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Safety Denied: Victim and Witness Protection in Sexual Violence Cases

Sexual Offences Act Implementation Workshop 2011


This paper is the culmination of a research collaboration between AIDS-Free World and the International Justice Clinic of the UCLA School of Law. The paper maps existing victim and witness protection practices in order to identify challenges, strengths, and essential constituent parts of effective witness protection for sexual violence victims. It provides a background for AIDS-Free World's panel on victim and witness protection at the Sexual Offences Act Implementation Workshop being held in Naivasha, Kenya. The introduction to the paper is below, and the full paper can be downloaded here (PDF, 544KB).

I.

During armed conflict or political instability, or in their aftermath, the pathway from sexual violence to a perpetrator’s punishment is often strewn with barriers, leaving the victim subject to threats, emotional trauma, and physical ailments long after the initial crime. The country in which the conflict occurred may lack the full or appropriate legal and forensic tools to investigate and prosecute the crime. Social and cultural prejudices often implicate the victim in the cruelty done to her. Infrastructure — from courtrooms to prisons, from hospitals to safe houses — may be inadequate or even nonexistent, or it may compromise victim security and privacy. Law enforcement and other actors in the justice sector regularly lack requisite training, or there may simply be too few professionals to conduct investigations and try cases. Communities seeking to rebuild after violence rarely prioritize vindication of the rights of women, sexual violence’s chief victims. Political leaders often do not see sexual violence as a major crime, or worse, they may deploy such violence as a tool against their adversaries. As a consequence, governments in conflict often do not punish perpetrators of sexual violence, leaving victims at risk of further harm and fueling the rise of such criminality.

By contrast, an effective criminal process transforms the survivor from victim into protected participant, a witness, in the search for justice and accountability. But a system suffering from legal, social, infrastructure, and political impediments discourages the victim from reporting the crime, speaking to investigators and testifying in court. Perversely, these barriers protect perpetrators and facilitate further violence (and the scourges associated with sexual violence, such as high HIV infection rates, persistent gender inequality, and claims for retribution). They make it nearly impossible to know the extent of the crimes and to have appropriate data with which to address them. Societies determined to confront sexual violence need to address this fundamental question: How can they create safe space for the victim to participate in the process of accountability? How can they tear down the barriers of prejudice, incapacity, and political aversion that stand in the way of victims coming forward? In short, what are the fundamental elements of witness protection in sexual violence cases? These are the questions at the heart of this report.

Witness protection programs serve many purposes. They provide opportunities for victims to participate in a criminal process. They offer the hope of accountability. They give threatened witnesses a way to seek shelter far from the scene of their victimization. Witness protection also provides a space in which individual traumas may be treated, enabling a victim to move into a position with more control over her own life. Even beyond the specific protection of witnesses in criminal trial, a protection program can beneficially address other social ills. Take, for instance, exposure to HIV. A number of high HIV burdened countries are the sites of armed or political conflict. Even in countries with low HIV prevalence rates, sexual violence is a critical driver of HIV, as it renders its victims more susceptible to HIV than consensual sex. Unprotected sex carries a risk under any conditions, but the risk intensifies when sex is forced, as the resulting cuts and abrasions increase the likelihood of HIV transmission if the aggressor is HIV‐positive. Girls are at exceptionally high risk of contracting HIV through rape because their genital tracts, not fully mature, are particularly vulnerable to abrasions that allow the virus to enter the body. For those victims who are HIV‐positive, rape by an HIV+ perpetrator may cause re‐ infection, which further compromises their immune systems.

An effective witness protection program should ensure access to HIV testing and, in the event of a positive result, treatment, as well as services that would enable compliance with a treatment regime dependent upon regular food, consistent medication, rest, and access to medical professionals. Victims who know or suspect that the perpetrators of sexual violence have infected them with HIV bear a double stigma: that of sexual violence victim, and of person with HIV/AIDS. The stigma is so powerful that the women are often left to choose between justice and community. Most women end up remaining within their communities, but at a tremendous cost. As an activist working in a Kenyan NGO has said, “There are many reasons to remain silent.” Effective and comprehensive witness protection programs that provide access to justice as well as to crucial psychological and medical services help challenge the impunity that makes ongoing sexual violence — and, therefore, a further spread of HIV — inevitable.

II.

This report is the culmination of research in which AIDS‐Free World commissioned the International Justice Clinic of the University of California, Los Angeles (UCLA) Law School to explore the challenges of witness protection in sexual violence cases in the context of armed and political conflict. AIDS‐Free World asked UCLA law students to map existing victim/witness protection practices in order to identify challenges, strengths, and essential constituent parts of effective witness protection for sexual violence victims. AIDS‐Free World intended (and intends) to utilize this research to inform its ongoing project on legal accountability for sexual violence, and to enable it ultimately to advocate for strengthened victim/witness protection.

Working with UCLA Law School Professor David Kaye, UCLA law students first researched and identified several “case studies,” including victim/witness programs in Colombia, Liberia, and Sierra Leone, all of which were countries selected for their history and ongoing problems with crimes of sexual violence, both international and domestic, as well as concerns about the spread of HIV. Additionally, students examined the witness protection programs at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the Special Court for Lebanon (SCL), and the Special Court for Sierra Leone (SCSL) on the premise that these programs, given their experience and resources, might offer useful insights. Carey James, Jacob Mutert, and Jaimie Thomas researched the programs in the international tribunals in The Hague; Priyan Chandraratna, Farnoosh Hashemian, and Nicolle Kownacki examined programs in Colombia; Leila Moshref and Mary Tanagho looked at victim/witness protection in Liberia; Aleta Sprague and Taylor Vernon conducted research on Sierra Leone initiatives; and Keiara Auzenne and Vanessa Baehr‐Jones Vanessa undertook general research. The researchers conducted dozens of interviews with court officials, prosecutors, witness protection officers, lawyers, activists, and other civil society representatives in Bogota, Monrovia, Freetown, and The Hague, as well as undertook extensive research examining court documents and decisions, NGO reports, and other relevant materials.

This report first examines how witness protection operates at the international level, primarily at the International Criminal Court in The Hague. Second, it presents three cases studies in order to detail the kinds of challenges witness protection faces in post‐conflict and ongoing conflict situations. Colombia, Sierra Leone and Liberia present vastly different experiences from international practice. For instance, witness protection at the ICC generally occurs in the context of efforts to hold senior officials responsible for the crimes of their subordinates, which is often very different from accountability for specific, lower‐ranking perpetrators at the national level. Further, witness protection at the international level involves resources and funding that exceed the capabilities of many national programs. Still, the kinds of protections that must be offered to victim/witnesses are similar across the case studies—physical protection from further harm and retribution, psycho‐social and medical support for those who participate in the criminal process, education of the wider community to tear down common prejudices that lead to further harm and impunity. This report aims to highlight the challenges in establishing effective witness protection programs while identifying questions for ongoing consideration and research.

This report suggests that governments must establish effective witness protection programs if they are genuinely committed ending impunity for sexual violence. In particular, the following elements require further investigation:

Law: Deficits in legislation vary from country to country, when it comes to the law necessary to protect witnesses. In some situations — such as observed in Sierra Leone and Liberia — national laws clash with traditional law, in which case accountability may be secondary to reconciliation in the community or between families of perpetrator and victim. Others lack the law necessary to investigate and prosecute crimes of sexual violence. In still other situations, such as observed in Colombia, the law provides for investigation and prosecution, but isn’t actually utilized to prosecute sexual crimes when other crimes, especially murder, are taken more seriously. The lack of prosecution of sexual violence undermines witness and victim security, leaving perpetrators free to continue to commit more crimes.

Infrastructure: Basic elements of legal infrastructure are missing in Sierra Leone and Liberia. Courts often leave witnesses minimally protected, their identities subject to disclosure. The prisons are ineffective at holding perpetrators, who may easily escape. Few safe houses exist to provide havens for those who wish to testify against their perpetrators. Too few trained judges, prosecutors, and private lawyers exist to try cases of sexual violence in a timely fashion. Any viable infrastructure is often distant from villages where such violence occurs. Few medical professionals and psychologists exist to provide essential services.

Psychosocial and medical support: One of the areas in which international tribunals excel is the kind of support provided by trained psychologists with specializations in vulnerable populations. Protection involves not only physical protection but also treatment for the kinds of recurrent emotional and physical harms that often come from the trauma of sexual violence. This level of psychosocial and medical support is typically unavailable in Sierra Leone, Liberia, and Colombia.

Education and outreach: Research thus far indicates that victim/witness protection depends not only on the mechanical aspects of courts and other facilities, but also on the existence of communities that support accountability for sexual violence. Widespread prejudice against victims of sexual violence leads to stigma and physical harm. Programs to support witnesses, even if they function effectively, will operate in a vacuum if the entire community is not engaged promote a broader understanding of why accountability for sexual violence is critical to ending it.

Download the full report Safety Denied: Victim and Witness Protection in Sexual Violence Cases here (PDF, 544KB)

Read more about AIDS-Free World's panel on victim and witness protection

Read more about the Sexual Offences Act Implementation Workshop

Read the press release on the Sexual Offences Act Implementation Workshop

View the program for the Sexual Offences Act Implementation Workshop (PDF, 292KB)