Femicide and the judicial system

There is no denying the fact that women are vulnerable to arbitrary cultural values and traditions distinct across the world. Historically, women were marginalised in different societies as they would assume a negligible role in decision making in public as well as private spheres of life.

Women often experience obstacles in gaining access to mechanisms of redress, including legal aid, counselling services, and shelters. They are re-victimised and exposed to further risk of violence through the denial of redress in the context of informal trials or negotiations between families and community leaders.

The payment of financial compensation by the perpetrator or his family for acts of violence against women, in place of legal remedies, was a recurrent concern vis-à-vis the formal and informal justice systems. Violence against women in Pakistan is systematic. It is underpinned by the persistence of patriarchal social norms and inter-and intra-gender hierarchies. Women are discriminated against and subordinated not only based on sex but on other grounds too, such as caste, class, ability, sexual orientation, tradition, and other realities.

Gender violence is most often unseen and is shrouded in a culture of silence. The causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and its acceptability, aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption, etc. In India and Pakistan, the culprits are often known to the woman; the social and economic “costs” of reporting such crimes are high. General economic dependence on family and fear of social ostracisation act as significant disincentives for women to report any kind of sexual violence, abuse, or abhorrent behaviour. Therefore, the actual incidence of violence against women in Pakistan is probably much higher than the data suggests, and women may continue to face hostility and have to remain in environments where they are subject to violence.

This silence needs to be broken. In doing so, men, perhaps more than women have a duty and role to play in averting and combating violence against women. Unlike many other victims of interpersonal crimes such as theft, robbery, or muggings, survivors of sexual assault are vulnerable to being blamed for their attack, and thus victim-blaming (overtly or in more subtle forms) in sexual assault cases has been the focus of several writings. Myths and stereotypes “underlie and fuel sexual violence against women and inform negative societal reactions”. And cultural attitudes which law has long endorsed and which continue to infuse the criminal justice process, albeit in more covert, less accessible forms.”

At the highest (or, rather most aggravated) level, sexual violence is rape with or without attendant violence. However, there are a substantial number of incidents that fall within the rubric of sexual violence, that amount to offenses under various penal enactments. These outlaw behaviours such as stalking, eve-teasing, shades of verbal and physical assault, and harassment. Social attitudes typically characterise this latter category of crimes as “minor” offences. Such “minor” crimes are, regrettably not only trivialised or normalised, rather they are even romanticised and therefore, invigorated in popular lore such as cinema. These attitudes which indulgently view the crime through prisms such as “boys will be boys” and condone them, nevertheless have a lasting and pernicious effect on the survivors.

The United Nations Organisation has defined “violence against women” as “any act of gender-based violence that results in or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.” The effect of offensive behaviour against women, which laws criminalise physical, verbal, or other acts that threaten or give them acute discomfort, undermining their dignity, self-worth, and respect, is to silence or subdue the survivor. Our courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the “head” of the household and should take all the decisions relating to the family; (iv) women should be submissive and obedient according to our culture; (v) “good” women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their children, their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”.

Judges can play a significant role in ridding the justice system of harmful stereotypes. They have an important responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping. This requires judges to identify gender stereotyping, and identify how the application, enforcement, or perpetuation of these stereotypes discriminates against women or denies them equal access to justice. Stereotyping might compromise the impartiality of a judge’s decision and affect his views about witness credibility or the culpability of the accused person.

The more general indictment of the current criminal justice process is that the law and legal doctrines concerning sexual assault have acted as the principle systemic mechanisms for invalidating the experiences of women and children. Given this state of affairs, the traditional view of the legal system as neutral, objective, and gender blind is not defensible. Since the system is ineffective in protecting the rights of women and children, it is necessary to re-examine the existing doctrines which reflect the cultural and social limitations that have preserved dominant male interests at the expense of women and children. Our judiciary and society both can play vital roles to be impartial in words and action, at all times. If they falter, especially in gender related crimes, they imperil fairness and inflict great cruelty in the casual blindness to the despair of the survivors.

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