Sexual Violence Laws in Southern Africa
By John Inglis
Introduction
Not a day goes by in Southern Africa without a story in the news of another case of rape. It is a social plague that threatens to undermine the security of all women in the region. Nowhere are women safe, not in their schools, not in the streets, and especially not in their own homes. Whereas in the past sexual violence represented a grave threat to one’s personal integrity, today, with the advent of HIV/AIDS, rape is essentially a death sentence. In countries such as Botswana and Swaziland, the prevalence rate of HIV/AIDS is now greater than a third of the population between the ages of 15-49.[1] Women are particularly susceptible to the HIV/AIDS virus, and the risk of its transmission is increased as a consequence of rape due to the violent nature of the sexual intercourse, the physical injury to the woman’s genitalia, and the heightened risk from micro-lesions due to female physiology.[2]
Because of the potentially fatal consequences of sexual violence, the serious situation can no longer be ignored or simply tolerated. Fortunately, many countries in the region have come to this realization already, and have taken measures, or will soon be, to enact legislation that prohibits rape under a broader set of circumstances or imposes stricter penalties for those convicted of crimes of sexual violence. The first part of this paper consists of a survey of the sexual violence laws in six Southern African countries.[3] It focuses primarily on legislation prohibiting rape, but also discusses the customary laws and practices surrounding the crime. In addition, where information is available, the survey briefly outlines the state of the law for other sexually related offences such as domestic violence and trafficking in persons. The paper will then go on to discuss several relevant international instruments which if implemented have the potential to provide a legal framework for protecting women against sexual violence.
The second half of the paper turns its attention to an in-depth analysis of some of the customary practices and procedures in the region as relates to sexual violence. Specifically, it looks at those institutional barriers which continue to prevent women in the region from obtaining effective remedies in rape cases. These barriers include requirements for medical examinations and an ineffective legal infrastructure, including both law enforcement officials and the judiciary.
1. Sexual Violence Legislation Survey by Country
1.1Botswana
Rape is a widespread and prevalent problem in Botswana, with 1386 cases of rape reported in 2004.[4] The Penal Code (Amendment) Act provides three tiers of punishment depending on the HIV status of the convicted rapist. Once a rapist is found guilty of the offence by the court, the law provides that they must be tested for HIV. Section 142 of the Penal Code (Amendment) Act states that if the rapist tests HIV-negative then the minimum sentence handed down will be 10 years, although it could be higher if serious violence was committed during the rape; if they test HIV-positive but did not have prior knowledge about their HIV status at the time of the rape, then the minimum sentence will be 15 years; if the rapist tests HIV-positive and they had knowledge of their HIV status at the time of the rape then the minimum sentence will be for 20 years.[5] Recent court rulings have held this discriminatory treatment provided for by the law to be constitutional, provided “the penal provision is applied in a manner that achieves its legislative objectives, namely to deter HIV-positive persons from committing rape, and to limit the spread of the disease.”[6]
The 1998 Amendment of the Penal Law also makes it possible for both sexes to commit rape and/or be raped.[7] However, despite this relatively progressive approach to rape offenses the law does not address the issue of marital rape, although it is implicitly suggested that there cannot be rape in marriage.[8] As an example, in 2003 a marital rape case was dismissed from the courts on the grounds that “the marriage contract implies consent, making rape impossible unless a husband and wife were legally separated.”[9]
Domestic violence against women remains a serious problem in Botswana, where it is estimated that 60% of women have been victims of violence at some time in their lives.[10] The law does not specifically prohibit domestic violence against women, and in fact, under customary law and in common rural practice, men are entitled to “chastise” their wives.[11]
Lastly, the Public Services Act (1999) criminalizes and provides remedies in cases of sexual harassment in the public services.[12] There does not appear to be a corresponding provision relating to the public in general.
1.2Ethiopia
Ethiopia has begun to make some minor improvements to its sexual offenses law, although for the most part its laws remain among the most archaic in the region.It was estimated that more than 1,000 rapes occurred in Addis Ababa alone in 2004.[13] In 1999-2000, the most recent figures available, it was estimated that only 168 convictions for rape were recorded nationwide.[14] Under the Penal Code convicted rapists can be sentenced to a maximum 10-year confinement, although the penalty can be increased up to 15 years in cases where the rape involved a child under 15, an institutionalized woman under the care of the offender, or multiple perpetrators.[15] In practice the majority of those convicted remained in jail between 7 to 10 years.[16]
Most alarming in Ethiopian law were provisions in the Penal Code which states that by marrying the victim following a rape, the offender would be exempt from the criminal responsibility of the crime.[17] This law facilitated the common practice of “wife acquisition,” whereby women are abducted, physically and sexually assaulted, and then coerced into marrying their abductor in order to relieve him of his criminal responsibility. It is reported that in the southern regions of Ethiopia, nearly 80% of marriages are a result of such abductions.[18] The law provides a penalty of 3-years imprisonment for “carrying off a woman by violence, or after having obtained her consent to abduction, by intimidation or violence, [trickery], or deceit,”[19] although again, by marrying the victim the offender is released from his criminal liability. A 2004 reform to the Penal Code (which is not yet in force) removed the marital exemption for abduction and rape, as well as introduced stiffer penalties for rape in general.[20] However, as many women have little knowledge of their rights under the law,[21] it remains to be seen how quickly this widespread practice will change. There are no provisions recognizing marital rape as a crime.[22]
In addition to sexual violence, domestic violence remains a common practice across the country, although there is no specific law dealing with the latter. However, on a promising note, a court whose mandate is to deal with cases of sexual abuse, the Federal First Instance Court’s Criminal Branch, was established in October 2004. Using the criminal provisions under the Penal Law, the court had already delivered six guilty verdicts by year’s end, ranging from between 4 to 20 years imprisonment.[23]
The Constitution specifically prohibits “laws, customs and practices that oppress women or cause bodily or mental harm….”[24] The law does not specifically prohibit the practice of female genital mutilation (FGM). The most recent survey of traditional practices indicated that approximately three out of every four women in Ethiopia has undergone FGM.[25] However, the government has been supportive in trying to discourage this practice by creating the National Committee on Traditional Practices of Ethiopia and through education in the schools with the objective of eliminating this customary practice.
Lastly, while there are laws prohibiting trafficking in persons, reports seem to suggest that Ethiopia is regarded as a country of origin for trafficked persons. Despite penalties, including fines and up to 5 years in prison, efforts by the government to enforce the law have been to no effect, having had no successful prosecutions of traffickers in persons in 2004.[26]
1.3Kenya
Kenya has taken significant steps in recent years to improve its sexual and domestic violence legislation. The 2001 Criminal Amendment Act created stiffer penalties for rape and does away with the need to obtain the Attorney General’s consent to prosecute sexual offences.[27] Under the new law the act of rape is classified under Chapter XV of the Penal Code, “Offenses against Morality,” and is separated into three categories: rape, defilement and incest, with punishment being handed out accordingly. Sections 140 and 141 provide a maximum sentence of life imprisonment with hard labour and corporal punishment for those convicted of rape, as well as for those convicted of attempted rape.[28] While no minimum sentence is mentioned by the law, in a ‘historic’ court ruling in 2003 a man was sentenced to life in prison for rape, demonstrating that the maximum punishments under the new law are in fact being handed out.[29]
Section 145 of the Penal Code[30] provides for the offence of defilement. Defilement is defined as the unlawful act of having sexual intercourse with a girl under the age of 14. The punishment for defilement is up to 14 years in prison together with corporal punishment, while the punishment for attempted defilement is 5 years imprisonment, with or without corporal punishment. Section 145 provides a defence if the offender had reasonable cause to believe, and did in fact believe, that the girl was over 14, or that she is his wife.
On a positive note, a recent Court of Appeal decision[31] held that the requirement that a conviction of rape be based on independent corroborated evidence is unconstitutional, and went on to say that “the time has now come to correct what we believe is a position which the courts have hitherto taken without a proper basis….”[32] In other words courts no longer need a second witness to testify in addition to the victim in order to convict the accused.
There is no law specifically prohibiting spousal rape as the consent to sexual intercourse is presumed in law by the act of marriage.[33] Despite efforts by the Kenyan government to curtail the offence, rape continues to be widespread throughout Kenyan society. According to one report there were 1,652 cases of reported rape between January and July 2004, which projected an annual total of over 2,600 cases.[34] However, it is generally believed that this represents a significant underreporting by rape victims, perhaps by as much as 60%.[35]
The government has officially banned FGM and enforces this policy in government controlled hospitals and clinic. However, the practice remains widespread, with up to 50% of women across the country, and as high as 80-90% in some areas, having undergone the procedure.[36] No laws specifically prohibit trafficking in persons, although there are laws against kidnapping and abduction that can be used to achieve the same objectives.[37]
1.4 Lesotho
Lesotho passed the new Sexual Offenses Act in 2003 in response to widespread rape and the AIDS crisis.[38] The new Act increases the penalties faced by convicted rapists by replacing the previously lenient practice of awarding suspended sentences or a few months in jail with a harsher minimum sentence of 10 years in prison.[39]
In addition, while Lesotho has no laws referring specifically to HIV/AIDS, the new Act allows courts to take into account the HIV status of the offender when handing down sentences. Under the new law, an accused who, knowing, or having a reasonable suspicion that he has HIV, rapes another, can be sentenced to death.[40] The Act also offers free medical attention to rape victims.
Another important aspect of the Sexual Offenses Act is the widening of the definition of rape to include marital rape by abolishing marriage as a defence for sexual offenses. During the parliamentary debates, MP Mankati Masobeng pointed to the reasons for changing this part of the law: “It is important to criminalize marital rape, as culture and the family’s handling of marital disputes put women at a disadvantage. … [D]ue to her insecure position in her marital family, it might be difficult to report a problem to them. The criminal law will therefore help and protect her because she will be in a neutral and different forum.”[41]
In a final positive measure, under the new Act a new unit has been set up within the Lesotho police force specially designed to take complaints of violence against women and children.[42]
It is estimated that domestic violence against women occurs frequently, and is believed to be widespread.[43] Fortunately, it is increasingly considered to be socially unacceptable behavior.[44] The common law of Lesotho prohibits wife beating by deeming it a criminal offence of assault, although in practice very few cases are brought to trial. Instead, in Basotho tradition a wife may return to her maiden home in cases where she is physically abused by her husband.[45] Lastly, while the law does not prohibit trafficking in persons, there were no reports that any persons were trafficked to, from, or within the country.[46]
1.5 Malawi
The law in Malawi makes rape an offence punishable by death. Officials have begun to take allegations of rape serious and regularly investigate cases of rape and sexual assault, while courts have continued to impose heavier penalties on those convicted of rape,[47] including the death sentence in the most egregious of cases.[48]
Recent changes to the law acknowledge spousal rape as a criminal offence, and grant married women the full protection of the law in cases where they are raped by their husbands.[49] Under the new law forced sex within marriage is made a criminal offence punishable by up to seven years hard labour in jail.[50] This change addresses the existence of weak laws that had previously plagued up to 75% of Malawian wives whom it is estimated had been forced to have sex with their husbands. The next step will be to address the strongly and broadly held cultural beliefs that rape, as defined by the penal code, does not apply to married couples. As an example of this view, one judge has stated recently that “by entering into marriage each spouse is taken to have consented to sexual intercourse with the other spouse during the existence of his or her marriage,” and that criminalizing forced sex between spouses would be inconsistent with the continued existence of marriage.[51]
Domestic violence is reported to be a common occurrence and widespread across the country.[52] There are conflicting reports about whether or not any shelters exist for women who are victims of physical or sexual abuse. The UN Special Rapporteur notes in her report that in April 2001 an NGO established the country’s first shelter.[53] However, by 2004 UN Task Force members were unable to identify a single shelter or house of safety in the country.[54] If it is indeed the case that there are no more shelters available then it is definitely a step backwards for the country.
The US Human Rights Report notes that the law does not specifically prohibit FGM, and there were anecdotal reports of its practice by a few ethnic groups.[55] Lastly, in 2001 the national assembly introduced an anti-trafficking bill designed to stiffen penalties for anyone convicted of promoting, managing, or transporting any person into or out of the country with the purpose of promoting prostitution.[56] The bill has not yet been passed, but nor has it been withdrawn despite the elapsed time. Rather it has been delayed so that members of Parliament could use the additional time to fully understand and study the issue.[57]
1.6 Mozambique
There is a definite lack of concrete information regarding the sexual violence laws and the effects of sexual violence in Mozambique. It is known that the law prohibits rape, although not marital rape.[58] However, I have been unable to ascertain the length and type of punishment provided by law, or the typical length of sentence handed out by judges in practice. As well, there are currently no laws in Mozambique that provide for the needs of the victims of domestic violence.[59] Instead victims of violence must rely on the general criminal laws of rape, battery and assault to prosecute the offender.[60] It has been reported, however, that domestic violence and marital rape are a widespread phenomenon,[61] indicating that this is an area where greater attention should be focused in the future.
1.7 Table: Summary of Sexual Violence Legislation by Country
Sexual Violence Law / Spousal Rape Prohibition / Maximum SentenceFor Rape / Domestic Violence Law / Trafficking in Persons Law / Additional
Comments
Botswana / Penal Code (Amendment) Act (1998) / No / HIV (-): 10 years
HIV (+) (unknown): 15 years
HIV (+) (known): 20 years / No / n/a / Allows for men to “chastise” their wives in public
Ethiopia / Penal Code / No / Victim >15: 10 years
Victim <15: 15 years*
Average sentence: 7-10 / No / Yes / If woman subsequently marries a man who rapes her, he is no longer held criminally responsible for the rape
Kenya / Criminal Amendment Act (2001) / No / Victim >14: up to life imprisonment
Victim <14 (defilement): up to 14 years
Victim <14 (attempted defilement): up to 5 years / n/a / No / Over 50% of women have undergone FGM procedure
Lesotho / Sexual Offences Act (2003) / Yes / 10 years; (if rapist knew, or reasonably ought to have known, has HIV, then death) / No, but common law prohibits spousal abuse / No / New police task force created in 2003 to deal with complaints of violence against women and children
Malawi / Yes
(title unknown) / Yes / Up to death / n/a / Bill pending / Despite a recent change to the law prohibiting spousal rape, up to 75% of wives have been forced to have sex within their marriages
Mozambique / Yes
(title unknown) / No / n/a / No specific law, must rely on general criminal law / n/a / Little is known, this is an area for much need study
* The law also provides up to 15 years where the victim was institutionalized, or multiple offenders committed the offense.