By Phil Harris for InDepthNews
Do legal systems around the world give women and girls true protection from rape and other forms of sexual violence? Do the victims of rape and sexual violence have access to real justice if violence is perpetrated?
The answer is ‘no’, says a report issued March 6 by Equality Now, an international human rights organisation working to protect and promote the rights of women and girls.
Are governments ensuring that adequate laws dealing with sexual violence are enacted, developed and enforced? Are governments living up their commitments to end all forms of violence – including sexual violence – against women and girls?
The answer is again ‘no’ says the report – The World’s Shame: The Global Rape Epidemic – which looks at sexual violence laws in 82 countries (including 73 UN member states).
Around the world, rape and sexual abuse are everyday violent occurrences – affecting close to a billion women and girls over their lifetimes. However, despite the pervasiveness of these crimes, laws are insufficient, inconsistent, not systematically enforced and, sometimes, promote violence, says Equality Now.
“If it [sexual violence] were considered a medical disease, it would almost definitely have the serious attention – as well as the funding needed – to address it from governments and independent donors alike,” according to Antonia Kirkland, Legal Equality Programme Manager at Equality Now.
Globally, the report notes, governments have committed and recommitted to ending all forms of violence against women and girls, including sexual violence. In September 2015, the UN General Assembly adopted the Sustainable Development Goals (SDGs), including the elimination of all forms of violence against all women and girls in the public and private spheres.
However, in many countries, these have remained empty commitments, and it is not only the victims that suffer.
“Sexual violence is not just violence against women and girls but violence against society with drastic, negative effects on individuals, families and communities as well as the broader economy,” writes Jane Ellis, Director of the Legal Policy & Research Unit of the International Bar Association (IBA), in a foreword to the report.
Sexual violence is often something which only reaches the media spotlight when extreme events occur, such as when there was public outrage at the posting on social media of the film of a 16-year-old girl being gang-raped in 2016 in Rio de Janeiro … only to fade into oblivion shortly afterwards.
Rape is primarily an act of violence against the person – predominantly female although occasionally also male – and the law leaves much to be desired in many countries around the world. In some it is even practically condoned.
In some countries, for example, rape of a woman or girl by her husband is expressly legal. This is the case in some African, Middle East and Asian countries, and in a few of these countries marital rape is expressly legal even where the “wife” being raped is a child “bride” and the “marriage” is in violation of the minimum age of marriage laws.
In other countries, mainly in the Middle East, it is also legally possible for a perpetrator of rape or sexual assault to escape punishment if he marries the victim, while in others, ranging from Europe to the Middle East and Asia, the perpetrator can be exempt from punishment by reaching a “settlement” – financial or otherwise – with the victim or the victim’s family.
In both cases, says the report, “this begins the narrative that not all rape is rape and so sews the seeds to allow the perpetrator to escape responsibility – in law or in practice – for his violence.”
The report also found that in some countries around the world rape is treated as an issue of morality rather than of violence, with legal provisions using “sexist” terms such as humiliation, outrage, honour, modesty, chastity or morality, or even the concept of ‘normal’ sexual desire.
However, “rape and sexual assault are always about power, control and entitlement, not about sexual desire.” Like a definition of rape which includes honour or morality, the use of terms indicating sexual desire contributes to creation of an environment favouring the argument of “normal” sexual behaviour of the perpetrator, effectively dismissing the crime of violence against the victim.
The report cites the case of the Stanford University student who raped an unconscious girl in January 2015 and was given a light prison sentence of six months (of which he served only three months) on the grounds that a harsher penalty would have a “severe impact” on him.
The student’s father had said that his son should not have to go to prison for ”20 minutes of action” and that his son’s “life will never be the one that he dreamed about and worked so hard to achieve”, raising a question mark over how much consideration was given to the impact on the victim’s life.
In many countries, continues the report, the law on rape sends a signal that sexual assault has only happened if a victim actively tries or is unable to resist violence. However, there are many circumstances in which a survivor of rape may feel coerced or threatened and “the law should never interpret a woman’s lack of physical resistance to sexual violence as acquiescence in that violence.”
The report recalls the events in Cologne and some other German cities on New Year’s Eve 2015 when hundreds of women reported being sexually assaulted by what appeared to be organised gangs of men. At the time, German Justice Minister Heiko Maas, said the definition of rape in German law was too narrow and that there was no clear legal definition of how much resistance a woman had to offer for an offence to constitute rape.
But, he was reported to have asked, “does a woman need to be killed or severely beaten to prove she did not consent to rape?”
In November 2016, Germany introduced a new law changing the focus of the law on rape from how much additional violence the perpetrator used to the victim’s lack of consent to sexual intercourse.
Nevertheless, the report’s findings illustrate that worldwide governments still have a long way to go to transform their laws, policies and practices into instruments to prevent sexual violence, provide better access to justice for victims and effectively punish sexual violence crimes.
“Unless governments fix their laws on rape and sexual assault and implement them effectively and sensitively, we are unlikely to see an end to this worldwide abuse of women and girls anytime soon,” it concludes.