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Other Legal Issues in Sexual Assault Cases

Implementation of laws

  • Legislation should include all necessary provisions for full implementation of the laws on sexual assault, including development of protocols, regulations, and standardized forms necessary to enforce the law.  Legislation should require that these protocols, regulations and forms be developed within a limited number of months after the law is in force, and legislation should provide a fixed time period that may pass between the adoption of a law on sexual assault and the date that it comes into force.  See: UN Handbook, 3.2.6 and 3.2.7.
  • Legislation should require full and sustained funding necessary for implementation of the law. Legislation should provide for a specific institution to monitor the implementation of the laws on sexual assault, and for the regular collection of data on sexual assaults. (See: UN Handbook, 3.3.1 and 3.3.2)

Example: The Sexual Offences Act (2006) of Kenya includes the following provision:

“The Minister shall (a) prepare a national policy framework to guide the implementation, and administration of this Act in order to secure acceptable and uniform treatment of all sexual related offences including treatment and care of victims of sexual offences; (b) review the policy framework at least once every five years; and (c) when required, amend the policy framework. Section 46

 

For detailed provisions on implementation, see the section on Funding Implementation in Implementation of Laws on Violence Against Women and Girls of this Module.

Traditional or customary justice systems

Legislation should provide that in traditional or customary justice systems and all decisions made therein are overseen by the formal justice system in all cases of sexual assault. Legislation should provide that victims of sexual assault receive education on their rights under the formal justice system including their right to be represented by the state notwithstanding a decision of a traditional or customary justice system. See: Freccero et.al., Responding to Sexual Violence: Community Approaches (2011).

Prevention of sexual assault

  • Legislation should include detailed provisions for prevention of sexual assault, including public education on the human rights of women and girls and public awareness of laws and penalties.

For detailed examples of country sexual assault prevention campaigns, see the examples in Campaigns on Sexual Assault in the Public Awareness and Education in Implementation of Laws section of this Module.

  • Legislation should require full funding necessary to implement provisions on prevention of sexual assault. 
  • Legislation should require cities and communities to identify areas of risk for sexual violence and to take action to prevent sexual violence. Illustrative Example: The UN Global Safe Cities Global Initiative encourages participants to engage with the community to study unsafe areas with the aim of improving the experience of women and girls. Cities have improved street design, lighting, building features, and public transportation safety, and have provided a stronger and more informed police presence to prevent and respond to violence against women.  Women and girls contribute actively to the projects by using smartphone and other mobile technologies to identify unsafe infrastructures and services. See: Michelle Bachelet, Making Cities Safe for Women and Girls, Inter Press Service, 19 February 2013, and the UN Global Safe Cities Initiative.

See:Amnesty International, Insecurity and Indignity: Women's experiences in the slums of Nairobi, Kenya (2010). The report found that women and girls in Nairobi's slums live under an unrelenting threat of sexual violence. They fear leaving their homes at night and avoid using communal toilets. Amnesty International attributed this fear to the government’s failure to enforce regulatory and planning laws, as well as a general lack of policing within the slums. Violence against women is rarely prosecuted, creating a hostile living environment for women and girls. Public safety services were also cited as necessary to the improvement of women’s lives within the slums. Although Kenya has national policies in place which expressly recognize the rights to sanitation, planning laws and regulations are frequently not enforced in poverty-stricken areas. Amnesty International urged the government of Kenya to address gendered violence and to guarantee safe access to water and sanitation. It called on the government to:

  • Ensure equal protection under the law to all the people living in informal settlements including by applying and enforcing legislation requiring landlords to construct toilets/latrines and bathrooms in the immediate vicinity of each household... 
  • Institute other measures to improve security including by increasing the level of street lighting in the informal settlements. Amnesty International, Insecurity and Indignity: Women's experiences in the slums of Nairobi, Kenya (2010).

World Health Organization, Preventing intimate partner and sexual violence against women: Taking action and generating evidence (2010). This guide is a resource for policy makers and programme planners working to prevent intimate partner violence and sexual violence. It includes risk and protective factors for violence and the importance of addressing both; the evidence base for primary prevention strategies; examples of effective and promising programmes; a six-step framework for taking action, generating evidence and sharing results; and future research priorities and conclusions on prevention programming. Available in English.

Who Are You?NZ, 2013. This toolkit uses group exercises and a short film to educate young people ages 15 and over about the prevention of sexual violence and ethical sexual decision making. Available in English.  For a video on helping friends avoid sexual violence, click here.

Penalties for non-compliance

Legislation should provide for effective sanctions against all authorities who do not comply with the provisions of the legislation in order to ensure that officials charged with implementing the legislation fully adhere to their responsibilities. (See: UN Handbook, 3.2.8)

Data collection and monitoring

Legislation should provide for mandated and regular data collection on prevalence of sexual assault, disaggregated by gender, race, age, location of assault, and type of assault, and monitoring of sexual assault cases including reports of sexual assault, cases charged, cases dropped, convictions, and sanctions given for cases of sexual assault. Effective data collection is an important tool for advocacy and to support improvements in legislation, policies, and programmes; for example, the legal system and public health system costs to address sexual violence can be estimated using statistical findings. Publication of conviction rates and sanctions may send a powerful message to the community. One report stated, “When crimes routinely go unpunished, it emboldens violent actors, including organized crime, common criminals, and state actors.” See: Nobel Women’s Initiative, From Survivors to Defenders: Women Confronting Violence in Mexico, Honduras & Guatemala (2012), 20.

Case Study: The Women Under Siege Project in Syria.

The Women Under Siege project in Serbia is tracking incidents of rape as they occur during the current conflict. The information is collected through reports on Facebook, Twitter, and YouTube from inside Syria and is analyzed by researchers at Columbia Univerity in New York, United States. Every report is coded by perpetrator and date and mapped by location. If a number of rapes occur in one area, the dot on the map is larger in size.

This is the first project which has collected data from a conflict as it is happening. By using crowdsourcing to document the rapes, researchers can anayze how and where targeting of women is happening. The methods are new to traditional public health research methodology and are not without conflict: questions on how to verify sources exist as does the social stigma in reporting rapes. But the new method has the advantage of immediacy; many victims may not live through the conflict, may be soon dispersed to other countries or districts and unable to report, or they may never report once the conflict is over.

Women Under Siege is part of the Women’s Media Center, based in New York.  Hear a story about the project here.  See: Amos, Tracking Rape in Syria Through Social Media (5 February 2013).

 

Example: “HarassMap” enables sexual harassment reports via SMS texts

Women in Egypt can now report instances of sexual harassment through SMS texts.  The texts are published and mapped while maintaining the confidentiality of the victim’s identity.  HarassMap, which launched in 2010, serves as a prevention, and communication tool that sheds light on the seriousness and prevalence of sexual harassment in Egypt. 

Between 16.5 - 27.5 million women in Egypt have access to a mobile phone in addition to women who use phones at street kiosks, and the number of mobile phone owners is continually increasing – perhaps by 10% each year.  HarassMap is the one of the first to use mobile phone technology for safe and easy reporting of sexual harassment.  See: http://harassmap.org/ (last acc. 24 May 2012).

 

Extraterritorial jurisdiction

See: United Nations Criminal Justice Standards for United Nations Police (2009); available in English.

Civil lawsuits

  • Legislation should allow civil lawsuits against perpetrators. Any provisions that do not allow women to bring civil lawsuits against a husband or family member who is a perpetrator, or that require the consent of a husband or family member in order to bring a civil lawsuit, should be abolished. (See: UN Handbook 3.12.2)
  • Legislation should allow survivor/complainants and the families of deceased victims to bring civil lawsuits against governmental or non-governmental parties for not exercising due diligence to prevent, investigate or punish sexual violence.  Legislation should allow survivor/complainants and the families of deceased victims to bring civil lawsuits on the basis of anti-discrimination laws, human rights provisions, or civil rights laws. (See: UN Handbook. 3.12.2)
  • Legislation should ensure that civil cases of sexual assault which were perpetrated against a minor are not subject to a statute of limitations. Illustrative Example: The proposed  Minnesota Child Victim’s Act would allow Minnesotans who were sexually abused as children to bring civil lawsuits at any time against their abuser or against the institution that facilitated or covered up the abuse. Three US states – California, Delaware, and Hawaii, already allow child sex abuse lawsuits to be brought no matter how long ago the abuse occurred.

CASE STUDY: Inter-American Court of Human Rights Rebukes Government of Mexico for Inaction in Femicide Cases

In Caso González y Otras (“Campo Algodonero”) v. Mexico (Spanish only), released in December, 2009, the Inter-American Court of Human Rights (IACHR) found that the Mexican government did not uphold the human rights of its citizens under the American Convention of Human Rights and the Convention of Belém do Pará by failing to investigate the deaths of three women in Ciudad Juarez, which has been the site of massive, and unsolved, sexual violence and femicide since 1993. This represents the first time that an international tribunal has rebuked Mexico for its inaction in the deaths of hundreds of women in Ciudad Juarez. The IACHR ruled that Mexico has the obligation to legislate and act with due diligence to prevent, investigate and sanction violence against women. It stated that Mexico violated the human rights of the families of the victims by failing to guarantee their access to justice.

The IACHR ruled that the Mexican government must implement a number of remedies, including paying more than $200,000 to each of the families of the three women, taking steps to find the perpetrators of the femicide, and creating a monument in commemoration of hundreds of murder victims.

Estimates of the number of women killed since the femicide began in 1993 range from 350 to nearly 1000. Most of the victims were  young women who work in maquiladoras, factories on the border of the U.S. The majority lived in or near Ciudad Juarez and came from middle- and working-class households.

Activist groups in Ciudad Juarez have long called for an end to impunity for the killings. Despite the creation of a forensics laboratory, verbal agreements to solve the cases, and the naming of a special prosecutor to handle the femicide, few of the murder cases have been solved, and 18 women went missing in 2009 alone.

See: “Court cites rights failure by Mexico in Juarez killings of womenThe Los Angeles Times; (11 December 2009); and “Mexico: Rebuke on Investigation of MurdersThe New York Times (10 December 2009.

 

Insurance discrimination

Legislation should prohibit the denial or cancellation of insurance policies for crisis centres, shelters, safe houses and counseling centres or other agencies that provide assistance to victims based upon the class of clients they serve. Legislation should prohibit insurance discrimination against victims of sexual assault and stalking in relation to health, disability, life, and property insurance.        

See: National Advisory Council on Violence Against Women and the Violence Against Women Office, The Toolkit to End Violence Against Women, Ch. 3; available in English.

 

Asylum law

  • Legislation should provide that sexual assault may constitute persecution for purposes of asylum law. Legislation should provide that survivors of sexual violence should constitute a “particular social group” for the purposes of asylum law. (See: UN Handbook 3.14)
  • Legislation should provide that asylum systems are gender-sensitive in order to incorporate many types of violence that female refugees have faced as persecution, including, for example,  forced marriage and female genital mutilation.
  • Legislation should provide that mechanisms to obtain asylum are gender-sensitive; for example, by providing child care during the interview process.

Independent and favorable immigration status for survivors of sexual assault

Legislation should provide that survivors of sexual assault should not be deported or subjected to other punitive actions related to their immigration status when they report  the violence to the authorities. Legislation should allow immigrants who are survivors of violence to confidentially apply for legal immigration status independently of the perpetrator. (See: UN Handbook 3.7.1)

Platform for International Cooperation on Undocumented Migrants, Strategies to End Double Violence Against Undocumented Women: Protecting Rights and Ensuring Justice (2012). This report offers a practical overview of methods that address discrimination and violence against undocumented survivors. It informs advocates about support services and methods to empower their clients by offering legislative, financial, and practical measures which have been used successfully in Europe. Available in English, French, and Spanish.

Leslye Orloff and Rachel Little, “Improving Accessibility of Your Program’s Services to Immigrant Women,” Revolution Volume 4, 2011, p. 5. Available in English.