VIEW: Rape shield laws —Saroop Ijaz - Friday, December 31, 2010

Source : www.dailytimes.com

Rape shield laws are statutes or court rules that limit the introduction of evidence about a victim’s character history, reputation or past conduct during a rape trial. One ostensible objective of these laws is to help ensure that rape victims are treated with fairness, dignity and respect during a criminal trial

“There is one custom amongst these people which is wholly shameful: every woman who is native of the country must once in her life go and sit in the temple of Mylitta and there give herself to a strange man....Once a woman has taken her seat, she is not allowed to go home until a man has thrown her a silver coin into her lap and taken her outside to lie with her. As he throws the coin, the man has to say, ‘In the name of the goddess Mylitta’...When she has lain with him, her duty to the goddess is discharged and she may go home” (Herodotus, Histories; 1.199).

A few days ago in Karachi, a horrific though not uncommon incident took place that shakes the very moral fabric of our society. A woman was allegedly abducted, gang-raped and later dumped in a posh locality of the city by unidentified men. The alleged perpetrators are being apprehended and the case is under investigation. It is premature to comment on the outcome of the investigation. Yet the alleged incident and, equally significantly, the response to it raise broader fundamental questions regarding the kind of society that we have become.

The initial statements made by the police authorities were understandably vague as they were made prior to a detailed investigation. However, there were insinuations made regarding the character, manner of dressing, etc, of the survivor by the police, media personnel and politicians, which are a cause for greater alarm. Rape, historically, was considered an instrument for the moral condemnation of women who have not led sexually chaste lives. The law traditionally mandated that the sexual history of a woman who alleged that she was raped was relevant to the truth of her allegation. A chaste woman was considered more likely to have resisted the unwelcome advances and to have lodged a legitimate claim of rape. The absurdity of this argument is intuitive, yet our societal handling of rape cases seems to betray this obvious understanding.

According to the Aurat Foundation, 483 cases of rape/gang-rape in Pakistan (377 in Punjab; 95 in Sindh; four in Khyber Pakhtunkhwa; four in Balochistan; three in Islamabad) were reported in the first half of 2010. Given the stigma attached with reporting a rape claim and enduring the ordeal of a public trial, it is safe to assume that the actual incidence of rape is likely to be much higher than the reported figures. These statistics paint a ghastly picture. The victims of rape in a country like ours suffer more than merely the trauma stemming from the incident, both physically and psychologically. They and their families also suffer from the effects of intimidation, ridicule, rude speculations and overall diminished social status. The prospect of being tormented in a police station and/or a courtroom is enough to deter many women from bringing in rape claims.

In the 1970s, ‘rape shield laws’ emerged in the jurisprudence of the US and subsequently Europe with the objective of curtailing the excesses of the chastity requirement. Legislators in those jurisdictions concluded that it was illogical to assume that the complainant consented to intercourse with the accused, or was more likely to lie under oath, simply because of her past character history, profession or the manner in which she chooses to dress. This logic eludes not only our legislators but society as a whole.

Rape shield laws are statutes or court rules that limit the introduction of evidence about a victim’s character history, reputation or past conduct during a rape trial. Rape shield laws generally prohibit the introduction of opinion and reputation evidence about the character history of the victim. They also typically provide that evidence of specific prior conduct of the victim is presumed irrelevant unless it is direct evidence of the source of the incident. One ostensible objective of these laws is to help ensure that rape victims are treated with fairness, dignity and respect during a criminal trial by ensuring that the victim will not be subject to a public airing of her reputation, past conduct, and other irrelevant information. Rape shield laws were designed, in part, to make it more likely for victims to come forward. If rape victims have their entire character history revealed and examined in court as part of a rape prosecution, it is likely that such exposure will deter other victims from reporting rape. This is especially relevant for a society like ours having a misogynist legal and political system that seeks to exclude women at a systemic level. General Musharraf, once commenting on the Mukhtaran Mai case, observed that Pakistani women have come up with a particularly arduous scheme of obtaining foreign visas — by getting raped.

The reaction of our society, police, media and authorities to rape claims is geared towards discouraging rape victims (inadvertently in certain cases) to come forth and prosecute offenders. The legislators have to consider adopting a variant of the rape shield laws in Pakistan, if we aim to curtail the incidence of rape.

The writer is a lawyer and can be reached at saroop_ijaz@hotmail.com