Harmonization of criminal laws needed to stop rape – UN expert

States must bring their national laws in line with human rights standards if they are to effectively prevent and combat impunity for rape, Dubravka Šimonović, the UN Special Rapporteur on violence against women, said today.

“States must address widespread impunity for perpetrators of rape and lack of justice for victims, and must harmonize their criminal laws with international human rights, criminal and humanitarian law,” she said in presenting to the Human Rights Council a report that reviewed laws in 105 countries.

Rape is recognized under international law as a human rights violation and a manifestation of gender-based violence against women and girls that could amount to torture, and States have obligations to enact legislation criminalizing it and to ensure that perpetrators are prosecuted, she said. “While all States reviewed in my report criminalize rape, the vast majority of them do it in a way that is not harmonized with human rights standards and international law,” she added.

Šimonović said her wide-ranging review of legislation highlighted the areas that must be addressed: gaps in how rape is defined, who is protected, how long a victim has to report a crime, lack of criminalization for marital rape, and lack of gender-sensitive and victims-oriented prosecution, and protections for victims.

“These gaps in legislation all have a negative impact on victims’ access to justice, and lead to high rates of impunity for perpetrators,” she said.

“Rape is frequently not reported, and even if reported, it is seldom prosecuted,” she said. “Even if there is a prosecution, it is rarely handled in a gender sensitive manner and often leads to re-victimization while producing few convictions. The result is normalization of rape, a culture of rape or silence on rape, stigmatization of victims and impunity for perpetrators.”

A key issue is how raped is defined, Šimonović said. “It should always be based on lack of consent by the victim. The use of violence or force shows lack of consent, but it is not a constitutive element of the crime of rape. Lack of consent by the victim should be at the center of all definitions of rape.”

She added: “No should always mean no, while education should promote the understanding of affirmative consent – only yes means yes.”

Šimonović also expressed concern that some countries do not consider rape within a marriage illegal.  “All States that maintain exemptions for marital rape, contrary to international standards, need to repeal those provisions urgently,” she said.

“Rape is a traumatic experience,” Šimonović added. “Victims should be allowed sufficient time to come forward with their complaints, particularly in the case of child victims, who should have the right to report rape when they reach adulthood.”

She called for measures to make judicial proceedings less traumatizing for victims, to protect them, and to prevent a victim’s sexual history to be used to discredit them during a trial.

Šimonović also presented a Model Rape Law that she said could support States in their efforts to harmonize their legislation with international standards.

“This Model Law is a tool to facilitate this process. Governments, lawmakers, civil society and other actors should take advantage of it to enact legislation that truly protects all victims and allows for perpetrators to be held accountable,” she told the Council.

“Initiatives like the Chilean protest song, ‘A rapist in your path’, raised awareness of the prevalence of rape. Now it’s time for Governments to enact legislation that can truly combat it.”

Ms Dubravka Šimonović (Croatia) was appointed as Special Rapporteur on violence against women, its causes and consequences by the UN Human Rights Council in June 2015, to recommend measures, ways and means, at the national, regional and international levels, to eliminate violence against women and its causes, and to remedy its consequences. Ms. Šimonović has been member of the CEDAW Committee from 2002 to 2014. She headed the Human Rights Department at the Ministry of Foreign Affairs of the Republic of Croatia and was the Minister Plenipotentiary at the Permanent Mission of Croatia to the UN in New York. She was also Ambassador to the OSCE and UN in Vienna. She co-chaired the Ad hoc Committee (CAHVIO) of the Council of Europe that elaborated the Convention on Preventing and Combatting Violence against Women and Domestic Violence (Istanbul Convention).  She has a PhD in Family Law and published books and articles on human rights and women's rights.

The Special Rapporteurs, Independent Experts and Working Groups are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council's independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures' experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity. 

Cassien Tribunal Aungane, Editor