Sexual violence

The World Health Organization (WHO) in its 2002 World Report on Violence and Health defined sexual violence as: "any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person's sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work".[1] WHO's definition of sexual violence includes but is not limited to rape, which is defined as physically forced or otherwise coerced penetration of the vulva or anus, using a penis, other body parts or an object. Sexual violence consists in a purposeful action of which the intention is often to inflict severe humiliation on the victims and diminish human dignity. In the case where others are forced to watch acts of sexual violence, such acts aim at intimidating the larger community.[13]

Other acts incorporated in sexual violence are various forms of sexual assaults, such as forced contact between mouth and penis, vulva or anus.[14] Sexual violence can include coerced contact between the mouth and penis, vulva or anus, or acts that do not involve physical contact between the victim and the perpetrator—for example, sexual harassment, threats, and peeping.[15]

Coercion, with regard to sexual violence, can cover a whole spectrum of degrees of force. Apart from physical force, it may involve psychological intimidation, blackmail or other threats – for instance, the threat of physical harm, of being dismissed from a job or of not obtaining a job that is sought. It may also occur when the person being attacked is unable to give consent – for instance, while drunk, drugged, asleep or mentally incapable of understanding the situation.

Such broader definitions of sexual violence are found within international law. The Rome Statute of the International Criminal Court (ICC) has established in article 7(1)(g) that "rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity" constitutes a crime against humanity.[16] Sexual violence is further explained in the ICC's Elements of Crimes, which the Court uses in its interpretation and application of Article 7. The Elements of Crime establishes that sexual violence is:

An act of sexual nature against one or more persons or caused such person or persons to engage in an act of sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person's or persons' incapacity to give genuine consent.[2]

The Special Rapporteur on systemic rape sexual slavery and slavery-like practices during armed conflict, in a report in 1998, stipulated that sexual violence is "any violence, physical or psychological, carried out through sexual means by targeting sexuality". This definition encompasses physical as well as psychological attacks aimed at "a person's sexual characteristics, such as forcing a person to strip naked in public, mutilating a person's genitals, or slicing off a woman's breasts".[3] The Special Rapporteur's definition also refers to situations "in which two victims are forced to perform sexual acts on one another or to harm one another in a sexual manner".[13]

A thorough definition is necessary in monitoring the prevalence of sexual violence and studying trends over time. In addition, a consistent definition helps in determining the magnitude of sexual violence and aids in comparing the problem across demographics. Consistency allows researchers to measure risk and protective factors for victimization in a uniform manner. This ultimately informs prevention and intervention efforts.

A distinction is made between conflict-related sexual violence and domestic sexual violence:[7]

• Conflict-related sexual violence is sexual violence perpetrated by combatants, including rebels, militias, and government forces. The various forms of sexual violence can be used systematically in conflicts "to torture, injure, extract information, degrade, threaten, intimidate or punish".[17] Sexual violence can in such cases amount to being a weapon of war.
• Domestic sexual violence is sexual violence perpetrated by intimate partners and by other family/household members, and is often termed intimate partner violence. This kind of sexual violence is widespread both during conflict and in peacetime. It is commonly believed that incidences of domestic sexual violence increase in wartime and in post-conflict environments.

All people can fall victim to sexual violence. This includes women, men, children, and people who define themselves in other terms, e.g., transgender or non-binary individuals.

Most research, reports and studies focus on sexual violence against women and sexual violence in armed conflicts. The majority of victims are women, but men and children are also victims of sexual violence.[18] The crime may be committed in peacetime or during conflict.[19]

It is possible for individuals to be targeted based on sexual orientation or gender-exhibiting behaviour. Such attacks, which are often called "corrective rapes" have been performed to conform an individual to a heterosexual orientation or to more accepted notions of behaviour for the perceived gender of the victim; asexual individuals are also particularly targeted.

Domestic sexual violence includes all forms of unwanted sexual activity. It is considered abuse even if the victim may have previously engaged in consensual sexual activities with the perpetrator. Men and women can both fall victim to this type of abuse.[20]

A 2006 WHO study on physical and sexual domestic violence against women conducted across ten countries, finds that prevalence of sexual domestic violence ranges on average between 10 and 50%. Domestic sexual violence is also considerably less common than other forms of domestic violence. The variations in the findings across and within countries suggest that this type of abuse is not inevitable and can be prevented.[21]

Sexual violence against women and girls can take many forms and is carried out in different situations and contexts. The WHO's World Report on Violence and Health[14] lists the following ways in which sexual violence against females can be committed:

• Systematic rape during armed conflict
• Rape within marriage or dating relationships
• Rape by strangers
• Unwanted sexual advances or sexual harassment, including demanding sex in return for favors
• Sexual abuse of mentally or physically disabled people
• Sexual abuse of children
• Forced marriage or cohabitation, including the marriage of children
• Denial of the right to use contraception or to adopt other measures to protect against sexually transmitted diseases
• Forced abortion
• Violent acts against the sexual integrity of women, including female genital mutilation and obligatory inspection for virginity
• Forced prostitution and trafficking of people for the purpose of sexual exploitation

There was a study in 1987 that came to a conclusion that women in college have reported being involved in unwanted sex due to men using verbal coercion, physical force, and using alcohol or drugs to intoxicate them.[22]

Sexual violence is one of the most common and widespread violations to which women are subject in wartime. It also figures among the most traumatic experiences, both emotionally and psychologically, women suffer during conflict. Sexual violence, in particular rape, is often considered as a method of warfare: it is used not only to "torture, injure, extract information, degrade, displace, intimidate, punish or simply destroy," but also as a strategy to destabilize communities and demoralize men.[23][24] The use of sexual violence as a weapon of war was widespread conflicts such as Rwanda, Sudan, Sierra Leone, and Kosovo.[24] The perpetrators of female-directed violence in times of conflict are often armed groups and local people.[25]

As with sexual violence against women, sexual violence against men can take different forms, and occur in any kind of context, including at home or in the workplace, in prisons and police custody, and during war and in the military.[14] The practice of sexually assaulting males is not confined to any geographical area of the world or its place of commission, and occurs irrespective of the victim's age.[19][26] The various forms of sexual violence directed against males include rape, enforced sterilization, enforced masturbation, and genital violence (including genital mutilation). In addition to the physical pain caused, sexual violence against men can also exploit local ideas of gender and sexuality to cause tremendous mental and psychological anguish for survivors that can last for years following the attack.[27]

Male-directed sexual violence is more significant than is often thought. The scope of such crimes continues, however, to be unknown largely because of poor or a lack of documentation. The under- or non-reporting of sexual violence against males may often be due to fear, confusion, guilt, shame and stigma, or a combination thereof.[28][29] Moreover, men may be reluctant to talk about being victim of crimes of sexual violence. In this regard, the way in which societies construct the notion of masculinity plays a role. Masculinity and victimization may be considered incompatible, in particular in societies where masculinity is equated with the ability to exert power, leading to non-reporting.[30] The incompatibility between the conventional understanding of masculinity and victimization can arise both with regard to the attack itself and when coping with the consequences of such crimes.[31] Because of under- and non-reporting on sexual violence against men, the little evidence that exists tends to be anecdotal.[26]

In the case that sexual violence against males is recognized and reported, it is often categorized as "abuse" or "torture". This is considered a tendency to hide sexual assaults directed at men as something else, and it is believed to contribute to the poor- or lack of reporting of such crimes, and can arise from the belief that sexual violence is a women's issue and that men cannot be victims of sexual assaults.[19]

Sexual violence against children is a form of child abuse. It includes harassment and rape, as well as the use of children in prostitution or pornography.[32][33]

Sexual violence is a serious infringement upon a child's rights, and one which can result in significant physical and psychological trauma to the victim.[32][34] A 2002 WHO study approximated that 223 million children have been victims of sexual violence involving physical contact.[35] Yet, due to the sensitivity of the issue and the tendency of the crime to stay hidden, the true figure is likely to be much higher.[32][34]

Girls are more frequent targets for sexual abuse than boys. The WHO study found that 150 million girls were abused compared to 73 million boys. Other sources also conclude that girls face a greater risk of sexual violence, including prostitution.[36]

Explaining sexual violence is complicated by the multiple forms it takes and contexts in which it occurs. There is considerable overlap between forms of sexual violence and intimate partner violence. There are factors increasing the risk of someone being coerced into sex, factors increasing the risk of an individual person forcing sex on another person, and factors within the social environment including peers and family influencing the likelihood of rape and the reaction to it.[37]

Research suggests that the various factors have an additive effect, so that the more factors present, the greater the likelihood of sexual violence. In addition, a particular factor may vary in importance according to the life stage.

Some 70% of people who experienced sexual violence were paralyzed before and during the assault.[38] The prevailing view amongst scientists is that this form of tonic immobility occurs in humans when no other options to avoid the sexual violence are available anymore, and the brain paralyses the body in order to allow it to survive with minimal damage.[39][40]

The following are individual risks factors:[41]

• Alcohol and drug use
• Delinquency
• Empathic deficits
• General aggressiveness and acceptance of violence
• Early sexual initiation
• Coercive sexual fantasies
• Preference for impersonal sex and sexual-risk taking
• Exposure to sexually explicit media
• Hostility towards women
• Adherence to traditional gender role norms
• Hyper-masculinity
• Suicidal behavior
• Prior sexual victimization or perpetration

The following are relationship risk factors:[41]

• Family environment characterized by physical violence and conflict
• Childhood history of physical, sexual, or emotional abuse
• Emotionally unsupportive family environment
• Poor parent-child relationships, particularly with fathers
• Association with sexually aggressive, hypermasculine, and delinquent peers
• Involvement in a violent or abusive intimate relationship

The following are community factors:[41]

• Poverty
• Lack of employment opportunities
• Lack of institutional support from police and judicial system
• General tolerance of sexual violence within the community
• Weak community sanctions against sexual violence perpetrators

There is also post-catastrophe sexual opportunism. Sexual opportunism during and after catastrophic events is largely unreported. Massive spikes in human trafficking of girls and other humanitarian abuses has been reported in events such as after the devastating April 2015 Nepal earthquake.[42][43][44]

Perpetrators may come from various backgrounds, and they may be someone known by the victim like a friend, a family member, an intimate partner, an acquaintance, or they may be a complete stranger.[45] The primary motivators behind sexually violent acts are believed to be power and control, and not, as it is widely perceived, sexual desire. Sexual violence is rather a violent, aggressive and hostile act aiming to degrade, dominate, humiliate, terrorize and control the victim.[46] Some of the reasons for committing sexual violence are that it reassures the offender about his sexual adequacy, it discharges frustration, compensates for feelings of helplessness, and achieves sexual gratification.[47]

Data on sexually violent men are somewhat limited and heavily biased towards apprehended rapists, except in the United States, where research has also been conducted on male college students. Despite the limited amount of information on sexually violent men, it appears that sexual violence is found in almost all countries (though with differences in prevalence), in all socioeconomic classes and in all age groups from childhood on. Data on sexually violent men also show that most direct their acts at women whom they already know.[48][49] Among the factors increasing the risk of a man committing rape are those related to attitudes and beliefs, as well as behavior arising from situations and social conditions that provide opportunities and support for abuse.

The oldest textual references to sexual violence can be traced back to, amongst other cultures, the ancient Greeks and Romans, where women were seen as property without any rights over their bodies or sexual integrity. Rape of women during peace times was therefore considered as property crime only affecting their owners: the husbands, sons or brothers.[98] A linguistic clue can still be found in verb to rape, which derives from Latin rapere, which originally meant 'to steal, seize, rob, carry away'; any infringement or damage to a woman or girl was primarily considered to be an offence against her husband if she was married, or against her father if she was not, and a crime against the community and public morality instead of a crime against the individual woman or girl herself.[99] Generally speaking, the victim was blamed for having put the family to shame, especially if she was not married yet and lost her virginity during the rape; many cultures tried to resolve this by allowing the rapist to marry the victim in order to restore the 'family honour' of the latter.[100] During armed conflict sexual violence, particularly rape, was perceived as a normal byproduct of war, as "a socially acceptable behavior well within the rules of warfare".[101] In Ancient Greece, women were sometimes the reason for the attack of a city, conquering women as new wives or concubines, legitimate booty, as slaves or as trophies. The fact that sexual violence to women was commonplace during both war and peace times led to the negligence of any indications of what the methods, aims and magnitude of such violence was; it was face- and nameless.[102]

The European Middle Ages strongly reflected a patriarchal view of sexual violence. During times of peace, female spouses had no right to refuse sex with their husbands.[103] Even though laws punishing rapes existed, sexual violence was usually considered as justified or inconsequential. Usually, depending on the elite's views, which perceived sexual violence as a minor issue, sexual violence was not prosecuted.[104] This view was also transferred to the colonies. In Alta California, for example, the Catholic clergy relied heavily on corporal punishment such as flogging, placing in the stocks or shackling of Amerindian women within their programs of Christianization.[105] Within this context of trying to restore a certain social order, women were often the victims of sexual violence if politically active and posing a threat to the existing order.[106] With regard to times of war, jurists, writers and scholars argued that as soon as war is just, no boundaries would be set towards methods used in order to achieve victory. However, with Alberico Gentili (1552–1608) discussions started that suffering of women should be reduced and rape prohibited during peace and war times. However, this view was not accepted for a long time, as women and children not participating in the fighting were still considered as being the enemy and the patriarchal view on women prevailed during peace and war times.

Gradually, over the centuries laws and customs of war changed in direction of a wider understanding of sexual violence and the need to protect potential victims. During the American Civil War (1861–1865), the US started to codify the customary rules regulating land-based wars. On 24 April 1863, President Abraham Lincoln tried to inter alia regulate the sexual conduct of Union soldiers towards civilians in hostile territory with the Lieber Code, which contained one of the first explicit prohibitions on rape.[107] Paragraphs 44 and 47 of the Lieber Code contained provisions prohibiting several crimes including "all rape" by an American soldier in a hostile country against its inhabitants "under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense."[108] Thus, the only enforcement mechanisms were the military commanders themselves, having the right to execute the soldiers immediately.[107]

Scholars usually interpret Article 46 of the Annex to the Convention (IV) respecting the Laws and Customs of War on Land of the Second Hague Convention (18 October 1907), which stipulated that "Family honour and rights ... must be respected",[109] to be an implicit prohibition of sexual assault[110] or rape.[107] However, because sexual assault was once again conceptualised as a crime of honour against the family instead of a violent crime against the individual person, Clack (2018) regarded this provision as "a step backwards from the Lieber Code".[110]

Control Council Law No. 10 (1945) listed 'rape' as a 'crime against humanity'.

After World War I, a War Crimes Commission was established in order to bring war criminals before justice. Forced prostitution and rape was seen as grave violation of the customs and laws of war. After World War II (1939–1945), under the International Military Tribunal at Nuremberg (IMT) and the International Military Tribunal for the Far East at Tokyo (IMTFE), the spectrum of sexual violence as war crime was widened even though rape was not explicitly mentioned in the final verdicts.[107][110] The transcripts of the trials did contain evidence of rape, sexual slavery, sexual sadism, sexual torture, sexual mutilation, forced sterilization, forced abortion, forced nudity, forced pornography and forced prostitution. But only after the Tokyo Tribunal, when Japanese commanders were prosecuted – for the first time based on the chain of command – for not having prevented rape and sexual slavery of comfort women during the Second World War, was sexual violence gradually considered as a grave war crime in itself.[111][112] This view was expressed for the first time after Nuremberg and Tokyo in the second series of trials for the prosecution of "lesser" war criminals in Allied-occupied Germany, where the Allied Control Council Law No. 10 (Article II §1.c), enacted on 20 December 1945, explicitly listed rape as constituting a "crime against humanity".[113][114]

After 1945, an extensive amount of both hard and soft law instruments have set rules, standards and norms for the protection of victims of sexual offences. These include the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, United Nations 1979);[115] the Vienna Declaration and Programme of Action (United Nations June 1993); Declaration on the Elimination of Violence Against Women (United Nations December 1993); the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Belém do Pará Convention) (Organization of American States 1994);[116] the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol) (African Union 2003), and the Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) (Council of Europe 2011).

The resulting, ever growing body of international humanitarian law (IHL) strongly prohibits sexual violence in all armed conflicts, and international human rights law (IHRL) and international customary law strongly prohibit it at all times.[4][5][11][12] IHL ensures women are protected through a two-tiered approach, being covered by general (equal protection as men) and specific protections. IHL mandates special protections to women, according to their additional needs when they are more vulnerable, such as widows, the sick and wounded, migrants, the internally displaced, or those held in detention.[117] Meanwhile, second-wave feminists launched the anti-rape movement in the 1960s and 1970s, leading to national legal prohibitions on marital rape by most countries around the world by the 2010s,[118] while marry-your-rapist laws were increasingly abolished in the same decades.[119][120]

Groundbreaking case law both by the ad hoc Tribunals of International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for former Yugoslavia (ICTY) established acts of rape and sexual violence as crimes of genocide and crimes against humanity.[121][122] ICTR's conviction of Jean-Paul Akayesu for genocide and crimes against humanity on 2 September 1998 is the first case in which sexual violence is perceived as an integral part of genocide as defined in the Convention on the Prevention and Punishment of the Crime of Genocide.[123][124] The first trial solely focused on the perpetration of systematic sexual violence (rape camps) and on crimes against humanity committed against women and girls was the Foča case, a ruling before the ICTY.[125][126] The Statute of the International Criminal Court (ICC) also explicitly incorporates rape and other forms of sexual violence in the list of war crimes and therefore recognizes sexual violence as a grave breach of IHL and of the Geneva Conventions.[11][127]

The UN Security Council, ECOSOC and the UN Commission on Human Rights do not take into account the nature of the conflict with respect to the protection of women in war time.[117] Three reports from the UN Secretary-General and five UN Security Council resolutions specifically address sexual violence. United Nations Security Council Resolution 1888 (2009), in particular, created the Office of the Special Representative of the Secretary General for Sexual Violence in Conflict (SRSG-SVC). The Office highlighted six priorities and identified eight priority countries: Bosnia and Herzegovina, Central African Republic (CAR), Colombia, Cote d'Ivoire, Democratic Republic of Congo (DRC), Liberia, South Sudan, and Sudan. SRSG-SVC is also engaged in the Middle East (Syria) and in Asia and the Pacific (Cambodia).[128] Despite strong prohibitions of international law, enforcement mechanisms against sexual violence are fragile or do not exist in many parts of the world.[4][5][11][12]