Rape is a serious affront to humanity, casting doubt on the progress of civilization. Governments and societies worldwide are actively working to denounce, prevent, and penalize this crime. Yet, there is always room for further refinement and improvement, especially as our understanding of gender continues to evolve. 

Pakistan's rape laws have evolved in a complex and sometimes inconsistent manner. In response to an alarming increase in rape cases, the government enacted the Anti-Rape (Investigation and Trial) Act, 2021 as the latest statutory framework aimed at improving the handling of sexual violence cases. This law is designed to streamline investigations, protect victims, and impose harsher penalties on offenders.

However, despite the advancements this act represents, critical gender- and consent-related issues persist within Pakistan's rape laws. This opinion piece explores these ongoing challenges.

The traditional Section 375 of the Pakistan Penal Code (PPC) narrowly defines rape, limiting it to acts of non-consensual sexual intercourse against 'women'. Consequently, this definition excludes male and transgender individuals as potential victims, which severely limits their access to justice under Pakistan’s main rape statute.

In the Anti-Rape (Investigation & Trial) Act, 2021, Section 2(k) similarly defines 'woman' and 'child' as possible victims of rape, reinforcing a gender-specific approach that does not account for the full spectrum of sexual violence. This restrictive definition compels male and transgender victims to pursue their cases under Section 377 of the PPC, which addresses 'unnatural offences' and is generally associated with consensual acts rather than non-consensual sexual violence. This categorization not only fails to capture the seriousness of sexual assault on non-female victims but also results in reduced penalties compared to those under Section 375, effectively diminishing the severity of these offences.

Hence, the offence of rape not only suffers from gender-based issues but the essential boundary between consensual and non-consensual sexual activity is also blurred. In Pakistan’s legal context, the concept of consent is problematic in multiple ways.

First, Section 375 of the Pakistan Penal Code (PPC) explicitly deems the consent of individuals under the age of 16 as invalid. However, the situation becomes ambiguous when the consent of a girl under 16 is validated through a valid nikkahnama (marriage contract). Despite the law treating such consent as vitiated, there are numerous cases where marital consent is defended, often based on religious or cultural arguments. This creates significant legal confusion, with the lines between lawful marital relations and sexual exploitation becoming blurred.

The Council of Islamic Ideology (CII) has weighed in on such cases, often supporting the view that a valid nikkahnama can override the statutory age for consent, thereby justifying sexual intercourse with a girl under 16 if the marriage contract is valid. This stance complicates the issue further. Consequently, jurisprudence on this issue remains uncertain and contentious.

Furthermore, in many developed legal systems, consent obtained through deception—whether related to identity, marital status, or other aspects—is treated as vitiated, meaning the consent is considered invalid. This is based on the principle that true consent cannot be given if the victim is misled or deceived about crucial facts, such as the identity of the person with whom they are engaging in sexual activity.

However, in Pakistan, the Pakistan Penal Code (PPC) only recognizes consent vitiation due to deception in one specific circumstance: when a man deceives a woman into believing that she is married to him, and he knows that he is not her husband. This provision, outlined in Section 375 of the PPC, focuses solely on the deception of a woman regarding the marital status of the man, leaving other forms of deception, such as identity misrepresentation, unaddressed.

If a man deceives a woman by pretending to be someone else—someone other than her husband—and she gives consent based on this false belief, the offence may only be treated as consensual Zina (extramarital sex). This charge carries high evidential requirements, making it particularly difficult for the woman to prove the case in court. Additionally, the social and legal stigma surrounding Zina cases often deters women from coming forward, further complicating the issue.

In contrast, under international legal standards, such an act of deception—especially if it involves sexual activity—should arguably qualify as rape, as consent has been obtained through fraudulent means. The law, however, treats it less severely, as the vitiation of consent due to identity deception is not explicitly recognized as a form of rape under the PPC. This gap in the law highlights the need for broader reforms to better align Pakistan's legal framework with internationally accepted definitions of consent and sexual violence.​

In Pakistan, there is a pressing need to reform rape laws to include all genders as victims, recognizing that men and transgender individuals also suffer from sexual violence. Additionally, the conditions that vitiate consent should be expanded to cover modern forms of deception, such as identity fraud. This would ensure that the law better aligns with contemporary understandings of consent and offers equal protection for all victims. Such reforms are essential for a more inclusive and just legal system.