An opinion piece by Reema Omer, Legal Adviser for Pakistan, ICJ Asia Pacific Programme.
In a complex and diverse world, recourse to stereotypes and generalizations is perhaps an inevitable facet of human behavior.
Stereotypes and resulting inferences manifest on a day-to-day basis in a range of social contexts and human interactions and need not always be prejudicial.
However, where laws, policies, and judicial pronouncements embody and perpetuate these stereotypes, they give rise to discrimination and undermine equal enjoyment of human rights.
Rape and other sexual violence are human rights abuses. Under international law, States have an obligation to protect women against such abuse, including by providing for effective redress and holding perpetrators criminally accountable.
In Pakistan, one of the major obstacles to discharging this obligation is the State’s failure to address harmful stereotypes about rape.
Despite some notable law reform in recent years, a range of stereotypes regarding male and female sexuality and the respective roles of men and women in society continue to influence impartial reporting, investigation, prosecution and adjudication of cases of sexual violence, hampering access to justice for rape and other forms of sexual violence.
Rape as a crime against “honour”
In Pakistan, as well as most of South Asia, rape (and other sexual violence) is generally understood as a violation of honour.
This understanding also manifests itself in how rape is defined.
In the Urdu language, for example, rape is commonly referred to as “ziyadati”, which can be defined as “being wronged”.
Other words frequently used for rape include “asmat dairi” and “izzat lutna”, both defining rape as deprivation of honour.
These terms and the underlining assumptions reflect an approach to sexual violence that is not concerned with the infringement of a woman’s physical or mental integrity or autonomy, but instead with what is perceived as an assault on honour – the honour of the woman, her family, and her community.
Instead of promoting concern for the dignity, health, and emotional and physical wellbeing of the woman, they reflect the belief that a woman’s involvement in sex outside of marriage – with or without her consent – has “shamed” her.
That rape “dishonours” the victim is a recurring theme in public discourse on rape, and disturbingly, this framing is also perpetuated by judges in their judgments.
In one case, for example, the Lahore High Court (LHC) held that the father of a victim of rape and murder had to “swallow the humiliation resulting from the publicity of his daughter’s rape”, and in another, the LHC refused to believe that a “virgin educated girl would put her honour and dignity as well as that of her family at stake” by fabricating a rape allegation.
While the rape victim is thought to be “dishonoured” by acts of sexual violence, the perpetrator of rape is painted as a lustful predator who commits a crime of passion, not of violence.
Decades of research have shown that the expression of power and dominance, not the act of sexual intercourse itself, is the dominant driver behind rape.
Despite these findings, there is still a tendency to attribute sexual urge and lust as the primary causes for rape: “ravish” is used synonymously with rape in many legal provisions, and in their judgments, judges continue to describe “animal lust” as the impetus for rape which leads to the “defloration” of victims.
Rape and “morality”
The characterization of rape as a crime of “lust and passion” which “dishonours” the woman presupposes an archetype rape victim –a young, “chaste” and “moral” “virgin”.
Where victims and survivors of sexual violence do not meet this archetype, rape allegations made by them are often dismissed and they are stigmatized, or even prosecuted, for their perceived immorality.
Following a recent alleged gang rape reported in Lahore, for example, media reporting of the case was rife with such stereotypes.
A leading English newsweekly published a story in the gossip section of the paper suggesting that the complainant and one of the alleged rapists were involved in a “tryst” in the hotel room where the alleged rape took place, going on to dismiss the gang-rape allegation.
The reporting on television was even more telling.
Messages exchanged between the complainant and one of the alleged rapists were splashed across television screens, and their prior relationship was considered proof that the gang-rape allegation was fabricated.
Such stereotyping also shapes the investigation of sexual violence and often, also judicial decision-making.
Courts are more inclined to believe the testimony of complainants where they meet the “young, chaste and virgin” archetype, and either dismiss the complaints or require further corroboration where the rape victims or survivors are older, or are perceived to be – as described by various courts – of “easy virtue” and of “loose character”.
In one judgment, the Sindh High Court observed that the fact that “the woman was used to sexual intercourse would lend support to the version that the alleged intercourse may not have been performed against her wishes”.
This can be contrasted with the Peshawar High Court’s more sympathetic view where the complainant was “a school going virgin/tender age girl”, who “could not be believed to put her career, personal respect and family honour at stake by fabricating a false allegation of such nature in the absence of any motive.”
This stereotype of the ideal rape victim is not a judicial creation but is the law of the land.
Section 151(4) of the Qanun-e-Shahadat Order, 1984, states that the credibility of a witness may be impeached where “a man is prosecuted for rape or an attempt to ravish” and it is “shown that the prosecutrix was of generally immoral character”.
The “two-finger test”, which involves assessing how many fingers can easily be inserted into the victim’s vagina to determine her sexual history, is still frequently used as evidence in rape cases.
Not only is the “two-finger test without scientific or medical value, but sexual history is irrelevant as to whether a rape has occurred.
The Constitution of Pakistan expressly provides that “there shall be no discrimination on the basis of sex”.
The UN Convention on the Elimination of All forms of Discrimination against Women (CEDAW), which Pakistan acceded to in 1996, reinforces the principle of equality and obligates States to eliminate wrongful gender stereotyping.
Yet, Pakistan continues to be ranked as amongst the most dangerous countries in the world for women; has an abysmally low rate of convictions of less than five per cent for people prosecuted for rape; and the prejudicial stereotypes associated with rape continue to doubly persecute victims and survivors of sexual violence.
Making Pakistan a safer place for women will require a combination of measures by various institutions of the State, including law reform; introducing gender-sensitivity trainings for judges, prosecutors and law enforcements officials; and launching information campaigns regarding women’s rights for the general public.
These measures will have to specifically target the stereotypes associated with sexual violence, moving away from understanding rape as a crime of lust that “dishonours” women to what it really is – a violent assault against the physical and mental integrity and autonomy of the victim.