Achieving Justice for Victims of Rape and Advancing Women's Rights: A Comparative Study of Legal Reform

Summary: This is the first of two reports, prepared at the request of MADRE, the international women’s human rights organisation. The first report focuses on the rape laws and
procedures in five jurisdictions while the second one will compare current and proposed Haiti law with the best practices identified in those six countries.

The catastrophic earthquake that struck Haiti on January 12, 2010, displaced more than one million people from their homes into makeshift outdoor encampments. Within months, reports of frequent rape in and near the encampments, primarily affecting women and girls but also men and boys, began to filter out. The rapes have prompted a variety of responses focused on meeting victims’ immediate medical and psychological needs, initiating investigations and prosecutions, and improving security in the encampments to prevent additional attacks. They also once again have focused attention on the status of the law in Haiti concerning rape and other forms of sexual abuse, giving fresh im petus to long-standing calls for rape law reform.

MADRE, a U.S. based organisation that promotes the human rights of women worldwide, requested this  report in order to support the Haiti law reform effort. MADRE is engaged in this effort together with its sister organisation, KOFAVIV, a grassroots organisation of Haitian women. Interestingly, this is not the first report of its kind that was prompted by conditions in Haiti. This report builds and expands upon a prior work that was prepared at the request of the Haitian Ministère a la Condition Féminine et aux Droits des Femmes (“Ministry of Women’s Affairs and Rights” or MCFDF) and published by the Raoul Wallenberg Institute of Human Rights and Humanitarian Law in 2007 as Gender Justice, Best Practices. Gender Justice surveyed international human rights law as well as the laws of several nations in order to offer “best practices” for achieving gender justice in a nation’s laws and policies. More specifically, Gender Justice examined a variety of international law sources to distill human rights principles that govern five areas of women’s rights and offered as “best practices” examples from several jurisdictions of statutes and policies that implement these principles effectively.

The work presented here builds directly on Gender Justice. While Gender Justice addressed multiple areas of the law that affect women’s rights – including rape, domestic violence, termination of pregnancy, paternity, and non-marital cohabitation – this report discusses only rape and other sexual violence. This report relies on Gender Justice for the enunciation of human rights principles that are relevant to sexual violence. It expands upon Gender Justice by surveying more jurisdictions, and delving more deeply into the law of those jurisdictions.

This report, produced to support the process of law reform in Haiti, should be equally useful to persons in other jurisdictions where the law still reaches only the narrowest definition of rape and where victims of unwanted sexual contact remain intimidated from reporting it by a sense of futility and fear of humiliation. As stated in Gender Justice, “Governments and NGOs facing a legislative drafting process [will] benefit from a list of practical, good examples where the human rights of women are secured and satisfactorily fulfilled. Such a list will be inspirational and offer legislative solutions for adoption and implementation.” This report, in text and references, supplies many concrete examples of laws and policies from a range of jurisdictions that implement women’s human rights, including models for statutes, protocols for victim services, and guides to police and prosecutorial procedures. Taken together, these materials point the way toward achieving changes in law and policy concerning sexual assault that respect the experiences of victims and advance gender justice.

A team of lawyers is currently researching the applicability of the international framework and best practices discussed herein to the existing laws of Haiti as well as draft violence against women legislation under discussion there. The results of this research will be the subject of a subsequent report.

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