|
|
|
|
 |
 |
|
|
Editorial special
report system Test
case change Who
will watch the watchdog? Access
to police
So if the
yardstick is the intensity of brutality of an incident, then the case of
rape of a five year old girl in Lahore should elicit the kind of response
that we expect on the issue of rape in general and on this case in
particular. Or is it the amount of media coverage and whether it manages to
sustain it over a longer stretch of time than usual that gets the desired
reponse? A week after the incident,
the next question to ask is: is the response of the law enforcement agencies
of the state and the media indeed “petering off inconclusively”, as one
of the contributors to today’s Special Report suggests. Somehow, the skepticism is
widely shared. Also, the anger does not appear to be translating into a
movement of any kind. The skepticism grows at seeing how a powerful movement
built up against rape on the streets in the neighbouring India, leading to
the punishment of the perpetrators within nine months. The particularity of this
case remains important while we try to look at the inadequacies of the legal
framework for rape in general. The discussion on the role of media, on the
other hand, stems out of this case because the deficiencies are too recent.
The reason why we have discussed the two together is to bring home the point
that perhaps we don’t need sensationalism of this kind to lead us to a
more effective legal framework. But these are not the only
two issues. The debate is wider and more complex. One, such an incident
happening in one of the bigger cities draws more media attention,
highlighting the anonymity and alienation of urbanisation that leads to
crimes like rape. But what about the rural areas where only the power
dynamics work, and rape remains unreported and consequently unpunished. The
decisions of the panchayats and tribal jirgas pitched against the victims
may not have formed a part of our Special Report but they remain important
points for discussion and solution. Both in urban and rural
areas of Pakistan, the sense remains that if at all the convictions come,
they do so in the case rapists from the lower strata of society. The
moneyed, powerful upper class perpetrators shall never be convicted is the
underlying message. What we make of this case
in the weeks and months to come will largely determine how serious we are in
dealing with the issue. If brutality of this kind does not move us to action
as state and society, God knows what will.
Darinday.
Bhairiyay. Hawas ka shikar. Nanhi Kali. Shehzadi. Qaum ki Beti. As these
words were intoned over and over again on the television with reference to
the gang rape of a five year old child in Lahore on September 13, in India
the highly publicised trial of the December-16 gang rape and murder of a 23
year old woman had also reached its conclusion with the award of death
penalty for all but one perpetrators. It was a strange
experience. On one hand, we saw the starting-up of outrage that insisted, in
its tone and tenor, that this incident was exceptional, perpetrated by
lustful inhuman deviants, and that presented summary justice as
simultaneously a sufficient and impossible conclusion to the ‘case’. On
the other, many voices in India were making arguments against the
‘maximum’ punishment of death for rape and the assumption that
punishment is enough to do justice to the systematic and pervasive violence,
humiliation, physical control, and denial of use of public space that women
face. The media narrative here
said: if the culprits are apprehended and punished in this case, where there
could have been no question of the raped individual ‘inviting’ the
attack and therefore muddying the waters of moral purity, there would be
some hope that justice can be done. The way the media openly exhibited
outrage, desperation and misplaced identification with the child also said:
we are all waiting for justice, and there is no hope that justice can be
done. Furthermore, it implied
that short of summary justice there is nothing much to be done about sexual
violence. So while a particular child has become the focus of a media
campaign that is petering off inconclusively, and of protests that never
tried to become movements, the underlying message seems to be: there is very
little to do here besides punishing criminals, and punishing criminals and
enforcing the law is something our society is never going to do. Sexual violence of
exceptional cruelty should not be in need of the euphemistic, aggressive and
sensationalised language that it provokes. I cannot be the only one
who winced through the frequent updates by hospital staff of the girl’s
condition that told us nothing useful or relevant, the VIP visits to the
hospital, the interviews by emotional female reports of the girls’ family
and hunt for the criminals. As I write this, the
incident is still being discussed in the language of nauseating and
aggressive melodrama, and, further, has assumed aspects of a crime mystery
which is already losing its grip on the audiences. Meanwhile, more learned
debates in the op-eds have partly turned to debating the pros and cons of
the death penalty for rape, no doubt influenced by recent discussions in
India on the same subject, and here on lifting the moratorium on executing
death sentences. There is enough evidence
to show that it is the surety not the severity of punishment that deters
criminals insofar as deterrence leads to a decline in sexual crime. But the
case always does need to be made, and this is a good direction for
discussion to take. What is missing, I think,
is a discussion that needs to happen now and, alongside the demand for
successful trial and conviction with reasonable sentences in cases of sexual
violence, to revisit the question of women and children in a male-dominated
public space. And these are two different questions, not one question, which
emphasise on the assaulted child’s gender has elided. The protection that
children should receive from family and society would, in the case of women,
count as protectionism, and the outcry against sexual violence should not
take on, as it often does, the hues of the protection of virtuous women who
have done nothing wrong. But the one thing that the
raped woman in Delhi and the raped girl in Lahore have in common is that
they were out in the street — the woman after a cinema trip, the child out
playing. They were unnecessarily so, as we would say here. The response to sexual
violence often takes the form of withdrawing women and children of means
further from visibility, and leaving in the streets those who cannot afford
to buy private space for entertainment or private transport security to keep
them mobile. (There is room here to debate the merits of Shilpa Phadke’s
suggestion that “for women the best long term strategy to enhance claims
to public space is to embrace risk and pleasure while accepting violence as
something that must be negotiated in doing so”.) One of the things to do, I
think, is fight to keep the debate about the right to safe use of public
space without conceding ground on equal use of it for work or pleasure. And
without having to apologise for pleasure. And this will surely not happen if
‘we’ continue to worry about the safety of only ‘our own women’ and
‘our own children’.
Talk to a police
officer about rape cases and one is likely to get a somewhat standard reply.
He would say most of these cases are fabricated and registered intentionally
to settle a score with the opponents. So widespread is this
perception that the police sees every rape victim with suspicion and the
burden of proof lies on the victim. She has to establish it during different
stages of investigation and prosecution that she is not trying to implicate
an innocent person in the case. The situation at the
courts is also not encouraging. Ideally, rape cases should be decided within
a period of six months to a year but, unfortunately, it takes the courts 5
to 10 years on average to reach a conclusion. “This is too long a time
to keep the hope alive in a rape victim,” says Karachi-based advocate
Faisal Siddiqi. “It becomes a challenge to keep the victim alive.” He tells TNS that odds are
always against the rape victims who normally belong to the lowest strata of
society. In many cases, victims’ socio-economic status is no match to the
rapists who are capable enough to hire competent lawyers and benefit from
the inherent flaws in the criminal justice system. This “relative
weakness” of the victim, he says, is the decisive factor in most trials,
which ultimately favour the relatively affluent accused. Another disadvantage for
rape victims is that access to courts is through lawyers. “And not many
lawyers are ready to stand by the side of poor victims for long,” says
Siddiqi. “There are organisations
which offer free legal assistance to rape victims. But it has been observed
over time that they eventually lose interest as these cases take ages to
reach a conclusion. It is also impossible for rape victims to hire lawyers
who fight their cases for free,” he adds. The provisions in law of
evidence to verify the antecedents and history of complainants are also
manipulated widely to their detriment. Section 151 (4) of the Law of
Evidence 1984 — Impeaching the Credit of Witness — states: “When a man
is prosecuted for rape or an attempt to ravish, it may be shown that the
prosecutrix was of generally immoral character.” “It is very easy to
tarnish the image of women through fake witnesses,” says Asif Nadeem, a
Lahore-based criminal law practitioner who has found it extremely hard to
try rapists in courts due to various reasons. For example, he tells TNS,
“It is next to impossible to get a person convicted without producing two
witnesses in addition to circumstantial evidence. Even when there are
witnesses, it is very hard to keep them in the loop over extraordinarily
long periods of time.” Citing proceedings of some
cases, he says the courts accepted the plea of defense of the accused who
could produce witnesses, saying they were with them at the time of committal
of rape. His point is that there was circumstantial evidence on the contrary
but more weightage was given to the personal testimony of the witnesses. In another case, the
difference in the timing of a rape, as determined through DNA test, and
registration of the FIR favoured the accused. Though the delay could have
been due to the inherent glitches in the system and certain logistical
issues, the ambiguity gave benefit of doubt to the accused. The easiest of the rape
cases he has handled was the one in which the rapists were apprehended
red-handed and there were several eye witnesses. Asif suggests there should
be laws to try a culprit even if the victim is a prostitute and the sexual
act is done without her permission. Mere confirmation via medico-legal test
that a woman is sexually active must not make her vulnerable to rape
assaults, he adds. Pakistani medico legal officers still prescribe to old
and unscientific methods to determine the character of a complainant. As Faisal Siddiqi puts it,
he has seen his clients collapse psychologically and treated for years for
what they have to undergo at courts. Cross examination of the victims,
conducted by defense lawyers, is extremely embarrassing. Siddiqi says it is
unfortunate that courts allow lawyers to ask shameful questions, which put
victims in a highly embarrassing situation. Sometimes, they even recreate
the rape scene and want the victims to explain the acts of the rapists. “What makes matters even worse is male chauvinism rampant in society and among investigators, lawyers, judges, etc,” says Siddiqi, adding, “In another case, the judge, though he convicted the accused, stated that the victim had tried to trap people charged with abetting the crime. As it was proved the poor girl was actually raped, it would have been better had the court not blamed her for conspiring against anybody,” he says.
DNA
(Deoxyribonucleic Acid) of a human being can be used to discover identities
of individuals in different situations, including in incidents of crime. It
can be obtained from biological specimens, such as blood, seminal fluid,
saliva and dead skin cells left at the crime scene. Over the years,
investigators are excessively using this test to track down culprits for
crimes, including rape. In Pakistan, there is a
debate on the admissibility or not of DNA test results as primary evidence
in rape trials. The controversy got deeper when the Council of Islamic
Ideology (CII) undermined DNA test’s evidentiary importance in courts a
couple of months ago. Fortunately, the body has decided to reconsider its
stance. Objections are made on the
ground that though DNA tests may establish the identity of the accused, they
cannot prove whether the act was consensual or not. The ambiguity increases,
especially when the rape is done on gunpoint or under any other threat, and
there are no injuries or proofs of use or force. Advocate Salman Akram Raja
rejects these grounds, saying “nothing can undermine the importance of DNA
tests in rape cases. The SC has issued clear orders in this regard and the
investigators have to resort to it under the law.” However, he says,
that’s another thing that there are many issues related to conduction of
DNA tests and the handling of results. Faisal Siddiqi, a lawyer
who has handled several rape cases, believes that “in theory, DNA evidence
is very effective but there are strong chances of its manipulation. The fact
that these tests are conducted under the supervision of police makes the
whole thing doubtful,” he adds. Another missing link here
is that there is no major DNA database of hardened criminals and convicts
who are prone to repeat criminal acts they have been punished for. Once
it’s there, DNA samples collected from a crime scene can be matched with
it to identify the culprits. A deputy superintendent of
police (DSP) serving in Punjab says, though DNA samples of rape victims are
collected at the time of medico-legal examination of the victim, they are
not sufficient to secure a conviction in courts. In fact, he says, it is
merely a means for the police to ascertain whether the suspect was present
on the scene of crime or not. It also establishes whether the assault was
made by the person even if he was present there at that time. These tests
have often come to the rescue of many suspects who were wrongly indicted in
rape cases. On how convictions are
secured, the DSP says the police arrange two (fake) witnesses in addition to
having sufficient corroborative evidence in the form of DNA test results,
etc, to support the victim’s testimony. Though this is not an
ideal arrangement, he says, they have no other way to get justice for the
victims. If they don’t produce witnesses, the rapists would get freed. — Shahzada Irfan Ahmed
Medico Legal
Certificate (MLC) has a vital role in the investigation of a rape case. It
involves proper physical and psychological examination of a rape victim at
the earliest in a nearby officially designated centre. “There are strict
parameters of this certification which are available in writing. MLC
examination is mostly required in heinous crimes, including murder, rape,
and accident,” says Dr Naseeb R. Awan, founder professor of Forensic
Medicine Department in Pakistan. “However, these centres lack facilities
and training and there are allegations of corruption,” he adds. Awan observes that 90 per
cent of the MLCs are not accurately prepared, primarily because of lack of
trained medico-legal officers and apparatus. “There are four main parts of
this investigation, which include having a proper examination clinic;
implements of the rules and method; collection of samples; and their
preservation and dispatch to the chemical examination laboratories.” Office of the Surgeon
Medico Legal, Punjab — the first in Pakistan — was created in 1961. In
1970, on dismemberment of one unit, its name was changed to “Surgeon
Medico Legal, Punjab”. In November 2002, a three-tier system of
Medico-legal/Postmortem examination was introduced in the entire province. However, in a province
like Sindh, where rape is also a major crime according to statistics, there
are no trained medico-legal officers to medically investigate a rape case. According to a research
conducted by ActionAid, a non-government organisation, a couple of years
ago, medico-legal officers had not taken extensive pre- or in-service
training on gender sensitisation; on understanding violence against women
and had only studied medical jurisprudence. At many places, female
MLOs are not available. At the tehsil hospitals and rural health centres,
separate examination rooms for females are not available and a common room
is used, whereas at some places the doctors’ and MLOs’ rooms are used
for examination. In district hospitals
though, separate examination rooms are available, ensuring privacy of the
victim. At tehsil and rural levels, there are neither record rooms nor
proper security measures. Also, the services are not available round the
clock to detect and record the evidences quickly. ActionAid study further
suggests that the centres should have a rape kit, containing all the
equipment required to conduct a thorough rape examination. Basic forensic
equipment must be provided for chemical analysis. It recommends that women
should be made aware about their rights, including importance of ML
examination in case of violence. Dr Naseeb R. Awan
maintains that delay is the biggest problem in this medical investigation. According to the rules, in
rape cases it is vital to examine both the victim and the accused to
medically investigate whether the male was aggressive or the female but here
in Pakistan we never focus on this issue because rape now is generally
considered only aggression of a male. An examination of both can
prove whether it was by force or by consent. He says delay in medical
investigation usually leads to compromises. “The forensic department
is set up in every private and public sector college but proper training is
not imparted to the doctors there,” says Dr Awan, adding, “Every doctor
cannot conduct medico-legal examination because he or she is not trained for
that. An untrained doctor can destroy the evidence by not applying the right
techniques.” He urges the government to
pay serious attention to this issue. vaqargillani@gmail.com
The December 16,
2012 gang rape and murder case in Delhi was not the first mass movement
against rape in India. We have seen such moments earlier. When Mathura, a minor
tribal girl raped by policemen, did not receive justice, public outcry led
to legal reform in 1983. This made sure the victim no longer had to prove
that the sexual act was non-consensual. As long as the act was proved, the
burden of proving that it was consensual moved to the accused. Even today, however, the
old problem persists, but to a lesser degree. Police investigation lays too
much emphasis on forensic and medical evidence, thus, again putting the onus
on the victim to prove that her rape charge is not a lie. Again, in Rajasthan in
1992, came the case of a government-employed women’s development worker,
Bhanwari Devi. Part of her job was to prevent child marriage, which resulted
in five men raping her. The movement around her case ended with the Supreme
Court laying down the Vishakha Guidelines to prevent sexual harassment at
the workplace. In both cases, the victims
did not get justice and, in fact, faced much greater humiliation in asking
for justice. I met Bhanwari Devi in 2007. She asked me, “Such a huge
public movement for me and I still did not get justice?” The December 16, 2012 case
— by now rape law had evolved enough to make naming a rape victim without
consent illegal — marks a difference from the two cases above. This time,
the victim got justice and that too in nine months. The public movement
resulted in more reform in rape law, increasing the minimum punishment to 20
years and provisioning for death penalty for repeat offenders. Realising
that rape is only an extremity of sexual harassment, the criminal reform has
extended to giving harsher punishments for stalking, voyeurism, and acid
attacks. The legal reform this time
came without judicial intervention and as a result of an excellent report
prepared by a committee led by Justice (retd) Verma. He passed away a few
months later. Some of the provisions of his report were deemed too
progressive for the Indian government and parliament to accept. Most importantly, the
Justice Verma Committee Report emphasised that rape should be de-linked by
both society and state from the ideas of honour and shame. Rape needs to be
treated as just an assault on the body and on women’s right to bodily
autonomy. Another difference was
that everybody who indulged in victim blaming was taken to the cleaners by
the media. When the son of the president of India said that rape happened
because women applied make-up, he was humiliated on every news channel. This
was not the only positive role of the media, which catalysed the protests in
the first place by playing up the story. When the government asked
the media vans to leave India Gate so that the protesters could be cleared
out without a public broadcast of the lathi charge, the channels refused and
their vehicles received water canon treatment. The media has been
criticised by some as hyping up one case at the cost of others, but the
December 16 case came to symbolise the struggle against rape for everyone,
not just in India but across the world. Noted American feminist, Eve Ensler,
came to Delhi and said she wished the US could see historic protests like
the one in Delhi. The number of rape cases
reported in Delhi has gone up by more than double, because public pressure
has emboldened women to not be silenced. At the same time, public pressure
has shamed the Delhi police enough. They don’t tell victims to
‘compromise’ instead of registering an FIR. Women’s rights activists
say that more than laws, it is the process of prosecution that needs
changes. Some of that is already happening. More fast track courts are
coming up and trial court judges are less careful in granting bail to a rape
accused. A protective curtain makes sure that rape victims don’t have to
see the accused and be intimidated by him. Such small steps are big, because
they make sure victims who have the courage to seek justice are not further
victimised. In some states, there is
still the practice of the “two-finger test” to determine if the woman is
sexually active, and if she is then it becomes harder for her to prove rape.
Such regressive victim-blaming practices of the male-dominated judicial
process are gradually on their way out. Last week, I called up
prominent women’s rights activist, Flavia Agnes, to ask what had changed.
“You journalists like to hear nothing has changed. Then what have we
activists been doing for decades?” The writer is a journalist based in Delhi.
In the past one
week or so, viewers have repeatedly seen blurred images of a five-year old
girl being flashed across televisions screens along with sad song played in
the background and clichéd phrases describing her misery. By reporting the way it
did, the media has violated one of the very essential and basic ethics of
reporting a rape case, i.e., not revealing the identity of the person
against whom the crime of rape has been committed. Blurring the face of the
young girl is a redundant act since her entire family was shown and
interviewed multiple times by news channels. Rana Jawad, bureau chief
of Geo News, says “Rape is not just physical abuse but social and mental
trauma as well. It is important to ensure that the girl can be rehabilitated
in our society.” Protecting the identity of
the five-year old was even more vital since she was not aware or conscious
about the nature of the crime that had been committed against her. While an
adult in her place could present her view coherently, she was unable to do
so. “In such cases, it is
even more problematic to expose victims to scrutiny before investigating
properly,” says Mazhar Abbas, former secretary general of the Pakistan
Federal Union of Journalists. “The five year old cannot give a statement.
Her family needs to be approached first and asked if they consent to the
media bringing up the child’s issue. Arriving at the scene and asking for
comments from the family is not the way to gain consent.” Tasneem Ahmer, director of
Uks Resource Centre, which has carried out extensive work on media ethics
and women, points out the harm. “They put the person through a media
trial. Due to certain misconceptions and a lack of understanding while
trying to sympathise with the survivor of the crime, they victimise her by
unwittingly using phrases that imply that her life has now ended. In the
case of the five-year old, who is largely unaware of the nature of the crime
that has taken place, it is more important to pay attention to this kind of
language.” Lack of quality reporting
on sensitive issues and the media’s disregard for ethical guidelines has
been discussed consistently by these very media houses themselves. Yet no
change seems to have been implemented. The question is why? Adnan Rehmat, who is
working on media related issues in Pakistan, calls it “a spectacular
failure of editorial policy. Editors should have controlled information,
such as the name of the
girl and her mohalla.
The news editor has this discretion.” Another important problem
he highlights is that “following any code of ethics is not mandatory,
thus, the media houses and institutions need to develop and implement one
internally because often, in crime reporting, the lines are blurred between
the media and the justice system.” Ahmer believes media
insensitivity is due to the absence of training received by the reporters.
Jawad seconds this saying, “Reporters are free to say whatever they
want. The human resource is not fully sensitised as most people are being
trained on the job.” When it comes to reporting crimes, such as rape,
“reporters don’t know what to say, how to initiate discussion, and the
flow of information is so fast that they don’t focus on their choice of
words or language at times.” However, he also links it
to the editorial policy, “The reporter is working under multiple
pressures. He has to get extra information on the scene and then they also
worry about ratings. The editorial manager should control the content.” Rehmat adds, “the race
for ratings becomes an incentive to break the codes and ethics.” Despite all this, the
media is not entirely wrong when it calls out for justice, albeit
emotionally. Protecting and promoting public interest is the media’s job
and investigating the circumstances that lead to a crime cannot be
incongruent to public interest. The sensationalism that
the media indulges in, however, is in direct contrast with this watch dog
role. Mazhar Abbas clearly states that one way in which the media can carry
out its job and still remain within an ethical code is that “it should
carry out follow-ups, focus on the accused, and sections of the FIR that may
later be used to weaken the case. Then they can follow the trial and public
statements that are released to it.” Rehmat says it is even
more important for the media “to take position on issues and discuss the
scale of the horrendous crime that has taken place.” Here, he cites the
example of the recent rape cases in India — Delhi and Mumbai. “They
changed laws, their justice system, and initiated a discussion. The
media’s job is to contextualise information, they don’t need to
pontificate.” Intelligent investigation
of the crime is the key here. Abbas talks about “highlighting the grey
areas in the investigation when reporting.” Thus, when there is no new information the media keeps the issue alive through hyperbole and rhetoric. Perhaps the media can look at neighbouring India, where the social structures are similar. There, the media has helped spark a discussion on rape that goes beyond getting the minimum basic right.
With extra
security arrangements and a fortress-like building, a Pakistani police
station is perhaps the last place a common man, especially a woman, would
like to go to. “Our police stations
have become a symbol of terror rather than hope,” says Justice (retd)
Zahid Hussain Bukhari. “One requires a huge effort to lodge the First
Information Report (FIR), especially against a heinous crime, including
rape,” he adds. That a poor man thinks
twice before entering a police station to report a crime and even if his
complaint is registered the investigation will not move without any approach
or bribe, is a common perception. Many rape cases are not
decided according to the law because of the ‘attitude’ of the police
during investigations. He says police investigators need special training to
investigate heinous crimes like rape and violence against women. “We also
need special laws to control crime against minors, especially their rape,
molestation and sexual assaults.” Bukhari says, mostly, only
those rape cases are proven fabricated or exaggerated which are based on
enmity or to settle a score in families. “Rape complaints of unmarried or
minors mostly prove true because families cannot afford to put their
reputation at stake by levelling false complaints.” He says medical
investigations of rape cases have serious lacuna and are not done on a
scientific basis. Delay in starting investigations is the biggest issue.
Delay is a tactical tool in wasting the evidence and forcing the victim
family to enter into a compromise. Delay in lodging an FIR, delay in
collecting evidence, delay in sending the sample to the chemical examiner,
delay in compiling the final report, delay in getting statements of the
accused parties and so on. This is mostly manipulated to destroy medical
evidences, which are the backbone of a rape case. A senior police official
says rules are there, defining the lines of investigations, but they are not
fully implemented. He says that in a rape
case of a minor, provinces need new legislation because rape with a minor is
not a separate offence yet. Hesitance of families due
to cultural norms, including considering a girl or a woman as a symbol of
honour, is also a challenge while pursuing the rape cases. In many
incidents, where a woman is kidnapped and raped, the latter crime is not
mentioned. This further emboldens the
culprits who mange to manipulate the investigation. In a recent incident on
September 12, police raided a place in Lahore to arrest Muhammad Usman, a
resident of Sahiwal, who was allegedly involved in eight cases of kidnapping
for ransom and then raping minor girls. He was killed in an encounter. The
accused had allegedly abducted minor girls aging 10 to 12 in various cities
of Punjab — including Lahore, Okara, Sahiwal, Kasur, Sheikhupura, and
Pakpattan — called for ransom and then raped them. “We need to improve
investigation methods and train police investigators for fair probe in these
cases,” says Mahboob Ahmad Khan, who heads the fact-finding missions of
Human Rights Commission of Pakistan. — Waqar Gillani vaqargillani@gmail.com
|
|
