Gender Crimes

Rape

A number of rape cases have been reported in situations of conflict in Sudan . There have been several instances of common rapes but there have only been few cases in which perpetrators have been held to account. A series of shortcomings in law and practice have contributed to the lack of protection and to the impunity which has resulted. In the Criminal Act, rape is defined as adultery without consent. Adultery is a crime based on Shari'a law that is subject to strict evidentiary requirements, i.e. the presence of four male eye-witnesses or a confession. If this high threshold is not met, a woman who complains about rape puts herself at risk of being prosecuted for adultery. This may deter women who suffered rape from complaining. Women who complain are faced with many difficulties, such as providing evidence and being subject to insensitive questioning. In cases of rape or sexual violence by officials, the perpetrators may be shielded by immunity provisions. Even in the rare cases of conviction, there is no minimum punishment and offenders face a maximum of ten years imprisonment. This will in many instances be inadequate given the seriousness of the offence, a fact reflected in the sentencing laws applying in most other countries. Sudanese criminal law is also deficient in criminalising other acts of sexual violence. All forms of sexual violence other than vaginal or anal rape are categorised as gross indecency. This offence is subject to a maximum punishment of two years imprisonment, including for such serious offences as oral rape or rape with objects.

Our position:

In our report “Time for Change: Reforming Sudan 's Legislation on Rape and Sexual Violence (LINK), we propose a series of changes to address these shortcomings, including, in particular, the following:

  • There should be no reference to adultery in the definition of rape;
  • The act of rape should, in addition to sexual intercourse of a woman or man, include penile penetration of the mouth and of sexual organs with an object;
  • The definition of consent should be clarified. Consent should be defined as “voluntary and uncoerced agreement”;
  • Setting of minimum punishment and an increased punishment for cases of aggravating circumstances. This includes abuse of authority, infliction of bodily harm, multiple rape, gang rape, vulnerability of the victim (children, mentally ill, physically disabled persons), which should be specifically listed to guide the sentencing discretion of the judge.
  • Introducing criminal offences of sexual assault and sexual harassment that cover other categories of sexual violence falling short of the definition of rape. Such crimes should be made subject to adequate punishments.

Female Genital Mutilations

Female genital mutilation (FGM) is still widely practised in Sudan , with some estimates putting the figure as high as 80-90% of women in Northern Sudan . FGM is a painful procedure that frequently results in harm and lasting damage to girls and women. The practice violates a number of rights guaranteed in the Bill of Rights and international treaties binding on Sudan . This includes the right to be free from torture and other inhuman, cruel or degrading treatment, the right to health, the right to non-discrimination and the rights of children. The state has a corresponding duty to repress this practice effectively, including by means of legal prohibition.

Sudanese women's groups have long campaigned against the practice and the Government had endorsed the goal of eradicating FGM in several policy statements. However, on 5 February 2009, a decision was made to remove the

prohibition of FGM from the Child Act Bill 2009. This decision followed a fatwa of the Islamic Jurisprudence Council, which called for a distinction to be made between the various forms of FGM and not to ban the practice known as Sunna (cutting of the clitoris and/or the prepuce). This is a serious setback for girls and women in Sudan and in the combat against FGM. A large cross-coalition of civil society groups called upon the Government to re-consider its decision.

Our position:

We propose that all forms of FGM are prohibited in the Child Act Bill and made a criminal offence. Anyone taking part in FGM through soliciting, assisting and performing the act should be criminally liable and subject to adequate punishment of imprisonment, the length of which should depend on circumstances, such as the consequences for the victims and the repeated nature of offences. Practitioners should have their licenses revoked and any financial gains resulting from FGM should be subject to confiscation.

Girls and women who have undergone FGM should have the right to free treatment and to effective remedies with a view to obtaining adequate reparation to address the damages suffered. In addition, protective mechanisms should be put in place to prevent FGM.

The legal prohibition of FGM should be accompanied by outreach, awareness and sensitisation campaigns aimed at changing perceptions that perpetuate FGM and at providing incentives for those professionally engaged in the practice to seek alternative means of employment. The medical and legal professions should receive training on the nature and consequences of FGM and on medical and legal interventions to prevent FGM or to respond to violations. This includes a better understanding of the trauma suffered by victims and the need of protection and additional services to be provided in the course of medical treatment and/or judicial proceedings.