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.
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