Ben Warwick analyses the decision of the Committee on the Elimination of Discrimination against Women (Committee) in Karen Tayag Vertido v The Philippines and its implications for rape law.
This post contains discussion of rape and sexual violence and may be considered psychologically triggering.
A mention of gender-based violence in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was conspicuous by its absence. It was a glaring gap that has since been filled by the Committee’s General Recommendations 3, 19 and 24. It has been made clear through these successive recommendations that rape, sexual violence and other violence “put women’s health at risk and impair their ability to participate in family life and public life on a basis of equality” and thus fall within the remit of CEDAW provisions. It is further made clear that rape is considered by the Committee to be a form of gender-based violence.
The Vertido v Philippines decision represents the only views centred on rape to have come out of the individual complaints process of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol). This post focuses on the suggestion made in Vertido of two alternative “models” of rape law. The Committee states that an acceptable form of rape law (para 8.9(b)(ii));
“- requires the existence of ‘unequivocal and voluntary agreement’ and requiring proof by the accused of steps taken to ascertain whether the complainant/survivor was consenting; or
– requires that the act take place in ‘coercive circumstances’ and includes a broad range of coercive circumstances.”
With so many countries taking the former approach (the consent-based model), the Committee’s presentation of the two models on an apparently equal basis may prompt reconsideration in some quarters. Below will be given a synopsis of the Committee’s analysis of some of the problems and key points in rape legislation, followed by additional considerations of the non-coercion and non-consent approaches.
Vertido on approaches to rape law
Despite the lack of specific provision on rape and sexual violence in CEDAW, the Committee has no difficulty in finding that poor treatment of rape complainants is a breach of CEDAW under articles article 2(c) and 2(f), and article 5(a) read in conjunction with article 1. Namely the obligations to establish legal protection of women on an equal basis with men, to take all appropriate measures to modify and abolish existing laws which constitute discrimination against women, to modify social and cultural practices predicated on stereotypes or the inferiority/superiority of the sexes, and the duty of non- discrimination.
The view is characteristic of the Committee’s open-textured approach, not prescribing a one-size-fits-all solution, but rather sketching a number of the elements that must, in their view, be present in CEDAW-compliant rape law. Amongst these elements, and in response to the specific facts of the Vertido communication, the Committee mentions that laws dealing with rape and sexual assault must: encourage cases to proceed without “undue delay”; should be “impartial and fair”; should not be affected by “prejudices or stereotypical gender notions”; should avoid re-victimisation; and should not have any statutory requirement of violence in rape. Further they note that the law should have the notion of “lack of consent at its centre”. Finally the Committee suggests that non-consent and non-coercion are both appropriate formats for legislative provisions.
It is interesting to note that the Committee implies that consent can remain at the core of a rape law that does not specifically have lack of consent as an element of the crime. Despite recognising the importance of the concept of consent in their brief views (at paras 8.4, 8.7, 8.9), the non-coercion approach which they suggest (at para 8.9(b)(ii)) does not contain reference to the complaint or their (lack of) consent but only to “circumstances”. It is presumed that a non-consensual circumstance would be a coercive one but the Committee’s comments surely would have benefited from the clarity of some suggested coercive circumstances.
Consent-based rape law
Given the seemingly open choice as between consent and coercion that Vertido offers, it is worth considering some of the strengths and weaknesses of the two models. The brief consideration here will start with the consent model, before assessing the non-coercion approach.
The model of consent (or more correctly; non-consent) requires legal consent to sexual penetration and is borne out of autonomy theory and the liberal belief that the harm of rape is the acting without consent. The consent model is to be applauded for treating women as autonomous beings, for affording them the incredibly important decision-making power to make choices about their body and allowing them to police the boundaries of their own sexual activity. The proposer of sexual activity must satisfy the woman that they are worthy (in one way or another) of consent. Consent as a legal and philosophical model usually allows the woman (almost) absolute discretion (with the exception of when she is deceived). This strong grounding in choice and autonomy means the endorsement of the consent model by Vertido and by many of the world’s legal systems is unsurprising.
The individual discretion to choose is only meaningful, however, when it is exercised in an environment free from pressures, influences and coercion. Despite the well-intentioned philosophy upon which the consent model claims to be based, it is often argued that the foundations of autonomy and empowerment are far from visible in practice. Munro writes that “consent models often fail to adequately interrogate” the concepts of freedom, capacity and choice (in C. McGlynn and V.E. Munro, Rethinking Rape Law, International and Comparative Perspectives (Routledge 2010), 22). Additionally, Hunter points to two practical approaches that come out of the consent approach; the treating of the wronged woman as a “helpless victim”, or, as an autonomous (and therefore blameworthy) choice-maker (in R. Hunter and S. Cowan, Choice and Consent: Feminist Engagements with Law and Subjectivity (New York, Routledge Cavendish 2007), 92). Furthermore, by focussing on the physical act of penetration, the consent approach ignores the mental trauma of sexual violence, significant, writes Cowan as rape offends the self and sense of self (Hunter and Cowan (2007), 2).
The non-coercion approach
While consent-based law enquires whether the woman allowed sex, coercion-based approaches ask if the woman wanted sex. Du Toit writes that consent law has not in the past asked “whether the woman unambiguously intended, wanted or desired the sexual actions under consideration, but rather whether she allowed them to take place” (in McGlynn and Munro (2010), 27). The coercive approach aims to address this by examining more closely and effectively the circumstances surrounding the sexual activity. The approach examines the pressures surrounding the sexual penetration and allows for factors such as intoxication, violence, blackmail, and potentially even the strongest of social influences. The South African Law Commission puts it thus, “coercion constitutes more than physical force or threat thereof, but may also include various other forms of exercise of power over another person: emotional, psychological, economical, social or organizational power” (in Amnesty International, Rape and Sexual Violence: Human Rights Law and Standards in the International Criminal Court (2011), 19).
At the heart of the approach is an enquiry into equality and whether decisions and choices were made on the basis of equality or on the basis of some other power dynamic. It aims to offer a real choice to the victim and not a “choice” based on the poor options she had available to her, and in his sense it is clearly in compliance with CEDAW. This compliance is confirmed in Vertido (para 8.9(b)(ii)) and the approach has been used by the International Criminal Tribunal for Rwanda in their Akayesu judgement (Prosecutor v Akayesu (ICTR-96-4-T) 1998, 598).
The Vertido decision must at the very least prompt a reconsideration of the appropriateness and effectiveness of national rape laws. States that are struggling to adequately address the scourge of rape and sexual violence might benefit from a fresh look at the alternative approaches that the Committee offers. It is clear from the summary above that there are merits to both approaches and this affords states a range of options and some discretion.
One thing is clear from the emphatic way in which Vertido is written – states that do not use either of the models will leave themselves open to serious condemnation by the Committee. There is no room left in the view for those approaches that do not fit within one of the rubrics that the Committee advocates. Further, choosing and implementing one of these approaches is not sufficient to fulfil the duties imposed under CEDAW. States must also practically apply the law in a manner that addresses delays, bias, stereotypes and re-victimisation.
It would be surprising if the issues addressed in Vertido were not taken forward in future communications. In that regard, there is cause to look forward to more detailed and nuanced examination of rape law by the Committee precipitated by the Optional Protocol.
Ben Warwick graduated from Durham University (UK) in 2012 and is currently studying Human Rights Law at Nottingham University (UK). He can be contacted at email@example.com or on twitter at @btcwarwick.
14 December 2012