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In 1979 Pakistan's rape laws were dramatically changed when General Zia modified strategic aspects of the country's legal system in accordance with Islamic strictures. No longer part of the standard Penal Code, rape was included in the Offence of Zina Ordinance,53 itself a subcategory of Zia's Enforcement of Hudood54 Ordinance of 1979. The Zina Ordinance has had a profound effect on the rights of women, as it broadens the category of criminal sexual activity and redefines how such crimes will be handled by the legal system. The prohibited sexual activities, including rape (zina bil jabr), became religious offenses, subject to different standards of evidence and punishment and the appellate jurisdiction of Islamic higher courts.55
Pakistan's previous rape laws, repealed by the Zina Ordinance,56 had defined rape as compulsory sexual intercourse. The new law added to this definition that both a man and a woman may be guilty of rape and narrowed the circumstances in which rape can be said to have occurred. Statutory rape, previously defined as sex with or without the consent of a girl under the age of 14, was no longer a crime.57 In addition, the legal possibility of marital rape was eliminated; by definition, rape became an extra-marital offense.58 The ZinaOrdinance defined rape as sexual intercourse without being validly married when it occurs in any of the following circumstances:
(a) against the will of the victim; (b) without the consent of the victim; (c) with the consent of the victim, when the consent has been obtained by putting the victim in fear of death or of hurt; or (d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married.59
A showing by the perpetrator that he was or believed he was validly married to the victim at the time of intercourse is a complete defense to the crime of zina-bil-jabr or rape.60
Another significant change brought about by the adoption of the Zina laws was that for the first time in Pakistan's history, fornication (non-marital sex) became illegal and, along with adultery, non-compoundable,61 non-bailable62 and punishable at maximum by death. Since the crime of statutory rape was eliminatedat the same time that fornication was criminalized, even minor girls can be charged with engaging in illicit sex if they have reached puberty.63
The punishment for illicit sex, be it adultery or rape, depends on both the evidence on which the conviction rests and the marital status of the offender. The maximum punishment is known as Hadd (literally, "the limit"), the singular of Hudood, and is a mandatory sentence that a judge may not mitigate. Hadd sentences are harsher for people who are married and Muslim (muhsan):64 if the accused is muhsan and (a) confesses or (b) there are four adult, pious, male Muslim witnesses to the act of penetration, then the accused must be sentenced to death by stoning.65 If, on the other hand, the accused is non-muhsan and (a) confesses or (b) the crime is witnessed by four adult men, not necessarily Muslims, the accused must be sentenced to a hundred lashes with a whip.66 The testimony of four female witnesses, let alone that of the victim alone, is not sufficient for the imposition of the Hadd punishment. A non-muhsan person convicted of rape may receive, in addition to a hundred lashes, "such other punishment, including the sentence of death, as the Court may deem fit having regard to the circumstances of the case."67 All Hadd punishments must be confirmed by an appellate court.68 To date, although Hadd punishments have been imposed, none has been carried out.
On account of their harshness, Hadd sentences require extraordinarily conclusive evidence. If the evidence falls short of the stringent (and discriminatory) threshold required for imposing the draconian Hadd punishments, the accused may be sentenced to a lesser class of punishment known as Tazir. It is important to note that insufficient evidence to impose a Hadd punishment doesnot eliminate criminal liability: the Tazir punishment for rape is up to twenty-five years' imprisonment and thirty lashes. For the purposes of Tazir, no distinction is made between a muhsan and non-muhsan offender. Because of the strict evidentiary requirements for Hadd punishments, the overwhelming majority of rape cases are tried at the Tazir level of evidence and punishment.
Evidence for Tazir punishment is governed by the standard evidence code (Qanun-e-Shahadat) which was introduced by General Zia in 1984. The evidence code states:
Unless otherwise provided in any law relating to the enforcement of Hudood . . . in matters pertaining to financial or future obligations . . . the instruments shall be attested to by two men or by one man and two women . . . in all other matters, the court may accept, or act on, the testimony of one man or one woman.69
The use of the word "may" in the second part of the section provides for the admissibility of the testimony of women, but it does not guarantee that such testimony will be admitted or given equal weight to that of a man. At both the Hadd and Tazir levels of punishment, the burden of proof is on the prosecution to prove rape charges beyond a reasonable doubt.70 There is a general rule that that the benefit of any doubt-as, for example, that created by contradictory testimony, unexplained gaps in testimony, or inconclusive expert testimony-be extended to the accused.
The only foolproof way to obtain a rape conviction is if the accused confesses71 or there are four adult male witnesses to the act of penetration.72 Otherwise, the courts have no consistent standards for proof of rape. For example,according to Section 6(1) of the Zina Ordinance, "Penetration is sufficient to constitute the sexual intercourse necessary to the offence of zina-bil-jabr,"73 and the case law is clear that penetration must be by a penis and not other foreign objects;74 however, the courts are divided over the extent of penetration required to constitute rape under the ordinance.75 Similarly, there is no clarity in the case law as to the related question of what constitutes proof of penetration, although some corroborative evidence is required.76 Some cases indicate that even the slightest penetration is sufficient;77 numerous others discuss issues related to proof of penetration in terms of the presence of semen inside the vagina or a torn hymen, suggesting that evidence supporting full penetration is required.78 Adding to the murkiness of the issue of proof of penetration, several cases have held that the presence of semen in the victim's vagina is an insufficient indication.79
Courts have also ruled inconsistently on what, if any, corroboration as to the non-consensual nature of the intercourse is required.80 In general, courts are very reluctant to hand down rape convictions in cases where there are no "marks of violence" on the victim's body and the evidence consists solely of the victim's word against the defendant's.81 Supporting physical evidence from the victim's body has been required to convict even in rape cases where consent has been obtained through the threat of violence, for example at gunpoint, thus limiting thepossibility of struggle.82 On the basis of a presumption of female consent and a belief that women tend to lie in rape cases, judges ascribe undue significance to bodily evidence of the use of physical force by the defendant and physical, as opposed to verbal, resistance by the woman. For example, the Federal Shariat Court overturned a lower court's conviction of rape on the grounds that medical examiners "did not observe any injury on the thighs, legs, elbows, arms, knees, face, back and buttocks of the victim," and held that "she was bound to sustain injuries . . . as she was supposed to put up resistance."83 Although some victims may have no chance of fending off an attacker, judges seem to require that they resist and also suffer visible physical injury if they wish to see their attackers punished.
In many rape cases where there is no supporting bodily evidence from the victim or defendant, courts have arbitrarily opted to convict the defendant of the lesser charge of adultery or fornication.84 It appears that judges are reluctant, out of bias, to impose the significant penalties that attach to a conviction for rape but, in the face of the evidence, cannot let a defendant off entirely either. For example, a court in a 1997 rape case declared that in the absence of marks of violence on the victim's body and her failure on cross-examination to prove adequately that she resisted the defendant's advances, "[the] offence of zina-bil-jabr, thus having not been made out against the accused his conviction under S. 10(3) [the section of the Zina Ordinance establishing the crime of zina-bil-jabr or rape] was altered to S. 10(2) [the section of the Ordinance codifying the crime of zina or adultery/fornication]."85 Similarly, the Federal Shariat Court converted a rape conviction to one of fornication on the grounds that "[s]ince no violence was found on her body, it could be reasonable to infer that she was a willing party to sexual intercourse."86 These cases demonstrate that, based on prejudiced evidentiary requirements and interpretation stemming from a disinclination to credit female testimony about rape, courts at times spontaneously and unilaterally alter the nature of the charges leveled by the prosecution and convict the defendant of the lesser crime of illegal consensual sex instead of rape. In such instances, a correspondingprosecution is not necessarily initiated against the complainant, but the potential for it is created.87
An even worse scenario resulting from judges' reluctance to convict in rape cases is that courts sometimes view a woman's charge of rape as an admission of illegal sex unless she can prove, by their standards, that the intercourse was non-consensual and therefore not fornication or adultery. Thus the structure of the Zina Ordinance, and its interpretation by courts, leaves rape victims constantly susceptible to prosecution for illicit consensual sex. As Dr. Justice Javid Iqbal has written, "[T]he court considers the aggrieved party or prosecutrix guilty until she proves herself innocent. . .Thus, when a woman files such a complaint [of rape], instead of seeking justice she places herself at the mercy of the court."88
In the early years of the Zina ordinance especially, it was not uncommon for the female victim in rape cases to be prosecuted for adultery or fornication unless she provided extraordinarily conclusive proof that her "participation" in impermissible intercourse was forced;89 the accused rapist, on the other hand, was usually acquitted of all charges.90 Such cases revealed that the standard of proof beyond a reasonable doubt was not applied equally, or, put another way, the benefit of the doubt that was rightfully accorded to men accused of rape was often not equally extended to women whose rape charges had been converted into charges against them of illegal consensual sex. While the courts generally required rape charges to be proven beyond a reasonable doubt, they would often accept a woman's rape allegation-once disproved-as prima facie evidence that sheengaged in consensual extramarital sex, despite the fact that a failure to demonstrate rape (coerced sex) beyond a reasonable doubt does not automatically prove beyond a reasonable doubt that consensual sex occurred. Such cases are far less frequent in the late 1990s than they were in the 1980s, and some courts have explicitly ruled that a woman's failure to prove an allegation of rape does not constitute prima facie evidence of her participation in illicit consensual sex.91
Despite these few positive developments and trends, the continued enforcement of the discriminatory Zina Ordinance, inconsistent rulings by the courts, and gender bias in the criminal justice system makes it extraordinarily difficult for rape victims to get justice and continues to leave them vulnerable to wrongful prosecution for adultery or fornication.
Pakistani law is even more inadequate in protecting women victims of domestic violence and penalizing batterers. Not explicitly prohibited by a specific, targeted, and distinct set of laws, most acts of domestic violence are encompassed by the Qisas and Diyat Ordinance of 1990,92 a body of Islamic criminal laws dealing with murder, attempted murder, and the crime of causing bodily "hurt"93(both intentional and unintentional). In the absence of explicit criminalization of domestic violence, police and judges have tended to treat it as a non-justiciable, private or family matter or, at best, an issue for civil, rather than criminal, courts.94
If a domestic violence case does come before a criminal court, it may be punished either by qisas (retribution) or diyat (compensation) for the benefit of the victim or his or her legal heirs. In qisas and diyat crimes, the victim or heir has the right to determine whether to exact retribution or compensation or to pardon the accused.95 If the victim or heir chooses to waive qisas, or qisas is judicially held to be inapplicable, an offender is subject to tazir or discretionary punishment in the form of imprisonment.96 In these instances, judges not only have the power to determine the extent of punishment but also to decide whether to punish the offender at all.97
Commentators have noted that the qisas and diyat laws have, in many respects, converted serious crimes, including murder and aggravated assault, into crimes against the individual rather than the state. One Pakistani researcher has written, "By vesting the primary right of forgiveness in the individual for such a serious crime as murder, the state has exposed the most susceptible sections of society to pressure from the powerful."98
The "privatization" of crimes by the qisas and diyat laws has particularly damaging consequences in cases of intrafamily violence, the majority of which involve domestic abuse or spousal murder. As a result of the law, not only are women victims of domestic violence and their heirs susceptible to pressure and intimidation to waive qisas, but the concept of monetary compensation can be meaningless in a situation where payments flow from one member of the nuclear family to another.99
Furthermore, murder (Qatl-e-Amd) is not liable to qisas "when any wali [heir] of the victim is a direct descendant, how low-so-ever, of the offender."100 Thus, cases in which a woman has been murdered by her husband would be exempt from the qisas or maximum (i.e., capital) punishment for the murder if the couple in question have children, since in that case, a child or heir of the victim would also be a direct descendant of the offender.101 Diyat in such cases, entailing compensation flowing from a father to his (motherless) children, would be a mockery. Although courts can impose tazir punishment in a spousal murder case of this kind, the maximum they can award is fourteen years' imprisonment. Moreover, courts are directed to weigh the decision to impose tazir punishment "having regard to the facts and circumstances of the case," which grants them a large measure of discretion.102 In light of the biased attitudes of the courts with respect to domestic violence, the fact that punishment in such cases of spousal murder has been left entirely to the discretion of judges may well spell total impunity for the most extreme form of domestic violence. In the words of one commentator, "Although it is still unclear how the law will be applied in practice, it may be a means by which the state abdicates its responsibility to control violence in the most common type of intrafamily murder-the killing of a female member by the male head of the family."103
The large degree of judical discretion embodied in the qisas and diyat law has been widely criticized in light of the endemic societal and judical discrimination against women in Pakistan. Among the dangers that arise fromdecodification and an increase in judicial discretion is the opportunity for discrimination and corruption.104
When the qisas and diyat laws were first proposed in the early 1980s during General Zia's Islamization campaign, the testimony of women was not accepted in the execution of qisas, which meant that a woman accused of committing an offense requiring retribution was not allowed to testify on her own behalf. Moreover, when the victim was a woman, the amount of diyat was halved.105 The language of the current law does not distinguish between the sexes with regard to payment of diyat, but both the amount of the diyat and the validity of a woman's testimony have been left to judicial discretion, the former to be decided "subject to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah."106 Since traditional interpretations of Islamic law contemplate the diyat for a woman victim to be half of that for a man, the gender neutral language of the current codified law on diyat is practically meaningless. And the invitation to exercise discretion with regard to the testimony of women in effect encourages judges to manifest their own prejudices and biases against women. The law of inheritance, which governs the distribution of diyat among heirs, is also discriminatory to women, as the shares of female heirs are typically smaller than those of their male counterparts. In addition, the Human Rights Commission of Pakistan noted, "[H]eirs entitled to . . . diyat, were mostly assumed by the law to be male. It was observed that where the blood money [diyat] had to go to a female, the courts, which were responsible for fixing the amount, tended to be less liberal."107
Honor killings are another form of intrafamily violence with victims who are mostly women, who are seen as the repositories of family honor.108 Such killings are also encompassed by the murder provisions of the qisas and diyat laws. However, courts minimize the severity of these crimes by applying to them, in effect, the English common law principle of "grave and sudden provocation."109 In so doing, courts simply deem that qisas is not applicable to honor killings, and punish these crimes under Section 302(c) of the Pakistan Penal Code (as amended by the qisas and diyat ordinance), which allows for punishment of murder with imprisonment up to twenty-five years where qisas is not applicable. In practice, however, punishments meted out under this section tend to be lenient in such cases. For example, the Human Rights Commission of Pakistan reported a case in which a man was tried for killing his daughter and a young man when he found them in a "compromising state." The sessions (trial court) judge sentenced the father to life imprisonment and a fine of Rs. 20,000 (U.S.$ 500). The case came before the Lahore High Court, which reduced the sentence to five years' imprisonment and a fine of Rs. 10,000 ($250).110 In its judgment drastically reducing the defendant's sentence, the appellate court indicated that his actions were justified because his victims were engaging in immoral behavior that could not be tolerated in an Islamic state such as Pakistan.111
Courts have used other means as well to remove honor killings cases from the ambit of qisas punishment and bring them within Section 302(c) of the amended Pakistan Penal Code (P.P.C.), which permits judges to impose discretionary punishment "where according to the Injunctions of Islam the punishment of qisas is not applicable." For example, in a case where a husband killed a man upon finding him with his wife at night in a "compromising" position, the court ruled that "Qatl-e-Amd [murder] liable to qisas takes place only when the person murdered is not liable to be murdered and is masoom-ud-dam [innocent]. Apparently the offence of the appellant attracts section 302(c) P.P.C. [because as an adulterer the victim was not innocent] where under imprisonment could be up to twenty-five years, because qisas is not applicable."112 Another court using discretionary authority granted by Section 338-F of the amended P.P.C., which "expressly permits the court to assess the culpability of . . . the accused not only under the statutory provisions of law but also under the injunctions of Qur'an and Sunnah," decided that "the right of self-defence is wider under Islamic law than in the [amended] P.P.C." and could be invoked by male defendants in honor killings.113 The court explained that the Koranic verse 34 of Sura Al-Nisaestablishes men as the "custodians of women;" hence a man who kills another man for defiling the honor of his wife or daughter is protecting his property and acting in self-defense. Quoting Sura Al-Nisa, the judge concluded, "I am of the view that the appellant as the custodian of the honor of his wife had the right to kill the deceased while he was engaged in [a] sex act with his wife and he had not earned liability of qisas or tazir or even diyat, and is hereby acquitted."114
Ironically, "self-defense" and "grave and sudden provocation" were specified as exceptions to murder in the unamended P.P.C. and were removed from the books when the qisas and diyat laws were incorporated into the code. However, by coupling a significant increase in courts' discretionary powers with instructions to rely on the "Injunctions of Islam,"115 the qisas and diyat laws have actually broadened the scope of these exceptions. This is but one indication of the greater leeway granted judges by this new legislation to exercise their prejudices in the name of law.116
Gender Bias in the Criminal Justice System
Through interviews with human rights lawyers and activists, women victims of violence, police officials, prosecutors, judges, and medicolegal doctors, Human Rights Watch found that bias against female victims of rape and domestic violence is not confined to the letter and interpretation of the law. Rather, it pervades all facets of the Pakistani criminal justice system. From the initial lodging of complaints until the final resolution of cases, women seeking redress for sexual and other assault regularly confront law enforcement institutions and officials with hostile, or at best indifferent, attitudes to their complaints. Police, prosecutors, judges, and doctors denied that sexual and domestic violence were critical problems for women and asserted that the occurrence of such crimes was precluded by Pakistani social and religious norms. Officials even failed consistently to acknowledge the criminal status of domestic violence, instead dismissing it as a "family matter" not serious enough to be handled by the criminal justice system. Officials frequently justified their cynical attitude toward women's complaints of sexual and other assaults by attacking their veracity. Rather than addressing any inadequacies of the system with respect to prosecuting rape or domestic violence, officials were more interested in pointing out how frequently women fabricate these charges in order to frame men.
Skepticism and scorn about women's complaints of violence are rife among police officials, who function as gatekeepers with respect to women's access to the criminal justice system. For example, Ashiq Martha, the chief or Station House Officer (SHO) of Ichra Thana, a busy Lahore police station, told Human Rights Watch that non-consensual sexual intercourse virtually does not exist in Pakistan and that in the overwhelming majority of cases women fabricate allegations of rape. According to SHO Martha, rape only occurs in two situations: if the man is of unsound mind or if he acts to avenge his honor against the woman's family. He added that the absence of visible marks of violence would prove that intercourse was consensual.117 In a similar vein, the SHO of the Factory Road police station in Lahore told Human Rights Watch that genuine rape cases, along with kidnappings and abductions of women, are extremely rare and that in most instances women run off with men willingly and then lie to avoid being prosecuted for adultery. He added that complainants disingenuously press charges of attempted rape over minor disputes or fabricate charges of sexual violence to settle personal scores. He believed that "[w]omen have a lot of rights" and that "[i]t is wrong of courts to believe women so that the poor man ends up in jail." The SHO of the Women's Police Station118 in Karachi, Farrukh Sultana, asserted, "Rape is indicated by marks of violence on the woman. In consensual cases there are nomarks, though the woman calls it rape anyway."119 An NGO activist working with rape victims in Karachi told Human Rights Watch that an officer at the Women's Police Station had once said to her that rape only occurs with very young girls. Echoing the sentiments and proclivities of her colleagues, a senior police officer at the women's police station in Lahore told Human Rights Watch, "One can tell from looking at the woman if it is a [genuine] rape case. If there are no marks of violence and no circumstantial evidence, the woman can have lied about rape."120 The comments of police officials to Human Rights Watch consistently indicated a simplistic and biased understanding of the dynamics of rape, a lack of knowledge and imagination as to the range of circumstances in which rapes of women occur, and a predisposition to disbelieve victims of rape.
Police officials in Karachi and Lahore also dismissed domestic violence as a non-issue. The director of the police training center in Lahore, for example, told Human Rights Watch, "The social set-up [in Pakistan] does not allow that women should be abused" and that, on the contrary, women are respected in Pakistani society. When asked about the form of domestic abuse commonly referred to as "wife burning" or "dowry death" in Pakistan, the director responded that women burned to death because "stoves were defective" and that "if someone wants to kill there are other means."121 Not a single police official interviewed by Human Rights Watch in either city acknowledged the seriousness of crimes of violence against women or expressed concern over their widespread and unchecked incidence.
Even the medicolegal doctors who are responsible for collecting forensic medical evidence to verify a woman's allegation of assault are unlikely to believe the complainants. The head medicolegal officer for Karachi, Dr. Nizamuddin Memon, who oversees all medicolegal services in the area, revealed to Human Rights Watch a strong bias against the plight of women victims.122 He almost categorically denied the existence of rape, saying, "A woman who is well developed cannot be raped unless there are four or five men [involved]. One man cannot rape a woman. Only children under five are raped . . . [otherwise] rape is only gang rape. One-on-one cannot be rape unless a gun or other arms are used." He asserted that women lie when they allege that they were raped by an unassistedman and that he had exposed women brought to the police surgeon's office123 to be liars by closely questioning them: "Women bluff, women make up stories, women lie. They say, `I was drugged, I was given a whiff of fainting medicine'-but there's no such medicine. Even if a chicken is abducted it makes a noise. How can a woman be abducted? It's the boy who suffers in these cases because he gets to spend fourteen years in jail on the basis of false allegations of rape." Dr. Memon told Human Rights Watch about an examinee who came to his office alleging that her brother had repeatedly raped her: "The police had believed her, but I did not. Fathers may rape daughters, often in old age when they are mentally off, but brothers do not go that far." He further asserted that there was no question of rape in the absence of visible marks of violence on the purported victim's body.124
A member of a legal aid organization for women told us about an incident in 1996 when she took two minor girls, recently released from a brothel, to the Karachi police surgeon's office for medicolegal examinations. When she informed the police surgeon that the girls were victims of sexual abuse and not prostitutes as he had assumed, he replied, "For you, everyone is a victim. These girls were willing participants."125 He declared that a ten-year-old was capable of consent in this context. A male medicolegal officer at the police surgeon's office, Karachi, told Human Rights Watch, "All girls who come here for an examination have gone [to have sex] willingly, and the poor boy gets stuck in jail for his whole life. Usually the girl's parents force her to change her story and testify falsely against the boy."126 Dr. Sikander Shah, then chief chemical examiner127 for Karachi, expressed similar sentiments to Human Rights Watch. Asked about rape cases, he said, "Most women go with men willingly, then change their story under pressure . . . God has protected justice by giving women hymens. Hymens cannot be repaired. So we know if she complains of rape whether she's lying."128 Again, the only concern voiced by Dr. Abbas, who oversees the section of the chemical examiner's office (government forensic laboratory) in Lahore that analyzes semen,129 was that better forensic techniques were required to protect men from false accusations of rape; he made no reference to the dire need for improved forensic work in order to convict perpetrators of violence against women. Hecomplained that the laboratory currently only tested for the presence of semen in a woman's vaginal sample, which could serve to incriminate men but did not afford them the means to exonerate themselves: "At least semen grouping130 should be regularly done, and best of all [the availability of] a DNA test would help out an innocent fellow."131 Ironically, simple semen detection does not particularly help a woman's case either, since it reveals no identifying information; semen grouping and DNA testing would far more accurately connect perpetrators to their crimes.
Victims of domestic violence rarely even make it to the medicolegal office, because few cases of domestic violence are prosecuted. Those women who are persistent enough to press criminal charges face similar skepticism from medicolegal doctors. When asked whether victims of domestic violence were examined at his office, Captain Memon replied, "Twenty-five percent of such women come with self-inflicted wounds. This is on their lawyers' advice so that they can get a divorce. Otherwise it is difficult to get a divorce." He added that women alleging rape also "self-inflict marks."132
Biased and chauvinistic attitudes are also common among prosecutors. An activist with a Karachi NGO that provides legal assistance to rape victims told Human Rights Watch that when she tried to give the organization's newsletter to a prosecutor, he scoffed and asked her why she was bothering with women who were no better than prostitutes.133 Revealing unabashed and categorical gender bias, a prosecutor from the Lahore District Attorney's office told Human Rights Watch that he had heard of a conviction in one rape case, but he felt that the woman and her family had fabricated the charge since the defendant had repeatedly alleged his innocence. He further explained, "I don't believe in rape cases. Women's consent is always there. If rape exists, it happens in only 1 percent of cases. For example, women may be raped during a dacoity [ambush by armed men], but that is an extremely rare case. Our society does not allow rape."134 A lower-level prosecutor, Police Inspector Legal Naseer Ahmed of the Model Town Courts, Lahore, told Human Rights Watch that virtually all rape cases are fabricated. "After all," he said, "if a man tries to rape a woman, she can slap him."135 Even the advocate general of Punjab,136 Khalid Ranjha, denied that rapeis a problem in Pakistan. In fact, when told about SHO Ashiq Martha's comments, he replied, "The SHO is right. In Pakistan there is no rape as a consequence of sexual frustration. Rape may only occur in the context of honor [feuds]. Rape in the west is a sickness. Ours is not a sick society."137 Assistant Public Prosecutor, District West, Karachi, Islamuddin Ayubi verbalized a common notion in Pakistan in his comment, "Rape is an issue with unmarried women. With married women, generally there is consent."138 When asked about domestic violence, Ayubi responded, "But that is a family matter. It is handled by the family courts."139 Although he admitted, upon prompting, that it can constitute criminal assault, he appeared bewildered and said that he had never heard of any criminal case of domestic violence brought before the courts.
Even judges, rather than dispensing justice, frequently give free rein to biases against women in the name of the law and harass women victims of violence. Zia Awan, a prominent human rights lawyer in Karachi, told Human Rights Watch about a domestic violence incident that he reported to a judge presiding over a related dispute between the couple in question.140 The judge dismissed the complaint and directed a dumbfounded Awan to a verse of the Koran, Sura Nur, which he interpreted as permitting a husband to beat his wife. Another human rights activist working with rape victims told Human Rights Watch about the harassment meted out to the complainant in a rape case by the presiding judge in the Malir district court, Karachi. As the defense counsel cross-examined the complainant over her claim that she had been abducted by the defendant and forced at gunpoint to take a train, the judge scornfully interjected that even a goat would have struggled under the circumstances and that it was unbelievable that the complainant had taken no action and not even activated the train's emergency brake. Later, the same judge yelled at the complainant, who got irritated at being repeatedly asked the same question, to show respect to the defense counsel. He threatened that if she was not deferential he would lock her up for adultery. He added, with reference to the complainant, "These women take off knowingly and willingly and then show up in court to make our lives difficult."141 Even Judge Javed Qaisar, who is generally regarded as upstanding and sympathetic by women's rights advocates, told Human Rights Watch, "Generally speaking, there can be no sex without the woman's consent-I am telling you this as a man. If the woman is drugged or intoxicated, or is a minor, she can be raped. However, a mancannot be potent if he is worried that he will be caught in the act. To rape, a man has to prepare a lot. He cannot just go do it unless he is `high' or in an altered mental state. In that state, though, he is still legally 100 percent liable."142
Courts have also demonstrated strong gender bias in their approach to incest cases, at times utterly rejecting the possibility of its occurrence.143 A prosecutor from the Lahore district attorney's office told Human Rights Watch, "Incest does not occur here, though people might attempt it with small children between the ages of six and twelve."144 In a 1988 case,145 the Federal Shariat Court acquitted a man convicted and sentenced to the maximum punishment in two different trials for raping his nine-year-old daughter "[i]n essence . . . because [the court] could not accept that a father would rape or even abuse his own flesh and blood. Similarly, the Supreme Court of Pakistan stated in Liaquat Ali that the issue of whether a father can commit zina-bil-jabr with his real daughter `need[ed] serious probe.'"146
Societal misperceptions and the reluctance by law enforcement officials to investigate violence against women has created an environment in Pakistan where this violence, despite its prevalence, is rarely acknowledged and punished as a crime. Although there have been cases of women alleging rape in order to avoid adultery charges, law enforcement officials generally approach cases of sexual and other violence against women with an unwarranted degree of skepticism and unacceptable level of prejudice. Until government officials are made to apply even-handed laws that explicitly reject common prejudices and gender stereotypes, perpetrators of violence against women will remain unpunished, and the violence will continue unabated.
Upon receiving a report of rape, assault, or domestic violence, the police should immediately register a First Information Report (FIR) detailing the nature of the crime;147 contact a magistrate's office, which should be available twenty-four hours a day, to request a medicolegal exam; and then escort the complainant to the medicolegal office for an exam. The police are also responsible for investigating the incident148 and delivering the results of the medicolegal exam and any other evidence to the prosecutor to bolster his or her case against the defendant. None of the women Human Rights Watch interviewed in Karachi or Lahore had their cases handled in this way.
Delayed and Mishandled Processing of Complaints
In practice, women who try to report rape, sexual assault, or domestic violence encounter a police system that is, at best, incompetent and sometimes outright abusive. Since the police system is generally the point of first contact with the criminal justice system, women victims, in seeking justice for sexual or other
assault, encounter obstacles from the very beginning of the process. Virtually all the human rights lawyers and activists we interviewed reported that harassment, intimidation, physical abuse, and bribery of persons seeking the services of the police were common phenomena, indicating endemic corruption and a serious lack of accountability and professionalism in the police force. Women who allege rape or abuse and their families are particularly vulnerable to police misconduct owing to women's low status in Pakistani society, the stigma that is still attached to rape and domestic abuse, and the gender bias common among police. As a result of the latter, the police are prone to disbelieve and belittle women victims, particularly when they allege rape or domestic violence.
Summary rejection of their complaints without investigation is the most common problem encountered by women victims of violence at the police station. In fact, the reputation of the police is so uniformly bad in this respect that many women are deterred from reporting violence and consider contacting the police to be a futile endeavor. For many victims, the experience of confronting skeptical, dismissive, and venal police officers serves to intensify the trauma of the assault itself. Experienced NGO activists who provide legal assistance to women victims of violence told Human Rights Watch that they aim to bypass the police and take their clients directly before a magistrate to obtain an order instructing the police to register a complaint. However, this procedure is only possible through the intervention of legal aid workers with ongoing relationships with magistrates and is not normally available to abused women.
According to Pakistani human rights activists and advocates, there are several reasons behind the stonewalling of complaints by the police besides the tendency to disbelieve women alleging violence. The unchecked corruption that permeates the police force nationwide is a primary factor.149 The police commonly stall on registering complaints in order to create leverage to demand bribes from both the complainant and the accused in blatant moves to obstruct justice.150 We also found cases in which the police intimidated or pressured complainants to drop charges after accepting bribes from the accused. Many times police officers do not register FIRs simply because doing so would indicate a crime increase that would not be well received by their superiors.151 Finally, owing to sexist attitudes and a lack of training with respect to the scope of the law, the police are often reluctant to tackle sexual and domestic violence as full-fledged crimes. Instead, they tend to see their role in such cases as that of a mediator and frequently block or delay formal complaints in order to pressure the parties to settle their differences, usually at the behest of the accused. In the process, it is not uncommon for the police to harass, intimidate, and abuse the complainant and her family.
The delay in registering FIRs has particularly detrimental consequences in cases of rape, assault, and battery because forensic evidence is critical for theirsuccessful prosecution; and forensic evidence, especially in sexual assault cases, is generally extremely transient. Since the police usually do not take a woman victim for a medicolegal examination to collect such evidence prior to registration of an FIR, the delay results in the loss of crucial forensic evidence and seriously undermines the prospect of securing a conviction in any subsequent criminal proceeding. For a full discussion of the process and mechanics of collection and legal role of forensic or medicolegal evidence, see the next section of this report. Even after a woman victim of violence manages to register a complaint or FIR, her travails at the hands of an ill-trained, incompetent, and venal police force are far from over. For example, from victims and specialist attorneys we learned of numerous cases in which the police included incorrect facts and misrepresented the victim's narration of events in the FIR. In certain instances, the police had overstated the complainant's case by arbitrarily including false incriminating details; in others, the police had been negligent in inaccurately recording the complainant's statement; and in some cases, the police had tampered with the statement after reportedly receiving a payoff from the accused. This conduct causes serious problems as the legal process gets underway, because ostensible inconsistencies surface in the victim's subsequent testimony. Many victims are illiterate and fail to discern the discrepancies recorded by the police in a timely manner, and even if they do, it requires an arduous bureacratic process to modify the report once it has been finalized.
In sexual assault FIRs, the police create further problems by failing to specify the applicable subsection of the zina law, hence creating ambiguity as to whether the charge relates to rape or consensual extramarital sex. Section 10 of the Offence of Zina Ordinance establishes the crimes of both zina (adultery/fornication) and zina-bil-jabr (rape) liable to tazir (discretionary punishment), and subsections 10(2) and 10(3) detail the tazir punishments for zina and zina-bil-jabr respectively.152 In registering FIRs in rape cases, often the police simply note "Section 10" charges without specifying whether the alleged crime relates to subsection 2 or 3; or at times they indiscriminately and incorrectly categorize all zina-related charges as Section 10(2) crimes. Not only does this change the focus of the subsequent investigation, trial, and sentencing, by mischaracterizing the charge against the accused; it also makes the complainant vulnerable to harassment or even prosecution, as will be discussed below.
The case of Raheela A.,153 a young housewife who tried to register a complaint of rape with the Karachi police, illustrates several of the problemsdescribed above. Raheela A. was raped by two men who broke into her home in the Landhi area of Karachi on February 25, 1997.154 In the course of the attack she suffered knife wounds and was briefly knocked unconscious when her head was bashed against a wall. Later the same day, after obtaining medical treatment, Raheela A. and her husband went to Sukhan police station in Karachi to file a report. Raheela A. gave her statement to the police, but the sub-inspector (SI) on duty discouraged her from filing a complaint and pressured her to forgive her attackers or to come to a compromise with them. The police kept Raheela A. and her husband waiting at the police station for two nights. "The SI kept stalling," Raheela A. told Human Rights Watch, "and finally registered the FIR on the third day" after she and her husband paid him Rs. 7,000 (approximately U.S. $140). Futhermore, the police incorrectly recorded the sequence of events narrated by Raheela A., which caused her subsequent testimony to be discredited for inconsistency.
Farida S. encountered similar problems when she tried to report the rape of her twelve-year-old daughter, Ayesha, by a distant male relative in 1996.155 Farida S. went to the Race Course police station in Lahore on the day of the attack, but the police refused to record a complaint and instead advised her to reconcile with the accused. When she persisted, they asked her to produce the accused but turned her away when she offered to lead them to his house. The next day Farida S. returned to the police station, and this time a senior officer demanded a bribe of Rs. 5,000 (approximately $100). The FIR was finally registered another two days later when Farida S.'s employer (she worked in domestic service) intervened on her behalf.
Another case that highlights the obstacles encountered by women victims of violence to registering FIRs is that of Sajida M.156 Sajida M. was raped in April 1997 at a house in Samnabad, Lahore, by her employer and two of his associates at the Karim Block Factory of S and T Trading. She told Human Rights Watch that it took her ten days to lodge an FIR regarding the attack at Gulshan-i-Iqbal police station in Lahore. Sajida M. and her family made repeated trips to the police station, but the station house officer (SHO) turned them away and was rude and uncooperative. After ten days, Sajida M. was able to approach a high-level official, a deputy superintendent of police (DSP), who was visiting the police station. The DSP ordered the SHO to record the FIR, but after the DSP left, the police made Sajida M. and her family members wait at the station all night before finally registering the FIR the next morning.
In another Lahore case, family members of Farhat K., a four-year-old victim of attempted rape, told Human Rights Watch that, when they tried to report the assault at their local police station, an assistant sub-inspector delayed registering the FIR for twenty-four hours and demanded and was given Rs. 1,000 (approximately $20) by Farhat's family to follow up on it.157
While many of the women victims we interviewed had been subjected to police demands for bribes, in all the cases except one the corrupt police suffered few consequences. Raheela A. was able to find a legal aid NGO to help her compel the relevant sub-inspector to return the Rs. 7,000 he had demanded; however, the sub-inspector was not disciplined in any way. In fact, Raheela A. and a member of the legal aid NGO assisting her told us that he orchestrated retaliatory action against Raheela's husband, detaining him in a police lock-up and robbing him of Rs. 11,800 (approximately $240).158
Registering complaints of domestic violence can be even more difficult than registering rape by a stranger, because, as a result of gender bias and a lack of training, the police almost always fail to recognize domestic violence as any kind of crime. In fact, the police see their role in these cases solely as that of mediator and routinely try to get the parties to reconcile. At times the police blatantly overstep their authority by drafting non-binding written settlements or agreements (sulah nama) between the parties. Although some victims of domestic violence who resort to police assistance may genuinely not wish to pursue formal charges, there is no justification for the police's generally discouraging all victims from doing so. Demonstrating ignorance of the law, officers at the Lahore Women's Police Station told us that instances of minor beatings do not constitute a police case and that the police need register FIRs only in cases where the victim has sustained substantial injuries.159
The SHO of the Women's Police Station in Karachi echoed the comments of her colleagues in Lahore. She asserted that most domestic violence cases are civil in nature. She told Human Rights Watch that victims of domestic violence usually approach the police for consultation rather than formal intervention. According to her, the police's role is limited to counseling and mediation. "We call the husbands into the station and explain to them with love and affection not to beat their wives. They are good people, they listen. In order to get a reconciliation, I put pressure on the wives for balance, for otherwise the husbands will consider theprocess unfair."160 Farzana Mumtaz, who works with Aurat Foundation, a women's NGO in Lahore, and has intervened on behalf of women victims of violence with the police, told Human Rights Watch that she was frustrated and her efforts thwarted by the self-appointed counselor role assumed by the police, which serves as a serious barrier to battered women seeking safety and justice.161
Harassment and Abuse of Victims
In addition to sabotaging women's efforts to prosecute their attackers, Human Rights Watch found that it was not uncommon for the police to harass, intimidate, and even physically abuse the complainant and her family members. The case of Rehana Z., a resident of the Mangopir area of Karachi, is a good example of the problem.162 In early 1997 Rehana Z. was raped by two men who were aided by another man and a woman. Rehana Z. lodged a complaint at Mangopir police station, but her case was subsequently transferred to Assistant Sub-Inspector (ASI) Murid of S.I.T.E. (Sindh Industrial and Technical Estate) area police station.163 The S.I.T.E. police came to Mangopir to pick up two defendants (one man and one woman); they also took Rehana Z. to the S.I.T.E. police station-in the same vehicle as the two accused persons. During the ride, the accused threatened and verbally abused Rehana Z. At the S.I.T.E. police station, Rehana and the two defendants were kept in the same cell. Rehana Z. was kept at the police station overnight, although the male defendant was removed to a different cell for the night. A policewoman then slapped Rehana Z. and beat her with a wooden truncheon on her hands and the soles of her feet. Along with ASI Murid, she repeatedly pressed her to come to a reconciliation (sulh, razi-nama) with the defendants because, "Tomorrow you'll run off with someone else." The police also asked Rehana Z. for money for food and minor expenses (chai pani). She was dropped off at Mangopir police station the following day and released. Although ASI Murid was later suspended and a reinvestigation order issued due to the intervention of then-Sindh Chief Minister Liaquat Jatoi,164 Rehana Z. said thepolice were proceeding with her case at a glacial pace and that any progress was due to continued pressure from the Human Rights Commission of Pakistan and a legal aid NGO.165
Farida S., whose case is described above, told Human Rights Watch about police misconduct during the investigation of rape charges filed on behalf of her minor daughter, Ayesha.166 Shortly after Farida S. filed the charges, her house was attacked by the defendant's family members and she and her relatives were beaten. When Farida S. went to report the incident to the Race Course police station, the duty officer rudely dismissed her and told her to have a male relative speak for her. Farida S. had an exchange of words with the officer, who cursed and swore at her and threatened to detain her. When a male neighbor accompanying her offered to intervene, the police briefly took him into custody. The duty officer later briefly detained Farida S.'s two sons-in-law and filed minor criminal charges against her husband and two sons, one of whom was eleven years old. According to Farida S., the officer offered to drop charges against her family members if she reached a settlement in her daughter's rape case.167 Finally, three months later, Farida S. appealed to a judge who dismissed the charges against her husband and younger son; her eighteen-year-old elder son was detained and granted bail about a month later.
Human Rights Watch also spoke to women victims of rape who had been accused and detained on charges of adultery and fornication. Although police practice in this respect has improved over the past five years, the problem continues.168 Zia Awan, a legal aid lawyer, told Human Rights Watch about the case of Sadia B., an Indian national who was raped by her Pakistani boyfriend and a couple of his friends in Karachi.169 Upon reporting the incident to the Karachi police, Sadia B. was arrested and spent thirteen months in pre-trial detention on charges of zina until she was finally released on bail; her boyfriend was also arrested and detained but was released on bail after one month.
Jannat Khatoon, who spoke to Human Rights Watch at the Karachi women's prison, was abducted in 1996 to Nawabshah from Karachi and forced into marriage with a man who raped her repeatedly over several months. When she wasfinally located by her real husband and the police, she was taken to the Ibrahim Haideri police station in Karachi, where she was held for three days and beaten by a policewoman for "running away." Despite her protestations that she had been raped against her will, she was told that "the law is the law" and arrested for adultery. When Human Rights Watch spoke to her, she had already spent two months in pre-trial detention and, despite a few visits to the Malir District Court lock-up, had never come face-to-face with a magistrate or judge.170
Inadequate and Improper Investigations
In interviews with judges, human rights lawyers, prosecutors, and complainants, Human Rights Watch found that the police's performance in investigating registered complaints of sexual violence is extremely poor. In addition to failing to conduct timely and comprehensive investigations, including witness interviews, site visits, and forensic work, the police frequently use unprofessional and inappropriate investigative methods, such as interviewing family elders in lieu of eye witnesses or the accused, detaining family members in order to pressure witnesses or the accused to come forward, closing cases based on an oath by the accused or on behalf of the accused by family elders, and pressuring complainants to drop charges on the basis of such oaths. Furthermore, the police frequently embellish, modify, or incorrectly transcribe witness statements and sometimes even instruct witnesses to change their stories and include details that ostensibly support their cases. This makes it easier for the police to close and dispose of cases-and excuses them from undertaking a comprehensive investigation-because subsequent inconsistencies undermine witnesses' credibility and weaken cases in the eyes of prosecutors, magistrates, and judges. At times police tamper with witness statements after obtaining bribes from the accused.
The case of Farhat K., a four-year-old victim of attempted rape, illustrates the state of police investigative practice in sexual assault cases.171 When Farhat K.'s family arrived at a Lahore police station on February 13, 1997, immediately after the attack, the police required them to rent a car in order to apprehend the accused. After taking the accused into custody, the police delayed registering an FIR and sending Farhat K. for a medicolegal examination for twenty-four hours; instead they mediated between the two sides to work out an informal resolution of the "dispute." When the negotiations failed, an FIR was filed. Before proceeding further, the investigating assistant sub-inspector (ASI) demanded and received Rs.1,000 (approximately $20) from the complainant's family. The ASI's investigative work consisted of nothing more than taking statements from both parties in each other's presence. He then demanded that the complainant's family produce specific community elders to attest to the truth of their allegation and, alternatively, advised them to drop charges if similarly respected elders were to vouch for the accused's innocence. Since the complainant's family refused to go along with the ASI's proposals, the case was referred to the police station chief, SHO Malik Ashraf, who again pressured them either to "give an oath [of sincerity] or accept an oath [of innocence]." When Farhat K.'s family rejected these demands, the SHO reported them to a magistrate as posing a "threat to the peace" and asked for restraining orders, which require the posting of bonds, against a few family members on both sides. At this stage the investigation completely stalled.
Eventually Deputy Superintendent of Police (Defence Circle) Zaheeruddin Babar opened an inquiry into the facts of the case. The investigative procedure he adopted was equally unprofessional as that of the ASI and SHO Ashraf. Babar brought the parties together and instructed Farhat's family to nominate people, acceptable to the defendant's side, whom the defendant would then be required to bring forward to attest to his innocence. The purpose was to give the accused the chance to demonstrate that people known to both the accused and the complainant would give a qasam (oath of the accused's innocence). If the nominated people did not vouch for his innocence, then it would be understood that he was guilty.172 When the accused's side failed to get any of the six nominated people to vouch for his story by the appointed date, April 10, the DSP found for the complainant and the case was set to proceed, as Farhat K.'s family hoped, to the prosecutor. But, besides Farhat K.'s medicolegal evaluation, itself performed forty-eight hours after the attack, there was no indication that any further investigatory or evidentiary work would be undertaken by the police
Another complainant, Farida S., whose case is discussed above, told Human Rights Watch that the Race Course police took absolutely no action after registering an FIR for the rape of her minor daughter, Ayesha, despite the fact that the accused was known to be in the neighborhood.173 After she made several trips to exhort them to investigate, the police finally accompanied Farida S. to her neighborhood, where she pointed out the accused at a roadside eatery. The police, however, took so long to park their vehicle that he easily absconded, and when Farida S. asked the police to make another attempt, she was told to have the police van refueled for the purpose. Moreover, a senior officer pointedly asked Farida S.for a bribe of Rs. 5000 (approximately $100). Throughout the process, the police constantly discouraged Farida S. from pursuing the case and pressured her to reach a truce with the defendant, at times taunting her that they would make no effort to investigate. They did not even take statements from the victim, Ayesha; Ayesha's younger brother, who was an eye witness to the rape; or Farida S.'s cousin, who saw the defendant leaving Farida S.'s yard, until two months after the incident when Farida S.'s lawyer, who knew the station chief, intervened. Other than Ayesha's medicolegal examination, conducted a few days after she was raped, that was the extent of the investigation.
The inertia and incompetence of police are compounded by pervasive corruption, as discussed above. Even judges have expressed skepticism about the quality and reliability of police investigations. Mian Khalid, a judge in Lahore, told Human Rights Watch, "The police officer writes wrong facts on the FIR, then the girl's testimony in court conflicts with that, and the case is thrown out. The benefit of any conflict or contradiction goes to the accused. Basically the police make a problem from the beginning by taking money."174
A Lahore prosecutor offered a related rationale for the police's mischaracterization of events:
The police often implicate the accused's family members in the incident. Down the road contradictions emerge because of police fabrication. Also the police version often doesn't make sense, as when, for example, they assert that the accused's family sat quietly by while he committed the rape. The police implicate others because that way they can command more money [in bribes] and because they appease the victim's family who want the accused's female relatives to suffer because their girl suffered.175
Judge Javed Qaiser told Human Rights Watch that he concurred that the overall quality of investigations was abysmally low. "Police investigation is improper to the point that the families of victims want to withdraw charges just to escape police involvement. The police never gather evidence from the scene of the crime, and police bungling often makes it harder to secure convictions," he said.176
The police also routinely fail to fulfill their duty to process and handle any forensic medical evidence expeditiously. The transport of samples and othermaterials of forensic significance is the responsibility of the police; in Karachi and Lahore a policeman conveys samples in person from the medicolegal doctor to the government laboratory. However, samples are first taken to the police station where delays can occur before the sample is delivered to the laboratory. For example, a policeman interviewed by Human Rights Watch at the Office of Surgeon Medicolegal177 in Lahore said that he would not be delivering the samples in his custody to the laboratory for another forty-eight hours because the following day was a holiday, and neither he nor the chemical examiner's staff would be working.178 Similarly, another policeman we interviewed there on the morning of April 12 said that he would not drop off the samples in his care until the following day. Dr. Abbas at the Office of the Chemical Examiner in Lahore told us, "There is a requirement that all samples in any type of case in police custody should be sent to the lab within forty-eight hours. However, in practice, the police often delay."179 The lack of police training in the handling of biological samples and the possibility of decomposition and contamination often render such evidence useless, especially in light of the fact that police stations are not equipped with the refrigeration and storage facilities sometimes necessary to preserve the quality of the samples.
Medicolegal Examinations
Importance of Forensic Evidence in Cases of Sexual Assault
and Domestic Violence
Medical evidence is central to the successful prosecution of both sexual and other bodily assault cases. The fact that in rape cases Pakistani courts generally require "positive proof of penetration"180 as well as physical evidence, such as genital injuries,181 to corroborate the victim's testimony as to the nonconsenual nature of the intercourse renders utterly indispensable a timely and meticulous medicolegal examination of victims as well as a sophisticated understanding of its merits and limitations on the part of courts.182 In many casesof sexual assault, medical evidence may provide the only corroboration of the complainant's case, confirming not only the fact that sexual contact or intercourse took place-and with a particular individual-but also that such contact took place without the complainant's consent. Although medical evidence cannot in and of itself prove a lack of consent, it can be strongly suggestive that sexual contact or intercourse was the result of assault and not agreement. This is particularly important since, as discussed above, Pakistan's Hudood laws criminalize certain forms of consensual sexual contact: in many cases medical evidence may be the sole means for a rape victim to deflect the possibility of prosecution for adultery or fornication by demonstrating that the sexual contact in question was forced. Barriers to securing vital medical evidence not only prevent victims of sexual assault from mounting successful prosecutions and obtaining justice, but also heighten the potential for rape victims to be wrongfully prosecuted for adultery or fornication.
Medical evidence also plays a critical role in domestic violence cases: a medicolegal doctor's evaluation of the nature and extent of injuries determines the legal classification of incidents of domestic abuse and, consequently, the seriousness of the charges. However, concerns about the medicolegal system in the context of domestic violence remain largely theoretical because in the overwhelming majority of cases, the police simply do not conceive of domestic violence as a criminal matter, nor do they refer victims for medicolegal evaluations. Nor do the police appear to be aware that a charge of criminal "assault" does not always require the victim to have sustained physical injury.183 Since Human Rights Watch was unable to locate any domestic violence victims who were examined by medicolegal doctors, the remainder of this section will focus on the experience of victims of non-domestic sexual assault.
Despite the fact that criminal charges in cases of various forms of bodily attack depend on a medical determination of the nature and extent of injuries; despite the importance of medical evidence to securing convictions in rape cases; and despite the potential exculpatory role of medical evidence in adultery and fornication cases, Pakistan does not have an efficient and reliable medicolegal system. In general, medicolegal examinations are performed by poorly trained doctors using inadequate facilities and equipment. As bad as the system is for any victim of a violent crime, it has a disproportionately detrimental impact on victimsof rape and sexual assault.184 As a result, the government's maintenance and toleration of a deeply flawed medicolegal system is de facto discriminatory to women, who constitute the majority of rape victims.
Despite the potentially critical role for forensic evidence in rape cases, in practice, relative to victims of other violent crimes, women who have been sexually assaulted have to overcome particularly difficult barriers in order to get a medicolegal examination that yields any useful evidence. Rape victims must get authorization from the police and a magistrate's order before they can be examined by a government medicolegal doctor. These conditions may not seem difficult, but as the following subsections of this report show, in effect they serve to greatly delay and may even block victims' examinations. In addition, in most urban areas, rape victims can only be examined by a woman doctor at specialized state medicolegal centers. In contrast, most other types of cases requiring medicolegal services can be handled by the medicolegal units attached to most large government hospitals.185 This also becomes a problem in practice because of the shortage of female medicolegal doctors in government service and their limited hours of availability at a restricted number of state medicolegal centers.
Victims of violence face problems not only in the collection of medical evidence but also in its use in the courtroom. Our interviews with human rights lawyers, medicolegal doctors, prosecutors, and judges revealed that the examining doctors, prosecutors, and judges are not trained with respect to and have a superficial and simplistic understanding of the evidentiary scope and legal role offorensic evidence, especially in rape cases. Doctors present it in court without elaboration or explanation; prosecutors rarely question the doctors in order to elucidate its meaning; and judges treat the presentation of forensic evidence as a formalistic part of trials, do not subject the evidence to rigorous analytic scrutiny, and frequently misconstrue its significance.
Late Referrals and Other Police Delays
Sexual assault victims are entirely dependent on the police for information about and access to the medicolegal system. Most victims are unaware of the urgency, critical importance, or even existence of medicolegal exams, much less how to go about getting one. A victim cannot usually obtain a medicolegal exam on her own initiative. The medicolegal examination must, in practice, be done at a government facility for which an official police referral, police escort, and a magistrate's order are required.
It is generally advisable that forensic evidence be gathered and documented as soon as possible before time and intervening circumstances alter or destroy the signs and traces that constitute it. In cases of sexual assault in particular, it is critical that forensic evidence be obtained quickly because traces of semen not only disappear with time but can be lost through washing or passing urine. Other indications of sexual assault, such as internal bruising or swelling, are
also often extremely transient.186 Rather than promptly referring complainants for medicolegal examinations, the police appear to be unaware and unmindful of the urgency of medicolegal evaluations. They frequently delay or block women's access to this vital evidentiary evaluation, thereby compromising the chance of a successful prosecution from the start. The most common problem in this context is that the police, as discussed above, generally pay no attention to complainants until after an FIR is registered, and the considerable time and trouble entailed in filing an FIR automatically delays victims' medicolegal evaluations. Even after an FIR is filed, the police routinely neglect to secure prompt medicolegal evaluations for sexual assault victims. In some cases, the police have deliberately refused to provide referrals even to victims who affirmatively seek them. Often delays are caused because the police are ignorant as to the procedures to obtain an examination in sexual assault cases. In addition, the police undermine the preservation of forensic evidence by failing to inform victims of the need to refrain from washing themselves or their clothes prior to the examination.
Consider, for example, the case of Farhat K. described earlier, a four-year-old victim of a rape attempt that took place in Lahore in February 1997. Farhat K.'s family took her to the police station immediately after the attack to file charges. When they inquired about a medicolegal exam for Farhat K., the police said that it was not required for such a small child. When Farhat K.'s family insisted, and secured a taxi toward that end, the station chief persuaded them that an exam was not necessary. Although Farhat K. had not been washed or cleaned up following the attack, her family's repeated requests to the police to observe clear indications of the attack on her body were utterly ignored. The police changed their stance the following evening and took Farhat K. for a medicolegal exam, but no doctor was available. The next day, Farhat K.'s family made another attempt. Since they had been told that a magistrate's order was required, they requested the accompanying policeman to get one en route, but he insisted that it was not necessary. However, the doctor at the medicolegal center refused to perform the exam without the order, and Farhat K.'s evaluation was delayed for a fourth day.187
Parveen F., who had run away from home to Lahore, was raped by a man who had purported to help her.188 She reported the attack to a police station the next morning on April 11, 1997. The police kept her at the police station all day-while they undertook a preliminary investigation, arrested three suspects, and recorded an FIR in the case-and took her for a medicolegal evaluation that night. They were turned away by the staff at the medicolegal center because of their failure to obtain the required magistrate's order; they returned to the medicolegal center with the order the following day for an evaluation. The policewoman accompanying Parveen F. to the medicolegal center evinced ignorance as to the urgency or significance of medicolegal examinations in sexual assault cases.189 She declared to Human Rights Watch, "It makes no difference when the exam is done; immediately or a month later, it is the same thing. Still, it is better that it proceeds sooner rather than later." When asked whether the police advise women to take any precautions to preserve evidence in instances in which an examination is delayed, she said, "We don't tell a woman not to shower or anything." As to the reason for getting an examination done, she asserted, "From the examination we can tell how many people have raped a woman. That is its importance." The policewoman complained that some victims' medicolegal evaluations are delayed because of difficulties related to obtaining the requisite magistrate's order. She said that magistrates are only available from 9 a.m. to 4 p.m., even though they aresupposed to be available twenty-four hours a day, so if a victim comes to the police station after that time the police have to put off her medicolegal examination until the following day when a magistrate can be reached.
The case of Mehreen H., a rape victim in her early teens, handled by Officer Shamshad Abbassi of S.I.T.E. police station in Karachi, exemplifies the police's gross negligence with respect to medicolegal examinations of rape victims. 190 Mehreen H.'s father, who filed an FIR with the police on February 19, 1996, was told at the time that her medicolegal evaluation would be done a day or two later. Mehreen H.'s evaluation was actually done several days later because Investigating Officer Abbassi went on leave and did not arrange for it until after her return.
The experience of Kausar J., who was raped on April 28, 1996, was similar.191 When Kausar J. filed an FIR at New Karachi police station on April 30, she was told that a medicolegal examination was required in the near future. Kausar J. returned to the police station three times over the next three days for this purpose, only to be turned away on one pretext or another each time. Her medicolegal evaluation was finally conducted on May 5.
Another rape victim, Raheela A., whose case was described above, told Human Rights Watch that, although she reported the rape to Sukhan police station in Karachi immediately after the attack in February 1997-before bathing or changing her clothes-her medicolegal evaluation was done three days later because the police, looking for a bribe, stalled on registering the FIR until then.192 Sajida M.'s medicolegal examination was also delayed because the police took ten days to record an FIR in her rape case, which she reported on a timely basis after she was raped in April 1997 in Lahore.193
After obtaining a referral, victims confront a second round of delays in getting a medicolegal evaluation owing to the frequent unavailability of medicolegal doctors. Unlike other assault cases, in sexual assault cases, in practice, only forensic evidence obtained by specialized state medicolegal offices 194-injurisdictions where they exist195-is admissible in court.196 Although this is not mandated by law, most of the lawyers, NGO workers, and government officials we interviewed believed that this was the case; of the few who believed that evidence from other sources was admissible, many asserted that such evidence did not carry the same weight as that from state-run centers.197 In fact, Judge Mian Khalid, citing the police rules and Law Department Manual, categorically stated that the testimony of private doctors was not valid in court.198 Furthermore, most victims learn of the need for a medicolegal examination through the police, who routinely refer them to a government medicolegal center. Although the performance of medicolegal examinations of sexual assault victims is restricted to specialized state centers, even Pakistan's largest cities, Karachi and Lahore, with populations of approximately eight and three million respectively, have only one such center each to service sexual assault victims from every part of their metropolitan areas.199
For many victims outside the central business area, simply getting to the one medicolegal center entails formidable logistical obstacles and considerable expense. While the police are required to escort the victim to the medicolegal center in a police vehicle, more often than not, police transport is unavailable. Rather the police direct the victim to hire a taxi, despite the usually long distances and consequently high fares involved.
Furthermore, medicolegal examinations of sexual assault victims at state medicolegal centers may be conducted only by female medicolegal doctors. All the medicolegal doctors interviewed by Human Rights Watch, including the chief of medicolegal services for Karachi, asserted that there was a severe shortage of female staff among the ranks of medicolegal officers throughout the country. Medicolegal officials in both Karachi and Lahore said that the medicolegal centers in the two cities are functioning with a minumum number of female doctors. For example, in Karachi there are only three women medicolegal officers (excluding a woman assistant police surgeon who does not regularly perform medicolegal examinations) covering the three daily shifts at the Office of the Police Surgeon(the government medicolegal center) and the government-run Abbassi Shaheed Hospital in the Nazimabad section of the city. Not only do these three doctors examine virtually all the sexual assault and adultery/fornication cases referred for medicolegal evaluations by the police, but they are also responsible for performing all postmortems on women. Officials at the police surgeon's office in Karachi consistently stressed the shortage of women medicolegal doctors and the consequent pressure on the three doctors currently on staff.
Although the medicolegal centers are theoretically operational twenty-four hours a day, women doctors are only available at specific times to perform evaluations in sexual assault cases. The scheduled hours of availability of a woman medicolegal doctor at the medicolegal center in Karachi are 9 a.m. to 3 p.m, six days a week. At other times and on holidays, a woman medicolegal doctor is theoretically available at the Abbassi Shaheed Hospital. According to doctors at the main medicolegal center, Abbassi Shaheed hospital was designated the venue for evening and night shifts of female medicolegal doctors because it is was more conveniently located with respect to their residences. The scheduled shifts for female medicolegal doctors at Abbassi Shaheed Hospital run from 3 p.m to 10 p.m. and from 10 p.m. to 9 a.m. However, medicolegal doctors at the police surgeon's office in Karachi and at Abbassi Shaheed Hospital told Human Rights Watch that the women doctors assigned to these shifts are not actually present on the hospital premises during their shifts. Rather, they spend the duration at home or elsewhere and remain on call; if a case requiring their attention is brought in, the male medicolegal officer on duty is supposed to telephone them.
In practice, however, sexual assault victims are almost never referred to Abbassi Shaheed Hospital for medicolegal examinations. Their only option is to go to the Office of the Police Surgeon between the hours of 9 a.m. and 3 p.m. on a working day. If a victim arrives at the police surgeon's office after hours, "If it is not a fresh case we ask her to come again the next day. If it's a fresh case, then we send her to Abbassi. . . . However, if it is after hours, the police usually wait till the following morning to bring women anyway-especially in rape cases."200 It appears that the police are not informed about the option or encouraged to take victims to Abbassi Shaheed Hospital for examinations after 3 p.m. On the contrary, if the police bring a sexual assault victim to the police surgeon's office after 3 p.m. or on a holiday, in almost all cases the staff at the office, knowing that a female medicolegal doctor is not at hand on the premises of Abbassi Shaheed Hospital, tell them to return the next working day during the designated officehours instead of referring them to the hospital. Hence the potential availability of a female doctor to examine sexual assault victims at Abbassi Shaheed is essentially theoretical.
Based on the experience of victims interviewed by Human Rights Watch, female doctors are not reliably available at the police surgeon's office even between 9 a.m. and 3 p.m. As a result, many victims have to return repeatedly to the police surgeon's office and their medicolegal exams are delayed further. There is, for example, the case of Rehana Z.,201 whose case was cited above, who was raped by two men in February 1997 in the Manghopir area on the outskirts of Karachi. Two days after the attack, on her second attempt, Rehana Z. was able to register an FIR. However, when she arrived at the police surgeon's office for her medicolegal examination-having hired a private car for the purpose and secured the required police escort-in the early afternoon that day, she was told to return the following day because the female doctor had left at 1 p.m. that day.
The medicolegal center for the district of Lahore is known as the Office of Surgeon Medicolegal, Punjab. Medicolegal evaluations for all cases involving a vaginal examination are performed by a woman medicolegal doctor there. Two female medicolegal doctors are assigned to the center. Between them they cover two shifts daily: one from 8 a.m. to 2 p.m., and the other from 2 p.m. to 8 p.m. Although the center is open twenty-four hours a day, no woman doctor is available between 8 p.m. and 8 a.m., and hence no medicolegal examinations of sexual assault victims can be performed during those hours.202 A senior medicolegal officer at the Office of Surgeon Medicolegal noted that it was not enough to have only one female medicolegal doctor covering each shift at the center. When one of the doctors is called to testify in court, there is no doctor available to conduct examinations of women victims in sexual assault cases for the duration of the affected shift.203
Since a woman doctor is not available at night, and sometimes not even during the day, victims in Lahore also end up making repeated trips to the center, which often requires making special transport arrangements entailing substantial effort and expense. Furthermore, each trip to the center requires the victim to coordinate with the police to secure an escort, which can be difficult. Judging from victims' experiences, the police are ill-informed about the limited hours maintainedby female doctors at the Office of Surgeon Medicolegal and sometimes take sexual assault victims to the center after hours when there is no possibility of their being examined. The case of Farhat K., the four-year-old victim of attempted rape discussed above, illustrates the problem. Farhat K. was summoned by the police to a Lahore police station at 8 p.m. on February 14, 1997 to be escorted to the Office of Surgeon Medicolegal for a forensic evaluation.204 Farhat K.'s family, who lived on the outskirts of Lahore, hired a taxi for the purpose. They arrived at the center at 9 p.m., only to be told to return the following day by the male doctor on duty because no female doctor was present at that time. We interviewed Abida P.205 while she was waiting for her medicolegal exam at the Office of Surgeon Medicolegal. She had reported a sexual assault to the police on April 9, 1997, and came to the medicolegal office the same night. Since no female doctor was available, Abida P. had to wait for a medicolegal evaluation until she returned to the center the next day.
Women in Pakistan's rural areas have virtually no chance of getting a timely or professional medicolegal exam. In most rural areas there are no specialized medicolegal doctors, and victims of violence must obtain medicolegal reports from the nearest government clinic or hospital, which often requires traveling considerable distances at substantial expense.
Victims of domestic violence potentially confront fewer barriers to securing a medicolegal examination if their injuries do not entail sexual assault. First, if a vaginal exam is not necessary, victims of domestic violence may be examined by male medicolegal doctors. Furthermore, these victims can be examined at any government hospital that has a medicolegal unit; there are several such hospitals in Karachi and Lahore. The medicolegal units at government hospitals are supposed to have at least one medicolegal doctor on duty twenty-four hours a day. Yet the theoretically greater ability of domestic violence victims to secure a medicolegal examination translates into little: they rarely get to this stage of the criminal justice system given the obstacles discussed above.
Lack of Training of Medicolegal Personnel
Although a post-graduate diploma course in "medical jurisprudence" is offered in Pakistan, the majority of medicolegal officers in the country, including those with supervisory responsibility, have no specialized training in the field of forensic medicine, either academic or practical, before assuming their medicolegal posts.206 Human Rights Watch interviewed more than ten medicolegal doctors in both the specialized medicolegal centers or headquarters and the medicolegal units of government hospitals in Karachi and Lahore.
To enter government service as a medical doctor, one must have a degree from an accredited medical college and a diploma in public health. Once inducted into government service, doctors are transferred from posting to posting over the course of their careers, which usually entails a corresponding change in the substantive nature of their duties. Hence, doctors find it difficult to build up specialized expertise in any particular field. Many of the medicolegal doctors interviewed by Human Rights Watch complained that there was little incentive to develop expertise in medicolegal work when they knew they could be transferred at any time. The doctors gave examples of colleagues who had been transferred to different positions shortly after acheiving a high level of skill in medicolegal work and who were replaced by total novices in the field.207 The doctors also emphasized the fact that medicolegal postings were highly coveted and the appointments process very politicized because the field was perceived as having great potential for corruption, graft, and personal gain.
A senior medicolegal officer at the Office of Surgeon Medicolegal in Lahore, one of the few medicolegal doctors with specialized training in forensic medicine, told Human Rights Watch, "In this country there is no concept of training or specialization for medicolegal officers, most of whom are totallyinexperienced. . . . Doctors don't have trained assistants either. . . . There is no system at all."208
Dr. Lubna,209 one of two female doctors on the staff of the Office of Surgeon Medicolegal in Lahore, and two of the three female doctors210 on the staff of the Office of the Police Surgeon in Karachi told us that apart from a course in medical jurisprudence in medical college, the only training in medicolegal work they received was on the job. "I have training in gynecology and on-the-job training for this work," said Dr. Lubna.211 A woman medicolegal doctor at the Karachi center told Human Rights Watch, "We learn by doing, by looking at book references and old cases, and by asking our senior colleagues."212 Another medicolegal doctor at the Karachi center said, "There is no institutional or systematic training for medicolegal officers. We learn by consulting our seniors. There should be diploma training so that doctors have to pass an exam before they can work as medicolegal officers."213 The doctors' assistants similarly receive no systematic training. In fact, several doctors reported that frequently janitorial staff ("sweepers") substitute for mortuary attendants, who assist doctors in performing post-mortem examinations.
This lack of training was revealed by the inconsistency we found in medicolegal doctors' knowledge of the need for a prompt medicolegal exam for victims of sexual assault. Some of the medicolegal doctors we interviewed even had incorrect information on the viability of sperm and tissue samples. According to Dr. Lubna, the urgency of the exam varies with the virginity status of the victim: "Unmarried women [i.e., women who were virgins before the assault] should have the exam done within ten to fourteen days of the assault" because the condition of a freshly torn hymen is best evaluated during this time frame. "Married women[i.e., sexually active women] can come within twenty-one days," because in these women, generally there are no discernable internal injuries in any case, she added.214 On the other hand, Dr. Akmal Shaheen, a senior medicolegal officer at the Lahore office who does not examine women victims of sexual assault himself but serves as a resource for the doctors who do so, said that if a victim is examined two to three weeks after the assault, "the evidence is lost."215
Doctors were also confused about the length of time during which semen may be detected in a woman's vaginal area. Dr. Lubna said, "For twenty-one days semen shows positive in the vagina, so there is no rush."216 She does not take swabs if twenty-one days have passed since the assault because then, she said, the presence of semen cannot be detected by laboratory analysis.217 Dr. Shaheen, on the other hand, said that while in a dead body sperm may be detected for up to three weeks for sure, and sometimes even for three months, in a live person the possibility of detecting semen depends upon a number of factors, including whether the woman in question is menstruating, has urinated, or bathed and washed herself. He said, although it was conceivable that sperm may be detected for up to seventeen days in the folds of the vagina, in general, motile sperm could be detected only within three to four hours of the assault. He felt that if a victim was examined more than seventeen days after the assault, there was no point in sending vaginal swabs for laboratory analysis for the purpose of detecting semen.218
Staff at the Office of the Chemical Examiner219 in both Karachi and Lahore disagreed with both Dr. Lubna and Dr. Shaheen. According to a senior chemist at the Karachi laboratory, "Sperm can be found in the vagina for up to seventy-two hours [after the assault]. However, semen on clothing if properly dried and preserved may be detected for years."220 The head of the semen section at the Lahore laboratory explained that "semen can be detected within three days [of the sexual assault]. However, in its non-motile form, semen may be detected for up to three months."221 As for the process of semen grouping, which the doctors referred to several times though none knew of an instance when it had been successfully performed, Dr. Lubna said, "[It] can be done for twenty-one days afterthe assault without any problem,"222 while Captain Memon asserted, "For semen grouping to be done, the girl has to come [for an exam] within twenty-four hours. After twenty-four hours sperms dissolve, although the presence of semen can be detected."223
The medicolegal doctors we interviewed said that in addition to a lack of training in medicolegal techniques and methodology, they receive no training in legal and testimonial procedures.224 Doctors have no experience as to how to contextualize and interpret medicolegal evidence in a legal framework and testify with respect to it in a court of law. As a result, far from having a significant impact in cases requiring their testimony, medicolegal doctors perform perfunctory, formalistic, and superficial roles in the courtroom with their time on the witness stand reduced to a matter of minutes. The doctor's role is limited to reading out verbatim the medicolegal report they prepared and submitted to the court hearing the case. Doctors do not provide any meaningful explanation as to the limitations of the report or the range of implications of specific findings or lack thereof. They are present, in effect, merely to admit the medicolegal report into evidence rather than to provide the court with a comprehensive expert opinion as to the significance of the findings recorded in the report. Furthermore, several medicolegal doctors told us that usually cases take so long to come to trial, often up to a year or more, that by the time they are called upon to testify in a particular case, they have completely forgotten about it and just parrot their report, which is all they are expected to do in any case.
Several doctors specified that basic training in understanding a central element of Pakistan's criminal law, the Qisas and Diyat Ordinance, would be very useful. The Qisas and Diyat Ordinance aims to codify Islamic criminal law, and governs all crimes involving bodily injury including murder and assault but excluding sex crimes. It defines crimes and mandates punishments according tothe nature and extent of injuries inflicted. The ordinance, which establishes fine distinctions between different categories of crimes and incorporates arcane Arabic terminology, has been consistently criticized in Pakistani legal circles and in the press for being extremely confusing.
Because of the ordinance's focus on the type and extent of injuries actually sustained by victims, the role of medicolegal doctors in identifying and documenting the injuries assumes great significance for the framing of criminal charges. In implementing their duties under the ordinance, medicolegal doctors not only need training in properly identifying and classifying victims' injuries, but also a thorough understanding of the scope of the ordinance and the numerous categories of crimes it establishes. While some medicolegal doctors we interviewed termed the ordinance's provisions confusing and difficult to comprehend and apply, others said that they had no problem precisely classifying victims' injuries with reference to the ordinance's crime categories.
Inadequate Equipment and Facilities
In order to be reliable and useful, forensic evidence must be collected, stored, and analyzed under sterile conditions. Ideally, tissue and fluid samples should help the police and prosecutors determine when and if sexual contact took place, whether there was a struggle, and with whom. The facilities at the medicolegal offices we visited did not meet these requirements and thus compromised the quality of the evidence.
Based on repeated visits over a four-week period to the premises of the Office of Surgeon Medicolegal in Lahore and the Office of the Police Surgeon in Karachi and on interviews with their staff, we found the physical facilities so inadequate that the performance of professional and thorough medicolegal evaluations was virtually impossible. Not only does the lack of equipment and amenities hinder the collection of forensic evidence, but it can lead to abusive treatment of the examinees, including exposing them to health risks. Some doctors also complained of feeling frustrated at their inability to perform their duties professionally and responsibly on account of the abysmal condition of their offices and the lack of proper equipment.
The Office of the Police Surgeon in Karachi is housed in dingy, dilapidated, and cramped quarters, with an atmosphere more like that of a prison than a medical facility. The examination room, which doubles as an office for the woman medicolegal officer (WMLO) on duty, is the smallest, darkest, and moststifling room in the building.225 A WMLO told Human Rights Watch, "A patient who is already victimized will feel terrible in that room. A patient should be made to feel at ease and cared for."226 This narrow, dirty, windowless and unventilated room has barely enough space to accommodate a cupboard, a small table, and a writing desk that functions as an examination table. This desk is wedged into one end of the room and is hugged tightly on three sides by walls, leaving the attending doctor to approach the examinee only from the side, along the length of the desk. The examination room is also very badly lit, with only one ceiling light and a small, unreliable lamp poised above the makeshift examination table.227 This is very troubling because the goal of the examinations undertaken in the room often is to discern minute lacerations, fine cuts, bruises and discoloration on a woman's body, including her vaginal area, which requires strong lighting, particularly in the absence of specialized examination tools and equipment (See below).
Doctors performing medicolegal examinations on victims of sexual assault at the Office of Surgeon Medicolegal in Lahore and the Office of the Police Surgeon in Karachi are provided with virtually no instruments, or even supplies, to facilitate the identification and collection of forensic evidence. For example, doctors use wooden rulers to measure the dimensions of wounds on the examinees' bodies. While it is possible that a wooden ruler would suffice to approximate the surface dimensions of a wound, it cannot be used to measure its depth. A medicolegal officer at the Karachi office said, "We don't have proper kits to do [medicolegal] exams and post-mortems. I have never even seen a [examination] kit but have read about it in books. It should contain measuring tape, surgical knives, mirrors, hammer and chisel, and forceps."228 A WMLO at the Karachi office told Human Rights Watch, "We have no torch, no forceps-zero equipment. The other day I had to buy a needle-holder for post-mortems myself."229 During our visits to the medicolegal offices in Karachi and Lahore, there was no evidenceof sterilized sample containers, optical examination aids, or other instruments of any kind, although X-ray facilities were available at the Lahore office.
Dr. Lubna, a WMLO at the Lahore medicolegal office, denied that the lack of equipment posed any difficulties for doctors: "There is no need for equipment since we do not have to give treatment [to the examinees]."230 Similarly, when asked about the lack of equipment at the police surgeon's office in Karachi, Capt. Nizamuddin Memon, the chief police surgeon for the city, denied any shortcomings in this regard. "There's no instrument problem," he said.231 However, the additional secretary of the health department of the Sindh government, which oversees the state's medicolegal facilities throughout the province, the capital of which is Karachi, conceded that the government provided "no proper equipment" and that there was a shortage of trained staff owing to lack of funds.232
In both the Lahore and Karachi offices, there is even a chronic shortage of disposable gloves, which are indispensable to a hygienic and thorough examination. This lack of basic supplies leads directly to abusive treatment of examinees, who are either examined with used gloves or required to purchase gloves for their own examinations. Uzma Saeed, a legal aid lawyer working with sexual violence victims in Lahore, told Human Rights Watch that on three occasions when she acccompanied a client to the medicolegal office she was told by the WMLO, "I don't have gloves. You have to bring gloves or give money for gloves."233 A colleague of Ms. Saeed's at AGHS Legal Associates in Lahore recounted a similar experience,234 and a WMLO at the Karachi office explained, "I sometimes ask the police to buy gloves."235 Another WMLO at the police surgeon's office in Karachi told us, "Examination gloves are not meant to be re-used, but here they are re-used."236 She said that after doctors finished examining a patient, they would throw the gloves used for the examination on the ground, and later these were rinsed, without even detergent or disinfectant, by the janitorial staff.237 Health risks for both examinees and doctors are compounded by the fact that, according to a WMLO, female doctors have no access to proper washroomfacilities, let alone bathroom access for examinees. Hence, the doctor added, it was difficult for doctors even to wash their hands. This is a particularly serious lapse given the intimate nature of the examinations performed by the doctors and the shortage of disposable gloves at the office.238
The lack of resources devoted to medicolegal services for women can also extend the delays that women experience in trying to obtain examinations. A WMLO told us that the fact that there was only one examination room means long waits for examinees, even if two WMLOs were present.239 Examinations are also delayed by the periodic power outages that are common throughout Pakistan. A WMLO said,"Often the electricity goes. This room, already dark, becomes pitch black. Since there is no generator here, we have to wait for the electricity to come back on [to continue work]. Sometimes it is gone for hours."240 The doctor elaborated that at times, if the power outage is prolonged or if the doctor's shift is coming to an end, examinees are sent back and told to return the following day.
Inadequate and Abusive Examinations: Sexual Assault Cases
Purpose of Medicolegal Examination
The purpose of medicolegal examinations of sexual assault victims, in theory at least, is to collect physical evidence related to the assault so as to help establish its occurence and the identity of the perpetrator. Moreover, medical evidence can be decisive as corroboration of a woman's allegation that intercourse took place without her consent, which, as discussed above, is particularly crucial in view of Pakistani laws that criminalize adultery and fornication.241 The inadequacy of examinations in Pakistan contributes to the impunity with which violence against women occurs by making it extremely difficult to bring successfulcases against those who commit sexual assault. It also further abuses women victims by subjecting them to sometimes dangerous and often humiliating examinations as well as making them vulnerable to criminal charges of illicit sex.
Though there is no single internationally recognized standard procedure for conducting medicolegal exams in sexual assault cases, many of the protocols that have been developed share most or all of the following elements:
C after obtaining the consent of the victim, the examiner takes a detailed history of the assault, including when and where the assault took place, whether the rape was anal or vaginal, whether and at what point during the assault the attacker ejaculated, and whether the attacker used a condom in the course of the assault;
C a thorough examination of the victim's body for visible injuries, including redness and swelling in the genital area and photograph each injury;
C collection of clothing that was torn or soiled during the assault and lab specimens, including saliva, sperm, blood, and any foreign object that could be used to identify the perpetrator (such as fibers, hair, dried semen) or the location of the assault (such as sand, fibers, and twigs).242
Furthermore, as recommended by the American College of Emergency Physicians, a thorough sexual assault exam must address the medical, psychological, safety, and legal needs of sexually assaulted patients and should include counseling about possible pregnancy and testing and treatment of sexually transmitted diseases.243 Aside from physical findings and collection of laboratory samples linked directly to the assault, only gynecological information relevant to the the interpretation of the findings or laboratory data should be recorded.244 Such evidence includes the date of the last menstrual period, any recent gynecological surgery, the number of pregnancies and deliveries, and any consensual sexual intercourse within seventy-two hours of the assault.245
Pakistan has not formulated any official standard procedures for conducting forensic examinations of sexual assault victims. However, rather than centering on the collection of relevant evidence to establish the nature and extent of victims' injuries, the de facto focus of the examination is to determine whether she is a virgin. The exam is the same for both victims of sexual assault and women charged with illicit sex and involves the taking of vaginal swabs,246 a quick check of the external genitalia for signs of redness and bruising, and a "finger test" and visual scrutiny of the hymen to determine its condition and the examinee's virginity status. In certain cases women are referred to laboratories where a urine test and ultrasound exam are performed to determine whether they are pregnant and, if so, the stage of the pregnancy. Some doctors may also take the initiative to elicit a history of events from the victim, but they are neither required nor advised to do so, and there is no standard protocol or list of questions for recording a victim's story. As a result, each exam is not tailored to corroborate elements of an individual victim's story; on the contrary, doctors perform a virtually pro forma examination on every examinee, whether she alleges rape or has confessed to adultery.
Inappropriate Focus on Virginity Status
There are several problems with the medicolegal doctors' focus on the condition-that is, whether it is torn or intact-of the hymen. This focus on the hymen has no legal or medical basis and instead reflects a misplaced preoccupation with the victim's ostensible virginity status and popular misconceptions about the medical verifiability of virginity. Modern medical standards hold that the use of visual scrutiny of the hymen or the "finger test"-another technique employed by medicolegal doctors in Pakistan-to make a determination of virginity status ishighly suspect.247 Nonetheless, these tests remain standard procedure in medicolegal examinations of sexual assault victims in Pakistan. The finger test entails checking the elasticity of the examinee's vagina by seeing how many fingers may be simultaneously inserted into the vaginal canal.248 Nor is the state of a woman's hymen a reliable indicator of recent sexual intercourse and the nature, consensual or otherwise, of any such intercourse. The degree of elasticity, resilience, and thickness of the hymen, its location in the vaginal canal, and consequently its susceptibility to tearing and bruising, vary from person to person.
Furthermore, doctors do not simply record the virginity status of examinees on their reports; based on the finger test, they freqently make notations, such as "She is well used to sexual intercourse" or "She is habituated to sexual intercourse," that have no bearing on the issue of whether the defendant raped the victim on the particular instance in question. Such remarks about the sexual history of victims are then used by defense lawyers to discredit and attack their character at trial and potentially expose the women to prosecution for illicit sex.249 Thus, the medicolegal report becomes a tool for defense lawyers by providing the basis for vilifying, retraumatizing, and stigmatizing the victim, which then serves to discourage other victims from pressing charges.250
Finally, with their misguided focus on the examinee's putative virginity status, doctors virtually ignore other important aspects of evidence collection in sexual assault cases that could potentially corroborate elements of a victim's story, most significantly the non-consensual nature of the intercourse. For example, examinees are not required to undress fully for purposes of the examination, and doctors do not take adequate care in checking all parts of an examinee's body for bruises, scratches, bites, teeth marks, or other indicia of struggle or violence. In addition, doctors do not collect stray fibers or debris adhering to the victim's body that could be traced to perpetrators or the location of the assault.251
Dr. Akmal Shaheen, a senior medicolegal officer at the Office of Surgeon Medicolegal in Lahore, explained that the examination's focus on the virginity status of victims of sexual assault stems from the fact that Pakistan's rape law prior to the 1979 Hudood laws, as well as the Hudood laws themselves which now govern the crime of rape, established different penalties for raping virgins and non-virgins ("women used to sexual intercourse").252 This rationale is, however, mistaken. The Hudood laws do not prescribe different penalties for rape based on the virginity status of the victim; rather, Hadd sentences for rape vary according tothe marital, or, more accurately, muhsan253 or non-muhsan status of the offender. Thus, there is no legal basis for performing the finger test on victims and recording conclusions regarding their virginity and level of previous sexual activity as opposed to an informed medical opinion as to whether penetration has recently occurred. Similarly, Hadd punishments for the crimes of adultery and fornication differ for muhsan and non-muhsan offenders. There is no sound legal justification for performing the finger test on women suspected of adultery or fornication, despite the distinction in sentences for muhsan and non-muhsan offenders, because the test cannot ascertain whether the examinee has previously had legal sexual intercourse, which determines her muhsan or non-muhsan status. Even if the test were legally relevant, it should be abandoned given its inaccuracy and inadequacy as a medical technique for its stated purpose of determining a woman's virginity and level of sexual activity.
The focus on the state of the hymen greatly reduces the value of the exam for all victims of sexual assault. Moreover, the uniform focus of and standard procedures applied in every examination renders it virtually useless for sexually active women for whom the patterns of injuries emanating from sexual assault can be considerably different from those of women who are not sexually active and hence require adapted examination techniques that take into consideration an examinee's age, whether she is sexually active, and the number of children to whom she has given birth. Many of the medicolegal doctors and law enforcement officials interviewed by Human Rights Watch acknowledged that the examinations of married women as currently carried out had little or no evidentiary value. Dr. Lubna from the Office of the Surgeon Medicolegal in Lahore said that in cases in which the victim was a virgin before the rape, the condition of the hymen is a useful indicator of recent sexual intercourse when the examination occurs in a timely fashion because it is possible to discern "a freshly torn hymen" and distinguish between "a freshly torn hymen and an old torn hymen."254 "We can tell if the hymen is freshly torn with the eye, since it will have abrasions and lacerations around the edges. The edges of a hymen with an old tear are smooth," she said. She added, "For a married woman, one cannot tell if she has been raped or not from the hymen. Also, no injury shows, especially in older women, so generally not much evidence is collected from married women. . . . It helps in thecase of unmarried women that the vagina is tight, to show that it could have been rape."255
The police do not expect medicolegal exams of married women to be useful in terms of securing evidence because of the focus on the condition of the hymen. SHO Ashiq Martha of Ichra police station told Human Rights Watch, "In the medicolegal exam, doctors check women's chastity. If it is a virtuous and pure woman, her body will have changed. So for virgins, because the internal hymen tears, the medicolegal exam is useful. For married women, no internal wounds are possible. Only external bodily injuries can be found."0 Judge Javed Qaiser also asserted that medicolegal exams of married women were not effective. "The [condition of the] hymen is the only way to determine [for virgin victims] what occurred, though hymens can also be broken by activities like cycling. But for married women, how can medical exams help?" he asked.1 A WMLO at the police surgeon's office in Karachi had an answer. She said,"If a woman has been married for a while, there will still be congestion [redness], though only for a day or two. We can find vaginal injuries, but time is of the essence. Also, if the woman has struggled, we can find signs of struggle on other parts of the body such as the breasts, thighs, swollen lips."2
The fact that doctors do not even consistently ask victims for details about the assault also undermines an exam's value because, in order to be comprehensive and elucidative, the exam should reflect and be informed by the victim's experience. In part because of the mistrust and skepticism discussed earlier, medicolegal doctors examining victims of sexual assault in Pakistan as a rule conduct exams and seek evidence strictly in accordance with written police requests and as ordered by a magistrate.3
Some doctors pointedly refrain from asking the victim her story. Others, we found, interrogate the victim with a view to demonstrating the purported implausibility of her version of events. Three Karachi doctors we interviewed try to take a history of the incident from the examinee unless the information providedby the police is satisfactory;4 however, they have not been provided with a systematized protocol or list of questions and do not, for example, ask questions about condom usage or ejaculation by the defendant. Dr. Lubna explained, "We don't take a history from the woman because she could fabricate or say what her parents have told her to say."5 Dr. Lubna does not use a standard list of questions to elicit information about the assault from examinees: "It would not help if we used a questionaire because we would not know if the woman is telling the truth or not."6 The doctor said that the exam procedure includes checking the virginity of unmarried women to "[s]ee if she is lying and is actually habituated to sex."7 She added that it was important to match any semen found on an examinee's body with that of the defendant because "[s]he could have put someone else's semen on herself" to fram