Anatomy of a Gang Rape

After almost nine years spanning multiple courts of Pakistan, gang-rape victim Mukhtar Mai’s legal battle against her rapists finally came to an end on 21 April 2011 in the apex court of the country. Of the 14 men who were initially accused of abetting various aspects of the crime, only one was convicted and sentenced to life imprisonment. As such, going by the Supreme Court judgment, no one gang-raped Mukhtar Mai – after all, a single culprit cannot ‘gang-rape’.

Mukhtar’s ordeal began on 22 June 2002, when she was allegedly gang-raped in her village Meerwala (district Muzaffargarh in southern Punjab), Pakistan, on the orders of a local jirga. On 30 June 2002, urged by the village cleric, she went to the local police station with her father to lodge a First Information Report (FIR) regarding the incident. On 31 August 2002, the Dera Ghazi Khan Anti-Terrorism Court (ATC) sentenced six of the 14 accused to death. Four men were convicted of rape and two were charged with being part of the jirga that ordered the rape. The remaining eight men were released.

On 3 March 2005, the Lahore High Court (LHC) reversed the ATC judgment, citing ‘insufficient evidence’ and ‘faulty investigations’, while refraining from ordering a retrial. Five of the six men were acquitted, and the death sentence of the remaining culprit was reduced to life imprisonment. This is when a tussle for jurisdiction began between the LHC and the Federal Shariat Court (FSC), a parallel body dealing with Shariah law. The saga reached an end on Thursday, when the Supreme Court upheld the LHC verdict.

Much of the 86-page Supreme Court judgment issued on Thursdayreads like a lecture on morality – for the victim, that is, not the culprits. It also contains quotations by ‘the founding fathers’ (those of the US, that is, not Pakistan) and Shakespeare’s Hamlet. Perhaps, Shakespeare’s all encompassing ‘the lady doth protest too much’ would have summed up the decision more concisely.

The case itself was simple. The Mastois, a rival tribe in the village, alleged that Mukhtar Mai’s brother, Shakoor, had ‘had relations’ with their sister Salma, and as such, there must be badla (retribution). Badla was had in the form of Mukhtar’s gang-rape. A medical examination conducted after the crime identified at least two separate semen strains in Mukhtar’s body – an important fact that was overlooked in the Supreme Court judgment, according to which, (on page seven) no semen test was conducted.

Eyewitness statements were overlooked as well, on the speculative grounds that no father or brother would stand by and watch while a daughter or sister was being gang-raped. Interestingly, this assertion was made while discounting eyewitness’ accounts of being held at bay at gunpoint, even though the gun was recovered later by the police. The text of the judgment reads as if this were the first gang-rape case in Pakistan where the complainant was reluctant to initiate a case and thus delayed the lodging of an FIR. Lack of faith in the criminal justice system, from the role of the medico-legal officer to the cross-examiner in court, are the primary reasons why rape survivors are generally reluctant to initiate legal proceedings.

The criminal justice system in Pakistan is, as such, skewered against the survivor, all the way from the thaana to the courts. The recent gang-rape of a woman in DHA, Karachi, is a case in point. Instead of trying to investigate the case based on the survivor’s testimony, investigation officers went around giving statements to the media, casting doubt on the survivor’s ‘character’ and her profession. One of them went so far as to claim that the “fact that she was a call girl affected the severity of the crime” (his words, quoted exactly).

Investigation officers in Pakistan apparently seem to believe that contrary to what the law claims, there are various ‘levels’ of rape. To make matters worse, their misogyny is bolstered by male reporters, many of whom are quick to cast aspersions at the survivor. Questions about why she was out on the streets, what she was wearing at the time, her lifestyle choices and her profession, to name a few, seek to do nothing more than lay the burden of the crime at the doorstep of the victim rather than the perpetrator. She ‘asked for it’, of course. She asked for it by asserting her right to public space; by not barricading herself behind closed doors; by not eradicating herself by covering it up in a tent.

In making these excuses on behalf of the perpetrators, apologists forget one basic fact about rape: that rape is about power, and not lust – a fact that was amply proven in the Mukhtar Mai case. That she, a village woman who observed purdah, stayed inside the house, and did not assert her right to public space, was brutally gang-raped on the orders of an illegal jirga should destroy the basic notions associated with how women ‘ask’ to be raped by being ‘independent’.

When Mukhtar’s character could not be questioned, however, those involved in her case satisfied themselves by punching holes in her testimony as well as those of other prosecution witnesses. More time was spent trying to figure out who handed Mukhtar her clothes after she was gang-raped rather than ascertaining whether she was indeed gang-raped. Going by the text of the judgment, it looks like the fact that there were “no significant marks or injuries” on Mukhtar’s body is perhaps ‘shocking’. Such marks, however, are rarely present on a rape survivor’s person. Multiple rape survivors have testified time and again to the fact that they feared that protesting would lead to greater violence; and that, as such, they simply lie there passively, wishing that the rapist would stop soon and “just go away”.

This is corroborated by a recent judgment handed down for a rape case by Additional Districts and Sessions Judge Karachi East, Chaudhry Wasim Iqbal. On 28 March 2011, Justice Iqbal clearly and rightly stated that merely finding no mark of violence on the survivor cannot be used to form an opinion regarding consent. Medical evidence, he had said, must be used only for corroboration and should not overrule the authenticity of the natural witness.

A thorough read of the 86-page Supreme Court judgment shows that the argument of two of the three members of the bench finds its basis in the misogyny prevalent in the criminal justice system of Pakistan. The honourable judges followed noted jurist, William Stone.. Stone had contended: “Better that ten guilty persons escape than that one innocent suffer”. In Mukhtar Mai’s case, 13 guilty persons escaped, while one innocent woman continues to suffer.

According to a recent report issued by the Human Rights Commission of Pakistan, 2,903 women were raped in Pakistan in 2010 alone – and these are just the reported cases. In order to ensure that women are not forever turned against the criminal justice system of the country, therefore, it is important to revisit the Mukhtar Mai case. The crime was not merely committed against a person; it was also committed against the State. On Friday, MNA Sherry Rehman requested the government to not just provide security to Mukhtar Mai, but also file a review appeal in the Supreme Court – a request that one hopes will be responded to favourably. Impunity cannot and should not be rewarded. Nine years is a long time, but it is still not too late; and it is the job of our elected representatives to ensure that crimes against women do not go unpunished.