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 selfesteem, 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
Women
– Rape During the
Breakup of the Former
Yugoslavia
– Nevadan Brothels as a
Model for Response to
Rape in Prostitution
– Subic Bay Rape Case
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].
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].
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,
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].
[[A]
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.
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.
•a
Legal Responses
[B]
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.
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].
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].
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].
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].
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.
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.
[C]
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].
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.
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 http://www.mofa.go.jp/policy/women/fund/state9507.html
Letter from Prime Minister Junichiro Koizumi http://www.mofa.go.jp/policy/women/fund/pmletter.html
Documentary on the issue:
Silence Broken: Korean Comfort Women
Japan Asian Women’s Fund:
http://www.awf.or.jp/e-preface.htm
Washington Coalition for Comfort Women Issues:
http://comfort-women.org/
Documents and information from the US:
Report, US Office of War http://www.exordio.com/1939-1945/codex/Documentos/report-49-USA-orig.html
House Concurrent Resolution 226, 2003 http://thomas.loc.gov/cgi-bin/query/z?c108:H.+Con.+Res.+226:
House Resolution 121, 2007 http://thomas.loc.gov/cgi-bin/bdquery/z?d110:H.Res.121:
Information about the Rape of Nanking:
Iris Chang, The Rape of Nanking: The Forgotten Holocaust of World War II
Footnotes
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[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, < http://thomas.loc.gov/cgi-bin/bdquery/z?d110:H.Res.121:>, accessed 3/9/2008.
Photo Captions/Credits
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[A] Photo on “Overview” page: http://english.chosun.com/w21data/html/news/200609/
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Caption: A picture of comfort women during World War II. The woman on the right is pregnant.
[B] Photo on “Legal Responses” page: http://maryt.files.wordpress.com/2007/04/gal06comfortap.jpg
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Caption: Former South Korean comfort women protest.
[C] Photo (left) on “Legal Responses continued” page: http://www.theseoultimes.com/ST/?url=/ST/photo_gallery/.
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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: http://www.theseoultimes.com/ST/?url=/ST/photo_gallery/
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A former comfort woman is held back by policemen during a demonstration outside the Japanese embassy in Seoul, S. Korea.
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.
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.
Legal Responses
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.
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 against
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.
Links and Resources
•
http://www.un.org/icty/
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.
•
•
http://www.icc-cpi.int/
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.
Footnotes
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[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
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Homepage:
– http://news.bbc.co.uk/hi/english/static/in_depth/europe/2001/balkan_journals/1.stm
Overview:
– http://news.bbc.co.uk/hi/english/static/in_depth/europe/2001/balkan_journals/1.stm
– http://news.bbc.co.uk/olmedia/1815000/images/_1816741_bosniacryap300.jpg
Legal Responses
– http://www.minbuza.nl/es/holandaenimagenes,gal_pouvoirs-publics.html?page=11&photo=detail
– http://www.foreignpolicy.com/images/070613_deponte.jpg
– http://www1.cs.columbia.edu/~sable/research/io_disagreement.html
Legal Responses (cont)
– http://www.bosniaaftermath.com/hardline.html
Overview
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]
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 that
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 some
evidence to support the claim that legalized brothel
prostitution is perhaps the best policy strategy for the
prevention of rape in prostitution.
[A]
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 40
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].
Legal Responses
13
[B]
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].
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].
Legal Responses (continued)
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.
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]
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.
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www.ProstitutionReasearch.Com This website has informative links and articles on current statistics and facts about
prostitution.
•
http://www.bayswan.org/penet.html 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
research.com/c-prostitution-research.html>
•
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"Rape and Prostitution." Rape Is.Org. <http://www.rapeis.org/activism/prostitution/
prostitution.html>
•
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Weitzer, Ronald. “Prostitution control in America: Rethinking public policy.” Crime, Law,
and Social Change. Vol. 32 (1999): 83-102
Footnotes
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[1] Jenness, 412.
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[2] Weitzer, 87.
[3] www.rapeis.org (see Links and Resources Page)
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[4] Brents, 272.
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[5] www.prostitutionresearch.com (see Prostitution Research Page)
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[6] Brents, 275-276.
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[7] Brents, 277.
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[8] Brents, 287.
[9] Barham, 367.
Photo Captions/Credits
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[Homepage Photo] http://www.rgj.com/blogs/crime/2007/04/dangers-of-hooking.html
[A] http://edition.cnn.com/2003/US/West/02/26/brothel.tax.ap/
[B] http://www.lvrj.com/news/8483417.html
[C] http://www.rgj.com/blogs/crime/2007/04/dangers-of-hooking.html
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.
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.
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.
Links and Resources
Works Cited
Other resources
Full Text of Visiting Forces Agreement
www.dfa.gov.ph/vfa/frame/frmvfa.htm
Full Text of Rape of Victim Assistance and Protection Act
of 1998
http://www.ncrfw.gov.ph/inside_pages/downloads/d
ownloads.html
Full Text of Anti Rape Law of 1997
http://www.ncrfw.gov.ph/inside_pages/downloads/d
ownloads.html
Subic Bay Rape Case database
www.subicrapecase.wordpress.com
National Commission on the Role of Filipino Women
http://www.ncrfw.gov.ph/index.html
Photos
www.flckr.com
www.globalsecurity.org
www.davaotoday.com
www.subicbaypi.com
Emmi de Jesus, Gabriela “Analysis of the Subic Bay Rape
Verdicts” 4 Dec 2006. <www.feministpeacenetwork.org>.
“Japanese police nab US Marine for allegedly raping girl”
Philippine Daily Inquirer 11 Feb 2008
<www.inquirer.net/specialreports/subicrapecase>.
Liban, Lana “Justice for the woman-victim of US military
rape” 4 Nov 2005. <www.Kalayaancentre.org>.
“Marine’s conviction a year after” Philippine Daily Inquirer 14
Dec 2007.
<www.inquirer.net/specialreports/subicrapecase>.
Quismundo, Tarra. “’Nicole’ pursues new life as Smith waits
inside van” Philippine Daily Inquirer 4 Jan 2008
<www.inquirer.net/specialreports/subicrapecase>.
The Subic Bay Rape Case. 2008 Wordpress.com. 11 Jan.
2007 <subicrapecase.wordpress.com>.
“US Marine’s Gang-rape of a Fillipina: A violation of a
Woman’s Rights” AJLPP-USA 22 Nov 2006
<http://la.indymedia.org/news/2006/11/189229.php">US
Marines/>.
“US Marine still waiting appeal in Philippine rape case”
Philippine Daily Inquirer 3 Jan 2008
<www.inquirer.net/specialreports/subicrapecase>.
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.