Johanna Westeson - The ICHRP

International human rights standards on sexual violence include the principle that rape is a
crime against the individual, rather than the community, and should be criminalized
regardless of whether it was committed within marriage, and regardless of the gender of
perpetrator and survivor. Rape under certain circumstances has been considered torture by
various international human rights bodies. According to recent developments in
international criminal law, lack of resistance on behalf of the survivor shall not be assumed
to imply consent; no elevated corroboration requirements should exist for rape; and the
sexual history of the survivor cannot be inferred in defense of the perpetrator. 520
European legislation and jurisprudence on sexual violence reflect all these issues.
Accordingly, this chapter will highlight the criminalization of marital rape, the gender
neutrality of rape provisions, the constitutive elements of rape (force/resistance or
consent), rape as torture when committed by state officials in detention or police custody,
sexual violence as a crime against the self-determination of the individual victim rather
than against her or her family’s ‘honor,’ and the abolishment of special procedural
requirements for convictions in rape cases. As will be shown, the strongest trend in the
region is to increasingly embrace a rights-based approach for the victims of sexual
violence, regardless of what form the violence takes.
As is the case with domestic and intimate partner violence, given the abundance of laws
and material on sexual violence in the region, the reader is strongly encouraged to keep in
mind that the selection of examples is merely illustrative. There are many more examples
of laws and jurisprudence in the region where a rights-based perspective permeates norms
on sexual violence. Another aspect worth remembering is that sexual violence, perhaps to a
larger degree than other human rights violations covered by this project, tends to be
severely under-reported in all societies. Issues such as the stigma and shame associated
with sexuality, dependency on the perpetrator when violence occurs within an intimate
relationship, and lack of trust in the police and other law enforcement authorities, all
contribute to the fact that much sexual violence is never reported, and/or ends in impunity.
Therefore, while assessing progress made to combat sexual violence, and in designing
models to that end, one should bear in mind that laws have a limited reach and other
measures must be taken in tandem with legislation.
This chapter will also briefly discuss state responses to sexual violence, by looking at state
treatment of sexual offenders. Given the stigma attached to sexual offenses, this group is
particularly vulnerable to abuse of their fundamental rights. For the purpose of sexual
health and rights, it is important to monitor post-penalty schemes for control over sex
offenders, to ensure that such control strikes a reasonable balance between its protective
purpose and the rights to privacy, bodily integrity, and reproductive choices of the person
subjected to its provisions. Two topics will be addressed here: sexual offender registration,
and mandatory surgical or chemical castration of offenders. Most European countries do
not keep separate registers, with special requirements, for sex offenders. The United
Kingdom is one of the few states that does; one crucial feature of the British system is that
the registers are strictly confidential and thus unavailable to the general public for review.
With regard to castration of sex offenders, a Council of Europe committee has questioned
whether individual rights are violated by a compulsory scheme imposing castration of sex
offenders in Poland and in the Czech Republic.
520 Cross-reference to international section with page or chapter numbers.
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