Legislation should prevent the introduction of the survivor’s sexual history in both civil and criminal proceedings either during the trial or during the sentencing phase where it is unrelated to the case (sometimes called a “rape shield law”). Many victims of rape and sexual assault have felt re-victimized when questioned by defense attorneys about details of their private sexual conduct. Rape shield laws are designed to prevent introduction of a victim’s sexual behavior that is unrelated to the acts that are the subject of the legal proceedings. (See: UN Handbook 18.104.22.168; Report of the Intergovernmental Expert Group Meeting to Review and Update the Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, 15 (e); and “The Legal Response to Violence against Women in the United States of America: Recent Reforms and Continuing Challenges,” by Sally F. Goldfarb, a paper for the United Nations expert group meeting on good practices in legislation on violence against women, 2008. p. 10.)
Example: Rule 70(d) of the International Criminal Court’s Rules of Procedure and Evidence states that “[c]redibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness.”
CASE STUDY - Case of LNP v. Argentina (2011) – Human Rights Committee Finds That Enquires Unrelated to Rape Case Constitute Violation of ICCPR
In 2003, a 15 year old girl who is a member of the Qom ethnic group was sexually assaulted by three young men in Argentina. The victim was questioned by medical staff and witnesses were questioned by the court as to the girl’s virginity and sexual history. In Communication No. 1610/2007, the Human Rights Committee noted that “the constant enquiries by the social worker, by medical personnel and by the court into the author’s sexual life and morality constitute arbitrary interference with her privacy and an unlawful attack on her honour and reputation, all the more so because those enquiries were not relevant to the rape case and related to a minor. The Court referenced its General Comment Number 28, which provides that a woman’s right to privacy is interfered with when “the sexual life of a woman is taken into consideration in deciding the extent of her legal rights and protections, including protections against rape.”
In view of the above, the Committee found a violation of article 17 of the International Covenant on Civil and Political Rights. See Communication No. 1610/2007.
Canada’s approach is to state that:
evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
The judge, under Canadian law, must determine that the evidence is about specific incidents of sexual activity, is relevant to the issue at trial, and that it has “significant probative value” that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Article 276 of Canada, Criminal Code (R.S.C. 1985. c. C-46) as amended by R.S., 1985, c. 19 (3rd Supp.), s. 12; 1992, c. 38, s. 2; 2002, c. 13, s. 13.
See: Respect, Protect and Fulfill: Legislating for Women’s Rights in the Context of HIV/AIDS (2009), Volume 1, Module 1; available in English, page 1-24, for additional factors in determining admissibility of evidence.
The Combating of Rape Act, No. 8, (2000) of Namibia states that no evidence about the complainant’s previous sexual activity may be allowed unless the court determines that it:
(a) tends to rebut evidence that was previously adduced by the prosecution; or
(b) tends to explain the presence of semen or the source of pregnancy or disease or any injury to the complainant, where it is relevant to a fact in issue; or
(c) is so fundamental to the accused’s defence that to exclude it would violate the constitutional rights of the accused:
Provided that such evidence or questioning has significant probative value that is not substantially outweighed by its potential prejudice to the complainant’s personal dignity and right of privacy. Art. 18
Example: USA Federal Rule of Evidence 412, which allows for rape shield laws in both civil and criminal proceedings.
Example: The state of Pennsylvania, United States, has amended its legislation on experts in sexual offense cases in 2012 to state:
(1) In a criminal proceeding subject to this section, a witness may be qualified by the court as an expert if the witness has specialized knowledge beyond that possessed bythe average layperson based on the witness's experience with, or specialized training or education in, criminal justice, behavioral sciences or victim services issues, related to sexual violence, that will assist the trier of fact in understanding the dynamics of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after being assaulted.
(2) If qualified as an expert, the witness may testify to facts and opinions regarding specific types of victimresponses and victim behaviors. Law of Pennsylvania §5920 (2)(b)
See more provisions on evidence in Rights of survivors, below.
Legislation should provide that no records of personal information shall be admissible in sexual assault proceedings, unless the survivor or witness to whom the record relates has consented in writing to the disclosure of the personal record. Article 278.1 of Canada, Criminal Code (R.S.C. 1985, c. C-46) as amended by 1997, c. 30, s. 1 defines a “record” as follows:
… “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
National SATU Guidelines Development Group, Recent Rape/Sexual Assault National Guidelines on Referral and Forensic Clinical Examination in Ireland (2010). These guidelines are a resource for law enforcement, health, psycho-social and related service providers and aim to further promote interagency coordination in responding to survivors of sexual assault. They include reference pages for responding to cases of sexual assault and rape; the referral process for Sexual Assault Treatment Units; contact information for Treatment Units; and a guide on preserving forensic evidence. The resource also includes detailed guidance for receiving and responding to survivors of sexual violence, including referring and following-up on cases, with specific sections for police, forensic examiners, forensic laboratories, as well as general practitioners. Available in English.
United States Department of Justice Office on Violence Against Women, A National Protocol for Sexual Assault Medical Forensic Examinations: Adults/Adolescents (Second Edition, 2013) establishes guidelines for forensic medical examinations in sexual assault cases. The guidelines support a coordinated community response that places the victim’s physical and emotional needs over the needs of the criminal justice system. They offer detailed recommendations on equipment needed and methods for best evidence collection. The guidelines also state that voluntary use of alcohol or drugs “should not diminish the perceived seriousness of the assault.” Available in English.
CASE STUDY: Human Rights Watch Report: Testing Justice: The Rape Kit Backlog in Los Angeles City and County
In 2009, Human Rights Watch released the report Testing Justice: The Rape Kit Backlog in Los Angeles City and County. The report found that, as of March 1, 2009, there were over 12,000 untested rape kits in storage facilities in these locations. Rape kits are comprised of evidence which is carefully collected from the victim when the rape is reported: DNA from every part of the victim’s body touched by the rapist; photographs of injuries, including magnified photographs of tears or other injuries to the victim’s genital area; fingernail scrapings; and blood and urine samples. This evidence is sealed into a large envelope and stored with police. The evidence from the kits may not only identify the assailant, it may corroborate future testimony about the assault, or connect the assailant to other victims.
The report found that although victims may believe that the evidence is automatically tested, and that no word from the police meant that they could not identify the attacker, thousands of rape kits remained untested. In some cases, the kits are from cases which are now past the 10-year statute of limitations for rape in California and can no longer be prosecuted. Untested kits can also mean that rapists remain at large.
The report revealed that although the police and sheriff’s departments received federal funds to address the backlog of untested kits, the number of untested kits continued to grow. It found that officials sometimes delayed ordering kits to be tested when they did not believe that a crime had occurred..
Human Rights Watch called upon the Los Angeles Police and Sheriff’s Departments to meet US obligations under international law and ensure justice to victims of sexual violence by:
The Los Angeles law enforcement officials have agreed to test all rape kits in the backlog and all those collected in the future.
Legislation should state that no adverse inference shall be drawn from a delay between the act of violence and the reporting of the act of violence. The judicial officer should be required by the legislation to so inform the jury.
Example: The Combating of Rape Act, No 8, (2000) of Namibia states:
7. In criminal proceedings at which an accused is charged with an offence of a sexual or indecent nature, the court shall not draw any inference only from the length of the delay between the commission of the sexual or indecent act and the laying of a complaint. Sec. 7
(See also: the Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) of South Africa, Section 59; and the UN Handbook, 3.9.6.)
Legislation should not allow mediation in cases of sexual assault at any stage of the process. (See: UN Handbook, 3.9.1.)
Legislation should not allow provocation as a defense to sexual assault. (See: Model Strategies, 7(d) p. 33.)
Legislation should not allow perpetrators to avoid punishment by reaching an agreement with the family of the victim/survivor or by providing the family with payment. (See: Good practices in legislation on “harmful practices” against women (2010), 3.6.1; Gender-Based Violence Laws in Sub-Saharan Africa, p. 32.)
Legislation should remove any exemption from punishment for perpetrators of sexual assault who marry the survivor. (See: Good practices in legislation on “harmful practices” against women (2010), 22.214.171.124.) Legislation should explicitly prohibit sexual assault cases from being dismissed upon the marriage of the perpetrator and survivor. Legislation should state that if a marriage occurs between the perpetrator and survivor, the case should be examined and considered for prosecution as a forced marriage. Legislation should terminate parental rights of perpetrators for any child born of rape and prohibit custody or visitation rights of perpetrators for any child born of rape.
(See: The section on Forced and Child Marriage of this Knowledge Module.)
Legislation should prohibit or restrict the purchase, possession and use of firearms and other regulated weapons by offenders convicted of sexual assault.
(See: World Health Organization, Violence Prevention: the evidence (2009), which states that when access to firearms is restricted, lives, families, and costs are saved.)