Not a Place of Refuge: A Survey of Rape and Sexual Assault Laws, the Sexual Abuse of Women and Children within the Home, and the Link with HIV/AIDS
By Christine Mills
This paper begins with a survey of rape and sexual assault legislation in the following countries: Namibia, Rwanda, Swaziland, Tanzania, Zambia and Zimbabwe. This survey is based on a review of available statutory legislation and case law. When actual hard copies of the legislation were not available, secondary sources were relied on. Whenever possible, secondary sources were cross referenced with other sources to ensure accuracy. For two of the countries, Rwanda and Zimbabwe, the case summary includes a brief discussion highlighting issues of concern relating to rape in those countries. A table summarizing the sexual offences legislation adopted by each country is included as part of this survey. The relevant international obligations of each country are also included in a table.
Of the six countries examined, three, Namibia, Tanzania and Zimbabwe, have passed sexual offences legislation. Typically this type of legislation includes: a broad definition of rape to include any form of non-consensual penetration; an abolition of the cautionary rule for sexual offenses; a provision making it an offence to deliberately transmit HIV; and a provision recognizing the offence of rape in marriage. All three of the countries with sexual offences legislation recognize rape in marriage, however, under the Tanzanian law the couples have to be separated. Not one of the countries without sexual offences legislation recognized rape in marriage. It is vital that the criminal law recognize marital rape, regardless of whether the parties are separated, since in sub-Saharan Africa, the majority of women are infected with HIV on the marital bed.
Only one of the countries examined, Namibia, currently has domestic violence legislation, however, Zimbabwe has a draft domestic violence bill. Domestic violence legislation is a necessary tool for addressing the unique nature of intimate violence and, thus, the spread of HIV. Namibia's Combating of Domestic Violence Act adopts a broad definition of domestic violence by defining it to include physical, sexual and economic abuse. It provides civil and criminal remedies for victims, such as the granting of protection orders. It also imposes duties on police to provide support for victims, such as: taking victims to a shelter, obtaining medical help, and obtaining victims’ input on bail. Domestic violence legislation is a powerful tool for women and families. It can be tailored to address the unique circumstances of women who are often completely dependent on the very person placing their life in danger.
A review of the statutory age for consent and marriage was included in this survey. Typically the statutory legal age for consent and the statutory legal age for marriage are not the same. Meanwhile, under customary law children can be married and, consequently, 'consent' to sex at an even younger age. For example, in Zambia the statutory legal age for marriage is 18 years old and it is a criminal offence to have sex with any girl under sixteen. However, the Marriage Act of Zambia does not apply to customary law, and typically children are married at a much earlier age. This legislation allows would be offenders to hide behind the cloak of marriage, yet it fails to provide any corresponding protection for children, many of whom are as young as 13 and 14 years old, from the risks associated with early marriage and sex with older men.
The absence of comprehensive anti-trafficking legislation is quite surprising. Tanzania has a specific provision in the Special Provision Sexual Offenses Act that deals with sex trafficking. Zimbabwe's Sexual Offences Act has a section entitled 'Procuring' which deals with trafficking in a general way. The Zambian Constitution prohibits trafficking of women for immoral activities. The other countries do not have specific or general reference to sex trafficking. Only two of the countries examined, Zambia and Namibia, had policies for the provision of HIV post-exposure prophylaxis (PEP) to women and children who have been raped. Meanwhile, sexual harassment legislation is weak or non existent. Additional legislation examined varies depending on the country in question.
The link between the sexual abuse of women and children in the home and high HIV infection rates is considered in Part 2 of this paper. Legislative and policy recommendations, based in part on the survey, are discussed. The research paper is divided into two sections. The first section examines the dangers of early marriage as well as the cultural expectations that rob women of their sexual autonomy within marriage. Two fairly straightforward legislative and policy recommendations are suggested to combat this risk. They include setting the statutory age of consent and marriage at eighteen, regardless of customary practice and recognizing marital rape in law whether or not the spouses are separated. Other suggested approaches include introducing domestic violence legislation and attempting to transform the common sense surrounding forced sex in marriage. One approach is to reach out to men and women through the very clinics that provide HIV testing. A review of the situation in Swaziland suggests that cultural expectations surrounding the acceptability of sex and marriage between girl children and men can be altered within a short time with certain government sanctions and policies. Swaziland recently identified a sharp drop off in the infection rate for children under the age of eighteen.
The second section focuses on violence against children. Sexual violence against children exists along the same spectrum as violence against women. The discrepancy in infection rates between male and female children under twelve suggests that sexual abuse contributes to the higher infection rates in girls. This paper makes a distinction between the rape of children under twelve and older children, and suggests that this should be reflected in the law. Given the serious physical ramifications that result when a child under twelve is raped, the act is, by its very nature, aggravated and harsher penalties should attach to this crime. The apparent increase in the rape of toddlers and infants is examined, particularly as it relates to the virgin sex myth. This review ends with some legislative and policy recommendations to help address child rape. At the root of all sexual violence is inequality. Passing new laws and implementing new policies is a necessary, but insufficient part of the solution. It is, however, an important signal to society that certain behaviour is just not acceptable. At this time, many sub-Saharan countries have failed to send this message. For the countries that have recently adopted strong sexual violence legislation, the hard work is still ahead. Ultimately, the solution to this problem rests in transforming the way that men and women learn to relate to one another and how adults treat children.
1. Sexual Violence Legislation by Country
1.1Namibia
Namibia's sexual offences legislation is among the most progressive in sub-Saharan Africa. Namibia has recently enacted two key pieces of legislation to combat crimes of a sexual nature: the Combating of Rape Act, No. 8 of 2000[1] and Combating of Domestic Violence Act, 2003.[2] Other related laws are the Criminal Procedure Amendment Act, which "protects vulnerable witnesses in court" and the Combating of Immoral Practices Act of 1980.[3] The Combating of Rape Act institutes victim-friendly procedures by imposing special duties on prosecutors and police, and focusing on the aggression of the offender rather than the conduct of the victim. The following provisions are included in this Act: the abolishment of the cautionary rule for sexual offenses; the creation of a duty on prosecutors of a rape to consult with the victim to ensure that all relevant information has been gathered; and the imposition of a duty on police to obtain the victim’s view as to whether bail should be granted. Marital rape is a crime under the Act[4], however, according to a report by the Gender and Media Southern Africa (GEMSA) Network, there has only been one report of rape in marriage. [5]
The Combating of Rape Act prescribes a severe minimum sentence for rape (depending on the nature of the assault, a first time offender will face a mandatory jail term of anywhere from five to fifteen years and certain repeat offenders can be imprisoned for fort-five years). An offender who is infected with a serious sexually transmitted disease and is aware of it when he or she rapes someone faces higher prescribed sentences. For a first time offender, this draws a mandatory fifteen year sentence. The person does not have to actually have transmitted the disease.
Rape is defined broadly:
2(1) Any person who intentionally under coercive circumstances:
(a) commits or continues to commit a sexual act with another person; or
(b) causes another person to commit a sexual act with the perpetrator or with a third person.
Shall be guilty of the offence of rape.[6]
Under the Act, sexual intercourse with a child under the age of fourteen is rape, where the perpetrator is more than three years older than the complainant. It is also rape if the child is under the age of eighteen and the perpetrator is the complainant's parent, guardian or caretaker or is otherwise in a position of trust or authority over the complainant. In both instances, the mandatory minimum sentence for first time offenders is fifteen years. However, section 14 of the Combating of Immoral Practices Act 1980 is inconsistent with the Combating Rape Act. It sets a higher minimum age at sixteen, but then it provides that if a girl aged between twelve and sixteen consents to sexual intercourse, the accused is not guilty of rape, but guilty of an offence described in the Act. At the same time, it offers a range of defenses, such as where the child holds herself out to be older than sixteen or is a prostitute, such that no criminal offence can be found to have occurred.[7]
The Combating of Domestic Violence Act, 2003, adopts a broad definition of domestic violence, defining domestic violence to include physical, sexual, and economic abuse and intimidation and harassment. It provides civil and criminal remedies for victims of domestic violence, such as the granting of protection orders. It also imposes duties on police to provide support for victims, such as taking them to a shelter, obtaining medical help and obtaining their input on conditions surrounding bail.[8] Sexual harassment is covered by the Labour Act of 2004, while the Domestic Violence Act covers harassment in the home. [9]There are no laws dealing with trafficking in persons. According to GEMSA, there have been no reports of trafficking to, from, or within, Namibia, with the exception of an incident involving the kidnapping of two girls from Namibia to South Africa. They were subsequently used as sex slaves.[10] Article 10 of the constitution prohibits discrimination on the basis of sex.[11] The Married Person's Equality Act provides for equality of men and women in marriage, however, women's status is subordinate under customary law but the constitution gives precedence to general law.[12]
1.2Rwanda
The International Criminal Tribunal in Rwanda (ICTR) in Arusha handed down the landmark Akayesu verdict in 1998.[13] The Akayesu judgement reflects the prevailing international standard for the criminalization of sexual violence. Notably, it was the first and only case as yet in which rape was found to be an act of genocide.[14] In defining rape the court adopted a broad definition to include variations on the act of rape which may include acts involving the insertion of objects and or the use of bodily orifices not considered to be intrinsically sexual.[15] The definition follows:
The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive.[16]
There is no specific sexual offence or domestic violence legislation. The Rwandan Penal Code of 1977 deals with sexual offences, however, it does include a definition of rape. The Code "prohibits defilement, rape, torture, and sexual torture".[17] According to Human Rights Watch the lack of definition of rape or sexual torture under the law has led to inconsistent verdicts in the courts.[18] A Human Rights Watch report highlights one provision of the Code that is noteworthy, article 316, which appears to deal with sexual torture. It provides:
[T]hat a person who commits “torture or acts of barbarity” during the commission of a crime incurs the same punishment as one who commits murder. [19]
A provision of this sort, one that imports the sentence for murder, would be particularly useful if it were applied to the conviction of sexual offenders who rape small children and in so doing cause serious physical damage. Convictions for rape, when they occur, generally received sentences from 20 to 30 years.[20] Certain provisions of the Penal Code provide for a longer term of imprisonment for the rape of a child below age sixteen and the death penalty if the victim dies as a result of the rape. [21]
The Law Relating to Rights and Protection of the Child against Violence (Child Protection Law) was adopted in 2001. The law criminalizes child rape.[22] There is no specific anti-trafficking law. Instead, laws against "slavery, prostitution by coercion, kidnapping, rape and defilement were available to prosecute traffickers".[23]
The 2004 Gacaca Law provides much needed anonymity for victims of rape, requiring judges to "secretly" transfer rape testimony to the appropriate prosecutor's office.[24] What this means, essentially, is that the names and identifying information of rape complainants are to be deleted from the record.
Issues of Concern
Failure to Prosecute Rape
The sexual violence that occurred in Rwanda in 1994 can be understood through the lens of domestic violence. The violence that saw thousands of women and girls raped, mutilated, forcibly impregnated and infected with HIV, reflects a public manifestation of violence that is tolerated behind closed doors.
When men are at peace, appalling levels of violence against women are tolerated with little compunction. So it is little wonder that men raised in a culture of gender based subordination vent their violence and rage on women without restraint.[25]
This perspective is essential to understanding why there exists a significant failure on the part of the ICTR and other local courts to pursue the prosecution of rape cases. Research conducted by Human Rights Watch documents this systemic inattention to crimes involving rape:
An extraordinarily small number of cases of genocide sexual violence have been prosecuted at the domestic level. From December 1996 to December 2003, the Tribunals of First Instance and military courts tried 9,728 persons accused genocide, crimes against humanity or related crimes. Human Rights Watch consulted numerous sources for information on genocide prosecutions and judgements and examined over 1,000 judgements covering a wide range of crimes. Of those cases, only 32 included charges of rape or sexual torture.[26]
This situation is confirmed by the Special Rapporteur who found that quite often when the ICTR did pursue a rape charge, the rape count was only added belatedly, when witnesses alluded to rape and sexual violence while testifying in court. She states that this raises serious questions about the quality of investigations and decision making on drafting indictments.[27] It is difficult not to wonder whether the reluctance on the part of the, (predominantly male), police, prosecutors and courts, to pursue sexual violence charges reflects their own personalization of the crime. If it occurs within the home, if it is understood to be expected, why then would one expect it to be treated in the same way as 'true' acts of barbarism coming out the genocide, such as murder. There is no doubt that this pattern of inattention to the prosecution of the rapes committed during the genocide is consistent with the prosecution of rapes committed during peacetime.
1.3Swaziland
Legislation addressing crimes of sexual violence against women and children is sparse, dated, and inadequate. At present, there is no specific sexual offence or domestic violence legislation.[28] The two key pieces of legislation relating to sexual violence, the Crimes Act and the Girls and Women Protection Act, date from 1889 and 1920 respectively. The Common Law and the Criminal Procedure and Evidence Act 67 of 1930 also govern sexual offences.[29] These laws cover both adults and children.[30] It appears that the common law and the Girls and Women protection Act provide the definition for rape:
Having sexual relations with a woman without her consent constitutes the offence of rape. It can only be committed by a man, but a woman can be prosecuted as an accomplice in rape when she assists a man to commit a rape.[31]