Rape as a grave and systematic human rights violation and gender-based violence against women
Special Rapporteur on violence against women
To the Human Rights Council at its 47th session
The United Nations Special Rapporteur on violence against women, its causes and consequences, Ms. Dubravka Šimonović, in her thematic report to be presented to the UN Human Rights Council in June 2021, addresses
States’ responsibility to criminalize and prosecute rape as a grave and systematic human rights violation and a manifestation of gender-based violence against women, in line with international human rights standards.
Currently, the international human rights framework and jurisprudence recognizes rape as a human rights violation and a manifestation of gender-based violence against women and girls that could amount to torture. Under international humanitarian law and international criminal law, rape can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide when the other elements of the crimes are present.
However, these international standards have not been fully incorporated at the national level. States criminalize rape using different definitions (based on force or on lack of consent), protecting different persons (only women or all persons), including or excluding marital rape, covering different types of penetrations, prescribing different aggravating and mitigating circumstances, setting different lengths of sentences, prescribing ex officio or ex parte prosecution of rape, and providing or not providing at all for different statutes of limitation for its prosecution.
Additionally, their implementation is influenced by the surrounding general context of different forms of discrimination and gender-based violence against women, myths and gender-based stereotyping on rape by the media and the criminal justice system.
All these factors contribute to the fact that rape is frequently not reported. If rape is reported, it is seldom prosecuted; if prosecuted, the prosecution is rarely pursued in a gender sensitive manner and often leads to very few convictions, the revictimization of survivors and high attrition rates, resulting in a normalization of rape, a culture of rape or silence on rape, stigmatization of victims and impunity for perpetrators.
Objectives of the report
The aim of this report is to support and encourage a process of harmonization of national criminal laws and systems and practice with international standards on rape and sexual violence in both peacetime and during conflicts.
In her report, the Special Rapporteur provides recommendations to States and other stakeholders on key international human rights standards that should be integrated in national criminal justice responses in order to harmonize them with accepted international standards; to provide access to justice and support for victims of rape; to break the cycle of impunity; and to prosecute perpetrators, ensuring that they are not protected by hidden domestic norms that are still part of criminal law or criminal procedure. In this report, the Special Rapporteur:
- Provides an overview of applicable international human rights and criminal law standards needed for the effective criminalization and prosecution of rape, based on a victim-centred approach;
- Supports and encourages a process of review and harmonization of national criminal laws and practices with international standards on rape;
- Provides recommendations on the criminalization and prosecution of rape, which, jointly with the Framework for Model Legislation on Rape (A/HRC/47/26/Add.1), are intended to serve as a harmonization tool for comparing and aligning national laws with international standards.
Upon reviewing the translated provisions provided by the Government of Cambodia, the Special Rapporteur has concluded that the provisions criminalizing rape do not fit a consent-based definition. Therefore, Cambodia should be excluded from the list of the countries mentioned in footnote 59 (paragraph 74).
Questionnaire on criminalization and prosecution of rape
Definition and scope of criminal law provisions
1. Please provide information on criminal law provision/s on rape (or analogous forms of serious sexual violence for those jurisdictions that do not have a rape classification) by providing full translated transcripts of the relevant articles of the Criminal code and the Criminal procedure code.
2. Based on the wording of those provisions, is the provided definition of rape:
a. Gender specific, covering women only YES/NO
b. Gender neutral, covering all persons YES/NO
c. Based on the lack of consent of victim YES/ NO
d. Based on the use of force or threat YES/ NO
e. Some combination of the above. YES / NO
f. Does it cover only vaginal rape? YES /NO
g. Does it cover all forms of penetration? YES/NO. If yes, please specify.
h. Is marital rape in this provision explicitly included? YES / NO
i. Is the law silent on marital rape? YES/NO
j. Is marital rape covered in the general provisions or by legal precedent even if it is not explicitly included? YES/NO
k. Is marital rape excluded in the provisions, or is marital rape not considered as a crime? YES /NO
3. To what extent legislation in your country excludes criminalization of the perpetrator if the victim and alleged perpetrator live together in a sexual relationship/have a sexual relationship/had a sexual relationship? If so, please submit relevant articles with corresponding translations.
4. What is the legal age for sexual consent?
5. Are there provisions that differentiate for sexual activity between peers? If so, please provide them.
6. Provide information on criminal sanctions prescribed and length/duration of such criminal sanctions for criminalized forms of rape.
7. What does the legislation in your country provide in terms of reparation to the victim of rape and/or sexual violence after conviction of the perpetrator?
Aggravating and mitigating circumstances
8. Does the law foresee aggravating circumstances when sentencing rape cases? If so, what are they?
a. Is rape by more than one perpetrator an aggravating circumstance? YES/NO
b. Is rape of a particularly vulnerable individual an aggravating circumstance, or the imbalance of power between alleged perpetrator and victims? (for example, doctor/patient; teacher/student; age difference) YES/NO
c. Is rape by spouse or intimate partner an aggravating circumstance?
9. Does the law foresee mitigating circumstances for the purposes of punishment? YES/NO If yes, please specify.
10. Is reconciliation between the victim and the perpetrator allowed as part of a legal response? YES/NO If so, at what stage and what are the consequences?
a. Regardless of the law, is reconciliation permitted in practice? YES/NO and what is the practice in this regard?
11. Is there any provision in the criminal code that allows for the non-prosecution of perpetrator? YES/NO If yes, please specify.
a. if the perpetrator marries the victim of rape? YES/NO
b. if the perpetrator loses his “socially dangerous” character or reconciles with the victim? YES/NO
12. Is rape reported to the police prosecuted ex officio (public prosecution)? YES/NO
13. Is rape reported to the police prosecuted ex parte (private prosecution)? YES/NO
14. Are plea bargain or “friendly settlement” of a case allowed in cases of rape of women? YES/NO
15. Are plea bargain or “friendly settlement” of a case allowed in cases of rape of children? YES/NO
16. Please provide information on the statute of limitations for prosecuting rape.
17. Are there provisions allowing a child who was the victim of rape and to report it after reaching adulthood? YES/NO
18. Are there mandatory requirements for proof of rape, such a medical evidence or the need for witnesses? YES/NO If yes, please specify.
19. Are there rape shield provisions aimed at preventing judges and defense lawyers from exposing a woman’s sexual history during trial? YES/NO
20. Are there procedural criminal law provisions aimed to avoid re-victimizations during the prosecution and court hearings? YES/NO. If yes, please specify.
War and/or conflict
21. Is rape criminalized as a war crime or crime against humanity? YES/NO
22. Is there a statute of limitations for prosecuting rape in war or in conflict contexts? YES/NO
23. Is there explicit provisions excluding statutes of limitation for rape committed during war and armed conflict? YES/NO
24. Has the Rome Statute of the International Criminal Court (ICC) been ratified? YES/NO
25. Please provide data on the number of cases of rape that were reported, prosecuted and sanctioned, for the past two to five years.
26. Please explain any particular and additional barriers to the reporting and prosecution of rape and to the accountability of perpetrators in your legal and social context not covered by the above.
Expert Group Meeting
On 27 May 2020, the Special Rapporteur on violence against women, in collaboration with Equality Now, held an Expert Group Meeting to gather information on the evolution of the international human rights framework on rape, international standards regarding to its definition and prosecution, the challenges and gaps in criminal legislation worldwide on rape and the implementation of that legislation. The results of this meeting will inform the drafting of her report on the criminalization and prosecution of rape.
list of participants.
Read the Expert Group Meeting's report.
Find below papers, notes and presentations from the Expert Group Meeting:
Olivia Björklund Dahlgren, Chairperson, FATTA
Anna Błuś, Researcher, Amnesty International
Christine Chinkin, Professor, London School of Economics and Political Science
Amanda Dale, International human rights scholar and activist
Amarsanaa Darisuren, Senior Adviser on Gender Issues, Organisation for Security and Co-Operation in Europe (OSCE)
Tamar Dekanosidze, Human Rights Lawyer, Equality Now
Equality Now (presentations by Antonia Kirkland, Jacqui Hunt, Brisa De Angulo, Tamar Dekanosidze, Judy Gitau)
Marceline Naudi, Chair, Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO)
Rosalyn Park, Director, The Advocates for Human Rights
Genoveva Tisheva, Member, Committee on the Elimination of Discrimination against Women (CEDAW)
Tatiana Rein, Chair, Follow-Up Mechanism to the Belém do Pará Convention (MESECVI)
Sylvia Walby, Director of the Violence and Society Centre and Professor of Sociology, at City, University of London
Anna Zobnina, member of the Executive Committee, European Women’s Lobby