Rape Law Inadequate, Outdated, Experts Say

The man accused of raping the 6-year-old girl was arrested, jailed and put on trial. But the outcome of the case was not what many had expected.

When Kandal provincial judge Kong Kouy ruled on the case in January, she lessened the charge from rape to indecent assault and sentenced the 19-year-old man to six months in jail because he had not “penetrated deeply.”

“If he stops without deep penetration,” she said, “the case would be indecent assault.”

The case and its ruling highlight some of the problems prosecutors face when trying to convict accused rapists—if a rape case even makes it to court.

Countrywide, victims of rape face daunting challenges if they want to bring their assailants to justice. An ambiguous law, a weak court system, gender in­equalities and a society that values a girl’s virginity to oppressive extremes all stand in their way, prosecutors and activists agree.

If someone hasn’t “heard the voice calling for help, or if the [underwear or garments] aren’t torn,” it is hard to get a conviction, Kompong Thom prosecutor Huot Hy said.

Also, the failure of judges to follow the law can lead to acquittal or the minimum sentences in many cases.

In 268 cases handled by the Cambodian Defenders Project since 1994, 41 percent of the accused were acquitted and 47 percent received the minimum sentence.

“The [law] is out of date,” said Sok Sam Oeun, director of the Defenders Project. “It was created in the 1990s, but now there are other ways” to commit rape.

The Defenders Project recently hosted a meeting of legal experts and members of the Ministry of Women’s Affairs to try to stitch up holes in the law. Their recommendations will be sent to the National Assembly before it considers a new draft law on rape.

Article 33 of the current Untac law defines a rapist as “any person who commits a sexual act involving penetration of another person or attempts to commit a sexual act involving penetration of another person.”

The definition for penetration is especially unclear, experts say, and does not distinguish between anal and vaginal penetration. The law also does not define what depth of penetration constitutes rape or whether foreign-object penetration is rape.

“I’m not satisfied with the meaning [of the current law],” Women’s Affairs Ministry Mu Sochua said. “You know how much it can hurt a girl when she is penetrated by a bottle neck.”

Sometimes a clear law is not enough. Experts say there are other obstacles they face when trying to prosecute accused rapists. In many cases, the victim’s testimony is not sufficient, and prosecutors say finding evidence or witnesses can be difficult.

There are also bureaucratic considerations, like waiting for doctors’ reports from an examination of an alleged rape victim.

In one case, “it took one month for the court to certify a letter from the doctor saying a girl was raped,” said Kry Sok Y, a Kandal province deputy prosecutor. “By then, the defendant’s lawyer will say that the victim might have had sex with many others after the crime happened.”

Other challenges are evidence collection and tight budgets, said Kompong Cham deputy prosecutor Sam Sarun. “Sometimes the clothes [and other evidence] are gone, and what’s more, I don’t have a travel budget,” he said. “Then the evidence is not clear, and I lose the argument with the [defense] lawyer.”

Based on available statistics, reported rapes are on the rise nationwide, but the numbers vary widely depending on the agency reporting the figures. The number of women who reported being raped increased by nearly 30 percent in 2000 to 216, compared to 165 cases in 1999, according to a recent Interior Ministry report.

The Women’s Crisis Center dealt with 174 rape victims from January to November last year. But that number, said center Executive Director Chanthol Oung, represents only the worst cases of rape. If a woman is threatened with repeated rape or is so badly injured by the attack that she cannot hide the truth, then she will come forward, Chanthol Oung said. Otherwise, she often will stay silent.

“In Cambodia there is a saying,” Chanthol Oung said. “If your skirt is torn, no one should see it.”

If a woman loses her virginity before she becomes a wife, she is generally considered unfit for marriage. And a rape victim is often blamed for the crime herself—for venturing places alone or provoking men—Chanthol Oung said.

“More of the blame goes to the victim, not the perpetrator,” she said.

Because courts don’t always prosecute a suspect, it is left up to the suspect and the family to settle the dispute, sometimes with payoffs or forced marriages.

Especially in rural areas, Chan­thol Oung said, villagers will try to hold a man responsible for the woman he raped by making him marry her.

“The community thinks it’s a punishment for the man, but actually its a punishment for the woman,” she said.

Also, Chanthol Oung said, “some cases are very, very difficult because of corruption.”

Some prosecutors say they face an ethical dilemma taking a father accused of rape away from a desperately poor family that has no other source of income.

“One mother begged me to free the husband who raped [his step-daughter],” said Kompong Chhnang prosecutor Mork Pany. “She asked how her whole family could survive without the man.”

In Takeo province, Chanthol Oung said, there was a case where a woman was gang-raped by seven men. All of them confessed to the rape. But, when they went to court, they were all acquitted.

Because they had been born during the violent Khmer Rouge regime, the judge said, they were uneducated and did not know better.

 

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