Warning: This case deals with topics that are especially grave and may cause trauma invoked by memories of past abuse. If you have experienced violence and need assistance, please refer to this list of country help lines provided by UN Women.
Rape while in detention, virginity testing
European Court of Human Rights
Your safety and protection is the responsibility of your government and its security forces – even if they suspect your involvement with illegal organisations, or criminal behaviour, and feel your actions should be investigated. But, what if government officials detain you in trying to get information about criminal allegations? Whose job is it to ensure you’re protected against sexual abuse, rape and other violent assault while in detention and investigate these crimes when they happen?
In 1984, members of the Workers’ party of Kurdistan (PKK) called for the establishment of an independent Kurdish state within Turkey – initiating an armed struggle against Turkish security forces. This conflict would continue to grow through the mid-90s, and by 1997 it had claimed the lives of 4,036 civilians.
Şükran Aydin was 17 years old when a group of village guards and a gendarme arrived in her village. Four members of the group came to her family’s home and questioned them about recent visits PKK members had made to their house. After being subjected to threats and insults, Şükran and her family were forcibly removed from their home and taken to the village square where other villagers were also being held. Once they arrived, Şükran, her father and her sister-in-law were blindfolded and driven to Derik gendarmerie headquarters.
Şükran was separated from her family. For more than three days she was severely beaten, stripped, sprayed with cold water from high-pressure jets while being spun in a tyre. She was taken, clothed but blindfolded, to an interrogation room where a man in military clothing forcibly removed her clothes and raped her. Before her release, Şükran was forced to go back into the room where she had been raped. She was beaten for an hour by multiple assailants and warned not to report what they had done to her.
When Şükran returned to her village, she (along with her father and sister-in-law) went to the office of the public prosecutor to report what had happened. The public prosecutor sent Şükran to see Dr Deniz Akkus, who he asked to determine whether Şükran was a virgin and document the presence of any marks of physical violence or injury. It was stated that Şükran’s hymen had been torn and there was widespread bruising around her thighs, but that Dr Akkus could not establish when the hymen had been torn. Dr Akkus had no prior experience in examining rape survivors. Following this examination, the public prosecutor sent Şükran for two other medical examinations by separate doctors requesting that they determine if, and when, she had lost her virginity.
Following the launch of the investigation, Şükran and her family were subject to continual harassment and intimidation to withdraw their complaints.
What was the decision?
Rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim. Furthermore, rape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence.
Para. 83, Aydin v. Turkey
Through its analysis, the Court decided that Turkey was responsible for violating Şükran’s human rights, specifically:
- European Convention on Human rights and Fundamental Freedoms
- Article 3: Prohibition of torture
- Article 13: Right to an effective remedy
This is because the Court recognised both the intention and the gravity of Turkish officials’ actions against Şükran while she was detained. Torture, unlike inhuman or degrading treatment, is a category of human rights violation qualified by the intention of the perpetrator and the intensity of suffering inflicted. Or, as the Court stated “…This distinction would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering” (para. 82).
The Court reasoned that Şükran’s arrest could only be explained by the existence of conflict in the region and Turkish security forces’ need to gain information. The treatment she suffered in detention, therefore, would also been seen as designed to serve the same purpose. The accumulation of these deliberate acts against Şükran were particularly terrifying, humiliating and kept her in a constant state of physical pain and mental anguish – giving specific regard to Şükran’s age, sex and circumstances under which she was held. The Court acknowledged the rape of a detainee as an “especially grave and abhorrent form of ill-treatment” noting the ease with which the perpetrator may exploit the vulnerability and weakened resistance of the target. It also acknowledged the physical and emotional suffering and the lasting psychological trauma.
In this situation, the Court concluded that the physical and mental violence inflicted on Şükran, especially the act of rape, amounted to torture under Article 3 of the ECHR.
Given the absolute nature of the right not to be tortured (under Article 3) and the particular vulnerability torture survivors suffer, any complaint related to this right requires states promptly initiate a thorough and effective investigation into the act committed. The public prosecutor should have acted immediately to investigate Şükran and her family’s complaints. There should have been a thorough and effective investigation into the allegation of rape, and the survivor should have been examined by independent medical professionals with competence in this area. The investigation should have collected evidence relating to the complaint, including an evaluation of the claimant’s psychological and emotional wellbeing, as well as documentation of her injuries, and the view of an experienced medical practitioner as to whether these indicated she had been raped. However, in this case, the public prosecutor’s requests to medical examiners focussed on ascertaining whether Şükran had lost her virginity. Overall, the public prosecutor did not look for supporting evidence at the headquarters and maintained a “deferential attitude” toward the security forces.
Because Şükran’s complaint was not thoroughly or effectively investigated with due regard for the gravity of the crime she suffered, it can be reasoned that there was a lack of evidence regarding her treatment in detention. This lack of evidence would undermine the effectiveness of any other remedies that may have been available to her otherwise, had the public prosecutor and medical examiners handled her complaints adequately. And, because the public prosecutor plays a central role in remedies as a whole, this failure amounted to a violation of Şükran’s rights under Article 13 of the ECHR for which Turkey could be held responsible.
For these reasons, the Court recommended that Turkey:
- Pay, within three months, £25,000.00 (twenty-five thousand) to be converted into Turkish liras at the rate applicable on the date of settlement
Learning from other institutions
Throughout the text of the case document, Şükran’s story was supported by what other institutions and authorities had said about violence against women and gender-based discrimination. Some of the references to these institutions and authorities included:
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: 48, 51, 103
- Mejia v. Peru: 51
- Inter-American Commission on Human Rights: 51
- UN Special Rapporteur on Torture: 41
Aydin v. Turkey (1997) was the first time the Court recognised that an act of rape by public officials or another person acting in an official capacity constitutes a form of torture. This landmark ruling changed the way international human rights institutions interpreted acts of rape and sexual abuse and the seriousness with which allegations of such acts are addressed. No longer are these acts simply considered to be solely crimes of sexual violence in domestic law, they are also a violation of the human right to be free from torture and other cruel, inhuman and degrading punishment or treatment.
In this case, Şükran Aydin underwent several “virginity tests” as a method of investigating the crimes committed against her. Since this time, international human rights law and medical experts have agreed that “virginity testing” is of no scientific value, discriminatory and in itself violates the rule against torture or cruel, inhuman or degrading treatment. The requirement under international human rights law to address gender discrimination (Article 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women) is also violated by use of “virginity tests:” the concept of “virginity” promotes an idea that women and girls should be valued according to whether they have had penetrative sexual contact. Subjecting a woman or girl to a “virginity test” against her will is in itself a violation of the right not to be tortured. [for more information, see p. 238-240 of Women’s Access to Justice for Gender-Based Violence, ICJ Practitioners’ Guide]
Where a woman or girl reports rape or sexual violence, the appropriate investigation, including medico-legal reports, should abide by international standards, such as:
- The Istanbul Protocol (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Office of the High Commissioner for Human Rights 1999)
- The Guidelines for Medico-legal care for victims of sexual violence, World Health Organization, 2003
- Responding to intimate partner violence and sexual violence against women, World Health Organization Clinical and Policy Guidelines (2013)