Legislation should criminalize all forms of sexual assault, including those forms uniquely associated with widows, e.g. widow cleansing. Drafters should ensure penalties for sexual assault reflect the gravity of the offense, eliminate statutes of limitations that restrict prosecution after a period of time has elapsed, and focus on protecting the victim during the legal process by, for example, restricting the ability of the perpetrator to inquire into the victim’s past sexual history. See, for example, the United Nations expert group report entitled "Good practices in legislation on violence against women" from May 2008; Sexual Assault: Criminal Law and Procedure, StopVAW, The Advocates for Human Rights.
Criminalization of “Widow Cleansing”
- Legislation should criminalize “widow cleansing,” or the act of forcing a widow to have sex with another man to “cleanse” her after her husband’s death. Laws should punish those who commit the sexual assault, as well as other third parties, such as relatives or community leaders, who are involved in or authorize “widow cleansing.” Drafters should take all appropriate measures to ensure that customary practices and laws do not authorize or condone “widow cleansing.”
Criminalization of Marital Rape
- Legislation should clarify that the existence of an intimate partner relationship between the parties is not a defense to sexual assault. For example, widows may be inherited by their in-laws or forced into a levirate marriage, thus subjecting them to rape by their new husbands. Laws should make clear that a marriage or other informal union will not preclude criminal liability for rape. Drafters should criminalize marital rape by stating that the relationship between the perpetrator and the victim does not bar application of sexual assault provisions. Drafters should remove any provisions in the law that states that marriage or another relationship constitutes a defense to sexual assault. Legislation should include a provision that states that “no marriage or other relationship shall constitute a defense to a charge of sexual assault under the legislation.” See UN Handbook, 3.4.3.1, law of Nepal. Provisions should apply “irrespective of the nature of the relationship between the perpetrator and the survivor.” (Marital and Intimate Partner Sexual Assault, Stop VAW, The Advocates for Human Rights)
- Many countries retain some form of marital immunity for sexual assault, for example, less severe penalties for married offenders, or special procedural hurdles for married survivors. (See: Goldfarb Expert Paper p. 11 and Spousal Rape Laws Continue to Evolve, Women’s E-news)
Promising practices:
Namibia Combating of Rape Act (2000) states that marriage or other relationship does not constitute a defense to rape. South Africa Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) Chapter 2, Sexual Offences, Art. 56(1)).
Nepal: The Gender Equality Bill 2063 (passed September 2007) makes marital rape a criminal offence and a valid ground for seeking divorce.
Europe: In September 2009, the Parliamentary Assembly of the Council of Europe adopted a resolution recognizing rape as a serious criminal violation of women’s rights. In Resolution 1691 (2009) the Parliamentary Assembly recommended that member states:
“… establish marital rape as a separate offence under their domestic law so as to avoid any hindrance of legal proceedings, if they have not already done so; 5.3 [and]
penalise sexual violence and rape between spouses, cohabitant partners and ex-partners, if they have not already done so; and consider whether the attacker’s current or former close relationship with the victim should be an aggravating circumstance…” 5.4.
Aggravating Factors
- Legislation should include a description of aggravating circumstances. These circumstances should result in increased penalties upon conviction. (See: UN Handbook, 3.11.1) Multiple acts of sexual assault, the relationship between perpetrator and survivor, the age of the survivor, use or threat of use of violence, multiple perpetrators or accomplices, marital rape as a consequence of levirate or sororate marriage, and sexual assault to “cleanse” a widow should be aggravating factors.
(See: UN Handbook 3.4.3.1 for aggravating circumstances; Gender-Based Violence Laws in Sub-Saharan Africa, p. 26.)
- Legislation should provide that the sexual assault of individuals in vulnerable populations, such as widows, women in situations of armed conflict, and children, should constitute an aggravating factor in the sentencing phase of the prosecution. Legislation should provide that law enforcement must investigate and prosecute the case as with any other sexual assault.
See the section on Sexual Assault legislation in this module for more information.