Stories of Women’s Participation in Transforming the Legal Landscape on Sexual Violence
Gender-based violence is a grave violation of human rights. The World Health Organization (2013) describes violence against women, in particular, as a "public health problem of epidemic proportions that affects between 35% and 70% of women and girls worldwide”. Violence against women "extends to every corner of the globe, endangers women's health, limits their participation in society, and causes great human suffering". Gender-based violence also affects gender-diverse persons and men and boys in different and unique ways.
SAHR is advocating for a radical transformation in legal frameworks to increase survivors’ access to justice, by redefining the wrong in crimes, facilitating alternative avenues to access justice, reducing the evidentiary burden on survivors, and transferring the onus of remedy on the State. To achieve this, we are working to support women’s participation in legal and judicial systems, and foster more connections and collaboration with women in government and politics.
During 16 Days of Activism, SAHR ran a virtual event to explore and showcase how human rights defenders are working to transform systems and practices around prevention and prosecution of sexual violence, around the world.
Our event was headlined by a panel of 7 human rights lawyers and defenders from Kenya, Argentina, Colombia and Afghanistan who are using and transforming the law as a tool for the protection of victims of sexual violence. The event was tuned in live with 30 - 60 persons in attendance. This included embassy staff, UN agencies, human rights defenders and friends and supporters of SAHR from all over the world.
State of rape laws around the world
Lara Danani, our legal intern at SAHR, started the event giving an overview of the issues in the current laws and policies on rape around the world.
She mentioned that in some countries such as Georgia and Kazakhstan, rape is defined by use of force and not by absence of consent. However, not all rapes occur through violence. For example, sexual violence occuring within familial or trusted relationships occur over time and through psychological coercion, instead of physical force. In those cases, victims and especially children tend to submit without physical resistance.
Another issue that is pervasive in most countries is under-reporting. One barrier to reporting is the statutory limitation period. This period is a legally defined timeframe within which a person can bring forth a legal action or file a lawsuit. Once this period expires, the individual loses the right to start legal proceedings regarding a specific claim or offense. Survivors often face stigma and shame, preventing them from reporting within such a limited time frame. Many also need medical attention due to STDs, pregnancy or injuries. Some need time to seek help, speak to a friend or a confidante. Some face family pressure or retaliation by perpetrators. A rigid reporting window does not account for these realities. For example under the law in Nepal, complaints in rape cases had to be filed within one year of the incident, and shockingly, until 2018, this period was only 35 days!
On the issue of retaliation, SAHR shared that it is advocating for States to proactively assess whether the victim has protection needs and ensure that state services, NGOs, and other relevant entities are coordinated to fulfill those needs. This shift would place the responsibility where it belongs – with the authorities – to safeguard those who have already suffered enough.
Kenya
The state of SGBV in Kenya, particularly Bungoma province in Western Kenya is particularly serious:
According to the World Health Organization (2021), up to 38% of all murders of women are committed by intimate partners.
UNWomen (2023) says that 40.7% of Kenyan women suffer some form of physical or sexual violence.
The Kenya Demographic Health Survey (2022) stated that between 2016 and 2023, there were over 9,000 cases of SGBV for minor girls in Bungoma. This means ½ of all underaged sexual violence which is reported nationally in Kenya happening in Bungoma.
Whilst the national average of SGBV in Kenya is 13%, the rate in Bungoma is 23%. In 2022, 62% of Bungoma women have experienced physical and sexual violence.
Norah Wekesa, a civil society activist from Bungoma Kenya is also a psychosocial counselor. As part of SAHR Fellowship, she is training and recruiting paralegals in her community. Paralegals are the “eyes and ears' ' in the community and ensure that SGBV response is more accessible to survivors.
With SAHR support, she had trained 33 paralegals, and selected 15 of them from the 9 sub-counties in Bungoma, including remote areas. She selects paralegals who show empathy, trust, and the skills to handle GBV cases and who will be able to serve as first-responders and victims with their needs, make referrals and give support.
Hagin Watwati, a Civil Society Leader & Paralegal who works together with Norah also explained his policy solution to the rate of GBV in their community. He shared that women are treated as second class citizens due to societal norms. Therefore, women are prone to violence. The culture does not support in providing a safe environment for women and girls. In addition, culture can be a barrier to mitigation of violence. For example, cultural stigma deters women from reporting and those who do report face a lot of shame.
Hagin explained the necessity of a policy, because when it comes to violence, victims are affected diversely, therefore a multi-sectoral approach is needed. No one organ is sufficient. Elders in the community, the police, the judiciary, and healthcare must coordinate with each other to respond to violence. A policy will incorporate all these stakeholders, describing each of their roles in GBV prevention and response.
And to conclude the interventions from Kenya, we welcome the intervention of Isabella Mwangi, a Human Rights Lawyer, who is Reviewing Kenya's Sexual Offences Act and ancillary legislation.
She commented that the Sexual Offences Act of 2006 was commendable. She also explained that 16 years on, it has not kept up with the realities of GBV today.
She also stressed the importance of including the perspectives of survivors and marginalized people into the law. She is critically analyzing that marginalization is not addressed very clearly and properly. It is very silent on sexual harassment, sexual engagement between teenagers and discrimination and bias between boys and girls, etc. She said that the exclusion of marginalized people, excluded their intersections and therefore congruence in advocacy remains a necessity.
Argentina
The state of GBV in Argentina remains alarming.
In 2022, The Office of Gender Based Violence in the Supreme Court, received more than 10, 000 files, involving 14,000 victims.
The Ombudsman's Office (2023) said that an average of one femicide every 27 hours was recorded until November 15, 2023 in Argentina.
The Secretariat for Women and Diversity (2023) mentioned a total of 665 women in situations of gender-based violence which had received assistance from the Secretariat for Women and Diversity.
Jimena Gibertoni, a Human Rights Lawyer who works as an independent lawyer in Buenos Aires is dealing with a specific issue regarding gender based violence in her country. Last year, her network of lawyers handled more than 200 cases of gender-based violence across Argentina. She mentioned that currently, victims of gender-based violence are subjected by the courts to psychological examinations to prove harm. Oftentimes these examinations lack a gender perspective, are re-traumatising and used to undermine the victims’ credibility.
She is pushing for a policy to give victims the right to receive free and immediate and professional psychological examination, by an expert who is trained to examine victims of gender-based crimes.
She emphasized the importance of having experts who can intervene during the judicial process. For example, psychologists have an ethical duty to critically examine their own role. If they are not gender-trained, they may sustain the inequalities and abuses of power which lead to gender-based violence.
Therefore evaluations must be done from a trauma-informed perspective, understanding the impact of trauma on an individual's behavior, memory, and ability to provide accurate information. The examiner should also create a safe, non-threatening environment and use techniques that minimize retraumatization. They must also recognise that violence occurs within a specific social, political and economic context. That context is relevant to the examination.
Colombia
The state of GBV in Colombia is serious.
The Peace and Reconciliation Foundation (2023) stated that between January 1 and July 31, 2023, there have been at least 301 femicides in the country.
Prior to the COVID-19 pandemic, about 33% of Colombian women aged 15–49 had experienced physical and/or sexual violence from their intimate partner at least once in their life, compared to the global estimated average of 27%
Catalina Dominguez, a Colombian lawyer expert in criminology and Program and Case Officer at SAHR submitted an Advisory Opinion to the Special Jurisdiction for Peace in Colombia, regarding the Macro Case 11 involving gender-based atrocities committed during the armed conflict in Colombia between 1957 and 2016.
In the Advisory Opinion she used a criminological perspective to explain the motivations behind armed groups’ use of sexual violence to intimidate and control the civilian population, seeking to keep communities subdued. She explained that it is used to deter resistance. By attacking the women of a vulnerable population, the perpetrators seek to demoralize and dehumanize the population, weakening their will to oppose. When vulnerable, armed groups find it easier to strip communities off their rights, dignity, property, land and homes.
She also mentioned that justice requires that we understand the causes and motivations of violence. Men are not naturally violent. They become violent out of certain social, economic and cultural conditioning, behavioral patterns, and risk factors.
As a conclusion, she commented that sexual violence in conflict is a result of perpetrators within a specific social and cultural environment, where sexual violence is seen, heard and used to advance military objectives Truth-telling requires us to understand perpetrators’ ideologies and risk factors. Such change will contribute to the long-term stabilization of affected communities.
Afghanistan
The state of GBV in Afghanistan is serious, and legal experts have started to describe the situation of women as a gender-apartheid.
According to UN(2022), more than 50% of Afghan women aged 15-49 had experienced gender-based violence at least once in their lifetime
UNFPA (2021) mentioned that 87% of Afghan women have experienced some form of physical, sexual or psychological violence.
Front Line Defenders (2022) said that 49% of threats against people in Afghanistan were directed against defenders working on women’s rights.
Enjeela Hedayat is a lawyer from Afghanistan and SAHR Fellow. During her intervention, she stated that being a woman in Afghanistan is like a crime, and women have no fundamental rights. Since the Taliban took over Afghanistan in August 2021, they have enforced several restrictions and abused the fundamental rights of women and girls. During two years, they issued over 50 decrees, guidelines, instructions, and prohibitions that violate women's and girls' human rights.
She emphasized that human rights defenders are being persecuted by the Taliban in Afghanistan due to their advocacy for human rights, gender equality, justice, and freedom of expression. Human rights defenders are targets for persecution as they are documenting violations, providing legal aid, advocating for marginal groups and pushing for reform. The Taliban's actions and policies have historically demonstrated a disregard for human rights. Their restrictive and oppressive ideology conflicts with the work of these defenders. Additionally, the Taliban's intolerance of dissent is because of a desire to maintain control over the population.
She applied for the SAHR Fellowship to support and advocate for women human rights defenders in Afghanistan to have safety and protection. She is currently conducting interviews with women human rights defenders (WHRDs) and journalists who are facing risks due to their previous activities and ethnic backgrounds.
Some remarks by participants about our event
“Thank you all for the amazing and inspiring work you do. Blessed are the women who get you to care and represent them” - Guru Vishwanath
“While difficult to hear these terrible stories, you are all so inspiring. I'm very grateful that you all exist and put your life work to these causes” - Philippa Young
“Thank you for all the amazing information that you all shared with us” - Maria Elyasi
“This is quite motivating for every human rights defender out there. I love this conversation” - Perfect Kashoti
“Thank you very much. It is very interesting” - Richard Dusabimana
“It's great to see the great work from the fellows. Great work!” - Erfaan Hussein Babak - The Awakening (Pakistan)
“You are all doing such an amazing job! Respect! And thank you!” - Pirjo Turk
“Thank you for sharing your incredible stories and the incredible work that you all do” - Poorna Menon
“Thank you for all the amazing work you do” - Carolina Cirillo
“It is heartwarming and encouraging to see all the effort being made by each and everyone of you” - Payal Nayar
Click here to watch the full video: https://www.youtube.com/live/2t4GQOCs5Ug?feature=shared&t=762
