By Fi Gilligan
Compiled from SAHR’s “Gender Justice Wednesdays” series on social media. Follow SAHR on Facebook, Instagram, and LinkedIn.
The difficulty of prosecuting sex crimes is a challenge faced by gender justice advocates around the world. Taking a survivor-centred approach, SAHR strives to address these issues that vary from lack of professional knowledge to deeply-rooted patriarchal norms, so that every survivor accesses equal and inclusive justice.
#1 Lack of Specialized Legal Professionals
The vast majority of prosecutors and judges have little understanding of the nuances of how and why sexual violence occurs, and receive no specialist training on how to speak to and about survivors. Instead, judicial actors appeal to popular myths and stereotypes. Furthermore, they turn a blind eye to evidence of trauma which is critical in the assessment of sentencing but remains highly underutilized. This perpetuates a legal system that is disproportionately stacked against survivors who speak out: survivors whose truths are ignored, ridiculed, questioned, and simply not heard.
This is why a survivor-centred approach is crucial and timely. SAHR’s survivor-centred approach provides cutting-edge training on how trauma affects victims of violence, so that authorities and defense attorneys don’t re-traumatize survivors through insensitive questioning and crimes are diligently prosecuted.
#2 “He Said, She Said”
Another reason why prosecution rates are so low is due to how we, as a society, perceive rape. This includes the difficulty of meeting the burden of proof in what often boils down to a “he said, she said” situation.
Often the only evidence that a crime of sexual violence has even occurred, is the word of the victim. When the alleged perpetrator denies any wrongdoing, it can be extremely difficult to prove beyond reasonable doubt that the accuser is telling the truth and that the defendant is lying. This was forefronted by the #MeToo movement, which saw powerful men quash accusations from multiple victims, with some even suing their accusers for speaking out publicly. It is evident that our society has deep misconceptions about what a typical rape looks like and what a credible allegation sounds like.
#3 Patriarchal Norms
Rape and sexual assault of women, the ultimate form of patriarchal violence, are tried and convicted within a patriarchal system. Quite simply, the justice system has been built by men, for men. It does not serve the needs of survivors, as it was not built with them in mind in the first place.
For example, a recent review by the Crown Prosecution Service (CPS) in the UK, found that men aged 18 to 24 are consistently less likely to be found guilty of rape than older men on trial. This failure to secure convictions reflects a desperate need to educate jurors, who appear particularly reluctant to punish young men at the start of their adult life for serious sexual assault.
SAHR challenges this culture of impunity that results from patriarchal norms. We push for all crimes of sexual and gender-based violence to be diligently investigated and prosecuted.
#4 Narrow Definition of Rape
A narrow legal definition of rape means that perpetrators are not fully prosecuted for their crime of sexual assault and get off with lighter sentences. This kind of definition interprets sexual assault simply in terms of force or coercion, instead of consent. This is demonstrated in the Wolfpack case which was discussed in our interview of Maria Hervas. The 5 men accused in this gang rape case were not sentenced for sexual assault as they did not use violence to coerce the victim; ultimately their act could not technically be categorised as rape under Spanish law.
A consent-based definition avoids potential ambiguities associated with force, as it emphasises the survivor’s experience. SAHR advocates for survivor-centred legislation and practice of law through our ‘Tactical Approaches to Prosecuting Rape’ legal empowerment training. We aim to train human rights lawyers and defenders to strategically litigate cases; to upend discrimination and biases in different legal systems; and to get rid off harmful notions that plague rape prosecutions.
#5 Victim Blaming
Victim-blaming refers to the disturbing tendency to hold the victim, rather than the perpetrator, responsible for an act of sexual assault. Common manifestations include asking the victim what they were wearing; whether they had consumed alcohol; or, how they fought back. However, the assault can occur in many forms and is often very subtle.
Victim-blaming is a major reason that deters survivors of sexual and domestic violence from reporting assault. It is also a reason why, in cases that do reach the courtroom, the perpetrators are often dealt lighter sentences. Rather than focusing on the intricacies of the victims’ behaviour, questions need to be asked as to why perpetrators continue to commit acts of sexual assault.
#6 The Gender Justice Gap
As we have seen with aforementioned reasons, the judicial process is simply not survivor-centred. Patriarchal norms, a lack of access to psycho-social support after reporting the incident, the difficulties of obtaining evidence, a narrow definition of rape, limited possibilities for intervention in the investigation and trial, re-traumatisation in the courtroom and juror bias are all symptomatic of a justice system that fails the victims of sexual assault.
This is known as the Gender Justice Gap. It is the myriad obstacles women face when seeking justice, which is exacerbated by the intersection of illiteracy, poverty, conflict, geographic exclusion, corruption, and biased laws.
SAHR exists to bridge the Gender Justice Gap. We practice law through a feminist lens. We attempt to re-imagine and re-define the justice system into a space where every survivor — no matter their ethnicity, gender, sexual orientation or class — can access justice that is fair, equal, and inclusive.
