Lost chastity to lost honor: the heuristic shift in rape discourse by the Supreme Court of Pakistan

• Author: Orubah Sattar Ahmed
• Position: Law Faculty, Shaikh Ahmad Hassan School of Law, Lahore University of Management Sciences (LUMS); LL.M Harvard Law School, 2019; BA-LLB LUMS, 2017
• Pages: 1-34

ARTICLES

LOST CHASTITY TO LOST HONOR: THE HEURISTIC SHIFT

IN RAPE DISCOURSE BY THE SUPREME COURT OF

PAKISTAN

ORUBAH SATTAR AHMED*

ABSTRACT

The Supreme Court of Pakistan has shown a propensity to engage in behav-

ioral analysis to assess whether a purported rape victim fit the bill of the proto-

typical profile of a female rape victim as defined by societal norms, by

inculcating this version within its common law discourse. This phenomenon has

been visible especially between 1980–1999 during Zia’s radical Islamization

era and can be traced back to pre-colonial era. From 2000–2018, there is a

gap in literature, which this paper aims to fill by engaging in case law analysis

and trend identification. A close examination of rape cases of the Supreme

Court of Pakistan over the last 18 years show that the Supreme Court has devi-

ated from its earlier precedents of using character as a factor to determine the

veracity of female rape victim’s allegations. However, the Supreme Court’s ju-

dicial discourse is still deeply entrenched in sexist assumptions about the role

of women in society. This paper proposes a complete overhaul of the linguistics,

heuristics and common law assumptions made by the Supreme Court of

Pakistan as an essential institutional restructuring mechanism, which is neces-

sary in making access to justice easier for female rape victims.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. LAW ON RAPE AND ‘CHARACTER’ LAWS. . . . . . . . . . . . . . . . . . . . . . . . 5

II. 1980–1990: SUPREME COURT TRENDS IN RAPE CASES . . . . . . . . . . . . . 8

A. THE MEDICAL REPORT TREND . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. MORAL CHARACTER AND SEXUALITY . . . . . . . . . . . . . . . . . . . . . . 13

C. FILING A CRIMINAL COMPLAINT . . . . . . . . . . . . . . . . . . . . . . . . . . 14

III. NUANCED CHANGES IN THE 1990S JURISPRUDENCE . . . . . . . . . . . . . . . . 15

IV. 2000–2018: DEVELOPMENT BY THE SUPREME COURT . . . . . . . . . . . . . . 19

A. MEDICAL AND CHARACTER TRENDS IN COMMON LAW ASSUMPTIONS 20

* Law Faculty, Shaikh Ahmad Hassan School of Law, Lahore University of Management Sciences

(LUMS); LL.M Harvard Law School, 2019; BA-LLB LUMS, 2017. I would like to thank Professor

Intisar A. Rabb for her invaluable supervision and support as well as her insightful feedback that helped

shape this paper. © 2021, Orubah Sattar Ahmed.

1

B. IDENTIFIED CHANGE IN TREND OF FILING FIR WITH A DELAY . . . . 24

C. LEGAL LANGUAGE: ASSUMPTIONS AGAINST CHARACTER OF RAPE

VICTIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

V. IMPETUS FOR CHANGE IN JUDICIAL DISCOURSE . . . . . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

INTRODUCTION

In 1983, Jehan Mina was fifteen years old and six months pregnant when she

reported to the police that she had been raped by her uncle and cousin.

1

Her

grandfather wanted her dead for bringing dishonor to the family.

2

The local court

acquitted the accused, saying that Jehan’s statement alone was not enough to

prove rape.

3

Instead the Court convicted Jehan of zina

4

or fornication, and sen-

tenced her to one hundred lashes.

5

The Court reasoned that “[t]he basis of the con-

viction is her unexplained pregnancy coupled with the fact that she is not a

married girl” and her failure to disclose the rape earlier to her grandfather.

6

The

case was highly criticized by the international community and human rights acti-

vists; consequently, the case became a symbol of gross judicial injustice faced by

rape victims in the 1980s.

7

In 2018, Zainab Ansari was six years old when she was reported missing and

found days later by her neighbors in a garbage dump—raped both vaginally and

anally, and murdered through suffocation.

8

Law enforcement arrested a relative

of Zainab for the crime and the local court sentenced him to death. The Supreme

Court of Pakistan termed the rape “absolutely horrendous and barbaric” and

upheld the sentence.

9

From Jehan Mina to Zainab Ansari, the superior judiciary of Pakistan has

come a long way since 1983 in developing its common law jurisprudence in rape

1. Jehan Mina v. State, (1983) 35 PLD (FSC) 183 (Pak.).

2. Moeen. H. Cheema, Cases and Controversies: Pregnancy as Proof of Guilt Under Pakistan’s

Hudood Laws, 32 BROOK. J. INT’L L. 132, 122–60 (2006).

3. Jehan, 35 PLD (FSC) at 186.

4. Offense of Zina (Enforcement of Hudood) Ordinance, No. VII of 1979, (amended 2007) (Pak.)

(articulating that a man and a woman are said to commit zina if they willfully have sexual intercourse

without being validly married to each other).

5. See Jehan, 35 PLD (FSC) at 188. The Federal Shariat Court, which was an alternative superior

judicial court, reduced her sentence to 3 years imprisonment and fewer lashes.

6. Id. at 187.

7. SHAHLA ZIA, VIOLENCE AGAINST WOMEN & THEIR QUEST FOR JUSTICE 81 (2002).

8. Justice for Zainab: Time of the Kasur Rape, Murder Case that Gripped the Nation DAWN NEWS

(Oct. 17, 2018), https://www.dawn.com/news/1439587.

9. Imran Ali v. State, (2018) Jail Petition No. 298 SC (Pak.).

2 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. XXIII:1

cases.

10

However, an uncomfortable question still persists: would the Courts have

convicted the accused this quickly, or believed Zainab if she was an adult woman,

alive, was single, a divorce

´e, or had an active, healthy sexual history? Do

Pakistani courts believe some victims more than others? This paper is an exposi-

tion on the Supreme Court of Pakistan’s common law development in rape cases

over the last four decades, specifically the heuristics, linguistics, prose, and

assumptions made by the Court regarding the “character” and “morality” of

female rape victims in deciding a case. In doing so, the paper examines the

assumptions made by the Court, in line with evolution of the social-political con-

text of Pakistan over the years.

11

Social narratives, which both inform the courts and are informed by the courts,

are often designed to hold women culpable for acts of violence inflicted on them;

further, these narratives reinforce the repercussions of transgressing ascribed social

and sexual boundaries.

12

This ultimately casts a reductionist perspective on the

effects that such violence can have on women—physically, psychologically, and

economically,

13

alongside reduction of access to public

14

and political spaces.

15

10. The author acknowledges that there are fundamental differences in the facts of both the cases,

which makes drawing an analogy to represent the growth of the Supreme Court over time difficult to

posit. Zainab’s case came at a time when several other female children were found raped and murdered

in the same locality thus garnering outrage. Additionally, there was a plethora of evidence that led to the

conviction. Jehan Mina’s conviction came at a time when the Hudood Ordinances had been promulgated

that eradicated the difference between rape and zina, thus women who came forward with allegations of

rape were found guilty of zina if the rape was not proven. Furthermore, the Jehan Mina case, along with

a few others, serves as an anomaly of misinterpreting the law massively rather than the general rule in

the 1980s. Despite the differences, the key aspect to take from the examples is the level of social outrage

that the concept of rape invoked in society as well as the change in linguistics adopted by the Supreme

Court in assessing rape in both cases.

11. Due to the limitations of the scholarship undertaken, this paper can offer only rudimentary dives

into the socio-political context that can help understand how the common law assumptions were

formulated.

12. See Shehar Bano Khan & Shirin Gul, The Criminalization of Rape in Pakistan (Chr. Michelsen

Institute, Working Paper No. 8, 2017), https://www.cmi.no/publications/6323-the-criminalisation-of-

rape-in-pakistan. Daily reports and discussion on the prevalence of instances of violence against women,

especially rape, tend to focus overwhelmingly on the gravity of injury inflicted on the victim, the sheer

scale and number of women harmed, gory details about the act, and any subsequent act of shaming that

went with it, with the focal point ultimately being on the sexualized female body.

13. Eleanor Lyon, Welfare and Domestic Violence Against Women: Lessons from Research, NAT’L

ONLINE RES. CTR. ON VIOLENCE AGAINST WOMEN (Aug. 2002), https://vawnet.org/sites/default/files/

materials/files/2016-09/AR_Welfare2.pdf; ANDREW R. MORRISON & MARIA B. ORLANDO, SOCIAL AND

ECONOMIC COSTS OF DOMESTIC VIOLENCE: CHILE AND NICARAGUA, TOO CLOSE TO HOME: DOMESTIC

VIOLENCE IN THE AMERICANS 51, 66–80 (Andrew R. Morrison et al. eds., Inter-American Dev. Bank

1999).

14. Ammar A. Malik, Yasemin Irvin-Erickson & Faisal Kamiran, Women’s Safety in Public Spaces

& Urban Transit – Pakistan Research & Global Analysis, WOMEN’S UN REP. NETWORK (Jan. 22, 2018),

https://wunrn.com/2018/01/womens-safety-in-public-spaces-urban-transit-pakistan-research-global-

analysis/.

15. Violence Against Women in Politics: Expert Group Meeting Report and Recommendationsn,

UNWOME (Mar. 8–9, 2018), https://www.unwomen.org/sites/default/files/Headquarters/Attachments/

Sections/Library/Publications/2018/EGM-report-Violence-against-women-in-politics-en.pdf.

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