Sexual violence and harassment in BiH: Civil society organizations persist in the fight for fairer laws

This marked an important step in enhancing the protection of integrity of women and girls.

The amendments, which now clearly define the relationship between perpetrators and survivors, were initiated by the Banja Luka-based civil society organization United Women, known for its longstanding fight against gender-based violence. With these changes, it is no longer necessary for survivors to be in a subordinate relationship or to be particularly vulnerable due to factors such as age, old age, disability, or pregnancy.

"This amendment contributes to greater protection because now the victim of sexual harassment can be anyone; it's not just a person in a subordinate position to the perpetrator of violence," explains Gorica Ivić, executive director of United Women.

Another significant change is that this criminal offense is now prosecuted ex officio rather than at the victim's request, as it was before. As stated in the adopted initiative, this is important because survivors of sexual harassment find it difficult to decide to report, and it is not realistic to expect them to propose criminal prosecution.

However, despite the progress made, it does not mean that the legal framework regulating sexual violence and harassment in BiH is fully aligned with the Istanbul Convention on preventing and combating violence against women and domestic violence. Another civil society organization, Foundation Lara from Bijeljina, advocates for redefining the crime of rape, which currently lacks adequate definition in both BiH entities.

"The definition of rape as a sexual act without the consent of the other person, not just an act committed by the use of force and threat, is the threshold we want to cross. It would change the societal attitude toward sexual violence that still predominantly affects women and girls and is unfortunately rarely reported," explains Radmila Žigić, executive director of Foundation Lara.

Activists have already discussed this change, which would contribute to women's sense of safety and their right to make decisions about their own bodies and sexuality, with representatives of the judicial community. According to Žigić, younger judges and prosecutors are open to change, but conservative views have been expressed, stating that during the trial, it is necessary to determine how much the survivor contributed to the criminal offense and whether she resisted.

"Gender biases and distrust in the victim's testimony can be interpreted from this resistance," concludes Žigić.

Amer Homarac, legal representative of Foundation for Local Democracy in Sarajevo, believes it is important to stop viewing the crime of rape through the prism of force and coercion. He explains that the criminal legislation in the Federation of BiH, established in 2003, must now be harmonized with continuously improving international standards.

"It's no longer a matter of whether force will be used; it's crucial that someone does not want such an act, and any action performed without consent constitutes the basic form of the crime of rape."

The initiative for amendments to the Criminal Code in Federation of BiH has passed the first phase of the parliamentary procedure and has been adopted in draft. It also partially addresses another important issue – recording and sharing explicit content, says Homarac.

"Recording explicit content of a sexual nature where participants, with or without consent, are abused, and extortion takes place, is a very current and significant problem of the modern age where such content is easily shared via internet. There is a need to regulate this segment, and the new proposal, or draft law, addresses that too."

Waiting for the right moment for change

Advocating for certain legal changes requires a lot of effort, knowledge, and accumulated experiences from other countries. Gorica Ivić says that the initiative submitted by United Women went through a well-thought-out process that involved important legal authorities. The positive result was also due to the fact that this non-governmental organization has become recognized as an important partner with the capacity to influence laws and propose changes.

"The civil society sector is a corrective factor that observes this area. I think this was a good example of an advocacy, well-planned process, and we succeeded because the organization already has credibility," says Ivić.

The initiative of United Women was submitted as part of the project "Banja Luka - A City with Zero Tolerance for Sexual Violence and Harassment" in collaboration with UN Women and with the support of Sweden.

Representatives of organizations United Women, Lara, and FLD are also members of the Action Coalition on Gender-Based Violence established by UN Women BiH in 2021 as part of the global initiative Generation Equality. Since then, numerous individuals from the government, non-government, and judicial sectors have signed the membership declaration to work together to improve the legislative framework regulating sexual violence and harassment. Meetings of the Action Coalition represent a rare opportunity to discuss improvements in this area, ongoing problems and next steps.

"The previous meetings of the Action Coalition have been important for exchanging experiences from the field and conducting an overview of the situation. This is quite challenging in the complex legislative system that BiH has, and that's why it was important for us to periodically gather key stakeholders to inform each other in a timely manner about their advocacy and other activities in the fight against violence against women and girls," says Mersiha Zulčić, project coordinator at UN Women BiH.

The legislative changes are one of the many steps that need to be taken for women and girls to feel safe and protected in their environment. In this process, changing public awareness remains crucial, as the public still tends to blame women in cases of sexual violence and harassment. Therefore, it is important for the legal framework to advance beyond the current public perception.

"The general public perception regarding criminal legislation and any repressive mechanism can be positive or negative, but the fact is that if there is a prescribed criminal offense, public perception becomes secondary to what is primary – that someone will be prosecuted for the offense they committed," concludes Amer Homarac.