court. Financial issues can be termed as another major factor leading to the backing out of witnesses. Another major factor that leads to resiling of witnesses is that when the rapist is a ‘habitual criminal’, a person belonging to a known criminal gang, who has a strong backing of criminals from that particular area, it gets difficult for the witnesses to give a statement against him. This happens because the state does not provide any protection to witnesses against the dangers posed to them and their families by such criminals. Another factor is also seen as being a prevalent reason for resiling of witnesses. When the witnesses are coming to court from far off places, the accused’s lawyers take advantage of that and they don’t show up to courts. Judges are therefore forced to keep delaying the proceedings and would keep shifting the hearings to different dates. 136 Pakistan Law Review [Vol: IX

In a lot of cases the witnesses from the side of the victim are paid by the opposing party’s lawyers. They are paid heavy sums of money in deals done between them and accused’s lawyers. This is one of the major reasons leading to resiling of witnesses. Question 2: Why do judges seem inclined towards blaming women in Rape cases? Answer: No, this is not a correct assumption, as judges decide on merit and on the basis of arguments presented by both the parties in light of evidence presented in court. The majority of the cases are based on ‘false allegations’. If there are 100 cases that are registered in court, only 6 or 7 out of these are genuine cases. This leads to dismissal of cases by the judges. When the non- genuine cases are dismissed, it leads the general public to assume that the rape victim has been wronged by the court. A lot of cases brought under the label of rape are actually the cases of adultery or fornication (the word zina was used in the original conversation in Urdu, which covers both typology of illicit consensual sex in the Pakistani legal system) done by consent of both the male and female, which are given the shape of a rape case usually by the girl’s family to avoid public humiliation and to take revenge against the male partner. There is no evidence presented by the alleged victim in such cases; nevertheless the impression to the general public that is usually given by plaintiff’s side, through statements made in the media, is that the court decided against the rape victim. Question 3: Why do most of rape cases end up in compromises or out of court settlements? Answer: The first and the most common reason is that the rape victim’s family is offered money. They are, in most of the cases, in a financially weaker position than the accused’s family, so they end up taking the money. Another major factor would be that people already don’t want to proceed with the case as there is an added pressure of societal attitudes and public humiliation for the rape victim and her family. This leads to the signing of different compromise agreements or raazi nama between the parties. The second reason for prevalence of compromises is the ‘delay tactics’ of the police. The police ask for commission as our system is quite corrupt. This leads to compromise agreements as it gets quite difficult for the victim’s family to carry on with the proceedings of the case. Another major reason for ‘compromises’ and ‘out of court settlements’ is the high ratio of false allegations. In most of elopement cases, the girl’s family initially brings a case of rape against the husband. Everything gets resolved after a while when the parties realize that they are related and have become a family now. This leads to emergence of feelings 2018] The Plight of a Rape Survivor 137

of love and mutual respect amongst both families, the girl’s family who initially in the burst of anger had brought these cases then go for ‘compromise agreements’ and ‘out of court settlement’. This leads to a great prevalence of compromises in rape cases.

Interview no 2: Lawyer (Date of interview 5th January 2017) He said he doesn’t believe in the fact that most cases are of false accusations. He said, ‘It does seem that there is a very high ratio of rape cases in Southern Punjab and it is a matter of great concern. Compromise occurs because the court system and trial system is very complicated. It is easy to accuse someone, but very hard to prove the occurrence of the crime. Even real cases are so difficult to prove. The culprits are not convicted in most of the cases because of the lack of awareness in people in matters such as reporting and FIR of the incident. The people here are mostly not educated and they cannot cope with the amount of evidence required to prove their case. That’s because there are minute details and other complexities involved that should be kept in mind. Reporting should be on time. DNA tests should be done at the right time etc. The eye witnesses were often not present at the crime scene and most of the times are relatives of the parties to the case. The witnesses’ testimony then doesn’t help any of the parties a lot because of that. And in majority of the cases, they take their words back. These are the reasons that lead to this wrong conception that we have a very high ratio of false accusations, when in reality it’s the lack of awareness that causes problems.’ . There was one case from end of 2016 in which ***, father in law of ***, who is wife of *** son of ***, was accused of raping her. These people belonged to *** in city of ***. The person accused of rape was 72 years old and there was a property dispute between him and his son ***. ***wife of the accused *** had testified that her husband was not capable of any kind of sexual activity. Another case was brought by ***’s family against ***. *** and *** got married on ***. The husband was accused of kidnapping his wife by the girl’s family. Three days after the proceedings were files, *** the wife gave her testimony that she was not kidnapped or forced and she went with him with her own will. The decision was yet to come but this case shows how families of girls who marry the person of their choice, try to take revenge by framing false charges against the boys’ partners.

138 Pakistan Law Review [Vol: IX

Interview no 3: Police Officer (Date 2nd January 2017) Question 1: Do you think more female police officers coming into field would improve the situation of rape victims? Answer: Of course, it would make things better for rape victims as mostly women are more comfortable in telling their stories to females rather than males. Nowadays a lot of educated women are taking up jobs in department of police. At least the situation is better than it was 20 years ago. Most of the rape victims don’t approach the police stations as they are afraid of the proceedings, especially women from conservative backgrounds do not want to get exposed to courts and police stations that are considered to be heavily male-dominant territories. Question 2: What is your opinion on high ratio of false allegations? Answer: She replied that in her opinion almost 80% to 90% of rape cases in courts are false allegations. She seemed quite hopeful about the steps that Punjab government is taking for women, especially the establishment of the first ‘Violence against Women Centre’ in Multan. She said it is highly likely that after the establishment of this centre, women who are actual victims might feel encouraged in bringing their cases to police stations and courts through immediately reporting the matter to these centres. Question 3: What flaws in the system lead to an environment of mistrust for police amongst the masses? Answer: She replied ‘women who do come to us, we just make sure that they get proper treatment and protection in police stations, we try to make sure that the court’s decisions are in favour of real victims, as well. In her opinion, if a woman is actually a victim then there are no chances of her not getting justice.’ Question 4: Why is the highest ratio of rape cases in Southern Punjab? Answer: She said she did not have any idea as to why that is the case.

2018] The Plight of a Rape Survivor 139

Interview no 4: Lawyer (Date 7th January 2017) Question: Why is there a high ratio of rape cases in Southern Punjab? Answer: She said ‘most of the cases are based on false accusations.’ At the time of Interview she was dealing with a case where a family lodged an FIR for recovery of their daughter. The daughter had eloped and married a man, she had been living with him and all of this happened with her consent. The police recovered the girl from her husband’s house and she was given in her parent’s custody. Then the girl and her parents brought a rape case against the girl’s husband. In another case handled by ***, a girl was given into marriage by her grandfather and maternal uncle, who were witnesses of the marriage as well. The girl’s father did not agree to the marriage and when he came, he and his daughter filed a rape case against the girl’s husband. In ***’s opinion ‘most of the rape cases that are brought to court involve people who are bringing false accusations against people with whom they have some kind of personal enmity. Women of ‘immoral characters’ are involved who are doing this for money. The genuine cases that are brought to court are very low in number, the real cases are rare.’ Question 2: Why is the reporting of genuine cases so rare? Answer: *** said, ‘There is a stigma attached with the rape victims. The families in genuine cases try to hide the incident as much as possible. The more people would know about the incident and the more rape victim’s identity is exposed to different people, the more embarrassing it gets for the family. ‘In ***’s opinion, in her *** year practice, roughly one out of 100 cases in courts was a real rape case. Question 3: What is the pattern of real cases? Answer: She said ‘The highest ratio of real rape cases from her personal observation were where a minor girl was raped by a close relative. She has had to deal with more than ten such cases where the father had raped his daughter. In most cases of fathers acting as rapist, the family structure was somewhat similar. In most of such households there was no mother, which implies that the wife of the rapist was dead or the couple had been divorced. Fathers in such cases usually lived with two or three daughters. In a recent case *** had dealt with, a woman who had a daughter had died. The daughter was given in custody to her maternal grandparents. When the daughter was ten years old her father, who was married and had children with another woman, came and demanded the custody of his daughter from her maternal relatives. The child was ten years old at that time, and the second wife of the father had started noticing changes in father’s behaviour 140 Pakistan Law Review [Vol: IX

towards his daughter. One day he was alone with the daughter at home and forgot to lock the door. The second wife came home earlier than expected. She saw the man in objectionable position with his daughter. She called her maternal relatives and told them everything. They then filed a case against the father. The child told her lawyers that her father had told her ‘this (sex) is what fathers usually do with their daughters.’ The main factor of concern in rape cases was the ‘consent’ that was in most of the cases initially given by the girl. In certain cases, even the families had consented to sexual assaults on their daughters. For instance, we can take the example of the famous Mukhtaran Mai case where a council of elders (jirga) in the area of Jatoi in Southern Punjab had decided that a girl from Mukhtaran Mai’s household would be given to the men of the rapist’s household for gang rape. Mukhtaran Mai’s father and maternal uncle chose her and brought her as she was already a widow. They did not want the unmarried daughters to get raped, so she was chosen as her chances of getting remarried were already very low.’ Question 4: What is your take on the worsening situation in Southern Punjab? Answer: *** said ‘The situation is not so different from the other parts of the world where women are treated merely as sex objects as well. In most of false rape cases, facts such as whether the girl was too innocent and was fooled into giving her consent are difficult for the court to decipher from the evidence given; judges cannot look into intricacies of the incidents due to the heavy burden of cases on our courts. The girls did not know the repercussions of the whole act of giving their consent and they later brought allegations of rape when the men left them. When there was dissolution of marriage in eloped marriages, the girls sometimes brought allegations of coerced marriages.

Interview no 5: Doctor (Date 10th January 2017) She said: ‘Most of the cases I handled turned out to be false accusations. The real cases were very few and they ended up not going to courts. One major issue was the delayed court proceedings. I was sometimes asked to give chemical examination reports of cases that had been in courts for three years. Cases should be dealt with on time and everything should be done at the earliest. From my personal experience there were some cases of waderas raping their maids or workers, but those did not end up in courts and usually came to our centre only in case of extreme worsening of the 2018] The Plight of a Rape Survivor 141

medical condition of the victim. For instance, when a minor girl of very young age had been raped and due to her age she was physically and mentally in a very bad condition. The wadera culture is hidden from the limelight and it is the root cause of many problems and many assault cases. I used to think that girls are the ones facing detriment but, in many cases the girls accused the guys after a conflict between the two during a relationship. The socio- economic situation plays an important role. If you educate the girls from lower economic class, it is going to change them for the worse only. These girls want easy money. They would do anything for money (prostitution) and then they would sometimes bring a false case for blackmailing the person.’

Interview no 6: Doctor (Date 11th January 2017) Question 1: Southern Punjab is one of those areas that have the highest ratio of rape cases in Pakistan? From your personal experience do you think that these statistics are correct? Answer: Yes, Southern Punjab has the highest ratio, statistics are correct. Question 2: Do most of the cases that come to the forensic department of *** end up getting reported and do they go to courts? Or are real cases rarely proceeded by the parties? Answer: Around only 30 % go to courts. Yes, real cases rarely go to court. Question 3: The police create problems for the victims by favouring the rapists who in most cases come from politically strong backgrounds. Is that true? Answer: Yes, police also create problems. There are political and social reasons behind this phenomenon. Police also do this for the sake of money. Question 4: Is the law and order situation too weak and therefore women are afraid to proceed with the cases? Or is the notion of ‘honour’ so strongly attached with the women that families are reluctant to proceed with the case to avoid defaming of their families? Answer: Might is right, powerful gets everything in this country. There is no implementation of the laws in this country. In real cases, 95% families are reluctant to report the case because of the fear of dishonour and defamation of their families. Question 5: What are the types of cases you are most concerned about? 142 Pakistan Law Review [Vol: IX

Answer: I am highly concerned about the cases of child abuse as I have seen a lot of such cases during my practice as a doctor working in Forensic Medicine Department.

Interview no 7: Police officer (Date: 15th January 2017) He said, ‘It could be said that in Punjab, the Southern Punjab or ‘saraiki belt’ has comparatively higher ratio of rape cases. I don’t know much about the other provinces. Consent is involved in every single case of rape that is registered by the police. In majority of the cases, police may seem to be favouring the rapist rather than showing sympathy to the victim but that’s because these are not real cases.’ He further added ‘there are a very few cases that involve an incidence of forceful treatment by unknown parties. Usually the alleged rapist is familiar with the victim and consent is involved. Southern Punjab has a strong feudal system, Legharis, Mazaris and Peerzadahs still rule that area and whole villages are under their control. People in these areas don’t take their cases to police stations. They ask their elders (people who give decisions in Panchayats that are local councils made at village level for dispute settlement) for permission even if they want to file an initial complaint in a police station. This is the level of control that these feudal have in their areas.’ He said that he did not believe that there are no real cases, but he believed that real cases are too few. *** was of the opinion that for a police officer, occurrence of a real case in his area is the greatest source of embarrassment. He said, ‘Whenever this kind of incident happens in any SHO’s district, after the victim’s family that police officer is the one who is affected by the event in worst possible manner.’ According to ***, it’s not true that police displays harsh treatment towards the victims. He said, ‘I have seen a lot of instances during my tenure as a police officer where whenever there was a real case of ‘gang rape’ or ‘dacoity (robbery) along with rape’, the police officer made sure that the persons committing the crime were killed in custody. It was done by those officers as they believed that the legal framework is not strong enough to get the criminals convicted and punished through courts. He said in case of rape along with dacoity, in many cases, the families did not even report the occurrence of rape. These incidents were never mentioned in the FIRs but police got hint of them during the investigations. He quoted a case where there was an incident of dacoity along with rape, the police caught the four criminals and all four of them were killed by the police. He said, 2018] The Plight of a Rape Survivor 143

‘Sometimes cases that are being highlighted in the media are so unreal that victim’s brothers names are added in the rapists’ gang.’ *** talked about the issue of lack of awareness regarding the meaning of ‘consent’. He said ‘there are cases where girls from lower socio- economic classes are offered jobs by people with wrong intentions. They even offer to marry these girls. Sometimes these girls are sent by their parents with these men and when these men refuse to marry them, rape cases are brought against them.’ He further stated, ‘You cannot blame police for all the evils and stupidity in the society. What can be done by the police to stop such frauds? People need to be more careful in dealing with such people and there should be more awareness amongst the masses. Another reason in ***’s opinion for high ratio of false accusation, in particular, could be that Saraiki people don’t usually kill their women in the name of honour as Punjabis do. Siraiki people are ‘begherat’ (dishonourable). The people from Saraiki belt try to get their wives and daughters back in case of elopement rather than killing them. For them it’s not too unusual if a woman of the house leaves and runs away with another man. What they do in such a situation is that they try to recover the girl and then bring the charges of rape against the other party. This might have led to a large number of false accusations in Southern Punjab. Hence all I can say is that almost all the cases that come to us are usually based on false accusations. Even major cases as Mukhtaraan Mai’s case are based on false allegations’

Interview no 8: Police officer (Date: 15th January 2017) He said, Saraiki people don’t have a strong notion of family’s honour like other areas of Punjab. He meant that Punjabis are more protective towards their daughters and also towards their family’s name. He gave an example of a case where a man came to him and reported that his daughter had been raped. After investigation it was found that the person had sold his property and had taken money with a promise of transferring the property in a time period of eleven months. Now eleven months had passed and he had to hand over the property. So, that man had decided to black mail the new owner of the property by defaming and wrongly accusing him by using his daughter as a tool and keeping his property to himself. *** was of the view that the Saraiki people did not feel any shame in using their daughters’ names in such cases. Real cases are too few amongst those reported by the police, because still there is a lack of awareness that leads to the issue of mistrust 144 Pakistan Law Review [Vol: IX

between the police and the victim. It is not the police that is making the situation difficult for the victim, but it’s the courts that are responsible for worsening of the situation by delaying the proceedings, they do this by giving different dates and delaying the decisions. Because of delay in proceedings, the witnesses back out from their statements. That is why, police asks the claimant to give the name of witnesses themselves which in most cases are very close relatives. Even these people back out from the proceedings after a while, especially if the court is taking too much time in announcement of the final decision. I strongly believe in the prevalence of false accusations’. He kept trying to prove that police is the ‘good guy’ in the whole scenario, as police is always ready to take immediate action. It’s the people bringing false accusations, the strong feudal system and delaying of judgments by the courts that are the real reasons that led Southern Punjab to witness the highest rate of rape cases. He also believed that Mukhtaraan Mai’s case was based on false allegations.

Note on Interviews no 7 and 8: Police officers. They seemed completely unaware of the idea of rape by a close family member. During the discussion it was pointed out to them that there are cases where fathers and brothers were alleged to be the culprits, but they did not believe it to be possible that a father or a brother could ever do this to his own daughter or a sister. They used such cases as the biggest examples to prove the intensity of false accusation cases. Both of them claimed that the only thing that has always come to their rescue as a police officer, especially in terms of proceedings for rape cases, is the DNA evidence. A lot of times when they sent the specimen to the lab, the parties, who knew that the situation was getting out of their hands, decided to go for compromises even before the results of DNA tests. Both of the officers said that they were highly concerned about the child abuse in the area as that is something that doesn’t involve consent as children are not mature enough to know the meaning of consent.

Interview no 9: Journalist Question 1: What is your stance regarding the high ratio of rape cases in Southern Punjab? During your career as a journalist, how many cases have you seen that involved serious violations of victim’s rights, where police and courts were against the victims as well? 2018] The Plight of a Rape Survivor 145

Answer: There is not a high ratio of actual rape cases in Southern Punjab, these are just personal disputes and false accusations etc. People who come from other areas of Pakistan only visit particular places in Southern Punjab that have a high ratio of rape cases, from their short-term observations they assume that we have a high ratio of rape cases here, while it is quite true that the actual cases do not end up in police stations and courts. We have ‘wadera’ culture and most of the cases involving rape of a maid or any other girl from low socio-economic background by a feudal lord don’t end up going to courts. This happens all over Pakistan. It’s just that our area gets more noticed for some reason, while these incidents are common in central Punjab as well. Even Mukhtaraan Mai’s case was not a real case, there was no incidence of rape in that case.

Interview no 10: Psychiatrist Question 1: Southern Punjab is known to be one of those regions of Pakistan that have highest ratio of rape cases. Did you know that already? Answer: The rape is highly underreported crime, in USA 4-5 out of 10 rapes are reported, in Pakistan 1 out of 10 and in Southern Punjab may be less than this. The incidence may be high due to factors mentioned in the answer to Question 4. Question 2: How many rape victims have you seen in your practice as a psychiatrist? Answer: The figure may be in hundreds. Question 3: What was the impact of the incident on the victims? What is the intensity of mental breakdowns or trauma they usually endure? Answer: The victim is shocked, confused, experiences fear, rage and phobia, loses self-esteem, feels humiliated, loses respect in the society, later she may develop Post Traumatic Stress Disorder (PTSD), sexual inadequacy and vaginismus. Some of them may go into depression, associated with guilty feelings and suicidal thoughts. Question 4: What are the factors that lead to the high ration of rape cases in Southern Punjab? What is the mindset of people that would lead to an increase in the ratio of assaults in this particular region? Answer: a) Rape is the act of displacement of aggression and humiliation of the rapists onto the women for the purpose of revenge against other men in this territory. 146 Pakistan Law Review [Vol: IX

b) Women are considered to be the property and vulnerable possession of men. c) Low literacy rate. d) Very limited job opportunities for female e) Lack of awareness about sexual harassment f) No vigilance committees in the institutions and villages where the women work under direct supervision of the men. g) Co-education and co-working without protecting and action taking against acts of sexual harassment. h) Recourse to the legal system is perceived as non -respectable act. The victim is continuously humiliated by the society, the police the lawyers etc. till hearing in the court. I) No rehabilitation programs run by the Government or NGOs J) Very low socio-economic conditions in the rural areas, majority does not have facilities of toilets which compel them to go into the open spaces for urination and defecation and many of the rape case in the rural police stations start from ‘she was assaulted when she was urinating in a crop near her or his house’. This situation makes women most vulnerable to rape. Question 5: What suggestions would you propose for controlling the incidence of sexual assaults in Southern Punjab? Answer: Measures for prevention: a) Mega project for the uplift of rural women. b) Measures to empower poor women. c) Measures to increase literacy rate and occupational trainings for the women. d) Educating women about sexual harassment rules. e) Measures to provide prompt legal assistance for the complainants in harassment cases. f) Make this information, on these rules and the rights, part of awareness orientations of the working ladies. g) The employers must take immediate investigations and take action against the culprits. 2018] The Plight of a Rape Survivor 147

h) Government must work towards the evolution of socially acceptable legal system for the victims. i) Female police stations, female lawyers, female judiciary may be helpful. j) Rehabilitation organizations in govt. and NGOs are necessary. Question 6: Having treated a lot of rape victims in your career as a psychiatrist, do you remember what the most common form of sexual assault was (acquaintance rape, unknown culprit, close relative’s involvement etc.)? Answer: Date rapes, Acquaintance rapes and case of incest were the most common form of sexual assault cases that I have come across. ______

148 Pakistan Law Review [Vol: IX

BIBLIOGRAPHY

PRIMARY SOURCES LEGISLATION Pakistan 1. Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016 2. Defamation (Amendment) Act, 2012 (Punjab) 3. Offence of Qazf Ordinance 1979 4. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 5. Pakistan Penal Code, 1860 6. Protection of Women (Criminal Law Amendment) Act, 2006 7. The Constitution of the Islamic Republic of Pakistan, 1973 United Kindgom 8. Sexual Offences Act 2003

CASES Pakistan 9. Allah Nawaz Vs Station House Officer, Police Station Mahmood Kot District Muzaffargarh, PLD 2013 Lahore 243) 10. Md.Ajmal Vs The State, 2010 YLR 1207 (Lahore) 11. Mst.Hussain Bibi Vs Saleh Muhammad, PLD 1996 Lahore 50 12. Noor Samad Vs The State, 2011 MLD 730 (Lahore) 13. Rashida Patel Vs Federation of Pakistan, PLD 1989 FSC 95 14. Shahid Nawaz Vs The State, 2014 YLR 2647 (Lahore) 15. Tahir Alias Biloo Vs The State, 2010 P.Cr.L.J. 954 (Lahore) 16. Zulfiqar Ali Vs The State, 2012 YLR 847 (FSC) India 17. Lillu alias Rajesh & another v. State of Haryana, (2013) 14 SCC 643

United States

18. Lulu Roller v. E. W. Roller, 37 Wash. 242, 79 P. 788 (27 Feb. 1905)

2018] The Plight of a Rape Survivor 149

SURVEYS A questionnaire prepared by the author was answered by 250 people (130 women and 120 men). The questions asked have been attached as annexure one with this document. The answers were analysed by the author. Ten professionals working in fields related to the topic under consideration in this paper were interviewed by the author between December 2016 and January 2017.

SECONDARY SOURCES

BOOKS

19. Abigail Rine, Phallus/Phallocentrism in RYAN et al., eds., THE ENCYCLOPEDIA OF LITERARY AND CULTURAL THEORY, II (Hoboken, NJ: Wiley Publishers) (2011) 20. AFIYA SHEHRBANO ZIYA, SEX CRIME IN THE ISLAMIC CONTEXT: RAPE, CLASS AND GENDER IN PAKISTAN (Lahore: ASR Publishers) (1994). 21. Angela Debnath, The Bangladesh Genocide: The Plight of Women, in SAMUEL TOTTEN (ED.) THE PLIGHT AND FATE OF WOMEN DURING AND FOLLOWING GENOCIDE (New Brunswick, NJ: Transaction Publishers) 47–66 (2009). 22. Barbara Metcalf, Imrana’s Rape: Debating Islam and Law in contemporary India, in DEANA HEATH & CHANDANA MATHUR, COMMUNALISM AND GLOBALIZATION IN SOUTH ASIA AND ITS DIASPORA (London: Routledge) (2011) 23. CYNTHIA ELLER, THE MYTH OF MATRIARCHAL PREHISTORY: WHY AN INVENTED PAST WON’T GIVE WOMEN A FUTURE (Boston: Beacon Press, 2000). 24. JAYNE MOONEY, GENDER, VIOLENCE AND THE SOCIAL ORDER (London: Palgrave Macmillan) (2000) 25. MARMADUKE PICKTHALL, THE QURAN TRANSLATED (Washington, DC: ICSFP) (2005). 26. MERLIN STONE, WHEN GOD WAS A WOMAN (New York, NY: Harcourt Brace Jovanovich) (1976) 27. MUHAMMAD S. CHAUDHRY, HUMAN RIGHTS IN ISLAM (Lahore: All Pakistan Islamic Education Congress Publications) (1st ed. 1993) 28. RANDY THORNHILL & CRAIG T. PALMER , A NATURAL HISTORY OF RAPE (Cambridge, MA: MIT Press) (2001) 150 Pakistan Law Review [Vol: IX

29. SALLY ENGLE MERRY, GENDER VIOLENCE: A CULTURAL PERSPECTIVE (Hoboken, NJ: Wiley Publications) (2008) 30. SUSAN BROWNMILLER, AGAINST OUR WILL (New York: Open Road Media) (2013) 31. VERNON R. WIEHE & ANN RICHARDS, INTIMATE BETRAYAL: UNDERSTANDING AND RESPONDING TO THE TRAUMA OF ACQUAINTANCE RAPE (Thousand Oaks, CA: SAGE Publications) (1995)

ARTICLES FROM JOURNALS

32. Asifa Quraishi, Her Honour: An Islamic Critique of The Rape Provisions in Pakistan’s ordinance on Zina, 38(3) Islamic Studies 403 (1999) 33. Azman M. Noor, Rape: A Problem of Crime Classification in Islamic Law, 24 Arab Law Quarterly 417 (2010) 34. Babalola Abegunde, Re-examination of Rape and Its Growing Jurisprudence under International Law, 6 J. Pol. & L. 187 (2013) 35. Hina Azam, Rape As A Variant Of Fornication (Zinā) In Islamic Law: An Examination Ofthe Early Legal Reports, 28(2) Journal of Law and Religion 441 (2012-13) 36. Jennifer W. Jay, Imagining Matriarchy: ‘Kingdoms of Women’ in Tang China, 116(2) Journal of the American Oriental Society, 220 (1996) 37. Lisa Sharlach, Rape as Genocide: Bangladesh, the Former Yugoslavia, and Rwanda. (22)1 New Political Science 89 (2000). 38. Muhammad Munir, Is Zina bil-Jabr a Hadd, Tazir Or Syasa Offence?A Re-Appraisal of the Protection of Women Act, 2006 in Pakistan, 14 Yearbook of Islamic and Middle Eastern Law 95 (2008-2009) . 39. Peggy R. Sanday, The Socio-Cultural Context of Rape: A Cross- Cultural Study, 37(4) Journal of Social Issues 5 (1981) 40. William M. Shields & Lea M. Shields, Forcible Rape: An Evolutionary Perspective, 4 Ethology and Sociobiology, 115 (1938)

ARTICLES FROM NEWSPAPERS AND OTHER ONLINE SOURCES

41. Aamir Khan, WAR report 2014: Four women raped every day in Pakistan, The Express Tribune, 2 July 2015, https://tribune.com.pk/story/913772/miserable-figures-rape-a- bigger-problem-than-meets-the-eye/ 2018] The Plight of a Rape Survivor 151

42. Asif Chaudhry, Official data since January 2018: No conviction in 141 child rape cases reported in Lahore so far, The Dawn, 10 August 2018, https://www.dawn.com/news/1426078 43. Aurat Foundation, Violence Against Women in Pakistan, Annual Report 2014, xix, https://www.af.org.pk/PDF/VAW%20Reports %20AND%20PR/VAW%202014.pdf 44. Abira Ashfaq, What you need to know about Pakistan’s new Anti- Rape Bill, The Dawn, 5 Mar 2015, https://www.dawn.com/news/ 1167324 45. Cambridge Dictionary, Rape, https://dictionary.cambridge.org/ dictionary/english/rape 46. CEIC, Pakistan Household Income per Capita, 2005-2016, https://www.ceicdata.com/en/indicator/pakistan/annual-household- income-per-capita 47. Dorothy Q. Thomas, Double Jeopardy Police: Abuse of Women in Pakistan, Human Rights Watch Report, 1992, https://www.hrw. org/reports/1992/pakistan/ 48. European Union Agency for Fundamental Rights (FRA), Violence Against Women: an EU-wide survey (Luxembourg: Publications Office of the European Union) 24 (2014) http://fra.europa.eu/ en/publication/2014/violence-against-women-eu-wide-survey-main- results-report 49. Farooq Tirmizi, Mukhtaran Mai: A story of extraordinary courage, The Express Tribune, 22 April 2011, https://tribune.com.pk/story/ 154316/mukhtaran-mai-a-story-of-extraordinary-courage/ 50. Hassan Belal Zaidi, Anti-honour killing, anti-rape bills finally passed, The Dawn, 7 Oct 2016, https://www.dawn.com/news/ 1288569 51. Human Rights Commission of Pakistan, Rights of the disadvantaged, State of Human Rights, 201 (2014), http://hrcp- web.org/hrcpweb/data/ar14c/5-1%20women%20-%202014.pdf 52. Islamic Research Foundation International (IRFI), What is the punishment for rape in Islam? What happens to the rape victim?, http://www.irfi.org/articles4/articles_5001_6000/what%20is%20the %20punishment%20for%20rape%20in%20islamhtml.htm 53. Jayne Mooney, The prevalence and social distribution of domestic violence: an analysis of theory and method, PhD thesis, Middlesex University (1994) 171. Available from Middlesex University’s Research Repository at http://eprints.mdx.ac.uk/6383/ 54. Lisa Anderson, Afghanistan is most dangerous country for women, Trust Law Poll, Thomson Reuters Foundation News, 15 June 2011, http://news.trust.org//item/?map=trustlaw-poll-afghanistan-is-most- dangerous-country-for-women/ 152 Pakistan Law Review [Vol: IX

55. Maham Javaid, Pakistan’s history of rape impunity, Al-Jazeera America, 28 Jan 2016, http://america.aljazeera.com/opinions/ 2016/1/pakistans-history-of-rape-impunity.html 56. Munawer Azeem, Women police station exists in name only, The Dawn, 29 July 2008, https://www.dawn.com/news/313916 57. PPWB prepared with consultations: Sufi, The Pakistan Observer, 28 February 2016, https://pakobserver.net/ppwb-prepared-with- consultations-sufi/ 58. Violence against women centre opens in Multan, The Nation, 26 March 2017, http://nation.com.pk/national/26-Mar-2017/violence- against-women-centre-opens-in-multan 59. Women Make Up Less Than 2pc Of Country’s Police Force: Report, The Dawn, 26 April 2017, https://www.dawn.com/ news/1329292 60. Najm-ul-Sahr-Ata-ullah, Saroop Ijaz, ‘This Crooked System’: Police Abuse and Reform in Pakistan, Human Rights Watch, 25 Sep 2016, https://www.hrw.org/report/2016/09/25/crooked-system/polic e-abuse-and-reform-pakistan 61. Punjab women protection bill prepared with consultation of society, scholars, The Nation, 28 February 2016, https://nation.com.pk/28- Feb-2016/punjab-women-protection-bill-prepared-with-consultation -of-society-scholars 62. RAINN, Victims of Sexual Violence: Statistics, (2016) based on US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Crime Victimization Survey 2010-2014 (2015), https://www.rainn.org/statistics/victims-sexual-violence 63. Reetu Sharma, 2-Finger Test on Rape Victim and Controversy: All You Need To Know, One India, 1 June 2015, http://www.oneindia. com/feature/2-finger-test-on-rape-victim-controversy-you-need- know-1771253.html 64. Pakistan Court acquits Suspects in Mukhtaran Mai’s Case, The Dawn, 13 March 2014, https://www.dawn.com/news/622672 65. Shahbaz Rana, Per capita income: A Pakistani now makes $1,513 a year, The Express Tribune, 20 May 2015, https://tribune.com.pk/ story/889024/per-capita-income-a-pakistani-now-makes-1513-a- year/ 66. Sher Ali Khalti, 10,000 rape cases reported in three and a half years, The News, 9 September 2017, https://www.thenews.com.pk/ print/230885-10000-rape-cases-reportedin-three-and-a-half-years 67. Vikram Dodd & Helena Bengtsson, Reported rapes in England and Wales double in four years, The Guardian, 13 October 2016, https://www.theguardian.com/society/2016/oct/13/reported-rapes- in-england-and-wales-double-in-five-years