Compromising Justice: Pakistan’s Low Conviction Rates for Rape

November 11, 2015

By Rafia Khan and Shagufta Aziz

Despite recent progress in the overall reporting of rape in Pakistan, conviction rates remain disappointingly low. Victims of sexual assault, usually women or children, often choose not to register a complaint, due to social stigma and the biased attitudes of service providers. Those who are courageous enough to do so face the secondary trauma of a trial, where they must relive the incident by recounting it, often while receiving threats from the accused to withdraw their complaint. Lack of protection from retaliation or further threats coupled with weak judicial procedures open the door to out-of-court settlements that force victims to drop charges, reinforcing a climate of impunity for perpetrators.

According to government statistics, 4,960 cases of rape were registered in Pakistan from June 2013 to February 2015. There were 6,632 arrests, but just 219 convictions. To improve conviction rates, in March the Senate passed the Anti-Rape Laws (Criminal Laws Amendment) Bill, 2014, and last week, the National Assembly’s Standing Committee on Interior and Narcotics partially endorsed the amendments proposed in the bill. The bill calls for severe penalties for rape by a police officer or government official, proper investigation of rape cases, DNA testing of both parties, protection of the identity of the survivor, and speedy conclusion of trials. But while these amendments are necessary, their practical application may be problematic. For example, DNA testing can provide important evidence for prosecution, but lack of trained forensic staff, inadequate facilities, and outdated testing methods can render this evidence useless.

Meanwhile, a major reason for low conviction rates is that many survivors, under threat or coercion, end up settling with the perpetrators during the trial and withdrawing their complaint, so that the accused is set free on the basis of “low probability of conviction.” This is so, despite the fact that rape is a non-compoundable offence, which means that no compromise is allowed. According to Ms. Humaira Masihuddin, a prominent lawyer:

After reaching a compromise, the complainant cites a number of reasons, such as that she mistakenly identified the wrong person, or that she was coerced by others to accuse a certain person, or even that the accused was wearing a mask, so she could not properly identify him. The prosecutor is not interested in declaring the complainant hostile and cross-examining her, nor is she ever charged with giving false evidence. This situation makes successful prosecution of rape in Pakistan very arduous and difficult.

Of the 23 rape cases registered in the last year and a half with the legal aid centers established under The Asia Foundation’s Access to Justice for Vulnerable Populations in Pakistan project, all seven cases that have concluded were settled out of court, without engaging the legal aid center staff. In all these cases, the survivors’ families reached a compromise in exchange for money, or due to threats from the perpetrator’s family or pressure from local influential people, including panchayat and jirga members (community-based dispute resolution groups).

In one such case, a 10-year-old girl was raped by her neighbor. The rape was reported to the legal aid center by a community activist while the minor was in the hospital. The case was registered, but the widowed mother withdrew the charges after a few hearings when she and the witnesses started receiving threats from the accused.

In another case, the accused raped a married woman when she was returning from the fields. Two witnesses rushed to the scene of the crime, but the accused fled. The case was registered in court, but the accused pressured the survivor and her husband to settle out of court in exchange for money. The husband gave way first and pressed his wife to compromise. She appeared in court saying that she did not want to pursue the case any further and would have no objection if the accused were acquitted. The court disposed of the case, stating that there was no probability of conviction.

Yet, because rape is a non-compoundable offense, when a private party yields to outside pressure to settle, the state should pursue the case. In 2014, Justice Ikramullah Khan of the Peshawar High Court rejected an accused rapist’s bail request even after the eight-year-old survivor’s parents agreed to a compromise. The judge took the view that the court should not accept a private settlement between the two parties in such serious cases.

To ensure that justice is not thwarted in rape cases, judges and prosecutors must become more sensitive to the plight of the victims. Judges should bear in mind, says Ms. Masihuddin, that no matter what reasons are given for dismissal, the parties are in fact arranging a private settlement of the case. Prosecutors need to feel strongly enough about every case that they will not accept fabricated excuses from the complainant. In Masihuddin’s view, such complainants should be declared hostile and cross-examined. In addition to penalties for false testimony, she calls for changes in the law to provide compensation for survivors, which would make out-of-court settlements less attractive. One more reform that many women’s rights activists and lawyers are calling for is protection of survivors from intimidation by the accused party, including throughout the trial, to ensure that their vulnerability is not further exploited by the accused.

However, for any new measures to be put in place, or for existing laws to be implemented in their true letter and spirit, rape needs to be understood as a grave offense by those who mete out justice. Until rape and other sexual offences are regarded by everyone as serious crimes, there will be little hope of redress for the countless women and children who have been wronged.

Rafia Khan is team manager for The Asia Foundation’s Access to Justice for Vulnerable Populations in Pakistan project. She can be reached at [email protected]. Shagufta Aziz is the project manager at Insaf Network Pakistan (INP), implementing partner for the Access to Justice for Vulnerable Populations in Pakistan project. She can be reached at [email protected]. The views and opinions expressed here are those of the authors, not those of The Asia Foundation.

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