Daily Times

There is an argument that is advanced by many propounders of the ‘Ostrich theory’. It is argued that social and legal issues that are classified as taboo are best left to the ostrich to deal with, as raising them will lead to anarchy in society.

Incestual rape is one such issue. Incest is defined as a sexual relationship between persons who are related to each other within the prohibited degree, by reason of blood or affinity. Incestual relationships are forbidden not only in Islam but also in Judaism, Christianity, Hinduism, etc, and are illegal in most countries; however, there is a varied specification of what constitutes prohibited degree relationships.

Rape is an offence that is back on our Penal statute, courtesy of the Women’s Protection Bill, 2006. It carries the punishment of a mandatory minimum of ten years, which can extend to 25 years or the death penalty. But unfortunately, no separate offence of incestual rape or rape by a person who is in a position of duty, protection or care towards the victim, such as a guardian, educator, trainer, health provider, public official or other, has yet been promulgated. Worse, there is no provision for sexual assault or molestation in the law. In 2002, the Law and Justice Commission of Pakistan recommended an amendment in the Pakistan Penal Code by including a section 354-B, which would cover all cases of abuse and acts of molestation with a sexual motive; it was never implemented. Deliberations also took place to delete Article 151(4) of the Qanoon-e-Shahadat Order 1984, which relates to the cross-examination of the moral character of the victim in rape/attempted rape cases by impeaching her credit; the suggestion was discarded. However, in 2009 the Federal Shariat Court (FSC) rose to the challenge and declared it repugnant to the Quran and Sunnah, being “discriminatory on the basis of sex and violates Article 25(2) of the Constitution as it purports to impeach the credit of a woman, and above all it negates the concept of ‘gender equality’ as enshrined in the Holy Quran.” The FSC also declared that even assuming if the victim of rape was of easy virtue or a prostitute, a man who raped her could neither be exonerated of his crime nor would the rape cease to be rape as “Islam makes no distinction whether the subject of crime was of generally immoral character or not.”

We live in a society in which prosecuting rape is one of the most difficult things owing to the stigma and procedural hurdles involved and when the case pertains to incest, it becomes virtually impossible. Cultural and personal biases, feelings of shame, fear and ridicule, all contribute to a victim’s reluctance to step forward; most suffer in agony their entire life. If by some miracle the victim decides to lodge an FIR, the time between the occurrence and the reporting affects the case negatively, as not all cases are lodged promptly. The courts generally require the complainant to explain adequately any such delay. There is a need to do away with this customary approach in cases of sexual violence and no adverse inference should be drawn from such as victims of sexual violence take days, months, if not years sometimes to garner enough strength to report the crime not only in Pakistan but in the west too.

Another challenging part is the evidence. In a high percentage of cases, all forensic evidence is lost, sometimes due to ignorance, at others because of unavailability of properly trained doctors and sometimes the delay in getting to a hospital becomes a factor. The biases that accompany such crimes are rampant in Pakistan. The untrained and uniformed medico-legal officers make personal judgements and place a great deal of weight on physical injuries and sexual history. The honourable Supreme Court (SC) has consistently ruled that no marks of violence are necessary to establish the factum of rape, and convictions can be made on the solitary statement of the victim alone, if confidence-inspiring. In judgements handed down by the Federal Shariat Court (FSC), offenders have been convicted for committing incestual rape. In one particular case, the FSC held that, “Learned Sessions Judge has erred in throwing out the testimony” of the victim “with a general observation that her solitary statement could not be accepted so as to connect the respondent with the heinous crime alleged against him. It was his duty to evaluate carefully the intrinsic worth of her testimony, keeping it uppermost in his mind that it was the daughter who was alleging commission of Zina-bil-Jabr by her father with her. Why a daughter would implicate her own father in a crime of utmost degradation of character, in the absence of compelling evidence, or strong motive to falsely implicate him, was a consideration which was glossed over by the trial Court, while rejecting the testimony.” In another case, it was observed: “It is true that cases of this nature in which father is involved for raping his daughter are quite rare in this country. However, the crime of incest is not non-existent in our society and the present case is one of those shocking and unfortunate cases which came up before a Court of law for adjudication,” and that even in cases where no threats of life were given to the victim, “the very position of command, supervision, sustenance, shelter and protection, which the father possessed as against his teenage daughter constituted sufficient compulsion that resistance or abstinence cannot be expected. The helpless girl as such was subjected to Jabr as otherwise she would not have on her own offered herself for satisfaction of the lust of the culprit, father.” Sadly, females have been victimised by brothers, uncles and even grandfathers, in cases of incestual rape and molestation, which usually span over months and years.

There is a dire need to introduce, as a rule, special measures for vulnerable victims in courts. The victims are exposed to the perpetrators in open courts and have to testify whilst facing them directly and in their presence. Special rules of evidence for children and vulnerable victims, like video evidence, special screens and mandatory in-camera proceedings will ensure that the quality of evidence is not diminished due to fear and anxiety. The Presiding Officers should ensure that victims are not harassed during cross-examination and inappropriate language is not used. Although the National Judicial Policy directs completion of criminal trials in one year, many factors hinder this process. Repeated adjournments in sexual abuse cases place an extraordinary amount of pressure, psychological, physical, emotional and financial, on the victim, who is subjected, repeatedly, to an environment of fear and hostility. The longer the trial takes, the more the chances that quality of evidence will diminish. In order to address these issues effectively, judges, taken from within the existing pool, should be trained and then deputed to hear cases of sexual violence in courtrooms that are preferably separate from mainstream criminal ones.

Burying one’s head in the sand does not make an issue go away. Sexual violence and incestual rape is one such issue. What actually might make it go away, at least to some extent, is learning to recognise signs of sexual abuse, rock solid legislation, an effective investigation and prosecution system. But most of all, it is learning to admit and confront that incestual rape and sexual abuse does exist and sometimes, unfortunately, the people whom one loves and trusts are the very beings who violate the sanctity of relationships. Be an ostrich and bury your head in the sand but, reportedly, even the ostrich has refused to subscribe to the centuries old, unfounded theory.

The writer is an advocate of the High Court