The system & rape survivor By Arifa Noor

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“Normally people in our social set-up are unwilling to take cases of rape to courts because of the belief that publicity in the case will attract and would affect the reputation and honour of the family and more particularly, the woman. However, wherever resort to courts is unavoidable … a general possibility that the girl was a willing party to the occurrence, would hardly be admitted or conceded. In fact, it is not uncommon that a woman, who was a willing party, acts as a ravished woman, if she is surprised when in amorous courtship, lovemaking or in the embrace of a man she has not repulsed.” — Federal Shariat Court judgement

WRITING is not easy, to be honest. Every week it requires coming up with an issue and then an argument. Once this stage is over, the construction begins, brick by brick. What will be the beginning, the opening sentence; when and how will the arguments be woven in and in what order and then what will be said in the end. Will the conclusion simply sum up the earlier arguments or should a twist be added? And then there is the precision of newspaper space — all of the above has to be done within a specific word count and a tight deadline!

All of this is a pain and a half for those of us to whom writing doesn’t come naturally. (Oh, do I envy Mohammad Hanif!)

But once in a while, one stumbles on an issue that makes this exercise redundant for the facts in themselves are enough. ‘Craft’ or ‘form’ becomes redundant. Such is the case this week thanks to a book, Disputed Legacies, edited by Neelum Hussain.

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What if the court does not think the accusation hurts the survivor’s ‘honour’? It’s best to not think of the answer.

A compilation of essays on sexual violence in Pakistan, the book was a timely read at a time when the motorway case is still fresh in our memories, even though banned from television screens. Its essays on the law and its practitioners make it clear that the problem is so much bigger than we realise. If the system is geared and set up to weed out the ‘false’ accusations of rape rather than punish those who commit this crime, it is no wonder we manage to catch few offenders and convict even fewer. The figures presented in the book say that only one of every 15 cases goes to trial; the majority are settled!

But why does the book make such a preposterous claim, one can imagine readers asking. Because, for one the medical jurisprudence books used in Pakistan were written before independence and focus on the local culture in which ‘female duplicity’ had to be guarded against. Hence, medical evidence focused on disproving ‘false charges’. And this requires finding evidence of resistance.

“It is not possible for a single man to hold sexual intercourse with a healthy adult female in full possession of her senses against her will, unless she is taken unawares, thrown accidentally on the ground … as to render her completely helpless, or unless she swoons away from fright or exhaustion after long resistance,” says a textbook still in use here. In other words, without the evidence of resistance, there is little evidence of rape.

But let’s not single out another link in the chain. False accusations is a matter of belief in the entire system, it seems. We have a term for women — habitual — who make such complaints.

An additional sessions judge is quoted as having said, “married women who bring cases are all politically motivated cases; they make up stories; nothing has happened to them and if something has happened it is with their consent.” The judge is a woman.

And a female sub inspector is confident that “shakal se hi pata chal raha tha keh yeh habitual hai [it is discernible from her face].” A male chief chemical examiner says, “When women come with evidence, we know it’s a fake [rape] case.”

No wonder the book is littered with excerpts from judgements such as the following: “These … facts strongly tend to show that Mst P.A. was used to sexual intercourse and that the sexual intercourse that the petitioner allegedly had with her … was not the first sexual intercourse that she had had. I am, therefore, of the view … that Mst P.A. was a consenting party to the act of sexual intercourse with the petitioner. In my view, the inevitable result of this finding should have been that Mst. P. A. had left with the petitioner of her own accord and that nobody abducted her.” (Lahore High Court judgement, 1989)

Conversely, a rape has been seen as genuine if making it public and reporting the crime would bring harm to the woman. Consider the case in which a married woman was raped by a relative who had enmity with the survivor’s husband. The court ruled: “The victim was an elderly lady and had four daughters and six sons … it is impossible to believe that she will put her honour and of her entire family at stake by lodging a false case against her relative.”

What if the court does not think the rape accusation hurts the ‘honour’ of the survivor? Perhaps it’s best to not think of the answer.

But sometimes individuals can overcome the obstacles. One such survivor was Mukhtaran Mai — a poor rural woman, who had been married and was not a virgin. And yet her story was so widely known that her case reached the highest court of the land.

But it is no surprise to find scepticism regarding her accusations in the majority judgement; one aspect was the late registration of the complaint. It said: “In a case of an unmarried virgin victim of a young age, whose future may get stigmatised, if such a disclosure is made, if some time is taken by the family to ponder over the matter, that situation cannot be held at par with a grownup lady, who is a divorcee for the last many years; the element of delaying the matter to avoid badnami may also not be relevant in this case because the incident according to the prosecution’s own stance was known to a large number of people and there was no point in keeping it a secret from everyone.”

Some pieces just write themselves.

The writer is a journalist.

Published in Dawn, October 13th, 2020