Jailing the Raped in Pakistan

By Frank Richardson

Published on February 22, 2015

Where women are seen as evil temptresses, the crime of rape is likely to be fudged. Such fudging confers on men the opportunity to rape with impunity. It also means that raped women are likely to be charged with adultery, or with fornication and alleging a false crime where they cannot provide proof of rape and, thus, legitimises the abuse and exploitation of women. Such injustice is far more likely in a system where there is often no presumption of innocence; trials are unfair and frequently delayed; discrimination on the bases of sex, religion, ethnicity and social status is rampant; and punishment is disproportionate.

Presumption of female culpability

Sura Nur (Chapter: The Light) Verse 31 of the Qur’an makes it clear women are expected to keep their allure hidden: “And say to the faithful women to lower their gazes, and to guard their private parts, and not to display their beauty except what is apparent of it, and to extend their headcoverings (khimars) to cover their bosoms (jaybs), and not to display their beauty except to their husbands, or their fathers, or their husband’s fathers, or their sons, or their husband’s sons, or their brothers, or their brothers’ sons, or their sisters’ sons, or their womenfolk, or what their right hands rule (slaves), or the followers from the men who do not feel sexual desire, or the small children to whom the nakedness of women is not apparent.”

Grand Mufti Sheikh Abdulaziz bin Abdullah al-Sheikh, Saudi Arabia’s highest religious authority, goes even further and was quoted as saying that women appearing without their veils in the presence of men “cause the doors of evil to open.” Accordingly, in conservative Islamic societies, women who do not cover themselves are seen as inviting molestation by men who cannot be expected to control their lust. In this way, the victim of rape becomes the guilty party and the virtue of men becomes dependent on female submission to the isolationism of the home and the veil or burqa. This is despite the fact that the Hadiths assert that a woman should not be punished for having been coerced into having sex. Where Surat An-Nisa’, Verse 34 of the Qur’an is interpreted as meaning women must be obedient and devoted to their husband, rather than to Allah, this submission can so easily lead to oppression by males, as opposed to encouraging men to fulfil their duty to protect and provide in ways that uphold the rights and dignity of women and confirm the equality of genders, as specified in the Qur’an. It is for this reason that some female Muslims recognise that appearing pitiful and helpless means that they are their own worst enemies, and that, instead, they should stand up for their rights or, at the very least, refuse to curry favour with men by condemning women who assert their rights.

Hudood Ordinances

In 1979, then President Zia ul-Haq, as part of his attempt to ‘Islamicise’ Pakistan, enacted the ‘Hudood Ordinances’. These are similar to Shari’a laws that have existed in Saudi Arabia, Iran and Sudan for centuries. In 2003, a special committee on the Hudood Ordinance constituted by National Commission for the Status of Women (NCSW) stated that 88 per cent of the women prisoners in Pakistan were in jail as a result of ambiguities in the Zina (Unlawful Sexual Intercourse) Ordinance. Some had even been sentenced to stoning to death for adultery after having been raped on multiple occasions, while the male perpetrator got off scot-free. Another pretext for the charge of adultery was the seeking of a divorce. However, few women were ever tried and convicted; but merely languished in jail, sometimes for years.

In fact, at the time it was estimated that Pakistan’s 89 prisons contained 1,700 women prisoners (many with their children in tow), of whom just 10% were convicted, with no real case existing against the remainder. Often charges had been trumped-up by parents and vengeful husbands who might otherwise – until the passing, in 2010, of the Acid Control and Acid Crime Prevention Act – see the mutilation of their wife’s face (facial acid attacks or severing the ears and nose and knocking out teeth) as their only other option. The Acid Control and Acid Crime Prevention Act now provides that perpetrators receive 14 years to life imprisonment, or fines of up to 1 million rupees for their crimes. Further, bail was frequently not granted and, where it was, it was often unaffordable to the person detained. There were also major problems in concluding cases, as judges and witnesses might fail to show up for hearings, lawyers would adopt delaying tactics and the police were unable to transport prisoners to court.

Criminalising the raped

There was also great risk attached to alleging rape under the Hudood Ordinance, as rape victims had to produce four male eye-witnesses of the act of penetration. This, of course, was pretty much impossible, as for four men to witness the act, they would have had to have been not only cowardly bystanders or complicit in the rape, but voyeurs too. They would certainly not be willing witnesses and failure to produce the necessary witnesses risked the victim being charged with adultery – for which the maximum punishment was stoning to death for married people and 100 lashes for the unwed – or fornication and alleging a false crime, for which the penalties were stoning, lashings or prison.

The situation often did not improve much when the rape victim was released from jail, as the unapprehended rapist/s could rape the victim again with impunity, the legal costs were probably crippling, and such great shame is attached to being raped, that even the victim’s own family may be anything but supportive, employment and housing may be impossible to obtain and cruel gossip incessant.

Fewer rape victims falsely accused seen as progress

In 2006, Pakistan’s National Assembly passed the Protection of Women Act (PWA), which, while not repealing the Hudood Ordinances, restored the offence of rape to the Penal Code, thus separating zina (extra-marital sex under Shari’a law,) from zina-bil-jabr (rape under secular law) and abolished the need for four male witnesses. The effect has been to significantly reduce false accusations against rape victims and the number of women being imprisoned for alleged zina. Additionally, the PWA repealed the punishment of whipping; but inhumane sentences such as amputation and death by stoning remain on the statute books.

Victimising the underprivileged

According to a report in October, 2011, by The International Crisis Group and titled “ Reforming Pakistan’s Prison System, the penal system is “brutal, opaque and unaccountable,” and was seen in “the context of a deteriorating criminal justice sector that fails to prevent or prosecute crime, and protects the powerful while victimising the underprivileged.” This is despite Pakistan’s ratification of the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in June 2010.

In 2011, there were over 900 women prisoners in Pakistan’s prisons across the country and, because the female prison population was low, overcrowding was not an issue, unlike in men’s prisons, although living conditions and medical facilities for both were very poor. Indeed, a report produced by the UN Office on Drugs and Crime (UNODC) on nine prisons across the country, found unhygienic conditions in most, with as many as 60 prisoners per wash-room in some of the larger prisons. Just one prison provided safe drinking water and water-borne diseases were found in the others. While children often lived with their mothers in prison, no prison surveyed had childcare facilities or provision for children’s education and recreation. Furthermore, the women had little or no access to obstetric or gynaecological health care, and no basic education or vocational training was provided. Sexual abuse and violence has also been reported against women in prison.

However, some reports indicate that improvements have been made in other prisons. In Adiala Prison, for example, the women’s section has its own kitchen, with hobs to cook meals. Skill-development classes are available, the children have a small classroom of their own and teachers, psychologists, anthropologists and lawyers provide support. Nevertheless, the women inmates in Adiala Prison are reported to have suffered from tuberculosis and other life-threatening health conditions.

Raping with impunity

It is somewhat ironical that progress in not prosecuting women that have been raped is being lauded, rather than the prosecution of the perpetrators. The fact is that in Pakistan, prosecuting rapists is still fraught with difficulty, particularly where the victim is Christian. Because alleged rapists are generally acquitted, rape is often not reported, yet in 2010, 2,903 women were brave enough to come forward with allegations of having been raped.

In April, 2011, Pakistan’s Supreme Court freed five men accused of the notorious gang-rape of Pakistan’s internationally acclaimed Muktaharan Mai, under orders from a village council in 2002, after her teenage brother was accused of committing adultery with the daughter of a rival clan, with whom he had been seen walking. The acquittal is seen as a serious setback for women’s rights.

In another case, police in Punjab refused to arrest Muslims accused of causing, in March, 2012, the miscarriage of twin girls by beating their mother and of kidnapping, drugging and gang-raping the mother’s 13-year-old Christian niece. According to a retired police inspector, the police are protecting Irfan Safdar, one of the alleged rapists, because of his father’s influence. Simultaneously, with police help, the accused are pressing the family for a “reconciliation agreement,” under which the charges would be dropped.

The Author

Frank Richardson trained as a lawyer, founded OpenTrial and writes for the International Bar Association’s ‘Global Insight’ as well as other publications.

Article picture: Pixabay


Law & Philosophy