Impunity for rape of women has to be stopped

In fact, most rapes are never reported. One reason is that the perpetrator in many cases is a family member or close acquaintance, for example a husband, a partner or ex-partner, a father or a step-father, or another relative. This makes it more difficult for the victim to go to the police, because such a report may lead to retaliation or other serious consequences in her daily life.

Those who do report are not always taken seriously at the police station or during a trial. Too often the victims are interrogated in a most insensitive manner by officials who have little understanding of the traumatic aspects of such crimes. This is another disincentive to bringing charges.

Though the legislation on sexual assault has improved considerably in European countries, the court proceedings are generally not sufficiently adapted to the seriousness of this crime and to its psychological impact upon the victims. The trial itself could put the woman in a situation of having to relive a deeply agonising experience. In particular, the confrontation with the perpetrator may be extremely traumatic.

Moreover, in cases which actually do reach the courts in spite of these obstacles, the number of convictions continues to be very low. In most cases the perpetrators go unpunished, which can be a very hard blow to a woman who takes the risk to report. This fact certainly does not encourage other victims to initiate proceedings.

There have been too many trials during which the credibility of the woman has been questioned in an inappropriate manner. In many cases, the woman’s own behavior or even her style of dress have been given undue attention during the proceedings. The suspicion is aired that she herself might have provoked the assault.

In some instances, courts have been influenced by the argument that a woman wearing a short skirt has “asked for it”. In such cases the blame, or at least part of the blame, is shifted from the attacker to the victim.

This is unacceptable. It must be made clear that free consent is always necessary for sexual intercourse. This principle must dominate not only the law but also the concrete procedures in the justice system. Marriage or partnership shall not be construed as an excuse for sexual abuse; no type of relationship makes the principle of free consent redundant.

Consent should be real. There should be a genuine freedom of choice so that the participation in the act is truly voluntary. Absence of violence is not a sufficient criterion as a proof of consent. Sexual intercourse under threat of violence or other coercive circumstances must be regarded as rape. It should not be necessary that the woman has physically resisted the attacker; she may be physically unable to do so, be paralysed by fear or in a blackmail situation.

The European Court of Human Rights has analysed this particular aspect in a case relating to the judicial response to a charge relating to rape (M.C. v. Bulgaria; 04/03/2004):

“[T]he Court is persuaded that any rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual’s sexual autonomy. In accordance with contemporary standards and trends in that area, the member States’ positive obligations under Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim.”

The same point was made in recent decisions taken by the Council of Europe Parliamentary Assembly. It recommended member states to define consent as “agreement by choice when having the freedom and capacity to make that choice”. It also suggested that rape by a spouse, partner or ex-partner might be regarded as an aggravating circumstance in the judicial process1

The German parliamentarian Marlene Rupprecht, who acted as the rapporteur of the Assembly on this issue, stressed the need to empower girls and women not to be victims – their self-esteem and their capacities for self-defence should be promoted. She also emphasised the need to teach boys and men to respect women – and their decision to say no.

One obvious aspect of a comprehensive strategy to give better protection for women against sexual assault is to ensure that all relevant professionals fully understand the principle of free consent and its implications – including police, judicial and forensic personnel. In addition, the competence of social workers and health professionals to assist victims is of great importance. Education and training for this purpose should be further promoted.

Such education should make clear a point that Marlene Rupprecht also made in her report: that rape should not be understood as a “sexual” activity as it is usually motivated by a desire to control, harm and humiliate a woman. Typically, marital rape is more common at the end of relationships, for instance when a woman has sought divorce or when there is a battle about custody of children.

Rape is not only a private issue between two individuals. It must also be seen as a human rights concern – as governments have not provided sufficient protection of individuals against this great harm from others. The Strasbourg court is right to refer both to Article 3 about protection against ill-treatment and to Article 8 about respect for one’s private life.

In fact, sexual assault should be seen as one of the most serious human rights problems of our time. Sadly, its scale appears to be widespread. The fact that it is largely hidden is not an excuse for ignoring its existence. On the contrary, it should be a political priority to protect women from this threat. The very first step should be to investigate why there are so few convictions in cases brought to court – and to remedy this failure.

This is a question of respecting the integrity of person, one of the most crucial aspects of human rights.

Thomas Hammarberg

1. Resolution 1691 (2009) and Recommendation 1887 (2009) adopted 2 October 2009.