How to work with victims of sexual violence in courts so as not to make it worse

Sep 22, 2020 | Judiciary, Justice
When it comes to sexual or gender-based violence, stereotypes are often at play. There is a tendency within society to blame the victim: her outfit was provocative; her make-up was too bright; she allowed herself to drink alcohol in the presence of men; she went too far with flirting, or, if she did not resist, she was okay with what happened.

There are plenty of examples of so-called victim-blaming / victim-shaming. One need not look far to find a recent real-life example: let us examine the case of an assault and attempted rape in the train in Kyiv. What was the main reaction of society to this story? - Rather than ask why the perpetrator would commit such a crime, the conversation revolved around the question of why the victim did close the compartment of her train. In cases of sexual and gender-based violence, the focus should be on the actions of the perpetrator rather than on what the victim did or failed to do in the moment. While discussion on SGBV tends to frame women and girls as victims and men as perpetrators, it is important to note that women can be perpetrators of violence just as men and boys can be victims. Men and boys are face additional obstacles to seeking help due to stigma and gender stereotypes – they must present themselves to the world as a strong. As a consequence, male victims often suffer in silence.

Nowadays, both the law enforcement system and the judiciary are more focused on punishing the perpetrators than on restoring the status quo for and protecting victims. Yet, victims of gender-based and / or sexual violence need to be treated in a particularly prudent and sensitive manner. In the current situation, there is still much work to be done in this regard since, as a rule, empathy and support to victims are not intrinsic elements. For this reason, victims remain in the shadows and do not report crimes against them, out of fear of retaliation or further victimization within the justice system. Sometimes happens that police simply neglect or refuse to file a complaint.

Another issue that affects the number of officially registered statements of sexual and gender-based violence is the lack of a single response protocol in the event of an attempted sexual or gender-based violence incident. In world practice, this is not the case in Ukraine. There, anyone who is trusted by the victim must report the violence: a gynecologist who showed signs of rape during the examination, a school psychologist, and a social worker. This bears a resemblance to the gunshot wound protocol practiced in Ukraine and in many parts of the world – if gunshot wounds are detected on a person, the police must be informed. However, a statement on alleged sexual or domestic violence against another person without his/her consent would not make any sense.

The fact is that in Ukraine, sexual violence, including rape, is a matter of private prosecution - the proceedings may only be initiated with the consent of the victim. Even if someone else reported the crime, if the victim does not wish to file a complaint the proceedings will be closed.

The development of such a protocol to deal with such cases should be the result of a joint effort and joint order of the Ministry of Health, the Ministry of Education and Science, the Ministry of Internal Affairs, and the Ministry of Social Policy. It should prescribe a framework for actions and responsibilities, as well as a clear list of questions to be asked by the first person whom the victim trusted in order to understand the situation, the context and problem. During the pre-trial investigation, these questions should not be repeated as to avoid repeated traumatization of the victim.

The existing system will put victims under a significant amount of psychological pressure and trauma with or without repeated questioning. Currently, it is common practice for victims and perpetrators to wait for the trial together in the same corridor, as well as for the victim to be questioned in the courtroom with all of the participants present, including the alleged perpetrator. This is what is referred to as secondary victimization, as the victim is forced to undergo discriminatory and interrogations and accusations, and must endure complex, lengthy and multi-stage procedures to get access to compensation or consultations.

In addition, the investigator may decide to go with one interview or a dozen. It is legally impossible to limit the number of interviews, because, for example, the victim may be in a state of shock at the first interrogation and fail to provide any important information. The victim and the process is at the mercy of the empathy and delicacy of the investigator. It is quite typical, during the interview or court hearing, for the investigator to ask questions that make a person who has already been traumatized experience guilt and re-traumatization. The victims are often asked such question as “What were you wearing?”, “Did you drink a lot of alcohol?”, “Why would you go with that man to his place?” etc.

And then there is the court, where all participants to the process must be present alongside the victim - the prosecutor, the lawyer (who can ask very pointed questions), and the accused, i.e. offender. The victim simply activates the “lizard” instinct, and the way it is manifested depends fully on his/her temper – ‘freeze’, ‘run’, ‘fight’. The first two options mean that the victim is likely to either give up the testimony or change it so as not to experience violence again and again.

Then the time for judgment comes. Even when the judgment is formally in favor of the victim’s side, it is often unfavorable to him or her in reality. In the case of domestic violence, a typical sanction is a fine paid from… the joint family budget. It would be more appropriate to replace the fine with other forms of punishment, borne individually by the offender, such as community service. With one condition though: police supervision is required. After all, it usually happens that the perpetrator shows up in urban amenities and landscaping utility companies presumably to serve community, but aggressively declares instead that he is not going to do anything. Such companies usually hire women, so how can they force him?

The solution to this problem has two dimensions.

The first one consists in changing certain procedures. For example, create waiting rooms for defendants in courts and interviewing victims of sexual or gender-based violence in court by videoconference to make the victim feel safe. Another important and much-needed change is the development and approval of a single response protocol in cases where there is any sign of sexual or gender-based violence for law enforcement bodies, emergency services, social services and physicians. In addition, there is currently no state-run institution or service in Ukraine that would provide psychological support to victims of crime. This is a critical gap that must be filled. The second, and no less important dimension includes educational work. Law enforcement bodies, emergency services, social services, courts, and lawyers do not have the required knowledge or skills to build effective communication with victims while avoiding re-victimization and obtaining appropriate (undistorted) evidence. I am sure that training these professionals in non-traumatic communication skills, understanding and assessment of the needs of victims, conflict management, and crisis intervention would improve the situation. The first shot was the course “Training of Trainers for the Implementation of Services for Vulnerable Court Users” of the EU Project Pravo-Justice. The training was attended by 36 participants from the National Police, public prosecutor’s office, courts of various instances, and civil society, who will then have to scale this knowledge. In their “final projects”, they develop solutions that would help victims feel more psychologically comfortable during the proceedings. What is interesting is that 5 or 6 participants took on the development of a single response protocol.

Kateryna Ilikchiieva, PhD in Law, lawyer, national short-term expert of the EU Project Pravo-Justice for Povaha.