Starting the conversation on systemic violence
Filmmaker Jami’s tweets about rape at the hands of a powerful figure in the media have opened up a long-needed conversation about the System in Pakistan, the culture of silence, the legal options, the abuse of power. It is an important conversation young people want to see happening. At SAMAA Digital we hope to take part in that conversation.
For starters we reached out to lawyers and experts with some basic questions. Our aim is to use Jami’s case as a point of entry to a larger debate on #MeToo. The first lawyer to send in responses is Sara Malkani. Please note that this article is no substitute for the counsel of a lawyer in a specific case. This is also a developing story and other lawyers or experts we have reached out to may add additional information in the days to come.
The original story was published Oct 21: Filmmaker Jami comes forward with #MeToo story
The second story was published Oct 23: With new tweets, Jami shows Pakistan time’s up
We will hopefully keep adding on information in this series.
1. If someone comes forward in Pakistan and tweets they have been raped, are the authorities legally bound to investigate even if they do not name the person?
– What are those authorities and under what law could they act on their own?
Rape is a “cognizable” offense under our Penal Code, which means that the police can investigate and make an arrest for rape without a complaint by the victim. So for example, if the police observe a rape taking place or have reason to believe that a rape has taken place, they can apprehend the suspect even if the victim him or herself has not approached the police.
In fact, if they have good reason to believe that a rape is or has taken place, they would be duty bound to investigate and apprehend on their own initiative. Whether, in this particular case, given that the rape took place years ago and the survivor already seems reluctant to name the person, I don’t think the duty of the police to respond is very clear.
One argument could be that there is possibly a dangerous rapist loose and they have a duty to ensure that he doesn’t do this to more people. That argument can be made, but in response the police could say, we have many more immediate cases to deal with so we can’t be expected to spend resources on this, and it doesn’t look like another rape by this person is imminent. I don’t think the duty of the police to initiate an investigation in this context is so obvious.
UPDATE: On Twitter, human rights lawyer, Shoaib M Khan wrote back: “[A] basic legal question, about Pakistani law. Can a male be a rape victim? In Pakistani law, isn’t “rape” and offence by a male against a female? If so, this article doesn’t address this basic obstacle to justice in Jami’s case. How can male victims secure justice?”
Sara Malkani provided this response:
Under the Penal Code provision on Rape (Section 375), the offense can only be committed by a man against a woman. So the rape of a man will not fall under this provision. Rape of men by men would be covered under the provision on “Unnatural Offenses” (Section 377) which criminalizes “carnal intercourse against the order of nature with any man, woman or animal.” This provision is problematic though because it would cover both consensual and non-consensual sex between men. I do think that it is important to amend the Penal Code provisions so that they cover rape of men more clearly.
2. If a rape has taken place 13 years ago, what kind of evidence will be needed if at all to prosecute? Will witness testimony suffice?
Witness testimony can suffice for a rape conviction. Our Supreme Court has found that even the solitary statement of the victim, where it is found credible and consistent with available circumstantial evidence, can be sufficient for a conviction.
With a lapse 13 years though, a stronger challenge can be made to the credibility of the victim’s statement, his or her ability to recollect etc.
3. If the person does not want to name their rapist, does not want to go to the authorities, will any action in reality take place?
Unlikely. If the victim will not provide testimony or evidence, it is unlikely that a person will be charged.
4. Can the media investigate an allegation against an unnamed person accused of rape?
As long as the don’t break any laws during the course of the investigation, I don’t see why journalists cannot investigate.
5. If someone closely identifies without name their alleged rapist, are they opening themselves up for defamation and by default the media as well if they cover this?
Without naming the person, there will be very little basis for a defamation case. Perhaps a claim can be made that the description offered by Jami so closely matches one particular person, that an ordinary reasonable person reading it will definitely take it to refer to that person. I don’t think that’s a particularly strong basis though.
6. How can the media pursue this particular case now and under the given circumstances?
A journalist would know best, but as I said above, I don’t see why it cannot investigate further within the bounds of law.
Related story: New weapons to use in rape cases in Pakistan
7. How can, given your knowledge of other such high-profile cases, the system work against the victim in Pakistan? Especially if the person they are accusing is really powerful and in the media.
We have seen that powerful people can retaliate through litigation and use the media to build public support for themselves. They can use threats and intimidation, and the weaker party will find little support from law enforcement. Here, because the accused has not been named, I don’t think Jami has opened himself to defamation charges or a suit, but could face other forms of retaliation.
8. If there are other people who have been raped but have been silent for years, is there any way they can seek justice?
As far as criminal justice is concerned, the longer the time lapse, the weaker the evidence typically. Physical evidence is bound to get lost and witness testimony becomes unreliable with time. Having said that, we saw with the Bill Cosby case that incidents of sexual assault were prosecuted years later. That’s another system and another context—but it is possible.
9. If a person names their rapist either immediately or years later, what is supposed to be the proper due legal process and protections.
Process as laid out in the Criminal Procedure Code.
The police has to investigate, arrest and charge accordingly.
Then there is a criminal trial followed by acquittal or conviction.
10. Please add any advice or remarks or thoughts about this case that would set the record straight on the debates surrounding it (such as forcing Jami to name the rapist).
Of course there is no legal compulsion on Jami to name the rapist. He has chosen not to identify the rapist by name publicly and his decision should be respected. His decision not to pursue a criminal course of action should also be respected.
He has said he wants to increase awareness about the sexually abusive conduct of powerful men and so he’s sharing his story. In my view, in case Jami (or anyone) is considering identifying their rapist by name, they should prepare themselves for the likely consequences before hand—legal and otherwise.
Also, if the goal is to link this to the broader #MeToo movement, a strategy should be developed on how these cases/stories will be presented, how much evidence we have to put forward before the media and courts and how we can build some resilience against backlash.
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