In an unparalleled move, Pakistan’s Supreme Court has ordered a judicial review of its own decision in the well-known Mukhtar Mai case. This represents a major breakthrough in Mukhtar’s fourteen-year long legal battle for justice and Pakistan Supreme Court’s long awaited opportunity to address the abysmal rate of conviction in rape cases. In 2002, Mukhtar Mai was gang-raped in a remote part of Punjab. Her rape case fell victim to a series of jurisdictional questions in court while she became a symbol for women’s rights all over the world.
In 2011, a three-member bench of the Supreme Court acquitted five of the six accused in the gang rape. The primary rationale in making this decision by the court was the delay in registration of a first information report by Mukhtar Mai, and doubts about the evidence presented by the prosecution. Taking issue with the delay in the filing of the report, a judge in the majority surprisingly assumes that as per the facts of the case, an older divorced woman like Mukhtar Mai, should have hesitated less in reporting an alleged rape compared to a younger un-married woman. This observation of the court is in complete contradiction with the current knowledge in this area and the judgement in making this observation is full of parochial terms, which in itself should be a ground for review.
Rape survivors deal with trauma in different ways. It is therefore speculative to assume that some survivors would readily report rape. This is a highly subjective matter and in addition to the survivor’s age, a lot would depend on the social status of the survivor, the physical and the mental pain they may be suffering, and the relative social standing of the perpetrators. The judges in the majority failed to consider this and thereby trivialized how rape is used to assert power and control. In a country where rape is under-reported and under-prosecuted, the decision came as a serious blow to Mukhtar Mai’s quest for justice.
Counsel for Mukhtar Mai, Barrister Aitzaz Ahsan, pointed to the court that there was a justifiable reason for the delay in recording the report and negative inferences cannot be drawn against the prosecution on this account. The dissenting opinion, however, takes into account the justifiable reason in the delay in this case and states that a “delay in rape cases is a universal phenomenon and can be brushed aside…” The judge further states, that, “in fact, given the social disparities between the families of the perpetrators and the survivor’s family, such delay was completely understandable. They were under a fear of reprisal. Additionally, a survivor is deterred by the embarrassment and humiliation she would have to suffer in narrating the incident to strangers, more so, to the police recording the report, followed by probes during the investigation into matters personal to her.”
In addition to the delay, the judges in the majority also doubted the evidence presented in the court by the prosecution side. Poor investigation and lack of recording of medical evidence is a well-known feature of alleged rape investigations in Pakistan. Judges in prior cases have pointed out this failing of the investigative agencies and have acknowledged the lack of emphasis on collecting medical or forensic evidence, especially against alleged male perpetrators.
Despite the judicial recognition of this problem, the judges in the Mukhtar Mai case held that in absence of strong corroboration, the case couldn’t be built on her testimony alone, even though the counsel for Mukhtar gave ample legal support for how a survivor’s testimony alone is sufficient for a rape conviction. It seems that the judges in the majority were just not ready to believe any corroborating evidence presented by Mukhtar Mai, as in this case, there was Mukhtar Mai’s testimony, corroborated by medical evidence and witnesses, sufficiently demonstrating the circumstantial lack of consent.
This decision of the Supreme Court, now open for review, appears to be based more on a conservative judicial approach to the understanding of the facts rather than the principles of law and evidence. This can be seen from the opinion of the dissenting judge in this decision who considered there to be enough evidence to convict all the perpetrators and hence the offence punishable under the law. Despite the acquittals, Mukhtar Mai valiantly sustained in her legal battle against members of a socially more powerful group.
In her review petition before the Supreme Court, Mukhtar Mai has requested the court to constitute a larger bench to hear her the petition, contending that she is aggrieved of and dissatisfied with the findings of the court in the earlier decision. “The findings, reasons and considerations of this court that led to the conclusion are based on erroneous assumptions of material facts and misreading of the record,” the petition states. Mukhtar’s counsel in the review petition has stressed: “What has to be understood at the outset is that in rape cases the survivor’s own statement is the crucial litmus test for the outcome of the case.”
As seen in Mukhtar Mai’s case, satisfying the burden of proof for securing a conviction in rape cases is usually problematic. This factor acts as a strong deterrent for rape survivors to come forward. In addition, the ineffective process of investigation and the meaningless probing of the survivor also obviate the pressing of charges in rape cases. There is an inherent tendency in both the police and the judiciary to question the modesty of the survivor rather than address the latter’s grievances. In practice, these impediments dissuade a rape survivor from coming forward and pressing charges from the very edifice on which our criminal justice system stands.
It is time to take effective steps to curtail these failures of the criminal justice system and Mukhtar Mai’s case provides an opportunity for the Supreme Court of Pakistan to address these shortcomings. A firm position on the two questions of law and evidence can also have far-reaching consequences on how the criminal justice system determines the circumstantial requirement of lack of consent in rape cases.
In 2011, a three-member bench of the Supreme Court acquitted five of the six accused in the gang rape. The primary rationale in making this decision by the court was the delay in registration of a first information report by Mukhtar Mai, and doubts about the evidence presented by the prosecution. Taking issue with the delay in the filing of the report, a judge in the majority surprisingly assumes that as per the facts of the case, an older divorced woman like Mukhtar Mai, should have hesitated less in reporting an alleged rape compared to a younger un-married woman. This observation of the court is in complete contradiction with the current knowledge in this area and the judgement in making this observation is full of parochial terms, which in itself should be a ground for review.
Police and the judiciary tend to question the modesty of the survivor
Rape survivors deal with trauma in different ways. It is therefore speculative to assume that some survivors would readily report rape. This is a highly subjective matter and in addition to the survivor’s age, a lot would depend on the social status of the survivor, the physical and the mental pain they may be suffering, and the relative social standing of the perpetrators. The judges in the majority failed to consider this and thereby trivialized how rape is used to assert power and control. In a country where rape is under-reported and under-prosecuted, the decision came as a serious blow to Mukhtar Mai’s quest for justice.
Counsel for Mukhtar Mai, Barrister Aitzaz Ahsan, pointed to the court that there was a justifiable reason for the delay in recording the report and negative inferences cannot be drawn against the prosecution on this account. The dissenting opinion, however, takes into account the justifiable reason in the delay in this case and states that a “delay in rape cases is a universal phenomenon and can be brushed aside…” The judge further states, that, “in fact, given the social disparities between the families of the perpetrators and the survivor’s family, such delay was completely understandable. They were under a fear of reprisal. Additionally, a survivor is deterred by the embarrassment and humiliation she would have to suffer in narrating the incident to strangers, more so, to the police recording the report, followed by probes during the investigation into matters personal to her.”
In addition to the delay, the judges in the majority also doubted the evidence presented in the court by the prosecution side. Poor investigation and lack of recording of medical evidence is a well-known feature of alleged rape investigations in Pakistan. Judges in prior cases have pointed out this failing of the investigative agencies and have acknowledged the lack of emphasis on collecting medical or forensic evidence, especially against alleged male perpetrators.
Despite the judicial recognition of this problem, the judges in the Mukhtar Mai case held that in absence of strong corroboration, the case couldn’t be built on her testimony alone, even though the counsel for Mukhtar gave ample legal support for how a survivor’s testimony alone is sufficient for a rape conviction. It seems that the judges in the majority were just not ready to believe any corroborating evidence presented by Mukhtar Mai, as in this case, there was Mukhtar Mai’s testimony, corroborated by medical evidence and witnesses, sufficiently demonstrating the circumstantial lack of consent.
This decision of the Supreme Court, now open for review, appears to be based more on a conservative judicial approach to the understanding of the facts rather than the principles of law and evidence. This can be seen from the opinion of the dissenting judge in this decision who considered there to be enough evidence to convict all the perpetrators and hence the offence punishable under the law. Despite the acquittals, Mukhtar Mai valiantly sustained in her legal battle against members of a socially more powerful group.
In her review petition before the Supreme Court, Mukhtar Mai has requested the court to constitute a larger bench to hear her the petition, contending that she is aggrieved of and dissatisfied with the findings of the court in the earlier decision. “The findings, reasons and considerations of this court that led to the conclusion are based on erroneous assumptions of material facts and misreading of the record,” the petition states. Mukhtar’s counsel in the review petition has stressed: “What has to be understood at the outset is that in rape cases the survivor’s own statement is the crucial litmus test for the outcome of the case.”
As seen in Mukhtar Mai’s case, satisfying the burden of proof for securing a conviction in rape cases is usually problematic. This factor acts as a strong deterrent for rape survivors to come forward. In addition, the ineffective process of investigation and the meaningless probing of the survivor also obviate the pressing of charges in rape cases. There is an inherent tendency in both the police and the judiciary to question the modesty of the survivor rather than address the latter’s grievances. In practice, these impediments dissuade a rape survivor from coming forward and pressing charges from the very edifice on which our criminal justice system stands.
It is time to take effective steps to curtail these failures of the criminal justice system and Mukhtar Mai’s case provides an opportunity for the Supreme Court of Pakistan to address these shortcomings. A firm position on the two questions of law and evidence can also have far-reaching consequences on how the criminal justice system determines the circumstantial requirement of lack of consent in rape cases.