QUICK ESCAPE FROM SITE

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 the survivor may have access, free of cost, to a sexual assault survivor advocate, who will be available to assist the survivor 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). Minnesota law provides a specific definition of a “sexual assault counselor” who may access this privilege:

"Sexual assault counselor" for the purpose of this section means a person who has undergone at least 40 hours of crisis counseling training and works under the direction of a supervisor in a crisis center, whose primary purpose is to render advice, counseling, or assistance to victims of sexual assault. Minn. Stat. §595.02 (1) (k).

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

For 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 provide that victims who are minors have full access to a comprehensive range of health services which address the physical and mental consequences of the sexual assault without the consent of any other person.
  • Legislation should provide that access to these services need not occur within a particular time frame and that access is not conditional in any respect.

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

 Promising practice: 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.)

For 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).

Promising practice: 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).

Promising practice: 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)

  • 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)

For 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 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.

For example, 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.

Promising practice: 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).

Next Topic   Protection and no contact orders