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CEDAW and the Law:
the case due to fear or shame. Consequently, procedures must be ‘victim-friendly’; that is, they
must protect the victim’s safety and privacy, and they must address the victim’s concerns and
needs. See Part V.1.3.6, Indicator 24.
Recommendation: In relation to Article 105 of the Criminal Procedure Code, it is
suggested that rape and forcible sexual intercourse be removed from the list of crimes
that can only be instituted at the victim’s request. Specific procedures on handling victims
of rape, forcible sexual intercourse and other forms of sexual abuse are an indispensable
measure to accompany this and must be put in place. These procedures must
be ‘victim-friendly’, including measures to protect safety and privacy and address other
needs, such as medical treatment, counselling, legal assistance and rehabilitation.
Procedures must also provide counselling and advice to family members of the victim.
Confrontation
The Criminal Procedure Code provides that investigators must conduct ‘confrontation’ if there
are contradictions in the statements of one or two persons in the course of their investigation. 169
During the confrontation, investigators can ask about the relationships between the persons
participating in the confrontation, inquire about the circumstances that require clarification, and
put further questions if necessary. Investigators may also allow persons participating to ask
each other question. Prosecutors, in cases of necessity, can also conduct confrontation.
Recommendation: In cases of confrontation under Article 138 of the Criminal
Procedure Code it is suggested that a legal document require that due diligence be
exercised to ascertain the condition of the victim. Where the victim is experiencing
trauma or fear on account of the alleged offence, alternatives to face-to-face confrontation
must be considered. These include measures to separate the parties, such as putting
them in different rooms or using screens to shield one party from another, as well
as allowing the presence of persons to support the victim.
Body searches and body examination
The Criminal Procedure Code states that, in conducting body searches, the search of a person
must be conducted by a police officer and before a witness of the same sex. 170 This also
applies to examination of the body, including forensic examinations, to detect traces of the
offence or traces of matters significance to the case. 171 In cases of necessity, medical doctors
may participate in body examination. 172
88
Recommendation: It is recommended that Article 152 of the Criminal Procedure
Code be amended to provide clear responsibility of the police officer and examining
physician as follows: It shall be the duty of the police officer or examining physician,
who is of the same sex as the offending party, to ensure that, except those who are
authorized to do the examination and those who are reasonably expected to be pres-
169
Criminal Procedure Code, Article 138
170
Ibid., Article 142
171
Ibid., Article 152
172
Ibid.
Review of key legal documents and compliance with CEDAW