Torture By Means of Rape

Abstract

This note argues that rapes perpetrated with government involvement and for political purposes should be classified as torture rather than ill-treatment under international law.' Part I of this note addresses the legal and social significance of viewing rape as ill-treatment rather than torture. As a legal matter, the classification of rape as ill-treatment systematically denies rape survivors" the protections and remedies available to torture survivors under international treaties and domestic laws. On a societal level, the separation of rape from torture perpetuates myths about rape and denies women an equal right to dignity, as protected by international human rights law. To determine whether governmental rapes should be classified as torture or ill-treatment, Part II analyzes the difference between the international legal definitions of these two forms of abuse. This Part traces major events in the evolution of these two concepts with regard to several international and regional conventions. Ultimately, this Part suggests that one of the most significant legal distinction between torture and ill-treatment is that torture is understood as inflicting more pain and suffering than ill-treatment. Part III argues that the severe suffering caused by rape is comparable to that inflicted by torture, thus justifying the treatment of rape as torture under international law. This Part begins by comparing medical studies of rape survivors with similar studies of torture survivors. This comparison reveals that the psychological aftermath of rape is strikingly similar in intensity and duration to that experienced by other torture survivors. This Part then argues that, because of the unique impact of rape as a method of torture, rape may inflict even more trauma than other forms of torture, thereby inflicting "torture plus" on women. Part III concludes that, when government officials rape for political purposes, such rapes inflict at least torture and not merely ill-treatment. This note was cited favorably in three federal appellate decisions: 99 F.3d 954 (9th Cir. 1996), 395 F.3d 932 (9th Cir. 2002), and 333 F.3d 463 (3rd Cir. 2003))

Keywords: torture, rape, international human rights law, cruel, inhuman & degrading treatment

JEL Classification: K33