Discrimination under the Hudood Ordinances
Under the Hudood ordinances, proof of rape for the maximum (Hadd) punishments of stoning to death or 100 lashes in a public place requires the testimony of four male Muslim witnesses to the act of penetration. The testimony of a woman—not only the victim but any woman—carries no legal weight for this maximum punishment. This requirement means that women who have been sentenced to the maximum punishments, deemed cruel and inhuman under international law, have been so sentenced under a law that prevents them from testifying on their own behalf. Men have also been cruelly sentenced under these laws, although in general men accused of rape are effectively exempted from the maximum Hadd punishments, because women can neither testify nor is any person likely to be able to produce four male Muslim witnesses to the act of penetration. Although no Hadd sentences have been carried out to date, nothing impedes the state from carrying them out in the future. Human Rights Watch recommends that these laws be repealed and that all other obstacles to a woman's right to testify equally with a man in a court of law be removed.
The majority of rape and adultery or fornication cases attract the lesser (Tazir) punishments, which entail public flogging, rigorous imprisonment, and fines. While the testimony of women is admissible at this level, Pakistanicourts still exhibit a bias against women. The courts tend to see women as complicit in sexual offenses, despite a lack of evidence or evidence to the contrary, and require from female rape victims extraordinarily conclusive proof that the alleged intercourse was forced.23 Moreover, many women who alleged but were unable to prove rape have themselves been charged with adultery or fornication for consensual sex, although a failure to prove rape does not prove that consensual sex occurred.24 Since the Hudood Ordinances were promulgated in 1979, many rape victims no longer attempt to prosecute their rapists for fear of prosecution themselves. Such was the case of five women in Larkana who were gang-raped in January 1994 and revoked their allegations when they were threatened with prosecution under the Hudood Ordinances. In another case from 1991, eighteen-year-old Majeeda Mujid was abducted by several men and raped repeatedly by her abductors over a two-month period, until they finally turned her over to the police. Although she complained that she had been raped, the police charged her with illicit sex, imprisoned her pending trial, and let the men go free.
In some cases, when medical evidence has been introduced in support of a rape charge in which forcible intercourse cannot be proved, men have also been charged with adultery or fornication. However, medical evidence implicating accused males often cannot be obtained, so they are frequently released for lack of evidence while their women victims are imprisonedpending trial based on their own allegations of forcible intercourse. For example, in 1983, an eighteen-year-old blind woman, Safia Bibi, became pregnant allegedly as a result of rape. Her pregnancy was cited by the prosecution as proof that she had engaged in extra-marital sex, and her assailant was acquitted due to "want of evidence." In response to national and international protests, Safia Bibi was acquitted on appeal. In 1983, fifteen-year-old Jehan Mina became pregnant after allegedly being raped by her uncle and his son. When she filed the complaint with the police, she was charged with fornication. In sentencing her, the court stated that "the basis of conviction is her unexplained pregnancy coupled with the fact that she is not a married girl."25
The discriminatory provisions of the Hudood laws are exacerbated by their discriminatory application by the police and judiciary. According to several Pakistani legal aid attorneys who represent indigent women charged with Hudood offenses, the vast majority of Hudood cases (most of which are registered by the woman's husband or father) are not supported by the evidence and should not have been prosecuted. In many cases, women are wrongfully prosecuted for Hudood offenses because they refuse to marry men chosen by their families, decide to leave home or marry men against their parents' will, or seek to separate from or divorce abusive husbands. Norwal,26 a twelve-year-old girl whom we interviewed at the Kot Lakhpat prison in Lahore in October 1992, was charged with zina (adultery) after eloping with her cousin.
In part, judges hear ill-founded Hudood cases because they, like the police, are eager to show that they are tough on crime. But, wrongful prosecution of women also reflects a tendency on the part of the police and judiciary to see women as guilty until proven innocent. In effect, the Hudood laws have given legal sanction to biased social attitudes towards women, thus not only legitimizing the oppression of women in the eyes of the state but also intensifying it: women who seek to deviate from prescribed social norms now may not only be subject to societal censure, but also to criminal penalties. It is this enforcement of state power in the name of religion and its use as a tool to legitimate abusive state power, rather than religion itself, that is at issue. Although acquittal rates for women in Hudood cases are estimated at over 30 percent, by the time a woman has been vindicated she will have spent months,and possibly years, in prison. In most case, she will have been subjected to police abuse while in custody.
Even in cases in which no formal charge is brought against a woman, judges often suspect that if she was abducted or raped she must have been behaving inappropriately to begin with and was in some way complicit in the offense. In lieu of filing a formal charge against the women in such cases, judges frequently remand female rape and abduction victims to private detention facilities for indefinite periods to await the outcome of the cases lodged against their alleged abusers. Such facilities often function like prisons, but are subsidized by private philanthropies. Officials attempt to justify such prolonged detention as a form of "protective custody" for the women, but in effect it amounts to the punitive detention of innocent women for the crime of being an alleged victim. Local human rights organizations have filed habeas corpus petitions on behalf of such women, and some have been freed. However, the cases had no effect on the underlying problem of private detention of women accused of no offense. We interviewed several women confined to one "protective" facility, Darulaman, in Lahore. In one typical case, Farznan, a twenty-year-old, was detained at Darulaman after running away from home when her parents tried to force her to marry against her will.
23 Under Pakistan's Evidence Code, whether a woman sought immediate assistance following her rape can be a factor in determining whether her complaint is true. This rule, known as the "fresh complaint rule," has been widely discredited in the United States and Europe because it has been used to support the presumption that women who fail to report rapes may not have been raped. The rule fails to acknowledge the many sound reasons why women might fail to report rape, including, in the context of Pakistan, the risk of criminal prosecution if they fail to prove their case. In addition, in the absence of physical evidence of resistance, such as bodily injuries, courts are prone to disbelieve the woman's testimony that the act was non-consensual. Pakistan's highest religious court, the Federal Shariat Court, has successfully overturned rape convictions and reduced sentences on such grounds.
24 According to the International Commission of Jurists, "there have been many reported cases where a complaint of rape has been made and the court has convicted and punished both parties for adultery or fornication." International Commission of Jurists, Pakistan: Human Rights After Martial Law (Geneva, 1987), p. 128. Human rights lawyers Jahangir and Jilani documented four cases which occurred between 1980 and 1987. See Jahangir and Jilani, The Hudood Ordinances . . . , pp. 90-92. Human Rights Watch documented one such case in our 1991 mission.
25 Pakistan Law Journal 1983 Federal Shariat Court 134.
26 Last names of interviewees are withheld by Human Rights Watch unless otherwise indicated.
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