Zafar Aziz Chaudhry
PAKISTAN Prime Minister Imran Khan on 24 November this year approved in principle a law on chemical castration of rapists and fast tracking of sexual assault cases. This decision was made after massive uproar in Pakistan over a recent gang-rape case, in which PM’s immediate reaction was that deterrent punishment should be prescribed in the form of Chemical Castration & Public Execution for Rapists. Rape is a sensitive and heinous offence which is seldom reported to the Police. In a rape and murder case of a seven-year-old girl in Lahore in January 2018 and more recently the motorway gang-rape on Lahore Motorway sparked a debate on the severity of punishment for rape to prevent sexual assaults. In this case, a Pakistani woman was allegedly gang-raped in front of her children by robbers on a motorway in Punjab province on September 9 this year, triggering a public outcry and sending shockwaves across the nation.
To combat rising cases of sexual attacks on women and children in Pakistan, the Federal Cabinet has approved in-principle two anti-rape ordinances aimed at handing out exemplary punishment, including chemical castration and hanging, to rapists, according to a media report. Their detail has not so far been released, but the Information Minister declared that The Anti-Rape (Investigation and Trial) Ordinance 2020 and Pakistan Penal Code (Amendment) Ordinance 2020 would be finalized in a week to be promulgated. It is presumed that these legislations will be first enforced through ordinance, and later debated and approved by Parliament. It was also indicated that for the first time in the history of Pakistan, the definition of rape has been changed by incorporating “transgender” and “gang-rape” in it, the report said. In 1996, California for the first time enacted death penalty and chemical castration as punishment for rapists, and later many countries around the world followed suit. However, such laws were branded as draconian and a “return to the Dark Ages.” Amnesty International branded it as “the ultimate denial of human rights”. Death penalty is a kind of retributive form of justice. At present, 58 nations actively practice it, including Pakistan, India, China and the USA, while nearly 140 countries have abolished it, including the European Union. The American Supreme Court held that the Eighth Amendment does not permit the State to punish the crime of rape of even a child with the death penalty. Thus in the USA, the death penalty is limited to espionage, treason, terrorism and major drug sences. The history of law of rape in Pakistan shows that prior to 1979, Section 375 of the Pakistan Penal Code stated that girls younger than the age of fourteen were prohibited from sex acts even if consent was acquired. Despite this, the previous laws also claim that rape during marriage is not considered rape as long as the wife is over the age of fourteen.
In 1979, the Pakistani legislature passed Enforcement of Hudood Ordinance, 1979, and prescribed harsh punishments for sex offenders. But due to severity of punishments and requiring 4 witnesses to prove the offence of rape, this legislation became unpopular. Thus in November 2006, National Assembly of Pakistan passed Women Protection Bill to amend the heavily criticized 1979 Hudood Ordinance laws. Under the new bill, death penalty for extramarital sex and the need for victims to produce four witnesses to prove rape cases were removed. Death penalty and flogging for people convicted of having consensual sex outside marriage was also removed. However, Consensual sex outside marriage was still treated as a criminal offense with a punishment of five years in prison and fine.
Thus The Women Protection Bill of 2006 described rape by saying that “A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions,(i) against her will. (ii) without her consent (iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt,(iv) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or (v) With or without her consent when she is under sixteen years of age.”
The punishment for rape under 2006 Women Protection Bill was either death or imprisonment between ten and twenty-five years. For cases related to gang rape, the punishment is either death penalty or life imprisonment. On 7 October 2016, Pakistan’s Parliament unanimously passed a new anti-rape and anti-honour killing law called Criminal Law (Amendment) (Offence of Rape) Act 2016 which introduced harsher punishments for the perpetrators of such crimes. According to the new law, anyone who rapes a minor or a mentally or physically disabled person will be liable for the death penalty or life imprisonment. This law made DNA testing as mandatory in rape cases. The media was also be restricted from publishing or publicising the names or any information that would reveal the identity of a victim. The trial for rape had also to conclude within three months. Child sexual abuse is widespread in Pakistani schools. In a study of child sexual abuse in Rawalpindi and Islamabad, out of a sample of 300 children 17% claimed to have been abused and in 1997 one child a day was reported as raped, gang raped or kidnapped for sexual gratification.
There are at least 11 rape cases reported in Pakistan every day with over 22,000 rape cases reported to police across the country in the last six years, according to official statistics. However, only 77 accused have been convicted which comprise 0.3% of the total figure. Why the rate of conviction in rape cases is so pathetically low? On the other hand the incidence of occurrence of illicit sex is very large as compared with the cases of rape reported to the police. Beside various other reasons for so few rape cases, one primary reason is that in most cases, sexual act takes place with the consent of the girl. In such a case, the act becomes fornication and not rape. When incidence of such consensual but illicit sex become publically known, these cases of fornication are distorted into rape by the girl’ parents as a matter of vengeance. Hence genuine cases of rape are very rare.
Normally in such cases, during the course of trial, the parties or the witnesses are won over and the case of rape falls flat. But when rivalries between the parties are old and strong, then the cases end in conviction. In such a background, castration of convicts, should not be resorted to, which is rather cruel and inhuman. Another argument against castration is even more solid. Castration of a male is not only a punishment for him, but also indirectly a punishment for his legally wedded wife who is permanently deprived of her conjugal rights. If a convict after castration is feared to become a terrorist or a serial killer, his wife too will hanker after illicit sex and corrupt the society.
—The writer is a former civil servant and an author of two well-known books, “Moments in Silence” and “My Inner Landscape”. Occasionally contributes to the national press.
