Supreme Court's Justice Ayesha Malik has observed that a woman should not be stigmatised simply because she is a victim of a rape case and is seeking justice against such a heinous crime, adding that determining whether a rape happened or did not happen just because certain stereotypical actions either took place or did not.
"No woman should be stigmatised simply because she has availed her right to access to justice and reported a heinous crime against her person and body," observed Justice Ayesha in her dissenting note in a rape case judgment whereby a three-judge bench converted a conviction of rape into fornication.
Justice Ayesha has further observed that the act of rape has serious consequences as it deprives a woman of her right to life and her right to dignity and privacy, which includes the right to mental and physical integrity.
"Every woman is entitled to respect for her life, her integrity and the security of her person," she said in her dissenting note.
The three-judge bench, headed by Justice Jamal Khan Mandokhail and comprising Justice Ayesha Malik and Justice Malik Shehzad Ahmed Khan, gave judgement in a rape case. Justice Shehzad Malik authored the judgment, which was issued with a majority of two to one, and converted the conviction of rape into fornication after modifying the original judgement issued by the Lahore High Court (LHC).
Justice Ayesha said that it is crucial to observe that the Constitution specifically deals with preserving, protecting and promoting the rights of women, which are clearly violated in gender-based violence cases. "Article 9 of the Constitution protects the right to life. Article 14 grants the inviolable right to dignity as well as the right to privacy."
"In cases of rape, there is a gross violation of the right to life, dignity and privacy," observed Justice Ayesha, adding that in this context, the state is responsible for ensuring that essential and required steps are taken to protect women from such crimes, and also to protect them from gender stereotyping which undermines a woman's ability to enjoy her basic fundamental rights.
"It goes without saying that gender stereotyping should not undermine the rule of law."
She reminded that Pakistan is a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which condemns discrimination against women in all its forms and requires that appropriate measures be taken to eliminate discrimination against women.
"It recognises gender-based violence, constitutes a form of discrimination and requires states to take steps to eradicate this," Justice Ayesha said in her note.
"It specifically requires that the law must respect the integrity and dignity of women," it said, adding, "Article 5 of the CEDAW requires that the right to be free from violence means the right to be valued, educated and free from eliminating stereotypical patterns of behaviours including social and cultural practices, which also include prohibiting inferiority or superiority ideas on the basis of sexes."
Justice Ayesha maintained that DNA tests are considered to be as accurate as fingerprints, especially in a rape case, as it clearly establishes the fact that a perpetrator has had sexual intercourse with the victim.
"A recent study rendered the impact of DNA tests on the prosecution case is such that when the DNA evidence matches the suspect in a rape case, the odds of conviction are substantially greater than in cases with ordinary evidence," observed Justice Ayesha, adding, "As per the study, DNA evidence establishes that the suspect had sexual contact with the victim and highlights the importance of quality forensic medical examinations."
"Accordingly, the veracity and significance of the DNA test cannot be ruled out or ignored when the test becomes corroborative evidence in support of the allegation of rape."
With reference to the value of the statement of a complainant, Justice Ayesha had observed that the Supreme Court has held in the past that the solitary statement of the victim is sufficient to award a conviction in a rape case if that statement is trustworthy, consistent and reliable.
"This court has also repeatedly ruled that marks of violence in a case of sexual offence are not essential to establish rape and that in the absence of visible marks of violence, it cannot be inferred that the plea of rape is devoid of any merit, especially where the medical evidence confirms sexual intercourse," she observed, adding, "In this context, it is important to note that the victim's character or reputation is also immaterial by way of evidence, there being no nexus between her reputation, character and the offense of rape."
"Similarly, questions targeting her character have no relevance to the matter on trial, that is, the commission of rape," she wrote, adding, "Similarly, physical resistance need not be established in a rape case as different people react differently when confronted with trauma and to subject all women to a stereotypical presumption that she must resist in a particular form in order to establish rape is totally without basis."
"These cases show the shift in the jurisprudence which relies on the statement of the victim and corroborative scientific evidence to establish rape and essentially denounce myths, presumptions and stereotypical arguments."
Justice Ayesha further observed that the offense of rape is made on the body of the victim, and her response to this offensive act cannot be standardised as per expected responses.
"As per expert psychiatrists, the reflexive reaction of fear or threat in a victim may automatically lead to fight, flight or freeze responses. Especially in sexual violence, the victim may not be able to make decisions to protect themselves as they might freeze or get stuck in response to the traumatic experience."
Justice Ayesha explained her dissent as:
"Hence, I totally disagree with the findings given in the opinion of the majority that, since the petitioner was unarmed, having no weapon at the time of occurrence, a female who is not a consenting party would offer very strong resistance in a case of rape, and consequently, there would be marks of resistance on her body."
"There is no uniform or predictable response of a victim in a case of rape, and at the same time, there is no standardised response of behaviour after the rape that would culminate into evidence against the victim," she added.
"In my opinion, relying on marks of injury or visible signs of resistance as evidence of rape is a fallacy and a denial of a fair trial to the complainant, who is the victim of a serious and heinous crime," observed Justice Ayesha.
Justice Ayesha observed that it is relevant to note that victims of rape are subjected
to a higher burden of proof than victims of other crimes based on certain misconceptions or presumptions against the victim and the rape.
"For example, the presumption that women usually lie that they are raped or that women who are widowed or divorced are more likely to consent to intercourse or even that every woman will resist her perpetrator in a particular manner which resistance must be evident and obvious for her to establish rape," she wrote.
"Furthermore, gender-based violence is often viewed in the framework of morality, public decency and honour, rather than viewed as violence against women's integrity."
"This is so notwithstanding the fact that the law on the subject of rape has evolved over the years where this court has held that the best evidence in a rape case is a DNA test and that her previous character or reputation is irrelevant."
"In the same way her sexual history has become irrelevant and most importantly, in cases of rape, this Court has repeatedly recognised that the statement of the victim is sufficient if it is confidence inspiring."