By Bina Shah
October 7, 2013
IMAGINE: you’ve just been mugged on a quiet street on a desolate afternoon in your neighbourhood by four men who stole your money and then stabbed or shot you for good measure.
You’re admitted to hospital, where doctors operate on your wounds. But when it comes time to having the robbers arrested and sent to court, the police refuse to register the crime, while the judge won’t believe that anything happened to you because nobody witnessed the crime. Your scars are worth nothing in court, your doctors’ evidence that you were grievously wounded counts for nothing either. Because of a lack of witnesses, your robbers, who you have easily been able to identify, go free.
This is what a rape victim faces in Pakistan on a daily basis, because of the archaic perception here (based on the Hudood Ordinance) that four adult Muslim male witnesses are required before an alleged rapist can be convicted. The Council of Islamic Ideology’s (CII) rejection of DNA and other forensic evidence as primary evidence in rape cases — it recently gave its views on this in a meeting last month, where it also rejected the Women’s Protection Act of 2006, in the belief that Zia’s Hudood Ordinance adequately covers all bases — means it would like to see us once again be stuck with a system of laws that support rapists instead of the victims of rape.
Now PPP politician and MPA Sharmila Faruqi is desperately trying to lobby the Sindh Assembly to pass a bill requiring mandatory DNA testing in rape cases, despite the clerics’ refusal to accept DNA as primary evidence. There’s a chance she may succeed in her endeavour, given that the CII does not have an official say in the lawmaking process, despite its huge influence over the Pakistani government. But it will be a tough fight to convince the Sindh home and legal departments to allow the bill to be tabled, as Faruqi says they are “hesitant” to take a progressive stance on the issue.
The bill itself is possibly the most scientific piece of legislation to be put in front of the Sindh Assembly. Under it, mandatory DNA testing would take place within 12 hours of an individual making a complaint of rape to the authorities. It would be incumbent upon the police to accompany the victim to a testing facility, and incumbent upon medical personnel to carry out the examination and DNA testing according to a standard procedure which includes official ‘rape kits’ for collecting evidence, while preserving the confidentiality and privacy of the victim.
The bill outlines how the DNA evidence can and cannot be used in court, as well as the repercussions for tampering with such evidence. It also calls for the Sindh government to create forensic labs where testing will take place, and for a DNA testing fund to be instituted within 90 days by the government.
Rape has long been a contentious issue in Pakistan. Most Pakistanis react with disbelief and denial when confronted with the numbers in which Pakistani women and children are sexually assaulted on a daily basis. If she is female, they blame the victim by saying that if she hadn’t been dressed immodestly, or been out of the house, or any of a dozen other imagined infractions, this wouldn’t have happened to her.
Often a return to ‘Islamic values’ is seen as the only solution to the problem of rape, and the CII’s insistence on sticking to a hardline interpretation of Islamic law, rather than moving forward with the rest of the world on the permissibility of DNA evidence, is a clear extension of this regressive attitude.
The importance of DNA evidence in rape cases has been long accepted as part of any rape investigation in most of the developed world. While it can’t be used as the only evidence in a rape case, any and all biological material from the rapist left on the rape victim’s body is the best way to scientifically connect the rapist to the rape victim.
When there are no witnesses (and most rapists take care to commit their crimes without four adult Muslim males watching the proceedings), when the victim is killed after being raped so cannot identify her attackers, or in cases of child rape, where a child cannot speak up for himself or herself about what has happened to her, DNA evidence can provide incontrovertible proof which can be used to pressure a rapist into confessing to his crimes — something rapists often do in police custody but later deny in court (although this may also be a result of the police’s high-handed tactics). With solid DNA evidence against them, this would no longer be possible.
While the mandatory DNA testing bill is primarily meant to provide legal recourse to rape victims, passing this bill would have another added benefit: DNA evidence could be used to exonerate a person falsely accused in a rape case. This in itself should provide a powerful incentive to the Sindh Assembly to pass this bill, if the welfare of women, especially rape victims, is not their primary concern.
Passing this bill will provide more protection to rape victims, not just after the fact, but before, because would-be rapists will operate with far less impunity if they know their own DNA can be used to catch and incarcerate them. If scientific evidence can be used to reduce the number of rapes, then using it in a rape case is a moral imperative. Surely in the 21st century, Pakistan can find a way to combine the letter of Islamic law with the miracles of modern science to provide the best justice that the victims and survivors of rape so richly deserve.
Bina Shah is an author.