Drafting Laws on Sexual Assault

 

 

 

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.

 

Core elements of legislation on sexual assault

Throughout this knowledge module, reference to certain provisions or sections of a piece of legislation, part of a legal judgment, or aspect of a practice does not imply that the legislation, judgment, or practice is considered in its entirety to be a good example or a promising practice.

Some of the laws cited herein may contain provisions which authorize the death penalty. In light of the United Nations General Assembly resolutions 62/149, 63/168, 65/206, and 67/176 calling for a moratorium on and ultimate abolition of capital punishment, the death penalty should not be included in sentencing provisions for crimes of violence against women and girls.

The following elements should be established as the core elements of any sexual assault law. Each element is discussed in detail starting with Definition of sexual assault, below:

  •  A definition of sexual assault which is not framed as a crime of honor or morality;
  •  A definition of sexual assault that does not require penetration or force;
  • Prohibition of mitigating factors such as intoxication of perpetrator;
  • Provision for enhanced penalties for aggravating circumstances such as the threat or use of force, or the age or disability of survivor;
  • Provision for enhanced penalties for aggravating circumstances involving natural disaster situations and civil or political unrest or conflict situations.
  • Criminalization of sexual assault within an intimate relationship;
  • Burden on accused to prove consent;
  • Provision for a broad range of circumstances in which consent is immaterial, such as sexual assault by an individual in a position of authority such as in a correctional facility or in a school setting or by individuals in certain professional relationships to the survivor such as an ongoing psychotherapist-patient relationship;
  • Provision for a broad range of coercive circumstances around consent such as intimidation or fraud;
  • Provision for mandatory investigation of sexual assault;
  • Prohibition of requirement of corroboration of survivor’s evidence;
  • Prohibition of introduction of survivor’s sexual history as evidence at all phases of civil or criminal trial where it is unrelated to the case;
  • Prohibition on use of mediation at all stage of the process;
  • Provision for financial compensation during the criminal trial and following the criminal trial;
  • Prohibition on accepting financial settlement or marriage as settlement of claim of sexual assault;
  • Prohibition of perpetrators from possessing firearms;
  • Fully developed emergency and long-term order for protection remedies and no contact order remedies;
  • Criminalization of violation of orders for protection and no contact orders;
  • Provision for support services such as counseling and medical treatment to survivors at all stages of process;
  • Mandated training for law enforcement, judicial, medical, and social service professionals.
  • Mandated data collection on prevalence of sexual assault, disaggregated by gender, race, age, location of assault, and type of assault;
  • Mandatory prevention and public awareness programs on sexual assault; and
  • Mandatory data collection and monitoring of cases of sexual assault.

UNODC, Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice Services. Available in Arabic, Chinese, English, French, Russian, Spanish; hereinafter the Model Strategies.

Sources of international law

These international statements of law and principle provide a foundation for the right to be free from sexual assault.

The Universal Declaration of Human Rights, 1948, states that “Everyone has the right to life, liberty and security of person” in Article 3. In Article 7, it states that “All are equal before the law and are entitled without any discrimination to equal protection of the law.” In Article 8, it declares that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." 

The International Covenant on Civil and Political Rights (1966) prohibits discrimination on the basis of sex, and mandates states parties to  “…ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.” Article 2 It states that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 7. In Article 9, it states that that “[e]veryone has the right to liberty and security of person. 

The International Covenant on Economic, Social and Cultural Rights (1976) declares that states parties must “…ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth [therein].” Article 3.

The Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979, defines discrimination against women as:

"...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." Article 1.

State parties to CEDAW must eliminate this discrimination by adopting “…appropriate legislative and other measures, including sanctions where appropriate…” and must agree, “To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination…” Article 2.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) includes in its broad definition of torture “…when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” (Article 1) In Article 2, the Convention states that “[e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” In Article 4, crimes of torture are linked to the criminal law of a state:

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

In General Recommendation 19 (1992), the Committee on the Elimination of Discrimination Against Women interpreted the term “discrimination” used in CEDAW to include gender-based violence by stating that it is “…violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.” Paragraph 6. Paragraph 7 states: “Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of Paragraph 1 of the Convention,” and goes on to enumerate these rights and freedoms, including: (b) The right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment;… and (d) The right to liberty and security of person;

In Paragraph 9 the Committee declared that “Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.”

It also rejects customary or religious justifications for gender-based violence:

“Traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms.” Paragraph 11.

The Committee recognized the dangers presented to women where there is war or conflict in Paragraph 16: “Wars, armed conflicts and the occupation of territories often lead to increased prostitution, trafficking in women and sexual assault of women, which require specific protective and punitive measures.”

Finally, the Committee recommended that “States parties should ensure that laws against family violence and abuse, rape, sexual assault and other gender-bases violence give adequate protection to all women and respect their integrity and dignity…” 24(b).

·         The United Nations Declaration on the Elimination of Violence against Women, (DEVAW) 1993, acknowledged that the root cause of violence against women is the subordinate status of women in society by stating that:

“…violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men…” Preamble.

DEVAW also links violence to especially vulnerable women:

“…some groups of women, such as women belonging to minority groups, indigenous women, refugee women, migrant women, women living in rural or remote communities, destitute women, women in institutions or in detention, female children, women with disabilities, elderly women and women in situations of armed conflict, are especially vulnerable to violence…," Preamble.

It exhorts states to action in Article 4: “States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination. States should pursue by all appropriate means and without delay a policy of eliminating violence against women…” including, inter alia:

(c) Exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons;

(d) Develop penal, civil, labour and administrative sanctions in domestic legislation to punish and redress the wrongs caused to women who are subjected to violence; women who are subjected to violence should be provided with access to the mechanisms of justice and, as provided for by national legislation, to just and effective remedies for the harm that they have suffered; States should also inform women of their rights in seeking redress through such mechanisms;…

(f) Develop, in a comprehensive way, preventive approaches and all those measures of a legal, political, administrative and cultural nature that promote the protection of women against any form of violence, and ensure that the re-victimization of women does not occur because of laws insensitive to gender considerations, enforcement practices or other interventions;…

(i) Take measures to ensure that law enforcement officers and public officials responsible for implementing policies to prevent, investigate and punish violence against women receive training to sensitize them to the needs of women…”

The United Nations Security Council has addressed sexual violence against women in conflict situations by enacting specific resolutions:

·         Security Council Resolution 1325 (2000) called on member states to incorporate a “gender perspective” and increase the equal participation of women in the “prevention and resolution of conflicts” and in the “maintenance and promotion of peace and security.” It calls upon parties involved in armed conflict to abide by international laws that protect the rights of civilian women and girls and to incorporate policies and procedures that protect women from gender-based crimes such as rape and sexual assault.

·         Security Council Resolution 1820 (2008) called for an end to the use of brutal acts of sexual violence against women and girls as a tactic of war and an end to impunity of the perpetrators. It requested the Secretary-General and the United Nations to provide protection to women and girls in UN-led security endeavors, including refugee camps, and to invite the participation of women in all aspects of the peace process.

·         Security Council Resolution 1888 (2009) detailed measures to further protect women and children from sexual violence in conflict situations, such as asking the Secretary-General to appoint a special representative to coordinate the mission, to send a team of experts to situations of particular concern, and to mandate peacekeepers to protect women and children.

·         Security Council Resolution 1889 (2009) reaffirmed Resolution 1325, condemned continuing sexual violence against women in conflict situations, and urged UN member states and civil society to consider the need for protection and empowerment of women and girls, including those associated with armed groups, in post-conflict programming.

·         Security Council Resolution 1960 (2010) encouraged the UN Secretary-General to include detailed information on parties to armed conflict that are suspected of being responsible for sexual violence and states the intention of the Security Council to use the information for further engagement with UN procedures, including sanctions. It requested that the Secretary-General use information gathered from monitoring of conflict-related sexual violence to engage in a coordinated approach within each country. Further, it encouraged Member States to provide military and police personnel with adequate training on sexual and gender-based violence and to deploy more women personnel to UN peacekeeping missions and reinforced the zero-tolerance policy on sexual exploitation for the peacekeeping forces.

The UN Secretary-General appointed the first Special Representative on Sexual Violence in Conflict in 2010. The second Special Representative on Sexual Violence, Zainab Hawa Bangura, of Sierra Leone, was named in 2012. The Special Representative on Sexual Violence in Conflict serves as the United Nation’s spokesperson on conflict-related sexual violence. Her mandate is: (1) to end impunity for conflict-related sexual violence, (2) to empower women to seek redress, (3) to mobilize political ownership, (4) to increase recognition of rape and (5) to harmonise the UN's response.

PeaceWomen, Women, Peace and Security Handbook: Compilation and Analysis of United Nations Security Council Resolution Language 2000-2010, provides a compilation and gender analysis of United Nations Security Council resolutions adopted between 2000 and 2010. The analysis covers 432 resolutions related to 20 country-specific situations, and reviews the resolutions in the framework of 13 core themes outlined in SC Resolution 1325, including sexual exploitation and abuse, and sexual violence. The handbook highlights good practices for each thematic area and proposes recommended actions for inclusion in future resolutions to advance the women, peace and security agenda. Available in English.

International Statutes and Jurisprudence on Sexual Violence

The Rome Statute of the International Criminal Court (2002) established the International Criminal Court to deal with the most serious crimes of concern to the international community. Its preamble declares that is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes. In Article 7(1)(g), the Rome Statute identifies rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as crimes against humanity when committed as part of a widespread or systematic attack directed against any civilian population. The acts are classified as war crimes under Article 8.

The United Nations Security Council created the International Criminal Tribunal for Rwanda to adjudicate cases of sexual violence during the Rwandan genocide. One case in particular created important jurisprudence on sexual violence in situations of conflict. In Prosecutor v. Akayesu (1998), the International Criminal Tribunal for Rwanda (ICTR) convicted a Rwandan official of mass rape and sexual mutilation on the basis of his actions in his official capacity, not as an individual perpetrator. The Tribunal also broadened the definition of rape beyond that found in the national laws:

The Tribunal considers that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts…Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Para 687

The case also included a comprehensive definition of sexual violence. See: Case Study on Prosecutor v. Akayesu.

(See: Gender-Based Violence Laws in Sub-Saharan Africa (2007).)

Regional Treaties (selected examples)

The American Declaration of the Rights and Duties of Man (1948) declares that “Every human being has the right to life, liberty and the security of his person.” Article I. In Article V, it states that “Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life.” The Declaration also states that “Every person may resort to the courts to ensure respect for his legal rights.” Article XVIII.

The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (1994) (Convention of Belém do Pará) states that women have “the right to be free from violence in both public and private spheres.” Article 3 It declares that a woman has “The right to simple and prompt recourse to a competent court for protection against acts that violate her rights…”Article 4 (g) States parties must exercise due diligence to prosecute, punish and prevent such violence, and “…include in their domestic legislation penal, civil, administrative and any other type of provisions that may be needed to prevent, punish and eradicate violence against women and to adopt appropriate administrative measures where necessary…” Article 7

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003) (The Maputo Protocol) states that:

“States Parties shall adopt and implement appropriate measures to ensure the protection of every woman’s right to respect for her dignity and protection of women from all forms of violence, particularly sexual and verbal violence.” (Article 3)

The Maputo Protocol also mandates states parties to “enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public…” Article 4(a) It offers special recognition of the vulnerability of women in situations of armed conflict in Article 11, including the following:

“States Parties undertake to protect asylum seeking women, refugees, returnees and internally displaced persons, against all forms of violence, rape and other forms of sexual exploitation, and to ensure that such acts are considered war crimes, genocide and/or crimes against humanity and that their perpetrators are brought to justice before a competent criminal jurisdiction.”

·         In the Declaration on the Elimination of Violence Against Women in the ASEAN Region, (2004) states parties agree:

“To enact and, where necessary, reinforce or amend domestic legislation to prevent violence against women, to enhance the protection, healing, recovery and reintegration of victims/survivors, including measures to investigate, prosecute, punish and where appropriate rehabilitate perpetrators, and prevent re-victimisation of women and girls subjected to any form of violence, whether in the home, the workplace, the community or society or in custody…” Section 4

The Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) is the first legally-binding multi-country human rights instrument in Europe on violence against women and domestic violence. It obliges states to reform laws, implement practical measures to aid victims, and, importantly, allocate adequate resources for an effective response to violence against women and domestic violence. In addition states must involve all relevant actors in the implementation of the Istanbul Convention, including national parliaments and institutions and non-governmental and civil society organizations. The Convention entered into force on August 1, 2014. An ongoing list of signatures and ratifications can be found here. Available here in 28 languages.

12 Steps to Comply with the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention).

Contents of legislative preamble

The legislative preamble sets the stage for the entire piece of legislation. The following elements are important to a strong and inclusive legislative preamble:

  • Define discrimination against women and girls as a restriction based upon sex which impairs the rights of women and girls. (See: UN Handbook 3.1.1) 

(b) States parties should ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity…”

To see a video on the UN Handbook’s model provisions on sexual assault and victim services, click here.

CASE STUDY:

New Law passed following “Maze of Injustice” report on the inadequate state response to sexual violence against indigenous women in the United States

In 2007, Amnesty International published a report on the state response to sexual violence against indigenous women in the United States. The report found that legislation in the US does not protect indigenous women from domestic violence and sexual assault. The marginalization of indigenous women has resulted in a system that ignores their human rights.

Indigenous women in the United States experience sexual violence at a much higher rate than other US women: more than one in three indigenous women will be raped during their lifetime, compared to one in five women in the US. The report found that this sexual violence is under-reported and when reported, is often not prosecuted. There is evidence that the majority of perpetrators are non-indigenous and that the assaults are committed with a high degree of violence. Victims do not receive adequate assistance, redress and reparations. The report noted that indigenous women experience this violence as a direct result of the discrimination and violence at the root of the indigenous experience in US history.

Indian tribal law is a separate system that interacts with US federal and state laws in a complex manner. These jurisdictional issues have been a substantial barrier to perpetrator prosecution and to an adequate response to victims of sexual assault. And, the US government has limited the effectiveness of the tribal government system by underfunding its operation, by not allowing non-Indian suspects to be prosecuted in the tribal system, and by limiting any sentence a perpetrator receives under the tribal system to one year. Thus indigenous victims of sexual assault do not achieve adequate redress in the US federal or state justice systems or the tribal law system. The report stated:

“Impunity for perpetrators and indifference toward survivors contribute to a climate where sexual violence is seen as normal and inescapable rather than criminal, and where women do not seek justice because they know they will be met with inaction.” p. 9

Key recommendations for the US government include: instituting plans of action to stop sexual violence against indigenous women; recognizing the jurisdiction of tribal courts on tribal land; supporting the development of the tribal courts; and improving the response of law enforcement to reports of sexual violence against indigenous women. (p.12-13)

Responding to the report and continued advocacy by tribal leaders and organizations, Native American and Alaska Native women, the Tribal Law and Order Act of 2010 was passed by Congress in July 2010. The Act includes measures aimed to improve division of responsibility, coordination and communication among Federal, State, tribal, and local law enforcement agencies. Sspecifically, tribal courts can now impose three year sentences, tribal authorities will have access to the federal criminal database, the federal government is now required to report the number of cases it declines, and records of tribal proceedings will now be documented.

See also: A report by Human Rights Watch which found that indigenous women were not only victims of domestic violence and random violence along Highway 16 in British Columbia, Canada, but also subjected to excessive force, strip searches by male officers, and sexual abuse by members of the Royal Canadian Mounted Police. Recommendations included a national plan of action to address historical discrimination and inequalities, training of police, and elimination of protocols allowing searches in all but extraordinary circumstances. Rhoad and Msucati, Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women in Northern British Columbia, Canada (2013).

 

  • Ensure that a case which has been processed under a religious or customary judicial system may still be brought under the state’s formal justice system. (See: UN Handbook 3.1.5.)

Many states reflect these principles in their preamble or introductory language in criminal codes.

For example, the Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) (2007) of South Africa includes the following in the preamble to its legislation:

“WHEREAS several international legal instruments, including the United Nations Convention on the Elimination of all Forms of Discrimination Against Women, 1979, and the United Nations Convention on the Rights of the Child, 1989, place obligations on the Republic towards the combating and, ultimately, eradicating of abuse and violence against women and children; AND WHEREAS the Bill of Rights in the Constitution of the Republic of South Africa, 1996, enshrines the rights of all people in the Republic of South Africa, including the right to equality, the right to privacy, the right to dignity, the right to freedom and security of the person, which incorporates the right to be free from all forms of violence from either public or private sources, and the rights of children and other vulnerable persons to have their best interests considered to be of paramount importance, BE IT THEREFORE ENACTED…”

And, the Criminal Code (2004) of Turkey, in Article 3, “The Principle of Equal Treatment before the Law” states that:

In the implementation of the Penal Code no one shall receive any privilege and there shall be no discrimination against any individual on the basis of their race, language, religion, sect, nationality, colour, gender, political (or other) ideas and thought, philosophical beliefs, ethnic and social background, birth, economic and other social positions. Article 3.

The Crimes Act (1958) of Victoria, Australia, has incorporated the following guiding principles into its Crimes Act:

37B. Guiding principles

It is the intention of Parliament that in interpreting and applying Subdivisions (8A) to (8G), courts are to have regard to the fact that-

(a) there is a high incidence of sexual violence within society; and

(b) sexual offences are significantly under-reported; and

(c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and

(d) sexual offenders are commonly known to their victims; and

(e) sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.