While analyzing gender-based violence (GBV) in Pakistan, human rights discourse frequently focuses on statutory gaps or executive apathy. However, a recent decision by the Supreme Court of Pakistan, Hassan Khan v The State (2025 SCP 461), highlights a more insidious barrier: a judicial approach that relies on logically strained assumptions, ignores critical context, and turns a complaint of sexual violence into inferred mutual consent. Such an approach risks creating dangerous precedents for women while breaching the state’s positive obligations to protect women, exercise due diligence, and uphold international human rights law.

In Hassan Khan, the survivor reported a sexual assault at gunpoint that resulted in pregnancy. The survivor delayed reporting the crime for seven months, leading the majority bench to hold that her silence “speaks volumes against her conduct” [para 5]. Overturning the lower courts’ rape convictions under Section 376 of the Pakistan Penal Code (PPC), the Supreme Court altered the conviction to Section 496-B PPC (Fornication).

The Protection of Women Act 2006 introduced Section 496-B PPC to separate rape from consensual sex outside of marriage (fornication), ensuring that a failed rape charge does not trigger an automatic prosecution for consensual sex. By treating an unproven rape claim as implicit mutual consent, the majority opinion revives the harmful spirit of the 1979 Zina Ordinance, where reporting rape meant risking prosecution if force was not proven. As Justice Salahuddin Panhwar noted in his dissent, failing to meet the high evidentiary threshold for rape should not lead to an automatic assumption of consent, which effectively penalizes the survivor for seeking legal recourse.

Furthermore, the majority’s reliance on a seven-month delay and the absence of physical marks of resistance reflects an outdated standard of proof oblivious to modern neurobiology. Trauma psychology demonstrates that survivors of severe violence frequently experience tonic immobility—a physiological state of paralysis—or delays in reporting caused by fear, social stigma, and threats, factors particularly evident in Pakistani society. Expecting a victim facing an armed perpetrator to raise an immediate outcry in a forest misapprehends how the human brain responds to trauma.

By substituting the conviction under Section 376 PPC with Fornication under Section 496-B PPC, the court inferred mutual consent from delayed reporting and lack of resistance. Although procedural constraints prevented the formal conviction of the complainant, the majority’s reasoning re-characterized her experience of sexual violence into an act of mutual guilt. This reliance on inferences to presume consent—while overlooking the scientific and contextual realities of trauma—reflects a failure of judicial due diligence that undermines fundamental principles of non-discrimination and gender justice.

Procedurally, courts often invoke Section 238 of the Code of Criminal Procedure (CrPC) to convict an accused of a minor offense when the major offense is not fully proven. However, Rape (Section 376 PPC) and Fornication (Section 496-B PPC) are not major and minor variants of a single spectrum. Rape is a crime of non-consent, whereas Fornication strictly requires wilful, mutual consent as an active legal ingredient. These offenses cannot be used interchangeably when the high evidentiary burden of rape is not met, as doing so violates fundamental principles of criminal justice.

Such a practice directly conflicts with Pakistan’s binding commitments under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Under CEDAW General Recommendation No. 35, States bear a duty of care to exercise due diligence to prevent, investigate, and punish gender-based violence. When judicial proceedings rely on gender stereotypes regarding how a victim “should” react to trauma, they violate the prohibition against gender-based discrimination. This is particularly crucial in Pakistan, where such an approach reinforces a high barrier to justice in a system where the formal conviction rate for sexual assault remains abysmally low at 0.5%. It signals that navigating State apparatus carries the risk of legal penalization.

Statutory amendments alone cannot guarantee human rights if the judiciary creates mechanisms that bypass legislative intent. The State’s responsibility to protect all its citizens requires ensuring that judicial interpretation aligns with constitutional guarantees of non-discrimination (Article 25 of the Constitution of Pakistan). This mandates a judiciary that acts with procedural rigor, integrates science-backed arguments, and delivers verdicts contextually aware of the social realities confronting women.