1. Introduction
1. Every year, millions of women are raped: by their
husbands, partners or ex-partners, male relatives or acquaintances,
or complete strangers.
However, most of these rapes are
not reported and the perpetrators go unpunished.
2. Violence against women, in particular sexual violence, is
a serious violation both of women’s physical and psychological integrity
and also of the right to freedom, safety and dignity enjoyed by
all human beings. Even now that the Council of Europe campaign to
combat violence against women, including domestic violence, has
ended,
it is important that Europe
stays at the forefront of the fight against violence against women,
of which rape is one of the worst forms.
3. In June 2007, I presented a motion for a resolution on the
subject of “marital rape”, together with a number of colleagues.
The motion was referred to the Committee on Equal Opportunities
for Women and Men for report, and I was appointed Rapporteur in
October 2007. Following the discussion in our Committee on my outline
report on marital rape, I proposed in my introductory memorandum
to widen the scope of this report to all forms of rape and sexual
violence, with three exceptions: sexual violence in armed conflict,
on which our colleague Ms Smet prepared a report,
sexual
assaults linked to “date-rape drugs”, on which the Committee already
presented a report to which I have nothing to add,
and
sexual abuse of children, which is regulated by a Council of Europe
Convention which will hopefully enter into force soon.
The Committee
agreed to this proposal, which involved a change in title, at its
meeting in Paris in March 2009. In the meantime, the Committee presented
an opinion on “the state of human rights in Europe: the need to
eradicate impunity” during the June 2009 part-session, which also
touched on the subject of rape.
I would like to present
my report to the Assembly during the autumn 2009 part-session of
the Assembly, but would like to focus my report on rape of women,
which would again involve a change in title.
2. Definition
and consequences
4. Any sexual assault, but especially rape, is an inexcusable
crime which subjects the victim to severe physical and psychological
trauma. It is an assault on the dignity and the integrity of a person.
Unfortunately, rapes are one of the most underreported crimes in
Europe.
As Ms Damanaki explained
in her report, “many victims feel unable to come forward in a society
whose attitudes about rape are still to a large extent shaped by
myths which serve to minimise the seriousness of rape and shift
the blame away from those who commit the crime”.
The common myths she cited include:
only certain types of women get raped (those who are promiscuous
or have poor judgement); women provoke rapes by the way they dress
or
the way they flirt; men rape women because they are sexually aroused
or have been sexually deprived (in fact, men rape women to exert
control and humiliate).
5. NGOs active in the area give several reasons why so many rapes
are not reported, which are linked to the myths cited above: shame
and embarrassment, fear of being blamed, fear of not being believed,
distrust of the police/courts/legal process, fear of family and
friends knowing/public disclosure/stigma, fear of retaliation/further
attacks, as well as uncertainty whether a crime has been committed.
Reporting to the police can be a difficult decision indeed. There
are many myths that underlie the belief that women make false and malicious
allegations of rape against innocent men. Studies show, however,
that the allegations of rape that are false are exactly the same
as that of any other crime, i.e. 6 - 8%.
6. Reporting and proving rape is even more difficult in “date-rape”-situations,
when the rapist is a friend or acquaintance who maintains that the
victim consented to sexual relations. Of all sexual assaults, marital
rape is the most underreported.
The
reasons listed above are compounded by personal, cultural, religious,
and societal beliefs. Additional reasons for not reporting marital
rape may be: love for the partner, commitment to the relationship,
shared children and/or thoughts about “obligation” and “duty”.
7. Due to popular stereotypes of “real” rape, it is often assumed
that, because spouses have been sexually intimate, forced sexual
intercourse in marriage is not as traumatic as rape by a stranger.
However, this is not necessarily the case. Rape by a stranger can
be highly traumatic but is usually a one-off event and is clearly understood
as rape.
In
the case of rape by a spouse or long-term sexual partner, the history
of the relationship affects the victim’s reactions – and that of
society. Marital rape is likely to be part of an abusive relationship.
Trauma from the rape adds to the effect of other acts of domestic
violence. Furthermore, marital rape is likely to happen repeatedly.
8. It is important to understand that rape is not a “sexual”
activity, i.e. the rapist’s motivation is usually not sex, but power.
Rape is a powerful tool to control, overcome, harm and humiliate
a woman. This is one of the reasons why marital rape is so common
at the end of relationships, when, for example, a woman has left
an abusive relationship or has filed for divorce, or is fighting
a custody battle.
9. Men are also sometimes subjected to rape. Usually, the motivation
of the rapist is the same as with women victims: as explained before,
rapists primarily rape to control, overcome, harm and humiliate
– not in order to have sex.
However, outside of certain
institutional settings, such as prisons and army barracks, and outside
of times of armed conflict,
rapes of adult men are relatively
rare, though reliable figures are hard to come by. One reason is
that the level of reporting of male rape is as low, if not even
lower, than that of female rape – the stigma attached to being a
rape victim can be even bigger for men than women in certain societies and
communities, in particular those with a patriarchal, macho and homophobic
culture. Most of the recommendations in this report are valid for
all sorts of rape, regardless of the gender of the victim. However, in
view of the prevalence, I will focus mainly on rapes of women in
this report.
10. Unfortunately, the extremely low level of reporting of rape
is matched by a very high rate of attrition
and an extremely low level of conviction
– especially for marital rape.
A new study by Professors Jo Lovett and Liz Kelly of the London
Metropolitan University covering reported rape cases in 11 European
countries concludes that “the classic attrition pattern – of increased
reporting and falling rates of prosecution and conviction – is now
predominant in Europe across both adversarial and investigative
legal systems.”
In
many legal systems (including European ones), victims of sexual
violence are expected to put up resistance and show that they are
not consenting. Yet there are many women who do not dare to resist:
because the attacker is bigger and stronger, threatens her with
a weapon or other forms of violence, or (in the case of marital
rape) because she would be putting her children at risk of witnessing
the rape or at risk of violence, etc.
11. Moreover, the people working on the ground, ie police officers,
doctors, lawyers and social workers, whose duties bring them into
contact with the victims, do not always respond adequately to the
needs of the latter. Some member states require women to press charges
(and face what some NGOs have termed the “second assault” in court).
In the case of marital rape, there can also be a problem on what
can be called a procedural level. Whilst the law in theory may hold
no distinction between a spouse or any other person, in practice,
when the case comes to court, there will be difficulties in proving
that rape in fact took place. This is due to the fact that, in marriage,
sexual relations can be expected to a certain extent, and if the
defence claims consent, then the evidential burden is a very difficult
burden for the prosecution to discharge, in particular if the rapist
did not use physical force.
3. Victim protection
and assistance
12. It is thus obvious that what is needed most of all
is adequate protection for the victims of rape and sexual assault.
13. In England and Wales, a network of 38 “rape crisis centres”
has been set up, which offer specialist, comprehensive and non-judgemental
services to victims of rape and sexual violence, whether adults
or children. Some victims currently have to travel 120 miles to
access such a centre – travel times which may still increase, as
it is reported that some centres are threatened with closure due
to a lack of funds, a fact which has been strongly criticized by
the English Equality and Human Rights Commission. On 5 August 2009,
in a welcome development, it was reported that the centres are to
be allocated £1.6 million by the government, with that amount again
to help to develop a network of sexual assault referral centres.
14. As already stated, a large proportion of rapes stay unreported
to the police. If more rape victims had access to the type of service
provided by the rape crisis centres in England and Wales (which
is provided by NGOs in many other countries), the reporting rate
may go up. It should also be possible to have evidence collected
and preserved (by forensic scientists, for instance) before a complaint
is lodged, since many victims need some time before they feel ready
to press charges. Issues such as the possible consequences of rape
– pregnancy,
or sexually
transmitted diseases (including HIV/AIDS) – also need to be tackled
as part of victim protection and assistance.
15. Rape victims need protection and assistance which goes beyond
the immediate aftermath of the crime. In my opinion, victims should
also have the right to compensation.
16. Victim protection also means working with the perpetrators,
once caught, to prevent repeat victimisation and further crimes.
It appears that, in Germany, for example, a third of rapists are
adolescents (under 18). It can be hoped that, at that age, the rapists
are still reformable.
4. Rape and the criminal
justice system
17. In England and Wales, the Sexual Offences Act came
into force on 1 May 2004. The purpose of the Act was to strengthen
and modernise the law on sexual offences, whilst improving preventive
measures and the protection of individuals from sexual offenders.
The Act extended the definition of rape and changed the law about
consent and belief in consent. A person consents if he or she agrees
by choice, and has the freedom and capacity to make that choice.
The essence of this definition is the agreement by choice.
The
law does not require the victim to have resisted physically in order
to prove a lack of consent. The question of whether the victim consented
is a matter for the jury to decide, although the Crown Prosecution
Service considers this issue very carefully throughout the life
of the case.
18. In Germany, in contrast, the use of force is a precondition
for obtaining a rape conviction. The problem is that material evidence
(such as bruising) does not always exist. In the absence of the
evidence that the woman has struggled, however, a German prosecutor
cannot take action, even if the victim is physically incapable of
resisting (because her attacker is bigger, stronger, heavier). In
addition, in Germany, only testimony given in court can be used
in proceedings.
19. In many countries, the low number of complaints is also due
to victims’ fear of having their private lives exposed in court.
The legislation of England and Wales, as well as that of Germany,
allows questions about victims’ sex lives to be asked only in quite
specific circumstances, thus minimising the additional stress on
the victim in court.
20. Another factor contributing to the low level of reporting
on the crime, as well as the low conviction rates, is the fact that,
in many countries, rape (in particular, marital rape) is not yet
an
ex officio crime. Thus,
in Slovenia, for example, it is the victim who has to initiate proceedings,
make the complaint and press charges. In these circumstances, it
is easy for the attacker – in particular if he knows the victims
well – to put pressure on her to withdraw her complaint, thus pre-empting
legal proceedings. Even in countries like Germany which have enacted
ex officio prosecution, pressure
can be put on victims not to testify in cases of marital rape, since German
law allows married and engaged victims to refuse to testify once
in court.
21. The judiciary in some countries is prey to the same fallacious
stereotypes on rape as the general population, which can lead to
unfair – and even, in some cases, outrageous – verdicts which protect
the rapists rather than their victims. Thus, for example, it took
almost a decade for the Italian Court of Cassation to reverse 1999
case law which had ruled that a woman wearing tight jeans cannot
be raped, since her co-operation is needed to remove them.
The “Cristiano” judgment in question
revealed troubling views of the judges about women, sex and rape,
being concerned much more with the credibility of the victim’s statements
– and her clothing – than with the facts of the case. Even worse,
the Court declared that it would have been better for the victim
to have suffered physical injury (does that include death?) rather
than submit to rape.
In
the view of researcher Rachel A. Van Cleave, the Court’s statement
“that no injury could be more harmful than unwanted sex reveals
most clearly the persistent importance of honor”.
This focus on honour rather than on the
harm done to the victim is typical of patriarchal mindsets, which
can also lead to so-called “honour-crimes” – where raped victims
are further punished by their relatives for allegedly having besmirched
the family’s honour.
22. This type of attitude in the judicial profession can go as
far as ruling that the rape of a young girl is a less serious offence
if she has already been sexually active.
A
director of public prosecutions of England and Wales told the Guardian
newspaper that young women’s “promiscuity” and heavy drinking contribute
to low rape conviction rates,
while
one of Scotland’s most senior lawyers commented that in cases of
sexual assault, courts should no longer assume that a girl under
16 is “vulnerable”, and that defence lawyers should, in certain
trials, be able to refer to how an alleged victim was dressed.
23. The above-mentioned study on attrition in reported rape cases
in 11 European countries further found that the failure in the investigation
stage to interview the victim and/or the suspect, and high rates
of victim withdrawal contributed to low conviction rates, while
the higher conviction rates were achieved where prosecutors took
control of the investigation and made most decisions about whether
cases proceeded.
24. Unfortunately, the legislation on rape in many Council of
Europe member states remains unreformed, which does nothing to help
change such attitudes. To be truly effective, legislation on rape
needs to protect victims better, and should thus, as a minimum:
a. make rape (including marital rape)
an ex officio crime;
b. define consent as agreement by choice when having the
freedom and capacity to make that choice;
c. not require that a victim physically resist the attacker;
d. have prosecutors make all discontinuance decisions, and
give the victim the right to challenge such decisions;
e. allow victims to be a party to the case in court;
f. protect victims’ private lives, especially in court;
g. allow evidence gathered in pre-trial proceedings to be
used when the victim avails herself of her right to refuse to testify
once in court;
h. give victims a legal right to advice and support throughout
the process.
5. “Marital rape”
– a serious crime
25. Marital rape is a serious crime and should be considered
as such in national legal systems.
26. Historically speaking, marital rape was not considered a crime
in most countries. Marriage gave conjugal rights to a spouse and
imposed conjugal duties on wives. It therefore seemed to follow
that a wife could not legally revoke consent to sexual intercourse,
and if there was consent there was no rape. Rape statutes thus often
came with a “marriage exemption”. This exemption had been removed
by twelve countries by 2006.
Marital
rape was recognised in law in Austria in 1989; in the United Kingdom
in 1991; in Switzerland in 1991 (though not until 2003 did it become
a state offence); in the Netherlands in 1992; in Germany in 1997,
and in France in 2006.
27. It does not seem to me that there are still Council of Europe
member states which practice a “marriage exemption”. In effect,
the difference rather seems to be the existence or not of a “specific”
crime of “marital rape”. Some Council of Europe countries apply
the “normal” rape statutes.
28. The Council of Europe already has a clear policy position
on this matter. The Appendix to Recommendation Rec (2002) 5 of the
Committee of Ministers on the protection of women against violence contains
the following recommendations to member states:
“35. provide for appropriate measures and sanctions in
national legislation, making it possible to take swift and effective
action against perpetrators of violence and redress the wrong done
to women who are victims of violence. In particular, national law
should:
– penalise sexual violence and rape between spouses, regular
or occasional partners and cohabitants;
– penalise any sexual act committed against non-consenting
persons, even if they do not show signs of resistance;
– penalise sexual penetration of any nature whatsoever
or by any means whatsoever of a non-consenting person;
…
38. ensure that all victims of violence are able to institute
proceedings as well as, where appropriate, public or private organisations
with legal personality acting in their defence, either together
with the victims or on their behalf;
39. make provisions to ensure that criminal proceedings
can be initiated by the public prosecutor;
40. encourage prosecutors to regard violence against women
and children as an aggravating or decisive factor in deciding whether
or not to prosecute in the public interest;”.
29. The explanatory memorandum to the Recommendation made clear
that:
“77. While the definition
of rape and sexual violence is entirely a matter for domestic legislation,
it should be noted that the recommendation plainly advocates criminalizing
rape between spouses or partners.
78. Under the legislation of most countries, the act is
punishable only if performed without the passive partner’s consent.
This is normally for the court to determine. The drafters nevertheless
wanted to emphasise that lack of physical resistance does not necessarily
signify consent; fear or threat can subdue any inclination to resist,
without there being any question of valid consent. Use of force
cannot be measured solely according to the degree of resistance
put up by the victim.”
30. I think it is clearly in the victims’ interest that “marital
rape” constitute a separate criminal offence in national law, and
that prosecutors prosecute ex officio in
such cases. Both of these measures would make it more likely for
victims to come forward and report these crimes, as they would have
the feeling that their suffering is taken seriously. In fact, it
may even be a good idea to make the fact that a rape happens in marriage,
or between cohabiting partners or ex-partners, an aggravating circumstance,
as the betrayal of trust involved can aggravate the psychological
consequences for the victim.
6. Prevention of rape
31. I find it completely unacceptable that women still
have to fear rape in Council of Europe member states. As the English
network of rape crisis centres rightly points out, the threat of
violence is a total intrusion into women's personal space and transforms
a routine and/or potential pleasurable activity (for example, a
walk in the park, a quiet evening at home, a long train journey)
into a potentially upsetting, disturbing and often threatening experience.
There is thus room for improvement
in our member states concerning women’s protection from rape.
32. However, the way chosen by the Italian government recently
to improve women’s protection from rape is, in my opinion, fallacious.
At the end of February 2009, following a spate of rapes blamed on
foreigners, Italy’s government rushed through a decree (which was
passed into law by the Italian Senate in April 2009) which aims
to protect women from rape inter alia through the establishment
of citizen street patrols, in which volunteer retired police and
soldiers are meant to play a major role (it is up to local mayors
to decide how, where and when to use these volunteers).
I feel that this
measure is hardly going to be effective, and legitimises vigilantism
and xenophobia to a degree.
33. I would plead for a different approach, which would have a
dual focus: first, empowering women not to be victims, by building
up their self-esteem and their capacities for self-defence, and
second, teaching men to respect women – and their decision to say
no.
7. Conclusions
and recommendations
34. In conclusion, I feel that a comprehensive strategy
is needed to tackle rape, including marital rape, in Council of
Europe member states more effectively. This strategy should comprise
measures to prevent rape in the first place, by empowering girls
and women not to be victims and teaching boys and men to respect
women, as well as to change attitudes to rape in society as a whole
– possibly via a Council of Europe and concomitant national awareness-raising
campaigns.
35. This strategy should ensure protection of and assistance to
rape victims. Such important establishments as the rape crisis centres
in England and Wales, for example, with their comprehensive, specialist
and non-judgemental services, could serve as a model to other member
states.
36. The way the criminal justice system works in many countries
when it comes to rape also needs to be reviewed. Rape victims should
have the right to be taken seriously, and to be treated with dignity
and respect at every step of the process, from filing a complaint
(for which a female police officer should be available), to forensic
testing, up to the trial. It should not be necessary to prove that
the victim physically resisted the rapist in order to prove that
there was no consent: many rapists have means to ensure that a victim
does not struggle (including weapons, drugs, threats to a victim’s
children, etc.). The history of the victim’s relationships should play
no role at the trial (it would not have any place if the victim
had been robbed, so why should it have a place in cases of rape?);
neither should her clothing, of course. It needs to be made clear,
also to the judiciary, that any woman can be raped, but no woman
deserves to be raped, and that consent is necessary for sexual intercourse
every time, whatever the relationship of the victim with the rapist.
Only then can we hope that more rapes will be reported to the authorities,
and more rapists will actually be convicted of their crimes.
37. I would therefore recommend that the Assembly make a number
of recommendations to member states as included in the preliminary
draft resolution and recommendation, and hope for your unqualified
support.
***
Reporting committee: Committee
on Equal Opportunities for Women and Men
Reference to committee:
Doc. 11324 rev, Ref. 3366 of 01.10.07
Draft resolution and recommendation unanimously
adopted by the committee on 8 September 2009.
Members of the committee: Ms
Pernille Frahm (Chairperson),
Mr José Mendes Bota (First
Vice-Chairperson), Ms Ingrīda Circene (Second Vice-Chairperson),
Ms Anna Čurdová (Third Vice-Chairperson), Ms Sonja Ablinger, M.
Francis Agius, Mr Florin Serghei Anghel (alternate : Ms Maria Stavrositu), Ms Magdalina Anikashvili,
Mr John Austin, Mr Lokman
Ayva, Ms Marieluise Beck, Ms Déborah Bergamini ; Ms Oksana Bilozir (alternate:
Ms Olha Herasym’yuk), Ms
Rosa Delia Blanco Terán (alternate: Ms Luz Elena Sanín Naranjo), Ms Olena Bondarenko, Mr Pedrag Bošković,
Mr Han Ten Broeke, Ms Anna Maria Carloni, Mr James Clappison, Ms Diana Çuli, Ms Lydie Err, Ms Catherine Fautrier, Ms
Mirjana Ferić-Vac, Ms Sónia
Fertuzinhos, MsDoris Frommelt, Ms Alena Gajdůšková,
Mr Giuseppe Galati, Ms Gisèle Gautier,
Mr Ioannis Giannellis-Theodosiadis, Ms Claude Greff, Mr Attila Gruber, Ms Carina Hägg, Ms Fatme Ilyaz, Ms Francine
John-Calame, Ms Nataša Jovanoviċ, Ms Birgen Keleş,
Ms Krista Kiuru, Ms Elvira
Kovács, Ms Angela Leahu, Mr Terry Leyden,
Ms Mirjana Malić,Ms Assunta
Meloni, Ms Nursuna Memecan,
Ms Danguté Mikutiené, Mr Burkhardt Müller-Sönksen, Ms Hermine Naghdalyan,
Ms Yuliya Novikova (alternate: Mr Ivan Popescu),
Mr Mark Oaten (alternate: Baroness Gale),
Mr Kent Olsson (alternate: Ms Marietta de
Pourbaix-Lundin), Ms Steinunn Valdis Óskarsdóttir, MsAntigoni
Papadopoulos, Mr Jaroslav Paška, Ms Mª del Carmen Quintanilla Barba, Mr Frédéric
Reiss, Ms Mailis Reps, Ms Maria Pilar Riba Font, Ms Andreja Rihter,
Mr Nicolae Robu, Ms Jadwiga Rotnicka, Ms Marlene Rupprecht, Ms Klára Sándor, Ms Miet Smet, Ms Albertina
Soliani, Ms Darinka Stantcheva, Ms Tineke Strik, Mr Michał Stuligrosz,
Ms Doris Stump, Mr Mihal
Tudose , Ms Tatiana Volozhinskaya, Mr Marek Wikiński,
Mr Paul Wille (alternate: Mr Gerolf Annemans),
Ms Betty Williams, Mr Gert
Winkelmeier, Ms Karin S. Woldseth, Ms Gisela Wurm,
Mr Andrej Zernovski, Mr Vladimir Zhidkikh,
Ms Anna Roudoula Zissi.
N.B. The names of the members who took part in the meeting
are printed in bold.
Secretariat of the committee:
Ms Kleinsorge, Ms Affholder, Ms Devaux.