By Philippa Bogere, IJR 2021 PAREN Fellow
Philippa Bogere is a Ugandan lawyer whose expertise includes transitional justice, international crimes, human rights, economic crimes, and criminal law. She received her education from the University of the Western Cape, in Cape Town, South Africa, and Humboldt University, in Germany, where she attained a master’s degree in Transnational Criminal Justice, and also holds a bachelor’s degree in Law from Makerere University Kampala. Philippa currently works a Legal and Research Officer with the High Court of Uganda.
Rape and other forms of sexual violence during conflict are prohibited under international humanitarian law and are punishable under international criminal law. Although sexual violence is prohibited against all categories, the practice of different tribunals has been that sexual violence against women and girls is more commonly prosecuted. Yet sexual violence against men is not uncommon, in present day and past conflict affected countries and has been documented in countries including the Democratic Republic of Congo, the Central Africa Republic, South Sudan, Burundi and Uganda but has been often under recognized and suffered a lack of legal accountability mechanisms, with the perception that men are more often the perpetrators and less the victims.[1]
International and regional legal and policy instruments prohibit sexual violence during conflict, and although emerging practice shows recognition of men and boys as victims, often emphasis has been placed on addressing sexual violence against women and girls. The United Nations Security Council Resolution 2106 (2013) recognizes that sexual violence in armed conflict and post-conflict situations affects men and boys although it primary focus is on women and girls as victims of sexual violence. The African Union Transitional Justice Policy component on Justice and Accountability, recognizes the prevalence of conflict related sexual violence and notes that the benchmarks for the successful criminal justice include the ‘adoption of relevant laws reflective of international crimes, including sexual and gender-based violence, that will be applied for investigation and prosecution’ as well as ‘procedures that accord particular attention to sexual and gender-based violence and ensure both the participation of women victims and their physical, psychological and social rehabilitation’. One criticism of the policy would be its silence and lack of explicit recognition of conflict-related sexual violence against men and boys.
At the domestic level, there are several obstacles to legal accountability for rape and other forms of sexual violence against men and boys (male victims) of which key questions include the insufficiency of domestic legal frameworks. Gaps in domestic legislation include laws that criminalize same sex acts, as well as those that recognize only women as victims. In other instances, men may also be recognized as victims, but then same sex acts are penalized. Another gap would be the failure to use gender neutral terms to define victims. In Uganda for instance, the Penal Code Act defines rape as “the unlawful carnal knowledge of a woman or girl,” which definition excludes men as victims. The Penal Code Act also criminalizes ‘unnatural offences’ thus creating an environment for stigmatization and leading to instances where male victims are labelled gay. Another survey carried shows, that legislations in 62 countries recognize only women as victims of rape, 28 states recognize only men as perpetrators, while another 67 criminalize reports of sexual violence by men.[2]
A recommendation would be for countries to adopt a wider and more inclusive definition of rape as is the case with South Africa where the Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 32 of 2007 expands the definition of rape to include sexual penetration without consent, and irrespective of gender. The Rome Statute, whose definition of gender refers to both male and female, and whose definition of rape is also gender neutral also serves as a guide to reformation of domestic legislation. Lastly, the definition of sexual violence should not be limited to instances where there is penetration of a bodily orifice by another sexual organ, while male victims who report crimes of sexual violence should not face the risk or fears of possible prosecution for homosexuality or sodomy. [3]
[1] Dolan C, ‘Into Mainstream: Addressing Sexual Violence against Men and Boys in Conflict’, Refugee Law Project, War Child and Plan (Makerere: RLP, 2014)
[2] Ibid
[3] Watson C, ‘Preventing and Responding to Sexual and Domestic Violence against Men’, 2014.