The first Penal Code introduced in Rwanda in 1940 by the colonial power criminalised rape without defining it.249 In 1977 another Penal Code was adopted, but it also did not define rape.250 Instead, the meaning of rape has developed within criminal jurisprudence and doctrine which came to define rape as an act of sexual intercourse imposed by a man on a woman without her consent, by use of violence, threat or fraud.251 During the preparation of the GBV Law, Parliament observed that it was necessary to provide a statutory definition of rape. The GBV Law consequently defined rape as “sexual intercourse without consent, by force, intimidation, trices and others.”252 The 2012 Penal Code changed this definition by replacing the word “trices” with “trickery” and deleting “and others.” It specifies that rape consists of “non-consensual sexual intercourse by using force, threat or trickery.”253
There is as yet no available literature evaluating how useful or problematic this definition is. However, there are foreseeable problems with this definition given that research in other jurisdictions that have adopted a similar provision has revealed that it may fail to properly protect women’s sexual autonomy. It does not encompass all situations where the lack of consent is present and may therefore leave unpunished some unwanted acts of sexual intercourse. A similar definition in other jurisdictions such as England and Wales has in the past facilitated the requirement of use of force by the offender and physical resistance by the victim for the offence of rape to be established. This has been prejudicial to victims because non-consensual intercourse outside these requirements was not punished. The legal definition of rape in Rwanda may potentially lead to such interpretative issues especially considering the name of the offence in Rwandan language
249
Article 170 of the 1940 Penal Code.
250
Article 360 of the 1977 Penal Code.
251
Nkubito (1995), p.50.
252
Article 2, 6° GBV Law.
253
which is centred on the term “ingufu”, meaning “force.”254 Exploration of parliamentary debates on the GBV Law reveals that the only issue discussed regarding the definition of rape concerned the choice of the right word expressing the concept of force in the definition.255 This illustrates the understanding that the crux of the definition of rape is the use of force. However, the legal definition adopted does not require force as the only factor showing the lack of consent in the offence of rape, as it also cites “threat” and “trickery”. The problem, as stated above, is therefore the interpretation of the definition which may tend to require force, and the issue of situations of non-consensual sexual intercourse not included in the definition.
Another foreseeable issue in current Rwandan rape laws is the absence of a specific procedure for rape trials. It was seen above in relation to the prosecution of sexual offences in gacaca that victims of rape faced tremendous difficulties with gacaca and that the law was amended to protect them. However, there is no provision protecting victims of post-genocide rape in regular courts. In other jurisdictions, due to biased rules of evidence that have prevailed in the legal process for rape and the humiliation often experienced by victims in courts caused partly by the influence of rape myths (see Chapter 1), many countries have adopted “rape-shield” laws meant to protect victims during the justice process. The absence of such laws in Rwanda may potentially facilitate unfair processes and mistreatment of victims in courts. Yet while there are a number of legal and definitional issues arising from the law, one cannot simply assume that they affect the legal process for rape in Rwanda in exactly the same ways as have been identified in other contexts. Although many of the issues, mostly relating to consent, will be similar to those jurisdictions, both the nature of sexual violation and its legal recourse must be understood within the historical and cultural contexts in which they occur. This thesis explores many of these contextual issues throughout the following chapters.
While this thesis was being finalised, a new amendment of rape laws was adopted by Rwandan parliament.256 A quick analysis of the new provisions indicates some positive changes. First, the amendment improves the concept of consent. It specifies that the lack
254
Art 1 of the GBV Law calls rape “gufata ku ngufu” which literally means “to take by force” and the 2012 Penal Code names it “gukoresha imibonano mpuzabitsina ku gahato” which means “sexual intercourse by force.”
255
PV 91, pp. 16 and 22. The discussions were about the use of one of the following terms: “ingufu”, “kiboko”, and “imbaraga”. All these mean “force.” The final text adopted the word “imbaraga” which is more formal (Article 1.6).
256
of consent will be established by use of force, threats, trickery, abuse of authority and exploitation of victim vulnerability.257 By adding the last two factors, this new definition of rape potentially encompasses situations of non-consensual sexual intercourse that could not be included in the previous. Second, the actus reus of rape now includes penetration of a sexual organ into the anus or mouth and insertion of any object into the anus or sexual organ. These acts are comparably harmful and humiliating as unwanted sexual intercourse, so the change is relevant.
However, the new law also contains some questionable modifications and omissions. Marital rape is no longer treated as rape; it is now called “sexual violence against a spouse.”258 It is placed among offences against morality, unlike rape which is in the category of sexual offences. This contradiction shows that the law continues to make a hierarchy of victimhood for rape victims, as noted above. Moreover, the new law does not introduce specific procedures for the prosecution of rape. The absence of “rape-shield” laws protecting victims against possible gender biases during the legal process still persists. In sum, the latest change makes some improvements but it does not address all possible issues pointed out above. This third amendment in ten years indicates that the legislature is continuously looking for appropriate rape laws to tackle sexual violence but there are still lacunas in law. This reinforces the pertinence of the present study.
CONCLUSION
This chapter has analysed the development of rape laws in Rwanda since 1994. It started with the laws adopted in the aftermath of the genocide to punish the perpetrators of genocide. The genocide laws demonstrated a resolve to punish rape in the most severe way. As Rwanda adopted the use of gacaca as the best available approach to repress genocide while pursuing national reconciliation, gacaca managed to bring communities including victims, face-to-face with nearly two million genocide suspects. Many pleaded guilty, benefiting from significant reductions of penalties aimed at encouraging confession and ultimately speeding up the proceedings and creating the opportunity for reconciliation. Given that gacaca were popular courts with active participation of the community, rape victims experienced considerable difficulties in gacaca because their
257
Article 134, Ibid.
258
participation was generally accompanied with stigmatisation and sometimes humiliation, so many victims refrained from testifying. On the other hand, most perpetrators also abstained from confessing rape because this did not imply any advantage for them in terms of reduction of penalty, given the uncompromising stance of the law regarding punishments for rape as opposed to other genocide crimes. All this resulted in sexual violence playing a smaller rolein genocide trials. However, this should not completely obscure the unprecedented achievements of gacaca with regards to repressing wartime and genocide rape. This is the first system that has managed to hold accountable millions of wartime and genocide offenders including thousands of rapists while these have historically remained unpunished across the world.
While dealing with genocide justice, Rwanda has undertaken another campaign against post-genocide gender violence. A legal reform in 2008 was introduced to address gender violence, along with other measures described in Chapter 1. Several positive changes were made by this new legislation including criminalisation of sexual harassment and abolition of some discriminatory provisions. With regard to rape, two major amendments were introduced: criminalisation of marital rape and adoption of a statutory definition of rape. However, analysis of these changes revealed that they are still influenced by bias against women and might not bring about the results intended.
The following chapters of this thesis examine what impacts these new laws are having on rape cases in Rwanda and whether they remain inhibited by the existing legal framework and the cultural contexts that have allowed some degree of tolerance of violence against women in Rwanda. The thesis goes on to explore the extent to which the new provisions are being used by the courts to adequately protect women from sexual violence and punish sexual violence offenders. Specifically, it focusses on the role of rape myths in affecting how effectively the provisions are applied. As part of this endeavour, the thesis examines the foreseeable issues in the law of rape using empirical research.