Rape laws across the Americas are insufficient, inconsistent, and poorly enforced, leaving women at heightened risk of sexual violence.
A new report by international human rights organization Equality Now reveals how rape laws across the Americas are insufficient, inconsistent, and not systematically enforced, and put women, adolescents, and girls at heightened risk of sexual violence.
Many rape survivors are prevented from accessing justice due to sex, gender, class and racial discrimination. The problem is exacerbated by harmful gender stereotypes that blame victims, normalize sexual violence, and fuel widespread underreporting of cases.
Meanwhile, perpetrators escape punishment due to gaps in protection, loopholes in the law, shortfalls in implementation, and wholesale failure of the criminal justice system to adequately process cases of sexual violence.
Failure to Protect: How Discriminatory Sexual Violence Laws and Practices are Hurting Women, Girls and Adolescents in the Americas analyzes country specific rape laws and policies in 43 jurisdictions across North America, Central America, South America, and the Caribbean, and calls on governments to take urgent action to improve access to justice for survivors and end impunity for perpetrators.
In-depth analysis by Equality Now reveals that the majority of rape laws across the Americas fall short of international human rights standards and that there is a repeated failure to implement the laws and protocols that do exist to protect women and girls.
Accordingly, survivors of sexual violence do not have adequate access to justice.
Critically, legal protection gaps across the region leave adolescent girls especially vulnerable to being preyed upon and subjected to discrimination.
One of the most common forms of this is estupro, a type of provision that is applied in circumstances where adults rape or sexually abuse adolescents above the legal age of consent through “deceit or seduction.” This discriminatory law mislabels rape and results in penalties that are not commensurate with the severity of the crime and are far lower than are applicable for rape. Usually, such provisions are found in places where the definition of rape is based on the use of force, rather than lack of consent; both of these problems must also be addressed.
Estupro and similar provisions, rooted in outdated perceptions about chastity, morality, and female sexuality were found in 17 out of the 43 jurisdictions analysed in the report.
The penalty for raping someone under 14 and over 18 in Bolivia is 15-20 years, for adolescents 14-18 years old the penalty for estupro is three-six years.
In Paraguay, there is no prison sentence for the rape of an adolescent 14-16 years old under the estupro laws, for children and adults rape carries a four-15 year sentence.
In the US state of Virginia, “carnal knowledge” of a child between the ages of 13-15 without the use of force is classified as a separate offense to rape, with a potential sentence of two-10 years imprisonment compared to five years to life.
In addition to discriminatory laws against adolescents, in-depth discussions carried out by researchers with survivors, activists, and lawyers identified the following barriers: Limited definitions for rape that require proof of violence or struggle; Dearth of consent-based definitions of rape (only six out of 43 jurisdictions have comprehensive consent-based definitions); Failure to fully criminalize marital or intimate partner rape; Statutes of limitation which cut short the time by which rape cases may be filed; and failure to effectively implement sexual violence laws.
“Discriminatory rape laws not only impede women and girls’ access to justice, but they reinforce harmful stereotypes about victims of sexual violence,” says Bárbara Jiménez-Santiago, Latin America and the Caribbean Representative at Equality Now and one of the primary authors of the report. “Governments across the Americas must act now to ensure that women, adolescents, and girls are not burdened by discriminatory laws.”
The report calls on governments across the Americas to implement comprehensive and inclusive measures that effectively address sexual and gender-based violence, including to improve protections in the law: Including a clear definition of rape that is based on consent and not on the presence of force, and the removal of estupro and estupro-like provisions.
It also mention about improving access to justice under the law: Including permitting minors to file complaints of sexual violence on their own authority; classify all sexual offenses as public offenses; and a holistic review of laws affecting women and girls, such as laws pertaining to child marriage and reproductive healthcare.
The report also expresses the need to improve implementation, accountability and accessibility to justice: Including training criminal justice professionals on how to overcome gender stereotypes and deal with sexual violence cases, collecting disaggregated statistical data and allocating sufficient State resources to prevent and address sexual violence. Finally, it talks about challenging stereotypes and improve public understanding of sexual violence: Including age-appropriate sex and relationship education programs in schools, and public awareness campaigns to tackle victim-blaming and impunity for perpetrators.