The Supreme Court of Pakistan has asked courts to avoid using inappropriate jargons for victims in rape cases. The 11-paged verdict by Justice Mansoor Ali Shah seeks courts to discontinue taking into account the sexual history of the victim and it should not be dragged in.
The use of painfully intrusive and inappropriate expressions, like ‘habituated to sex’, ‘woman of easy virtue’, ‘woman of loose moral character’, and ‘non-virgin’, for the alleged rape victims even if they find that the charge of rape is not proved against the accused.
“Such expressions are unconstitutional and illegal,” the judgement said.
The judgment said a woman, whatever her sexual character or reputation may be, is entitled to equal protection of law.
“No one has the license to invade her person or violate her privacy on the ground of her alleged immoral character. Even if the victim of rape is accustomed to sexual intercourse, it is not determinative in a rape case; the real fact-in-issue is whether or not the accused committed her rape.”
The order said the fact that a victim had lost her virginity earlier does not give to anyone the right to rape her. In a criminal trial relating to rape, it is the accused that is on trial and not the victim.
The court said dragging the sexual history of the rape survivor into the case by making observations about her body including observations like “the vagina admits two fingers easily” or “old ruptured hymen” is an affront to the reputation and honour of a rape survivor.
It said such observations violate Article 4(2)(a) of the Constitution, which mandates that no action detrimental to the body and reputation of a person shall be taken except in accordance with law.
“Similarly Article 14 of our Constitution mandates that dignity shall be inviolable, therefore, reporting sexual history of a rape survivor amounts to discrediting her independence, identity, autonomy and free [of] choice…
“Thereby degrading her human worth and offending her right to dignity guaranteed under Article 14 of the Constitution. [This] right to dignity under Article 14 of the Constitution is an absolute right and not subject to law.” The order said dignity means human worth.”
“Simply put every person matters. No life is dispensable, disposable or demeanable. Every person has the right to live, and the right to live means right to live with dignity.”
“A person should live as ‘person’ and no less. Human dignity hovers over our laws like a guardian angel; it underlies every norm of a just legal system and provides an ultimate justification for every legal rule.”
“And yet standing alone and tall, making human worth and humanness of a person a far more fundamental a right than the others, a right that is absolutely non-negotiable,” said the judgment.