Other Measures

Employer support or retaliation:

Legislation should provide that an employer must allow a survivor or a witness, or her spouse or family, who is requested or subpoenaed by the prosecutor to attend court for the purpose of giving testimony, reasonable time off from work to attend criminal proceedings for the case. Legislation should provide that an employer who discharges, disciplines, penalizes or threatens an employee who took time off under the provisions described above is guilty of a misdemeanor and must offer the employee job reinstatement and payment of back wages as appropriate. (See: Minnesota, USA Statute §611A.036; UN Handbook 3.6.3; and Organic Act on Integrated Protection Measures against Gender Violence (2004) of Spain, Article 21.)

Workplaces Respond is an online resource that provides information on creating an effective workplace response to victims of domestic violence, sexual violence and other forms of violence against women. The website offers information to raise awareness, tools to help implement workplace policies and ensure safety, and resources for victims to get help and connect with local agencies working around issues of sexual and domestic violence. Available in English (last acc. 16 April 2013).

Restitution and compensation for survivors

Legislation should provide that survivor of sexual assaults must receive restitution as part of the criminal case against the offender without regard for the offender’s economic circumstances.
Legislation should provide for the creation of a government-sponsored compensation or reparations programme which entitles survivors to apply for and receive fair compensation regardless of whether the case is charged or if the offender is found guilty. (UN Handbook 3.11.5) Illustrative Example: Canada provides a comprehensive compensation programme which includes funds for counseling and expenses such as emergency shelter and food, transportation, dependent care, and lost wages. Services vary by province but generally Canada also provides funds for the costs associated with participating in a court process, including travel, interpretation, special accommodation for disabled victims. See: Canadian Resource Centre for Victims of Crime.
Legislation should provide that all victims of sexual assault must be informed of their rights to restitution and compensation. Legislation should require a process that does not penalize victims for delaying their request for restitution or compensation. The process should take into account barriers which victims of sexual assault face when reporting that they have been victims, such as language barriers, private spaces, literacy barriers, barriers due to displacement, and confidentiality.
Legislation should provide that compensation/reparation schemes do not require prosecution or conviction of sexual assault. See: Office of the United Nations High Commissioner for Human Rights, Summary of the Human Rights Council panel discussion on the theme of remedies for women subjected to violence: Report of the Office of the United Nations High Commissioner for Human Rights (2012).
Legislation should provide that the request for restitution may include out-of-pocket expenses resulting from the crime, such as medical or therapy costs, replacement of wages, tuition costs, relocation costs, services lost due to the crime, funeral expenses, and other expenses not itemized here but incurred as a result of the crime, including funds expended for participation in the legal process. Legislation should provide a mechanism for restitution requests and payment, and for review of compliance with restitution awards.

Examples: Organic Act on Integrated Protection Measures against Gender Violence (2004) of Spain; and Criminal Code Act (1974)of Papua New Guinea. Losses eligible for restitution under the law of California, United States, (1202.4 (a)(1) of the California Penal code) include: medical expenses, wages or profits lost due to injury, replacement value of stolen or damaged property, cost of installing security devices, retrofitting of residence or vehicle if required due to injuries sustained in the crime, mental health counseling expenses, attorney fees for loss recovery, repairs to damaged items, interest at 10% per annum, and other losses to be directly related to the crime. See: Community Services Programs, Restitution Services, State of California. El Salvador’s Special Integral Law for a Life Free from Violence for Women (2011) provides for the creation of a Special Fund for Victims of Violence Against Women. Article 35 of the law provides that funds obtained from the economic sanctions imposed for infractions committed under the law should be contributed to the Special Fund for Victims of Violence Against Women in order to finance projects provided for in the law, including projects to raise awareness of the right of women to be free from violence, protection and care for victims, and detection and prevention of violence against women.

Compensation should not substitute for other penalties for the offender, such as imprisonment. (UN Handbook 3.11.5)

Case Study: Beyond Reparation and Compensation: The Rome Statute’s Trust Fund for Victims:

The Rome Statute, Article 79 (1998) established the Trust Fund for Victims (TVF) and their families.The international, victim-centered TVF has become an important source of assistance for victims of gender-based violence in conflict and former conflict areas. According to the Winter 2012 report of theTVF, it supported approximately 83,400 victims of international crimes in Uganda and Democratic Republic of Congo during that period. The TVF assists not only victims and their families but also communities in the project mandate. All assistance aims to “promote the wellbeing of victims and affected communities, social cohesion and reconciliation, social and economic reintegration into the community, and healing and rehabilitation.” (Winter 2012 report, page 4.)

Assistance offered to victims is exceptionally broad in accordance with the victim-centered goals. It provides an excellent model of the scope of services which could be offered to victims of sexual violence in all states:

The TFV provides three types of legally defined assistance to victim survivors: physical

rehabilitation, psychological rehabilitation and material support. A victim-centred approach combined with an integrated community-based approach remains two guiding strategies for the implementing partners. The information about the type of assistance is described below:

Provision of psychological support to victims through long-term counselling and emergency clinics, addressing stigma and discrimination through community sensitisation and information campaigns. This includes broad-based community education on sexual violence as a tactic of war and the links between peace, reconciliation and rehabilitation;
Ensuring that victims receive referrals for medical assistance and materials, including plastic surgery, orthopaedic fitting, fistula repair, services for HIV and AIDS and other sexually transmitted infections (STIs), sanitary supplies and more;
Providing material support for income generating activities and implementing training programmes that help survivors sustain economic empowerment;
Implementing special initiatives for children born out of rape and children who, themselves, have been victimised by sexual and gender-based crimes under the ICC’s jurisdiction, including access to basic services, education, and nutrition support, and inter-generational responses and stigma reduction programmes;
Building up the capacity of implementing partners and victims as a strategy to reinforce the sustainability of the interventions;
Engaging community dialogue and reconciliation to foster peace within and between the communities that create a suitable environment for prevention of crimes.

TVF Winter 2012 report, page 6.

CalVCP and CDCR Office of Victim and Survivor Rights and Services, Financial Recovery: A Victim’s Guide to Restitution. Available in English.

Examples:

After six years of limiting reparations for sexual violence only to victims of rape, the Peruvian congress passed a law in 2012 making victims of other forms of sexual violence eligible for civil war reparations. According to Peru’s truth and reconciliation commission, the newly recognized forms of sexual violence – including sexual slavery, forced abortion, forced prostitution and kidnapping – were widespread during Peru’s twenty-year conflict. The law will extend reparations to at least 500 more women, who now will be eligible for monetary compensation and free healthcare, therapy, and even education, since many women who experienced sexual violence during the civil war were not able to continue in school. See: Mattia Cabitza, “Peru Widens Civil War Compensation for Victims of Sexual Violence,” The Guardian (28 June 2012).

Colombia’s Ministry of Health has expanded the scope of services to victims of gender-based violence. In December 2011, Colombia’s Ministry of Health issued implementing rules for Law 1257/2009, prescribing benefits for victims, including access to food, shelter, and transportation. Ministry of Health Decree 4796/2011.

CASE STUDY:
War Reparations Provided for Victims of Sexual Violence in Sierra Leone For the first time in history, war reparations are being directed towards women as a means to address the critical needs of victims of sexual violence. An initiative sponsored by the German government is allowing the International Organization for Migration (IOM) to work in partnership with the Sierra Leone Reparations Program (SLRP) to assist women who suffered brutal forms of violence during the country’s long-running civil war, which ended in 2002. The IOM provides both technical assistance and expertise to SLRP and aims to directly assist women by providing trauma counseling, vocational training, and cash allowances to help set up income-generating opportunities. Through these activities, IOM has seen thousands of women begin to recover and escape the detrimental stigmas and feelings of abandonment and neglect that often follow acts of sexual violence. See: Support for the Sierra Leone Reparations Programme.

Legislation should require that prosecutors keep victims informed of all stages of case progression, of releases considered or granted, of all hearings and dispositions.
Legislation should require the prosecutor to make a reasonable and good faith effort to inform the survivor of a pending plea agreement for the offender before it is implemented, including the amount of time recommended for the offender to serve in prison were the court to accept the agreement. Legislation should require the prosecutor to receive input from the survivor which is relevant to bail and plea agreements.

Example: the Sexual Offences Act (2003) of Lesotho states that:

In any criminal proceedings where an accused is charged with an offence of a sexual nature, the prosecutor shall consult with the complainant in the proceedings in order to-

(a) ensure that any information relevant to the trial is obtained from the complainant, including information relevant to the question whether the accused is to be released on bail and, if the accused were so released, whether any conditions of bail are to be imposed;

(b) orientate the complainant with the court structure and procedures; and

(c) provide any information to the complainant necessary to lessen the impact of the trial on the complainant. Part VII, 29

The Combating of Rape Act No 8, (2000) of Namibia includes the following provision:

In criminal proceedings at which an accused is charged with an offence of a sexual

nature, it shall be the duty of the prosecutor to consult with the complainant in such proceedings in order –

(a) to ensure that all information relevant to the trial has been obtained from the

complainant, including information relevant to the question whether the

accused should be released on bail and, if the accused were so released,

whether any conditions of bail should be imposed; and

(b) to provide all such information to the complainant as will be necessary to

lessen the impact of the trial on the complainant. Section 9

Legislation should provide that the survivor has the right to be present at the sentencing hearing and at the hearing for the plea agreement.

Legislation should provide that the survivor has the right to present objections, orally, in writing, or through the prosecutor, to the plea agreement or the proposed disposition, to the court.

The Combating of Rape Act No 8, (2000) of Namibia states that:

(1) A complainant of rape shall have the right -

(a) to attend any proceedings where the question is considered whether an

accused who is in custody on a charge of rape should be released on bail or,

if bail has been granted to the accused, whether any further conditions of bail

should be imposed under section 62 or whether any such conditions of bail should be amended or supplemented under section 63; and

(b) to request the prosecutor in proceedings referred to in paragraph (a) to

present any information or evidence to the court that might be relevant to any

question under consideration by the court in such proceedings. Section 12

Legislation should provide that the survivor may request that the trial be commenced within 60 days of the demand. Speedy judicial proceedings are essential to successful judicial proceedings and to the healing of the survivor. Prosecutors should be required to make reasonable efforts to comply with the victim’s request.

Legislation should require that the prosecutor make every reasonable effort to notify and seek input from the survivor before referring an offender into any treatment or diversion program in lieu of prosecution for a sexual assault. (See: Minnesota, USA Statute §611A.031) Pretrial diversion is an alternative to prosecution which seeks to divert certain offenders with no prior offences from traditional criminal justice processing into a program of supervision and services. In the majority of cases, offenders are diverted at the pre-charge stage. Participants who successfully complete the program will not be charged or, if charged, will have the charges against them dismissed; unsuccessful participants are returned for prosecution. (See: US Attorney Criminal Resource Manual, Ch. 9.22.000)

Legislation should include a provision which states that the survivor may challenge the prosecutor’s decision to discontinue the case. (See: Parliamentary Assembly, Council of Europe, Resolution 1691 (2009).)

South Africa’s National Management Guidelines for Sexual Assault (2003) provides guidelines to prosecutors as to when charges may be withdrawn and how to communicate with victims and witnesses. Available in English.

Drug screening

Legislation should establish guidelines for warranted drug screening to detect surreptitious drugging of survivors with substances known in some places as “rape drugs.” Legislation should require law enforcement officers to fully inform survivors who are supplying blood or urine for drug screening that full drug screening might detect illegal substances. Legislation should prohibit law enforcement from charging victims with illegal behavior, such as using illicit drugs or underage use of alcohol, that happened around the sexual assault.

Use of interpreters

Legislation should require that interpreters who have been trained to work with survivors of sexual assault, harassment, and stalking be utilized at all stages of response, investigation, and prosecution of sexual assault cases. Interpreters should be required for language interpretation and for the deaf or hard of hearing and the visually impaired.