Till 2021, the transgender people were kept excluded from the legal regime pertaining to rape, which led to ‘normalising’ the rape culture against them in Pakistan. Other than the colonial past and patriarchal roots, the general sympathy-driven social construction of rape has strongly established this crime as an attack on the chastity and modesty of a woman rather than viewing it as a violation of human body and rights. Therefore, only female gender has remained relevant in rape laws in various global jurisdictions for centuries, and in Pakistan since its inception.
Rape against transgender persons was recognised as a punishable offence by way of the Criminal Law Amendment Act, 2021. The Act broadened the definition of rape offence both in terms of gender and action. It mentions victim as “a person” thus making the victim’s gender irrelevant to constitute the offence, unlike the previous version of the law. However, in the same year, another act, Anti-Rape (Investigation and Trial) Act, 2021, was passed to specifically target rape offences in Pakistan.
The Anti-Rape (Investigation and Trial) Act, 2021 is “an Act to ensure expeditious redressal of rape and sexual abuse crimes in respect of women and children through special investigation teams and special Courts providing for efficacious procedures, speedy trial, evidence and matters connected therewith or incidental thereto”.
The objective of this Anti-Rape Act as evident from the preamble is to establish a special mechanism for investigation and trial of rape offences against women and children -- neglecting the transgender community once again. Therefore, the cases of rape against transgender victims cannot be taken up in the special courts established under the Act. To seek justice, transgender victims are guided to ordinary criminal courts that are overburdened with backlog, flawed investigations, and slow disposal rate.
The cases of rape against transgender victims cannot be taken up in the special courts established under the Anti-Rape (Investigation and Trial) Act, 2021. To seek justice, transgender victims are guided to ordinary criminal courts that are overburdened with backlog, flawed investigations, and slow disposal rate.
Apart from being non-inclusive, numerous other discrepancies and internal contradictions surface in implementing the Anti-Rape Act, 2021, which may be removed only by reimagining the rape law of Pakistan.
Until 2021, the rape law in Pakistan was drafted with the traditional male-on-female rape framework incorporated during the British Colonial Raj. Though the recent amendments have broadened the scope of the offence in certain aspects, they have carried forward the same old non-inclusivity, ambiguity and self-contradiction in many ways. It is therefore important to adopt a human-rights-based approach in defining the offence of rape and make the gender irrelevant in identifying the victims and perpetrators of an act of rape -- especially when gender specification marginalises the already marginalised communities.
Keeping in view the gender specific definition of victim in the Anti-Rape (Investigation and Trial) Ordinance, 2020, and Pakistan’s international obligations to not discriminate on the basis of sex, it is important to consider rape as a human rights violation -- that can target any human being irrespective of sex, as enshrined under bodily integrity and human dignity, and not attach it with patriarchal standards of honour, chastity of women. Rape should be understood as a human rights violation, such as the right to life, dignity, and equal protection of the law. Each person irrespective of gender is entitled to rights by reason of being a human being, including men, women, and transgender persons.
It is also important to revisit the scope of affirmative actions under Article 25(3) of the Constitution of Pakistan. An amendment will not only have a strong impact on the national as well as the social discourse regarding transgender community of Pakistan, but it will influence forthcoming special laws pertaining to sexual offences to be more inclusive. The Anti Rape (Investigation and Trial) Act 2021 maintains gender-specificity which reinforces the same binary notion of gender, and results in gross under-inclusion.
Transgender people should be included within the definition of victim in the Anti-Rape (Investigation and Trial) Act, 2021 so that the rape cases pertaining to transgender victims are also taken to the special courts under special mechanism, rather than leaving them to the general criminal courts.
Piecemeal approach -- without looking at a holistic picture of the issue -- has been the core reason behind piles of toothless laws in Pakistan. It is high time we reimagine the offence, and include transgender victims in the legal regime, with respect to sexual offences, particularly rape.
The writer is lawyer, writer and human rights activist