The promised ordinances

The promised ordinances

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On Tuesday, the President of Pakistan granted his assent to two “promised” ordinances, which had remained in the works for some time – the Anti Rape (Investigation and Trial) Ordinance, 2020 and the Criminal Law (Amendment) Ordinance, 2020. The ordinances, promulgated in response to horrific and unabated incidents of sexual violence significantly amend the legal conceptualization of rape, impose harsher (and controversial) punishments and set in place a complex regulatory structure to handle and monitor cases of sexual violence.  

Section 375 of the Pakistan Penal Code (PPC), as amended by the Criminal Law (Amendment) Ordinance, 2020, now includes within the definition of the offence object rape, penetration of and through body parts other than genitalia. This amended definition brings our law in line with international standards and (at least on paper) fills what had been a persistent gap in our law.

Significantly, rape is now conceptualized in gender neutral terms, meaning thereby that under the amended law sexual violence committed against men and transgenders is now recognized as rape and is subject to the penalties provided for it in the PPC. Furthermore, the explanation to the amended section 375 PPC dismantles a regressive rape myth entrenched in our socio-legal mindset: that absence of physical signs of resistance (such as injuries or marks) on the rape victim’s body implies the presence of consent. The law now categorically states that a failure to resist does not indicate consent.

However, the prescription of chemical castration, under the newly-inserted section 375B PPC as punishment for repeat offenders and, in some exceptional cases, first-time offenders in cases of rape, is controversial. 

The punishment is to be provided at the court’s discretion and in accordance with rules that shall be framed in due course. It is significant to note that the draft of the ordinance which was approved by the Cabinet Committee on Legislative Cases had prescribed chemical castration as a voluntary penalty, which required the consent of the convict, and was to be administered as a “rehabilitative`’ measure. This has quite obviously been dropped. 

The penalty, as enforced in several other countries, is largely consensual and is generally employed in cases involving child sexual offenders. 

Consent to chemical castration is often accorded in order to secure parole or early release, the rationale being that: the reduction in a man’s libido on account of chemicals injected would reduce his propensity to engage in deviant conduct, and thereby render him no longer a threat to society.

Some studies suggest that this equation is correct; the reliability of such studies, however, has been questioned, and findings to the contrary are also in the field.

While pathological sexual offenders may fit this equation, others who commit sexual violence, not on account of their uncontrollable libido, but as a weapon of dominance and force may not do so. Chemical castration will not address the anti-social instincts and conduct of the latter group, and may not be the deterrent that the state is touting it to be. There are also questions regarding the compatibility of such penalty with human rights standards. 

Significantly, rape is now conceptualized in gender neutral terms, meaning thereby that under the amended law sexual violence committed against men and transgenders is now recognized as rape and is subject to the penalties provided for it in the PPC. 

Sahar Zareen Bandial

On the procedural side, the Anti-Rape Ordinance provides for the establishment of specialized courts to hear matters such as sexual assault, sexual harassment, child pornography, rape, child marriage etc., and pass decisions within a time frame of four months. The Ordinance also provides for the establishment of Anti-Rape Crisis Cells in government hospitals, to serve as one-stop shop providing services from the registration of FIRs to the collection of evidence and the conducting of medico-legal examinations.

An Anti-Rape Crisis Cell is to be manned by the Medical Superintendent of the hospital, the Divisional Police Officer (or such other officer as may be designated) and an Independent Service Providers (ISPs), whose apparent role is to accompany a victim to trial proceedings in order to “reduce the risk of duress, victimization of any nature, or any adversity”. ISPs may be lawyers, psychologists, doctors, lady health workers or such persons skilled to deal with victims of sexual violence.

The intention behind such amendments – to ensure quicker decisions, and ease the trauma inflicted on rape victims by cumbersome and insensitive legal procedures – is commendable. The real question is whether the state is committed to implementation. 

The Violence Against Women Centres that were envisioned under the Punjab Protection of Women Against Violence Act, 2016 as a similar one-stop arrangement exist only on paper, with the centre established in Multan also reportedly non-functional. 

Earlier directions under the 2016 rape law amendment to conclude rape trials within specific time periods also have not borne fruit. The provision of free legal aid and witness protection-- both to the victim and his/her family--  promised under the Anti-Rape Ordinance will be meaningless unless the state commits its resources to ensure enforcement and implementation.

- Sahar Zareen Bandial is an Advocate of the High Courts and a member of the Adjunct Faculty at the Shaikh Ahmad Hassan School of Law, LUMs. She has a keen interest in gender issues and has worked extensively in the area of legislative drafting.

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