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Letter to the Haitian Senate on Draft Legislation

Since 2010, MADRE and our Haitian partners have worked together to bring a human rights perspective to the Haitian Penal Code. Now, we have successfully advocated for the following provisions that:

  1. Provide a definition of rape, including specific codification of marital rape as a crime, in keeping with international human rights standards;
  2. Criminalize sexual harassment;
  3. Legalize therapeutic abortion in the first 12 weeks of pregnancy when the health of the mother is threatened or distressed;
  4. Expand groups protected from discrimination under Haitian law to include protection from discrimination on the basis of sexual orientation and disability status. 

Though there was momentum for the passage of this draft legislation in 2013, political instability halted that momentum -- until now. The Haitian Parliament has resumed full operation following the election of the new Haitian President, Jovenel Moïse, and these new provisions are currently before the Justice Commission of the Senate for review, amendment and passage. 

While this passage would represent a milestone in Haiti's advancement of women's rights, its definition of rape does not meet international human rights standards. 

The current definition of rape in the legislation requires proof of the use of violence, coercion or threats, adding a heightened burden on survivors that is out of step with international standards. Consent is the touchstone of standard definitions of rape in the criminal law. Under this definition, rape is defined based on lack of a survivor's consent, not on the use of violence, coercion, threat or surprise. 

As a result, MADRE mobilized a coalition of Haitian and international human rights organizations and submitted a joint letter to the head of the Senate's Justice Commission and the Senate President. We request that the Senate amend the draft law to define rape based on lack of consent, without the need for additional aggravating factors, and we urge the Senate to pass the amended legislation without further delay. 

Letter to the Haitian Senate on Draft Legislation 

June 14, 2017

Sénat de la République d'Haiti
La commission Justice, Sécurité et Défense Nationale
CC: Senate President, the Honorable Senator Youri Latortue
Re: Draft Penal Code Legislation

 

Dear Honorable Jean Renel Sénatus:

We the undersigned organizations applaud the work of the Senate on the draft Penal Code. This bill signifies tremendous progress made to uphold the fundamental rights and freedoms of the Haitian people, in line with international human rights standards. We hope for its speedy passage into law.

We are particularly pleased that this landmark legislation comprehensively addresses gender-based violence. We propose a small amendment to the provision of the element of consent under the definition of the crime of sexual assault in order to bring the law into full compliance with international law standards and ensure that justice is delivered to victims.  

Specifically, we are writing to respectfully request that you consider amending the evidentiary burden required for convictions under the definition of consent. Article 296, under Section 3, on Sexual Assault currently states, “Sexual assault is any sexual offense committed against a person without his or her consent, with violence, coercion, threat or surprise.”

We request striking the language: violence, coercion, threat or surprise. The presence of one or more of these additional elements, to be sure, would prove that consent had not been freely given. However, because the definition of consent is the absence of coercion, inclusion of a requirement of proving coercion would be superfluous and, moreover, adding the requirement of violence, threat or surprise would add a heightened burden on victims out of step with international standards.

Consent is the touchstone of modern definitions of rape in the criminal law. Under this modern definition and in accordance with international law standards, rape is defined based on lack of consent, not on the use of violence, coercion, threat or surprise. All forms of rape and sexual assault offenses are premised on lack of consent, without the need to show such aggravating factors. Adding an additional requirement of proving either coercion, violence or threats surprise is limiting and excludes some forms of rape.

International law looks to the circumstances surrounding an incident of rape to determine if consent was freely given. It dictates that if a court finds threats, coercion, violence, duress, lack of capacity or any other similar circumstance then the court should conclude on this evidence that the victim did not freely give consent1. It also finds that while the existence of such force can be considered evidence of the lack of consent, it should not be treated as an independent element of the crime of sexual aggression under the definition of rape. As such, it is critical for Article 296 to recognize that any finding of sexual assault should be based on lack of consent alone and not dependent on the added requirement of proving coercion, threat, violence or surprise.

We therefore respectfully request your consideration in amending the draft law to define rape and sexual aggression around the central element of lack of consent in compliance with international criminal and human right law. We propose that Article 296 be edited to: “Sexual assault is any sexual offense committed against a person without his or her consent.” This alteration better encapsulates the legal definition of consent, bringing the Penal Code further in line with the international legal standards.

We commend the ongoing efforts of the Senate to protect the rights of the people of Haiti and ensure their access to justice. In bringing this issue to your attention, we are lending our support to, and pledging our future assistance with, any efforts that you undertake to protect victims and those at risk of sexual assault. We hope to see the Penal Code voted into law with this amendment and thank you for your time and dedication to strengthening the rule of law in Haiti.  

[1.] See for example, the Committee on the Elimination of all Forms of Discrimination Against Women (CEDAW Committee). In attestation to the singular importance of consent, the CEDAW Committee has repeatedly stated that penal codes should place the lack of consent at the center of the legislation and remove any requirements of force or threat, and any language implying the necessity of force or threat.

August 2, 2017  / Haiti