File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Rape Laws: An International Perspective

Over the last few decades, concern and outrage over the prevalence, magnitude and impact of violence against women has grown to the point that any form of crime against women is now recognized as a global human rights problem that requires a comprehensive and coordinated response from civil society, the states and the international community.

The 1990s saw the development of at least five major international declarations and platforms for action that specifically addressed this issue. Two of these, the Declaration on the Elimination of Violence against Women (1993) and Prevention, Punishment and Eradication of Violence against Women (1994) were developed explicitly to guarantee women’s rights to life and violence free lives.[1]

At common law, the elements of rape consisted of carnal knowledge, force and the commission of the act against the victim's will or without her consent. In the present day, these elements still exist in many modem rape statutes in various commonwealth nations. In particular, three commonwealth countries, England, Australia and India still retain some form of the traditional definition of rape. Sexual intercourse in these statutes is defined solely as penile penetration of the vagina. Although Australia's definition of rape uses the common law words carnal knowledge, it is apparent from case law that this vague term embodies only vaginal sexual intercourse.[2]

In the late 1960s, the rape debate was launched in the United States of America. It has since spread to every nation in the Western, industrialised world. In each place the law of rape and the handling by the criminal justice system of rape complaints has been subjected to scrutiny. Generally, both have been found wanting. However, one country which has been successful in broadening the definition of tape is the United States. The federal law has been changed to include all forms of sexual intercourse with any person. On the state level, Michigan has abolished the word "rape" and replaced it with a sex neutral gradation scheme comprising four central features. This gradation scheme has a ladder of offences labelled as criminal sexual conduct (CSC).[3]

There are a number of interconnecting problems which rape currently presents for the criminal justice system. First, there is the victim, doubly traumatized by the event itself and its subsequent handling by police and courts. Secondly, and in part consequentially, there is the low reporting rate. Thirdly, there are the rapists, prosecuted infrequently and convicted rarely. Finally, there is the law of rape and the evidential rules which surround it.

Here, the discussion on the law angle:
Rape laws have presented a series of problems for the criminal justice system. First, in many respects, their ambit has been very narrow. This has been a factor in low prosecution and conviction rates. In Michigan, for example, to prove rape it was formerly necessary to show that force was used by the defendant and that the victim did not consent. To establish non-consent, the victim was required to have resisted 'to the utmost' from 'the inception to the close' of the attack. In England, as in many other jurisdictions, rape covers only penile penetration of the vagina. The objection raised here is that other sexual assaults, often considerably worse in character, are relegated to less important offence categories.

Moreover, by confining the offence to women who are not married to the perpetrator, rape laws are discriminatory and deny equal protection to a class of persons on account of their status.[4]

Use of the term rape accounts in part for the narrow scope of the offence, moreover, the word evokes images and associations which are not altogether helpful in a modern context. For rape, as the dictionary states, is a taking or carrying off by force, the ravishment or violation of a woman or of a country. Arguably today, the law should seek to protect the right of every woman to choose whether to have sexual intercourse or not and its language should reflect this objective.

It is, of course, true that the legal definition of rape in England is sexual intercourse without consent, which, on the face of it, seems rather broad. Certainly it is an improvement on the position which prevailed until the nineteenth century when rape constituted an act against a woman's will so that violence or the threat of fear of it was required. The question of consent is also an important one. It might be said that a crucial problem in the law of rape is precisely that it focuses unswervingly upon the non-consent of the complainant.[5]

Did she consent or did she not? That is the question. It is she who is the object of attention. The prosecution must prove beyond all reasonable doubt that she did not consent and the defence will be irresistibly tempted to raise that doubt by suggesting that she is the type of woman who might well have done. In England, moreover, the judge is obliged to administer the corroboration warning. He must warn the jury that it is dangerous to convict on the basis of the complainant's evidence unless it is corroborated.[6]

There is nothing inevitable in this legal arrangement. Sexual intercourse without consent can be shifted from centre stage towards the wings even if it can never be removed from the set altogether. For other nefarious conduct will generally accompany the act of non-consensual sex. There may, for example, be violence, a variety of threats, the presence of participation of a gang, or a commission of another offence such as burglary immediately before hand. There is no reason why the spotlight should not, in the first place, be directed at the defendant and at acts such as these. Moreover, rather than letting the officials of the criminal justice system interpret rape as they choose, there is much to be said for spelling out in precise terms the circumstances in which a sexual offence is committed.[7]

There may also be a case for a scale of penalties for rape rather than a single maximum of life imprisonment. Under the present system, most defendants plead not guilty to rape and indeed, given the high penalty and the low prospects of conviction, they would be foolish to do otherwise. The advantage of a scale is that it permits a defendant to decide where he fits on it and to plead guilty if he so chooses. In most states of United States, legislation has been passed to amend the legal framework relating to rape. In some states, radical change has been introduced. In Canada and Australia, law reform in this area is advancing apace. In England, whilst certain amendments have been implemented, relatively little has been achieved and little more is on the agenda.[8]

Rape and the Criminal Justice System in Some Countries is discussed as under:
U.S.A.
In the early 1970s, the women's movement in the United States succeeded in bringing the issue of rape to the attention of the nation. During the same decade, rape crisis centres sprang up throughout the country and the Federal Government manifested its concern by making available between 1973 and 1981 an estimated $ 125 million for research into sexual assault.
The Michigan legislation was not enacted in response to the proposals of an official law reform committee, neither was it introduced by the state government.

On the contrary, it was very much the product of a grass-roots initiative resulting from dissatisfaction felt by many women working in rape crisis centres at the criminal justice system's treatment of rape victims.

The reform lead to the Criminal Sexual Conduct Act, it has four central features. First, instead of rape, it creates a ladder of offences, each of which is described as criminal sexual conduct. The first degree offence carries a maximum penalty of life imprisonment, with 15 years maximum for the second and third degree offences, and two years for the fourth degree offence.

Each degree covers a range of sexual assaults, so that, for example, the first degree covers any act of sexual penetration. The four degrees are differentiated according to the amount of coercion used, whether or not penetration has taken place, the extent of physical injury inflicted and the age and incapacitation of the victim. The law describes with great particularity precisely the conduct which is covered by each degree. In this way it is hoped to encourage prosecutors to prosecute and defendants who are guilty to plead guilty.

The new Act also dispenses with the need for the prosecution to establish the victim's resistance. The offences of criminal sexual conduct focus entirely on the conduct of the defendant and do not specifically include a non-consent requirement. On the other hand, the Act cannot in all circumstances prevent the defence from seeking to allege that the victim consented, particularly where no weapons were used and where little or no injury was sustained.

The third important feature of the Michigan legislation is its strict regulation of sexual history evidence, which is totally prohibited save in two exceptional circumstances. These are where past sexual conduct was with the defendant himself and where the evidence relates to the source or origin of semen, pregnancy or disease.[9]

Finally, the criminal sexual conduct may be committed by one spouse against another provided that they are living apart and one partner has filed for separate maintenance or divorce. It is gender-neutral, so that women may perpetuate it and men may be the victims.

It is believed that this new law has not eradicated all the problems which face the criminal justice system in dealing with sexual assault. However, its most solid achievement is to produce a clear increase in the number of arrests and convictions for conduct of this kind. It has also improved the treatment of victims within the legal process.

Canada:
In Canada, the legislation passed in 1982 was federal not provincial, but women, once again, played a powerful role in securing it.[10] At the time when women were gaining a foothold in the federal institutions of the government, developments were taking place at other levels, particularly in relation to the issue of violence against women. Largely influenced by initiatives taken in the United States and England, rape crisis centres began to appear.

It was finally at the end of the 1970s that activity at a number of levels on the issue of violence against women was to accelerate and coalesce.[11] Of particular significance was a publication of a book by Lorenne Clark and Debra Lewis in 1977 which was described as a 'break-through', providing 'the first solid data on rape in Canada'. The book was immediately influential.

In 1978, the Law Reform Commission of Canada published its Working Paper on Sexual Offences. The Commission recognised that the substantive law of rape is not to be considered in a vacuum but in the context of its operation in the criminal justice system as well as in society at large.

Most significant of all, however, is its central proposition that:
Rape is actually a form of assault and should therefore perhaps be treated as such under the law. The concept of sexual assault more appropriately characterizes the actual nature of the offence of rape because the primary focus is on the assault or the violation of the integrity of the person rather than the sexual intercourse.

This statement was compared with what Clark and Lewis (1977)[12] had to say in their book, published the previous year. They state:
We are saying that our rape laws should reflect the perspective of women- the victims of rape. They experience rape as an assault, as a unprovoked attack on their physical person and as a transgression of their assumed right to the exclusive ownership and control of their own bodies.

This act is experienced by the rape victim as a denial of her physical autonomy. This follows from her belief that she is a fully human person and entitled to all the protections given to persons under the law. Since she knows that the right to exclusive control over one’s own body and to freedom from unprovoked physical interference by others is two of the fundamental rights guaranteed to persons under the law, she quite justifiably expects redress when she is raped.

The Law Reform Commission was able to see the repetition. It singled out 'the protection of the integrity of the person' as a central policy issue. It spoke of 'the right to be free from unwanted infringement of one's bodily integrity' and 'the right to be free from physical assault'. It was in this context that its proposal to abolish rape and introduce a new offence of sexual assault was made.[13]

In November 1978, the Law Reform Commission of Canada produced its final report on Sexual Offences. This too recommended the abolition of the offence of rape and its substitution by two new offences, described as 'sexual interference' and 'sexual aggression'. The Canadian reform of 1982 bears a certain resemblance to the Michigan legislation looked at previously, although it is weaker in certain respects and stronger in others.

The crime of rape no longer exists in Canada. Instead, a gradation scheme had been introduced which creates three offences of sexual assault covering rape and certain allied crimes. The three grades are distinguished purely in terms of the level of violence involved and no distinction is drawn between penetration and other sexual acts. Simple sexual assault carries a maximum of ten years' imprisonment but may, at the prosecutor’s discretion, be tried summarily, in which case a maximum penalty is six months' imprisonment or a fine of not more than$ 500.

Next on the ladder is an offence carrying a maximum of 14 years' imprisonment, which applies where the defendant, in committing a sexual assault, carries, uses or threatens to use a real or imitation weapon or threatens to cause bodily harm to a person other than the complainant or is a party to the offence with any other person. Finally comes aggravated sexual assault, which is the most serious offence of the three and carries a maximum of life imprisonment. This offence is perpetrated where the defendant, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.[14]

The new law entirely abolishes the marital rape exemption; it also places firm restrictions on the use of sexual history evidence. As far as corroboration is concerned, the judge is no longer permitted to issue the corroboration warning, although he will still be able to comment on the evidence.[15]

England
When the rape debate reached England in the early 1970s, it me with a receptive and sympathetic response in many quarters. However, in England, two trends were obvious, the lack of academic interest in and commitment to rape law reform and the absence of anything resembling a cohesive and powerful women's political lobby which might have taken up the issue, as well as the general absence of women in the 'corridors' of power'.

Both the lack of strong academic support for rape law reform and the absence of a powerful women's voice in its favour, may have contributed to the negative approach to the matter manifested by the Criminal Law Revision Committee (CLRC) in its final Report on Sexual Offences published in 1984.[16]

In its report the CLRC proposed that the law of rape should continue to cover only penile penetration of the vagina. It was not prepared to recommend abolition of the marital rape exemption, only that it should cease to operate where the couple was living separately. On the issue of consent, the committee's approach was similarly restrictive. It recommended that legislation be introduced to ensure that threats other than of immediate force be precluded from the scope of rape. Although it received representations from a considerable number of women's organizations and groups, their views often appear to have been rejected.[17]

What has been highlighted in the above experiences is that in the American state of Michigan and Canada women played a major role in the accomplishment of radical rape law reform. In countries as diverse as Australia, Israel, Denmark and Sweden women have actively and successfully campaigned against antiquated rape laws and retrogressive proposals for reform. In England, by contrast, traditional women's organizations and those of the radical fringe, have, for the most part, shown a marked disinclination to do battle for legal change.

It is therefore very important for women and men to realize the gravity of the crime of rape. At first, women need to realize that rape/ sexual abuse vitally affects all women. The importance lies in victims of violence being able to assert that they have faced violence, speaking about it rather than remaining silent throughout life only to realize that the suppression has only made them weaker and helpless.

Today, as a result of the women's movement, not only in India but in many countries, governments have been compelled to look at the offence of rape as one which violates the human rights of a woman on the ground that she is the victim of violence. The main aim now, as emphasized by many, should be to get mass support, enough so that the government, the judiciary and the police would be forced into reforming their policies and procedures on public and private violence as they relate to women.[18]

Australia:
In Australia, the Criminal Code Act, 1995, deals with the offence of rape in the following manner:[19]
Unlawful sexual penetration:

  1. A person is guilty of an offence if:
    1. The person sexually penetrates another person without the consent of that person; and
    2. That other person is a UN or associated person; and
    3. The UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
    4. The first-mentioned person knows about, or is reckless as to, the lack of consent.
      • Maximum penalty: Imprisonment for 15 years.
      • Maximum penalty (aggravated offence): Imprisonment for 20 years.[20]
  2. Strict liability applies to paragraphs (1) (b) and (c).
  3. In this section:
    Sexually penetrate means:
    1. Penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or
    2. Penetrate (to any extent) the mouth of a person by the penis of another person; or
    3. Continue to sexually penetrate as defined in paragraph (a) or (b).
  4. In this section, being reckless as to a lack of consent to sexual penetration includes not giving any thought to whether or not the person is consenting to sexual penetration.
  5. In this section, the genitalia or others parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.”[21]
    268.14 Crime against humanity: Rape
    1. A person (theperpetrator) commits an offence if:
      1. The perpetrator sexually penetrates another person without the consent of that person; and
      2. The perpetrator knows of, or is reckless as to, the lack of consent; and
      3. The perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.[22]

        Sexually penetrate means:
        1. Penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or
        2. Penetrate (to any extent) the mouth of a person by the penis of another person; or
        3. Continue to sexually penetrate as defined in paragraph (a) or (b).
           
  6. In this section, being reckless as to a lack of consent to sexual penetration includes not giving any thought to whether or not the person is consenting to sexual penetration.
     
  7. In this section, the genitalia or other parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.

     

Germany
Chapter Thirteen of the German Criminal Code[23] deals with “Crimes against Sexual Self-determination”. It lays down as under:
Sexual Abuse of Wards[24]

Whoever commits sexual acts:

  1. on a person under sixteen years of age who is entrusted to him for upbringing, education or care in leading his life;
  2. on a person under eighteen years of age who is entrusted to him for upbringing, education or care in leading his life or who is a subordinate within the framework of an employment or a work relationship, by abusing the dependence associated with the upbringing, educational, care, employment or work relationship; or
  3. on his natural or adopted child who is not yet eighteen years of age, or allows them to be committed on himself by the ward, shall be punished with imprisonment for not more than five years or a fine.

Whoever, under the prerequisites of subsection (1), numbers 1 to 3:

  1. Commits sexual acts in front of the ward; or
  2. Induces the ward to commit sexual acts in front of him, in order to thereby sexually arouse himself or the ward, shall be punished with imprisonment for not more than three years or a fine.


An attempt shall be punishable.
In cases under subsection (1), number 1 or subsection (2) in conjunction with subsection (1), number 1, the court may dispense with punishment pursuant to this provision, if, taking into consideration the conduct of the ward, the wrongfulness of the act is slight Sexual Abuse of Prisoners, Persons in the Custody of a Public Authority and Persons in Institutions who are in Need of Assistance[25]

  1. Whoever commits sexual acts on a prisoner or a person in custody upon order of a public authority, who is entrusted to him for upbringing, education, supervision or care, by abusing his position, or allows them to be committed on himself by the prisoner or person in custody, shall be punished with imprisonment for not more than five years or a fine.
  2. Whoever abuses a person who has been admitted as an in-patient to an institution for persons who are ill or in need of assistance and entrusted to him for supervision or care, in that he commits sexual acts on the person by exploiting the person's illness or need of assistance, or allows them to be committed on himself by the person, shall be similarly punished.
  3. An attempt shall be punishable.


Sexual Abuse by Exploiting a Position in a Public Office[26]

  1. Whoever, as a public official who is charged with participation in a criminal proceeding or a proceeding to order a measure of reform and prevention involving deprivation of liberty or custody imposed by a public authority, and by abusing the dependency caused by the proceedings, commits sexual acts on the person against whom the proceedings are directed, or allows them to be committed on himself by the person, shall be punished with imprisonment for not more than five years or a fine.
  2. An attempt shall be punishable.


Sexual Abuse by Exploiting a Counseling, Treatment or Care Relationship[27]

  1. Whoever commits sexual acts on a person who is entrusted to him for counseling, treatment or care due to a mental or an emotional illness or disability including an addiction, by abusing the counseling, treatment or care relationship, or allows them to be committed on himself by the person, shall be punished with imprisonment for not more than five years or a fine.
  2. Whoever commits sexual acts on a person entrusted to him for psychotherapeutic treatment by abusing the treatment relationship, or allows them to be committed on himself by the person, shall be similarly punished.
  3. An attempt shall be punishable.


Sexual Abuse of Children[28]

  1. Whoever commits sexual acts on a person under fourteen years of age (a child), or allows them to be committed on himself by the child, shall be punished with imprisonment from six months to ten years, and in less serious cases with imprisonment for not more than five years or a fine.
  2. Whoever induces a child to commit sexual acts on a third person, or to have them committed on the child by a third person, shall be similarly punished.
  3. Whoever:
    1. commits sexual acts in front of a child;
    2. Induces the child to commit sexual acts on his own body; or
    3. Exerts influence on a child by showing him pornographic illustrations or images, by playing him audio recording media with pornographic content or by corresponding speech, shall be punished with imprisonment for not more than five years or a fine.


An attempt shall be punishable; this shall not apply for acts under subsection (3), number 3.
Serious Sexual Abuse of Children[29

  1. The sexual abuse of children shall be punished with imprisonment for no less than one year in cases under Section 176 subsections (1) and (2), if:
    1. A person over eighteen years of age completes an act of sexual intercourse or similar sexual acts with the child, who is combined with a penetration of the body, or allows them to be committed on himself by the child
    2. The act is committed jointly by more than one person;
    3. The perpetrator by the act places the child in danger of serious health damage or substantial impairment of his physical or emotional development; or
    4. The perpetrator has undergone a final judgment of conviction for such a crime within the previous five years.
       
  2. Whoever, in cases under Sectionl76 subsections (1) to (4), acts as a perpetrator or other participant with the intent of making the act the object of a pornographic writing (Section 11 subsection (3)), which is to be disseminated pursuant to Section 184 subsections (3) or (4), shall be punished with imprisonment for not less than two years.
     
  3. In less serious cases under subsection (1), imprisonment from three months to five years shall be imposed, in less serious cases under subsection (2), imprisonment from one year to ten years.
  4. Whoever, in cases under Section 176 subsections (1) and (2):
    1. By the act seriously physically maltreats the child; or
    2. By the act places the child in danger of death, shall be punished with imprisonment for not less than five years.
  5. The time in which the perpetrator is in custody in an institution pursuant to order of a public authority shall not be credited to the term indicated in subsection (1), number 4. An act as to which judgment was rendered abroad shall be deemed equivalent in cases under subsection (1), number 4, to an act as to which judgment was rendered domestically, if under German criminal law it would have been such an act under Section 176 subsections (1) or (2).

 
Sexual Abuse of Children Resulting in Death[30]
If by the sexual abuse (Sections 176 and 176a) the perpetrator at least recklessly causes the death of the child, then the punishment shall be imprisonment for life or for not less than ten years.

Sexual Coercion: Rape[31]

  1. Whoever coerces another person:
    1. with force;
    2. By a threat of imminent danger to life or limb; or
    3. By exploiting a situation in which the victim is unprotected and at the mercy of the perpetrator's influence, to suffer the commission of sexual acts of the perpetrator or a third person on himself or to commit them on the perpetrator or a third person shall be punished with imprisonment for not less than one year.
       
  2. In especially serious cases the punishment shall be imprisonment for not less than two years. An especially serious case exists, as a rule, if:
    1. the perpetrator completes an act of sexual intercourse with the victim or commits similar sexual acts on the victim, or allows them to be committed on himself by the victim, which especially degrade the latter, especially if they are combined with penetration of the body (rape); or
    2. the act is committed jointly by more than one person.
  3. Imprisonment for not less than three years shall be imposed, if the perpetrator:

    1. carries a weapon or another dangerous tool;
    2. otherwise carries a tool or means in order to prevent or overcome the resistance of another person through force or threat of force; or
    3. places the victim by the act in danger of serious health damage.

  4. Imprisonment for not less than five years shall be imposed, if:

    1. the perpetrator uses a weapon or another dangerous tool during the act; or
    2. the perpetrator:
      1. seriously physically maltreats the victim through the act; or
      2. places the victim in danger of death through the act.

  5. In less serious cases under subsection (1), imprisonment from six months to five years shall be imposed, in less serious cases under subsections (3) and (4), imprisonment from one year to ten years.


Sexual Coercion and Rape Resulting in Death[32]
If the perpetrator through sexual coercion or rape (Section 177) at least recklessly causes the death of the victim, then the punishment shall be imprisonment for life or for not less than ten years.ears.

Sexual Abuse of Persons Incapable of Resisting[33]

  1. Whoever abuses another person who is incapable of resisting:
    1. because of a mental or emotional illness or disability, including an addiction or because of a profound consciousness disorder; or
    2. physically, in that he, by exploiting the incapability of resisting, commits sexual acts on the person, or allows them to be committed on himself by the person, shall be punished with imprisonment from six months to ten years.
  2. Whoever abuses a person incapable of resisting (subsection (1)), in that he induces the person, by exploiting the incapability of resisting, to commit sexual acts on a third person, or to allow them to be committed on the person by a third person, shall be similarly punished.
  3. An attempt shall be punishable.
  4. Imprisonment for no less than one year shall be imposed, if:
    1. the perpetrator completes an act of sexual intercourse or similar sexual acts with the victim, which are combined with a penetration of the body, or allows them to be committed on himself by the victim;
    2. the act is committed jointly by more than one person; or
    3. by the act the perpetrator places the victim in danger of serious health damage or substantial impairment of his physical or emotional development.
  5. In less serious cases under subsections (1), 2 and 4, imprisonment from three months to five years shall be imposed.
  6. Sections 176a subsection (4), and 176b shall apply correspondingly.[34]
     

China:
Chapter IV of the Criminal Law of the People's Republic of China[35] deals with ‘Crimes of Infringing upon the Rights of the Person and the Democratic Rights of Citizens’.
Article 236 of the Chapter lays down that:

  • Whoever, by violence, coercion or other means, rapes a woman is to be sentenced to not less than three years and not more than 10 years of fixed-term imprisonment
  • Whoever has sexual relations with a girl under the age of 14 is to be deemed to have committed rape and is to be given a heavier punishment.
  • Whoever rapes a woman or has sexual relations with a girl involving one of the following circumstances is to be sentenced to not less than 10 years of fixed term imprisonment, life imprisonment, or death:
    1. rape a woman or have sexual relations with a girl and when the circumstances are odious;
    2. rape several women or have sexual relations with several girls;
    3. rape a woman in a public place and in the public;
    4. rape a woman in turn with another or more persons;
    5. cause the victim serious injury, death, or other serious consequences.


Uganda
Many of the internally displaced women, as a result of the ongoing conflict within Uganda and against the DRC, have experienced sexual violations. In the Pabbo camp, approximately sixty percent of women were reported as having experienced some sort of sexual violence.[36] There have also been a number of accusations that young girls have been enslaved as wives for leaders of the Lord’s Resistance Army.35 Due to the ongoing violence and danger, little has been done yet to protect these women, although the ICC has issued a few warrants, which will be examined again later in this thesis.

Kenya
While sexual violence has always been a problem in Kenya, following the election violence of June, 2008, there was a 75 percent increase in the incidents of sexual violence, an unimaginable increase. Not only has this resulted in further acts of wide spreading violence, but it has also resulted in a breakdown of the health services available for victims, which was already inadequate.[37] The situation has recently been looked at by the ICC though, and will be readdressed in this thesis as a result.

International Labour Organization
The International Labour Organization (ILO) has addressed sexual harassment in a range of instruments and during discussions at tripartite meetings. It has also conducted research and training on the issue, and provided information and technical assistance to its constituents. Most recently, it has been stressed that the elimination of sexual harassment and violence at the workplace is a significant element in promoting decent work for women. [38]

Conventions
The Discrimination (Employment and Occupation) Convention, 1958 (No. 111), addresses discrimination in employment on a number of grounds, including sex, and requires that ILO member States declare and pursue a national policy designed to promote equality of opportunity and treatment with a view to eliminating discrimination. Like CEDAW, it predates widespread awareness of the issue of sexual harassment.

As a consequence, it has been necessary for the Committee of Experts on the Application of Conventions and Recommendations to take the lead. In its 1996 Special Survey on Convention No. 111, the Committee confirmed that it views sexual harassment as a form of sex discrimination against women in employment which undermines equality, damages working relationships and impairs productivity.[39]

The Committee defined sexual harassment as:
Any insult or inappropriate remark, joke, insinuation and comment on a person’s dress, physique, age, family situation, etc; a condescending or paternalistic attitude with sexual implications undermining dignity; any unwelcome invitation or request, implicit or explicit, whether or not accompanied by threats; any lascivious look or other gesture associated with sexuality; and any unnecessary physical contact such as touching, caresses, pinching or assault.

This definition, therefore, covers the most frequently targeted forms of sexual harassment, but is also rare in specifically extending to condescending and paternalistic attitudes. The Committee stated that in order to amount to sexual harassment, the behaviour must either “be justly perceived as a condition of employment or precondition for employment or influence decisions taken in this field” and/or “affect job performance”.

It added that sexual harassment may also arise from “situations which are generally hostile to one sex or the other”, thereby including instances of sex-based harassment in addition to those involving sexual behaviour. Moreover, the Committee stated that the elimination of sexual harassment should “be an integral part of a legislative or other policy, independently of policies on discrimination on the basis of sex”.[40]

The only international Convention which specifically prohibits sexual harassment at work is the Indigenous and Tribal Peoples Convention, 1989 (No. 169). It provides that governments shall do everything possible to prevent any discrimination between workers belonging to the peoples to whom the Convention applies[41] and other workers, including taking measures to ensure that they enjoy protection from sexual harassment.[42]

The ILO has also enacted a number of non-binding instruments which contain provisions on sexual harassment at work. The 1985 International Labour Conference Resolution on equal opportunity and equal treatment for men and women in employment stated that sexual harassment at the workplace is detrimental to employees’ working conditions and to their employment and promotion prospects.[43] It recommended that policies for the advancement of equality include measures to combat and prevent it.

Six years later, the 1991 International Labour Conference Resolution concerning ILO action for women workers returned to the issue, inviting the Governing Body to request that the Office develop guidelines, training and information materials on issues of specific and major importance to women workers, including sexual harassment in the workplace. Most recently, in November 2003, the ILO’s Governing Body adopted the Code of practice on workplace violence in services sectors and measures to combat this phenomenon, a non-binding instrument which offers guidance in addressing workplace violence in these sectors and which makes specific reference to sexual harassment.[44]

A number of ILO Meetings of Experts have considered the issue of sexual harassment. The 1989 Meeting of Experts on Special Protective Measures for Women and Equality of Opportunity and Treatment, for instance, viewed personal security, including sexual harassment, as a health and safety problem which affected women more than men. The experts felt that special consideration should be given to those occupations and sectors in which women predominate; those in which there is special exposure to the risk of violence; and those in which women have not traditionally been employed.

The 1990 Tripartite Symposium on Equality of Opportunity and Treatment for Men and Women in Employment in Industrialized Countries concluded that prevention is the best approach, emphasized the importance of enterprise-level policies, and called for the development of awareness campaigns, information sessions and educational programmes.[45] More recently, the 1997 Tripartite Meeting on Breaking through the Class Ceiling: Women in Management concluded that the role of governments and employers’ and workers’ organizations in promoting the advancement of women included promoting policies on the prevention of sexual harassment.

At regional level, a tripartite seminar devoted exclusively to sexual harassment was held in Manila in 1993. The participants exchanged information and experience of measures taken to combat harassment in their countries and discussed the range of ways in which it could most effectively be countered.[46] Sexual harassment was also discussed in October 2003 by the Meeting of Experts to Develop a Code of Practice on Violence and Stress at Work in Services, which produced the Code of practice on workplace violence in services sectors discussed above.

The ILO has conducted research on the dynamics of sexual harassment at work and methods of addressing it. The 1992 edition of its Conditions of Work Digest was devoted to sexual harassment. It reviewed legal measures and enterprise policies across 23 industrialized countries, action taken by international organizations, and measures recommended by governments, employers’ and workers’ organizations, and women’s groups. In 1999, it published an annotated bibliography reviewing literature in this area. A number of other publications have specifically examined sexual harassment, or included it as part of more wide-ranging discussions.[47]

Workplace sexual harassment has been addressed at the regional and international levels as both an aspect of gender discrimination and a form of violence against women. The United Nations Committee on the Elimination of Discrimination Against Women has expressed the relationship between these two approaches by identifying sexual harassment as a form of violence against women and gender-based violence as a type of sex discrimination.

At the regional level, the European Union, one of the first bodies to take the problem seriously, has adopted binding legal measures on sexual harassment, while the Organization of American States has addressed it in its Convention on Violence Against Women. At the international level, workers’ organizations have called on their affiliates to adopt measures and provided guidance on their content.

Various UN instruments call for its elimination, including the Platform for Action adopted at the United Nations Fourth World Conference on Women in Beijing in 1995. Within the International Labour Organization, sexual harassment has been the focal point of meetings, research, and advice and information issued to its constituents. In recent years, its significance has been recognized by its inclusion as an element of the ILO’s programme of promoting decent work worldwide.

International legal and policy instruments and jurisprudence
Over time, the treaty bodies established to monitor implementation of the international human rights treaties have increasingly taken up States parties’ obligations to address violence against women. In its general recommendation No. 19 (1992) on violence against women, the Committee on the Elimination of Discrimination against Women confirmed that “under general international law and specific human rights covenants, States may … be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.”[48]

In relation to national legal frameworks, the Committee on the Elimination of Discrimination against Women recommended that States parties:

  • Ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity; and
  • Take all legal and other measures that are necessary to provide effective protection of women against gender-based violence, including effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence.


The Committee also requested that States parties include information on legal measures that have been taken to overcome violence against women, and the effectiveness of such measures, in their reports under the Convention.[49] The Human Rights Committee has similarly requested that States parties provide “information on national laws and practice with regard to domestic and other types of violence against women, including rape” in their reports under the International Covenant on Civil and Political Rights.[50] Accordingly, it is now the practice of States parties to provide relevant information on violence against women to the human rights treaty bodies.

During their review of States parties’ reports, the treaty bodies have expressed concern where the States parties’ legal systems lack specific legislation or legislative provisions to criminalize violence against women and/or retain discriminatory laws that increase women’s vulnerability to violence. They have also expressed concern about problems with existing legislation, including scope and coverage, and the lack of effective implementation of such legislation. Furthermore, in countries where customary law prevails alongside codified law, treaty bodies have been concerned about the use of discriminatory customary law and practice, despite laws enacted to protect women from violence.[51]

In light of these concerns, treaty bodies, and in particular the Committee on the Elimination of Discrimination against Women, have called upon States parties to ensure that:

  • Violence against women is prosecuted and punished
  • Women victims of violence have immediate means of redress and protection;
  • Public officials, especially law enforcement personnel, the judiciary, health-care providers, social workers and teachers, are fully familiar with applicable legal provisions and sensitized to the social context of violence against women.


The Committee on the Elimination of Discrimination against Women has also addressed the obligation of States parties to enact, implement and monitor legislation to address violence against women in its work under the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women.

In the case of A.T. v.Hungary,[52] the Committee found that the lack of specific legislation to combat domestic violence and sexual harassment constituted a violation of human rights and fundamental freedoms, particularly the right to security of person. In the cases of Sahide Goekce (deceased) v. Austria,[53] and Fatma Yildirim (deceased) v. Austria,[54] the Committee recommended that the State party “strengthen implementation and monitoring of the Federal Act for the Protection against Violence within the Family and related criminal law, by acting with due diligence to prevent and respond to such violence against women and adequately providing for sanctions for the failure to do so”.[55]

In its inquiry under article 8 of the Optional Protocol into the abduction, rape and murder of women in and around Ciudad Juárez, State of Chihuahua, Mexico, the Committee recommended that Mexico “sensitize all state and municipal authorities to the need for violence against women to be regarded as a violation of fundamental rights, in order to conduct a substantial revision of laws from that standpoint”.[56]

Other international treaties
In addition to the international human rights treaties, other international instruments create obligations for States parties to enact legislation addressing violence against women. These instruments include the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the Palermo Protocol), and the Rome Statute of the International Criminal Court (the Rome Statute).

The Palermo Protocol requires States parties to:

  • Adopt necessary legislative and other measures to establish trafficking in persons as a criminal offence when committed intentionally (article 5
  • Ensure that their domestic legal or administrative system contains measures that provide to victims information on court and administrative proceedings and assistance to enable their views and concerns to be presented and considered during criminal proceedings against offenders (article 6);
  • Ensure that their domestic legal systems contain measures that offer victims the possibility of obtaining compensation for damage suffered (article 6);
  • Adopt or strengthen legislative or other measures to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking (article 9); and
  • Consider adopting legislative or other measures that permit victims of trafficking to remain in their territory, temporarily or permanently, in appropriate cases (article 7).


The Rome Statute provides the broadest statutory recognition of gender-based violence as a crime under international criminal law to date. In article 7(1)(g), the Rome Statute classifies “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” committed “as part of a widespread or systematic attack directed against any civilian population” as crimes against humanity.

These same offences are classified in article 8(2) (b) (xxii) as serious violations of the laws and customs applicable to international armed conflict and thereby classifiable as war crimes. Under the principle of complementarily established by the Statute, States parties have primary responsibility for bringing those responsible for genocide, crimes against humanity and war crimes to justice. The preamble of the Rome Statute recalls that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”.
therefore been argued that it is “essential for all states parties, as well as other states, to amend existing legislation or enact new national legislation defining the crimes in accordance with international law”.

End Notes:
[1] MacKinnon, C.A., The sexual harassment of working women, (1979), pp.14-18
[2] Brownmiller S. Against our will: men, women and rape. New York, NY, Fawcett Columbine, 1975. Satin AJ et al. Sexual assault in pregnancy. Obstetrics and Gynecology, 1991, pp.710–14.
[3] Guberman, Connie and Margie Wolfe, No Safe Place –Violence Against Women and Children, The Women's Press, Toronto. Canada (2015), pp. 198-199.
[4] Ibid.
[5] Schwartz, Martin D. and Walter S. Keseredy, Sexual Assault— The Role of Male Peer Support, Sage Publications, California(2014), p.83.
[6] Ibid.
[7] Smith, J.C. and Brian Hogan, (2012), Criminal Law, 5th ed., Butterworth & Co. (Publishers) Ltd.. London ,pp. 212-213.
[8] Sokoloff, (2012). The Criminal Justice System and Women – Offenders, Victims, Workers, Clark Boardman Company, Ltd., New York, p.17.
[9] For example, where the complainant alleges that the criminal sexual conduct in question led to her pregnancy, the defence could adduce evidence to show that the pregnancy was in fact caused by sexual activity with another on a particular occasion.
[10] It has been highlighted that women have a very important place in the institutional structure of Ottawa. A Status of Women Council was set up in Canada. In 1976, after the Canadian Government's endorsement of the United Nations' 'Decade for Women', Status of Women Canada was enlarged and became an independent agency.
[11] This included the coming together of influential women's organizations, including the National Action Committee on the Status of Women (NAC), which is a very large umbrella organization.
[12] Clark and Lewis (1977), Historic Recipes from the Corps of Discovery & Jefferson's America.
Berkeley: Celestial Arts ISBN 978-1-58761-17-6.
[13] Johannes Morsink, “Women’s rights in the Universal Declaration”, Human Rights Quarterly, vol.
13, No. 2 (May 2013).
[14] Leilani Farha, “Committee on the Elimination of Discrimination against Women”, in Social
Rights Jurisprudence: Emerging Trends in International and Comparative Law, Malcolm Langford, ed. (Cambridge University Press, 2008), pp. 560–561.
[15] Ibid.
[16] Françoise Gaspard, “Unfinished battles: political and public life”, in The Circle of Empowerment: Twenty-five Years of the UN Committee on the Elimination of Discrimination against Women, Hanna Beate Schöpp-Schilling and Cees Flinterman, eds. (New York, Feminist Press at the City University of New York, 2007), pp. 145–153
[17] Ibid.
[18] D. Maine and A.E. Yamin, “Maternal mortality as a human rights issue: measuring compliance with international treaty obligations”, Human Rights Quarterly, vol. 21, No. 3 (August 1999), pp.19-20.
[19] Australia Criminal Code Act, 1995
[20] Ibid.
[21] Card, Richard (1992). Card, Cross and Jones: Criminal Law (12th ed.). Butterworths,. pp. 1.2
[22] Ibid.
[23] Promulgated on 13 November 1998 (Federal Law Gazette I, p. 945) p.3322 (Translated).
[24] Section 174 of German Criminal Code 1998
[25] Section 174a of of German Criminal Code 1998.
[26] Section 174b of German Criminal Code 1998
[27] Section 174c of German Criminal Code 1998.
[28] Section 176 of German Criminal Code 1998
[29] Section 176a: of German Criminal Code 1998
[30] Section 176b of German Criminal Code 1998
[31] Section 177 of German Criminal Code 1998
[32] Section 178 of German Criminal Code 1998.
[33] Section 179 of German Criminal Code 1998.
[34] Ibid
[35] Adopted by the Second Session of the Fifth National People's Congress on July 1, 1979 and amended by the Fifth Session of the Eighth National People's Congress on March 14, 1997.
[36] Akumu C. O., Suffering in Silence: A Study of Sexual and Gender Based Violence (SGBV) in Pabbo Camp, (2005).9 -13.
[37] Kyle K., A Paradigm Shift in Prevention,(2008), 1-4
[38] The elimination of sexual harassment and violence was identified as a priority gender issue in ILO: Decent work for women: An ILO proposal to accelerate the implementation of the Beijing Platform for Action (Geneva, March 2000), paper presented at the Symposium on Decent Work for Women; Women 2000: Gender equality, development and peace for the twenty-first century (New York, 5-9 June 2000).
[39] ILO: Equality in employment and occupation: Special survey on equality in employment and occupation in respect of Convention No. 111 (Geneva, 1996).
[40] Ibid.
[41] Article 1 of the Convention provides that it applies to “(a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation of the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions”.
[42] Article 20(3)(d).
[43] Official Bulletin (Geneva), Vol. LXVIII, Series A, No. 2, 85-95 (1985)
[44] ILO: Workplace violence in services sectors and measures to combat this phenomenon, Geneva, 33-36 (2004).
[45] Ibid.
[46] ILO Regional Office for Asia and the Pacific: Tripartite regional seminar on combating sexual harassment at work, Manila, 22-26 November 1993: Proceedings (Geneva, 1994).
[47] D. Chappell and V. Di Martino: Violence at work, Second edition (Geneva, ILO, 2000); ILO: Sexual harassment at the workplace in Nepal (Kathmandu, 2004); N. Haspels, Z.M. Kasim, C. Thomas and D. McCann: Action against sexual harassment at work in Asia and the Pacific (Bangkok, ILO, 2001); N. Kapur: “Sexual harassment at the workplace: A guide to sexual harassment law in India”, in A. Kapur (ed.): Women workers’ rights in India: Issues and strategies — A defence guide (New Delhi, ILO, 1999), p. 119; A. Reinhart: Sexual harassment: Addressing sexual harassment in the workplace — A management information booklet (Geneva, ILO, 1999); K.A. Rogers and D. Chappell: Preventing and responding to violence at work (Geneva, ILO, 2003).
[48] Committee on the Elimination of Discrimination against Women, general recommendation No. 19 (1992) on violence against women, para. 9.
[49] Ibid.
[50] Human Rights Committee general comment No. 28 (2000) on article 3 (equality of rights between women and men).
[51] Ibid.
[52] A.T. v. Hungary, communication No. 2/2003.
[53] Sahide Goekce (deceased) v. Austria.
[54] Fatma Yildirim (deceased) v. Austria.
[55] Sahide Goekce (deceased) v. Austria, supra note 8, para. 12.3(a) and Fatma Yildirim (deceased) v. Austria.
[56] Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention, and reply from the Government of Mexico.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly