Pakistan on December 15 approved an anti-rape ordinance, 2020. It plans to implement a host of measures to serve swift and effective justice to rape victims. These include anti-rape cells across the country, special courts for a speedy trial, national sex offenders’ register, and chemical castration of those convicted of such offenses. This is a welcome step given the high rate of crime against women and the patriarchal mindset in Pakistani society.

Violence against women in all its forms harassment, rape, honour killings, acid attacks, and domestic violence is on an increase with no signs of viable legal aids. Further, it is a fact that such androcentric societies often place prohibitive qualifications on the rights, dignities, and free speech of women. They also pay a marginal premium (if any) to rape prosecutrix’ complaints, their sufferings, and struggles. Hence, the ordinance would be able to provide Pakistani women with a quicker recourse to justice.

An unreasonable mode of punishment

Chemical castration is the main contentious issue in the ordinance that has become a talking point. Pharmacotherapy or chemical castration uses a host of drugs to inhibit sexual urges by altering the hormonal chemistry of the body, a non-literal surgical castration with much more reversibility. However, an undue premium is given to its non-permanence, non-invasive, and reversible nature. Calling it “return to the dark ages,” strong scientific evidence reports a range of immediate side effects like weight gain, depression, insomnia, and diabetes in the offenders. Even scarier are the long-term and irreversible side effects that include reduced potency, sperm count, and high sexual frustration. Breast enlargement, improper liver function, and mood swings have also been reported. This makes the intervention very specialized and should have been far away from being generally prescribed for all offenders.

The ordinance provides for chemical castration of rapists, and which is wholly discretionary upon trial court judges to award. This, in the first place, should have been the decisive arena of trained medical practitioners, who are better judges of biological interventions. They ought to be deciding the necessity and extent of such interventions, based on the bodies, ages, and personalities of the offenders. But the ordinance leaves it on the trial court judges to decide what is objective ‘just’ even on the biological level. The rapist’s consent in all this is of course kept immaterial.

Further, justice of a rehabilitative tinge would involve reasonable punishment, followed by dignified reintegration into society. But the ill-suitability of pharmacotherapy, its humiliating and degrading nature, rife with chronic and acute side-effects undermines dignity at every step. It is also ill-suited as our mono-wired justice systems often fail to realize the diverse spectrum that sexual offenders come in. Far beyond opportunistic acts or sexual addiction, reasons for such behaviour could be much deeper-seated like incest, psychological disorders, pedophilia, anti-social personalities, or a simple urge to exert dominance and use rape as a tool of violence.

Any form of castration in such cases is downright cruel and useless as it does not address the problem but only mitigates its side effects; failing even the goal of making the law deterrent. And even if offenders do fit the bill, lessons from the US show that the procedure is effective only when coupled with timely medical evaluations and therapy post its administration. The ordinance has no inkling of the same.

An eyewash

Activists and social workers from Human Rights Commission of Pakistan (HRCP) have vociferously expressed their concerns with the mere eyewash nature of the anti-rape ordinance. Like other justice systems, Pakistan’s system errs sometimes in convicting the innocents. Using chemical castration as the first step of punishing and deterring future violent behaviour (unlike the US that uses it at later stages) runs the risk of unreasonably affecting such convicted innocents. Activists opined how the not-so-reversible elements of the intervention would be unfairly harsh for this group. This makes the invasive intervention even more unsuitable as a mode of punishment. Then, if this intervention is to be continued, Pakistan should perhaps consider moving the intervention to later stages of the justice system where the guilt of the alleged offender is established beyond all reasonable doubt. 

One of the foundations of the modern human rights project is, whatever be the wrongs of a person, they are entitled to equal protection of fundamental human rights. This is positively expressed in many international human rights instruments like the United Nations’ International Covenant Of Civil and Political Rights (ICCPR). In its preamble and Article 3, ICCPR calls them “equal and inalienable rights of all members of the human family” and obligates member states to ensure the equal standing of men and women. Even the Pakistani legal moralities (in constitutional preamble and Article 25) provide the same. 

In essence, these mean that the dignity (including mental and bodily integrity, respect, and fair treatment) of a person can be taken away, even when they fail to respect the dignity of others. Not only does the ordinance fail to do this, but it also takes away the materiality of the consent of the convict in the administration of pharmacotherapy.

It is interesting to note that in the original draft, Pakistan’s Cabinet Committee on Legislative Cases had proposed that the chemical castration treatment of the offender be based upon his consent. The proposal, however, was rejected in the final draft. Pakistan’s Cabinet Committee’s way indeed would have been the better one to go about chemically castrating offenders. The final draft of the ordinance should have provided for offenders’ consents along with procedural safeguards ensuring that consent so given is informed and with proper capacity.

A bad example of probable consent for undergoing chemical castration could be imported from the US justice system. There, consent is often made the pre-condition for getting parole or commutation of sentence. This runs the risk that the offender might unduly be pressured into giving consent for the sake of his freedom. This, Pakistan should steer clear of if they plan to ever introduce the consent element at all.

The pharmacotherapy element of the ordinance is simply a futile, cruel act. Energies that should have aimed at prevention are been spent at mitigation, unfairly proclaiming that justice gets served in cruel treatment of the offender. This is rather ironic, given how ready Pakistan is to castrate its offenders but allows rape abortions to be conducted in only a few instances and generally stigmatizes the idea of abortion itself, guided by religious dogma. The approach of modern, ‘enlightened’ justice systems should be towards better implementation of laws, prevention of crimes itself, and better treatment of rape survivors rather than simply making punishments more cruel and dehumanizing.

The ordinance is lacking in how it does nothing positive to protect Pakistani women from such crimes in the future or acts as a deterrent.

The ordinance, in response to a heinous gang-rape  in September 2020 and the wide-scale protests following it looks like a hasty, emotional response to appease the populist demand. Pakistani Prime Minister Imran Khan even went as far as to suggest that rapists should be publicly hanged and castrated, which he later conceded would fail Pakistan’s international human rights obligations and might earn them international reprimand. The inclination of the Pakistan PM was to satisfy populist urges with no concern for equality of rights, even of those who have wronged.

Lessons for Subcontinent 

Indian and Pakistani societies are not only geographically proximate but also share it culturally and structurally. The patriarchy and censure of women are just as rife, if not more, in India as in Pakistan. The justice systems are also similar in their lags, arrears, and errors in rape sentencing. Hence, presumably, the ill-suitability of pharmacotherapy shall be the same for India too. Indeed, when pharmacotherapy was proposed for India in 2012, the Justice Verma Committee rejected it, calling it a “failure to treat the social foundations of rape and outrightly unconstitutional and inhuman.” 

Lastly, while it might be well-intentioned to curb and deter rape cases, it is an ill-selected mode. At the risk of reiteration, pharmacotherapy does not work as a wholesale prescription and is to be scientifically and with utmost care be applied to only to a certain category of cases.

Hence, rather than making punishments more punitive and cruel, state energy should be aimed at other fields requiring immediate attention and mitigation like dogmatic gender stereotyping, deep-rooted gender gaps and abysmal sex ratio.

(The writer is a third-year law student from Nalsar University of Law, Hyderabad, Telangana. The views are personal. He can be contacted at oshinmalpani4@gmail.com)