Social and psychological consequences of sexual violence go beyond formal legal frameworks

The purpose of the study “Criminal law protection, legal and social status of survivors of sexual violence in BiH” is to shed a light on the status of sexual violence survivors in Bosnia and Herzegovina. The Study analyses the legal framework, court verdicts and public attitudes in a comprehensive overview of different social actions and policies available for protection of women and girls who are statistically most vulnerable to violence. We spoke to one of the study authors, Ms. Ivanka Marković, professor at the Law School in Banja Luka, about the nature of court decisions in sexual violence cases in BiH.

The Study was developed within the project “Break the Silence” which was jointly implemented by  Foundation Lara from Bijeljina and  Foundation for Local Democracy from Sarajevo, together with UN Women BiH and with the financial support of Sweden.

Within the study “Criminal law protection, legal and social status of survivors of sexual violence in BiH” you analysed 22 court decisions on sexual violence cases in BiH. To begin with, how much are court decisions in this field analysed and criticized in general, and how can this contribute to changes and improvements in the area?

Court decisions in the field of sexual violence are most often analysed in certain expert and scientific works or projects dealing with this issue, in order to find the best solutions in terms of the relevant legislation and jurisprudence. The publication of results of the quantitative and qualitative analysis of verdicts is of utmost importance, as a way to inform the public about the positions established in the case law related to these cases. On the other hand, members of the judicial community have the opportunity to see other courts’ verdicts, which can also influence their attitudes and the application of the law. Let me note that the verdicts in sexual violence cases have lately often been subjected to analysis and well-substantiated critique.

While analysing the verdicts, you observed that all survivors had known the perpetrators before the act, and in most cases maintained social contacts and relationships with them. Does that imply that abuse often happens in situations where a woman should feel the safest - in her home and in known and intimate settings?

In the majority of cases the perpetrator and the survivor knew each other, and in a significant number of cases they were also in some kind of a familial relationship. This is particularly prominent in cases of sexual violence against children, which implies that people we trust most often pose the highest risk of sexual violence. I believe I can state with certainty that a woman’s family, her home, and community in which she lives are the least safe for her. That is exactly where all forms of violence against women, including femicides, take place in most cases – in their families and amidst close friends.

One of the conclusions of the analysis is that judges and court panels often appear to take the perpetrator’s side, which is demonstrated by the lack of information on the survivors, while positive character traits and extenuating circumstances of perpetrators are regularly listed in verdicts. In your opinion, what information on survivors should be considered in the process of deliberation on a court decision?

It is correct that not much can be derived from the verdicts about the survivor. I analysed a verdict which contained no information on the age of the survivor, her family status, psychological trauma she suffered, etc., while all information on the perpetrator was duly provided. I find such an approach wrong, because the court is not able to mete out an adequate sentence in such circumstances.  In my opinion, to decide on an appropriate sanction, the court should consider all facts and circumstances in relation to the survivor, as it already does in relation to the perpetrator. Thus, if the court takes into consideration that the perpetrator is a father of two, it should also consider that the survivor is a mother of two for example, because the secondary victimisation affects the children as well. We are still a patriarchal society which continues to stigmatize rape survivors, and the stigma indirectly affects the children too. If the survivor is employed, the stigma spreads to the working environment, which further exacerbates the psychological trauma of rape, etc. The legal consequence of the criminal offence of rape is a violation of sexual integrity. However, social, and psychological consequences of this offence exceed the formal legal framework. Accordingly, the court should have this in mind when sentencing the perpetrator. 

To what degree are the sanctions imposed in the analysed verdicts proportionate to the gravity of the offence and how efficient are the proceedings? Do they meet the standards of the Istanbul Convention regarding the urgency of proceedings in cases of gender-based violence?

Even though the Istanbul Convention is binding, the law does not provide for an obligation of urgent action in cases of sexual violence. The analysis of court verdicts has shown that court proceedings were unjustifiably long in some instances, which added to the survivor’s victimisation. The lapse of time brings a relative psychological calm to the survivor, so that every subsequent encounter with the perpetrator triggers the survivor’s trauma. In terms of sentencing, we have seen mild progress over the recent years. The verdicts impose somewhat longer prison sentences than before. The reason for this lies in the change of the judicial community’s attitude towards this type of crime, and the fact that the Criminal Code of Republika Srpska excluded the possibility of leniency in cases of rape, sexual intercourse with a helpless person and sexual intercourse with a child under 15.  Generally speaking, however, sanctions for sexual violence remain just above the mandatory minimum sentence, which is not a proper deterrence for potential perpetrators of these offences.