Towards a Legal Reform of Rape Laws Under International Human Rights Law

ARTICLE

TOWARDS A LEGAL REFORM OF RAPE LAWS

UNDER INTERNATIONAL HUMAN RIGHTS

LAW

MARI

´A ALEJANDRA GÓMEZ DUQUE*

ABSTRACT

This Article studies the history and evolution of rape laws around the world and

recommends prospective legal reforms to adequately punish sexual violence.

Currently, there is a high rate of impunity in rape and sexual violence trials. This

Article analyzes how current laws around the world hinder rape survivors’ access

to justice, due to cultural beliefs and gender stereotypes inherited from ancient

laws that permitted rape. This Article also proposes ways in which international

human rights law can serve as a legal tool to reform these def‌icient laws.

This study proposes two original recommendations. The f‌irst recommendation

relates to the framework of International Human Rights Law and proposes that the

international community create an international instrument that contemplates uni-

fying standards on sexual violence and sets the obligations of the states to effec-

tively prevent, prosecute and punish sexual violence. In particular, this instrument

should redef‌ine “consent” and the standards for enacting domestic laws and prose-

cuting rape and sexual violence. The second recommendation proposes the crea-

tion of a new legal presumption under domestic rape laws to credit sexual violence

survivors’ declarations on consent under specif‌ic circumstances.

INTRODUCTION ............................................. 488

I. THE LEGAL HISTORY OF RAPE ............................. 489

A. ANCIENT RAPE LAWS ................................. 489

B. MEDIEVAL AND COLONIAL RAPE LAWS..................... 495

C. MODERN RAPE LAWS ................................. 499

D. THE TWENTIETH CENTURY AND THE RAPE LAW REFORMS . . . . . . . 502

II. INTERNATIONAL HUMAN RIGHTS STANDARDS ON LAWS

CRIMINALIZING SEXUAL VIOLENCE AND RAPE . . . . . . . . . . . . . . . . . 505

A. THE HISTORICAL DEVELOPMENT OF INTERNATIONAL LAW

ADDRESSING GENDER-BASED VIOLENCE .................. 506

* Consultant, Inter-American Commission on Human Rights; LLB, National University of

Colombia; LLM in International Law and Human Rights, Colorado Law School at Boulder. © 2021,

Marı

´a Alejandra Gómez Duque.

487

B. FREE CONSENT AS THE KEY ELEMENT FOR THE LEGAL DEFINITION

OF RAPE .......................................... 508

C. THE PROHIBITION OF DISCRIMINATORY LAWS THAT ALLOW RAPE . . 513

D. THE PROHIBITION OF EVIDENTIARY REQUIREMENTS TO PUNISH RAPE 518

III. CURRENT CHALLENGES OF RAPE LAWS WORLDWIDE ............ 520

A. THE LACK OF A CONSENT-BASED DEFINITION OF RAPE LAWS

AROUND THE WORLD ................................. 520

B. LAWS THAT ALLOW SOME FORMS OF RAPE .................. 525

IV. RECOMMENDATIONS FOR LEGAL REFORMS AND ADVANCING HUMAN

RIGHTS STANDARDS ..................................... 529

INTRODUCTION

Sexual violence is a global issue, as more than one in three women (35%) have

suffered physical and/or sexual violence throughout their lives.

1

Among children

there is an estimated sexual abuse rate of 20% in girls and 10% in boys world-

wide.

2

Sexual violence disproportionately affects women, and it is perpetuated on

the basis of stereotypical gender roles, which permeate all aspects of society.

3

Despite the pervasiveness of sexual violence, criminal proceedings often result

in impunity.

4

This Article contends that impunity in sexual violence cases arises,

in part, from inadequate criminal laws, which are the result of older laws that

regarded women as property and accepted rape. Nowadays, many judicial sys-

tems around the world struggle with an inadequate proscription of rape, which

ref‌lects patriarchal beliefs deeply rooted in ancient and medieval laws.

This Article aims to address the ineffectiveness of rape laws worldwide, and it

aims to address how International Human Rights Law (hereinafter “IHRL”)—

particularly the Convention on Elimination of All Forms of Discrimination

against Women—can offer a solution for prospective reforms. IHRL obligates

nations to prosecute serious human rights violations, such as rape and sexual vio-

lence, and offer effective remedies for such crimes.

Since the lack of justice in sexual violence cases is a consequence of previous legal

frameworks and social beliefs, states should undertake legal reforms to remedy impu-

nity in crimes of sexual violence. This Article makes some suggestions for how

domestic legislation of countries around the world should use international standards

1. World Health Organization, Injuries and Violence: The Facts 2014 11 (2014), https://apps.who.

int/iris/bitstream/handle/10665/149798/9789241508018_eng.pdf?sequence=1.

2. Id. at 11.

3. General Recommendation 19: Violence Against Women, U.N. Committee on the Elimination of

Discrimination Against Women, U.N. Doc. CEDAW/C/1992/L1/Add15, ¶ 6, 11 (1992) [hereinafter

General Recommendation 19].

4. See Patricia Tjaden & Nancy Thoennes, Extent, Nature, and Consequences of Rape Victimization:

Findings from the National Violence against Women Survey (2006), https://www.ojp.gov/pdff‌iles1/nij/

210346.pdf. According to this survey, in the United States, only 37% of reported rapes of women

resulted in a criminal prosecution, with a 46.2% rate of convictions. This means that approximately 17%

of these reported rapes result in convictions.

488 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. XXII:487

as a guide for legal reforms, and it also introduces a novel recommendation to pre-

sume the veracity of a survivor’s testimony in specif‌ic situations.

This Article is divided into the following Sections: (I) the legal history of rape, which

will examine the evolution of rape laws worldwide to understand current challenges in

legislation on sexual violence around the world; (II) International Human Rights stand-

ards regarding laws on sexual violence, which will set out the criteria under IHRL for a

legal reform to rape laws; (III) current challenges in rape laws worldwide, which will

analyze the violation of those standards across the world regions and continents; and

f‌inally, (IV) recommendations for legal reforms on sexual violence.

I. THE LEGAL HISTORY OF RAPE

This Section studies the evolution of laws in nations across the globe as both a

representation of the cultural visions and beliefs on the crime of rape and the role

the law plays in the widespread impunity of the crime. The focus of this Section

is on Western legal traditions, examining both Common Law in the U.K. and

Civil Law in continental Europe, because many countries around the world have

adopted these legal systems as a consequence of colonization. Indeed, European

colonization played a major role in expanding medieval rape laws to the

Americas, Africa, and Asia. Some rape laws from different non-Western legal

traditions are also studied below, specif‌ically from certain Asian, Latin American

and Middle Eastern countries.

This Section is divided into four sub-sections: (I) ancient rape laws, beginning

with the customary law of bride abduction to the fall of the Roman Empire;

(II) medieval and colonial rape laws, mainly in Europe but also in the Eastern

Roman Empire and in the early Chinese Empire; (III) modern rape laws; (IV) and

the twentieth century and the rape law reforms.

A. ANCIENT RAPE LAWS

This Section focuses on some of the f‌irst customary and written laws in the

world that addressed—and permitted—rape. Four main elements are found

throughout the historical review of rape laws that remain embedded in current

legislations and legal practice worldwide. The f‌irst element relates to the legal

status of women; rape was permitted under many circumstances because women

were the legal property of either their father or their husband, or because they

served as a means of reproduction in their communities. The second element was

the idea of virginity—or ‘honor’—as the only societal value that women held,

leading to the requirement of chastity to prosecute rape. The third element refers

to equating a woman’s virginity as the ‘honor’ of her family, which has justif‌ied

preposterous historical practices, such as the marginalization of raped women

and forced marriage between a survivor and her rapist. Current ‘rape-marriage’

laws are a product of these practices. Finally, the fourth element was the lack of

recognition of male rape, which was a consequence of viewing rape as a crime

against the property of men.

2021] TOWARDS A LEGAL REFORM OF RAPE LAWS 489