IN a way, some dissenting judgements reflect what could have been, and what can one day still be achieved. To quote Benjamin N. Cardozo, the dissenter speaks to the future. Recently, by a majority of 2-1, our Supreme Court converted a conviction of rape into ‘fornication’. In a powerful dissent, Justice Ayesha A. Malik used her pen for a better tomorrow.

Before the court, a woman had accused her brother’s friend of rape. The trial court and the high court ruled in the woman’s favour. At the Supreme Court, Justice Malik Shahzad Ahmad Khan and Justice Jamal Khan Mandokhail found that the woman was a consenting party.

Judges can have genuine disagreements on whether evidentiary standards have been met — particularly in a criminal case where the liberty of an individual is involved. There can be different views on whether the evidence before the court is enough to uphold the conviction. But instead of limiting themselves to the evidence, the majority went on to determine how a rape victim should have reacted.

Since the man was unarmed, the majority held, “a female who is not a consenting party would offer very strong resistance in a case of attempt to commit rape with her” and “no mark of violence whatsoever was noted on the entire body”. The court effectively found that an ‘actual’ rape victim would have offered strong resistance, and there would be resistance marks on her body to establish this. This reasoning shifts the onus onto the victim, ie, she should have done more, she should have resisted, she should have fought back.

Our jurisprudence is dictated by the male lived experience.

In sharp contrast, the dissent identifies studies by expert psychiatrists, which show that in cases of sexual violence, victims may have various different types of response — fight, flight or freeze. There is no fixed response in rape cases. To say that a woman must ‘fight’ looks at rape from a masculine lens, and undermines a woman’s lived experience. Per Justice Malik, “the offence of rape is made on the body of the victim and her response to this offensive act cannot be standardised”.

The New York Times magazine did a story, speaking to rape victims about the ‘freezing’ response. Some victims said they wanted to yell and push and resist, but their body simply would not respond. Others blanked out or were too shocked to react, and went into a state of involuntary paralysis. The majority assumes one type of response, the only type they are able to imagine.

Moreover, for fornication to be proved, it must be shown that sexual intercourse was consensual. The majority has imputed consent on behalf of the victim, whereas the dissent found that consent must be an unequivocal voluntary agreement. Consent must not be assumed.

The majority judgement then holds that there was a two-day delay in filing an FIR. This finding ignores precedent which clearly states that in cases of sexual assault, a lenient view should be taken on delayed reporting. In line with established precedent, Justice Malik writes: “With reference to delay, this Court has held that delay is of no consequence as such cases involve the victim and her family’s reputation and honour, hence, some delay in reporting a crime of sexual offence is immaterial.”

The reasoning of the majority has a striking similarity with the Mukhtaran Mai case. In both cases, the court completely disregards the extreme trauma associated with rape, and how this may result in slower reporting. In Mukhtaran Mai’s memoir, she expresses how she felt suicidal after the incident: “I have made up my mind. I want to kill myself … I’m already dead in the eyes of others.” It takes time and strength to undertake a le­­gal battle, to use this against a victim is an in­­justice that ign­ores the cultural and social stigmas associated with rape.

The majority seem to have come up with a rulebook on how victims should react in order to get justice. The ‘right’ victim fights, the ‘right’ victim has marks of resistance, the ‘right’ victim reports immediately.

A few weeks ago, Justice Malik was speaking at a symposium on inclusive justice organised by the Federal Judicial Academy and UN Women. She explained that her reasoning may differ from her male colleagues: “my understanding may be very different because it’s based on a different premise, because it’s based on my life experiences, it’s based on my perspective which is the gender perspective.”

The tragic reality in Pakistan is, since men dominate the judiciary, our jurisprudence is dictated by the male lived experience. There is little to no gender sensitisation training in the judicial system, and gender stereotypes remain deeply embedded. The voice, perspective, and lived experience of nearly half the population continues to be overlooked.

This should not be allowed to continue.

The writer is a barrister.

X: @RidaHosain

Published in Dawn, July 15th, 2024