Cautious optimism over support advisors provision in Anti-Rape Act 2021

Research finds rape victims don't even report incidents for fear of secondary victimization in quest for justice

Picture source - The Financial Express Bangladesh

The Anti-Rape (Investigation and Trial) Act, 2021 would allow rape victims to seek ‘independent support advisors’ to protect them from reliving their trauma through possible victim-blaming – a provision that has been welcomed by women lawyers with cautious optimism.

According to section 11 of the act, victims may be accompanied to court by the support advisors, who would assist them in possible stressful situations, which may arise due to victim-blaming during the proceedings.

A Special Committee, which would be instituted to oversee the implementation of the act, would collaborate with the Ministry of Human Rights to deploy an advisor belonging to either a non-governmental or a government organization. These advisors could be psychologists, doctors, lawyers, lady-health workers, social workers, etc.

The Special Committee would also be required to maintain a repository of advisors at District or Tehsil levels. Independent support advisors would be appointed upon the recommendation of the Anti-Rape Crisis Cell, which has emerged as another feature of the new act.

The act existed previously in 2020 as an ordinance by the same name, but was introduced as a bill in the joint session of parliament last week and passed, with several clauses meant for swift dispensation of justice in rape cases.

The provision for advisors has been welcomed with calculated positivity. Speaking to Minute Mirror, Digital Rights Foundation founder and lawyer Nighat Dad said that she has always been skeptical of ordinances to pass laws in the country because they were often one-sided with rare consultations involved. She said the ordinance was now an act but keeping her criticism of ordinances aside, it appeared good on paper despite the implementation challenges ahead.

“We have had good anti-rape amendments previously in 2016 in the Pakistan Penal Code (PPC) which had decent provisions like confidentiality of the survivor and witnesses,” said Dad. “In this act, the provisions are presented more progressively,” she added.

She wondered how long it would take for the government to set up the infrastructure required to utilize advisors, who would need to be thoroughly trained to provide proper support to victims, especially in trial courts.

“Many victims and survivors start giving up in trial courts because that’s where they face victimization in their statements, and in their cross-examination wherein they are asked questions quite dirtily,” said Dad. “I am not sure how the government will implement this but if it happens, it will be really good.”

Like Dad, partner at Axis Law and a Lahore High Court advocate Maria Farooq told Minute Mirror that implementation would require special attention. “We can’t say there is no use for the law, it is just that it will take time, just as it has taken time to come to this step,” she said.

Farooq was also one of the counsels in a constitutional petition challenging the practice of two-finger virginity testing in sexual assault cases that was accepted earlier this year by the Lahore High Court in Sadaf Aziz v. Federation of Pakistan.

Using her work in that case as an example, Farooq said that evidence ran through medico-legal officers, who sometimes were not knowledgeable enough to deal with the situation sensitively. By extension, it was a pertinent question to ask how support advisors would operate, she added.

Despite the challenges ahead, Farooq deemed advisors to be a welcome step as many times women faced unforgiving situations like character assassination by the accused’s counsel.

She envisioned that the advisors would play two types of roles. On one hand, they would assist victims during trial proceedings, and on the other, there would be pre-trial counseling for the aggrieved.

Farooq said that the advisor could coach the victim on possible scenarios in which allegations and irrelevant questions could be brought up, in addition to guiding the victim to make informed decisions on whether to pursue a case or back out of a trial if the prosecution’s case did not appear to be strong enough.

Secondary victimization has often been termed ‘second rape’, which was a phrase coined by psychologists Lee Madigan and Nancy Gamble in their 1991 book titled ‘The Second Rape’. It has been used as a reference to the repeated humiliation and unscrupulous interrogations faced by a victim as they navigate the justice system.

Several studies on the phenomenon have also found that the outcome of proceedings was directly linked with the victim-blaming that the survivors faced in court. In one such study by researchers at the University of Illinois, the US, about 84 percent of participants, who were mental health professionals, believed that social systems like courts often left survivors psychologically endangered in the quest for justice.

In another study by the University of Chicago, it emerged that over 80 percent of sexual assault victims don’t report the incident to the police for fear of secondary victimization.

Secondary victimization has pierced through several high-profile cases in Pakistan as well and is not just limited to court rooms, a notable incident of which would be the Motorway case last year, in which a woman was gang-raped in front of her children by robbers when her car broke down on the highway. The then capital city police officer Umar Sheikh resorted to victim blaming on national television, in which he questioned why the woman travelled at night and did not check her fuel before doing so.

In another high-profile case, Noor Muqaddam was allegedly tortured and beheaded by Zahir Jaffer in Islamabad this year. Amidst the ongoing case proceedings, societal indoctrination reared its ugly head as deceased Muqaddam was victim blamed incessantly. In a ruckus creating statement, journalist Imran Khan alluded that Muqaddam’s murder was a result of ignoring Islamic values, which disallowed a close relationship with the opposite gender. In a YouTube video, Khan had said that Muqaddam was connected more with her alleged killer than her own father.

Cases like Muqaddam’s and the motorway one are potential indicators for the necessity of independent support advisors in court, despite the challenge of implementation.

“You can make the legislation, but the question remains who the support advisors will be and what capacity-building is possible,” said Farooq.

Saniya Rashid is the research editor at Minute Mirror. She holds a Master's in Journalism degree from Ryerson University, Canada and a BA (Hons) in History, South Asian and Contemporary Asian Studies from the University of Toronto. She has a keen interest in connecting the past to the present by conceptualizing current affairs through a theoretical lens from a variety of socio-cultural disciplines. To that end, she is most interested in unearthing subaltern narratives and is committed to shifting the way minorities and marginalized communities are covered and given a voice in the media. She can be reached at [email protected].