Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

196 PRACTITIONERS GUIDE No. 12
When addressing the crime of rape and other forms of sexual
violence, two assumptions often manifest themselves in legal
approaches that can undermine women’s human rights,
particularly their right to equality before the law:
Assumption regarding “consent”.
‣ A frequently observed tendency is that: “Sexual
violence has often been addressed in the
problematic [legal] framework of morality, public
decency and honour, and as a crime against the
family or society, rather than a violation of an
individual’s bodily integrity”. 525 This approach
assumes that rape and sexual violence is only a
problem if the victim is perceived as having
satisfactorily conformed with socially acceptable
norms, for example, acting as a chaste wife or
daughter. Women who have sex outside marriage,
especially sex workers/women in prostitution may
be considered effectively to be in a state of constant
agreement to sexual contact. Women who have sex
outside the socially accepted boundaries of
heterosexual marriage may be considered to no
longer have a right worth protecting by the law.
‣ In some States, such assumptions may inform the
way legislation is interpreted. For example, an
assumption may be made that, irrespective of what
a victim may actually have said, an alleged
perpetrator is entitled to think that she was really
consenting. Often this occurs because previous
sexual history evidence is raised at trial to give the
impression that a victim is the sort of woman who
regularly consents to (illicit) sexual contact and
therefore is most likely to have consented in the
situation subject to prosecution.
525
UN Handbook for Legislation on Violence against Women, above
note 511, page 26