Sexual violence laws in Georgia, Kazakhstan, Kyrgyzstan and Uzbekistan are outdated and still require survivors of rape and sexual assault to ‘prove’ that physical force was used to commit the offence, according to a new report by Equality Now, an international women’s rights organisation.

In Ukraine, on the other hand, the government has improved the laws on criminalising and prosecuting rape but is struggling to administer them.

“Strengthening sexual violence laws is key for survivors to get justice and for perpetrators to be held to account, which is extremely difficult with the current legislation [in Georgia, Kazakhstan, Kyrgyzstan, and Uzbekistan],” Tamar Dekanosidze, Eurasia representative for Equality Now and a co-author of the report, told openDemocracy.

The report calls for these Eurasian countries to revise their sexual violence legislation towards consent-based definitions of rape and sexual assault, and remove the requirement to prove physical violence.

“These provisions allow impunity for perpetrators and deny justice to victims,” said Dekanosidze.

Ukraine: problems with application

As a former member of the Soviet Union, Ukraine used to share similar definitions of rape with Georgia, Kazakhstan and Kyrgyzstan. Now it’s the only country in Eurasia that has amended its definition of rape based on international human rights standards.

In 2019, Ukraine changed its criminal code to define rape as sexual penetration “without the voluntary consent of the victim”. Consent is deemed voluntary if it is “the result of a person’s free act and deed”. But local experts have said Ukrainian law enforcement isn’t adequately applying the new consent-based definition, the report said.

It explained that lower courts continue to struggle with the concept of consent, focusing instead on “stereotyped expectations of victims’ behaviour”.

This makes it difficult to report rape. If a survivor files a police statement after the crime, conducting a forensic medical examination is impossible. Without physical evidence of sexual intercourse, the odds of the survivor’s case reaching the courts are slim. And even if it does, the lower courts often resort to victim-blaming by commenting on the survivor’s appearance and actions prior to the sexual assault.

“Changing laws isn’t sufficient if this is not accompanied by strong implementation measures and procedures that aren’t influenced by gender stereotypes,” Dekanosidze said, adding that reform is not effective if the evidence required to prove rape is extremely burdensome and the survivors’ dignity is not respected during the proceedings.

In July 2022, Ukraine joined 36 other countries in ratifying the Istanbul Convention on preventing and combating violence against women. The convention requires members to implement sexual assault legislation or other measures that enshrine the concept that consent must be given voluntarily in circumstances that reinforce a person’s free will.

Gendered stereotypes and myths

Georgia ratified the Istanbul Convention in 2017. Nevertheless, unlike Ukraine, its sexual violence laws still narrowly define rape through the use of physical force, rather than acknowledging the possibility of other forms of coercion, such as psychological or economic harm.

Without the use of violence to force a woman into a sexual act, the offence is not considered ‘rape’ in Georgia, but “coercion to intercourse”, which is treated as a less serious crime.

The Council of Europe’s Group of Independent Experts on Action Against Violence against Women and Domestic Violence (GREVIO) has advised Georgia to amend its laws to reflect that “any sexual act performed on another person without his or her freely given consent is a form of criminal behaviour” – as stated in the Istanbul Convention. Nevertheless, the law remains unchanged.

“Rape is inherently a violent act,” Dekanosidze said. “There should be no requirement in law to demonstrate that a perpetrator used additional violence or force.”

Meanwhile, in addition to the need to prove physical force, Kazakhstan, Kyrgyzstan and Uzbekistan continue to define the crime of rape only as penile-vaginal penetration, rather than including penetration of other orifices of another person’s body with any body part or object without the victim’s consent. Georgia and Ukraine, on the other hand, don’t make any distinction between the means of assault.

All five countries reviewed in the report have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which requires states to “repeal all national penal provisions which constitute discrimination against women”.

“Prosecutors and judges should not be influenced by gender stereotypes and rape myths and should recognise that there is no ‘typical behaviour’ when responding to sexual violence,” Equality Now said in the report.

‘Yes means yes’: a consent-based model

According to GREVIO and Equality Now, Belgium, Malta and Sweden have the most “promising” practices against sexual violence, most closely in line with international human rights standards.

Each of the three countries uses a ‘yes means yes’ model where consent should be enthusiastically expressed through actions or words.

For GREVIO, this is an improvement to the ‘no means no’ veto model that assumes sex is consensual until someone expresses ‘no’, leading to an over-reliance on evidence of resistance by the survivor, which contradicts international standards.

Notably, in Sweden, the law amended in 2018 criminalises a range of situations that were not previously punished, such as situations where there is no use of violence or threat, and cases of ‘surprise rape’, where sexual penetration is committed unexpectedly.

“The criminal justice system can send a strong message to the society that sexual violence is a grave human rights violation and that it is not justified,” Dekanosidze told openDemocracy.