Six-Point Checklist on Justice for Violence Against Women

SIX-POINT CHECKLISTON JUSTICE FORVIOLENCE AGAINST WOMENSTOP VIOLENCEAGAINST WOMEN

QUICK REFERENCE GUIDE1/ARE THE EXISTING LAWS ADEQUATE? 32/IS IT SAFE FOR A VICTIM TO REPORT A CRIME OF SEXUALOR GENDER-BASED VIOLENCE? 53/ARE COLLECTION OF FORENSIC EVIDENCE AND PROVISION OFMEDICAL CARE APPROPRIATE AND ADEQUATE? 74/ARE THERE SPECIFIC OBSTACLES WHICH PREVENT A VICTIM FROMACCESSING APPROPRIATE SERVICES IN A TIMELY WAY? 95/IS INVESTIGATION OF CRIMES EFFICIENT AND THOROUGH? 106/ARE TRIALS FAIR, COMPETENT AND EFFICIENT? 12

SIX-POINT CHECKLISTON JUSTICE FOR VIOLENCE AGAINST WOMENAmnesty International’s checklist for identifying obstacles to justice for women or girls whoare victims and survivors of sexual and other forms of gender-based violence.Sexual and gender-based acts of violence are alwaysa crime and a fundamental violation of humanrights. Sadly, violence is a daily reality for manywomen in every country in the world. Internationalhuman rights standards oblige states to criminalizerape and other forms of sexual and gender-basedviolence and to address those crimes. States cannotuse the excuse of domestic laws which fail to reflectthe reality of sexual violence and women’s right toreparation, as a reason for failing to take measuresto prevent violence, to investigate cases andprosecute alleged perpetrators, and to providereparations to women.In the case of violence committed by state actors,such as the police, armed forces, or in custodialsettings, rape and other sexual violence constitutetorture. In the case of other perpetrators who holda position of trust, such as teachers, religiousleaders or doctors, sexual violence is a crime andalso a breach of a duty of care.Amnesty International’s Stop Violence againstWomen campaign aims to build on its earliersuccesses which have contributed to positivechanges in laws, policies and practices that addresssexual and gender-based violence at the regional,national and international levels. This includeslaws that criminalize sexual violence, including inarmed conflict, laws which address rape andother forms of violence within marriage, and lawsof evidence and rules of procedure that eliminateprevious discriminatory practices which madewomen unequal before the law.However, despite these successes, AmnestyInternational is acutely aware of how little differencethey have made to the lives of women and girlswho are victims and survivors of sexual andgender-based violence. (Amnesty Internationalrecognizes that men and boys also face sexualand gender-based violence and may face thesame or similar obstacles when seeking justice.)AMNESTY INTERNATIONAL – SIX-POINT CHECKLIST ON JUSTICE FOR VIOLENCE AGAINST WOMEN1

This checklist is intended to help activists andadvocates to identify: laws, policies and practices which still need tobe reformed and obstacles to the successful implementationof laws and policies.The checklist is based on international humanrights law and standards. It is organized accordingto the steps that victims would need to take inorder to report a crime and seek redress forsexual and gender-based violence through thecriminal justice system.In each national context, it is important to ask sixmain questions:1) Are the existing laws adequate?2) Is it safe for a victim to report a crime of sexualor gender-based violence?3) Are collection of forensic evidence and provisionof medical care appropriate and adequate?4) Are there specific obstacles which prevent avictim from accessing appropriate services ina timely way?5) Is investigation of crimes efficient and thorough?6) Are trials fair, competent and efficient?The six key questions that form the basis of thischecklist are interrelated. Using this checklist shouldallow activists to identify what changes are needed,in law or in practice, to ensure that victims andsurvivors of sexual or gender-based violence havemeaningful access to services and justice. However,depending on the jurisdiction, activists are likely toidentify different obstacles under different elementsof the checklist.2AMNESTY INTERNATIONAL – SIX-POINT CHECKLIST ON JUSTICE FOR VIOLENCE AGAINST WOMEN

1/ARE THE EXISTING LAWS ADEQUATE?Sexual and gender-based violence mustbe criminalized. Rape and other forms of sexual violenceshould be defined as sexual conduct in whichthe victim involved was coerced, by violent ornon-violent means, and therefore her agreementto engage in sexual acts was not truly and freelygiven. There should be no assumption in law orin practice that a victim gives her consentbecause she has not physically resisted theunwanted sexual conduct regardless of whetheror not the perpetrator threatened to use or usedphysical violence. Criminal law should identify rape and othersexual violence as crimes against the physical andmental integrity of the victim, rather than as a crimeagainst morality or honour. The law criminalizing theconduct should be gender-neutral. Criminal law should enable the effectiveprosecution of any perpetrator for acts of sexualviolence, and there should be no exemptionsfor certain perpetrators (such as a marital rapeexemption which assumes that married womenautomatically consent to sexual contact withtheir husbands). Crimes of sexual and gender-based violence insituations of armed conflict should be investigatedand prosecuted based on the understandingthat acts of sexual and gender-based violencein conflict are war crimes. Furthermore, superiororders are not a defence and the issue ofcommand responsibility should be investigated.Where the violence is widespread or systematic,it should be investigated as a possible crimeagainst humanity. There should be no discriminatory defences forperpetrators available on the grounds of “honour”,“passion” or “provocation” that can be used to limitcriminal liability for sexual violence. Gender-based violence, for example violencein an intimate partner relationship, should beAMNESTY INTERNATIONAL – SIX-POINT CHECKLIST ON JUSTICE FOR VIOLENCE AGAINST WOMEN3

criminalized and treated within the criminal justicesystem with the seriousness afforded comparableacts of violence between non-family members.There should be no assumption that a partner,parent, spouse, sibling or child has the right to“discipline” a woman or girl through the threatof or use of physical violence.The legal framework must not discriminate againstwomen or girls seeking justice and must not leadto further violations of their rights. All victims should be equally protected inthe law from violence with no discrimination on thebasis of age, race, ethnicity, religion, marital status,social status, caste or descent, migrationstatus, employment (including sex work), sexualpractice or sexual orientation (for example,lesbians), gender identity (for example, transgenderwomen) or appearance (for example, the way awoman is dressed). A victim who reports sexual or gender-basedviolence must not run the risk of being charged witha crime such as adultery, prostitution, fornication,homosexuality, being in a country irregularly and soon. She must also not run the risk of losing custodyof her children (for example, in cases of marital rape). There must be no legal provisions thatundermine or devalue the testimony of women orgirls so long as it is clear that they are competentto testify. In particular, there must be no requirementthat the victim’s evidence must be corroboratedby other evidence; no use of the “cautionary rule”(which requires judges to warn juries thatcomplainants may be motivated to lie about thecase, are prone to exaggeration or fantasy, orthat their evidence may therefore be unreliable);no inference that a woman or girl who was underthe influence of alcohol or drugs (even minimally)at the time of the offence against her is responsiblefor the violence; no inference that a woman or girlis to blame because of how she was dressed, noinference that a woman or girl is to blame becauseof where she was. Sex workers or women in theentertainment business should not be subjectedto disparate treatment because of their employment.Furthermore, there should be a strong presumptionthat evidence of sexual history should not beintroduced into the trial, in order to avoiddiscriminatory inferences being made about acomplainant’s credibility, character or predispositionto sexual availability.4AMNESTY INTERNATIONAL – SIX-POINT CHECKLIST ON JUSTICE FOR VIOLENCE AGAINST WOMEN

2/IS IT SAFE FOR A VICTIM TO REPORTA CRIME OF SEXUAL OR GENDER-BASEDVIOLENCE?The state must ensure that victims and survivorsof sexual or other forms of gender-based violencehave access to safe and timely avenues to reportthe crime. States must ensure that the police and other lawenforcement officers in no way intimidate, threatenor humiliate victims of sexual or gender-basedviolence, either when they file their complaint orduring the subsequent investigation. The policeshould immediately ascertain if the complainant isat risk of further violence and if so, ensure that thevictim receives appropriate protection. There should be enforceable codes of conductguaranteeing that police officers work professionallywith victims of sexual or gender-based violence.This should include a prohibition against dismissive,discriminatory, aggressive, unduly sceptical orunprofessional attitudes. Codes of conductshould include provisions for holding officersaccountable in cases where survivors have notbeen treated appropriately. Victims should be allowed to bring anadvocate into any meetings with the police orother investigators. Police officers should be trained (as part of theirbasic training and as ongoing professional training)in best practice methods of interviewing andsupporting victims who have been subjected tosexual violence. Victims should be interviewed in a secureand private environment. Police officers should,as routine practice, assess the safety of thecomplainant and implement measures to ensurethe victim’s safety during the ongoing investigation(for example by enforcing a civil injunction ifavailable to forbid a perpetrator from approachingthe complainant). In no case should a complainantbe put in “protective custody”.AMNESTY INTERNATIONAL – SIX-POINT CHECKLIST ON JUSTICE FOR VIOLENCE AGAINST WOMEN5

All cases must be registered immediately andfull information about the progress and regularupdates provided to the complainant and thevictim’s advocate. The police should issue a uniquecase number which facilitates tracking. Victims who are in any form of state custody orother institutional settings must have a securemeans of making a complaint to an appropriateentity outside the institution. In no case should theinvestigation be handled internally. For example,prison officials should not investigate allegations ofabuse by prison staff but should refer such cases topolice who specialize in investigating sexual andgender-based violence.6AMNESTY INTERNATIONAL – SIX-POINT CHECKLIST ON JUSTICE FOR VIOLENCE AGAINST WOMEN

3/ARE COLLECTION OF FORENSIC EVIDENCEAND PROVISION OF MEDICAL CAREAPPROPRIATE AND ADEQUATE?Collection and processing of forensic evidencemust be effective, must not exclude victims ongrounds of cost or location and must not furthertraumatize the victim. Medical professionals should be trained in theWorld Health Organization (WHO) protocol on thecollection of forensic evidence in cases of sexualand gender-based violence. They should take notesand collect samples in a way that ensures that theevidence can be used in criminal trials, for example,protecting the chain of custody of evidence. Medical professionals should be trained in citingappropriate facts in the forensic medical report ina format that could be used by police andprosecuting authorities in taking actions againstperpetrators. Forensic medical experts should neverdraw conclusions of law. Medical professionals should refer survivors toappropriate support services. The criminal justice system should not requirethat victims reporting rape or sexual violencereceive a separate forensic medical examination.The separation of treatment from evidencecollection violates the right to health and raisesserious ethical issues. The initial examination at anyhealth services should be done in such a way as toensure that forensic evidence which could be usedfor the investigation and trial is collected at that time. If a separate forensic medical examination isrequired, the medico-legal examiners should betrained in the WHO protocol on the collection offorensic evidence in cases of sexual and genderbasedviolence. The forensic medical examination should beaccessible to the survivors, both physically andgeographically. Financial assistance for travel costsshould be available and examinations should befree of charge. In no case should a victim’s inabilityto pay preclude the victim from getting theexamination and appropriate medical care.AMNESTY INTERNATIONAL – SIX-POINT CHECKLIST ON JUSTICE FOR VIOLENCE AGAINST WOMEN7

Examination should take place as soon aspossible as some types of evidence must becollected within hours. If a victim is unable toaccess a forensic specialist in a timely manner,that fact should in no way be used to underminethe complaint. Survivors should not be charged for collectionof samples (such as the cost of “rape kits”) orfor documenting the results of the testing in amedical report.8AMNESTY INTERNATIONAL – SIX-POINT CHECKLIST ON JUSTICE FOR VIOLENCE AGAINST WOMEN

4/ARE THERE SPECIFIC OBSTACLES WHICHPREVENT A VICTIM FROM ACCESSINGAPPROPRIATE SERVICES IN A TIMELY WAY?Victims of sexual or other gender-based violencemust have immediate access to appropriatehealth services. Health services should be physically andgeographically available and accessible to all victimsof sexual or gender-based violence. The patientshould be reimbursed for travel costs if she cannotafford them. If the health facility charges user fees,the inability to pay the fee should not precludetreatment. Fees should be waived for anyone whootherwise would not be able to access the services. Victims seeking health services after an act ofsexual or gender-based violence should be able tosee a medical practitioner of their choice (a womanor a man). Health services should provide a woman or girlwho has been raped with appropriate medicalcare, such as emergency contraception; HIV postexposureprophylaxis; gynaecological care forinjuries sustained in the assault, as well as generalmedical care for other injuries; and initialpsychological support. Medical professionals attending survivorsimmediately after an act of sexual or gender-basedviolence should be trained to deal with survivors’needs professionally and supportively, and treatthem confidentially and with no discrimination.Health service providers should be able to referpatients to other appropriate services such aspsychological counselling and legal services. Accessible and appropriate services includingabortion should be available to women andgirls who have become pregnant as a result ofrape or incest.AMNESTY INTERNATIONAL – SIX-POINT CHECKLIST ON JUSTICE FOR VIOLENCE AGAINST WOMEN9

5/IS INVESTIGATION OF CRIMES EFFICIENTAND THOROUGH?Investigation must be conducted in a timelymanner and explore all relevant evidence tosupport appropriate prosecution. The investigating authorities should protectthe identity of the survivor if that is what thesurvivor wants. The police must not pre-judge the evidencebefore the investigation has even started (forexample, by disbelieving the complainant’s versionor by informally encouraging them to drop thecomplaint “for their own good”). There should be clear criteria defining when thepolice must refer a case to the prosecutor. Whenthey do not take further action on a case, they shouldbe required to record the reasons and inform thecomplainant. Their reasons and decision should beavailable for appeal to the prosecuting authorities. The police should not mediate agreementsbetween perpetrators and victims, they should notfacilitate informal payment of compensation andthey should not encourage resolution through aparallel legal system such as a tribal court. Statistics on the resolution of investigationsshould be gathered and published. They shouldprovide information on cases disaggregated byfactors such as the sex, race and age of the victim.Prosecutors must initiate criminal proceedingsagainst suspects where probable cause exists. If prosecutors take the decision to discontinuea case, they should record the reasons for this andpromptly inform the complainant. Prosecutorialdiscretion should not be used to dismiss cases inwhich there is sufficient evidence to proceed andif the complainant wishes to go forward. The investigation and prosecution must becarried out in compliance with the principles ofdue diligence.10AMNESTY INTERNATIONAL – SIX-POINT CHECKLIST ON JUSTICE FOR VIOLENCE AGAINST WOMEN

The office of the prosecutor should routinelypublish statistics on the resolution of cases referredto its office. It should provide information oncases disaggregated by factors such as the sex,race and age of the victim, and on cases that havenot been pursued. The lawyers and investigators within the officeof the prosecutor should be trained in dealingwith victims of sexual or gender-based violence,especially in the appropriate use of medicalevidence, and use of expert evidence, such aspsychological or psychiatric reports. Prosecutors should ensure that witnesses areproperly protected from further violence throughwitness protection measures, irrespective of whetherthe threat comes from the alleged perpetrator, orothers, including relatives of the complainant whomay be acting in the name of family “honour”.Under no circumstances should protection takethe form of “protective” custody in a jail or prison. Prosecutors should preserve the dignity ofvictims and witnesses in the courtroom by ensuringthat defence lawyers cross-examine witnessesprofessionally, without using bullying tactics toundermine the credibility of witnesses; and byensuring that witnesses and victims can useequipment such as closed-circuit cameras togive their evidence, or can give their testimonyin camera (in a closed courtroom). There should be independent oversight of theprosecutors’ work to assess how cases relating tosexual or gender-based violence are being managed.AMNESTY INTERNATIONAL – SIX-POINT CHECKLIST ON JUSTICE FOR VIOLENCE AGAINST WOMEN11

6/ARE TRIALS FAIR, COMPETENT ANDEFFICIENT?Trials must be fair, free of discrimination andthe rights of the victim and defendant mustbe protected. Judges are responsible for maintaining theprivacy of the victim’s identity if the victim so chooses. Judges and lawyers should be trained inunderstanding crimes of sexual and genderbasedviolence. Judges should be trained to preside over cases ofsexual and gender-based violence. They should beheld responsible for maintaining a safe and respectfulenvironment within the courtroom, in particularensuring that witnesses are protected from abusive ordemeaning treatment by the defence. Judges mustgive clear directions on the law to jurors. Judges should not allow evidence about theprevious sexual history of a complainant to be raisedin court, apart from in very exceptional cases wheresuch evidence is necessary to avoid a miscarriage ofjustice, for example, if a complainant says she hadnot met the accused before, when in fact they hadbeen living together. If jury trials are routinely used in cases of sexualviolence, jurors should be screened for any biasagainst women or victims of gender-based violence.They should be drawn from diverse backgrounds,sworn to keep the details of the case confidential andproperly guided on the law by the judge. Sentences imposed on perpetrators found guiltyof rape and sexual violence should be proportionateto the crime. In no case is imposition of the deathpenalty appropriate or acceptable. Survivors should be informed when theirattackers are to be released or paroled fromprison; and updated safety assessments shouldbe carried out. Perpetrators convicted of crimes of sexual orgender-based violence should be given access toappropriate rehabilitation programs; such programmesshould be carefully monitored for effectiveness.12AMNESTY INTERNATIONAL – SIX-POINT CHECKLIST ON JUSTICE FOR VIOLENCE AGAINST WOMEN

Amnesty International is a global movement of 2.2 million people in more than150 countries and territories who campaign to end grave abuses of human rights.STOP VIOLENCEAGAINST WOMENOur vision is for every person to enjoy all the rights enshrined in the UniversalDeclaration of Human Rights and other international human rights standards.We are independent of any government, political ideology, economic interest orreligion – funded mainly by our membership and public donations.Amnesty International PublicationsFirst published in 2010 byAmnesty International PublicationsInternational SecretariatPeter Benenson House1 Easton StreetLondon WC1X 0DWUnited Kingdomwww.amnesty.org© Amnesty International Publications 2010Index: ACT 77/002/2010Original language: EnglishPrinted by Amnesty International,International Secretariat, United KingdomAll rights reserved. This publication iscopyright, but may be reproduced byany method without fee for advocacy,campaigning and teaching purposes,but not for resale. The copyright holdersrequest that all such use be registeredwith them for impact assessmentpurposes. For copying in any othercircumstances, or for re-use in otherpublications, or for translation oradaptation, prior written permissionmust be obtained from the publishers,and a fee may be payable.

Amnesty InternationalInternational SecretariatPeter Benenson House1 Easton StreetLondon WC1X 0DWUnited Kingdomwww.amnesty.orgIndex: ACT 77/002/2010March 2010STOP VIOLENCEAGAINST WOMEN