6 Reasons Why Rape is an Under-Reported Crime

June 8, 2019 BY Shahzeb Shahid

Hardly a week passes in our country without there being a media report about an incident of rape of a minor girl. This social pollutant seems to have intensified its roots in our society. It is a form of violence against women and has been devouring the dignity of women since the inception of Pakistan. The issue, however, began to be covered more frequently by the media over the last decade.

Rape is a form of gender-based violence (GBV) against women. Its roots are entrenched in the socio-economic structure of our society and it also often becomes a cause and consequence of gender inequality. The health consequences of rape involve both physical injuries and mental trauma. It may result in unwanted pregnancies, gynaecological implications, sexually transmitted diseases and post traumatic stress. It costs both the economy and the society.

Every day, hundreds of women are raped across the world but only a few courageous ones manage to knock the doors of our criminal justice system. Due to under-reporting, many rape offenders get to evade prosecution and conviction and tend to commit more crimes with impunity. Our criminal justice procedures and illogical social constructs often force the victims and their families to remain silent in the hopes of trying to lead a more ‘respectable’ life.

There are many reasons behind the under-reporting of rape and a low conviction rate for the crime of rape:

1. Societal attitude towards a victim of rape

Rape is a crime in which the society tends to blame the victim instead of the rapist, that is why many victims prefer to stay silent. Victim blaming reinforces the societal stereotype that a woman is expected to regulate and protect herself in order to avoid any form of aggression from men.

The social stigma associated with shame and loss of honour also prevents the victim and her family from reporting the crime to the police and ultimately seeking justice. Our society considers the loss of virginity by any means to be ruining marriage prospects.

2. Religious obstacles

The literal interpretation of religious texts rather than their contextual interpretation is another reason why victims tend to stay silent. It is a common view in our religious circles that any sexual act, whether voluntary or forced, should not be part of public discourse. According to them, openly discussing rape will affect public morality. If they hold the view that punishment of fornicators and adulterers be carried out in front of crowds then why can’t they also let victims speak about the injustices suffered by them?

3. Poor police practices and investigation

The quality of the police report and investigation has a critical impact on the prosecution of the crime. The victim and the family of the victim often have to face humiliation at the police station. The case is often not handled seriously and the manner in which a victim is treated when she reports the incident to the police is also despicable. In most rape cases, the perpetrator belongs to an influential class while the victim comes from a lesser position of power, so the police are reluctant to lodge a first information report (FIR) against the perpetrator. Even if the accused is an unknown stranger, the victim may still be forced to grease the palm of the police.

4. Outdated forensic and medical examination techniques

Forensic evidence also has a pivotal role to play in securing the conviction of a sexual offender, but our law enforcement agencies are not adept at collecting forensic evidence. Our forensic laboratories lack modern equipment, techniques and experts. Delay in taking DNA evidence reduces the chances of conviction. The victim can also be reluctant in letting her body be examined by a male physician. The determination of penetration or assault is often conducted by primitive, disgraceful and outdated techniques in the absence of a proper rape-kit.

5. Re-victimization during trial

Our criminal justice system can traumatize, humiliate and distress the victim during the trial process as well. A victim can be disqualified from proving her complaint beyond reasonable doubt if the medical report does not corroborate or show physical injuries or resistance on part of the victim, which may be quite problematic to prove. The victim’s character assassination or sexual history may be discussed in open court. The victim may be forced to recount her experience in open court. A victim may be forced to undergo cross-examination of a highly personal nature, which is why many victims withdraw their cases at this stage because of such secondary victimization. In rape cases, it is next to impossible for there to be any witness who may have seen the occurrence of the crime, so in the absence of physical injuries, other corroborative evidence can be required to prove the complainant’s version of events. During trial, defense counsel tends to draw focus to the victim’s clothing, demeanor and lifestyle and previous association with the offender in order to discredit the victim’s character and complaint.

6. Ambiguous provisions of substantive law

Wide discrepancies exist between ‘law as legislation’ and ‘law in practice’. It is an undeniable fact that our laws are outdated, discriminatory, contradictory and ambiguous in nature which makes it an uphill task to prosecute the sexual offender.

For instance, under section 375(5) of Pakistan Penal Code (PPC) 1860, a person is said to have committed rape when he has sexual intercourse with a girl or woman, with or without her consent, if she is under the age of 16 years. Many would argue that puberty, and not law, indicate the age of consent, which makes things very problematic.

Similarly, discovering DNA can prove the occurrence of the crime but the existence of DNA cannot prove or disprove consent. Such ambiguity leads the defense counsel to misconstrue consent as a defense.

Moreover, according to the very primitive and ridiculous ‘two-finger’ test, if the medical report shows that a victim’s vagina can easily admit two fingers without pain, then it is presumed that the victim is a woman of “easy virtue” and thus may have given consent. This completely ignores the medical fact that many women have an inborn lack of hymen or extra elasticity of hymen.

Proof of physical injury also tends to be regarded by the court as a sign of resistance as opposed to consent. So in the absence of any visible or ascertainable injury, the offence of rape can even turn into the offence of fornication whereby a victim may be subjected to the offence of zina instead of seeking justice for her own self!

Recommendations for Reform

1. It is high time that the policy of appeasement towards the crime of rape be brushed aside.
2. Societal attitude can change with the help of media and education, but media and education alone cannot prevent the rapist to rape and the victim to be raped. Education and media can, however, inculcate confidence in the victim to speak out about her ordeal.
3. The media must also be prohibited, as per existing laws, to publicize or reveal the victim’s identity.
4. The issue of rape is rooted in gender imbalances as well as socio-economic gaps among different sections of our society. There is a strong link between the economic status of women and rape, based on most reported incidents. Women in weak economic positions and having limited access to economic resources are more vulnerable and at an increased risk of rape. Strengthening women’s economic status may decrease the occurrence of rape and help women avoid vulnerable situations.
5. Our religious scholars must abandon notions forcing victims of rape to stay silent in order to preserve ‘public morality’ because “Injustice any where is a threat to justice every where” (Martin Luther King Jr). Had we not discouraged rape victims to speak out owing to public morality, many other victims would not have become targets of sexual violence.
6. The quality of police response and investigation is critical for the prosecution of a rape crime. Special rape courts and rape investigating police departments should be established in every district to prosecute and investigate rape crimes.
7. Evidence of vulnerable witnesses should be taken remotely through video links and rape cases should be conducted in camera and not subjected to public scrutiny.
8. Forensic laboratories should be established in accordance with modern international standards and techniques. Our government can enter into arrangements with the UK and USA to train personnel in our forensic departments.
9. Only female forensic medical examiners should examine the rape victim.
10. Special rape centers (dar-ul-aman) should be established to help rape victims through investigation, medical examination and cross-examination, and reintegrate them into the society and workforce.
11. Under section 375 of PPC, penetration is sufficient to constitute sexual intercourse that is necessary to establish the offence of rape. This means that penetration alone can constitutes rape, even if done by an object, and not necessarily restricted to penetration by an organ. Such an offence should also be included under a new category of ‘sexual assault’ and incorporated into the PPC. The law of jirah (wound) should also be invoked for rape offences as the hymen may be impacted.
12. The rape of a minor should also be specified as a form of hirabah (brigandry) in the Hudood Ordinance thereby subjecting the perpetrator to punishment without undermining his right to a free trial under the law.
13. Many cases of rape get hung over the question of consent therefore the concept of consent should be explained very clearly to the adjudicators.
14. Rape shield laws should be enacted to bar the defense counsel from discussing the victim’s character and sexual history.
15. Different schools of thought are of the opinion that when a woman is harmed through illegal sexual intercourse without her consent, she should be entitled to financial compensation as well.

Rape is a difficult crime to investigate and prosecute in any country. It is the quality of criminal justice response that ensures the protection of women from sexual beasts and the accountability of the perpetrators. Fact-based policies and measures, coupled with sterner action, can prevent the perpetrator from committing such a heinous crime. Putting one’s head in the sand will only worsen the situation rather than preserve public morality.

Published by CourtingThe Law