Defining justice when the law is unjust: How gender imbalance affects women around the world

By — April 25, 2012

Justice is supposed to confer equality, impartiality, protection for victims, and punishment for perpetrators. Yet as recently as the 1970s, spousal rape was not considered a criminal offense in some U.S. states. In fact, North Carolina law stated—until 1993—that “a person may not be prosecuted under this article if the victim is the person's legal spouse at the time of the commission of the alleged rape or sexual offense unless the parties are living separate and apart,” according to the Washington-based National Center on Violent Crime.

That marital rape still remains legal in many countries is just one marker of the way in which the law protects perpetrators of sexualized violence globally, and perhaps particularly in countries where rape has been a significant feature of conflict.

We found legislation that seems to contravene the very principles on which the notion of “justice” is founded in the laws of many countries marked by sexualized violence. So what does justice mean when legal systems seem to enshrine the rights of perpetrators to commit abhorrent acts, while prescribing punishment for victims instead? How can justice be served when gender imbalance in the law is reinforced by impunity on the ground? What does justice mean then?

Justice should mean protection for victims. But in Sudan, where thousands of women have been raped since conflict erupted in 2003 and pregnancy outside of marriage is illegal, being the victim of a crime can result in punishment. According to a 2005 Doctors Without Borders report, many rape survivors have consequently been beaten, imprisoned, and forced to pay a fine upon becoming pregnant “illegally.” One 16-year-old girl interviewed for the report recounted how the police forced her to go to their station at gunpoint. Despite explaining that her pregnancy was the result of rape, she says, “They told me that as I was not married I will deliver this baby illegally. They beat me with a whip on the chest and back and put me in jail. There were other women in jail, who had the same story.” Beyond such crude punishment for victimhood, those who choose to testify against their rapists are often threatened to the point of backing down from prosecution.

Justice should mean precision. But Lutz Oette, expert counsel on Sudanese legislation at REDRESS, a London-based human rights organization working with survivors of torture, confirms that the infamous Article 149 of Sudanese law blurs boundaries between rape and zina (illegal sexual intercourse outside marriage). A REDRESS report on sexualized violence explains how this leads to the potential prosecution of rape victims for adultery, which carries the death penalty for married women unless the victim can “prove” that the crime took place. Forms of evidence accepted under Sudanese law include the rapist’s confession or the testimonies of “four male witnesses who have witnessed the actual penetration,” making the mountainous burden of proof simply insurmountable for many victims.

Justice should mean impartiality. But Ghada Shawgi, a member of REDRESS’ advisory committee, explains that members of the police, security forces, and military cannot be tried without the consent of a superior officer, effectively allowing them to rape with impunity, and with immunity from prosecution. Shawgi also confirms that marital rape is not illegal under Sudanese law.

Another common problem with impartiality is that even where there is jurisdiction over crimes, it often lies solely in the hands of military courts (as is frequently the case in Egypt and Burma). This raises serious questions of impartiality and independence because the people prosecuting and doling out justice exist within the very chain of command implicated in the crimes.

The Committee on the Elimination of All forms of Discrimination Against Women, seen here, has expressed concern about Syria's penal code, which exempts rapists from punishment if they marry their victims.

Justice should mean equality. But according to an April 2011 U.S. State Department country report on human rights, marital rape is not illegal in Syria, where Women Under Siege is mapping incidents of sexualized violence in real-time. The law is rife with gender imbalance, with the report revealing that “under criminal law, if a man and a woman separately commit the same criminal act of adultery, the woman’s punishment is double that of the man’s.” The concluding observations of the 38th session of the Committee on the Elimination of All forms of Discrimination Against Women (CEDAW) in 2007 raised concerns that Article 508 of the penal code exempts rapists from punishment if they marry their victims, and that there is no specific legislation to criminalize violence against women in Syria, including domestic violence.

CEDAW’s concluding comments specifically find that the provision in question is discriminatory under CEDAW (and, by extension, international human rights law), saying that “the Committee urges the State party to give high priority to putting in place comprehensive measures to address all forms of violence against women and girls, recognizing that violence against women is a form of discrimination against women and thus constitutes a violation of their human rights under the Convention.”

Justice should mean accountability for crimes, but in Egypt, where sexualized violence has been used by security forces as a tool to subdue female protesters and silence female journalists, Article 60 of the penal code exempts from the law anyone who committed an action out of good intentions sanctioned by Islamic Sharia (a complex form of Islamic law). “Acts committed in good faith are those acts under the law that involve beating that is not ‘severe,’ not directed to the face or to vulnerable fatal-blow areas,” writes Dina Mansour of Reset Dialogues On Civilizations, a Rome-based nonprofit.

Effectively, says Nehad Aboulkmosan of the Egyptian Centre for Women’s Rights, this grants immunity in cases of domestic violence and spousal rape, for which “no punishment is prescribed” because “Article 60 excludes legal interference” in such cases.

Justice should mean safety from abuse. But in Libya, where government forces used rape and the threat of sexualized violence to intimidate communities during the recent conflict, the interim government has not yet withdrawn legal reservations to the requirements of CEDAW, which it has signed. According to a statement made by Human Rights Watch to the UN Human Rights Council in March, Libyan laws on “inheritance, marriage, divorce, and custody of children” all still “discriminate against women,” while no legislation is currently in place to “protect women and girls from gender-based violence.”

Under the rule of Muammar Gaddafi, the law prohibited neither spousal rape nor female genital mutilation, according to a 2011 U.S. State Department country report. Instead, “the law allowed for arbitrary punishments for dishonoring family, and women and girls suspected of violating moral codes such as walking with a man unrelated to them could be detained indefinitely without being convicted or after having served a sentence and without the right to challenge their detention before a court.” A 2011 Human Rights Watch report confirms that many women and girls held in these facilities were “there only because they were raped, and are now ostracized for staining their family’s ‘honor.’”

Under Gaddafi’s rule, a rapist could also avoid his sentence altogether if he “saved the honor” of his victim by agreeing to marry her.

And the problem doesn’t stop with the letter of the law. In the Democratic Republic of Congo, where rape became such a “defining characteristic” of the war that it has been described as “the rape capital of the world,” a new law on sexualized violence was signed in July 2006, which vastly improved rape legislation (though sexualized violence and rape in marriage still went unaddressed, according to a U.S. State Department country report). Yet a March 2009 UN Human Rights Council report on the DRC noted that “these important initiatives have yet to lead to real changes on the ground, since they are being undermined by widespread impunity for sexual violence.”  

Also, globally, domestic sexualized violence and rape laws are often framed in ways that do not conform with what can be considered the most comprehensive definition of rape (from the Rome Statute of the ICC) by not including different types of sexual acts, by restricting the definition to refer only to certain body parts, by addressing only male against female offenses, by requiring proof of non-consent, and so on.  

A May 2009 study of rape in the DRC showed that 1.8 million women had been raped in their lifetime, but by January 2011, of the 145 cases brought by the American Bar Association, which helps victims bring cases to court in eastern Congo, there had been only 36 convictions based on domestic legislation, according to The Economist. Tellingly, in the DRC, women make up “less than 10 percent of the membership of elected institutions at the national and provincial levels, despite comprising 52 percent of the population,” according to International Alert, a London-based peace-building NGO. Gender imbalance in the law must change, but this alone will not solve the problem unless women become more fairly represented in politics, law enforcement, and positions of social responsibility.  

In addition, it is vitally important to address the patriarchal attitudes of the societies that have created these laws in the first place. Myriad reports from countries where rape has been a major feature of conflict reveal that the attitudes of local authorities, communities, and even the victims’ own families contribute to the devastating impact rape has in societies that devalue women and inflict blame on those whose gender has made them innocent targets of abuse.  

Former U.K. Attorney General Patricia Scotland told Women Under Siege that her work on domestic violence legislation in 2004 saw a 64 percent reduction in U.K. incidents. She says that these results “conclusively prove that significant change through law is possible to the betterment of womankind.”

Scotland agrees that “the laws protecting women are weak” in many countries where rape has featured widely in conflict zones. While it is too blunt to draw a direct correlation between gender imbalance in the law and the use of rape as a tool of war, she emphasizes that such laws create a “backcloth” against which there will inevitably “exist a greater tendency for people to think that raping women is okay.”

But she emphasizes the importance of progress at all levels of society if real change is to be achieved. Even after new legislation was introduced in the U.K. in 2004 to address domestic violence more effectively, she says, it was “only when complete cross-sector cooperation had been achieved, from central and local government down to businesses, public services, and local individuals,” that the implementation of the new policy made a real difference on the ground. And “including women equally at every level of that process”—as policy makers, peacekeepers, lawyers, and those in positions of authority—is “vital.”

To change the meaning of justice in countries where conflict has been characterized by sexualized violence is going to require a concerted, cooperative effort. Gender imbalance must be challenged in legislation across the world, but also in culture.

“Until we give women greater parity,” Scotland stresses, “we will not have the world we could have.”