Failure to Protect - Key Findings and Recommendations
The Americas - which includes North America, Central America, South America, and the Caribbean - is extremely diverse in terms of culture, race, ethnicity, language, and economic development. However, what is common across the region is the high prevalence of sexual violence combined with the lack of effective access to justice for survivors.
The rape and sexual violence laws of the 43 jurisdictions from 35 countries reviewed for this report deny access to justice for many survivors of sexual violence as they provide a number of opportunities for perpetrators to escape justice. This impunity contributes to the continued perpetuation of sexual violence.
Survivors of sexual violence are denied justice
The report, which analyzes the gaps and loopholes in the laws on sexual violence in the Americas that allow for potential impunity for perpetrators of sexual violence crimes, focused on examining the legal definition of rape (particularly the existence of any requirement to show additional force or violence to prove rape), the existence and application provisions which discriminate against adolescents, and other legal provisions which impede access to justice for sexual violence survivors such as statutes of limitation and laws permitting marital rape.
The research revealed that sexual violence laws across the countries studied effectively deny justice to survivors of sexual violence due to protection gaps in the laws particularly:
- Limited definitions of sexual violence, which contribute to Impunity for perpetrators
- Gaps in laws which reduce protections against sexual violence for young and adolescent girls
- Failure to fully criminalize marital or intimate partner rape
- Short statutes of limitation which limit the time during which legal proceedings for rape cases may be initiated
- Ineffective implementation of sexual violence laws
- Laws which allow for the release of the perpetrator in certain circumstances such as by marriage to the victim, reconciliation or forgiveness from the victim
- Laws which require initiating an investigation into certain crimes of sexual violence only upon a victim’s claim or complaint (lack of ex officio prosecution)
- Procedural restrictions on minors’ ability to report crimes of sexual violence
Adolescent girls are even less protected
Despite the increased vulnerability of adolescent girls to sexual violence, rather than providing additional protection to address their special needs, the response of the criminal justice system has been sorely lacking in many cases across the region. One of the main ways by which adolescent survivors of sexual violence are discriminated against in the Americas is through the use of provisions commonly known as ‘estupro’. The crime of estupro usually describes cases in which an adult has sexual relations with a minor above the legal age of consent by means of seduction or deceit. This discriminatory law mislabels rape and contributes to impunity for rapists as it ignores the exploitation of unequal power dynamics and the vulnerability of teenage girls. In addition, the penalties prescribed under estupro provisions are generally very low, far lower than applicable penalties for rape, and are not commensurate with the severity of the crime. In countries with estupro or estupro-like provisions in their rape laws, the lesser offense of estupro is often used to circumvent the application of the rape offense. This misuse of the estupro provision by criminal justice system officials denies justice to adolescent victims of rape.
Sexual violence laws must ensure that those who commit rape of adolescents will always be held accountable and therefore estupro provisions, where they exist, should be abolished. Repeal of discriminatory estupro provisions, however, must be accompanied by a complete overhaul of sexual violence laws including adopting consent-based definitions of rape, to ensure that adolescent girls are protected from sexual violence in all circumstances.
Governments must take comprehensive action
The report calls for comprehensive action from governments to holistically address sexual violence and intersecting discrimination faced by women and girls across the Americas to live up to their commitments to protect and promote the human rights of women and girls. Specifically, the report calls on the governments of the 43 jurisdictions to:
Improve protections in the law, including to:
- Ensure that the definition of rape is clear and not based on a requirement to prove force, but rather on the lack of the victim’s voluntary, genuine, and willing consent, and in a wide range of coercive circumstances.
- Eliminate estupro or similar provisions that treat the rape of adolescents as a lesser offense.
- Remove all provisions that exempt a charge of rape in the context of marriage or an intimate relationship.
- Eliminate statutes of limitation for cases of rape and sexual assault, in cases of both adult and minor victims.
- Ensure that sentences for sexual violence crimes (rape, sexual assault, marital rape, incest, statutory rape, rape of a minor) are commensurate with the gravity of the acts involved and include as an aggravating circumstance rape in the context of family or similar relationship.
- Actively and integrally include civil society, women and girls, and survivors of sexual violence in policy planning and budgetary processes and include them in the designing of laws, policies, and budgets which affect them.
Improve access to justice under the law, including to:
- Permit minors to file complaints of sexual violence on their own authority, without requiring parental permission or approval from any other person/body.
- Classify all sexual offenses including rape, marital rape, estupro, incest, and rape of a minor, as public offenses which would allow the public prosecutorial system to bring charges ex officio without the victim’s participation.
- Explicitly prohibit the use of mediation, conciliation, or other forms of out-of-court settlements in cases of sexual violence.
Improve implementation, practice, and accountability
- Ensure that programs preventing and addressing sexual violence take a survivor-centered, holistic approach with a special focus on the needs of girls and adolescents.
- Effectively implement laws on sexual violence, including by budgeting sufficient resources for programs to prevent and address sexual violence.
- Train justice system officials, including police, prosecutors, and judges, to specifically deal with cases of sexual violence in a victim-centered and trauma-informed way and implement investigation and prosecution protocols to guide implementation of sexual violence legislation and processing of such cases in the judicial system. Ensure that such protocols also specifically address the needs of marginalized communities.
- Collect data, including statistical data, to monitor the efficacy of sexual violence legislation and improve measures to address sexual violence.
Challenge negative stereotypes and improve public understanding of sexual violence:
- Implement age-appropriate sex and relationship education programs in schools, and public information and awareness campaigns aimed at promoting equality and ending violence against women and girls.
- Develop and fund awareness-raising campaigns to inform the public, particularly women and girls, to understand their rights, improve knowledge of laws related to sexual violence, available remedies, and methods to preserve evidence prior to reporting.