Thematic Reports -138th session, UN Human Rights Committee
To advocate for inclusive and equal policies aimed at eliminating Sexual and Gender-Based Violence globally, SAHR submitted written contributions for the States parties under review for the 138th session of the Human Rights Committee.
These reports highlight key legal inequalities that women face in Brazil, Colombia, Lesotho, Palestine, Somalia, and Uganda in relation to violence against women, along with suggested questions to be posed to the State party. Our analysis sets out a comparison between the UN Model Rape Law and the State legislative framework.
The aim of the submission is to aid and encourage the UN Human Rights Committee, the State and stakeholders, to review national criminal laws and systems and practice with international standards on rape and sexual violence, particularly the UN Model Law on Rape that updates best practices based on the lived realities and recommendations of civil society and survivors.
Colombia still lacks critical judicial and execution capabilities to implement the Covenant. Police and local courts may lack appropriate gender-based approach and thus fail to provide effective remedy to victims in armed-conflict related abuses. Another obstacle that victims of gender-based violence face in obtaining access to justice is the requirement to provide evidence on top of their testimonies.
Furthermore, while reconciliation between the victim and the perpetrator is not allowed as part of a legal response, in practice public authorities oftentimes encourage or even pressure victims to reconcile, especially in cases of sexual violence.
Forced, and child marriages remain an ongoing problem in Lesotho and noted that its Parliament dissolved in July before it could consider proposed amendments to the Child Protection and Welfare Act of 2011 that would criminalize child marriages and introduce stiff penalties.
Rape is criminalized in Lesotho, including spousal rape. The minimum sentence of rape convictions is 10 years. According to the Second Periodic Report, Sexual Offences Act 2003 recognizes ‘rape’ within a marriage setting. However, the commentary on “consent” to sexual act in the Penal Code Act of Lesotho provides a subjective mistake of act defence: the accused must know that the victim does not consent or at least must be reckless as to the possibility that he or she does not consent, even if a reasonable person would have known or would have ignored this possibility.
Palestine has various legislative gaps that needed to be filled, such as: Marital rape is not prohibited, rape is punishable by community sentencing and Palestinian law does not explicitly include all types of penetration of a sexual nature (vaginal, anal, or oral). And Palestinian women still frequently experience violence of all forms.
According to the Palestine Central Bureau of Statistics, there were 399 cases of rape and sexual assault reported in Palestine in 2020. Studies from 2022 have also found that 11.8% of women in Palestine are exposed to sexual violence, 58.6% exposed to psychological violence, 23.5% to physical violence, and 54.8% to social violence.
Ugandan legislation does not address spousal rape. This is inconsistent with the Framework for Model Legislation on Rape which states that criminal provisions on rape should apply to rape between spouses and intimate partners, whether current or former.
In Somalia, rape is primarily defined in the Somali Penal Code by the use of violence or threats against the victim, requiring the demonstration of either force by the defendant or “extreme resistance” from the victim. This narrow definition overlooks the complex power dynamics present in gender based and sexual violence cases. The Somali Penal Code’s reliance on the extreme resistance standard excludes victims of rape due to coercion or socioeconomic influence from seeking justice in courts.
Also, during procedures before the Somali courts, women face challenges due to the corroborative evidence requirement, which demands additional evidence besides a woman’s testimony to support a rape claim. This requirement is applied by Somali judges despite not being explicitly stipulated in the Somali Code of Criminal Procedure. Cases related to sexual and gender-based violence are often withdrawn from official courts and settled through traditional dispute resolution mechanisms, causing the victims’ access to justice to be further limited and the victims’ rights to be further violated as compensation is provided to male relatives of the victim or victims are requested to marry the perpetrator.
In the Criminal Code, Article 213 (introduced by Law No. 12,015/2009), there are many loopholes related to the definition of rape and its relationship to consent. For example, Article 213 does not mention the concept of consent and does not expressly state that a lack of consent is presumed where a threat (expressed or implied) of present or future physical or non-physical harm to a third person. Also, a presumed lack of consent in Article 217-A is limited only to illness or mental deficiency. This does not explicitly cover circumstances such as intoxication, or undue influence through familial relations.
Our Key takeaway
There is a global commitment to ending violence against women and girls in the public and private spheres in the context of the 2030 Agenda for Sustainable Development. More work has to be done to diffuse and socialise the Model Law on Rape. We are keen to advocate more strongly for the use of this model.
SAHR leads and facilitates joint advocacy with other women and diverse leaders in policy, to shape international standards and norms on SGBV and access to justice.
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