February 18, 2014 (Sihanet) –The Ethiopian woman in Khartoum, Sudan, who was gang raped by seven men, has been denied by the Attorney General the ability to make a formal complaint of rape and thus instigate a full investigation. She has instead been charged with adultery which carries the potential sentence of death by stoning.
In August 2013, a young Ethiopian woman was lured to an empty property and then brutally gang raped by a group of seven men. The incident was filmed by perpetrators but was then distributed six months later in January 2014.
Both the perpetrators and the Ethiopian woman have been arrested and initially investigated under Articles 153 and 154 of the Sudanese criminal code which relate to the making and distribution of indecent material and indecent behaviour. Since the court case began on the 6th February 2014, the charges against the woman and the seven perpetrators have been amended to include Articles 151 referring to scandalous acts, 154 relating to prostitution, and 146 which refers to adultery. In addition to those directly involved in the gang rape, a further two individuals have been arrested in relation to the crime: A police officer who saw the victim crying soon after she had left the house and to whom the victim had spoke of her ordeal. The police officer decided against pursuing an investigation as it was a public holiday (Eid Al Fitr). He has been charged with negligence. Furthermore, a NISS police officer also distributed the video online. In total, ten individuals are currently on trial within the case.
The intention to place culpability on the part of the victim, is of great concern and seeks to deflect and reduce accountability of the perpetrators, but more disturbing is that the charge of adultery carries with it the potential sentence of death by stoning if found guilty.
The victim is currently attempting to make a formal complaint of rape to instigate a full investigation. Nonetheless the Attorney General has denied her this on a technicality relating to her currently being under investigation for other charges. The Attorney General has claimed that she should have made a complaint at the time of the incident – this is despite the fact there is no legal prohibition regarding time frames within which one must formally register a complaint. This decision is being appealed, and the decision being awaited.
It is of note that the woman, in the aftermath of the rape, was found by a police officer to whom she explained what had happened. Instead of instigating a complaint, the officer dismissed her issues, which along with the threats of violence against her by the perpetrators, discouraged her from pursuing the case at the time. The officer in question has been identified and is now under investigation for negligence.
Denying her the ability to make a formal complaint which serves to refute the charges being laid against her and pursue justice, renders the perpetrators immune from accountability and violates the rights of the victim. It furthermore is prohibitive of her making a future complaint should the current trial follow through to completion as it is illegal for persons to be tried using the same facts and evidence as deployed in an earlier trial which has been brought to a concluding judgement.
Even if the Attorney General allows for a formal complaint of rape to be made, the likelihood of success is limited, although much evidence has come to light during the trial to indicate that she was forced against her will. The ambiguity of Article 149 defining rape as committing non-consented Zina (adultery) is in itself problematic, since the article stands alone without legal explanatory notes rendering it open to arbitrary interpretation. The vague legislation with a strong burden of proof on the victim has meant that few cases are ever successfully prosecuted and often victims are prosecuted and persecuted through Article 146, adultery, which presents the potential sentence of death by stoning.
The Ethiopian woman, who is 18 years old, is also nine months pregnant, and was three months pregnant at the time of the rape itself. Despite requests for bail which have been denied by the Attorney General, she is being held in a bare police cell and until recently was without a mattress or access to suitable food or clothing, all of which SIHA Network has since purchased and provided.
Where the police and judicial authorities have an obligation to investigate, prosecute and punish, they must uphold their obligations under local, regional and international law inclusive of commitments to the African Charter on Human and People’s Rights and the International Covenant on Civil and Political Rights.
SIHA demands the immediate release of the woman or her transfer to hospital to receive necessary medical attention. Moreover, SIHA believes that the Attorney General should ensure that the victim is immediately able to file a rape case against the perpetrators and directs a full investigation into the crimes of rape and sexual violence. SIHA further demands that the international community exerts pressure upon the Sudanese government and judiciary to enable the victim to formally make the complaint of rape and thus enable suitable proceedings against the perpetrators to fully hold them to account.
SUDAN: ETHIOPIAN MIGRANT PREGNANT RAPE SURVIVOR STILL INCARCERATED AND PREVENTED FROM FORMALLY REGISTERING HER COMPLAINT OF RAPE
4th February 2014
A young pregnant Ethiopian woman who was subjected to gang-rape has been sleeping on the concrete floor of a cell inside a police station since her arrest on the 17th of January.
The victim, who is nine months pregnant, was subjected to gang-rape last August during her search for a house to rent in Omdurman. One of the accused, who number seven in total, lured her into an empty property where she was attacked and gang-raped by the young men who are understood to be between 18 to 22 years old. The gang-rape was filmed by one of the perpetrators and was circulated on WhatsApp and showing the men taking turns on the 18-year old young woman.
The victim informed the lawyer working on her case that she was threatened with murder if she was to reveal what happened and consequently didn’t report the rape out of fear.
Although the victim needs psychosocial support and medical attention, she remains in a cell. An application to bail her out based on her health condition has been refused, twice, on grounds that the investigation is still ongoing under Articles 153 and 154 of the criminal code, referring to the making and distribution of indecent material and indecent behaviour. A key argument as to why the Attorney General has refused to grant bail was that one of the accused had not been arrested. As of last week, the last perpetrator was caught by the police which should facilitate the guaranteeing of bail to the victim – nonetheless this as yet is still being awaited in-spite of repeated requests by legal representatives.
Moreover, an application to the Attorney General was submitted on behalf of the victim, to arrange a meeting and file a rape case against the perpetrators, however, the Attorney General has so far refused to meet the victim stating that there is no clear provision in the criminal procedures act of 1991 which gives the victim a right to a meeting while she is detained and is in custody.However this is seen as a point of interpretation as there is similarly no clear provision to deny her this right either.
By preventing the victim from making a formal complaint of rape, she is denied the opportunity for a formal legal investigation into the crime and could render the perpetrators immune from justice. Where the police and judicial authorities have an obligation to investigate, prosecute and punish, they must uphold their obligations under local, regional and international law inclusive of commitments to the African Charter on Human and People’s Rights and the International Covenant on Civil and Political Rights.
SIHA demands the immediate release of the woman or her transfer to hospital to receive necessary medical attention. Moreover, SIHA believes that the Attorney General should ensure that the victim is immediately able to file a rape case against the perpetrators and directs a full investigation into the crimes of rape and sexual violence.
Source: Strategic Initiative for Women in the Horn of Africa (Sihanet)
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