Breaking the silence: regulating against sexual crimes

The difficulty of regulating against sexual crimes is that it often occurs in private places or where the crime takes place in public, for example in the workplace, it usually involves only two people, which poses problems for detection and eventual prosecution. Usually sexual crimes only become known when the victim breaks the silence, to reveal the sexual crime that has taken place. The purpose of this howtoregulate article is to review the regulations against sexual crimes, particularly around definitions, detection, protection and prevention, and highlight those jurisdictions with novel methods for breaking the silence.The nature of sexual crimes is that it disproportionately affects women and girls[i]. Many jurisdictions, be they international, regional or national, have focussed their sexual crimes regulation around eliminating violence against women. This howtoregulate article will include regulations around eliminating discrimination and violence against women, and children, as well as regulations concerning human trafficking, noting that adult women account for 51% of all human trafficking victims detected globally, women and girls account for 71%[ii].

I. International and regional conventions

  1. United Nations (UN)

Article 1 of the UN Convention Eliminating Discrimination Against Women (CEDAW) provides that

“…‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

Part V (Articles 17-22) outlines the Committee and reporting process for which states parties are required to submit reports on their implementation of CEDAW every four years. The Optional Protocol to CEDAW outlines a communication procedure whereby individuals or groups of individuals may submit a complaint to the CEDAW Committee if the complaint concerns a country that has become a party to the protocol. The protocol contains a model form for submissions of complaints.

The UN General Assembly Declaration on the Elimination of Violence Against Women complements the CEDAW in defining what violence against women encompasses

Article 1

“…‘violence against women’ means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”

Article 2

“Violence against women shall be understood to encompass …

(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;

(b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;

(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.”

The Division for the Advancement of Women in the UN Secretariat have developed a comprehensive Handbook for Legislation on Violence against Women.

Part 1, Articles 19 and 34 of the UN Convention on the Rights of the Child (CRC) also regulates against sexual crimes that involve children. The Convention also contains Optional Protocols on the sale of children, child prostitution and child pornography; and communications procedure. Like the CEDAW protocol, the CRC uses a reporting process of states parties’ implementation of CRC and contains a communications procedure enabling individuals or groups of individuals to submit a complaint to the CRC Committee if it concerns a state party to the protocol.

The UN Convention Against Transnational Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) also regulates sexual crimes to the extent that they are connected to trafficking in persons (Article 3). There is also model law against trafficking in persons developed by the UN Office of Drugs and Crime.

The UN Security Council Resolution 1325 on Women, Peace and Security recognises sexual crimes that occur in situations of armed conflict, and calls on all parties to conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse.

  1. Council of Europe (CoE)

Article 1 of the Convention on preventing and combating violence against women and domestic violence requires parties to protect women from sexual crimes through a range of measures similar to that of CEDAW but goes further: eliminating all forms of discrimination, includes active empowering of women; establishes a comprehensive cross-border framework for victims of violence; and provides support to organisations and law enforcement to adopt an integrated approach to eliminating violence. The Convention contains a rigorous framework for prevention, protection, prosecution, development of integrated policies and monitoring.

The Convention on action against trafficking in human beings builds on the measures outlined in the UN Trafficking Protocol and strengthens the protection afforded to victims.

The Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse focuses on ensuring the best interests of the children through prevention of abuse and exploitation, and encourages an array of preventive measures.

The Convention on Cybercrime contains regulations in the area of child sexual exploitation in Section 1, Title 3 of “Content-Related Offenses”. Article 9 defines child pornography, Article 12(1) encourages organisations to be actively involved in protecting children from offences originating in their networks or affiliated channels and addresses mutual assistance among member states to the widest extent possible for the purposes of investigations or proceedings concerning offences.

  1. European Union

Directive 2012/29/EU establishes the minimum standards on the rights, support and protection of victims of crime that EU states must implement, including compensation within a reasonable time (i.e. in the course of criminal or other legal proceedings), mutual recognition of protection orders.

Directive 2011/93/EU concerns methods for combating the sexual abuse and sexual exploitation of children and child pornography. The Directive defines 20 offences, sets minimum levels for criminal penalties, and facilitates reporting, investigation and prosecution. Article 25 concerns measures against websites containing and disseminating child pornography. The Directive also prohibits the advertising of abuse and organising child sex tourism.

The approach of the EU Directive 2011/36/EU on preventing and combating trafficking in human beings begins from a gender and human rights perspective and focuses on prevention, prosecution and protection of victims. The Directive builds on the methods of the UN Convention and establishes a national rapporteur system for coordination and implementation in the EU.

Article 9 of the Directive 2009/52/EC provides for sanctions for employers of illegally staying third-country nationals who, while not having been charged with or convicted of trafficking in human beings, use work or services exacted from a person with the knowledge that that person is a victim of such trafficking.

  1. Association of South East Asian Nations (ASEAN)

The ASEAN Convention on Trafficking in Persons, Especially Women and Children (ACTIP) came into force in 2017 when the 6th and last ASEAN member nation ratified the convention. ACTIP is based on the UN Trafficking Convention, and contains similar definitions, prevention and protection mechanisms as the UN’s.

  1. The African Union (AU)

The countries of the AU have signed the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which requires states parties to take appropriate measures to:

  • Eliminate all forms of discrimination against women and guarantee equal opportunity and access in the sphere of education and training;
  • Protect women from all forms of abuse (including sexual harassment);
  • Ensure transparency in recruitment, promotion and dismissal of women, and combat and punish sexual harassment in education and the workplace.

II. National regulation

Most jurisdictions carefully regulate against sexual crimes noting the physical, psychological and social affects such crimes have on victims, their families and society as a while. Many of the jurisdictions have tried to be responsive to criminal law reforms around consent, sexual history evidence, and the trans-national nature of certain sexual crimes such as trafficking, sexual tourism and child pornography. The following examples of model national regulation are arranged in order of a comprehensive legal framework, such as Tunisia, through to specialist regulations on types of sexual crimes such as sexual offences, sexual harassment in public spaces and domestic violence. Evidently, the comprehensive approach tends to provide more coherence and simpler management. On the other hand, the specialist approach may provide more fine-tuning and specialised enforcement structures.

  1. Tunisia

Tunisia is one of the most recent jurisdictions to pass comprehensive legislation (July 26, 2017) on sexual crimes through its law on the elimination of violence against women (in Arabic only at time of publishing, Google Chrome or Firefox with imtranslator.net add offers machine translated English https://majles.marsad.tn/2014/fr/lois/57a1d468cf44126c17c5e19d/texte). Tunisia regulates against sexual crimes by eliminating violence against women, this recognises that victims of sexual crimes are predominantly women. Tunisia has defined violence against women broadly to include any physical, moral, sexual or economic aggression against women on the basis of sex. In addition to increasing the consent age from 13 to 16, it recognises sexual crimes such as marital rape, child marriage and sexual harassment in public spaces, and workplace and pay discrimination. Key elements of the law includes:

  • clearly designating responsibility to different Tunisian ministries for preventing and properly handling cases of violence against women. For example, directing the Health Ministry to create programs to train medical staff on how to detect, evaluate, and prevent violence against women and educators on requirements for equality, non-discrimination and how to prevent and respond to violence, to help them deal with cases of violence in schools;
  • establishing family violence units within Tunisia’s Internal Security Forces to process domestic violence complaints, and providing criminal liability for “any agent of the specialised unit who exercises pressure or any other form of coercion against a woman to force her to abandon her complaint or to change it.”;
  • where the deceased victim is a child, a spouse, of particular vulnerability (e.g. pregnant, mental or physical impairment), is a witness in proceedings under this law, the penalty moves from 20 years to life imprisonment.
  1. Canada

Canada is an example of a ‘light’ regulation on sexual harassment in the workplace. Division XV.1 Part III of the Canada Labour Code defines sexual harassment as any conduct, comment, gesture or contact of a sexual natures (a) that is likely to cause offence or humiliation to any employee; or (b) that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion[iii]. A practical technique outlined in the Canadian Labour Code is the positive obligation on employers to issue a policy on sexual harassment, which must be posted in a place likely to be seen by employees and must contain at least the following items:

  1. a definition of sexual harassment that is substantially the same as the one in the Code;
  2. a statement to the effect that every employee is entitled to employment free of sexual harassment;
  3. a statement to the effect that the employer will make every reasonable effort to ensure that no employee is subjected to sexual harassment;
  4. a statement to the effect that the employer will take disciplinary measures against any person under his or her direction who subjects any employee to sexual harassment;
  5. a statement explaining how complaints of sexual harassment may be brought to the attention of the employer;
  6. a statement to the effect that the employer will not disclose the name of the complainant or the circumstances related to the complaint to any person unless disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measures in relation to the complaint;
  7. a statement informing employees of their right to make a complaint under the Canadian Human Rights Act.
  1. UK

The UK is an example of a jurisdiction that has opted for specialist regulations against sexual crimes based on topic, which allows for a detailed, yet simple, examination of the elements of each particular crime. The UK’s Sexual Offences Act 2003 concerns a range of sexual crimes such as rape, sexual assault, child sex offences, sexual exploitation of children (including indecent images, child marriage), exposure and voyeurism to name a few. The UK’s law uses a clear system for identifying the relevant actors (eg. A person [A] commits an offence if he intentionally touches another person [B]), provides a ‘positive’ model of consent that the victim actively communicated consent and recognises the trans-national nature of sexual crimes relating to children, by criminalising conduct of citizens involved in such crimes. Another interesting feature of the UK’s sexual offences regulations are its jury directions around sexual history evidence, which recognises the risks around stereotypes and assumptions about sexual behaviour, anonymity of witnesses and special measures to prevent the re-traumatising of victims through the judicial process[iv].

Trafficking for sexual exploitation was previously regulated under the Sexual Offences Act, but has now been subsumed in the UK’s Modern Slavery Act 2015 specialist regulation against trafficking for all purposes. The act contains a useful detection and prevention technique requiring companies (that do business in the UK with a global turnover of £36 million) to produce a ‘slavery and human trafficking statement’ each financial year, disclosing their efforts to ensure their supply chains are free from slavery and human trafficking[v]. The UK Parliament was examining a bill to extend the ‘slavery and human trafficking statement’ to include public bodies and to exclude economic operators that did not provide a statement from public procurement processes. Although the bill did not move to its second reading[vi] it provides a useful example for detection and prevention. For more information about the technique of exclusion from public procurement see section 7.12 of the Handbook “How to regulate?”.

  1. Peru

Peru is one of a few jurisdictions that has criminalised sexual harassment in public spaces through its Ley Para Prevenir Y Sancionar El Acoso Sexual En Espacios Públicos – 30314 and is an example of a ‘light’ regulation. Peru has defined sexual harassment in a public space as physical or verbal conduct of a sexual nature against another who does not wish or rejects this behaviour as causing them to feel intimidated, hostility, degraded, humiliated or creating an offensive environment in a public space[vii]. Article 6 lists conduct that could be considered sexual harassment in a public place or on public transport such as masturbation, rubbing against the body of another or commentary of a sexual character. The competencies and responsibilities of ministries, regional authorities and the police for implementing the law are listed directly and include education programmes in schools, measures to prevent sexual harassment on public transport, training of relevant officials for name but a few. Of interest on the prevention side is the publicly available sexual harassment in public spaces offenders register “Registro Policial de Denuncias por Acoso Sexual en Espacios Públicos”.

It is interesting to take note of a bigger concern especially in Latin America regarding the punishment of sexual harassment in public places. Argentina has recently approved its Ley 5742 – Acoso Sexual en Espacios Públicos of de Acceso Público – Prevención y Sanción, punishing this behaviour with 2 to 10 days of public service, along with a fine that can range from 200 pesos up to 1000 pesos. Other legislative projects to criminalise sexual harassment in public places are being discussed and pending approval in Chile, Paraguary and Costa Rica.

  1. Portugal

Portugal is one of the first European countries to update its Penal Code, article 170, Artigo 170.˚ – Importunação sexual – Código Penal to punish sexual harassment in public places more severely. According to its recent update “Whoever harasses another person, by practicing exhibitionist acts, making sexual propositions or touching them inappropriately, is punished with up to 1 year incarceration or a fine up to 120 days, if the behavior is not punished more severely elsewhere in this code”.

  1. Philippines

The Filipino Congress recently enacted the Safe Streets, Workplaces and Public Spaces Act of 2017, which is an example of a ‘complex’ but thorough regulation against sexual harassment in public spaces. The law outlines 3 categories (light, medium and severe violations) of acts constituting gender-based street and public spaces harassment. The more severe the violation the more severe the penalty, beginning with a series of fines and community service hours through to imprisonment between 6 days up to 6 months. Philippine’s regulation is more comprehensive than Peru’s, with broader coverage on the prevention and detection side, including gender-based harassment in privately owned places open to the public such as restaurants, bars and cinemas, that risk non-renewal of their business permit for non-compliance[viii]. The Filipino police are required to deputise enforcers as Anti Sexual Harassment Enforcers (A-SHEs) and have powers to issue orders for community service or impose fines on the spot[ix].

  1. Republic of China (jurisdiction of Taiwan)

Taiwan was the first jurisdiction in Asia to adopt domestic violence legislation in 1998, which, at the time, aimed to promote Asian values of domestic harmony and control, to prevent domestic violence, and to protect the interest of the victim of domestic violence[x]. The legislation was updated in 2015, as the aim of promoting domestic harmony and control in practice, was often not in the best interest of the victim of domestic abuse. Domestic violence is defined as an act of harassment, control, threat or other illegal action conducted against any family member that is physical, psychological, or economical in nature and is a criminal offence. The legislation is comprehensive in its approach to prevent domestic violence through education, recording of statistics, research and analysis of underlying causes, creation of a domestic violence case management database, 24 hour hotline service; 24 hour emergency rescue service and creation of a committee in the central authority comprised of experts representing not less than ½ and each gender to be represented by at least a 1/3[xi]. In terms of protection the legislation contains a number of civil protection orders filed through the court, without fees for petition, revocation or alteration, and in the case of emergency orders (particularly where the victim is in imminent danger) a prosecutor or police officer or relevant authority may file a petition for an emergency protection order verbally[xii]. The legislation also creates the presumption that where the domestic violence perpetrator has child/ren, that the perpetrator’s parental rights and duties are to the detriment of the child/ren[xiii]. Chapter 5 contains detailed protection services and welfare benefits to victims of domestic violence.

  1. New Zealand

New Zealand has developed a unique protection mechanism by incorporating domestic violence (DV) regulation in its workplace laws. The New Zealand Parliament has developed an omnibus bill that will amend the Domestic Violence Act 1995, Employment Relations Act 2000, Health and Safety at Work Act 2015, Holidays Act 2003, and Human Rights Act 1993 with a view to enhancing legal protections for victims of domestic violence[xiv]. This bill will create DV leave for victims, enable DV victims to request flexible hours and the inclusion of DV as a workplace hazard that labour inspectors need to check for. The explanatory note of the bill acknowledges that “a significant number of victims who are killed had not been in touch with support agencies but their work colleagues have either known or suspected domestic violence … [making] the workplace a primary place for intervention”. The bill could be strengthened by looking at the utility of a whistle-blower type scheme in the workplace for colleagues to report concerns for a possible DV victim/colleague. For more information about a whistle-blower type scheme see section 7.11.2 and 7.12 of the Handbook “How to regulate?”.

  1. USA

Child pornography is regulated under US federal law (Title 18 – Crimes and Criminal Procedure Part I – Crimes Chapter 110 – Sexual Exploitation and Other Abuse of Children) is defined as any visual depiction of sexually explicit conduct involving a minor (under 18). A picture of a naked child may constitute illegal child pornography if it is sufficiently sexually suggestive. Visual depiction is defined broadly and includes photographs, video recordings, computer general images, electronically stored data and undeveloped film. It is an offence to produce, to posses, to transport and to distribute child pornography under US federal law. For the offence of producing child pornography, a first time offender receives a statutory minimum of 15 years to 30 years. A first time offender convicted of transporting child pornography receives a minimum of 5 years to 20 years. Internet service providers are also required to report to the National Center for Missing Children and Exploited Children on a number of issues concerning complaints received, destruction of images and preservation of evidence.

III.            Special aspects

  1. Age of consent

The UN’s model law on Violence Against Women recommends that the age of consent be set at 18 years of age. In the example of the UK Sexual Offence Act cited earlier in the article, the age of consent is 16 years and therefore consensual sexual activity between two 15 year olds would be a sexual offence. To address this issue some jurisdictions have developed ‘Romeo and Juliet’ clauses where minors otherwise engaged in consensual activity could either receive a reduced penalty or no conviction of a sexual crime due to immaterial consent. Jurisdictions should consider carefully the age of consent it wishes to set and to think of the implications on minors.

Age of consent in child pornography laws can also raise issues for minors who send sexually explicit images of themselves or their partner. In Victoria, Australia new ‘sexting laws’ were created in the Crimes Act (Vic) to provide exceptions to the child pornography provisions at section 68(1) where minors (under 18) are involved in non-exploitative sexting e.g. nude selfies. Four exceptions were created to deal with different permutations based on the following relevant factors:

  • Does the image depict only the accused child or is another child or person depicted?
  • Whose depiction makes the image child pornography?
  • What is the age difference between the accused child and the child whose depiction makes the image child pornography
  • Does the image depict criminal conduct?
  • Is the accused the victim of the depicted criminal conduct?
  1. Time limits for sexual crimes

Generally, most jurisdictions set time limits within which complaints of criminal offences should be reported to the police. Time limits are set because of principles such as the right to a fair trial (the probative effect of evidence diminishes over time) and finality (without which there would be no certainly as to the meaning of the law, or the outcome of any legal process). However, the nature of sexual crimes is such that victims do not immediately go to the police for a variety of physical, psychological and cultural reasons. Recognising this difficulty for victims of sexual crimes, some jurisdictions have set no time limits (UK, Ireland, Australia, New Zealand and Canada for example) in which to bring a sexual complaint. The time limits for sexual offences vary from jurisdiction to jurisdiction, for example France has 10 years, Florida (US) 4 years and Georgia (US) 15 years.

  1. Non-consensual sexual images

A US federal bill the Intimate Privacy Protection Act of 2016 has been introduced, concerning sexual images between adults, that was consensual at the time the image was taken but then that consent was withdrawn or was used in a way contrary to the original consent. The public posting of non-consensual images could be considered a sexual crime, where that image is not used in a way that it was intended. This US federal bill seeks to develop a system whereby such non-consensual images are regulated.

IV. Public consultations

France recently opened a national consultation process to present a bill against gender-based and sexual violence to parliament in 2018. The Secretary of State wants this bill to be drafted with the help of every citizen and 300 workshops across France, known as the Tour de France of Equality, will facilitate citizen participation. The bill aims to review the limitation period for rapes against minors, the presumption of non-consent for minors and verbal street harassment.

South Africa is currently seeking public comments about its draft regulations relating to Sexual Offences Courts, which seeks to establish courts as sexual offences courts to deal with sexual offences cases and enumerate the requirements for the efficient and effective functioning of such courts. The South African approach recognises that the legal process can be a barrier to victims bringing complaints of sexual offences forward and by designing the courts in a way that is ‘victim-friendly’ goes some way to reduce the trauma associated with the criminal justice system.

V. Further links

The UN Women site concerning model legislation to prevent, respond to and punish all forms of violence against women and girls is a good resource for regulations about a range of sexual crimes.

The International Centre for Missing and Exploited Children has produced a Child Pornography: Model Legislation and Global Review, which is a good resource for countries seeking to develop laws against child pornography and online grooming of children for sexual purposes.

For more ideas on specific enforcement or protection techniques used in other jurisdictions please refer to the Handbook “How to regulate?”.

Further links on regulations against sexual crimes at:

http://www.protectionproject.org/resources/law-library/human-rights-model-laws/

http://www.impowr.org/

https://www.equalitynow.org/sites/default/files/EqualityNowRapeLawReport2017_Spreads.pdf

http://www.unwomen.org

This article was written by Valerie Thomas, on behalf of the Regulatory Institute, Brussels and Lisbon. Elvira Fernando provided research assistance on the Portuguese and Spanish speaking jurisdictions.

[i] See UN Women Facts and Figures at http://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures.

[ii] Ibid at dot point 9.

[iii] Article 247.1 of Canada’s Labour Code.

[iv] The Crown Court Compendium: Part I: Jury and Trial Management Summing Up, Feb 2017 at https://www.judiciary.gov.uk/wp-content/uploads/2016/06/crown-court-compendium-pt1-jury-and-trial-management-and-summing-up-feb2017.pdf

[v] Article 54 of the UK Modern Slavery Act 2015, 2017 marks the first year all companies must provide this disclosure.

[vi] https://services.parliament.uk/bills/2016-17/modernslaverytransparencyinsupplychains.html

[vii] Article 4 of Peru’s sexual harassment in public spaces law.

[viii] Article 7 of the Safe Streets, Workplaces and Public Spaces Act of 2017

[ix] ibid. Article 5.

[x] https://www.wcwonline.org/pdf/lawcompilation/Taiwan_DOMESTIC%20VIOLENCE%20PREVENTION%20ACT.pdf

[xi] Article 5 of Taiwan’s Domestic Violence Act 2015

[xii] ibid. Article 12.

[xiii] ibid. Chapter 4 Parents and Children.

[xiv] Explanatory note of New Zealand bill.

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