Laws Without Justice: An Assessment of Sudanese Laws Affecting Survivors of Rape

Executive Summary

Mass rape, often perpetrated by members of the Sudanese armed forces and affiliated militias, is endemic in the Darfur region of Sudan. Government officials deny that rape is an integral part of violence in Darfur and assert that Sudan aggressively punishes rape. In fact, rape victims suffer from an almost complete lack of access to justice, and the Government is more likely to take action against those who report and document rape than those who commit it.

The high incidence of sexual violence in Darfur has been well documented. The inadequacies of Sudan’s laws, regulations, customs and courts for dealing with rape have received less scrutiny. Yet the response to rape cannot be improved until the laws are rewritten.

The goal of this report, which is based on an analysis of Sudanese law and extensive interviews in Khartoum, is to help focus attention on laws and procedures that must be changed. Refugees International continues to call on the U.S. to implement tougher policies against the Government of Sudan, including stricter sanctions, to end the violence and rape in Darfur. The analysis by Refugees International concluded that:

1. Sudan’s laws governing rape expose victims to further abuse.

• Rape is defined as the offense of zina -- intercourse between a man and a woman who are not married to one another -- that is performed without consent. Where a woman is unable to prove that she did not consent to such intercourse, she becomes at risk for being charged with the crime of zina because she has confessed to sexual penetration outside of marriage.
• Unmarried women convicted of zina receive one hundred lashes and married women are sentence to death by stoning. In February and March of 2007, two women were sentenced to death by stoning for committing adultery.
• In prosecutions for rape, many judges require the sexual act to have been witnessed by four competent men, verification that is all but impossible to obtain. Others will accept the testimony of a man who swears on the Qur’an that he did not commit rape, but will not accept contrary testimony from a woman that she was indeed raped.

2. Prosecution of rape is often functionally impossible because Sudan grants immunity to individuals with government affiliations.

• Legal action cannot be taken against members of the military, security services, police, and border guards and immunity may only be lifted by the individual’s superior officer.
• Many members of the Janjaweed are integrated into the Popular Defense Forces, which is also exempt from prosecution.

3. In the climate of fear and suspicion that prevails in Darfur, many survivors do not access medical, legal, and psychosocial services offered by legitimate national and international non-governmental organizations (NGOs).

• The Government of Sudan closely regulates NGO s through the Humanitarian Aid Commission and uses rules related to their staffing and operation to infiltrate otherwise independent organizations. Many victims are deeply suspicious of such organizations and are therefore reluctant to report rapes or pursue legal remedies through them.
• Survivors’ hesitancy is accentuated by the regime’s creation of pseudo-NGO s that outwardly appear committed to human rights but in actuality are fronts for the Government.
• Further, NGO workers are often subject to threats and intimidation, ranging from threatening phone calls to physical assault.

4. Medical services for rape victims are entangled with governmental documentation requirements.

• Initially, rape victims were required to file a document known as Form 8, which lists evidence of a serious violent crime, before they could legally receive medical treatment.
• Under pressure from the international community, the national Government and then the Governor of South Darfur issued decrees that allowed victims of rape to receive treatment without first completing the form. The victims remained obligated to complete the form after being treated if they wanted to file a legal claim.
• Despite this modest improvement, Form 8 remains a serious problem because of confusion surrounding its use and value in criminal prosecutions. The form suffers from important deficiencies as a means for documenting evidence of rape and it is unclear whether other forms of medical documentation may be acceptable in court.
• In addition, doctors who provide medical treatment to raped women continue to face harassment and intimidation.

5. Women with little or no education need assistance to file claims with the police, which is often not available.

• The police are frequently unhelpful, poorly trained in handling sexual violence, and verbally abusive. Even when a rape victim presents a completed Form 8, she is often unable to convince the police to open a criminal file against the perpetrator.
• The lack of security in Darfur also means that women expose themselves to further sexual violence by traveling to the nearest police station.

Rape is viewed as a serious stigma in Darfur. As a result, Darfuri women are extremely reluctant to report they have been raped. Sudanese NGO s working within the camps have implemented valuable education programs that help these communities to cope with the problem of mass rape and international NGO s must continue to work with local women’s groups on these programs.

It is vital to note that there is nothing inherently Islamic about the way Sudan’s rape law is constructed. Pakistan, a country that imposes Islamic law, changed its rape law in 2006, allowing rape to be considered a crime distinct from zina. Similarly, in 2006 the Republic of the Maldives took steps to reform its laws to comply with international norms.

Refugees International recommends that the Government of Sudan take similar steps and carry out legal reforms that allow victims of sexual abuse to access justice. In addition, the hybrid peacekeeping force of the African Union Mission in Sudan and the UN must adopt a mandate that protects women and girls in Darfur and allocate sufficient resources and training to deal with survivors of gender-based violence.

In Sudan today civil society organizations and even some judges are calling for rape law reform and improvements in legal remedies for rape victims. This study, which is dedicated to the women of Darfur, is intended to help those efforts.