THE INVESTIGATION AND PROSECUTION OF SEXUAL VIOLENCE Sexual Violence & Accountability Project Working Paper Series By Kim Thuy Seelinger Helene Silverberg Robin MejiaThe Human Rights Center investigates war crimes and other serious violations of human rights and international humanitarian law. Our empirical studies recommend specific policy measures to hold perpetrators accountable, protect vulnerable populations, and help rebuild war-torn societies.THE INVESTIGATION AND PROSECUTION OF SEXUAL VIOLENCE By Kim Thuy Seelinger Helene Silverberg Robin Mejia A Working Paper of the Sexual Violence & Accountability Project Human Rights Center University of California, Berkeley May, 2011This Working Paper was drafted by Kim Thuy Seelinger, Helene Silverberg, and Robin Mejia. Kim Thuy Seelinger directs the Sexual Violence & Accountability Project at the Human Rights Center, University of California, Berkeley. She has a J.D. from New York University School of Law. Helene Silverberg is an Adjunct Associate Professor of Political Science and Lecturer-in-Residence at the School of Law, University of California, Berkeley. Robin Mejia is a journalist and M.P.H. candidate at the University of California, Berkeley, School of Public Health. Editing support was provided by Alexa Koenig and Eric Stover. The Human Rights Center would like to thank Trudie Gillissen, Susan Kemp, Professor Catherine MacKinnon, and Sgt. Arlin Vanderbilt for their generous and helpful feedback on earlier drafts. Any subsequent errors or omissions are the responsibility of the authors alone. This Working Paper was made possible by seed funding for the Sexual Violence & Accountability Project provided by the John D. and Catherine T. MacArthur Foundation.ABSTRACT Despite the increasing acceptance of sexual violence as a crime under both national and international law, many victims still encounter great difficulty obtaining justice. This paper explores specific challenges that can arise in the investigation and prosecution of sexual violence, as well as promising responses to these challenges. It reviews the barriers that deter victims from bringing sexual violence cases, the obstacles to coherent and gender-sensitive investigation and prosecution of sexual violence-based crimes, and the challenges—especially for victims—of ensuring successful trials. Ultimately, the outcome of these prosecutions can have legal, historical, psychosocial and security implications that reach well beyond those victims who testify. This paper is part of a Working Paper Series published by the Sexual Violence and Accountability Project, at the Human Rights Center, University of California, Berkeley Law School. Along with three other Working Papers, it was drafted in preparation for the “Sexual Offences Act Implementation Workshop” to be hosted by the Human Rights Center in Kenya, in May 2011. It will be presented to the cross-sectoral stakeholders tasked with responding to sexual and gender-based violence in Kenya, with a view to introducing key issues arising in the investigation and prosecution of sex crimes in both “domestic” and “international” contexts. We welcome your feedback, which can be sent to [email protected] OF CONTENTS I. Introduction 1 II. Forms of Sexual Violence: Implications for National Prosecutions 6 III. Phase One: Entering the Justice System 10 A. Challenges 10 B. Promising Strategies 12 IV. Phase Two: Investigations and Prosecutions 16 A. Investigations 18 Interview-Based Evidence 18 Challenges 19 Promising Strategies 22 Forensic Evidence 29 Challenges 30 Promising Practices 32 B. Prosecutions 35 Challenges 35 Promising Strategies 37 V. Phase Three: Trial and Its Alternatives 41 A. Plea Bargaining 42 Challenges 42 Promising Practices 43 B. “An Enabling Courtroom Environment” 45 Protective Measures 45 Preparing Victims for Trial 47 The Crucial Role of Judges 50 VI. Phase Four: Post-Trial Issues 51 A. Sentencing 52 B. Appeals: Ensuring Legal Coherence 54 VII. Conclusion 55 Bibliography 571 I. INTRODUCTION Sexual violence occurs all over the world. A form of gender-based violence,1 sexual violence has been defined as “any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic a person’s sexuality, using coercion, threats of harm or physical force, by any person regardless of relationship to the victim, in any setting, including but not limited to home and work.”2 It takes myriad forms – for example, sexual assault, rape, forced marriage, genital mutilation, sexual slavery or trafficking. It can happen in a bedroom, alleyway or war zone. And, though the vast majority of victims are women, men and boys can also be victims, and women can be perpetrators.3 In this paper, we review the many challenges of prosecuting crimes of sexual violence, describing those challenges at each stage of the “life-cycle” of a sexual violence case.4 Although the creation of the International Criminal Court (ICC) has greatly increased the international community’s ability to prosecute sexual violence, national courts remain the principal site for rendering individuals accountable. The experience of the ICC and other international tribunals 1 Gender-based violence has been defined as “any harm that is perpetrated against a person’s will, and that results from power inequities that are based on gender roles.” Reproductive Health Response in Conflict (RHRC) Consortium, Gender-based Violence Tools Manual (New York: RHRC Consortium, 2003): 9. 2 Inter-Agency Standing Committee. Guidelines for Gender-based Violence Interventions in Humanitarian Settings: Focusing on Prevention of and Response to Sexual Violence in Emergencies (Geneva: Inter-Agency Standing Committee, 2005.) 3 For studies finding male victimization and/or female perpetration of sexual violence, see, inter alia, Kirsten Johnson et al., “Association of Sexual Violence and Human Rights Violations With Physical and Mental Health in Territories of the Eastern