Academic journal article The Journal of Gender, Race and Justice

Reform of the Pakistani Rape Law: A Move Forward or Backward?

Academic journal article The Journal of Gender, Race and Justice

Reform of the Pakistani Rape Law: A Move Forward or Backward?

Article excerpt

I. INTRODUCTION

Rape is a crime of the most serious nature. In every country in the world, rape is recognized as heinous and is punished as such; however, the punishments for rape differ between various countries and legal systems.1 In Pakistan, the punishment for the crime of rape is severe-death.2

At first glance, some might consider death to be beyond the realm of acceptable punishments for this particular crime. After all, the United States and other Western countries punish rape through confinement.3 But the severe punishment of the Pakistani rape law, when examined closer, is not handed out very often because proving the crime and achieving a conviction are almost impossible.4 Also, if a charge is brought and the burden of proof is not met, the accusing party may find him or herself charged with a crime.5

Women's rights groups and international human rights groups have sought to ease the harshness of Pakistan's law and make it easier for women to achieve rape convictions.6 International pressure from these groups has pushed through some change in the rape law,7 but even the reform does not seem to make much of a difference in the lives of Pakistani rape victims. Rape still occurs approximately every two hours in Pakistan;8 a gang rape occurs every four days,9 half the victims are juveniles, and these figures are rising.10

Recently, a new reform to the Pakistani rape laws was pushed through the legislature and signed by the president; many hope it will be a victory for women and women's rights in combating rape." While this revision of the rape laws is a step forward for women's rights, it is still viewed as a small victory and has the potential to bring with it repercussions for the women it was written to protect. While the newest revision to the rape laws has created some advancements for women's rights, the negative ramifications could include increased violence toward women through tribal law, honor killings, and other personally motivated sex crimes. This Note has three purposes: Part II will cover the background and origins of Pakistani law, including the foundations of the rape law, to clearly illustrate the difficulties involved in changing it; Part III will discuss the recent reforms to the rape laws and the potential impacts on women and women's rights in Pakistan; and finally, Part IV will propose solutions to attempt to lessen the backlash towards women that will likely occur as a result of the reform. From its birth in Islam to the current reshaping, Pakistani rape law has progressed to an entirely new entity with new goals and problems.

II. ISLAM AND THE BASIS FOR THE CREATION OF PAKISTANI RAPE LAW

Pakistani law, in general, is grounded in Islam, particularly the Hudood Ordinances.12 It is necessary to understand the foundations of Pakistani law in order to comprehend the origin of the new laws, as well as the magnitude of change the rape laws have undergone and will hopefully undergo.13 While the law began as an extension of the Qur'an, Islamic principles codified into formal laws, the Zina Ordinance transformed rape laws in Pakistan while keeping the Islamic foundation.

A. Islam as a Foundation for Pakistani Law

Following Pakistan's release from British rule in 1947,14 Pakistan wrote three constitutions-one in 1956, one in 1962, and one in 1973.15 While changes were made to each, the core of each constitution remained the same.16 Each amended constitution centered around the idea that "all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, and that no law shall be enacted which is repugnant to such Injunctions."17 In other words, through the process of creating its first independent constitution, Pakistan devoted itself to following the principles of the Muslim religion through laws and politics, as well as personal practices.18

During the military dictatorship of General Zia-ul Haq from 1977 through 1988, the government actively injected Islam into the Pakistani laws in a process called "Islamization. …

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