It’s Time to Incorporate Consent Into Central Asia’s Sexual Violence Laws – The Diplomat
Central Asia’s sexual violence laws are out of step with international norms rooted in the recognition of consent as central to sexual relations, argues a new report from Equality Now. Equality Now is non-governmental organization that advocates for the protection and promotion of the human rights of women and girls.
The recently released report reviews sexual violence laws in five Eurasian countries — Georgia, Kazakhstan, Kyrgyzstan, Ukraine, and Uzbekistan. Given our focus here at Crossroads Asia, I’ll highlight the findings related to Kazakhstan, Kyrgyzstan, and Uzbekistan, but you can access the full report here.
In the criminal codes of the three Central Asian states, three main types of sexual violence are addressed: rape, assault of a sexual nature, and compulsion or coercion into acts of a sexual nature. In dividing these crimes, however, governments minimize some types of sexual assault, and none of the three countries incorporates the concept of consent into their legal frameworks.
As Equality Now’s report notes, “The crime of rape in Kazakhstan, Kyrgyzstan, and Uzbekistan is understood to only cover penile-vaginal penetration, rather than other orifices of another person’s body with any bodily part or object which that person has not consented to.” All three criminal codes also revolved largely around violence, the threat of violence, or abusing the helpless condition of the victim.
The Kazakh, Kyrgyz and Uzbek criminal codes also refer to “assaults of a sexual nature,” which relies on the same violence framework but frames such assaults with derogatory terminology — for example, Kyrgyz and Kazakh law references “sodomy, lesbianism or other acts of a sexual nature in a perverted form” and the Uzbek criminal code refers to “satisfaction of sexual need in an unnatural form.” In general, these crimes carry the same sentences as those deemed “rape” but are separated out.
Finally, “compulsion/coercion” is covered by additional articles in the three countries. Rape or assault of a sexual nature, as defined elsewhere, that has been committed using blackmail, “or the use of the material or other dependence of the victim” falls into this category in Kazakhstan and Kyrgyzstan. The Uzbek criminal code references “where the victim was in official, material or other dependence on the perpetrator.”
“This offense,” Equality Now writes, “is classified as a ‘less serious crime’ and carries lower penalties, despite being classified as rape under regional and international standards.”
“The problematic assumption behind these definitions is that if an act is not committed using physical violence or serious threats to life and health, it cannot amount to rape and could only be criminalized as a minor crime,” the report further states.
The differences are stark. In Uzbekistan’s criminal code, for example, the crime of rape — the definition of which is stated as “sexual intercourse with the use of violence, threats or using the helpless state of the victim” is covered by Article 118 and carries sentences of seven to 10 years, with aggravated forms involving victims under 18, “ close relatives” (though not usually interpreted to mean spouses), and “causing serious consequences” entailing sentences of 10 to 15 years. Article 119 — “Satisfaction of sexual need in an unnatural form with the use of violence” — is similar.
But when it comes to “Forcing a woman to have sexual intercourse,” Article 121 reads: “Forcing a woman to have sexual intercourse or to satisfy a sexual need in an unnatural form by a person in respect of whom the woman was in official, material or other dependence… shall be punishable by compulsory community service up to 300 hours, or correctional labor up to two years.”
This difference is generally mirrored in Kazakhstan and Kyrgyzstan (though there is some variation on the penalties), but again violence — in the physical understanding of the word — is the main difference between rape and “forcing a woman to have sexual intercourse.” This focus on physical violence, Equality Now writes, “leaves a vast number of sexual violence acts to continue to go unpunished.”
This narrow understanding of violence is one that puts the onus on the victim to struggle and passes judgment on the victim’s actions (or lack thereof) rather than those of perpetrator. For example, imagine a scenario in which a woman would not struggle to resist a rape because she believes that doing so may result in her death.
Equality Now’s recommendations for the governments of Eurasia to bring their sexual violence laws into line with modern international norms center on incorporating consent into their legal frameworks. In existing laws, “the lack of consent on the part of the victim is not considered the constituent element of the crimes, even though it is specifically required by regional and international standards.” In addition, existing laws do not cover the full range of circumstances “which could prevent a victim from being able to express their consent, such as an abuse of trust and authority and situations of dependence.”
Until the region’s laws are updated, the existing provisions can be interpreted more actively to provide justice for victims that is more in line with international standards. For example, Equality Now writes that women who are also victims of domestic abuse “could be considered ‘helpless’ for the purposes of these provisions as a victim is unable to give consent genuinely in such a coercive environment.”
This, however, will require those who manage justice — namely the police and courts — to think more broadly and more compassionately about victims of sexual violence.