Submission Botswana, Cabo Verde, El Salvador, Equatorial Guinea and Libya
SAHR made written contributions to the 90th Pre-sessional Working Group of the Committee on the Elimination of Discrimination against Women (CEDAW) for State parties under review for consideration.
These thematic reports consider the legality of violence against women in Botswana, Cabo Verde, El Salvador, Equatorial Guinea and Libya, in particular in relation to sexual violence. Our analysis benchmarks the legislation and practices in the countries mentioned, against the UN Model Law on Rape, published by the former UN Special Rapporteur on Violence against Women, Ms. Dubravka Šimonović, to harmonize national criminal justice responses with accepted international standards.
Key Findings
Botswana:
Incomprehensive definition of consent: The Penal Code of 1964 does not provide a comprehensive definition of consent in the context of rape.
Marital rape is not recognized by law as a criminal defense: It is neither an aggravating circumstance, nor is it explicitly criminalized.
Procedural gaps when prosecuting rape: there is no comprehensive legislation for gender sensitive investigations of rape.
Cabo Verde:
Admissible age: In the Criminal Code of Cabo Verde there is no express provision confirming that a person below the age of 16 is incapable of giving consent to sex. Whilst any sexual act with a child below the age of 16 is a strict liability criminal offense, a sexual act with an older person is subject to criminal liability only if it amounts to sexual assault.
Definition of sexual assault and determination of consent: There is no definition of “rape” in the Criminal Code. The closest equivalent is the definition of “sexual assault”. Although the definition of “sexual assault” includes the deliberate placement of a victim “in a state of unconsciousness”, thereby presuming an absence of consent in such a scenario by inference, the Criminal Code stops short of further elaborating on the concept of consent and the presumptions of a lack of consent.
El Salvador:
Insufficient Protection Against Sexual and Domestic Violence: The Penal Code does not define that rape is an offense that takes place without the consent of the victim, and only considers physical force/violence in its definition.
Procedural Access to Justice: Many cases do not proceed to the trial stage or are not prosecuted, either because the victims choose to withdraw their cases due to cost concerns or because the judges do not proceed to prosecute the cases.
Equatorial Guinea:
Definition of “Rape”: Rape is defined narrowly in Article 429 of the Criminal Code of Equatorial Guinea, as sexual intercourse (i) which is coerced with the use of force or intimidation; (ii) with a woman deprived of reason or understanding; or (ii) with a victim under the age of 12. It is not defined in relation to non-consent.
The State party does not have a comprehensive legal framework in place to prevent and eliminate violence against women and punish perpetrators.
The law does not provide for an independent judiciary, and the government has little respect for judicial independence and impartiality, given the president’s designation as the “first magistrate of the nation. The State party does not have, even at the minimum, a shelter, a hotline, or other services available for victims of domestic violence and rape.
Libya:
A narrow and incomplete definition of rape: Libyan law does not explicitly refer to the term “rape” nor does it include all types of penetration of a sexual nature (vaginal, anal, or oral).
Rape is not defined by any reference to consent. Deception, rather than coercion, is prohibited; and marital rape is not prohibited.
Restrictions on abortion, even for rape survivors: Criminal penalties apply to the individual, including the woman, who causes the termination of pregnancy. There are no specific exemptions from penalties for rape survivors.
The purpose of this submission is to assist the Committee in the adoption of a list of issues, leading to the discussion of the Government of Botswana, Cabo Verde, Equatorial Guinea, El Salvador and Libya and the implementation of the Convention on the Elimination of All Forms of Discrimination against Women in each country.
If you want to read the final reports, click here.
