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LEGAL RESPONSES TO RAPE Four Case Studies Introduction Rape is an egregious violation of human dignity. At its most basic level, rape is defined as forced.

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Presentation on theme: "LEGAL RESPONSES TO RAPE Four Case Studies Introduction Rape is an egregious violation of human dignity. At its most basic level, rape is defined as forced."— Presentation transcript:

1 LEGAL RESPONSES TO RAPE Four Case Studies Introduction Rape is an egregious violation of human dignity. At its most basic level, rape is defined as forced sexual intercourse via physical threat or psychological coercion. The effects of rape, however, go beyond the actual physical trauma. It is an attack on a person’s self- esteem, autonomy, integrity, security, and even his or her humanity. Although effects of rape are not limited to women, they are disproportionately targeted. Violence against women in the form of rape is not a new phenomenon. But only recently have governments and legal bodies begun to acknowledge and address the impunity surrounding these crimes, and the necessity for response and change. Rape occurs in a variety of contexts- in the home, in the community, and by representatives of the state. This project examines the incidence of rape in four specific contexts. Each case study presents an overview of the incident, and then focuses on the acknowledgment of the crime and the legal approaches that have been undertaken through formal institutions to address these events. Through increased understanding and awareness about these four issues, individuals, organizations, and governments can begin to acknowledge the prevalence of rape in different eras and settings, work to prevent sexual violations, prosecute perpetrators, and provide support and restitution to survivors. –Japanese Comfort WomenJapanese Comfort Women –Rape During the Breakup of the Former YugoslaviaRape During the Breakup of the Former Yugoslavia –Nevadan Brothels as a Model for Response to Rape in ProstitutionNevadan Brothels as a Model for Response to Rape in Prostitution –Subic Bay Rape CaseSubic Bay Rape Case

2 Overview The Japanese comfort women were young girls forced into sexual slavery by the Japanese military before and during World War II. These women, most of whom were from Korea as well as China, Taiwan, the Philippines, and the former Dutch Indies[1], were deceived, kidnapped, imprisoned and forced against their will to become sexual slaves. It is estimated that between 100,000 and 200,000 women were enslaved in military rape camps, also called ianfu or “comfort stations,” throughout Asia, and subjected to brutal rapes and beatings at the hands of Japanese soldiers[2].[1][2] Establishment of Military Rape Camps The first Japanese brothels established exclusively for the military were set up during the “Shanghai Incident” of 1932. During this period, Japanese and Korean comfort women, who were indentured workers in Japan, were brought into Shanghai. The purpose of these facilities was allegedly to slow the spread of venereal disease and prevent acts of rape by soldiers [3].[3] The military comfort women system was not adopted as a widespread general policy until late 1937, after the Japanese began a full-scale invasion of China and after the Rape of Nanking[4]. In response to mass rapes and other atrocities committed by Japanese soldiers, army leaders instructed military commanders to set up comfort stations throughout China. One recruiting tactic involved forcing leaders in occupied territories to procure local women to become prostitutes. However, fears soon arose that local women would be recruited as spies by the Chinese forces. As a result, recruiting agents selected by each army headquarters were sent to Korea,[4] Taiwan, and other areas to secure comfort women. Many of those who were targeted were girls from poor families, and comfort women were often obtained through abduction or other deceptive and forceful means [5].[5] The Lives of the Comfort Women Comfort women, many of whom were young girls without any prior sexual experience, endured coerced sexual intercourse several times in a day. Most women were forced to serve ten men a day, but these numbers would spike to 30, 40, or even 60 before and after each combat operation[6]. Those who refused were brutally assaulted, tortured, raped, and even killed. Often, comfort women were forced to have intercourse without condoms, resulting in about a 37% infection rate of sexually transmitted diseases as well as a high risk of pregnancy[7]. Many of the women who survived assaults from soldiers died of illness or suicide.[6][7] Because comfort women were kept under strict surveillance, they were unable to flee their situation. Furthermore, in many cases comfort women were made into indentured slaves who had to work off high-interest loans from cash advances extended to them by corrupt managers. Even those women who worked off their contracts could not return home because they had no means of transport.[8] Essentially, escape from this misery was impossible until the war ended, when comfort women were abandoned by the Japanese military.[8] a [[A][A]

3 Legal Responses Research by scholars and evidence found in governmental and historical documents have unequivocally proved that “the comfort women system was created and developed as a well-planned policy by a group of top Japanese military leaders” [9]. Comfort stations were systematically created through official military and government policies and used as a means of intimidation and control. Consequently, the Japanese government bears responsibility for this violation of women’s health and human rights.[9] Violations of International Law At the time of the comfort women issue, Japan was a signatory of various international treaties relating to trafficking, which made forcing under-aged women into prostitution completely forbidden. However, Japan exploited what it felt was a loop-hole in the legislation— Japan’s colonies and other territories had been placed beyond the jurisdiction of the treaties. As such, the government and military considered its behavior in Korea, Taiwan, and occupied territories as exempt from these international restrictions[10].[10] However, as organizations such as the International Commission of Jurists and legal scholars such as Abe Koki argue, Japan was still in blatant violation of various aspects of international law. For example, many comfort women were transported on Japanese ships, which can be considered Japanese territory itself, and often made a stop on Japanese soil during these voyages. Additionally, sanctions for such a system by the Japanese Army Central Command occurred on Japanese soil, where trafficking treaties applied in full force. Furthermore, Japan ratified the Convention Concerning Forced or Compulsory Labor in 1932, and the military comfort women system, as a form of forced labor, violated this treaty as well as other customary international law of the time prohibiting slavery[11].[11] Fundamentally, Japan is guilty of committing crimes against humanity, defined after World War II by the Nuremberg International Military Tribunal as “murders, extermination, enslavement, deportation, and other inhumane acts” or persecutions on political or racial grounds. In 1951, Japan accepted the jurisdiction and judgments of the International Military Tribunal, which defined the war crimes committed by members of the Japanese army[12].[12] Redress for Violations As scholar Yoshida Yoshiaki argues, the comfort women issue “remains one of the least understood atrocities of the twentieth century.” For decades, though the Japanese government did not deny the existence of the comfort women system, it denied any participation[13]. Research and historical evidence of the system has historically been hidden, especially because after the war, many Japanese documents relating to the system were methodically destroyed under military orders [14].[13][14] [B]

4 Legal Responses (continued) However, recent events have started to bring the issue to light, and have increased international discussions about the use of rape and forms of coercion during war. In 1991, Kim Hak Soon became the first comfort woman to public testify about her experiences during World War II. Along with two other former comfort women, she formally filed suit against the Japanese government and sought compensation for the suffering she had endured[15]. This action was met with considerable public controversy as well as international anger directed towards Japan, as various individuals and organizations began uncovering more evidence about Japan’s wartime atrocities. It would also provide the impetus for governments such as South Korea, various organizations, and individuals to mobilize and demand that the truth be made public.[15] However, it was not until July 1992 that the Japanese government formally acknowledged its official role in organizing the comfort women system, although it did not issue a formal apology. Later positions taken by the Japanese government would be, and still remain, similarly evasive. In 1993, the government issued a report that admitted that the comfort women as a whole were kept in sexual slavery against their will, but did not admit that women were “recruited” with force[16]. To date, the Japanese government has yet to officially compensate victims. In 1995, the Japan Asian Women’s Fund was founded to make reparations to former comfort women. However, the organization is funded by private donations, with the government providing matching contributions, and arguably does not constitute official government reparation[17]. Furthermore, though various Japanese officials have individually expressed remorse for the comfort system over the years, other officials have not; one government official has specifically claimed that the comfort women chose to become prostitutes for the money [18]. An official and unequivocal apology from the government has yet to be issued.[16][17][18] The Role of Others While the Japanese government refuses to acknowledge full responsibility for the comfort women system, the voice of the former comfort women has slowly dwindled as more of the survivors succumb to old age. In order to ensure that their stories are not forgotten, it is imperative for the international community to hold Japan to its actions. The US, for example, was aware of these violations as early as 1944 but did nothing [19]. Belatedly, resolutions have now been adopted by various governments, including the 2007 U.S. House Resolution 121, which ask the Japanese government to accept clear responsibility for its actions [20].[19][20] Such involvement by the international community should not be intended to publicly shun or disgrace Japan. Rather, discussions about the violation of women’s rights in all its forms, including war crimes committed by Japan during World War II, must be promoted not only to compensate victims but also to educate present and future generations about the past. Without a global commitment to promoting knowledge and understanding, violations of human dignity will continue to be committed and the physical and emotional suffering of the Japanese comfort women will have been in vain. [C]

5 Links and Resources Personal testimonies and interviews with former comfort women: Sangmie Choi Schellstede, ed., Comfort Women Speak Scholarly research on the issue: David A. Schmidt, Ianfu--The Comfort Women of the Japanese Imperial Army of the Pacific War Yuki Tanaka, Japan’s Comfort Women Yoshimi Yoshiaki, Comfort Women Margaret Stetz and Bonnie Oh, eds., Legacies of the Comfort Women of World War II Statements from Japanese government officials: Statement by Prime Minister Tomiichi Murayama Letter from Prime Minister Junichiro Koizumi Documentary on the issue: Silence Broken: Korean Comfort Women Japan Asian Women’s Fund: Washington Coalition for Comfort Women Issues: Documents and information from the US: Report, US Office of War House Concurrent Resolution 226, 2003 House Resolution 121, 2007 Information about the Rape of Nanking: Iris Chang, The Rape of Nanking: The Forgotten Holocaust of World War II

6 Footnotes [1] David A. Schmidt, Ianfu--The Comfort Women of the Japanese Imperial Army of the Pacific War, 13. [2] Sangmie Choi Schellstede, ed., Comfort Women Speak, vii. [3] Yuki Tanaka, Japan’s Comfort Women, 10. [4] Tanaka, 13. [5] Tanaka, 23. [6] Tanaka, 52. [7] Yoshimi Yoshiaki, Comfort Women, 148. [8] Yoshiaki, 147. [9] Tanaka, 21. [10] Yoshiaki, 157. [11] Yoshiaki, 158-161. [12] Margaret Stezt and Bonnie Oh, eds., Legacies of the Comfort Women of World War II, 156. [13] Schmidt, 2. [14] Schmidt, 15. [15] Stezt and Oh, 139. [16] Schmidt, 67. [17] Schmidt, 69. [18] Schmidt, 72. [19] Tanaka, 84. [20] Library of Congress website,, accessed 3/9/2008. Photo Captions/Credits [A] Photo on “Overview” page: –Caption: A picture of comfort women during World War II. The woman on the right is pregnant. [B] Photo on “Legal Responses” page: –Caption: Former South Korean comfort women protest. [C] Photo (left) on “Legal Responses continued” page: –A South Korean plaintiff cries after a Japanese court ruling Feb. 24, 2005 rejecting a group of comfort women’s claims for compensation. [C] Photo (right) on “Legal Responses continued” page: –A former comfort woman is held back by policemen during a demonstration outside the Japanese embassy in Seoul, S. Korea.

7 Overview The beginning of the 1990s marked a period of political upheaval and violence on Europe’s Balkan peninsula. During this time, the Republic of Yugoslavia was split apart during the Slovene and Croatian wars of 1991 and experienced violence again as Bosnia-Herzegovina vied for independence from 1992 through 1995. The wars uprooted families and tore apart communities, disproportionately affecting women and children who accounted for more than 70% of refugees throughout the conflict [1]. As civilian women’s vulnerability increased throughout the period, they became specific targets for the military. Rape became the official military policy [2]. Estimates indicate that as many as 60,000 women in Yugoslavia experienced sexual violence and that 25,000 pregnancies resulted from the systematic use of rape by the military [3]. In the aftermath of the conflict, the UN Security council established the International Criminal Tribunal for the former Yugoslavia (ICTY) in order to prosecute individuals for the crimes committed during the conflict. At the international level, the decision to prosecute perpetrators of sexual assault marked an end to the impunity surrounding gender-based violence in conflict situations [4]. Although this decision sets an important precedent in the realm of international law, much remains to be done to bring justice and retribution to the survivors.1234 Gendered Violence in Yugoslavia: The Military’s Institutionalization of Rape During the breakup of Yugoslavia, militaries adopted a policy of sexual violence in order to humiliate their enemy and as a means of achieving ethnic cleansing within their state. Prior to its disintegration, Yugoslavia was an ethnically diverse country made up of three major ethnic groups: Bosnian Muslims or Bosniaks, Catholic Croats, and Orthodox Serbs. At the outset of the 1990s, centralized power ended, and nationalist leaders struggled to establish separate states founded on a dominant ethnicity. As the push for autonomy became violent, each ethnicity sought to expunge the others from its newly claimed territory [5]. Women quickly became targets because of their identity as mothers. Their role in reproduction and their role as keepers of culture and tradition made them vital in the future of their nations. [6] As political leaders rallied men to protect the ‘motherland’, military officials instituted policies of rape, targeting the women these men were supposed to protect [7]. Beyond their symbolic nature, these gendered attacks also targeted the physical reproductive capacity of the women. For instance, Serbian soldiers consciously prevented pregnant Bosnian Muslims from leaving rape camps until these women could no longer have an abortion and had to carry the baby to term. The result was that the children of these women were no longer able to carry on the Bosniak identity [8]. Although Bosnian Muslims make up the largest percentage of victims, women of every ethnic group were victimized and each ethnic military perpetrated these acts. Sexual violence was widespread as each group attempted to cleanse their country and create a new nation.5678

8 Legal Responses An End to Impunity: The Establishment of the International Criminal Tribunal for the former Yugoslavia The reports of genocide and ethnic cleansing within Yugoslavia prompted the UN Security Council to create the ICTY in 1993. The tribunal’s purpose was to try individuals for violations of the laws or customs of war, genocide, and crimes against humanity[9]. Up to this point, rape and sexual assault had never been specifically identified as crimes in any international war tribunal. The ICTY, however, set a precedent by including rape and sexual assault in the charges against9 military officers. Although the charges had to be dropped due to insufficient evidence, the Dusko Tadic case is the first ever example of a tribunal charging an individual with rape, independent of any other crime. From this point, the ICTY progressed, convicting the commanding officer of the Celibici rape camp of command responsibility for the rapes that occurred under his authority and also sentencing Hazim Delic to twenty years imprisonment for instituting rape as a form of torture. Additionally, the court has convicted individuals solely on the charge of rape and it has established rape as a crime against humanity [10]. Ultimately, the court ended the culture of impunity surrounding sexual violence and rape in conflict situations by setting the legal precedents necessary for convicting perpetrators.10

9 Legal Responses continued Failures and Limitations of the ICTY While the ICTY may have made significant strides in addressing sexual violence in international law, its inaccessibility did little to provide justice and restitution in the minds of the victims. The disconnect between The Hague and the Balkans can be seen in the distinct opinions of the prosecution and the survivors. While prosecutors cite guilty pleas as the most important aspect of justice, the low sentencing given to perpetrators frustrated Bosnian and Serbian women. Perhaps even more indicative of the inaccessibility of the ICTY is the fact that it issued no report in Croatian or Serbian until the year 2000 [11]. Dissatisfaction with the process and the desire to move forward have resulted in a decreased will to testify among victims [12]. With regard to survivors of sexual violence, the ICTY has not achieved its stated purpose of providing justice and restoring peace. Nonetheless, the court represents a conscious movement toward addressing rape in war and protecting women from sexual violence in conflict situations in the future.1112

10 Links and Resources The official International Criminal Tribunal for the Former Yugoslavia website. The page gives an overview of the tribunal, details past judgments, and provides current information about pending cases. The official website of the International Criminal Court. Moving beyond the ICTY and the case of rape in the former Yugoslavia, the ICC prosecutes cases of genocide, crimes against humanity, and war crimes. Hilmi M. Zawati and Ibtisam M. Mahmoud. A Selected Socio-Legal Bibliography on Ethnic Cleansing, Wartime Rape, and Genocide in the Former Yugoslavia and Rwanda. E Mellen Press, 2004. A comprehensive bibliography of scholarly resources that relate to the topics of ethnic cleansing, wartime rape, and genocide in the former Yugoslavia and Rwanda. Work Cited Askin, Kelly D. “Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status.” The American Journal of International Law. 93.1 (Jan 1999): 97-123. Goldbach, Laurie A. Rethinking Rape: Gender Justice and the Proposed International Criminal Court. National Association of Women and the Law: Ottawa, 1998. Justice Unseen [Slijepa Pravada] (Motion Picture). Sarajevo: XY Films, 2004. Kaufman, Joyce P. and Kristen P. Williams. Women, The State, and War: A Comparative Perspective on Citizenship and Nationalism. Lexington Books: New York, 2007. King, Kimi, and James Meernick. “Bringing Her Out of the Shadows: An Empirical Analysis of Sentences in Rape Cases before the International Criminal Tribunal for the Former Yugoslavia. In Mary Volcansek and John F. Stack, Jr. (Eds.), Courts Crossing Borders- Blurring the Lines of Sovereignty. Durham: Carolina Academic Press, 2005. Naimark, Norman M. Ethnic Cleansing in Twentieth Century Europe. University of Washington: Seattle, 1998.

11 Footnotes [1] Joyce P. Kaufman and Kristen P. Williams. Women, The State, and War: A comparative Perspective on Citizenship and Nationalism, 79. [2] Laurie A. Goldbach. Rethinking Rape: Gender Justice and the Proposed International Criminal Court, 27. [3] Goldbach, 8. [4] Kelly D. Askin. “Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status.” The American Journal of International Law, 118. [5] Kaufman, 79-80. [6] Norman M. Naimark. Ethnic Cleansing in Twentieth Century Europe. [7] Kaufman, 105. [8] Goldbach, 8-9. [9] Askin, 98. [10] Kimi Kang and James Meernick. Courts Crossing Borders: Blurring the Lines of Sovereignty, 194-196. [11] “Justice Unseen” [Slijepa Pravada]. XY Films Produkcija Sarajevo Bosnia and Hercegovina. [12] Goldbach, 11. Photo Captions/Credits Homepage: – Overview: – – Legal Responses –,gal_pouvoirs-publics.html?page=11&photo=detail,gal_pouvoirs-publics.html?page=11&photo=detail – – Legal Responses (cont) –

12 Nevadan Brothels as a Model for Response to Rape in Prostitution Pro-legalization supporters argue that there is a greater risk of rape against prostitutes in places where prostitution is illegal. They believe that legalization is a better alternative for the prevention of sexual violence against this highly vulnerable population. The overarching goal of legalization is harm reduction and implies some forms of regulation that may involve licensing, registration, confining of prostitutes to specific districts, state-restricted brothels, mandatory medical exams, etc [2]. It is estimated that2 about 80% of women in prostitution within the US have experienced rape while working as prostitutes. In a speech delivered at the National Coalition Against Sexual Assault, prostitutes were identified as the “most raped class of women in all of history.” Seventy-eight percent of the women, who sought help from the Council of Prostitution Alternatives, claimed that they were raped 16 times on average per year [3]. In this paper, I will provide some3 evidence to support the claim that legalized brothel prostitution is perhaps the best policy strategy for the prevention of rape in prostitution. Is Rape an Inherent Fact of Prostitution? There exists a long-standing belief that rape is as an inherent fact of the commercial sex industry, but current research shows that this is not necessarily the case. According to a study of prostitutes in legal Nevadan brothels, there are practical ways to prevent sexual assault against women in prostitution provided that the business is legalized and sufficiently regulated. The results of their study show that legal brothels generally provide safer working environments compared to other illegal forms of prostitution. Such evidence was gathered from face-to-face, open-ended interviews with 40 prostitutes, surveys from 25 prostitutes, 11 open-ended interviews with former and current brothel managers and owners, 10 interviews with state regulators and activists, and 5 formal and informal discussions with brothel customers [4]. Out of the 404 prostitutes interviewed, only one experienced violence in the legalized brothel. If we compare these results to a study of illegal prostitutes in San Francisco, the incidence of violence is clearly smaller in the Nevadan legalized brothels. Out of the one hundred and thirty prostitutes interviewed in San Francisco, approximately 88 women stated that they had experienced rape while working as prostitutes [5].5 Prohibition [of prostitution] promotes disrespect for women, promotes violence and promotes rape. If we had legalized… prostitution…, we wouldn’t be sitting on the powder keg of sex and violence we’re sitting on in this country. -Margo St. James, founder of COYOTE (Call off Your Old Tired Ethics) [1]1 [A][A] Overview

13 Nevada Policy Current prostitution laws in Nevada legalize prostitution in counties with populations below 400,000. It punishes third parties such as pimps, or anyone who forces or entices women into prostitution. It moves commercial sex away from “respectable communities” and restricts advertising. It outlaws a woman from working in the brothels if she tests positive for STIs and it is considered a felony for a woman who is HIV positive to continue working in the brothels. Overall, the laws are motivated by the intent for harm reduction for both workers and communities [6].6 Nevada Brothels as a Model for Harm Reduction In the Nevadan brothels, several strategies are employed by owners and staff to ensure the safety of their workers. One safety mechanism is audio monitoring during the negotiation process. Both prostitutes and managers agree that more often customers become angry and violent during the negotiation process. Although prostitutes and customers negotiate in private rooms, managers listen via intercom and take note of the types of services agreed upon and the price and length of the transaction. Before the transaction takes place, the prostitute brings the payment to the manager and sets a timer so that the manager knows when the service should be complete. If the prostitute feels uncomfortable or is concerned, she can discuss this with the manager before going back to the room. If a prostitute alerts the manager, he or she will leave the intercom on to listen throughout the transaction to ensure the worker’s safety. In addition to monitoring, there are also panic buttons, strict rules for customer behavior, limiting out-of-brothel services, limiting the movement of prostitutes, and following health regulations [7]. Another important safety mechanism is the alliance with law enforcement. The brothels can rely on police support in case of problematic customers whereas, illegal street prostitutes cannot. For the most part, managers in the brothel do not need to make recourse to police interventions. The in-house policies are usually sufficient to prevent the need for outside help. Twenty-one out of twenty-five prostitutes in the brothels claimed that they felt their job was safe [8].78 Legal Responses [B][B] 13

14 International Perspectives on the Problems of Criminalization Criminalizing prostitution does not eliminate prostitution. More often anti-prostitution laws and policing actually harm more than help prostitutes. US studies show that police disproportionately arrest women rather than pimps and customers. In a British study of client violence against female prostitutes, policing of prostitutes lead women to engage in more sex work to pay off fines. Women work longer hours and later in the night to avoid police and very few actually stopped working because of police crackdowns. Women also moved to more isolated and unfamiliar areas that they would normally avoid to evade the police. Another result of criminalization is the perception that women in prostitution have no recourse to justice [9]. They often fear reporting violent clients because they fear arrests, fines, or identification as a prostitute.9 Legal Responses (continued) Conclusion There is sufficient reason to be suspect of current policies outlawing prostitution. Based on the evidence from legalized brothels in Nevada, rape does not need to be an unavoidable fact of the industry. Given appropriate harm reduction strategies by brothel managers, staff, and workers supported by police protection, there is no obvious reason why rape and other types of physical violence need to persist as a serious threat against women in prostitution. Legalization coupled with regulation seems a plausible response to reduce the incidence of rape in prostitution. [C][C] 14

15 Links and Resources www.RapeIs.Org This website is a great resource for information on rape in different contexts from rape in prostitution to rape in prison and rape on campus.www.RapeIs.Org www.ProstitutionReasearch.Com This website has informative links and articles on current statistics and facts about prostitution.www.ProstitutionReasearch.Com The Prostitution Education Network has student resources on international issues facing sex workers, sex worker blogs, and links to sex worker’s rights organizations. Works Cited Barham, Leela, and Rosie Campbell, Gillian Hunter, and Clarissa Penfold. “Tackling Client Violence in Female Street Prostitution: Inter-agency Working between Outreach agencies and the Police.” Policing and Society, Vol. 14, No. 4 (2004): 365-379. Brents, Barbara G. and Kathryn Hausbeck. “Violence and Legalized Brothel Prostitution in Nevada: Examining Safety, Risk, and Prostitution Policy.” Journal of Interpersonal Violence Vol. 20, No. 3 (2005): 270-295.. Jenness, Valerie. “From Sex as Sin to Sex as Work: COYOTE and the Reorganization of Prostitution as a Social Problem.” Social Problems. Vol. 37, No. 3 (1990): 403-420. “Prostitution Research.” Prostitution Research and Education. < http://www.prostitution> "Rape and Prostitution." Rape Is.Org. Weitzer, Ronald. “Prostitution control in America: Rethinking public policy.” Crime, Law, and Social Change. Vol. 32 (1999): 83-102

16 Footnotes [1] Jenness, 412.[1] [2] Weitzer, 87. [3] (see Links and Resources Page)[3] [4] Brents, 272.[4] [5] (see Prostitution Research Page)[5] [6] Brents, 275-276.[6] [7] Brents, 277.[7] [8] Brents, 287.[8] [9] Barham, 367.[9] Photo Captions/Credits [Homepage Photo] [A] [B] [C]

17 Overview In November of 2005 Nicole, a young Filipino girl, was gang raped by four US marines stationed in Subic Bay lead by Lance Corporal Daniel Smith. Nicole was on vacation with her sister and two friends, taking some time off from managing her family canteen in Zamboanga. One night Nicole and her friends went to a bar, where Nicole became intoxicated to the point of unconsciousness. Nicole at this point was unaware of what was going on. When her friends realized she was missing, they were informed by two witnesses that they had seen an unconscious woman being loaded into a van. Following the rape, Nicole was left on the roadside. After proper examination by a doctor Nicole’s rape was officially labeled non consensual. Subic Bay once served as a the site of a large naval base. The Subic Bay rape case highlights the issue of rape among the US military. This is just one case study which shows how the government on both ends respond to this horrid act of rape. This is not an isolated event and occurs often in similar context. The case also allows for examination of legal response in the context of international relationships versus women’s human rights, dignity, and justice. This case highlights the central question addressed by the collected papers in how the government has responded to rape cases in different context. The Subic Bay rape case allows focus to be placed on the priorities of the US government in conjunction with the Philippine government as they act on either protecting a US marine and a relationship or protecting the rights of women all over the world.

18 Legal Responses Upon arrest of Smith he was taken into custody under US authority at the US Embassy despite committing the crime in the Philippines. A year later the Philippine court found Smith guilty and sentenced him to 40 years in jail. Smith then filed for an appeal and is still waiting today on a decision. From the time of Smith’s arrest until now he has been held in custody at the US Embassy and out of the Philippine jail under the laws of the Visiting Forces Agreement (VFA). The VFA is an agreement between the Philippines and the US which grants soldiers and other employees of the Department of Defense special rights and privileges, including criminal actions. Article V of the VFA states that criminal jurisdiction must undergo a special process including 1) they should be tried in the Philippine court but held in custody under the US authorities and detained at the US Embassy 2) the courts have one year to gather evidence and convict the accused, and if not the US is no longer responsible for presenting the accused in court. This puts a lot of pressure on the local court to present a valid case. However in the case of the Subic Bay rape case the Philippine court was able to abide by the restrictions of the VFA. And despite the Philippine courts effort to present a solid case and take a step forward for justice and women’s rights, agreements such as the VFA have given reason to question government priority. The courts have tried to enforce frequent and random checks on Smith to ensure he has not been shipped home without punishment, an occurrence that is all to familiar for military rape cases other countries such as Japan and Korea. A Possible Solution Some people are calling for the abolition of the VFA. As the US military continues to arrive in the Philippines and in other parts of the world, and continue to be protected by the VFA, the more instances of the Subic Bay rape case there will be. The responsibility lies on both parties. The US government must uphold the value of women’s rights and hold its soldiers accountable for their actions. The Philippine must call for a revision or abolition of the VFA in respects to criminal action.

19 Legal Responses (continued) Moving in the Right Direction The Philippine government has made some strides to protecting women’s rights and specifically against the egregious act of rape. In 1997, the Anti-Rape Law was passed which expanded the definition of rape as a crime and outlined the severity of punishment. In 1998, the Rape Victim Assistance and Protection Act was made to provide adequate resources for rape victims. Because of this act, a Rape Crises Center was established in every city and province, funds were to be properly allocated towards the assistance and protection of women, and proper counseling and care was mandated from victims of rape. The benefits of the governments involvement are shown as the rates of reported rape have decreased 5% a year since 1999. It is clear that government participation is needed in dealing with the harsh realities of rape. We can see there has been some legal body action in the creation of the documents mention above, but it is also evident via the Subic Bay Rape Case that there is still room for improvement.

20 Links and Resources Other resources Full Text of Visiting Forces Agreement Full Text of Rape of Victim Assistance and Protection Act of 1998 ownloads.html Full Text of Anti Rape Law of 1997 ownloads.html Subic Bay Rape Case database National Commission on the Role of Filipino Women Photos Works Cited Emmi de Jesus, Gabriela “Analysis of the Subic Bay Rape Verdicts” 4 Dec 2006.. “Japanese police nab US Marine for allegedly raping girl” Philippine Daily Inquirer 11 Feb 2008. Liban, Lana “Justice for the woman-victim of US military rape” 4 Nov 2005.. “Marine’s conviction a year after” Philippine Daily Inquirer 14 Dec 2007.. Quismundo, Tarra. “’Nicole’ pursues new life as Smith waits inside van” Philippine Daily Inquirer 4 Jan 2008. The Subic Bay Rape Case. 2008 11 Jan. 2007. “US Marine’s Gang-rape of a Fillipina: A violation of a Woman’s Rights” AJLPP-USA 22 Nov 2006 US Marines/>. “US Marine still waiting appeal in Philippine rape case” Philippine Daily Inquirer 3 Jan 2008.

21 LEGAL RESPONSES TO RAPE Four Case Studies Conclusion At present, legal responses to rape are inadequate. The structures fail to provide both justice for survivors and punishment for perpetrators. The example of Japanese comfort women demonstrates legal bodies’ historical lack of interest in holding themselves and others accountable for crimes committed against women. Marked progress occurred in the 1990’s with the ICTY’s prosecution of military officials responsible for the systematic rape of women in the former Yugoslavia. Yet victims of the violence felt dissatisfied with the trial process. Progressive policies in legalized Nevadan brothels have been shown to reduce the incidence of rape against sex workers. However, such policies are limited to a few districts in Nevada and violence against sex workers in other parts of the United States continues. The Philippine government has tried to bring US military personnel to justice for the rape of a young Filipina woman, but lack of cooperation from the US government continues to hinder the justice process. Taken together these four case studies show a trend toward acknowledgement of the issue, but little substantive change. In order for change to occur, governments must recognize the immediacy of the issue and work to establish norms across the international community.

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