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THE PLIGHT of a RAPE SURVIVOR an Analysis of Different Anthropological and Legal Aspects on the Prevalence of Rape, Particularly in Southern Punjab - Pakistan

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THE PLIGHT of a RAPE SURVIVOR an Analysis of Different Anthropological and Legal Aspects on the Prevalence of Rape, Particularly in Southern Punjab - Pakistan THE PLIGHT OF A RAPE SURVIVOR An analysis of different anthropological and legal aspects on the prevalence of rape, particularly in Southern Punjab - Pakistan. 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 Pakistan Penal Code’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 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. 6Id. 7FRA – European Union Agency for Fundamental Rights, Violence Against Women: an EU-wide survey, (Luxembourg: Publications Office of the European 98 Pakistan Law Review [Vol: IX 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. HISTORY OF RAPE 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.
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