PAKISTAN ranked 150th out of 153 in the Women, Peace and Security Index. Around 27 per cent of women in Pakistan experience intimate partner or domestic violence in their lifetime and only 51 per cent perceive themselves to be safe in their communities.
These depressing figures are despite the existence of a raft of strong legislation focused on women’s rights that has come into force over the past decade.
It was only in 2006, through the Protection of Women Act, that Pakistani laws finally separated rape and adultery. The new laws defined rape as a man having “sexual intercourse with a woman against her will or without her consent”. This includes sexual intercourse with a person with a physical or mental disability, or with a person under 16 years of age, irrespective of consent. However, the Act does not include “object rape” – vaginal or anal penetration with an object – or oral sex. It also excludes the possibility of male rape as an offence, which will continue to be dealt with as an unnatural offence under the penal code.
The Act does not restrict the offence of rape to sex outside marriage, which legally makes marital rape an offence. However, no case of marital rape has yet been brought before the courts, so we do not know what position the judiciary would take on such an offence.
Another key passage of legislation was the Protection Against Harassment of Women at the Workplace Act in 2010. Harassment is rampant in Pakistan, and since the law was enacted many more cases have been reported to the authorities. But harassment cases are slow to resolve, and only time will tell if it has led to a change of the popular mindset. Despite the law, the attitude of the police, lawyers and judges, as well as general public, towards harassment is apathetic at best.
Pakistan is a patriarchal society. It has internalised misogyny to such an extent that incidents of acid throwing by jilted lovers, or angry predators whose advances are rejected, continue to permanently disfigure women, often leading to a painful death.
To deal with this problem, in 2011 the government enacted the Acid Control and Acid Crime Prevention Act. Although perpetrators of such crimes can be punished for anywhere from 14 years to life imprisonment, there are no provisions for financial compensation for lifelong care and rehabilitation of victims. Nor are there any limitations on the sale of acids, which are freely available from retail outlets.
After years of advocacy, the Prevention of Anti-Women Practices Act 2011 was passed to protect women’s right to inherit property and to prohibit forced marriages, including to settle disputes. It prohibits ‘marriage to Quran’, which culturally bars women from marrying, thereby forcing them into lifelong loneliness merely to deny their rights to marry by choice or inherit property. It also protects the right of a woman to dissolve her marriage should her husband falsely accuse her of adultery.
Although Pakistan has a high incidence of domestic violence, the Domestic Violence (Prevention and Protection) Act was only passed in 2012. The Act prohibits violence in private spaces and mandates a quick resolution of cases within 90 days. Unfortunately, regressive political parties like Jamiat Ulema-e Islam and advisory bodies like the Council of Islamic Ideology continue to argue that these laws are un-Islamic and will make men insecure.
While the Anti-Honour Killing Act 2016 declared murders in the name of family honour a criminal offence and set a tougher penalty than for other instances of murder, the law has failed to prevent such crimes. Nonetheless, the new laws do prevent murderers who are the legal heirs of victims from ‘self-forgiveness’ for an honour killing.
But a legal loophole still enables legal heirs to pardon the murderer if they are sentenced to capital punishment, though such arrangements are at the discretion of the courts. This means, for example, that the father of a victim could pardon the husband who killed her, leading to a lesser sentence. The Pakistani state continues to fail the victims by not prosecuting the murders as the legal heir of its citizens in such cases.
Another step in the right direction has been the Anti-Rape Act of 2016, which provides legal aid to victims and prohibits the disclosure of their identity. Importantly, it also mandates that the police register a First Information Report (FIR) in the presence of a female police officer, as well as conduct a DNA test with the consent of the complainant as a matter of urgency.
All these laws are valuable, yet police officials lack appropriate training, knowledge, resources and attitudes to collect evidence, conduct medical examinations and make a sound case for prosecution. They remain reluctant even to register an FIR and in many instances register such cases as an unnatural offence rather than rape, hindering any chances of convicting perpetrators.
As a result, victims’ families are often forced to settle the matter with the perpetrators. In extreme cases, when doubts are raised by the police about the veracity of the rape claim or even assertions that it was a consensual sexual relationship, families face social stigma and are forced to flee their homes for fear of social exclusion.
Despite changes in the law, lawyers continue to bring into question the sexual history of victims. Often the verdicts of judges, especially in the lower courts, are reflective of prevailing cultural norms and biases against women. The victim’s past becomes a key factor in a reduced sentence or no punishment at all for perpetrators. This remains a major reason why Pakistani women so often do not report rape, withdraw their complaint, or fail to secure a conviction.
Finally, it is unfortunate that the most recent of this raft of laws, the Alternate Dispute Resolution Bill 2016, has allowed informal and traditional ‘courts’ to settle 23 types of civil and criminal disputes. These courts are run by tribal and community elders primarily in rural areas. The disputes include matters such as the dissolution of marriage and payment of maintenance, personal injury, and various disputes over property settlement.
Civil society organisations and human rights activists are of the view that these traditional courts have historically been detrimental to women’s rights in Pakistan. Their legitimisation without any safeguards will undermine many of the gains made in recent years – yet another example of how the country’s justice system has done little to end violence against women in Pakistan.
By Dr Tahmina Rashid, an Associate Professor of International Studies, Faculty of Arts & Design, University of Canberra Australia. Originally published on PolicyForum.net.