Aggravating circumtances

 

last updated December 2014

In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women’s Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.

Aggravating circumstances

Legislation should include a description of aggravating circumstances. These circumstances should result in increased penalties upon conviction. (See: UN Handbook, 3.11.1)

Examples of aggravating circumstances include:

·         the age of the survivor;

·         relationship between perpetrator and survivor;

·         use or threat of use of violence;

·         if the survivor suffered mental or physical injury as a result of the assault;

·         multiple perpetrators or accomplices;

·         use or threat of use of weapons;

·         if the survivor is physically or mentally impaired; and

·         multiple acts of sexual assault.

(See: UN Handbook 3.4.3.1; Gender-Based Violence Laws in Sub-Saharan Africa, p. 26.)

Example: the Crimes Act (1900) of New South Wales, Australia, includes the following description of "aggravated sexual assault."

61J Aggravated sexual assault
(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.

(2) In this section, "circumstances of aggravation" means circumstances in which:

(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
(c) the alleged offender is in the company of another person or persons, or
(d) the alleged victim is under the age of 16 years, or
(e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(f) the alleged victim has a serious physical disability, or
(g) the alleged victim has a cognitive impairment, or
(h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence. Article 61J

Example: Criminal Code Act (1974) of Papua New Guinea states that circumstances of aggravation may include circumstances not described in the legislation. 349A.

Sexual assault of minors

Legislation should:

·         Define a “child” in all Penal Codes and all other legislation as a minor under the age of 18.

·         Prohibit sexual exploitation of minors. For example, South Africa prohibits the engagement in “sexual grooming” or doing anything to prepare or induce a child to engage in a sexual act. See: Criminal Law (Sexual Offences and Related Matters Amendment Act (2007) of South Africa §§ 18.

·         Require school employees, medical professionals, social service professionals, and other relevant actors to report sexual violence and other forms of child abuse to the police, to inform survivors of their rights, and to refer them to legal and social services

·         Mandate hotlines dedicated to reports of child sexual abuse and allow anonymous mechanisms for reporting cases of sexual violence and harassment

·         Mandate the development of gender and age-sensitive protocols and guidelines on working with minor victims of sexual violence and mechanisms to monitor and enforce the protocols.

For a report on the importance of protocols in school settings, see Women and Law in Southern Africa-Zambia, Avon Global Center for Women and Justice at Cornell Law School, and Cornell Law School International Human Rights Clinic, “They are Destroying Our Futures:” Sexual Violence Against Girls in Zambia’s Schools (2012).

·         Provide measures to protect victims from retaliation such as protective orders.

·         Mandate research on prevalence and incidence of sexual violence in schools.

·         Provide for mandatory dismissal of teachers, school authorities, and other relevant professionals who have sexually abused students.

·         Mandate regular and ongoing training for forensic examiners and medical practitioners on specialized techniques for sensitive examinations and evidence-gathering in cases with minor victims.

·         Mandate regular and ongoing training for prosecutor, judiciary, and court staff on best practices for working with children and teenage girl survivors.

·         Mandate regular and ongoing training on laws against sexual assault, harmful effects upon victims, and best practices for working with children and teenage girl survivors for prosecutors, police, judiciary, court staff, school teachers and other relevant professionals

·         Mandate funding for specialized equipment to aid prosecutions, including two-way mirrors, posters, drawings, and anatomically-correct dolls.

·         Mandate that a minor may not be coerced or intimidated into having a forensic medical examination by family or other individuals.

Resources:

Busi Goes to Court (The Directorates: Publications, Community Services and Children’s Issues, Department of Justice,South Africa). A colouring book which informs child victims about special measures to make testifying in court less stressful, such as testimony via closed-circuit TV. Available in English.

Kids Go to Court (District Attorney’s Office, Alaska, USA). A colouring book for child victims. English.

Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (United Nations Economic and Social Council, Resolution 2005/20, 2005). English.

”A Full and Candid Account:” Using Special Accommodations and Testimonial Aids to Facilitate the Testimony of Children (Cunningham and Hurley, 2007, Canada). Available in English and French. Handbooks for prosecutors, judges, and others to help child witnesses provide accurate and complete evidence in court. Topics include: Overview of Issues, English and French; Testimony Outside the Courtroom, English and French; Witness Screens, English and French; Video-Recorded Evidence, English and French; Designated Support Person, English and French; Hearsay Evidence and Children, English and French; and Children and Teenagers Testifying in Domestic Violence Cases, English and French.

Testifying in Court: Choices for Youth in British Columbia (Justice Education Society, British Columbia, Canada). English. Includes a video on what to expect in the court process and other resources and links.

In Rwanda, Women’s Equity in Access to Care and Treatment (WEACTx) has developed a handbook for children and their advocates with information about their rights and about services which are available for victims of gender-based violence and other human rights violations. Available in English and Kinyarwanda.

UNICEF/Asociación por los Derechos Civiles, Guia de buenos practices para el abordaje judicial de niños, niñas, adolescents victimas o testigos de violencia, abuso sexual y otros delitos (2010). This guide is for judicial personnel and other professionals working with child and adolescent victims and witnesses of violence in justice processes. It includes guiding principles and international standards for working with child and adolescent victims and witnesses; guidance for interviews with children and adolescents, including the rationale, objectives and components of interviews, training and monitoring and infrastructure needed; and specific steps for each phase of the investigation process. Available in Spanish.

Sexual assault of vulnerable populations

·         Legislation should provide that the sexual assault of certain individuals in vulnerable populations, such as women and children in situations of armed conflict, displaced women and girls, women and children in situations of natural disaster, women and children refugees, women in custody, prostituted women, disabled or incapacitated women, women who are being transported due to infirmity or disability, and minors, should constitute an aggravating factor in the sentencing phase of the prosecution. Legislation should provide that law enforcement must investigate and prosecute the case as with any other sexual assault.

Examples:

The Criminal Code (1997) of the Republic of Kazakhstan states that rape “with the use of conditions of social disaster, or in the course of mass unrest,” shall receive a penalty which is increased by 3-5 years. Article 120(3).

The legislation of the state of Texas, United States, provides that the punishment of certain offenses, including sexual assaults, is increased to the punishment prescribed for the next higher category of offense if it is shown on the trial of the offense that the offense was committed in an area that was, at the time of the offense, officially declared a state of disaster or was subject to an emergency evacuation order. See: Texas Penal Code Sec. 12.50.

·         Legislation should require a national crime reporting system, a nation-wide tracking system, and weather-proof storage of crime documentation so that in the event of a natural disaster, victims of sexual assault can effectively report the crime, offenders can be tracked though they are displaced, and so that pending cases files are not destroyed if possible.

·         Legislation should require the formation of a national emergency communication system and disaster response database in order to respond to fast-moving situations and provide protection and support to victims of violence, including a website to disseminate critical information, provide response protocols, and training in advance of a disaster.

·         Legislation should require public safety protocols to address safety for women and children in public shelters or camps.See: the Shelter Module.

·         If a national crime reporting system does not exist, legislation should allow for police and community response to “courtesy reports” or reports of violent attacks that occurred in other jurisdictions.

·         Legislation should provide for the transfer of administrative authority to a criminal court in an area unaffected by the natural disaster. In the alternative, legislation should create a national “emergency court” to plan for and coordinate judicial administration in times of natural disasters. The emergency court could safeguard records and evidence and supervise efforts to locate witnesses. Legislation should require that an institution created in advance of a natural disaster receive national publicity to create awareness on the part of victims. See: Garrett and Tetlow, Criminal Justice Collapse: The Constitution After Hurricane Katrina (2006).

·         Legislation should require the participation of NGOs and women and girls living in refugee camps or camps for victims of natural disasters, including those from especially vulnerable groups such as the disabled, in setting policies for camps for refugees or victims of natural disasters. NGOs and women and girl residents can guide policy makers to incorporate victim needs in planning and policy. See: Human Rights Watch, “Nobody Remembers Us”: Failure to Protect Women’s and Girls’ Right to Health and Security in Post Earthquake Haiti (2011).

·         Legislation should require regular monitoring of conditions in prisons and in camps for refugees or victims of natural disasters in order to determine safety conditions for women and girls and opportunities for women and girls to report incidents of sexual violence, and to evaluate all aspects of a medical-legal response to incidents of sexual violence. Legislation should establish effective accountability and oversight mechanisms, including complaints mechanisms, to prevent and respond to abuses in detention facilities and camps.

·         Legislation should require camps for refugees or victims of natural disasters to provide a comprehensive response to victims of sexual assault, including health care and psychological services.

Resources:

For a comprehensive report on systematic sexual violence and torture against women and children prisoners in Iran as a means of silencing dissidents, enabling severe punishment or death, or forcing them into marriage, see: Justice for Iran, Crimes & Impunity: A pioneering report on sexual torture in Iranian prisons (2012). Available in English.

For a discussion of rape as a weapon of war and its consequences, see: “Now, The World is Without Me”: An Investigation of Sexual Violence in Eastern Democratic Republic of Congo (2010).

See also: The Advocates for Human Rights, StopVAW Sections: Sexual Assault and Vulnerable Populations; Custodial Sexual Assault; Women with Disabilities; Sexual Assault During Armed Conflict; and the United Nations, Model Strategies p. 22.

Klein, Sexual violence in disasters: A planning guide for prevention and response (2008) contains guidelines for developing comprehensive plans, making preparations, and coordinating far-reaching policy change. The guide is arranged according to phases of a disaster. The ‘Getting Started’ work sheets in the back have been designed to facilitate the process of disaster planning. Available in English and Spanish.

Inter-Agency Standing Committee, Guidelines for Gender-based Violence Interventions in Humanitarian Settings (2005). These guidelines provide specific interventions for preventing and responding to gender-based violence at different stages of humanitarian emergencies. They include action sheets for response organized by sectors and cross-cutting functions. For example, the action sheet on providing sexual-violence-related services provides a response protocol and a checklist of supplies. Available in English.

Gender-based Violence Area of Responsibility Working Group, Handbook for Coordinating Gender-Based Violence Interventions in Humanitarian Settings (2010). This handbook provides practical guidelines on leadership roles, key responsibilities, and specific actions to be taken when establishing and maintaining gender-based violence coordination in an emergency setting, including both conflict settings and natural disasters. The handbook incorporates knowledge of vulnerability factors to assist relevant parties in risk reduction and preparedness efforts. It identifies good practices, critical knowledge, and lessons learned, and also contains information on working with the media. Available in English.

Delaney, ECPAT International, Protecting Children from Sexual Exploitation & Sexual Violence in Disaster & Emergency Situations: A guide for local & community based organisations (2006). This handbook provides practical information for people in the field at all stages of emergency situations (mitigation, response, and recovery) on minimizing the risk of sexual violence and sexual exploitation and creating safe spaces for children. It includes checklists for action in the event of sexual violence. Available in English.

Illinois Imagines, Disability Responsiveness Assessment Tool (2009). This assessment tool is used to assess the accessibility of rape crisis centers to survivors with disabilities. It addresses issues ranging from physical environments, policy environments, and communication environments. Once a review is completed, a barrier-removal plan is developed to address accessibility concerns. Available in English.

Illinois Imagines, Trauma Responsiveness Tool (2009). This tool is designed to help a disability services agency evaluate its responses, both formal and informal, to clients/residents/consumers who have experienced sexual violence. Available in English.

Safety First Initiative Accessibility and Responsiveness for Survivors With Disabilities Review Tool (2009). provides a “framework for domestic violence, sexual violence, and disability service organizations to think about the when, where, what, and how of providing inclusive, accessible, and responsive services.” This tool also reinforces collaborative partnerships which are essential to improving services for survivors with disabilities. Available in English.

VAWnet, Special Collection: Violence in the Lives of the Deaf or Hard of Hearing includes an overview of best practices in using interpreters and working with Deaf victims/survivors of sexual assault or domestic violence and training tools. Available in English.

West Virginia Sexual Assault Free Environment, Training and Collaboration Toolkit—Serving Sexual Violence Victims with Disabilities (2010.) The toolkit includes sections on collaboration, sexual violence, and disabilities. Tools relate to programmatic and policy accessibility, facility accessibility, intake practices review, and developing a transition plan. Each section includes a toolkit user’s guide. Available in English.

United Nations High Commission for Refugees (UNHCR), Sexual and Gender-Based Violence against Refugees, Returnees, and Internally Displaced Persons,: Guidelines for Prevention and Response (2003) is a handbook with multi-sectoral strategies for preventing and addressing sexual violence against those uprooted by conflict. It provides extensive guidance for each sector on topics such as designing effective services and facilities and monitoring and documenting incidents of sexual and gender-based violence. It also includes specific procedures for responding to child survivors. The guide is specifically for use in camp settings and provides many useful forms for practitioners and administrators. Available in English, Chinese, Greek, Hungarian, Russian, Swahili, and 11 other languages.

UNHCR, Action Against Sexual and Gender Based Violence: An Updated Strategy (2011). This updated guide includes strategies designed to protect children, persons with disabilities, and LGBTI individuals. It can be used in emergency or stable situations and is not limited to camp use. It also addresses survival sex, engaging men and boys, and the provision of a safe environment. Available in Arabic, English, French, Portuguese, and Spanish.

AEquitas, The Prosecutor’s Reference on Violence Against Women, a US-based resource for prosecutors and their allied professionals, published Kristiansson, Prosecuting Cases of Sexual Assault in Confinement (2012) in their Strategies newsletter. Available in English.

The Crimes Act (1900) of New South Wales, Australia, includes a detailed definition of a person who is cognitively impaired in its sexual assault statutes:

For the purposes of this Division, a person has a "cognitive impairment" if the person has:

(a) an intellectual disability, or

(b) a developmental disorder (including an autistic spectrum disorder), or

(c) a neurological disorder, or

(d) dementia, or

(e) a severe mental illness, or

(f) a brain injury, that results in the person requiring supervision or social habilitation in connection with daily life activities. Section 61H (1A)