Changing Laws, Changing Lives: About the Research

Outdated and discriminatory laws in these areas, many of which originate in colonial-era penal codes, continue to operate in many member states of the Commonwealth. For example, in many countries the sexual offence laws continue to:

• • discriminate on the basis of sex, gender, sexual orientation, gender identity or disability;
  • permit rape/sexual assault in marriage;
  • require corroboration by a third party;
  • exclude oral rape, anal rape, and rape/sexual assault with objects; and
  • exclude rape/sexual assault of men and boys.

Discriminatory sexual offence laws continue to cause untold harm in all aspects of the lives of those individuals affected by them. They are at odds with international and regional human rights norms, as well as most national constitutions. They undermine the enjoyment of a wide range of human rights, and perpetuate violence, stigma and discrimination. They particularly affect women, children, LGBT+ people, persons with disabilities, and other marginalised groups. They undermine the health and prosperity of entire societies.

The law is an important means available to a society to demonstrate that certain behaviours are unacceptable, and to hold [violators] to account.

This research focuses only on the criminal law as provided in legislation and does not evaluate the common law or judge-made law (with limited exceptions) or non-legislative instruments, such as subordinate legislation (e.g. regulations), policies and procedures, sentencing guidelines or judges’ bench books which may be part of a sexual offences legal framework. Nor does it evaluate the implementation and enforcement of the legislation, which are as critical to good practice sexual offence laws as the legislation itself.

The research provides a snapshot view of some elements of national legislation in the four areas listed above. It is intended to highlight where a country is meeting or failing to meet good practice, human rights compliant standards for key aspects of its criminal law. It is not intended as a comprehensive survey of all criminal law on sexual offences in the Commonwealth.

Earlier research produced by the Human Dignity Trust focused on defining good practice criteria for sexual offences legislation. These criteria, which are applied in modified form in this research, are based on international human rights law and states’ obligations to implement that law at the national level, including through enacting domestic legislation to respect, protect and fulfil human rights. In the earlier research, these good practice criteria were applied to a small sample of Commonwealth countries from each region that demonstrated good practice in one or more areas of sexual offence laws within the scope of the research. The findings are reported in Good Practice in Human Rights Compliant Sexual Offences Laws in the Commonwealth. That report is intended to be used as a companion to the Next Steps reports and the research presented here.

Importantly, Good Practice in Human Rights Compliant Sexual Offences Laws in the Commonwealth contains a detailed description of the good practice criteria and their sources in international human rights law. It also evaluates sexual offence laws against a wider range of good practice criteria than are applied in this research, and includes an assessment of how those laws are implemented in a small sample of case studies from across the Commonwealth regions. This more-in-depth approach was taken because the focus was on identifying examples of good practice sexual offence laws and included only a small sample of countries. However, in this research, the focus is on mapping the sexual offence laws of all members of the Commonwealth. In order to facilitate this, the criteria have been streamlined and only address certain key aspects of good practice sexual offence laws.

Some categories of sexual offence laws were outside the scope of the original research and are not included here. For example, laws criminalising sex work (prostitution), including same-sex sex work, and trafficking are not covered. Legislation criminalising incest, adultery, domestic and family violence, and female genital mutilation (FGM) are not covered. Laws criminalising LGBT public advocacy or cultural expression, and affectional, sexual or gender identity expression in public (for example, under public decency laws) are also outside the scope of this study. Each of these areas is an important area of study in its own right. Age of consent laws of individual Commonwealth countries are not evaluated for good practice in this research.

The Human Dignity Trust acknowledge that there is more than one way to draft good practice sexual offence legislation. This is demonstrated in the Next Steps Towards Reform reports mapping these laws in the Commonwealth. This research is not intended to promote one approach over another, but rather to identify the fundamental, base-line criteria for good practice that any sexual offence law should meet.

However, the assessment does favour sexual offence legislation that sets out the law in detail to ensure that it is correctly applied by justice sector actors, including police and judges. For example, the research applies good practice criteria requiring that legislation define in detail non-consensual sexual acts, such as sexual or indecent assault, rather than relying on the courts to interpret the scope of the crime. In some jurisdictions, the case law interpreting such provisions and prosecutorial practice may be well-developed, nonetheless some national law reform bodies in these jurisdictions are recommending greater detail be included in the legislation.

The data presented here is continually reviewed and updated to reflect legislative developments across the Commonwealth, and the country assessments are revised to ensure they accurately reflect the current state of the law. The Trust also periodically reviews the methodology behind the indicators with a view to maximising the value of the data and may expand on the scope of the underlying research, for example through analysing elements of sexual offences frameworks beyond legislation, such as common law. The data presented here will therefore not replicate exactly the data contained within the Next Steps Towards Reform reports, which were finalised in early 2020.

This research and the information it contains is provided for general informational purposes only. It has been prepared as a work of comparative legal research only and does not represent legal advice in respect of the laws of the jurisdictions of the member countries of the Commonwealth. It does not purport to be complete or to apply to any particular factual or legal circumstances. It does not constitute, and must not be relied or acted upon as, legal advice.

Every effort has been made to reflect accurately each country’s laws based on legislation that was publicly available online or provided to the authors at the time of publishing and, wherever possible, advice from legal experts in the countries covered in this report.

To report any errors, or to notify us of legislative reforms which have not been reflected in this tool, please contact the Human Dignity Trust at: [email protected].