He Said, She Said: Assessing the Post-colonial Legacy on Somalia's Rape Laws

• Publication year: 2023

He Said, She Said: Assessing the Post-Colonial Legacy on Somalia's Rape Laws

Natalia Id. Nyczak

HE SAID, SHE SAID: ASSESSING THE POST-COLONIAL LEGACY ON SOMALIA'S RAPE LAWS

Natalia Id. Nyczak^*

Abstract

Most jurisdictions have adopted changes in legislation within the past fifty years that reflect the evolution and advancement of women's legal rights. Somalia, however, has not undergone a significant change in its legal regime since the 1960s. Somalia's penal code and criminal procedure code are based on laws that were written in the late 1800s to early 1900s. When it comes to rape, judges harbor the beliefs that women must "put up a fight" against their assailants and doubt the inherent trustworthiness of women. These prevailing gender myths prevent women from accessing justice and infringe on their rights to equality and non-discrimination in the courtroom. Many of these gender myths are supported by outdated colonial laws and are a result of Italy and Great Britain's legal legacies in Somalia. This article is the first of its kind to examine colonial influences on gender myths in the Somali courtroom. It commences with an introduction into Somalia's legal past and limitations in case law that are attributable to its longstanding civil war and frail infrastructure. Part II continues with a brief background into international human rights standards for victims of gender-based violence—the principles that set the standard against which the treatment of women under laws should be compared. Part III highlights how Somali cultural norms have contributed to preconceptions about women that are reflected in the courtroom. Part IV and V shed light on how fascist-era Italy and British India not only defined Somali criminal laws but also shaped the current Somali legal system's treatment of women as unreliable victims and witnesses. Both the resistance standard and cautionary rules like the corroboration requirement and immoral character provision are legacies of Somalia's colonial past. These rules hinder a Somali woman's access to justice because they are only applied in rape cases where the victim is a female. Moreover, they require a higher evidentiary standard than

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any other crime. In conclusion, this article draws attention to the dangers of legal stagnation and the importance of legal reform.

Table of Contents

Introduction.......................................................................................... 169

I. Somalia's Legal Pluralism Regime and Limitations in Case Law...................................................................................... 174

A. Colonialism Produced Legal Pluralism in Somalia ................. 174
B. Methodology and Limitations in Legal Data Collection ........... 176

1. Lack of Resources ............................................................. 178
2. Lack of Trust in the Formal Justice System........................ 178
3. Withdrawal of Cases and Preference to Settle Disputes with Elders ............................................................................... 178
4. Limited Reporting of Domestic Violence Cases in the Formal Justice Sector.................................................................... 179
5. Outdated Laws.................................................................. 179
6. Limited Legal Literature on Somalia................................. 179

II. Judicial Obligations and Gender Stereotyping..................... 180

A. The Right of Equality and Non-Discrimination for Women ...... 181
B. Gender Judicial Bias: An Overview ........................................ 182
C. Gender Stereotyping in Somalia.............................................. 183

1. Victim Blaming: A Chaste Victim Fights Her Attacker......... 183
2. Misconceptions About Rape Victims: Women Have a Propensity to Lie ................................................................................ 185

III. Women in Somali Society.......................................................... 187
IV. Fascist Italy and Somalia's Rape Laws .................................. 189

A. The Criminalization of Rape Under the Rocco Code and Somali Penal Code............................................................................. 191
B. The Problem with the "Resistance Standard" in Somali Rape Law ............................................................................... 193

1. Current Somali Rape Law Excludes Non-Violent Rape Cases from Criminal Courts........................................................ 193
2. "Extreme Resistance Standard" Only Criminalizes Certain Type of Violent Rapes ....................................................... 195
3. Lack of Consent in Rape Law Overlooks Women's Autonomy and Volition ...................................................................... 195

a. Consent Should be Measured Through Clear and Unambiguous Words or Actions ................................. 196
b. Children Cannot Give Consent ................................... 198

V. Victorian England and Somalia's Evidence Law.................. 199

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A. Victorian-era Legal Theories on Rape Law ............................. 200
B. The Corroborative Evidence Requirement in Somalia ............. 203
C. Obstacles in Meeting the Corroborative Evidence Requirement ........................................................................... 204

1. Moving Away from Corroboration .................................... 205

D. Cautionary Rules and Character Evidence in Somali Rape Cases............................................................................. 207

1. The Immoral Character Rule: Impeaching the Victim ........ 207
2. Medical Report as an "Objective Tool" to Assess Sexual Habitation ........................................................................ 210

a. A Medical Exam is Not a Forensic Medical Exam ....... 211
b. No Scientific Way to Test Sexual History .................... 212
c. The Importance of Understanding Female Anatomy ... 213

Conclusion.............................................................................................214

Introduction

In 2020, a criminal court in Mogadishu acquitted a suspected rape offender in part by concluding the victim should have done a better job of defending herself.¹ The court was looking for proof of resistance, such as bruises on the victim's or defendant's body.² Because there was no forensic evidence and the defendant denied the charge, the court commented that the victim must have consented to the sexual encounter.³

Gender-based violence (GBV) is a gross and widespread human rights violation, but it continues to be downplayed, overlooked, and tolerated due to a global culture of silence and impunity. GBV refers to harmful acts directed at an individual based on their gender.⁴ The types of GBV crimes include rape, sexual assault, physical assault, forced marriage, denial of resources, opportunities or services, psychological and emotional abuse.⁵ The terms "gender-based violence" and "sexual and gender-based violence" (SGBV) are used

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interchangeably, but SGBV has a specific sexual component.⁶ Men and boys are also affected by SGBV, but due to a weaker socio-economic status in society, women and girls are more vulnerable and are more targeted.⁷ This is especially the case in countries that are afflicted by conflict or political and economic instability,⁸ like Somalia. The primary focus of this paper will be on gender-based violence against women and girls (GBVAW) in Somalia, although cases that involve male victims will be used in aggregate data.

During the onset of the COVID-19 pandemic, the Federal Attorney General in Mogadishu saw an exceptionally large spike in reported SGBV cases. The International Development Law Organization reported that case files for the SGBV Unit quadrupled in April 2020 following the implementation of lockdown measures to curb the spread of the coronavirus.⁹ Additionally, two 2021 United Nations (U.N.) reports reported an "alarming" and "appalling" eighty percent increase in sexual violence in Somalia.¹⁰ The reports linked sexual violence to the prevailing conditions of insecurity in Somalia, including the COVID-19 pandemic.¹¹ This was marked by political tensions in the run-up to national elections, inter-communal clashes related to land-based disputes, and a surge in attacks by the extremist militant group Al-Shabaab.¹²

Additionally, a culture of impunity for rape cases fuels national anger. One case in particular has sparked attention—the case of a twelve-year-old girl who

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was abducted from a marketplace, raped, mutilated, and left for dead.¹³ Two of the three men were executed by firing squad in February 2020, while the third man was released after paying seventy-five camels to the victim's family as compensation for the victim's rape and murder.¹⁴ In response, Somali women's rights activists expressed anger and called on Somali authorities to enforce formal justice mechanisms that address sexual violence.¹⁵ When GBVAW crimes are settled out of court, it is a major violation of the victim's rights.

However, victims' rights within the formal justice sector face similar obstacles. The treatment of rape in Somali courtrooms is coming under scrutiny as many women who have claimed to have been sexually assaulted are unable to bring sufficient proof of their assault or resistance. In some cases, the court finds that the woman participated in zina (consensual sex outside of marriage) simply because there is no proof of coercion (no bruises on the body or no eyewitnesses, for instance).¹⁶ There is no consideration as to the woman's own sexual volition, or put another way, there is no analysis or consideration given to women's ability to consent.

One of the reasons why women have a difficult time providing sufficient proof is due to the way the law is written. The Somali Penal Code is based on the 1930s-era Italian Penal Code,¹⁷ and the...