To the Government of Pakistan
Legislative and Regulatory Reform:
· The Offence of Zina Ordinance, which codifies Pakistan's current law on rape and adultery/fornication, does not provide an adequate legal avenue for victims of rape to obtain justice and should be repealed.
The Zina Ordinance discourages rape victims from filing charges by presenting the threat of potential prosecution for adultery. These laws are also seriously flawed because they fail to criminalize marital rape and to establish the crime of statutory rape or sex with or without the consent of a minor. Furthermore, the definition of rape encompassed by the Zina Ordinance is incomplete; the definition of rape should include anal and oral penetration as well as penetration by foreign objects such as sticks, bottles, or knives.
· The former provisions of the Pakistan Penal Code on rape should be re-enacted into law with amendments to make marital rape a criminal offense and to incorporate the broader definition of rape given above.
· Pending repeal of the Zina Ordinance, immediate steps should be taken to ascribe different section numbers to the crimes of zina (adultery/fornication) and zina bil jabr (rape).
Currently these crimes are established by Section 10(2) and Section 10(3) of the ordinance respectively. Subsuming both crimes under Section 10 has led to great confusion in the registration of First Information Requests (FIRs) for rape and in subsequent legal proceedings, which are based on the contents of the FIR. The police frequently register rape complaints simply under Section 10 of the Zina Ordinance, without specifying the applicable subsection. The ensuing ambiguity as to the type of crime in question not only mars the police investigation but also leads to additional trauma for the rape victim because of the potential created for a wrongful prosecution for adultery. Furthermore, since amending an FIR is a very difficult process, in most cases the ambiguity persists until final disposition of the case. In a few instances, police sloppiness in registering FIRs has led to rape prosecutions proceeding under Section 10(2) of the Zina Ordinance, which has resulted in lower sentences for defendants. Hence it is imperative that the crime of zina bil jabr be codified under a completely separate and free-standing section of the ordinance.
· Article 151(4) of the Qanun-e-Shahadat Order of 1984 that, in cases of rape and attempted rape, allows for the admission of evidence to show that "the prosecutrix was of a generally immoral character" should be repealed; the Qanun-e-Shahadat Order should be amended to prohibit explicitly the admission of such evidence.
It is now widely recognized that the general reputation of the victim has no bearing on whether she was raped in a particular instance. Many countries have enacted "rape shield laws" that explicitly bar the admission of reputation or opinion evidence relating to a woman's past sexual behavior in rape cases. Such rape shield laws also prohibit the admission of other evidence regarding a woman's past sexual behavior outside of a few limited exceptions.
· Article 17 of the Qanun-e-Shahadat Order of 1984 should be amended to explicitly guarantee the right of women to have their testimony given equal weight to that of men in all cases.
· A specific set of laws should be enacted explicitly criminalizing all forms of domestic and familial violence against women, including assault, battery, burns, acid burns, sexual assault, forced abortions, and illegal confinement, at the hands of husbands, in-laws, and other relatives.
· A provision should be added to the Criminal Law (Amendment) Act of 1997 to specify that "honor killings" are punishable as qatl-e-amd (intentional murder) and to explicitly prohibit the practice of mitigation of sentences in such cases. There should be an explicit prohibition against the application of the common law defense of grave and sudden provocation to cases of honor killings.
· The Criminal Law (Amendment) Act of 1997 should set out clear guidelines for assessing and distributing diyat (blood money or monetary compensation) based on the principle of gender parity and non-discrimination. Hence it should be explicitly stated in the law that the amount of diyat for male and female victims should be equal, to be distributed in equal shares among male and female heirs. Courts should retain discretion to allocate larger shares to heirs who are minors or physically or mentally disabled.
· A provision should be added to the Code of Criminal Procedure to allow judges, at the request of the victim, to hold rape and domestic violence trials in camera. Such a provision is necessary in light of the social stigma attached to rape and the psychological trauma experienced by victims of rape and domestic violence, which may be heightened by a public proceeding.
· For the same reasons, and given the consequent reluctance of victims of these crimes to approach the courts, the Code of Criminal Procedure should be amended to empower courts to withold the name, address, and other identifying information about the victim in rape and domestic violence cases from the media and general public.
· The government of Pakistan should sign and ratify, without reservations, and bring domestic law and practice into compliance with, the International Covenant on Civil and Political Rights.
Reform of Police Practice and Rules:
· The police rules should establish clear and explicit guidelines for police intervention in cases of domestic abuse, including standardized arrest policies for perpetrators. Women victims of such violence are entitled to equal protection and enforcement of the law. Family violence cases should not be treated as "private problems" and as therefore unsuitable for intervention by the criminal justice system. It should be made clear that it is inappropriate conduct for the police to attempt to get the concerned parties to reconcile or reach a settlement.
· A standard course of training on domestic violence, rape, and sexual assault should be required for new police recruits and serving officers. The government should commission individuals and organizations with expertise and experience in working with women victims of violence to develop a training program and to achieve its national implementation.
Police must be trained to eliminate gender biases in their responses to cases of violence against women. They should receive basic legal training to enable them to distinguish between crimes of zina (adultery or fornication) and zina bil jabr (rape), comprehend the criminal nature of spousal and other family violence, and understand the parameters and elements of criminal assault. In particular the police should be trained to realize that domestic or family violence is not to be excused,tolerated, or condoned under any circumstances. In addition, the police should be trained in investigative methodology applicable to cases of domestic and sexual violence, including effective and respectful interviewing procedures for victims of these crimes and methods for protecting victims and witnesses from harassment by defendants (including physical violence, threats, and bribes to withdraw complaints). Police should receive professional training in basic medicolegal principles, methods for gathering medical and other forensic evidence, and in the legal and evidentiary significance of medical information in rape cases.
· The police rule requiring that an FIR should be filed immediately upon receiving a complaint should be rigorously enforced, although filing an FIR should not be a prerequisite to obtaining a medicolegal exam for rape victims.
· Women who have been raped or sexually assaulted and report to a police station should be given the option to be taken immediately by the police to be examined by a specialist medicolegal practitioner. In rape cases women should also be able to go directly for a medicolegal examination without police escort or intervention. Hence, in cases of rape, there should be no requirement, in law or in practice, that an official complaint or FIR be registered prior to the victim's medicolegal examination. The requirement of obtaining a magistrate's order prior to the victim's medicolegal examination should also be eliminated in rape cases, provided that medicolegal doctors take the woman's written consent before conducting such exams. In adultery or fornication cases, however, the requirement that an FIR be lodged and a magistrate determine the accused's consent before a medicolegal examination is performed should be maintained.
· The government should create an independent mechanism in each province to monitor and oversee police treatment of women victims of violence. This body should be empowered to hear complaints and to take steps to discipline police officers who reject complaints of sexual or domestic violence without cause, harass complainants or their families, close cases without cause, or accept bribes to block investigations.
· More women's police stations should be established with equivalent status to other police stations. The staff of women's police stations should be equipped and trained to refer women victims of violence to shelters, legalaid organizations, and other nongovernmental organizations offering support services for abuse victims.
The Medicolegal System:
· Rape victims should have access to medicolegal exams performed by female practitioners twenty-four hours a day, seven days a week, including national holidays. The availability of female practitioners should be ensured by having one present on the premises of medicolegal centers at all times. The fact that a female practitioner is technically "on call" does not guarantee that victims will receive timely examinations.
· In large metropolitan centers like Karachi and Lahore, there should be at least two geographically dispersed and fully staffed venues where victims of rape may obtain medicolegal examinations at all times. At present, at any given time, rape victims are examined at only one venue in each city; this poses considerable logistical hurdles to victims who live far removed from the downtown districts. At a minimum, either an additional full-service medicolegal center should be established in each city, or one major government hospital should have a female medicolegal doctor available on the premises twenty-four hours a day to examine victims of rape.
· Women who have been sexually assaulted and report to a public health facility should, wherever possible and with their written consent, be examined for medicolegal purposes at that facility, if necessary after calling a specialist from elsewhere to carry out the examination. The woman should be informed of her right to lay a charge and, with her consent, police should be called to the facility for the crime to be reported. Police involvement should not, however, be a prerequisite for conducting the medicolegal examination, which should always be carried out as soon as possible.
· The services rendered by medicolegal doctors at the specialized medicolegal centers should be expanded beyond collection of medical evidence to the provision of basic medical treatment and referrals to nongovernmental organizations providing legal aid and counseling to victims of sexual and other violence.
· More female medicolegal doctors should be appointed in both urban and rural areas.
· Explicit regulations should be adopted to allow private doctors to be certified to conduct, in rape cases, official medical exams that would constitute admissible evidence at trial.
· The nature of the medicolegal examination performed on victims of rape and sexual assault and the format of the medicolegal report in such cases should be immediately changed. The focus of the exam should be on detecting signs of nonconsensual sexual intercourse rather than attempting to check the purported virginity status and vaginal elasticity of the examinee. The victim's entire body should be thoroughly examined for signs of struggle and for foreign materials of forensic significance, such as clothing fibers, twigs, sand, and gravel. The medicolegal report should make no reference to the examinee's presumed level of sexual activity based on the "finger test" or any ostensible assessment of her vaginal elasticity. Such notations on the medicolegal report have no legitimate probative value in a rape case and are highly prejudicial and inflammatory, as well as being medically baseless.
· The medicolegal examination performed on women accused of zina should also focus on detecting signs of nonconsensual sexual intercourse, since, in many cases, women who have been raped are falsely accused of zina. The practice of checking the virginity status of women accused of zina should be discontinued in light of the scientifically flawed methods employed for this purpose. Modern medical standards hold that the use of the condition of the hymen to indicate recent sexual intercourse or virginity status is medically groundless.
· The medicolegal examinations performed on suspected rapists should not be limited to a potency test. The suspect's body should also be examined for signs of struggle, such as scratch marks and bruises.
· Training programs should be developed and systematically implemented for all government doctors entrusted with medicolegal duties in rape and adultery/fornication cases, both as a requirement before appointment and as annual in-service training. These programs should focus on relevant medicolegal methodology and principles, the psychological impact ofsexual assault on victims, and the legal significance of medical evidence in these cases. Doctors should be trained in methods to present their findings effectively and professionally in court.
· Manuals should be developed for doctors responsible for examining rape victims that outline the relevant laws for their work, review specialized medicolegal techniques (for example, ways of determining the time of injury), and provide detailed descriptions of injuries specific to sexual assault in both adult and child victims.
· Standardized protocols for the examination and treatment of victims of rape and the collection of biological samples should be developed and distributed to all those engaged in conducting medicolegal examinations in rape cases.
· All government medical facilities where medicolegal exams are conducted should be adequately supplied and maintained to ensure the performance of effective and hygienic examinations.
· Governmental laboratories where medicolegal samples are analyzed should be adequately staffed, supplied, and supervised, so they can provide fast, reliable, and professional service. The two main laboratories, the Offices of the Chemical Examiner in Karachi and Lahore, and all secondary goverment laboratories under the supervision of these offices, should be strictly monitored by the relevant provincial health departments to identify corrupt and inefficient practices.
· Provincial departments of health should develop and implement training programs for laboratory staff, both as a requirement before appointment and as annual in-service training.
· The provincial departments of health should set and strictly enforce an appropriate timeline during which the Offices of the Chemical Examiner in their respective jurisdictions must complete testing samples and send out the results. At present the Offices of the Chemical Examiner observe no systematic timelines for conducting standard tests on medicolegal samples and frequently inordinately delay isssuing analysis reports, at times seriously hindering the progress of rape trials.
Improved Prosecution Services:
· Special prosecutors should be identified in every district to try cases of rape and other forms of violence against women. These prosecutors should not be assigned to the court of a particular judge but should be empowered to handle cases of violence against women in all the trial courts in their district.
· Prosecutors responsible for cases of violence against women should be trained to eliminate gender bias in their approach to and handling of these cases and to recognize the serious and criminal nature of domestic violence. In addition, prosecutors should receive specialized training in prosecuting sexual assault trials, which must impart an understanding of legal theories applicable in rape cases and a thorough grasp of the legal significance and courtroom use of medicolegal evidence.
· Prosecutors should be instructed to argue for the imposition of strict bail conditions in cases of family violence in which there is a history of violent assault.
· The government should give top priority to the provision of shelters for abused women and their dependent children, with the assistance of nongovernmental organizations with experience working with women victims of violence and knowledgeable about their needs. Seeking residence at such shelters should be a strictly voluntary option for women. Shelters should not function as remand homes or serve any custodial or reformatory purpose. In addition, the government should fund programs to provide legal assistance and counseling services for women at the shelters.
· The government should help fund telephone hotlines for women victims of violence in all major cities. These hotlines should be widely publicized and operated by trained staff who can offer basic counseling and refer women to specialized service providers and to shelters.
· More burn units should be established in government hospitals. The capacity of existing burn units should also be expanded and the quality of care should be improved.
· Efforts to monitor and improve the Pakistan government's response to violence against women would be greatly enhanced by the availability of reliable national statistics detailing the nature and degree of such violence, the rates of prosecution and conviction, and the nature of punishment applicable in cases of sexual assault and other violence against women. At present, statistics regarding adultery/fornication and rape are commingled. It is imperative that rape be identified as an independent crime category for which separate statistics are compiled. Similarly, domestic violence cases should be distinguished from other assaults, and comprehensive statistics about the incidence of domestic violence and about court proceedings initiated in such cases should be recorded and disseminated.
Recommendations to the United Nations
· The Secretary-General of the United Nations and the United Nations High Commissioner on Human Rights should ensure that all United Nations agencies operating in Pakistan pay particular attention to the issue of violence against women and develop programs and strategies designed to curb that abuse and promote accountability.
· The United Nations Committee on the Elimination of Discrimination Against Women should take note of the Pakistan government's inadequate response to the problem of violence against women and press the United Nations Human Rights Commission to examine the government of Pakistan's compliance with applicable international laws and standards outlawing discrimination against women.
· The World Health Organization (WHO) should provide technical assistance to the government of Pakistan in developing standardized protocols for conducting medicolegal examinations in cases of rape and sexual assault and in identifying effective medicolegal techniques and requisite equipment to implement the protocols. WHO should also assist the government of Pakistan in designing and implementing training programs for medicolegal doctors responsible for conducting these medicolegal examinations.
· The United Nations Development Programme, in conjunction with the Pakistan government and nongovernmental organizations, should designand implement service programs for women victims of sexual and other violence, inlcuding legal literacy, legal aid, counseling, shelter, and job training programs.
Recommendations to the World Bank and Other
International Lending Institutions
Given its relationship with the Pakistan government, and its priority on working with NGOs in Pakistan, the World Bank is in a particularly influential position to promote constructive reforms and to assist in meeting the needs of women victims of violence.
· In its ongoing policy dialogue with the government on gender issues, the bank should urge improvements in the legal infrastructure and other reforms that would help address some of the fundamental obstacles to women seeking redress for crimes of sexual and domestic violence.
· Assisting the Pakistan government in developing an effective policy on sexual and domestic violence, in compliance with its international treaty commitments, should be an explicit objective included in the Country Assistance Strategy (CAS) when it is adopted by the bank to lay out a framework for its development work over the following three years. Progress on gender equity and sustainable development for women in Pakistan cannot take place in an environment in which women's basic rights are routinely violated by a system that does not protect them from sexual and domestic violence. Bilateral donors participating in the next consultative group (CG) annual donor meeting, convened by the World Bank, should also raise these concerns at the CG.
· With its NGO partners in Pakistan and government authorities at the national, provincial, and local levels, the bank should explore possibilities for pilot projects aimed at assisting both rural and urban women, including the establishment and funding of medicolegal clinics set up specifically to meet the needs of women subject to violence. The bank should also do an assessment study, with NGO input, of the need for women's shelters and offer to fund the establishment of shelters.
· International lending institutions should make it a priority to provide funds for programs with nongovernmental organizations and the Pakistangovernment to train police, prosecutors, and judges to eliminate gender bias in dealing with cases of rape, sexual assault, and spousal battery and to treat these cases with the requisite seriousness and rigor.
· International lending institutions should make it a priority to provide funds to the Pakistan government for improving its medicolegal services. Funds should be earmarked for training personnel as well as upgrading physical facilities and equipment.
· International lending institutions should make it a priority to provide funds to nongovernmental organizations and the Pakistan government for the provision of basic services for women victims of violence, including legal aid, medical care, and counseling.
· International lending institutions should, prior to approval of projects, investigate the effect of proposed policies and programs on the welfare and status of women. Projects with adverse discriminatory consequences for women should not be pursued.
Recommendations to the International Community
Bilateral donors, including Japan, the European Union, and the United States should
· Use their influence to encourage Pakistan to adopt the recommendations outlined above. They should raise the issue of an inadequate government response to the problem of violence against women at every diplomatic opportunity at high levels and through their embassies in Pakistan.
· Grant funds for and design, in cooperation with nongovernmental organizations, programs to provide basic services for women victims of violence. These services should include women's shelters, medical care, counseling, and legal aid, which are necessary to encourage and enable women to come forward and seek safety from and justice for abusive treatment.
· Encourage Pakistan to repeal the discriminatory Zina Ordinance and to reenact Pakistan's previous rape laws with an amendment to make marital rape a criminal offense.
· Use their influence to encourage Pakistan to implement specific legislation that would explicitly criminalize domestic violence.
· Provide funds to the Pakistan government for improving its medicolegal services. Funds should be earmarked for training personnel as well as upgrading physical facilities and equipment.
· Organize and fund programs to train police, prosecutors, medicolegal doctors, and judges to eliminate gender bias in handling cases of violence against women.
· Through their "women and development" and "grassroots" initiatives, provide funds for nongovernmental organizations in Pakistan that assist women victims of violence.
· Encourage Pakistan to implement the recommendations of the Commission of Inquiry for Women. The commission was set up through a Senate resolution in September 1994 and presented its report to Prime Minister Nawaz Sharif on August 21, 1997. As this report went to print, the government had not debated, let alone adopted, any of the commission's recommendations.