Internationally Recognized Rights of Sexual Assault
Victims/Survivors
According to paragraph 1 of the Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power, the term “victims” “means
persons who, individually or collectively, have suffered harm, including
physical or mental injury, emotional suffering, economic loss or substantial impairment
of their fundamental rights, through acts or omissions that are in violation of
criminal laws operative within Member States, including those laws proscribing
criminal abuse of power”.
This definition covers many categories of harm sustained by people as a
consequence of criminal conduct, ranging from physical and psychological injury
to financial or other forms of damage to their rights, irrespective of whether
the injury or damage concerned was the result of positive conduct or a failure
to act.
Quite importantly, according to paragraph 2 of the Declaration a person may
be considered a victim “regardless of whether the perpetrator is identified,
apprehended, prosecuted or convicted and regardless of the familial
relationship between the perpetrator and the victim”. According to the same
article: “The term ‘victim’ also includes, where appropriate, the immediate
family or dependants of the direct victims and persons who have suffered harm
in intervening to assist victims in distress or to prevent victimization.”
It may be said at the outset that the primary concern should, in general, be
to ensure that persons whose rights have been violated in one way or another
feel that justice has been done. It is therefore important always to bear in
mind that, to avoid further disillusionment on the part of victims of crime,
everybody working in the criminal justice system must show respect and
understanding for their concerns, needs and interests. Thoughtlessness and lack
of consideration might otherwise needlessly add to victims’ pain and
disappointment.
While there is no universal convention dealing with the rights of victims of
conventional crimes, the United Nations General Assembly adopted, in 1985, the Declaration
of Basic Principles of Justice for Victims of Crime and Abuse of Power,
the text of which had been approved by consensus by the Seventh United Nations
Congress on the Prevention of Crime and the Treatment of Offenders. To promote
implementation, a Guide for Practitioners Regarding the Implementation
of the Declaration was prepared, and the United Nations Economic and
Social Council, by resolution 1990/22 of 24 May 1990, invited the Eighth United
Nations Congress on the Prevention of Crime and the Treatment of Offenders to
give wide distribution to the Guide.
Rape as a Crime Under International Law
The United Nations Security Council officially recognized rape as a tactic
of war. Rape is classified as an act of torture within international human
rights, humanitarian and criminal law. Rape is used to discourage dissent and
to demonstrate power and it can be used to create an environment of fear that
systematically breaks down the cohesion of a community by creating division and
shame which tears apart social and family bonds. Rape in such a context is a
war crime. Rape occurs also frequently in detention and in some countries is
almost expected when a woman has been tortured.
Article 1 of the Universal Declaration of Human Rights (1948)
states: "All human beings are born free and equal in dignity and
rights..."
There is a human right to self autonomy and personal dignity. A person
whether a man or woman has the human right to refuse sex with any particular
person, at any particular time, under any particular set of circumstances.
Consent is the issue, no one else has the right to make that decision for
another. It does not matter whether force, coercion or fraud have been used, if
the person's right to decisions regarding her/his personal autonomy has been
ignored and he/she has been humiliated then it is rape - only if she/he has
consented would it not be rape.
On July 17, 1998 the International Criminal Court was created and on April
11, 2002 the Rome Statute (establishing the court) was ratified, coming into
effect in July 2002. The International Criminal Court can not only prosecute
nation states for committing crimes against humanity under the Rome Statute,
but certain types of non-state actors can be prosecuted as well.
The definition of rape in The Statute of the International
Criminal Court (ICC) includes two key elements:
"The perpetrator invaded the body of a person by conduct resulting in
penetration, however slight, of any part of the body of the victim or the
perpetrator with a sexual organ or of the anal or genital opening of the victim
with any object or any other part of the body."
"The invasion was committed by force, or by the threat of force
or coercion, such as that was caused by fear of violence, duress, detention,
psychological oppression, or abuse of power, against such person or another
person, or by taking advantage of a coercive environment or the invasion was
committed against a person incapable of giving genuine consent."
One of the most significant aspects of the above elements is the presence of
the "coercive environment" and the inability of a person to give
consent. This moves away from an assumption of implied consent and recognizes
that under certain coercive circumstances the assumption works the other
way--namely, the assumption is that the sex was unwanted.
The Statute of Rome had included rape in its
definition of crimes against humanity, but the Foca rape case made that
language a reality. After the court's decision in the Foca case, one commenter
noted that, "Now we say rape is a crime, a crime against humanity, or a
war crime or a constituent part of genocide." The ICC Statute is important
because it expands the coverage of crimes against women to more than just rape.
The ICC statute also makes clear that such crimes as sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization and sexual violence are
all punishable under international law.
The Foca case taught us that it is extremely important that the court
considers the views and concerns of victims throughout the legal proceedings.
Experienced professionals with expertise in trauma, especially trauma related
to sexual violence should provide psychological counseling to victims and
witnesses. There also need to be special advisers with legal experience on the
special issues regarding sexual and gender violence against children. It must
be remembered that the victims put themselves in danger by agreeing to testify
and the court should take appropriate measures to protect the safety and the
physical as well as the emotional well being of the victims. These mechanisms
to protect victim rights are crucial to establishing the truth about these
serious crimes.
Applicable International Law:
Universal Instruments
_ International Covenant on Civil and Political Rights, 1966
_ International Covenant on Economic, Social and Cultural Rights, 1966
_ International Convention on the Elimination of All Forms of Racial
Discrimination, 1965
_ Convention on the Elimination of All Forms of Discrimination against
Women, 1979
_ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
of Punishment, 1984
_ Convention on the Rights of the Child, 1989
_ United Nations Convention against Transnational Organized Crime, 2000, and
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, supplementing the Convention
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_ Universal Declaration of Human Rights, 1948
_ Declaration of Basic Principles of Justice for Victims of Crime and Abuse
of Power, 1985
_ Vienna Declaration and Programme of Action, 1993
Regional Instruments
_ African Charter on Human and Peoples’ Rights, 1981
_ American Convention on Human Rights, 1969
_ Inter-American Convention on the Prevention, Punishment, and Eradication
of Violence against Women, 1994
_ European Convention on Human Rights, 1950
_ European Convention on the Compensation of Victims of Violent Crimes, 1983
Committee of Ministers Recommendation No. R (85) 11 to the Members States of
the Council of Europe on the Position of the Victim in the Framework of
Criminal Law and Procedure, 1985
(1) Evidence of Past Sexual Behavior Evidence 
(5) Payment for Forensic Sexual Assault Examinations
