巴基斯坦和爱尔兰对女性性犯罪的法律

Laws Sex Crimes Women In Pakistan And Ireland 

巴基斯坦和爱尔兰对女性性犯罪的法律

 

对妇女的性犯罪被禁止并且吸引各国刑事处罚;然而，在不同国家颁布的法律有相当大的变化，往往是基于长期的法律和文化传统，但有时根据相对近期的政治发展而改动。在这篇文章中，爱尔兰（爱尔兰）和巴基斯坦伊斯兰共和国的有关妇女的性犯罪法[1]中描述并参照比较每个可用的最新评论。该说明和法律比较前面两个国家的小品以及他们最近的政治历史和法律传统。

 

爱尔兰（爱尔兰）

 

爱尔兰是西北欧的一个岛国，在2009年人口约有4203000人（中央情报局2009年统计结果）。爱尔兰长期被视为西欧最贫穷的国家（根据2009年版大英百科全书），但开始于20世纪80年代的可观的经济结构调整，导致该国在由2005年到2009年人类发展指数方面暂时排名从177名上升到第五名（联合国开发计划署统计）。爱尔兰有强大的基督教传统，是一个世俗国家：在2006年的人口普查中爱尔兰公民的87.4％表明自己是罗马天主教（中央情报局2009年统计）。

 

Sexual crimes against women are prohibited and attract criminal penalties in all countries; however, there is considerable variation in the laws promulgated by different nations, often based on longstanding legal and cultural traditions, but sometimes on relatively recent political developments. In this article, laws relating to sex crimes against women in Ireland (Eire) and the Islamic Republic of Pakistan [1] are described and compared with reference to the most recent available commentaries on each. The descriptions and comparisons of laws are preceded by short sketches of the two countries, their recent political histories and legal traditions.

 

Ireland (Eire)

 

Ireland is an island nation in north-western Europe with an estimated population of 4,203,000 in 2009 (Central Intelligence Agency 2009a). Ireland was long regarded as the poorest nation in western Europe (Encyclopaedia Britannica 2009), but considerable economic restructuring beginning in the 1980s resulted in the country being ranked 5th out of 177 on the Human Development Index by 2005 (United Nations Development Programme 2009). Ireland is a secular nation with a strong Christian tradition: 87.4% of Irish citizens described themselves as Roman Catholic in the 2006 census (Central Intelligence Agency 2009a).

 

The next sections contain brief descriptions of Ireland’s recent political history and the history of its legal system as background to a summation of its current laws relating to rape and sexual assault against women.

 

Political history

 

Until recently, Irish history was very heavily dominated by Ireland's legacy of English invasion and oppression, which began in the 12th century and developed into political absorption in the early 19th century (Central Intelligence Agency 2009a). In 1801, the Irish Parliament was abolished and Ireland became an integral part of a new United Kingdom of Great Britain and Ireland under the Act of Union. Irish dissatisfaction with this state of affairs never eased, and instead grew and turned into unrest. In the early 20th century, several years of guerrilla warfare ended in independence from the UK for 26 southern counties (the Irish Free State) in 1922. The remaining six counties (Northern Ireland) chose to remain part of the United Kingdom, setting the scene for hostilities between the Irish Republican Army and the UK, and between Northern Ireland's Catholics and Protestants, which lasted until the Good Friday Agreement in 1998 (Northern Ireland Office 2009). In 1949, Ireland withdrew from the British Commonwealth; it joined the European Community in 1973 (Central Intelligence Agency 2009a).

 

Legal tradition

 

Thank to its history of domination by England and Great Britain, Ireland's legal tradition is that of English Law and common law: statutory law derives from Acts of Parliament, regulatory law is developed by executive authorities based on statutes, and common law relies upon precedents in decisions made by courts.

 

As Ireland is a Member State of the EU, Irish citizens are also subject to European Law as set out in treaties which must be agreed and ratified by the Member States. The Irish Constitution requires that the people of Ireland must agree in a referendum to incorporate a new EU treaty into the law in Ireland (Citizens Information Board 2008, European Laws). Membership of the EU has had some effect on laws relating to sexual crime - for instance, the ruling of the European Court in Norris v. Ireland forced the decriminalisation of homosexuality in 1993 (the Criminal Law (Sexual Offences) Act 1993 - Office of the Attorney General of Ireland 2009).

 

Laws relating to sexual assault against women

 

Irish law prohibits a range of sexual offences: the charge to be brought for an alleged offence depends on the circumstances of the case, the age of the victim and the evidence (Citizens Information Board 2008, The law on sexual offences in Ireland). Current penalties for sex offences in Ireland include imprisonment, fines, being placed on the Sex Offenders Register, Sex Offenders Orders, and post-release supervision.

 

Rape

 

A person may be charged with the crime of rape under the Criminal Law (Rape) Act 1981 or the Criminal Law (Rape) (Amendment) Act 1990 (Office of the Attorney General of Ireland 2009). The circumstances of the case, age of the victim and evidence will decide which legislation will apply (Citizens Information Board 2008, The law on sexual offences in Ireland). Rape within marriage became an offence following the abolition of the marital exemption with the promulgation of the Criminal Law (Rape) (Amendment) Act 1990 (Office of the Attorney General of Ireland 2009). Attempted rape and aiding and abetting a rape are lesser but serious offences. The maximum penalty in Ireland for a rape offence is life imprisonment (ibid).

 

Sexual assault

 

Sexual assault is defined as an indecent assault on a male or a female person. Irish law on sexual assault is contained in section 2 of the Criminal Law (Rape) (Amendment) Act 1990 (Office of the Attorney General of Ireland 2009). The maximum sentence is 10 years imprisonment or 14 years if the victim is aged under 17 years of age. Aggravated sexual assault also involving serious violence or the threat of serious violence and carries a maximum sentence of life imprisonment.

 

Recent developments

 

The definition of rape under Irish law changed in several significant respects between the Criminal Law (Rape) Act 1981 and the Criminal Law (Rape) (Amendment) Act 1990 (Office of the Attorney General of Ireland 2009). In the former, "complainant" is defined to mean a woman in relation to whom a rape offence is alleged to have been committed - there appears to be no recognition of the possibility of a man being a victim of rape. In addition, the act of sexual intercourse in the context of sexual assault was described as relating to natural intercourse "(under which such intercourse is deemed complete on proof of penetration only" (Office of the Attorney General of Ireland 2009, Criminal Law (Rape) Act 1981, section 1), similarly raising the question of whether male homosexual intercourse was deemed capable of association with the offence of rape, and seeming to imply that only penis-to-vagina contact was within the definition. This interpretation seems confirmed by section 2, which states that "a man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it" (ibid). The 1981 Act contains no mention of sexual assaults other than rape, and does not make any mention of the concept of rape within marriage.

 

In the amended Act, rape was defined as a sexual assault that included penetration (however slight) of the anus or mouth by the penis, or penetration (however slight) of the vagina by any object held or manipulated by another person (Office of the Attorney General of Ireland 2009, Criminal Law (Rape) (Amendment) Act 1990, section 1). The 1990 Act included a section on 'sexual assault' (distinct from rape), which specified that "The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault" (ibid, section 2). 'Aggravated sexual assault' was defined as "a sexual assault that involves serious violence or the threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted" ((ibid, section 3). Finally, as noted earlier, the amended Act recognised the possibility of rape within marriage by stating that "any rule of law by virtue of which a husband cannot be guilty of the rape of his wife is hereby abolished" (section 5).

 

It is clear that the 1990 definitions of rape and sexual assault are far more broad-based and applicable to a greater variety of physical assaults, assailants and victims, and thus extended greater protection of the law to more Irish citizens. Interestingly, despite these widening of definitions, convictions for rape as a percentage of cases brought actually fell significantly in Ireland between 1970 and 2000 (Regan and Kelly, 2003). Other evidence suggests that public recognition of the fact that rape within marriage is a crime is lagging bethind the legislation (Condon 2005).#p#分页标题#e#

 

Pakistan

 

The Islamic Republic of Pakistan lies in south-west Asia and has a population of 176,242,949 (estimated at July 2009), making it the world’s sixth-most populous country (Central Intelligence Agency 2009b). Pakistan is relatively impoverished and underdeveloped (World Health Organization 2009a), due largely to decades of internal political disputes, low levels of foreign investment, untenable budgetary deficits and high inflation (Central Intelligence Agency 2009b). In 2005, Pakistan ranked 135 out of 177 countries on the Human Development Index (World Health Organization 2009b); however, between 2004 and 2007 gross domestic product grew at an estimated 6-8% and poverty is decreasing (Central Intelligence Agency 2009b). In the most recent census (1998), over 96% of Pakistanis identified themselves as Muslim (Population Census Organization, Population by Religion no date).

 

The following sections contain brief descriptions of Pakistan’s recent political history and the history of its legal system as background to a summation of its current laws relating to sexual assault against women.

 

Political history

 

Following the Indian Rebellion of 1857, the territories now known as Pakistan came under the direct rule of the British Crown. Demands for an independent Pakistan increased steadily in the period leading up to and following the Second World War, and culminated in Pakistan’s separation from British India and establishment as a Muslim-majority independent state on August 14, 1947 (Blood 1995). Pakistan declared itself an Islamic republic on adoption of a constitution in 1956, but a swift coup d'etat resulted in military rule until 1972. Civilian and military governments alternated until September 2008, when current President Asif Ali Zardari was elected (Central Intelligence Agency 2009b).

 

Legal tradition

 

Ninety years of British rule left Pakistan with a judicial system based directly on the system used in British India (Encyclopedia of the Nations, no date). The Supreme Court has original, appellate, and advisory jurisdictions. The president of Pakistan appoints the justices. Each province has a high court, the judges of which are also named by the president. Below the high courts are district and session courts, and below these are subordinate courts and village courts on the civil side and magistrates on the criminal side. There are no jury trials in Pakistan (ibid).

 

The inherited British tradition of an independent judiciary was eroded significantly in Pakistan in the last few decades of the 20th century. Under President Zia-al-Haq (head of Pakistan’s military government between 1977 and 1988, and a devout Muslim) many of Pakistan's secular policies were replaced by Islamic Shariah law (Blood 1995), and in May 1991 the National Assembly adopted legislation which incorporated Shariah law into Pakistan's legal system (Encyclopedia of the Nations, no date). The Federal Shariat Court has the power to nullify any law it finds repugnant to Islam (ibid).

 

Laws relating to sexual assault against women

 

In 1977, Pakistan enacted laws ostensibly designed to bring the laws of Pakistan into conformity with the injunctions of Islam (Quraishi 1997). These Hudood Ordinances (hudood is the plural of hadd, an Islamic legal category of crimes for which the definition and punishment is set by God), dealing with crimes such as theft, sexual assault, adultery, slander, and alcohol consumption, became effective in February 1979 (ibid).

 

The Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 (Zina Ordinance) criminalised zina (extramarital sexual relations, also a crime under Islamic law) and states (ibid):

 

A man and a woman are said to commit zina if they wilfully have sexual intercourse without being validly married to each other.

 

Zina is liable to hadd [punishment] if:

 

(a) it is committed by a man who is an adult and is not insane, with a woman to whom he is not, and does not suspect himself to be married; or

 

(b) it is committed by a woman who is an adult and is not insane with a man to whom she is not, and does not suspect herself to be married.

 

The Zina Ordinance includes the category zina-bil-jabr (zina by force) which defines and specifies punishment for sexual intercourse (defined by penetration) without the consent or against the will of one of the parties (essentially, rape). Zina-bil-jabr is liable to hadd if it is committed in the following circumstances, specified by the Ordinance (ibid):

 

A person is said to commit zina-bil-jabr if he or she has sexual intercourse with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely:

 

(a) against the will of the victim,

 

(b) without the consent of the victim,

 

(c) with the consent of the victim, when the consent has been obtained by putting the victim in fear of death or of hurt, or

 

(d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married.

 

Note that in effect, zina and zina-bil-jabr are defined as “sexual intercourse without being validly married” (Karamah 2005). The evidence required to prove both zina and zina-bil-jabr is specified as follows (Karamah 2005):

 

Proof of zina or zina-bil-jabr liable to hadd shall be in one of the following forms, namely:

 

(a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or

 

(b) at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirements of tazkiyah al-shuhood [credibility of witnesses], that they are truthful persons and abstain from major sins, give evidence as eye-witnesses of the act of penetration necessary to the offence.

 

Hadd punishments prescribed in the Ordinance for a zina offence are public stoning or whipping. For a zina-bil-jabr conviction, it prescribes imprisonment and/or a fine and/or public whipping (ibid).

 

The implication of this focus on 'valid marriage' as a component of a test for rape is that - and precedents were set as recently as 1992 - there is no legal concept of rape within marriage in Pakistan (Human Rights Watch 1999; Quraishi 1997). The existence of marriage certificate means rape "can be said to be misuse of the wife" (Quraishi 1997).

 

Effects of the Zina Ordinance on women’s rights

 

Many commentators, including Muslim clerics, wrote that Pakistan's hudood laws made it virtually impossible to prosecute rape (Garwood 2006; Karamah 2005; Quraishi 1997). It has been reported that the requirement (in the absence of a confession) for four credible Muslim adult male witnesses to the act of rape has, on many occasions, caused a zina-bil-jabr case to fail and moreover, the Pakistani legal system to conclude subsequently that the intercourse was therefore consensual and charge rape victims with zina (Karamah 2005). Even greater unfairness is possible if the unmarried rape victim becomes pregnant, as Pakistani zina law considers extramarital pregnancy to be proof of zina: an unmarried pregnant woman must overcome the burden of a prima facie case against her simply because the attack has resulted in pregnancy (ibid).

 

The reasoning behind the shift in the burden of proof to the rape victim under Pakistani Shariah law goes as follows. A secret (private) illicit sexual act becomes known (public) when pregnancy occurs, and the illicit sexual relationship leaves the private sphere and acquires a public dimension. The visible pregnancy of an unmarried woman impinges on society by affecting public morality, activating the right of society to protect its moral values using Islamic jurisprudence: thus it becomes necessary for the pregnant woman to justify her pregnancy either by claiming rape or marriage. If the pregnant woman fails to do so, pregnancy becomes a proof of public zina (illicit consensual sex) without the need for four witnesses or a confession (ibid). Despite ostensibly being designed to align Pakistani law with Islamic law, this formulation is not supported by the spirit of the Qur’anic verses which discourage presumptions about a woman’s sexual activity by insisting that no presumptions be made without four witnesses to the actual act (Karamah 2005).

 

Recent developments

 

Pakistan's National Commission on the Status of Women (NCSW) was established in July 2000 with a mandate to "address the issues that affect the lives of women adversely by reviewing and analyzing the laws and policies and consequently formulating recommendations through dialogue and research to enable them to hold a position of equity. The discrimination expressed in social issues is to be eliminated for a life of fulfillment" (Haroon 2009). The NCSW conducted a thorough examination of hudood laws in 2002-2003 and recommended in August 2003 that they should be repealed (United Nations Committee on the Elimination of Discrimination against Women 2005). On the 15th of November 2006, Pakistan's national assembly voted to amend the country's strict Shariah laws on rape and adultery, allowing civil courts to try rape cases rather than the strict Shariah courts instituted by former President Zia (BBC News 2006a). Sex outside marriage was to remain illegal and be tried by either civil or Shariat court, depending on the system chosen by the complainant. Pakistan's Senate passed the amendments later that month (BBC News 2006b), and President Musharraf signed the bill into law on the 1st of December (DAWN 2007), removing the death penalty for extramarital sex and revising the clause specifying that victims must produce four witnesses to prove rape cases. The new system allows rape convictions to be made on the basis of forensic and circumstantial evidence, but consensual sex outside marriage remains a crime punishable by five years in prison or a $165 fine.#p#分页标题#e#

 

General comments on comparing Ireland and Pakistan

 

Ireland and Pakistan are certainly very different countries in many respects. Ireland is a small, flattish, temperate island in the eastern North Atlantic Ocean, with an overwhelmingly white Anglo-Celtic, Christian population smaller than that of Lahore, the second-largest Pakistani city (Population Census Organization, Government of Pakistan, no date). Ireland is one of the world's most highly developed nations, with very low infant mortality and high GDP per capita (United Nations Development Programme 2009). Pakistan is a south Asian country of vast geographical diversity on the Arabian sea, inhabited by about 180 million ethnically diverse people of Indo-Irani descent and overwhelmingly Muslim religion (Population Reference Bureau 2009; Wikipedia 2009). Pakistan is a developing country with relatively high infant mortality and low per-capita income (World Health Organization 2009b; Central Intelligence Agency 2009b). Despite these stark differences, Ireland and Pakistan have common features that make a comparison of aspects of their legal systems less outlandish than it might appear at first glance. Thanks to many years of English and/or British domination, almost all of the citizens of Ireland and many Pakistanis speak English (or varieties thereof); English is Pakistan's official language and is widely used in the government, the judiciary, the legislature and in educational institutions. Sufferance under and eventual ejection of a shared oppressor nation also left Ireland and Pakistan with very similar fundamental legal traditions and judicial systems. In addition, it is possible to hypothesise that highly conservative cultural-religious traditions had - until well into the late 20th century in Ireland, and into the 21st in Pakistan - a powerful influence on the legal conception of sexual assault and rape laws as they apply to women in both countries.

 

Comparisons between the sexual assault laws of Ireland and Pakistan

 

The leftmost column of table 1 contains concepts relating to sexual assault laws, and the next two columns show how these concepts apply or are treated in Ireland and Pakistan.

 

Table 1 provides a crude but nevertheless stark contrast between the sexual assault laws of the two countries. As demonstrated in previous sections, both countries have made substantial recent improvements in their laws relating to sexual assault against women; whether those laws have yet made an impact upon the public consciousness and the well-being of Irish and Pakistani women is less certain.

 

Religion and social progress

 

Ireland is a fascinating case of a country which has performed a rapid about-face in terms of its economic situation and with regard to social progress. Much of Ireland's former social and legal conservatism can be traced to the pervasive influence of the Catholic Church. In 1922, when the Irish Free State was proclaimed, 92.6% of the population were members of the Catholic Church; by the 1960s, Protestant emigration had increased that percentage even further. Through its Irish clergy, the Roman Catholic Church exerted a powerful influence over the Irish state from its inception. The influence of the Catholic clergy meant that Ireland clung to very conservative social policies by the standards of most Western countries, and compared with modern Ireland: divorce, contraception, abortion and pornography were banned, and many books and films were censored (Wikipedia, Roman Catholicism in Ireland 2009). In addition, the Church largely controlled the State's hospitals, schools and was an important provider of many other social services (ibid); it was unsurprising that it should have such strong influence and moreover enjoy the support of the public and effectively mould public opinion. The Catholic Church was able to influence the Health (Family Planning) Act, 1979 (Office of the Attorney General of Ireland 2009), not to maintain the prohibition on contraception, but to ensure it could only be purchased with a prescription from a doctor and supplied by registered pharmacists (Wikipedia, Roman Catholicism in Ireland 2009). It was not until 1996 that the constitutional prohibition of divorce was removed.

 

It is arguable that the influence of the Catholic Church over Ireland's recent social history is not substantially different from that of the Shariah law imposed upon Pakistan by President Zia in the 1970s, although they undoubtedly differ in method. By the end of the 20th century the Catholic Church had been strong in Ireland for nearly two millennia and was deeply integrated into Irish social and cultural life, and served the people well in the poorest country in western Europe. The country's rapid emergence as a modern wealthy nation was paralleled by its desire for modern social institutions and laws. In contrast, General Zia imposed conservative Muslim laws virtually overnight on a country that had previously been undergoing a progressive, secularising phase (under President Zulfikar Ali Bhutto). Pakistan has long been a poor country (despite enormous potential wealth) but its economy is now growing rapidly and in all probability social and legal change will follow. Indeed, the recent actions of ex-President Musharraf in amending the hudood rape laws, in the face of strident protests from Islamic conservatives (Garwood 2006), suggest that change in Pakistan is already underway.

 

Conclusion

 

Pakistan and Ireland are very dissimilar countries in many respects, but due to their histories as parts of the British Empire they share a heritage of English Law and common law. Pakistan's laws relating to sexual assault against women underwent rapid conservative - and in the eyes of many commentators, regressive - change in the mid-1970s, with the imposition of hudood laws under President Zia, but since 2000 more progressive influences were brought to bear as the country's economic fortunes improved under relatively secular governments. Shariah law is still practised, and includes evidentiary requirements that make prosecution of rape extremely difficult, but civil law that relies upon Western-style circumstantial and forensic evidence is also applicable. Ireland's conservative Catholic heritage was undoubtedly a powerful influence on Irish laws relating to sexual assault and other sexual matters. But the Church's influence waned in the latter half of the 20th century, as Ireland was admitted to the EU and subsequently enjoyed a pronounced economic revival. Numerous legal innovations were promulgated, including the abolition of the marital exemption to rape in 1990. It is to be hoped that Pakistan and Ireland will continue to make improvements in laws relating to sexual assault against women, and that these laws translate into greater protection for women in those countries.