Victims Rights in Sexual Assault cases

Written by: Regina Paulose

The Verma Report

In the last couple of months, women’s and children’s rights have catapulted to the forefront of the international community due to tragic situations involving sexual assault. The most notable of these was the New Delhi gang rape in December 2012. This is not the first time these situations have happened. Why these situations have garnered this much media attention as opposed to similar situations that occur daily is an anomaly. However, the extensive spotlight has created a space for needed global discourse and critique of the current framework regarding victims’ rights.

One would be amiss to think that this problem is unique to India. In fact, in the research that was surveyed for this brief article, a vast amount of information indicates this is nothing short of a global endemic.

The December 2012 gang rape in New Delhi has forever changed the way women and children’s rights will be discussed in India. The tragic and grotesque situation, mobilized the people of India to protest inadequate laws that allow women and children to fall prey to those with an unforgivable appetite for sexual propensities. As a result the Government formed, under the leadership of Justice Verma,[1] the Committee on the Amendment to Criminal Law in India, which issued a report (Verma Report) in response to the huge public outcry. The Commission took responses from over 80 groups in addition to surveying laws from different countries.  The Commission’s conclusion after 200 + pages was simple.

Breathe life into your hollow laws and hollow words.

Although the report contains recommendations that the Indian legislature should adopt to address problems relating to sexual assault, it contains, what this author believes, to be a global framework that every country should consider in reevaluating and formulating laws that seek to protect victims from sexual assault.

The New Framework and its Four Pillars

Brutality/violence against women and children is a “deficiency [that] has to be overcome by leaders in society aided by systemic changes in education and social behavior.”[2] The report outlines what is broken down into four pillars which make up a new framework.  These pillars are not discussed in any particular order of preference.  Each pillar represents an area that will need to be improved alongside the other pillars[3] to allow shifts such as the one envisioned in the Verma Report.  Additionally, these four pillars are not discussed in minute detail, but serve as a launching point for more discussion which needs to involve holistic approaches.

Improvement of judiciary and government mindset

The judiciary, the guardian of the rule of law, should be continually up to date on the intricacies relating to sexual assault topics. The judiciary needs to change outdated conceptions that it may have of sexual assault victims.  These cases are victim dependent (99% of the time) and poor actions on the part of judges or a hostile courtroom can prevent a victim from participating in proceedings. In 2011, in Manitoba Canada, a Judge was scrutinized for his “archaic” statements when he analyzed the night of a sexual assault and said that “sex was in the air” and that the defendant was a “clumsy Don Juan.”[4]  In places such as the United States and Canada, judicial remarks such as these can be reviewed by an independent council or a bar association, which could result in punitive measures. However, punitive measures do not necessarily lead to a change in attitudes when these cases are presented.

It is important to address these attitudes that start from the judiciary and work its way through lawyers and juries. “Social attitudes are a thread running through the criminal justice system in response to rape.”[5] “Rape myths” as it is sometimes referred to “can directly or indirectly serve to excuse perpetrators and blame victims, and psychologists have found that they may also increase the likelihood that individuals will commit rape.”[6] There are also those who are of the opinion that the “rape myth” is “overstated” and challenge it on three grounds (1) some attitudes are based on opinions and facts (2) not all myths are about rape but rather how people negotiate sex and (3) there is little evidence that rape myths are widespread.[7]  Regardless of one’s position on the prevalence of rape myths, it still stands to reason that those who have the most power in interpreting laws and protecting victims should be knowledgeable in this area. These judicial players have an obligation not to perpetuate attitudes that continue to harm women and children. A victim should not make a decision to report or proceed with a case based on whether or not she will be believed by the attorneys, judge, or the jury.

Government attitudes towards sexual violence also need to change. It is evident that many government actors need to be educated on issues such as rape and women’s rights, in addition to utilizing their power to enforce laws. It would also be of use for legislatures and government players to review laws that have large gaps that allow women and children to fall prey to predatory acts.

Education/Retraining and Accountability of Law Enforcement

Law enforcement people are considered “arbiters of honor.”[8] This pillar has three components. The first component involves proper education and training on the root causes of sexual violence. Law enforcement needs to properly respond and not be apathetic, which can create a large change in how these situations are addressed.  This re-education and training unfortunately can present an uphill challenge as it also requires replacing existing beliefs in some communities. For example, law enforcement should be vigilant against “honor crimes” which are prevalent in different parts of the world. “Honor killings” or “honor based violence” are deeply rooted (origins stem from the Bible) and it is estimated that 5,000 honor based killings happen a year internationally.[9] Another example is eliminating the concept of shame. In sexual assault situations, the question should be about “bodily integrity” which translates into “integrity of the community.”[10]  This kind of shift in the mentality of law enforcement would allow more victims to come forward.

The second component involves the actual enforcement of the laws. In Kenya, where a large amount of sexual assault laws protecting women exist, women’s groups have challenged the enforcement of these laws based on the fact that police have done little to effect the law thus resulting in sex discrimination. A claim was submitted to the Kenya High Court as of October 2012 on this basis.[11] In Honduras it has been reported that there exists an “”apparent inability” of the government to effectively enforce legislation on the matter because of the lack of proper training for law enforcement personnel.”[12] In China, “when a victim has reported a sexual assault to police, seeking justice, hoping for the violator to be punished by the law, if the violator is powerful or backed by someone important, the victim will be pressured to solve the problem quietly, mostly to save face for the violator and related parties.”[13]

The third component has to do with creating laws or enforcing laws which hold law enforcement (including military) accountable. There are unfortunately many situations around the world in which law enforcement are perpetrators of this crime.  In Mexico, two police officers allegedly raped an Italian tourist while she was leaving a club at night. The officers also demanded money from the victims.[14] This was on the heels of another occurrence in Mexico where a similar situation occurred. It is also important to note that rape occurs with high frequency in conflict situations. As examined in different reports:

“mass rape in war has been documented in various countries, including Cambodia, Liberia, Peru, Bosnia, Sierra Leone, Rwanda, the Democratic Republic of Congo, Somalia and Uganda. A European Community fact-finding team estimated that more than 20,000 Muslim women were raped during the war in Bosnia. At least 250,000, perhaps as many as 500,000 women were systematically raped during the 1994 genocide in Rwanda, according to reports from the World Bank and UNIFEM. Most recently in Darfur, Western Sudan, displaced people have described a pattern of systematic and unlawful attacks against civilians by a government-sponsored Arab militia and the Sudanese military forces.”[15]

Prosecution of such crimes needs to occur and immunity should never be granted to personnel engaging in torture. For example, in Burma, no law exists which mandates the investigation of crimes by military troops because they are granted full immunity and are outside the jurisdiction of civilian courts. Minority groups have alleged that acts of sexual violence have occurred by the military, yet due to immunity, they walk free.[16]

Enforcement of State Obligations under International/Domestic Law

States have international obligations under the UN Declaration of Human Rights, the ICCPR, the ICESCR, and CEDAW to protect women and children. However, the world is not unified on various conventions and their provisions despite all the rhetoric. For example with the CEDAW, many countries had expressed that they would not include certain provisions (specifically contested are Article 2- equality of women and Article 16 – legal, cultural, and political rights for women).[17]  It should be noted that scholars do suggest based on various studies that treaty ratification does not necessarily equate to a better record of human rights performance.[18] In the bigger picture however, having such legislation implemented or modeled on a domestic level is important. In March 2013, US President Obama signed in to law the Violence Against Women’s Reauthorization Act (VAWA) which affords various protections for women.[19] One of the landmark items was the passage of provisions which protect Native American women from gaps in the law, which prior to VAWA did not allow them to prosecute perpetrators on reservations. This should be hailed as a major step forward in light of the fact that “federal prosecutors decline[d] to prosecute 67 percent of sexual abuse cases” on reservations and that “more than 80 percent of sex crimes on reservations are committed by non-Indian men, who [were] immune from prosecution by tribal courts.”[20]

Obligations of the State to provide for women and children

There is no question that the “state has a fundamental duty to protect women from gross/horrible violations of human rights.”[21] Women and children need to be protected from malnutrition, should be given access to means of economic empowerment, and should be safe from trafficking and domestic violence. These tools allow women to have a chance at being equals in society.  In India, the rhetoric of equality for women dates back to 1939.[22] Many probably assume that lesser developed countries are in desperate need of women’s rights laws. However, the 2012 World Economic Forum Global Gender Gap Report indicates that countries such as the Philippines, outranked the USA for protecting women’s rights.[23] In another survey conducted by TrustLaw, which ranked the G20 nations (but only ranked 19 of the 20), the survey found that Canada was more “egalitarian” than its counterparts and ranked China at #14 and India at #19.[24]  These indicators only serve to emphasize that “gender equality furthers the cause of child survival and development for all of society, so the importance of women’s rights and gender equality should not be underestimated.”[25]

Next Steps

Although the Verma report (a must read) is more detailed and more researched than this short article, there comes a time when law and rhetoric should create a perfect storm for action on sexual violence against women and children. It should be an embarrassment to any civilized society that sexual predators and rapists roam free without punishment. As studies continue to indicate, society will pay an ultimate price if women are not considered equal and action is not taken against this kind of violence. From a brief glance at each of these pillars, it is obvious that every single country in the world has a lot of work to do.


[1] Justice Verma passed away on April 22. Justice Verma was well known for his integrity and judicial activism. Read more on his death here: http://www.bbc.co.uk/news/world-asia-india-22260180.  The full report can be found here:  http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf

[2] Verma Report, p. 22 para 5

[3] I do not address every single problem that is associated with sexual assault in my post. This article in its limited capacity only seeks to address the large points made in the Verma Report to allow the reader an opportunity to continue the discussion.

[4] CTV News, Judicial Council reviews Sexual Assault Remarks, February 25, 2011, available at: http://www.ctvnews.ca/judicial-council-reviews-judge-s-sex-assault-remark-1.611990

[5] Charnelle van der Bijl and Philip N. S. Rumney, Attitudes, Rape and Law Reform in South Africa, The Journal of Criminal Law, 414-429, (2009).

[6] Dr. Brienes, “She asked for it: the Impact of Rape Myths” Psychology Today,  November 5, 2012, available at: http://www.psychologytoday.com/blog/in-love-and-war/201211/she-asked-it-the-impact-rape-myths

[7] Helene Reece, “Too much blame placed on popular prejudices against rape victims for low conviction rates”  LSE March 25, 2013, available at: http://www2.lse.ac.uk/newsAndMedia/news/archives/2013/03/Too-much-blame-placed-on-popular-prejudices-against-rape-victims-for-low-conviction-rates.aspx

[8] Verma Report, p. 93 para 37

[9] See Honour Based Violence Awareness Network: http://hbv-awareness.com/

[10] Verma Report, p. 93 para 38

[11] Liz Ford, How Kenyan Girls are using the law to fight back against rape, The guardian, December 4, 2012, available at: http://www.guardian.co.uk/global-development/poverty-matters/2012/dec/04/kenyan-girls-law-fight-rape

[12] Immigration and Refugee Board of Canada, Honduras: Update to HND32564.E of 15 October 1999 on violence against women, including social, government and police attitudes; whether state protection and redress available to victims of sexual violence is effective and sufficient; the general attitudes of such victims regarding the responsiveness of the state and the corresponding reporting rates; women’s organizations that assist victims of sexual violence, 18 October 2002, HND40207.E, available at: http://www.refworld.org/docid/3f7d4da111.html [accessed 3 May 2013]

[13] Zen Jingyan, “Sexual Assault victims suffer twice in China” Huff Post World, November 3, 2011, available at: http://www.huffingtonpost.com/zeng-jinyan/sexual-assault-china_b_1073693.html

[14] Rafael Romo, “Police Officers in Mexico suspected in alleged rape” CNN February 22, 2013, available at: http://edition.cnn.com/2013/02/21/world/americas/mexico-rape-police

[15] IRIN, “Our bodies – their battle ground: gender based violence in conflict zones” September 1, 2004, available at: http://www.irinnews.org/InDepthMain.aspx?InDepthId=20&ReportId=62817

[16] The International Campaign to Stop Rape and Gender Violence in Conflict, Stop Rape in Burma, accessed on April 26, 2013, available at: http://www.stoprapeinconflict.org/burma

[17] Specific objections from each country can be found here: http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm

[18] See Eric Neumayer, Do International Human Rights Treaties Improve Respect for Human Rights?, LSE Research Online, (2006) available at: http://eprints.lse.ac.uk/612/1/JournalofConflictResolution_49(6).pdf

[19] Jodi Gillette and Charlie Galbrath, “President Signs 2013 VAWA Act – Empowering Tribes to Protect Native Women” The White House blog, March 7, 2013 available at: http://www.whitehouse.gov/blog/2013/03/07/president-signs-2013-vawa-empowering-tribes-protect-native-women

[20] Louise Erdrich, “Rape on the Reservation” International Herald Tribune, February 26, 2013, available at: http://www.nytimes.com/2013/02/27/opinion/native-americans-and-the-violence-against-women-act.html

[21] Verma Report, para 18

[22] Verma Report, Chapter 1, para 25

[23] Emma Clarke, 10 Countries with Very Surprising Womens Rights Rankings, Policymic, available at: http://www.policymic.com/articles/11804/10-countries-with-very-surprising-women-s-rights-rankings

[24] Katrin Bennhold, “The Best Countries to be a Woman – and the Worst” International Herald Tribune, June 13, 2012, available at: http://rendezvous.blogs.nytimes.com/2012/06/13/the-best-countries-to-be-a-woman-and-the-worst/

[25] Anup Shah, “Womens Rights,” Global Issues, March 14, 2010, available at: http://www.globalissues.org/article/166/womens-rights. The author of this article delves into the various areas and the impact that lagging womens rights will have on each. He also focuses on topics such as the “feminization of poverty” which indicate that women suffer the most economically which has a snowball effect on society.  

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Extraordinary Rendition and the ICC

Contemporary international practices in fighting crimes and, especially, those related to the exercise of the jurisdiction over a suspected criminal envisage a possibility of implementation of a set of mechanisms used for his search and subsequent committal for a trial which inter alia may include extradition and other interstate procedures.[1] However, these practices show that extradition as a form of international cooperation is referred to by the states more frequently than the others, whereas the procedure of surrender is exercised solely on the basis of the mutual will of the sovereign states concerned subject to the application of the requesting state, consent of the surrendering state and the latter’s compliance with the principle aut dedere aut judicare in cases of committal of serious international crimes by the suspect.[2]

On the other hand, even when the aforementioned application has been made by the requesting state, the surrendering states are sometimes unable to detect the location of the suspect. In such cases states may search for the suspects proprio motu and resort to transnational abduction from the territory of another state. Moreover, these actions are often undertaken notwithstanding the existence of an extradition treaty which provides for the use of regular legal procedures ensuring prosecution or execution of punishment.[3]

In this respect, while such a resort to irregular means of surrender of the fugitive has almost unilaterally been defined by scholars as ‘extraordinary rendition’,[4] there is still a continuous debate on whether a court should exercise its jurisdiction over such a person and what the necessary prerequisites and possible consequences are.[5] This issue has somewhat been pleaded in few domestic and international proceedings across the globe and is enshrined in the famous doctrine male captus bene detentus,[6] which provides for the possibility of the expansion of extraterritorial jurisdiction of the state, abduction of the fugitive and the exercise of the jurisdiction by the court notwithstanding the circumstances of a person’s arrest.

Nonetheless, given the growing number of such instances, yet, little and controversial reflection of the matter in national and international law this dilemma has become even more worrying with the establishment of the International Criminal Court (hereinafter ICC) in 1998, whose Statute does not contain any provisions in respect to the issue at stake.[7]

One should bear in mind that rendition as means of eliminating secure zones for criminals and, in particular, terrorists, should not at the same time undermine international legal order which is based on the principles of state sovereignty and non-interference which prohibit any illegal intrusion in the surrender of the suspect as well as the exercise of forcible actions in the territory of another state without latter’s knowledge and consent. Moreover, when there is a serious violation of the rights of the suspect regardless of whether it occurs due to the actions of states, individuals or international institutions, there arises a legal impediment which may trigger the unwillingness of the judicial body to exercise its jurisdiction for the sake of integrity and stability of international legal order and human rights as its integral part.

Unfortunately, the Rome Statute of the ICC does not contain any provision in respect to extraordinary rendition as such. Arguably, the only applicable provisions concern the legality of arrest of the accused and certain human rights. Article 59(1), for example, imposes an obligation on State Parties to apprehend suspects upon the request from the Court.[8] This, however, is to be done “in accordance with the law of that state,” while according to Article 59(2) the arresting state must also have a “competent judicial authority” determining, “in accordance with the law of that State, that:…(b) the person has been arrested in accordance with the proper process; and (c) the person’s rights have been respected.”[9]

Some scholars argue that the aforementioned Article does not entail the right of the accused to have the lawfulness of his arrest or detention reviewed by a domestic court, nonetheless, bearing in mind that it may follow from human rights conventions to which the requested State is a party.[10] As regards the human rights of the accused, Article 55(1) of the Rome Statute envisages that no one shall be subjected to arbitrary arrest or detention.[11] Article 21(3), in turn, provides that the law shall be interpreted and applied by the Court in a way consistent with internationally recognized human rights.

However, the Rome Statute is silent as to the right of the requested state to decline the surrender on the grounds of an illegal arrest. This, in turn, leads to believe that the obligation of the requested state to surrender the suspect to the ICC is supreme over any national law that might allow the domestic court to decline such a surrender when the suspect has been subjected to illegal arrest or detention. Therefore, it is up to the ICC as to consider the violation of human rights of the suspect, and, as provided by Article 85(1) to arbiter compensation to anyone who has been the victim of an unlawful arrest or detention.[12] However, the Rome Statute and the Rules of Procedure and Evidence do not provide a definite answer to the issue of whether and when the Court should exercise its jurisdiction in cases of extraordinary rendition.

The uncertainty in this respect was about to change on 14 December 2006, when the Appeals Chamber had to reconsider the application lodged by Thomas Lubanga Dyilo.[13] Mr. Dyilo challenged the Court’s ability to exercise jurisdiction over him under Article 19(2) of the Rome Statute before the Pre-Trial chamber. In his application Mr. Dyilo alleged that he had been subjected to mistreatment when he was detained in the Democratic Republic of the Congo prior to his surrender to the ICC which the Prosecutor had been complicit in. He alleged that it constituted the abuse of process and applied for the dismissal of the case.

Referring to Nikolić and Barayagwiza the Pre-Trial Chamber stated that it could potentially dismiss the case as a remedy for abuse of process and on the protection of the fundamental rights of the accused in Article 21(3). However, the Chamber had to decline the application due to the lack of evidence in support of complicity and mistreatment. This has been reconsidered by the Appeals Chamber whose findings varied drastically. The Chamber stated, that the issue was not that of jurisdiction, but rather “a procedural step not envisaged by the Rules of Procedure and Evidence or the Regulations of the Court invoking a power possessed by the Court to remedy breaches of the process in the interests of justice.”[14] Further on, the Chamber reviewed the doctrine of abuse of process and stated that since the concept is not really known to civilian systems, the doctrine “is not generally recognized as an indispensable power of a court of law, an inseverable attribute of judicial power,” and therefore was not among any inherent powers the ICC had.[15] Nonetheless, the Chamber stated that the human rights standards imposed by Article 21(3) imply the Court’s power to stay proceedings if the treatment of the accused interferes with the right to a fair trial.[16] In particular the Court confirmed that there must be a human rights-based remedy available to the accused under Article 21(3) of the Rome Statute, however, declining to characterize it as a “jurisdictional” power.

The aforementioned approach seems balanced and justified. Nevertheless, if the ICC decides to change it, there will certainly be cases where prosecuting universally condemned offences will by itself create threats to international peace and security. Notably, the ICC operates in a highly-charged political atmosphere and even a minor disregard of illegality might provoke a political conflict, which will worsen the situation and damage the legitimacy and credibility of the ICC.[17] Therefore, it is highly advisable that these practices have no future before the Court.

Written by Jan Guardian


[1]      See Aparna Sridhar, The International Criminal Tribunal for the Former Yugoslavia’s Response to the Problem of Transnational Abduction, 42 Stan. J. Int’l L. 343 (2006) [hereinafter Sridhar, ICTY Response], at 343-344.

[2]      Ozlem Ulgen, The ICTY and Irregular Rendition of Suspects, 2 Law & Prac. Int’l Cts. & Tribunals 441 (2003), at 441.

[3]      See e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992).

[4]      Laura Barnett, Extraordinary Rendition: International Law and the Prohibition of Torture, (rev. July 17, 2008) [online][accessed 1 May 2013].

[5]      Frederick Alexander Mann, Reflections on the Prosecution of Persons Abducted in Breach of International Law, in International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne (Yoram Dinstein ed., 1988), at 414.

[6]      Douglas Kash, Abducting Terrorists Under PDD-39: Much Ado About Nothing New, 13 Am. U. Int’l L. Rev. 139 (1997) [hereinafter Kash, Abducting Terrorists], at 141.

[7]      UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9 [hereinafter Rome Statute][online][accessed 1 May 2013].

[8]       Ibid., Article 59(1).

[9]       Ibid., Article 59(2).

[10]        B. Swart, Arrest Proceedings in the Custodial State, in the Rome Statute of the International Criminal Court, Vol. II (A. Cassese, P. Gaeta and J.R.W.D. Jones, eds , 2002), at 1252.

[11]     Rome Statute, supra note 7, Article 55(1).

[12]     S. Zappala, Compensation to an Arrested or Convicted Person, in A. Cassesse, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford-New York: Oxford University Press, 2002) 1577, at 1580.

[13]     Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2) of the Statute of 3 October 2006), Case No. ICC-01/04-01/06 (OA4), 14 December 2006 [online][accessed 1 May 2013].

[14]     Ibid., para. 24.

[15]     Ibid., para. 35.

[16]     Ibid., para. 37.

[17]     John Rosenthal, A Lawless Global Court: How the ICC Undermines the UN System, Policy Review, February – March 2004, at 29.