Rights of Survivors

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.

Rights of Survivors

  • Legislation should provide that survivors have the right not to be discriminated against, at any step of the process, because of race, gender, or sexual orientation. (See: UN Handbook, 3.1.3.)
  • Legislation should provide that survivors may have access, free of cost, to a sexual assault survivor advocate, who will be available to assist at all steps of the legal and forensic process.
  • Legislation should provide that sexual assault survivor advocates may not disclose any opinion or information received from or about the victim without the consent of the victim. See: Law of Minnesota, USA, §595.02 (2009).
  • Legislation should require advocates and all providers of sexual assault services to inform victims about the importance of the collection of blood and urine samples to aid in the prosecution of a drug facilitated sexual assault.
  • Legislation should require that victims of sexual assault may not be prosecuted for underage drinking, drug use, or outstanding warrants, in order to remove barriers to reporting sexual assault.
  • Legislation on criminal procedure and reporting mechanisms should be examined for sensitivity to victims and with the aim of preventing repetitive and cumbersome procedural requirements to reporting sexual assaults that constitute barriers to victims. Illustrative Example: The Inter-American Commission on Human Rights found that in Mesoamerica, victims must often make repeated, lengthy trips to file complaints and to follow up on them. In some parts of the regions a victim must also complete certain preliminary formalities before the criminal complaint can be filed. They found that she often needs an attorney to participate, which is another significant barrier to the many victims who cannot afford to hire an attorney. Additionally, the Commission found that in some countires, the victim may have to give at least five depositions in order to proceed with the case, which the Commission considered “a serious form of re-victimization.” They recommended that the countries of Mesoamerica develop protocols based on the rights of the victim which reduce re-victimization, and that public officials be trained in proper application of the protocols, in order to improve women’s access to justice in cases of sexual violence The Inter-American Commission on Human Rights, in Access to Justice for Women Victims of Sexual Violence in Mesoamerica (2012).
  • Legislation should provide for programmes to support victims throughout the legal process. In many states such programmes are located in the government’s prosecutorial section.

Examples: The Crown Prosecution Services of the United Kingdom offers Witness Care Units to facilitate contact with victims and witnesses and provide a continuous review of their needs throughout the court process. The Crown Prosecution Service also offers detailed, easy-to-understand information on Reporting a Crime, Going to Court, Special Help for Vulnerable Witnesses, Resources for Victims and Witnesses, Giving a Personal Statement, and Information for Young Victims and Witnesses.

  • Legislation should provide survivors with free legal assistance in all court proceedings, with free court support, free access to interpreters and free translation of legal documents, where requested or required.

Example: The Rape Victim Assistance and Protection Act (1998)of Philippines, Guanzon, Rowena V., “Laws on Violence against Women in the Philippines,” Expert paper prepared for the Expert Group Meeting on good practices in legislation on violence against women 2008), p.12.

  • Legislation should provide for a comprehensive range of health services which address the physical and mental consequences of the sexual assault which is available within one day’s travel to all citizens.

Example: in Africa for Women’s Rights: Ratify and Respect! Dossier of Claims (2010), which summarizes the statutory laws, customary laws, traditions, and practices on women’s human rights in over thirty African countries, the authors noted that the unavailability of medical personnel contributed to the low rate of reporting of rape in some countries.

  • Legislation should require that a full range of free-of charge psychosocial care is available to all victims. Care options should include group therapies, one-on-one therapy and counseling, and psychological care techniques for victims of traumatic events. In addition, legislation should include requirement of specialized psychosocial techniques particularly suited to minor victims of sexual assault. (See: Harris and Freccero, Human Rights Center, University of California Berkeley, Sexual Violence: Medical and Psychosocial Support (2011).

Examples: Brazil provides psychological assistance to sexual assault victims for as long as necessary as part of emergency medical care. Sweden’s approach is to provide financial and psychological support via local municipalities not only for victims but also for their next of kin. See: Brown and Loeffler for TrustLaw, Achieving Justice for Victims of Rape and Advancing Women’s Rights (2011) p.30.

  • Legislation should provide that victims who are minors have full access to a comprehensive range of free-of-charge health services which address the physical and mental consequences of the sexual assault without the consent of any other person. Legislation should state that a minor must not be coerced or intimidated into having an examination by family or other individuals.
  • Legislation should provide that access to victim support services need not occur within a particular time frame and that access is not conditional in any respect.
  • Legislation should provide regular funding for non-governmental organizations which offer support services to victims of sexual assault.
  • Legislation should provide that refugee and internally-displaced victims have full access to a comprehensive range of free-of-charge health care services with protocols specially designed for the especially vulnerable status of these victims.
  • Example: The Amendment to the Criminal Procedure Code (2006) of Austria entitles victims of sexual offences or dangerous threats, and their intimate partner or relative who was a witness to the offence, to psychosocial and legal assistance. The Code also authorizes funding to support court accompaniment for victims.

  • Legislation should provide that the costs of medical examination to gather and preserve evidence for criminal sexual conduct shall be paid for by a local government body in which the sexual assault occurred. (See: Sexual Offences Act (2003) of Lesotho, Part VI, 21 (1).)
  • Legislation should provide for cost-free and unconditional tests for sexually transmitted diseases, for emergency contraception, pregnancy tests, abortion services, or post-exposure prophylaxis (PEP) to all victims of sexual assault, including minor victims of sexual assault. (See: Division of Reproductive Health, Government of Kenya, National Guidelines Medical Management of Rape/Sexual Violence (2004), p. 7.)

Post-exposure prophylaxis (PEP) is “short-term antiretroviral treatment to reduce the likelihood of HIV infection after potential exposure, either occupationally or through sexual intercourse.” From: World Health Organization. (See: Stefiszyn, “A Brief Overview of Recent Developments in Sexual Offences Legislation in Southern Africa,” Expert paper prepared for the Expert Group Meeting on good practices in legislation on violence against women, May 2008.)

Example: the law of Minnesota, USA, states that hospitals must offer information and services to all female sexual assault victims on emergency contraception:

(a) It shall be the standard of care for all hospitals that provide emergency care to, at a minimum:

(1) provide each female sexual assault victim with medically and factually accurate and unbiased written and oral information about emergency contraception from the American College of Obstetricians and Gynecologists and distributed to all hospitals by the Department of Health;

(2) orally inform each female sexual assault victim of the option of being provided with emergency contraception at the hospital; and

(3) immediately provide emergency contraception to each sexual assault victim who requests it provided it is not medically contraindicated and is ordered by a legal prescriber…Minn.Stat.§145.4712 (2009).

Examples:

A study in Zambia found that with training police could effectively provide sexual assault survivors with emergency contraception and refer survivors to health facilities. Reports of sexual violence increased by as much as 48 percent during some years of the study. See: Keesbury et al., The Copperbelt Model of Integrated Care for Survivors of Rape and Defilement (2009).

The Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) of South Africa provides that when a survivor reports a sexual assault to the police or a medical practitioner, the survivor must be informed of the importance of obtaining PEP within 72 hours of the assault and of the need to obtain information about sexually transmitted diseases. Ch. 5, 28 (3).

CASE STUDY:

With training, refugees can successfully treat fellow refugees with PTSD in a refugee setting. Post-traumatic stress syndrome (PTSD) is a common effect of sexual assault. A 2008 study demonstrated that treatment by lay counselors in a refugee settlement in Uganda is effective in reducing symptoms of PTSD. The researchers noted the difficulty of treating victims in conflict or refugee settings who continue to live in an unsafe environment and have often experienced more than one traumatic event. Nonetheless, narrative exposure therapy, in which victims relate their life stories and explore in detail the trauma they have experienced in this context, proved effective when counseled by lay counselors who were refugees in the community themselves. The counselors had no background in medical or psychosocial training but received a 6-week training course in general counseling skills. An important part of the therapy, highly valued by participants, was generating a autobiography (written by the counselor) which transformed an originally fragmented report of the violent experiences into a coherent narrative. The participant received a copy of his or her autobiography at the last session. This study shows that low-resource states can address the psychosocial needs of survivors of violence. See: Neuner et. Al., Treatment of Posttraumatic Stress Disorder by Trained Lay Counselors in an African Refugee Settlement: A Randomized Controlled Trial, Journal of Consulting and Clinical Psychology 76(4): 686 - 694. (2008). Available in English.

Amnesty International, Six-point Checklist on Justice for Violence Against Women (2010). The checklist is organized by steps that victims must take in order to report a crime and seek redress through the criminal justice system. It also identifies laws, policies and practices which still need to be reformed and other obstacles to the successful implementation of the legal framework. Available in Arabic, English, French, Mandarin and Spanish.

South Africa provides a guide for victims entitled “Understanding the Criminal Justice System” which explains the structure of the South African court system, a victim’s rights, and what a victim can expect in court hearings. It defines terms which victims may encounter to aid in their understanding. Available in English, Afrikaans, Zulu, and eight other languages.

The Manhattan, New York, United States District Attorney’s Office provides a brochure for victims of sexual assault with important guidelines for witnesses and victims regarding their rights. It explains the services offered by the Victim Assistance Center, Property Release Center, Notification Center, Social Services Center, and Counseling Center and gives their locations and hours. Available in English and in Spanish.

Nainar, Vahida, Manual: Litigation Strategies for Sexual Violence in Africa (2012) This Manual examines the different legal options available to a victim/survivor of sexual violence or a rights group on her behalf. The manual outlines three types of legal systems in Africa: the common law system, the civil law system, and Islamic law. It discusses regional and international human rights mechanisms that may apply, including international humanitarian and criminal law. The manual outlines strategies for victim redress through a lens of practicality and gender-sensitivity with the overarching focus on increasing the access to justice for victims of sexual violence by eliminating gaps in knowledge and encouraging them to utilize the national, regional, and international justice system.

World Health Organization and the United Nations High Commissioner for Refugees, Clinical Management of Rape Survivors: Developing protocols for use with refugees and internally displaced persons (2004). Available in English, Arabic, and French. This guide provides information and practical steps for addressing the needs of survivors in emergency settings. It provides practical lists of resources, materials, and drugs required, a checklist for examination protocols, and information on how to develop situation-specific protocols. It can be used as a training manual for health care providers.

World Health Organization, “Guidelines for Medico-Legal Care for Victims of Sexual Violence” (2003), available in English.

For a video on the links between violence against women and HIV/AIDS, click here.

Women Won’t Wait Campaign, An Essential Services Package for an integrated response to HIV and Violence Against Women, (2010). This guide outlines services that must be provided by health, law enforcement and legal service providers, and in schools, religious spaces and emergency settings, provides detailed guidance on how each setting can address the intersections and links to additional resources. Available in English.

OSI's Public Health Program, What Works for Women and Girls: Evidence for HIV/AIDS Interventions (2010). This website is a resource for practitioners working on health, HIV and AIDS and related isues. The site is based on a review of literature and data from over 90 countries and provides brief descriptions of evidence-based programming strategies as well as gaps in interventions, and covers key issues including reduction of violence and discrimination against women. Available in English.

World Health Organization, Prevention and treatment of HIV and other sexually transmitted infections for sex workers in low- and middle-income countries: Recommendations for a public health approach (2012). Available in English. This guide provides technical recommendations on effective interventions for the prevention and treatment of HIV and other sexually transmitted infections (STIs) among sex workers and their clients.

CASE STUDY: Multi-country Initiative Found Privacy, Training, and Referrals Improved Health Service Response

International Planned Parenthood/Western Hemishere Region partnered with organizations in three countries (PLAFAM in Venezuela, PROFAMILIA in the Dominican Republic, and INPPARES in Peru) in organization-wide initiative in 11 health facilities to improve all levels of the response to victims of violence. Improvements included:

·         Providing private spaces for meeting survivors of violence;

·         A long-term commitment to sensitization and training of clinic staff within a human rights and public health framework; and

·         Providing health facility staff with resources such as referral networks, information, and important tools such as care protocols.

The programme evaluation found that survivors benefited from increased privacy and exposure to services such as legal assistance, counseling, and support groups. The overall quality of women’s health care also improved. Health care providers had more knowledge of good practices on treating victims of violence, evidenced by the providers’ improved ability to detect cases of violence and to provide appropriate and sensitive care. See: Contreas, et.al., Sexual violence in Latin America and the Caribbean: A desk review (2010) p. 62.

Example: The Kenyan Ministry of Health has issued National Guidelines calling for the provision of PEP to victims of rape free of charge. See: Division of Reproductive Health, Government of Kenya, National Guidelines Medical Management of Rape/Sexual Violence (2004)

Example: The United Kingdom and Norway have called for non-restriction of all countries’ humanitarian funds to ensure that abortions are part of medical treatment for women raped in war. See: Global Justice Center, United Kingdom Pledges to Ensure Abortion Access For Women Raped in War (16 January 2012).

  • Legislation should provide for confidentiality of the survivor. She should have the right to request that law enforcement withhold her identity from the public and media. Legislation should give the prosecutor or judge the discretion not to disclose identifying information about a witness or survivor.
  • Legislation should provide for specialized courts or special court procedures which will ensure timely handling of sexual assault cases. (See: UN Handbook, 3.2.5)
  • Legislation should provide specialized training for prosecutors, judiciary, and court personnel who handle sexual assault cases on the nature and effect of sexual violence and sensitivity to victims. See: Brown and Loeffler for TrustLaw, Achieving Justice for Victims of Rape and Advancing Women’s Rights (2011) p.35.
  • Legislation should provide that courts minimize the number of times survivors must testify, so that the survivor is not re-victimized/traumatized. (See: Johnson, Funmi, “The Struggle for Justice: The State’s Response to Violence Against Women,” Expert paper prepared for the Expert Group Meeting on good practices in legislation on violence against women (2008), p.6, the Model Strategies,7(c) p.30)

Example:The Prevention and Elimination of Violence Against Women and Gender Violence Law (2008) of San Marino provides that “[t]he examination of the victim in court [in preliminary proceedings] shall take place so as to avoid having to repeat it. To this end, the Investigating Judge shall adopt any appropriate measure, including having the examination videotaped.” Title II, Art.23.

  • Legislation should provide that if the accused is not represented by counsel, the survivor may not be examined, cross-examined, or re-examined by the accused, but must be examined by another person appointed by the court. Legislation should also provide that the court may order, in its discretion, that a witness may not be examined, cross-examined, or re-examined by the accused, but may be examined by another person appointed by the court. (See: Respect, Protect and Fulfill: Legislating for Women’s Rights in the Context of HIV/AIDS (2009), Volume 1 Module 1, p. 1-38.)
  • Legislation should allow for courtroom closure if constitutionally possible. See: The Rape Victim Assistance and Protection Act (1998) of Philippines, Section 5, UN Handbook p. 3.9.4, Johnson, Funmi, “The Struggle for Justice: The State’s Response to Violence Against Women,” Expert paper prepared for the Expert Group Meeting on good practices in legislation on violence against women (2008), p. 5
  • Legislation should provide that if testimony by alternate means is not feasible, the survivor or witness can attain some protection within the structure of the court appearance. Examples include: Police escorts to and from the hearings, shielding the survivor’s appearance from the offender, separate waiting areas, in-camera proceedings, witness protection boxes, closed circuit television, etc. See: UN Handbook 3.9.4, Model Strategies 7(c) p. 31.
  • Research indicates that survivors who are given protection in court such as screens or video links are able to give evidence they would not otherwise have been able to give, experience less trauma, and are more likely to cooperate with prosecutors. See: Kelly, Promising practices in addressing sexual violence (2005) App. 1.

Examples:

The Amendment to the Criminal Procedure Code (2006) of Austria allows certain witnesses and victims who are very young or vulnerable to be questioned using audio and visual transmissions so they may not be re-victimized. § 165, § 250.

Under Article 68 of the Rome Statute of the International Criminal Court, a number of explicit protections are offered to victims of sexual violence in the courtroom, including requiring judges to prevent harassment and intimidation of victims on the stand and allowing female witnesses and victims to have a support person, legal representative, or family member present during their testimony. In addition, victims do not have to testify in the presence of the aggressor- they may utilize closed hearings or video hearings, or voice-and-image-altering technology to protect their identity. See: Danya Chaikel, Does gender matter at the International Criminal Court? The Hague Justice Portal, (8 Mar 2011). Available in English.

  • Legislation should provide that children may be assisted by a third party such as a counselor or psychologist, or a family member if there is no conflict of interest.

Example: Brazil’s Statute of the Child and Adolescent (1990) states that the legal representative of the child must accompany him during the court interview and testimony; if there is a conflict of interest a special curator will be court-appointed to assist the minor. Article 142.

Minnesota Coalition Against Sexual Assault, Sexual Violence Justice Institute, Tips For Testifying As A Witness (2010). This fact sheet provides tips to help witnesses know what to expect and how to act in a courtroom setting.

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. The guide comprises three sections that cover 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.

Example: The Law on Criminal Procedure (2004) of Montenegro allows for a separate room for victim interrogation in the court process and also that the victim has the right to have the proceedings conducted by a judge of the same sex, if it is possible given the existing composition of court staff. Articles 101(5) and 58(4).

Zero Tolerance, Handle with Care: A guide to responsible media reporting of violence against women (2011). This guide sets forth standards and procedures for reporting on men’s violence against women. Survivors’ perspectives challenge journalists to help change society by reporting men’s violence against women in a more neutral way. Available in English.

Protection and no contact orders

  • Legislation should provide that survivors have the right to apply for no contact orders and orders for protection in the criminal justice system. Legislation should provide that survivors also have the right to apply for civil emergency protection orders and long-term civil orders for protection in a sexual assault case. Legislation should provide that all court orders should be issued free-of-charge.

The Inter-American Commission on Human Rights, in Access to Justice for Women Victims of Sexual Violence in Mesoamerica (2012) recommended that States should not only have a system in place for protection orders for victims of sexual assault but also provide the necessary human, technical, and economic resources to implement them. The Commission stated that the judiciary, prosectors, and police must coordinate to ensure compliance with the orders and recommended sanctions for officials who do not do so effectively.

Examples: The Law on Access of Women to a Life Free of Violence (2007) of Mexico (Spanish only) provides for protection orders against any form of violence defined in the act, including domestic violence, femicide, and violence in the community. And, the Organic Act 1/2004 of 28 December on Integrated Protection Measures against Gender Violence (2004) of Spain states that its provisions on protection orders shall be compatible in civil or criminal proceedings. (Article 61)

For more information on orders for protection, see provisions on Orders for Protection in the Domestic Violence section of this Module.

AEquitas, The Prosecutor’s Reference on Violence Against Women, a US-based resource for prosecutors and their allied professionals, published Long, Mallios, and Tibbets Murphy, Model Policy for Prosecutors and Judges on Imposing, Modifying, and Lifting Criminal No Contact Orders (2010). Available in English.

  • No contact orders and orders for protection should contain specific protective measures.Illustrative

Example: Title 2C of the New Jersey Code of Criminal Justice 14:12 states that:

2.a. When a defendant charged with a sex offence is released from custody before trial on bail or personal recognizance, the court authorizing the release may, as a condition of release, issue an order prohibiting the defendant from having any contact with the victim including, but not limited to, restraining the defendant from entering the victim's residence, place of employment or business, or school, and from harassing or stalking the victim or the victim's relatives in any way.

b. The written court order releasing the defendant shall contain the court's directives specifically restricting the defendant's ability to have contact with the victim or the victim's friends, co-workers or relatives. The clerk of the court or other person designated by the court shall provide a copy of this order to the victim forthwith.

c. The victim's location shall remain confidential and shall not appear on any documents or records to which the defendant has access.

Example: The Combating of Rape Act, No. 8 (2000) of Namibia requires that a no contact order be included in the bail conditions: Section 13

  • Legislation should provide that the first responders such as the police or health professionals must provide the survivor with written notice of the right to an order for protection, the procedures which are to be followed to obtain both an emergency order and a longer term order for protection, and a name and telephone number that the survivor may utilize if the survivor has questions about the order or the process.
  • Legislation should state that protection orders are to be issued in addition to, and not in lieu of any other legal proceedings. There should be no requirement that a survivor institute other legal proceedings in order to obtain an order for protection. Legislation should allow the order for protection to be utilized as a material fact in other legal proceedings. (See: UN Handbook 3.10.2)
  • Legislation should provide that violations of orders for protection are a criminal offence. Hearings for violations of protection orders should be held quickly in order to promote safety, limit opportunities to intimidate victims and deter crime. See: National Advisory Council on Violence Against Women and the Violence Against Women Office, The Toolkit to End Violence Against Women, Ch.3.

For more information on safety planning for survivors of sexual assault, see Rape, Abuse and Incest National Network, last acc. 2/11/10; Safe Horizon, Create a Safety Plan, last acc. 2/11/10; and CADA, last acc. 2/11/10.

Courtroom safety

Example: The Rome Statute of the International Criminal Court states that:

The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. Art. 68

  • Legislation should provide that survivor waiting rooms are staffed by law enforcement personnel. 
  • Legislation should provide for judicial training which promotes an effective judicial response to threats or acts of violence in the courtroom. This can include enhanced victim protection and swift and public disposition of charges in order to promote confidence in the safety of the legal process. (See: National Advisory Council on Violence Against Women and the Violence Against Women Office, The Toolkit to End Violence Against Women p. 10.)
  • Legislation should provide that victims of sexual assault cases are notified of witness protection programs. (See: UN Handbook 3.9.4.)

Office of the Prosecutor of the International Criminal Tribunal for Rwanda, Best Practice Manual for the Investigation and Prosecution of Sexual Violence Crimes in Situations of Armed Conflict: Lessons from the International Criminal Tribunal for Rwanda (2008), which provides recommendations for creating an “enabling courtroom environment.” Available in English.

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

Employer support or retaliation

Legislation should provide that an employer must allow a survivor or a witness, or her spouse or family, who is requested or subpoenaed by the prosecutor to attend court for the purpose of giving testimony, reasonable time off from work to attend criminal proceedings for the case. Legislation should provide that an employer who discharges, disciplines, penalizes or threatens an employee who took time off under the provisions described above is guilty of a misdemeanor and must offer the employee job reinstatement and payment of back wages as appropriate. (See: Minnesota, USA Statute §611A.036; UN Handbook 3.6.3; and Organic Act on Integrated Protection Measures against Gender Violence (2004) of Spain, Article 21.)

Workplaces Respond is an online resource that provides information on creating an effective workplace response to victims of domestic violence, sexual violence and other forms of violence against women. The website offers information to raise awareness, tools to help implement workplace policies and ensure safety, and resources for victims to get help and connect with local agencies working around issues of sexual and domestic violence. Available in English (last acc. 16 April 2013).

Restitution and compensation for survivors

  • Legislation should provide that survivor of sexual assaults must receive restitution as part of the criminal case against the offender without regard for the offender’s economic circumstances.
  • Legislation should provide for the creation of a government-sponsored compensation or reparations programme which entitles survivors to apply for and receive fair compensation regardless of whether the case is charged or if the offender is found guilty. (UN Handbook 3.11.5) Illustrative Example: Canada provides a comprehensive compensation programme which includes funds for counseling and expenses such as emergency shelter and food, transportation, dependent care, and lost wages. Services vary by province but generally Canada also provides funds for the costs associated with participating in a court process, including travel, interpretation, special accommodation for disabled victims. See: Canadian Resource Centre for Victims of Crime.
  • Legislation should provide that all victims of sexual assault must be informed of their rights to restitution and compensation. Legislation should require a process that does not penalize victims for delaying their request for restitution or compensation. The process should take into account barriers which victims of sexual assault face when reporting that they have been victims, such as language barriers, private spaces, literacy barriers, barriers due to displacement, and confidentiality.
  • Legislation should provide that the request for restitution may include out-of-pocket expenses resulting from the crime, such as medical or therapy costs, replacement of wages, tuition costs, relocation costs, services lost due to the crime, funeral expenses, and other expenses not itemized here but incurred as a result of the crime, including funds expended for participation in the legal process. Legislation should provide a mechanism for restitution requests and payment, and for review of compliance with restitution awards.

Examples: Organic Act on Integrated Protection Measures against Gender Violence (2004) of Spain; and Criminal Code Act (1974)of Papua New Guinea. Losses eligible for restitution under the law of California, United States, (1202.4 (a)(1) of the California Penal code) include: medical expenses, wages or profits lost due to injury, replacement value of stolen or damaged property, cost of installing security devices, retrofitting of residence or vehicle if required due to injuries sustained in the crime, mental health counseling expenses, attorney fees for loss recovery, repairs to damaged items, interest at 10% per annum, and other losses to be directly related to the crime. See: Community Services Programs, Restitution Services, State of California. El Salvador’s Special Integral Law for a Life Free from Violence for Women (2011) provides for the creation of a Special Fund for Victims of Violence Against Women. Article 35 of the law provides that funds obtained from the economic sanctions imposed for infractions committed under the law should be contributed to the Special Fund for Victims of Violence Against Women in order to finance projects provided for in the law, including projects to raise awareness of the right of women to be free from violence, protection and care for victims, and detection and prevention of violence against women.

  • Compensation should not substitute for other penalties for the offender, such as imprisonment. (UN Handbook 3.11.5)

Case Study: Beyond Reparation and Compensation: The Rome Statute’s Trust Fund for Victims:

The Rome Statute, Article 79 (1998) established the Trust Fund for Victims (TVF) and their families.The international, victim-centered TVF has become an important source of assistance for victims of gender-based violence in conflict and former conflict areas. According to the Winter 2012 report of theTVF, it supported approximately 83,400 victims of international crimes in Uganda and Democratic Republic of Congo during that period. The TVF assists not only victims and their families but also communities in the project mandate. All assistance aims to “promote the wellbeing of victims and affected communities, social cohesion and reconciliation, social and economic reintegration into the community, and healing and rehabilitation.” (Winter 2012 report, page 4.)

Assistance offered to victims is exceptionally broad in accordance with the victim-centered goals. It provides an excellent model of the scope of services which could be offered to victims of sexual violence in all states:

The TFV provides three types of legally defined assistance to victim survivors: physical rehabilitation, psychological rehabilitation and material support. A victim-centred approach combined with an integrated community-based approach remains two guiding strategies for the implementing partners. The information about the type of assistance is described below:

·         Provision of psychological support to victims through long-term counselling and emergency clinics, addressing stigma and discrimination through community sensitisation and information campaigns. This includes broad-based community education on sexual violence as a tactic of war and the links between peace, reconciliation and rehabilitation;

·         Ensuring that victims receive referrals for medical assistance and materials, including plastic surgery, orthopaedic fitting, fistula repair, services for HIV and AIDS and other sexually transmitted infections (STIs), sanitary supplies and more;

·         Providing material support for income generating activities and implementing training programmes that help survivors sustain economic empowerment;

·         Implementing special initiatives for children born out of rape and children who, themselves, have been victimised by sexual and gender-based crimes under the ICC’s jurisdiction, including access to basic services, education, and nutrition support, and inter-generational responses and stigma reduction programmes;

·         Building up the capacity of implementing partners and victims as a strategy to reinforce the sustainability of the interventions;

·         Engaging community dialogue and reconciliation to foster peace within and between the communities that create a suitable environment for prevention of crimes.

TVF Winter 2012 report, page 6.

CalVCP and CDCR Office of Victim and Survivor Rights and Services, Financial Recovery: A Victim’s Guide to Restitution. Available in English.

Examples:

After six years of limiting reparations for sexual violence only to victims of rape, the Peruvian congress passed a law in 2012 making victims of other forms of sexual violence eligible for civil war reparations. According to Peru’s truth and reconciliation commission, the newly recognized forms of sexual violence – including sexual slavery, forced abortion, forced prostitution and kidnapping – were widespread during Peru’s twenty-year conflict. The law will extend reparations to at least 500 more women, who now will be eligible for monetary compensation and free healthcare, therapy, and even education, since many women who experienced sexual violence during the civil war were not able to continue in school. See: Mattia Cabitza, “Peru Widens Civil War Compensation for Victims of Sexual Violence,” The Guardian (28 June 2012).

Colombia’s Ministry of Health has expanded the scope of services to victims of gender-based violence. In December 2011, Colombia’s Ministry of Health issued implementing rules for Law 1257/2009, prescribing benefits for victims, including access to food, shelter, and transportation. Ministry of Health Decree 4796/2011.

CASE STUDY: War Reparations Provided for Victims of Sexual Violence in Sierra Leone

For the first time in history, war reparations are being directed towards women as a means to address the critical needs of victims of sexual violence. An initiative sponsored by the German government is allowing the International Organization for Migration (IOM) to work in partnership with the Sierra Leone Reparations Program (SLRP) to assist women who suffered brutal forms of violence during the country’s long-running civil war, which ended in 2002. The IOM provides both technical assistance and expertise to SLRP and aims to directly assist women by providing trauma counseling, vocational training, and cash allowances to help set up income-generating opportunities. Through these activities, IOM has seen thousands of women begin to recover and escape the detrimental stigmas and feelings of abandonment and neglect that often follow acts of sexual violence. See: Support for the Sierra Leone Reparations Programme.

  • Legislation should require that prosecutors keep victims informed of all stages of case progression, of releases considered or granted, of all hearings and dispositions. 
  • Legislation should require the prosecutor to make a reasonable and good faith effort to inform the survivor of a pending plea agreement for the offender before it is implemented, including the amount of time recommended for the offender to serve in prison were the court to accept the agreement. Legislation should require the prosecutor to receive input from the survivor which is relevant to bail and plea agreements.

Example: the Sexual Offences Act (2003) of Lesotho states that:

In any criminal proceedings where an accused is charged with an offence of a sexual nature, the prosecutor shall consult with the complainant in the proceedings in order to-

(a) ensure that any information relevant to the trial is obtained from the complainant, including information relevant to the question whether the accused is to be released on bail and, if the accused were so released, whether any conditions of bail are to be imposed;

(b) orientate the complainant with the court structure and procedures; and

(c) provide any information to the complainant necessary to lessen the impact of the trial on the complainant. Part VII, 29

The Combating of Rape Act No 8, (2000) of Namibia includes the following provision:
 
In criminal proceedings at which an accused is charged with an offence of a sexual nature, it shall be the duty of the prosecutor to consult with the complainant in such proceedings in order –

(a) to ensure that all information relevant to the trial has been obtained from the complainant, including information relevant to the question whether the
accused should be released on bail and, if the accused were so released, whether any conditions of bail should be imposed; and

(b) to provide all such information to the complainant as will be necessary to lessen the impact of the trial on the complainant. Section 9.
 
  • Legislation should provide that the survivor has the right to be present at the sentencing hearing and at the hearing for the plea agreement.
  • Legislation should provide that the survivor has the right to present objections, orally, in writing, or through the prosecutor, to the plea agreement or the proposed disposition, to the court.
 
 
(1) A complainant of rape shall have the right –

(a) to attend any proceedings where the question is considered whether an accused who is in custody on a charge of rape should be released on bail or,
if bail has been granted to the accused, whether any further conditions of bail should be imposed under section 62 or whether any such conditions of bail should be amended or supplemented under section 63; and

(b) to request the prosecutor in proceedings referred to in paragraph (a) to present any information or evidence to the court that might be relevant to any
question under consideration by the court in such proceedings. Section 12.
  • Legislation should provide that the survivor may request that the trial be commenced within 60 days of the demand. Speedy judicial proceedings are essential to successful judicial proceedings and to the healing of the survivor. Prosecutors should be required to make reasonable efforts to comply with the victim’s request.
  • Legislation should require that the prosecutor make every reasonable effort to notify and seek input from the survivor before referring an offender into any treatment or diversion program in lieu of prosecution for a sexual assault. (See: Minnesota, USA Statute §611A.031) Pretrial diversion is an alternative to prosecution which seeks to divert certain offenders with no prior offences from traditional criminal justice processing into a program of supervision and services. In the majority of cases, offenders are diverted at the pre-charge stage. Participants who successfully complete the program will not be charged or, if charged, will have the charges against them dismissed; unsuccessful participants are returned for prosecution. (See: US Attorney Criminal Resource Manual, Ch. 9.22.000)
  • Legislation should include a provision which states that the survivor may challenge the prosecutor’s decision to discontinue the case. (See: Parliamentary Assembly, Council of Europe, Resolution 1691 (2009).)

South Africa’s National Management Guidelines for Sexual Assault (2003) provides guidelines to prosecutors as to when charges may be withdrawn and how to communicate with victims and witnesses. Available in English.

Drug screening

  • Legislation should establish guidelines for warranted drug screening to detect surreptitious drugging of survivors with substances known in some places as “rape drugs.” Legislation should require law enforcement officers to fully inform survivors who are supplying blood or urine for drug screening that full drug screening might detect illegal substances. Legislation should prohibit law enforcement from charging victims with illegal behavior, such as using illicit drugs or underage use of alcohol, that happened around the sexual assault.


Use of interpreters

  • Legislation should require that interpreters who have been trained to work with survivors of sexual assault, harassment, and stalking be utilized at all stages of response, investigation, and prosecution of sexual assault cases. Interpreters should be required for language interpretation and for the deaf or hard of hearing and the visually impaired.