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S.V.P. brought this case on behalf of her daughter, V.P.P., who was seven years old when she was sexually assaulted by B.G., a 46-year old man living in the neighbouring apartment block: during the attack he undressed her, he inserted his finger into her anus, and tried to insert his penis into her vagina, causing the child severe pain and suffering, and long-lasting psychological harm. After a delay of several years, B.G. accepted a plea-bargain and was given a three-year suspended sentence for sexual molestation of a child. A plea bargain was possible because at that time, the charges were considered to be minor. S.V.P. also brought a civil case for compensation, a judgment awarding damages was issued, but not enforced, due to the perpetrator’s lack of financial means. The attacker continues to live near S.V.P. and her daughter V.P.P. V.P.P. is afraid of further aggression from him, but Bulgarian law does not provide for protection for the victims of sexual crimes after the end of criminal proceedings.
S.V.P. submitted to the CEDAW Committee that the Bulgarian authorities have not provided for effective compensation for the harm she experienced, including the harms to her psychological health, reproductive health, and education: she needs proper rehabilitation services and counselling, from specialist rape crisis practitioners. S.V.P. also argued that her daughter needed long-term protection from her attacker. She also argued that even though the attack has caused V.P.P. long-term psychological injury, rendering her disabled, the criminal law stereotyped the attack as “a mild form of violence” a crime of “debauchery” or an offence against honour. S.V.P. provided information about the general legal approach to sexual violence, which contain the provision that perpetrators of molestation, rape, including statutory rape of a child under the age of consent, shall not be punished if the man marries the victim. S.V.P. argued that this “solution” of the law “goes against women’s rights, rewards the perpetrators, rather than punishing him, and illustrates the “patriarchal ideology” of the law, which discriminates against women.
What was the decision?
The CEDAW Committee considered that it was wholly inadequate to prosecute B.G. for sexual molestation, rather than rape, as it was accepted that he penetrated V.P.P.’s anus using his finger, an act which is recognised in the Istanbul Convention, Article 36, as an act of rape. This identification of this crime as less serious, and the small sentence, was a violation of the obligation on the State under Article 2(b) of the CEDAW Convention to adopt adequate criminal law provisions to effectively punish rape and sexual assault, free of stereotyping. The CEDAW Committee also found that Bulgaria failed to provide support and protection to V.P.P, even though it had provided information about a variety of programmes to promote equality between women and men, it was necessary to ensure proper care for the individual child V.P.P.
The CEDAW Committee made detailed recommendations about victims of gender-based violence and their right to health:
“With regard to the author’s claim that her daughter’s rights under article 12 had been violated, the Committee recalls that gender-based violence is a critical health issue for women and that States parties should ensure: the enactment and effective enforcement of laws and the formulation of policies, including health-care protocols and hospital procedures to address violence against women and abuse of girl children and the provision of appropriate health services; and gender-sensitive training to enable health-care workers to detect and manage the health consequences of gender-based violence.1 The Committee notes the author’s claims: that the State party had failed to ensure legal and policy measures, including health care protocols and hospital procedures to address violence against women and abuse of girl children and the provision of appropriate health-care services; that the State party did not provide trained personnel for the specific case of sexual violence; that as a result of the violence suffered the author’s daughter was diagnosed as a person with disability; and that the State party had failed to ensure the appropriate special health-care services. The Committee also takes note of the State party’s submission that social workers from the “Child Protection” services in her home town have initiated “observation of the child” following the court case, that she was diagnosed with a disability, assigned to a special school for children with disabilities and that the school’s psychologist worked with the child. The Committee however observes that the author has contested the assertion that social workers took charge of her daughter’s case. It further observes that the State party has not provided information regarding any health-care protocols, or hospital procedures that were applied or the health services provided to the author’s daughter in the immediate aftermath of the act of sexual violence that she experienced, and that scant information is provided as to the health care provided to the victim to address the long-term consequences of the violence. The Committee concludes that the State party has failed to ensure the enactment and application of policies, including health-care protocols and hospital procedures to address the sexual violence experienced by her and that it did not provide appropriate health services in her case and accordingly finds that the State party has violated the rights of the author’s daughter’s under article 12 of the Convention.”
The CEDAW Committee also found several violations of Article 15(1) in conjunction with Article 2(c) and 2(e) due to the fact that no legal aid exists for applications for financial compensation for harm caused by criminal acts, and that even where a ruling is given, enforcement is not guaranteed.
Learning from other institutions
The CEDAW Committee drew on the definition of rape in the Istanbul Convention, Article 36(1)(a):
Article 36 – Sexual violence, including rape
1-Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised:
a)engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object;
b)engaging in other non-consensual acts of a sexual nature with a person;
c)causing another person to engage in non-consensual acts of a sexual nature with a third person.
2-Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances.
3-Parties shall take the necessary legislative or other measures to ensure that the provisions of paragraph 1 also apply to acts committed against former or current spouses or partners as recognised by internal law.