In 2015, a harrowing child sexual abuse scandal surfaced in the town of Kasur near Lahore, and since then there has been no letting in such incidents. While such cases did occur earlier, this particular one rattled civil society and pushed the government into enacting stricter laws against such crimes.
Similarly, the September 2020 incident on the Lahore Motorway wherein a woman was raped in front of her children led to the immediate promulgation of the Anti-Rape (Investigation and Trial) Ordinance 2020 and Criminal Law (Amendment) Ordinance 2020 in December last year. Both laws aim at punishing culprits and providing speedy justice to rape survivors.
While the government promulgated the laws in haste, focusing on punishments ranging from life imprisonment, death penalty or chemical castration, the real issue is the perpetrators’ mental states which want to control a body and gain power over it. Not only women and children but men and transgender persons also fall victim to this heinous crime. This ordinance protects members of all genders.
Rights activists have applauded how the ordinance has expanded the definition of rape, banned the controversial two-finger test (also known as virginity test), clarified that lack of marks of violence on a victim does not mean the act was consensual, and called for the creation of national sex offenders directory. However, they are also critical of the chemical castration clause, concerned over the existing weak investigation and justice systems, and the manner in which inclusion of women at various levels has been disregarded in the composition of various bodies to be set up under the ordinance.
Sidra Humayoun, a rights activist who has worked with rape survivors, explained that rape is a method to gain power over a person, irrespective of age or gender. “The law exists to punish the culprit and provide justice to the victim, but the real problem is still untouched – the mindset of the perpetrator. The government needs to run extensive campaigns on media and other platforms to educate people regarding laws, punishments and how the act impacts a person’s life,” she asserted.
With regards to the administrative setups laid out in the ordinance, high court advocate Sahar Bandial said there are some loopholes needing clarification. “No indication has been given on how the administrative structure will be put in place; while rape crises centers are to be set up in government hospitals not all hospitals are equipped to handle medico-legal issues. And what about the rural areas? It also does not provide a mechanism on how a rape survivor in a rural area will be connected with a rape crisis cell in an urban hospital. Moreover, courts for trials of gender violence cases already exist so it is unclear if these special courts will work separately or be merged,” she wondered.
Perhaps the most controversial aspect of the new law is the chemical castration clause. Lawyers and human rights activists are against it as they believe castration is not the solution to the problem at hand. Nida Aly, executive director of the Asma Jahangir Legal Aid Cell, shared, “Chemical castration is in contravention to our international obligations. Most importantly, it’s an inhumane practice that violates the dignity of a person and is degrading. In a legal system which is not foolproof and known to make wrong convictions, such extreme punishments cannot be accepted. The punishment was obviously not well thought-out and digresses from the main issue of improving the application of the law to increase the conviction rates in violence against women cases.”
The existing Criminal Law (Amendment) (Offense of Rape) Act 2016 lays down fast-track judicial mechanisms (three-month trials), provision of DNA testing, protecting the survivor’s privacy, custodial rape, special courts to deal with gender-based violence (GBV )and setting up of a model GBV bench in the Lahore High Court.
The Women’s Action Forum has condemned both recent ordinances for undermining provincial legislatures, provincial autonomy under the 18th Constitutional Amendment and democracy in the country. Advocate high court Khadija Ali said the ordinance is not a strong piece of legislation. “However, banning the two finger test is a good step, but other than that it appears to be a repetition of the 2016 Criminal Law Amendment,” she emphasised.
The ordinance also stipulates that cases should be decided within four months but the question is can the police under existing conditions investigate and present credible evidence in that time.
According to Sohail Akhtar Sukhera, spokesperson for the Punjab Police, they will train officials and start implementing the clauses in their investigations immediately once the ordinance becomes law.