How the legal system is failing to protect women and girls from sexual violence

A young survivor of sexual and gender-based violence and her mother in the Democratic Republic of Congo. Photo by: Morgana Wingard / USAID / CC BY-NC

The legal system is failing to protect women and girls from sexual violence in many developing countries — but also in parts of Europe, in some cases enabling rape, according to a new report by human rights organization Equality Now.

At the same time, gender experts told Devex that ensuring victims’ access to justice goes well beyond reforming inadequate laws and also requires institutional and cultural change in both the developed and the developing world.

The Rape Law Report, which looked at laws in 82 jurisdictions from 2014 and 2015, found that a perpetrator of rape or sexual assault can escape punishment by marrying the victim in nine countries; that rape laws are only applicable in many jurisdictions if the victim can demonstrate that they were unable to resist the attack; and that marital rape is expressly legal in at least 10 countries — in four of these, even when the wife is underage.

While such laws are more likely to exist in developing countries and parts of the Middle East, a number of European countries also have statutes that restrict access to justice for victims of sexual violence. For example, in Belgium, Croatia and Romania, the perpetrator of a sexual offense can escape punishment by reaching a “settlement” — financial or otherwise — with the victim or their family; in Serbia, the case can be dismissed if the victim forgives the perpetrator; and in Greece, marriage appears to be a legal remedy for “seduction” of a child, at which point criminal prosecution lapses, the report found, although the details of the law were not clear.

Worldwide, one in 10 girls have experienced rape or sexual assault by the age of 20, and one in three women experience sexual or domestic violence during their lifetime, according to U.N. figures. A large number of these victims will never report their abuse; and of those who do, the report highlights that many will be denied justice due to entrenched biases within judicial systems and the institutions that serve them.

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“The law in too many places does not protect women and girls from rape or sexual assault, nor does it protect them if they have been violated in terms of accessing justice and getting remedy, particularly in those countries where the law seems to promote violence through... allow[ing] rapists to marry their victims and not be punished,” said Antonia Kirkland, legal advisor at Equality Now. She added that the report’s findings represent a sample of 82 jurisdictions, so they are not exhaustive.

Equality Now is petitioning governments to reform their laws and institutions to better protect women and girls and ensure access to justice, Kirkland said.  

However, legal reforms are only part of the solution. Combatting violence against women and girls requires a broader effort, including reforming public policies and education, according to U.N. studies.

Devex spoke to gender experts to find out what the development community is doing to respond to the system’s failures and improve women’s access to justice when they are victims of sexual violence.

Tackling legal and institutional discrimination

Women in developing countries suffer from “acute discrimination,” which exists across three major levels: legal discrimination; discrimination by law enforcement institutions and courts; and cultural discrimination, according to Alejandro Alvarez, team leader for the U.N. Development Programme’s work on rule of law, justice, security and human rights.  

UNDP works to combat all three levels of discrimination and has had notable success in some areas, Alvarez said. For example, it supported Tunisia in changing legislation on gender-based violence and promoting women’s inclusion in elected positions.

In reforming justice institutions, the agency has focused on post-conflict countries where GBV has been used as a “weapon of war,” he said. In Sierra Leone, for example, UNDP worked with police, prosecutors, the court system and women’s associations to dramatically increase conviction rates for GBV crimes. This was done by establishing Saturday courts to clear the backlog of cases; encouraging more women and girls to report crimes; raising awareness of GBV in communities; and making prosecution of GBV a regular part of court business.

“It is important to make courts reactive to these cases and we’ve come very far from the past where these institutions didn’t deliver for women,” Alvarez said.

Funding to improve women’s access to justice comes from three major sources, according to Beatrice Duncan, policy adviser at U.N. Women. These are the Organisation for Economic Co-operation and Development, the World Bank and U.N. agencies.

The most recent funding data from 2009 shows that OECD donors contributed $4.2 billion to justice programs, of which 20 percent went to programs focused on gender equality as a primary or secondary aim, she said. The U.S. and E.U. were the biggest donors; while Iraq, Afghanistan, Mexico, the Occupied Palestinian Territories and Pakistan were the largest recipients.

Tackling cultural norms

Changing cultural attitudes toward sexual violence against women is “the most difficult nut to crack,” Alvarez said, because of prevailing patriarchal attitudes in many places, which can lead men to believe “that they are entitled to beat a woman or to kill a woman, and that it is not as bad as doing the same thing to a fellow man,” he said.

Cultural challenges also remain an obstacle in Europe, according to Irene Rosales, policy and campaigns officer at the European Women's Lobby, an umbrella group of women’s associations. The 2016 Eurobarometer survey revealed that more than one in five European citizens believe that women often make up or exaggerate claims of abuse or rape, and that more than one-quarter think sexual intercourse without consent can be justifiable. This means that very few victims of sexual violence in Europe — about 5 to 15 percent — report their abuse.

“We need to also do more work with men because men are the perpetrators; we have to find better role models to explain this to their fellow men.”

— Alejandro Alvarez, team leader, U.N. Development Programme

The first step is to ensure that women are better represented in the police and the court system, said Alvarez, especially in the developing world where representation is low. “We are working under the assumption that having more women opens spaces for these cases to be heard,” he said. For example, in Somaliland, UNDP has been offering scholarships to women attending law school.

However, such efforts are barely “scratching the surface,” he admitted, warning that these cultural attitudes are likely to be passed down to the next generation. “[If] we don’t make that cultural shift, the results will be encouraging but not sustainable enough to make the next generation free of violence,” he said.

Part of making that shift will involve working with men — a crucial but often overlooked part of the solution, according to Alvarez. Development work designed to reduce GBV tends to focus on empowering women — for example, by creating women’s associations.

This is important but misses a crucial piece of the puzzle, he said. “We need to also do more work with men because men are the perpetrators; we have to find better role models to explain this to their fellow men.”

Paying attention to laws beyond GBV

Duncan emphasized that it is not simply about reforming laws and policies relating directly to gender-based violence: there are many discriminatory laws and practices that have a major impact on women’s safety, such as those relating to nationality and property rights. For example, more than 60 countries deny women equal rights with men to acquire, change or retain their nationality, or confer their nationality on their non-national spouse. This can have huge implications for migrant women in particular, Duncan said.

“Statelessness can arise when a woman’s experience of conflict intersects with discrimination with regard to nationality rights,” she said. “Stateless women and girls face heightened risks of abuse in times of conflict because they do not enjoy the protection that flows from citizenship, including consular assistance, access to social services and participation in political processes.”

Rosales also pointed to laws that limit women’s sexual and reproductive rights — again, a challenge in both developed and developing regions.

Resistance to these rights, a lack of understanding, and funding shortages mean that Europe, the U.S. and developing countries are all experiencing challenges in implementation, recognition and funding, Rosales said. This makes it difficult to uphold international conventions such as the Maputo Protocol, which is designed to extend women’s reproductive health rights and end female genital mutilation and has been signed by 49 out of 54 members of the African Union.

Duncan emphasized that legal progress has been made: 119 countries now have laws on domestic violence and 125 on sexual harassment; and women have equal rights to own property in 115 countries and equal inheritance rights in 93 countries.

But the continued existence of discriminatory laws poses a serious and substantive threat to equality and access to justice, she said.

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About the author

  • Sophie Edwards

    Sophie Edwards is a Reporter for Devex based in London covering global development news including global education, water and sanitation, innovative financing, the environment along with other topics. She has previously worked for NGOs, the World Bank and spent a number of years as a journalist for a regional newspaper in the U.K. She has an MA from the Institute of Development Studies and a BA from Cambridge University.