Wajahat Ali Malik
To curtail the number of rape incidents in the country, the federal cabinet has recently approved two anti-rape ordinances: the Anti-Rape (Investigation and Trial) Ordinance 2020; and the Pakistan Penal Code (Amendment) Ordinance 2020. The new legislation will change the basic definition of rape as provided in Pakistan Penal Code (PPC) 1860 and shall award exemplary punishments to rapists in the form of chemical castration and hanging. It also provides protection to victims of gang-rape and to transgender rape victims. The proposed law further prohibits the controversial “two-finger” test. The cabinet committee on Disposal of Legislative Cases has approved these two ordinances, which were already been approved in principle by the federal cabinet.
Some key recommendations on the proposed ordinances are as under:
Under the present Pakistani law, in the case of rape, capital punishment shall be awarded if a man has committed sexual intercourse with an adult woman or a minor girl under 16 years of age. However, ‘sexual intercourse’ is not defined in Pakistan’s penal law, creating ambiguity when sodomy is committed with a woman or a minor girl or boy, because the act of forced sodomy is not mentioned in the definition of rape under Section 375 of PPC. Courts then interpret ‘sexual intercourse’ as mentioned in the definition of rape under PPC as only vaginal intercourse. Moreover, the rape offence under PPC talks about adult woman and minor girl victims, it does not address the adult man and minor male victims. The offence does not either provide protection to transgender persons and gang-rape victims. So, in the newly proposed anti-rape ordinances, the definition of rape must be amended to include the offence of forced sodomy and shelter from the offence must be provided to men, women, children and transgender victims.
Section 377 of PPC talks about sodomy (unnatural offences) and penalises it with imprisonment for life, or with imprisonment of either description for a term not less than two years nor more than 10 years, along with a fine. In the new anti-rape legislation, this issue must be addressed and punishment for sodomy must be enhanced and made equivalent to rape offence under PPC.
Under PPC 1860, sexual offences against adults and children are mainly defined and penalised in more than five different ways, including exposure to seduction, child pornography, assault or use of criminal force against a woman with intent to outrage her modesty or rape, unnatural offences (sodomy), and child sexual abuse. The punishments of these offences are also prescribed in the same code accordingly. The minimum punishment starts from one-year imprisonment of either description or with fine which shall not be less than Rs100,000 in case of the exposure to seduction offence and the maximum punishment is a death sentence or life imprisonment and a fine in case of rape and assault or use of criminal force against a woman to violate her modesty. Instead of focusing on different definitions of sexual offences in PPC, the new legislation should focus on one definition of sexual offence, which can classify sexual abuse into different categories like seduction, molestation, pornography, vaginal intercourse, sodomy, and assault or use of criminal force against woman, man or a child to engage him/her in sexual activity. Similarly, the punishments must also be categorised according to the severity of the offence. For example, in cases of rape, the punishment should be equivalent to the punishment for heinous offences, whereas in seduction, molestation or pornography offences, the punishment can be less severe. This is similar to the murder (Qatl) offence, which is classified into four types in the PPC: Qatl-e-Amd, Qatl Shibh-i-Amd, Qatl-i-Khata, Oatl-bis-Sabab, and their punishments are also prescribed differently depending on the circumstances and nature of murder.
By incorporating the above recommendations in the newly proposed legislation on the anti-rape issue, an exemplary legislation could be enacted and a landmark achievement to address one of the gravest issues in our society could be achieved.
Originally published in The Express Tribune, December 7th, 2020.