::Offences of Sexual Vioalnce against Women….Laws and Practice in Pakistan

::Offences of Sexual Vioalnce against Women….Laws and Practice in Pakistan

Law:

Different forms of sexual offences exist in the Pakistani law. However, most are not recognized or identified as forms of ‘violence’ but rather those of abuse or outraging the modesty of a woman in one manner or another. However, these are all forms of sexual violence, even if not explicitly noted to be so. Forms of sexual violence, incest and abuse have not been specifically identified but can be read into the clauses. In fact, several judgments from the courts have read these kinds of abuse into the laws.

The definition of sexual violence in simple terms means any form of violence or an act which is committed with sexuality as the main motivation, which results in violence. Consequentially if the result of any sexually motivated act is ‘hurt’ or ‘death’ it is a case of sexual violence. Thereforethe provisions identified below are not just which specifically mention sexual offences but also those which could likely be the consequence of those sexual offences.

Provision of Law:

RAPE

Definition:

Rape refers to forced sexual intercourse against a person’s will. It is a violent, hostile assault that a person commits to dominate, overpower and humiliate the other person. It is an act of power and control. It is forced sexual intercourse, including vaginal, anal, or oral penetration. Penetration may be by a body part or an object. The most important aspect of rape is the lack of consent.

Rape may or may not involve actual overt violence. A person can be raped if he/she is coerced into performing a sexual act. Coercion may take a variety of forms. It may involve physical force, threats of bodily harm, financial deprivation or dire consequences. A common feature of this coercion is the abuse of power to control the victim.

Sexual assault covers other forms of physical sexual intrusion that is unwanted and unwelcome – including touching, rubbing and masturbating on or over someone.

Law:

Pakistan Penal Code

90. Consent known to be given under fear or misconception:

A consent is not such a consent as is intended by any action of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

  • Consent of insane person: If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
  • Consent of child: Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

375. Rape:

A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:

  1. against her will.
  2. without her consent
  3. with her consent, when the consent has been obtained by putting her in fear of death or of hurt,
  4. with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or
  5. With or without her consent when she is under sixteen years of age.

377. Unnatural offences:

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

367-A. Kidnapping or abducting in order to subject person to unnatural lust:

Whoever kidnaps, or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend to twenty-five years, and shall also be liable to fine.

Anti Terrorism Act 1997

6. Terrorist act:

A person is said to commit a terrorist act if he:

  • (c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act;

MARITAL RAPE:

Definition:

When rape occurs within the marriage, neither abuser nor victim may consider it legal rape. This is partially due to the general acceptance  within our culture which tells us that it is the wife’s duty to fulfill her husband’s sexual demands.

Many women (both religious and non-religious) don’t believe they have the right to refuse sex, that ‘sex on demand’ is an unwritten part of the marriage contract. When they have been raped by their husband, they are inclined to take responsibility for the abuse, furthering the feelings of guilt and lack of self-worth. This blame-taking is further increased by the abuser’s justifications, e.g. ‘it is your fault for saying no…’

When no actual physical violence was used (i.e. coercion or force-only ) many abusers will deny that rape has actually occurred and treat the abuse as though it was normal and by joint consent. This has the effect of further confusing the victim as to the reality of her experience.

Marriage, however, is a contract based on mutual love, respect and consideration. Each party has a right to their own body, and while consideration for each person’s sexual needs is normal, forced sexual acts are not an expression of love, but a purposeful betrayal of the respect and trust which form a solid marriage.

Law:

Pakistan Penal Code

375. Rape:

A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:

  1. against her will
  2. without her consent
  3. with her consent, when the consent has been obtained by putting her in fear of death or of hurt,
  4. with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or
  5. With or without her consent when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

SEXUAL ABUSE

Definition:

Sexual abuse can be defined as any sexual encounter without consent and includes any unwanted touching, forced sexual activity, be it oral, anal or vaginal, forcing the victim to perform sexual acts, painful or degrading acts during intercourse, and exploitation through photography or prostitution.

The abuser may use violence to rape his partner (this is most common where physical violence is also current) or he may use only enough force to control his partner’s movements .Coercion or manipulation in the form of threats, emotional or psychological abuse may also be used, leaving the victim to submit to unwanted sexual acts out of fear or guilt. The abuser may insist on sex following a physical attack for the victim to ‘prove’ he has forgiven her. Whatever form of coercion is used, be it physical, financial or emotional, any sexual act which is not based on mutual consent constitutes sexual abuse.

Sexual Abuse can involve any of the following:

  • excessive jealousy
  • calling you sexually derogatory names
  • criticizing you sexually
  • forcing unwanted sexual act
  • forcing you to strip, or forcefully stripping you
  • sadistic sexual acts
  • withholding sex and/or affection
  • making sex conditional on your behaviour or agreement to include practices you are not happy about, e.g. using porn or sex toys
  • minimizing or denying your feelings about sex or sexual preferences
  • forcing sex after physical assault
  • using coercion to force sex
  • taking unwanted sexual photos, sharing these with other people/internet without your consent
  • forcing you into prostitution
  • forcing sex when you are ill or tired

Law:

Pakistan Penal Code

293. Sale, etc., of obscene objects to young person:

Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

294. Obscene acts and songs:

Whoever, to the annoyance of others:

  1. does any obscene act in any public place, or
  2. sings, recites or utters any obscene songs, ballad or words, in or near any public place,

Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

299. Definitions:

In this Chapter, unless there is anything repugnant in the subject or context:

  • “ikrah-e-tam” means putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant, permanent impairing of any organ of the body or instant fear of being subjected to sodomy or ziha-bil-jabr;

303. Qatl committed under ‘ikrah-i-tam or ikrah-i-naqis’. Whoever commits qatl:

  • under ikrah-i-tam shall be punished with imprisonment for a term which may extend to twenty-five years but shall not be less than ten years and the person causing ‘ikrah-i-tam’ shall be punished for the kind of qatl committed as a consequence of his ikrah-i-tam;

337-L. Punishment for other hurt:

  1. Whoever causes hurt, not mentioned hereinbefore, which endangers life or which causes the sufferer to remain in severe bodily pain for twenty days or more or renders him unable to follow his ordinary pursuits for twenty days or more, shall be liable to daman and also be punished with imprisonment of either description for a term which may extend to seven years.
  2. Whoever causes hurt not covered by sub-section 1. shall be punished with imprisonment of either description for a term which may extend to two years, or with daman, or with both.

354. Assault or criminal force to woman with intent to outrage her modesty:

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both.

354-A. Assault or use of criminal force to woman and stripping her of her clothes:

Whoever assaults or uses criminal force to any woman and strips her of her clothes and in that condition, exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine.

364-A. Kidnapping or abducting a person under the [age of ten]:

Whoever kidnaps or abducts any person under the [age of fourteen] in order that such person may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person or may be so disposed of as to be put in danger of being murdered or subjected to grievous hurt, or slavery, or to the lust of any person shall be punished with death or with imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years.

365-B. Kidnapping, abducting or inducing woman to compel for marriage, etc.:

Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced, or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment for life, and shall also he liable to fine; and whoever by means of criminal intimidation as defined in this Code, or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.”.

366-A.  Procuration of minor girl:

Whoever by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.

367-A. Kidnapping or abducting in order to subject person to unnatural lust:

Whoever kidnaps, or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend to twenty-five years, and shall also be liable to fine.

375. Rape:

A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:

  1. against her will.
  2. without her consent
  3. with her consent, when the consent has been obtained by putting her in fear of death or of hurt,
  4. with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or
  5. with or without her consent when she is under sixteen years of age.

377. Unnatural offences:

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

496-A. Enticing or taking away or detaining with criminal intent a woman:

Whoever takes or entices away any woman with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any woman, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

498. Enticing or taking away or detaining with criminal intent a married woman:

Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

509. Insulting modesty or causing sexual harassment:

Whoever:

  • Intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman;
  • conducts sexual advances, or demands sexual favours or uses written or verbal communication or physical conduct of a sexual nature which intends to annoy, insult, intimidate or threaten the other person or commits such acts at the premises of work place, or makes submission to such conduct either explicitly or implicitly a term or condition of an individual’s employment, or makes submission to or rejection of such conduct by an individual a basis for employment decision affecting such individual, or retaliates because of rejection of such behavior, or conducts such behavior with the intention of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment,

Shall be punished with imprisonment which may extend to three years or fine up to five hundred thousand rupees or with both.

Anti Terrorism Act 1997

6. Terrorist act:

A person is said to commit a terrorist act if he:

  • commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act;

The Protection Against Harassment of Women at the Workplace Act 2010

2. Definitions:

In this Act, unless there is anything repugnant in the subject or context:

  • “harassment” means any unwelcome sexual advance, request for sexual favors or other verbal or written communication or  physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment;

Child Marriage Restraint Act 1929

2. Definitions:

In this Act, unless there is anything repugnant in the subject or context:

  1. “child” means a person who, if male, is under eighteen years of age, and if a female, is under sixteen years of age;
  2. “child marriage” means a marriage to which either of the contracting parties is a child;

Offence of Zina (Enforcement of Hudood) Ordinance 1979

5-A. No case to be converted, lodged or registered under certain provisions:

No complaint of zina under section 5 read with section 203A of the Code of Criminal Procedure, 1989 and no case where an allegation of rape is made shall at any stagy be converted into a complaint of fornication under section 496A of the Pakistan Penal Code (Act XLV of 1860) and no complaint of fornication shall at any stage be converted into a complaint of zina under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 (Ordinance No. VII of 1979) or an offence of similar nature under any other law for the time being in force.

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