Since the horrific motorway case, the country is united in calling for legal reforms. However, most have missed the mar on what kind of reforms are needed. As calls for death sentence (already applicable since Women Protection Act 2006) and public hanging (declared un-Islamic by the Supreme Court), the calls for proper and adequate reforms lay ignored. I have written extensively on the subject and would reiterate that the problem lies in implementation of these laws rather than the laws themselves.
The government must implement these laws in letter and spirit. In 2012, as rape cases grew in India, calls for proper legislations became the voice of the people of India and the government passed the ‘Protection against Sexual Violence Act 2012’ which greatly amended the laws that governed rape and the procedure for its trial and evidence. Pakistan has also passed some progressive laws such as the Women Protection Act 2006 and Criminal Amendment Act 2016 (also known as Women Protection Bill 2016). Both these laws have played an important role in rape conviction, but the need of the hour is to make sure the laws are properly implemented and this can be done by bringing forth two major amendments.
The first amendment is where we need to take a leaf out of India’s legal book. In India, rape cases were not being reported, especially the ones which were incestuous by nature and this under-reporting created a form of bondage over women where everybody whether for ‘honour’ or social stigma, would tell the victim to not report the incident.
Rapes of minor were greatly impacted by this, but in 2012, the government passed the ‘Protection Against Sexual Violence Act 2012’ which amended section 39 of the Indian Criminal Procedural Code and declared that everybody must report an act of sexual abuse to the police and failure to do so would lead to imprisonment of 6 months or fine.
The greatest problem was faced by medical officers back then as they couldn’t report to the police without an express consent of the victim or guardian and thus would be forced to witness the happening of great injustice. Post the amendment, the medical officer was asked to immediately report to the police if such a thing has happened. Pakistan has similar legal flaw where there is absence of express legal obligation to inform the police in case the victim or the guardian of the victim does not wish to call the police. In fact, the Medical SOPs have it in their form that the doctor must note down whether the police was informed or not where it is held as Yes/No and ‘Survivor does not want to report to the police’. The consent of the victim is needed for medical legal examination and if she denies, then the MLE cannot be forced on her and this is stated in our law and while this is the right of the victim, the medical officer is not duty bound to inform the police on this matter.
Lawyers are forced to go roundabout by utilizing 166A and 166B against them but without an express legal obligation, a doctor will not inform the police. A proper amendment is needed here to make reporting of such as part of Medico-Legal formality and make it legally bound upon all to report such crimes so that the culture of non-reporting is immediately halted especially in cases where the victim is minor or the rape is of incest nature.
The second amendment that is needed is to make both DNA and the MLE a form of primary evidence. This will make sure that even if the victim is not supportive, the evidence based on DNA and MLE will allow for the continuation of the case and will make sure that perpetrators do not escape justice. The reason why the MLE must be made as such is to help the evidence collected by DNA since DNA only states that a sexual intercourse had happened and if a perpetrator is in custody then it is conducted by him. However, the MLE is where the doctor highlights the wounds on the body of the victim which can help strengthen the case against the perpetrator. Even DNA alone and MLE as corroborative evidence would help bring proper conviction to such cases. Proper kits should be provided to hospitals and a proper forensic system must be established.
Many say that it is the state that must act and the failure or apathy of the state is the reason behind the lack of implementation. But the question is: Do the people hold no responsibility? If a law is not implemented then we must push our lawmaker to work towards its implementation. We complain to them for roads and sewerage systems, but we never raise the issue of a police official refusing to file an FIR.
The government must implement these laws in letter and spirit. In 2012, as rape cases grew in India, calls for proper legislations became the voice of the people of India and the government passed the ‘Protection against Sexual Violence Act 2012’ which greatly amended the laws that governed rape and the procedure for its trial and evidence. Pakistan has also passed some progressive laws such as the Women Protection Act 2006 and Criminal Amendment Act 2016 (also known as Women Protection Bill 2016). Both these laws have played an important role in rape conviction, but the need of the hour is to make sure the laws are properly implemented and this can be done by bringing forth two major amendments.
The first amendment is where we need to take a leaf out of India’s legal book. In India, rape cases were not being reported, especially the ones which were incestuous by nature and this under-reporting created a form of bondage over women where everybody whether for ‘honour’ or social stigma, would tell the victim to not report the incident.
Rapes of minor were greatly impacted by this, but in 2012, the government passed the ‘Protection Against Sexual Violence Act 2012’ which amended section 39 of the Indian Criminal Procedural Code and declared that everybody must report an act of sexual abuse to the police and failure to do so would lead to imprisonment of 6 months or fine.
The greatest problem was faced by medical officers back then as they couldn’t report to the police without an express consent of the victim or guardian and thus would be forced to witness the happening of great injustice. Post the amendment, the medical officer was asked to immediately report to the police if such a thing has happened. Pakistan has similar legal flaw where there is absence of express legal obligation to inform the police in case the victim or the guardian of the victim does not wish to call the police. In fact, the Medical SOPs have it in their form that the doctor must note down whether the police was informed or not where it is held as Yes/No and ‘Survivor does not want to report to the police’. The consent of the victim is needed for medical legal examination and if she denies, then the MLE cannot be forced on her and this is stated in our law and while this is the right of the victim, the medical officer is not duty bound to inform the police on this matter.
Lawyers are forced to go roundabout by utilizing 166A and 166B against them but without an express legal obligation, a doctor will not inform the police. A proper amendment is needed here to make reporting of such as part of Medico-Legal formality and make it legally bound upon all to report such crimes so that the culture of non-reporting is immediately halted especially in cases where the victim is minor or the rape is of incest nature.
The second amendment that is needed is to make both DNA and the MLE a form of primary evidence. This will make sure that even if the victim is not supportive, the evidence based on DNA and MLE will allow for the continuation of the case and will make sure that perpetrators do not escape justice. The reason why the MLE must be made as such is to help the evidence collected by DNA since DNA only states that a sexual intercourse had happened and if a perpetrator is in custody then it is conducted by him. However, the MLE is where the doctor highlights the wounds on the body of the victim which can help strengthen the case against the perpetrator. Even DNA alone and MLE as corroborative evidence would help bring proper conviction to such cases. Proper kits should be provided to hospitals and a proper forensic system must be established.
Many say that it is the state that must act and the failure or apathy of the state is the reason behind the lack of implementation. But the question is: Do the people hold no responsibility? If a law is not implemented then we must push our lawmaker to work towards its implementation. We complain to them for roads and sewerage systems, but we never raise the issue of a police official refusing to file an FIR.