Ineffective Rape Laws in the Americas

GOVERNMENTS SHOULD:

1. Improve Protections Under the Law

• ʆ  Ensure that the definition of rape is clear and not based on a requirement to prove force, but covers all forms of sexual penetration with a body part or object committed without the victim’s voluntary, genuine, and willing consent, and in a wide range of coercive circumstances.

• ʆ  Ensure that the law recognizes there are circumstances where it is not possible to give voluntary, genuine and willing consent and that it must look more broadly at the issue of exploitation, including sexual violence in the context of family or other relationship where there is particular dependency and inequality of power relationships.

• ʆ  Eliminate estupro or similar provisions that treat rape of adolescents as a lesser offense.135

• ʆ  Remove all provisions that exempt a charge of rape in the context of marriage or an intimate relationship.

• ʆ  Eliminate statutes of limitation for cases of rape and sexual assault, in cases of both adult and minor victims.

• ʆ  Ensure that any close-in-age provisions include “romeo and juliet” clauses to allow without punishment for consensual, non-exploitative sexual activity between peers, and are well- drafted to avoid gaps in protection, for example by reducing the difference in age provision, particularly for younger adolescents.

• ʆ  Ensure that sentences for sexual violence crimes (rape, sexual assault, marital rape, incest, statutory rape, rape of a minor) are commenesurate with the gravity of the acts involved and include as an aggravating circumstance rape in the context of family or similar relationship.

• ʆ  Actively and integrally include civil society, women and girls, and survivors of sexual violence in policy planning and budgetary processes and include them in the designing of laws, policies and budget which affect them.

• ʆ  Ratify and implement the Belém do Pará Convention, CEDAW, the CRC, and other regional and international instruments for the greater protection of women and girls and the right to be free from sexual violence.

135 Provided that rape itself is prosecutable for all victims, including adolescent girls, i.e. based on a definition of consent assessed in the context of any coercive circumstances 

2. Improve Access to Justice Under the Law

• ʆ  Permit minors to file complaints of sexual violence on their own authority, without requiring parental permission or approval from any other person/body.

• ʆ  Classify all sexual offenses including rape, marital rape, estupro, incest, and rape of a minor, as public offenses which would allow the public prosecutorial system to bring charges ex officio without the victim’s participation.

• ʆ  Explicitly prohibit the use of mediation, conciliation or other forms of out-of-court settlements in cases of sexual violence.

• ʆ  Review and amend as necessary the whole eco-system of laws affecting women and girls to ensure they are non-discriminatory and complementary to each other, including laws on child marriage, rape in marriage/intimate partnerships, access to sexual and reproductive healthcare, including access to abortion for survivors who become pregnant due to rape.

• ʆ  Ensure that programs preventing and addressing sexual violence take a survivor- centered, holistic approach with a special focus on the needs of girls and adolescents, that such programs are implemented effectively throughout the country (including in rural areas), and that survivors are provided with support services irrespective of whether they file a criminal complaint.

• ʆ  Ensure that all forms of sexual violence offenses are treated as matters of public interest, which have to be investigated and prosecuted as a priority.

• ʆ  Effectively implement laws on sexual violence, including by budgeting sufficient resources for programs to prevent and address sexual violence.

• ʆ  Train justice system officials, including police, prosecutors and judges, to specifically deal with cases of sexual violence in a victim-centered and trauma-informed way and implement investigation and prosecution protocols to guide implementation of sexual violence legislation and processing of such cases in the judicial system. Ensure that such protocols also specifically address the needs of marginalized communities.

• ʆ  Collect data, including statistical data, to monitor the efficacy of sexual violence legislation and improve measures to address sexual violence.

• ʆ  Collect administrative data on sexual violence crimes, disaggregated based on the victim’s and perpetrator’s sex, age, race, ethnic origin, nationality, immigration status, caste, disability, sexual orientation and gender identity.

• ʆ  Collect disaggregated statistical data on whether the sexual violence was committed in the context of marriage, an intimate partner relationship, any other relationship between the perpetrator(s) and the victim, including in the context of prostitution.

• ʆ  Collect disaggregated statistical data on whether the sexual violence was linked to other forms of violence against women and girls, including but not limited to femicide, disappearance, forced pregnancy and the like.

• ʆ  Collect disaggregated statistical data on reports of sexual violence registered with the police, as well as rates of prosecutions, convictions, and penalties in such cases.

4. Challenge negative stereotypes and improve public understanding

• ʆ  Implement age-appropriate sex and relationship education programs in schools, and public information and awareness campaigns aimed at promoting equality and ending violence against women and girls.

• ʆ  Develop and fund awareness-raising campaigns to inform the public, particularly women and girls, to understand their rights, improve knowledge of laws related to sexual violence, available remedies and methods to preserve evidence prior to reporting.