Learning ways to convict rapists in Kenya—other than by checking a survivor’s hymen
Over the years, Magistrate Judge Harrison Adika has heard more sexualized violence cases than he can count at courts in Nyeri and Kisumu in central Kenya. But Adika says many defendants facing such charges in his court have walked free for lack of evidence—until recently.
Things began to change in 2012, when Adika received specialized training in how to try sexualized violence crimes. “Training opened my eyes,” says Adika. “I began to see why so many repeat offenders were getting away scot free, and also why many victims had lost faith in the justice system. Helping victims find justice became a personal commitment.”
He said he now understands the many factors that drive the alarming levels of sexualized violence in Kenya, where dozens of women are raped every day, and only one in three victims of rape dare to report the crime for fear of stigma and the skepticism of a justice system that is seemingly deaf to their cries for help, according to a 2008 report from the Nairobi-based Coalition on Violence Against Women. (A 2016 study published in the peer-reviewed Prevention Science Journal says one in four adolescent girls in the informal settlements of Nairobi were raped in the previous year.)
As of 2006, the Sexual Offenses Act, which outlined legal consequences for these crimes, had been put into place, but implementation remained sluggish due to a lack of awareness among court officials and the Kenyan public. In 2012, an amendment was added on medical treatment. To find a defendant guilty or not guilty of rape before 2012, Adika relied on a form supplied by police and completed by a doctor that assessed whether or not a survivor’s hymen was broken. In the absence of a broken hymen verified by a government doctor, a rape conviction was impossible to come by.
Adika and magistrates from seven Kenyan counties where sexualized violence is rife were trained by staff from Physicians for Human Rights (PHR), a New York-based advocacy organization that uses science and medicine to prevent mass atrocities and severe human rights violations. The training changed his interpretation of the law in regard to rape and other sexualized offenses. “I was able to move away from the broken hymen theory and to look at other injuries consistent with sexualized violence,” says Adika. “I learned that a broken hymen does not always mean penetration, and neither can penetration be the only determinant of rape, especially when the victim is already sexually active. This was an eye-opener.”
Adika says the training, which combines medical science and law, also helped him understand how doctors view sexualized violence survivors, which helped remove another obstacle to obtaining rape convictions: “I came to understand that doctors view the female genitalia as a clock, so when a doctor writes, ‘the injury occurred at five o’clock,’ he is not referring to time but to the precise area where the injury occurred.”
Previously, the judge would likely have thrown out a case on the basis of what he perceived to be inconsistences, such as when a survivor tells the court the attack happened at midnight, and the doctor’s report indicated five o’clock. Adika says a multi-pronged approach that encourages magistrates, prosecutors, doctors, clinicians, and government chemists to work together in pursuit of justice has helped fast track sexualized violence cases and bring justice closer to survivors.
Changes at the treatment level
Emily Kiragu, a nurse working at the Naivasha Level Four Hospital in western Kenya, treats more than 30 sexualized violence survivors every month. She says the training has helped her communicate better with survivors. This helps her efforts to encourage them to tell their stories, which are a critical piece toward holding their attackers accountable. “Working with a network of professionals who understand the need to deliver justice for survivors and are sensitive to their pain has made my work easier, and greatly boosted the confidence of survivors to come forward and share their stories,” she says.
Kiragu works with 13 other personnel trained by PHR at the hospital—one of the country’s few that are specially equipped to handle sexualized violence—and which recorded some of the highest intake of sexualized violence cases during the 2007-2008 post-election violence. Naivasha Level Four Hospital, Kenyatta National Referral Hospital, and a few other public Level Four hospitals (which provide specialized treatment) have units dedicated to sexualized violence cases. The private Nairobi Women’s Hospital also has a unit. But more of these specific units are needed to deal with increased reported cases of sexualized violence, according to Christine Alai, head of the Kenya office of PHR.
In the training, clinicians learn how to collect and preserve evidence using an improvised rape kit, and to document injuries consistent with the violation to build an airtight legal case. They are also directly linked to local police who handle sexualized crimes, making the referral path to justice for survivors less daunting. Police in turn have direct access to the local government chemist, who is tasked with carrying out forensic tests.
There are just three government chemists in all of Kenya. Advocates say this is hardly enough to cover all of the sexualized violence cases, in addition to all the other cases that require forensic testing. There are a few private laboratories equipped to carry out forensic tests as well, but the cost, which is too high for the majority of Kenyans, then falls on the survivor.
Training the police
More than 1,000 critical personnel have undergone the training Adika took part in since 2012, according to Alai. Roughly 250 of these trainees now work in select counties including Nairobi, Kisumu, Nakuru, Kakamega, Uasingishu, and parts of eastern and northern Kenya, where sexualized violence is rampant. Still, Alai says the number of trained personnel is far from adequate: “We have trained many officers, but we keep losing them,” she says. “Some are moved or transferred, and others leave for many reasons. The objective is to have trained personnel meet survivors at their point of need, from the gender desk to the top.” By “gender desk,” Alai is referring to special reporting desks at some police stations, where women survivors of rape and gender-based violence can file reports. They’re usually staffed by female officers.
PHR is calling on the government and other partners to train more people to complement those trained by the group. There are already concrete examples of the training’s effectiveness: Collaboration between magistrates, judges, police, prosecutors, clinicians, government chemists, and first responders has yielded numerous convictions since 2012.
In Kisumu, teamwork between police, clinicians, a government chemist, and a judge secured a rape conviction in 2016, in a case in which a government official was accused of defiling a minor. The official, who is a repeat offender, was accused of luring a primary school pupil to his house and sexually abusing her repeatedly. Investigators were able to build a strong case based on the survivor’s account of her experience, and he is now serving a 20-year sentence.
Since a 2012 training, the Children Protection Unit and Gender Center in Nakuru, in western Kenya, has directly investigated 80 sexual offense cases, 63 of which ended with convictions, according to Nyatete Nyakundi, a police constable and Physicians for Human Rights trainee. “This training broadened my definition of rape to include injuries consistent with sexualized violence, and taught me to approach survivors with empathy so they can tell their story without fear,” he says.
Nyakundi says he has seen a marked increase in the number of survivors coming forward to report violations in recent years, and attributes this development to increased confidence in the justice system among survivors. He believes access to a network of people committed to securing justice for survivors helps fast track cases.
A lack of political will
Kenya has made strides toward enhancing and protecting the rights of women and girls, as demonstrated by the 2006 Sexual Offenses Act and later amendments. Among other things, the law poses harsher penalties for sexual offenders, and ratifies other international laws promoting the rights of women and girls to which Kenya is a signatory. Still, in spite of this progress, high levels of sexualized violence persist. According to Peter Wendoh, a rule of law expert working in Nairobi, there is a lack of political will to hold sexual offenders accountable, especially when state actors are accused of such violence.
“Failure by Kenya’s government to protect its own people from abuse, and to arrest and prosecute known purveyors of sexual violence, points to the breakdown of the rule of law,” says Wendoh. “There’s urgent need to focus international attention on the escalating sexual violation [against] women and girls in Kenya.”
Following the elections in 2007-2008 and 2017, at least 1,000 women and some men accused police of rape and other forms of sexualized violence, according to a report from Human Rights Watch. While government bodies such as the Independent Policing Oversight Authority exist to oversee the conduct of police officers and to discipline errant officers, Christine Alai of PHR says these agencies proved ineffective or unwilling to hold offenders accountable.
“Because there is no accountability, impunity thrives among security forces,” says Wendoh. “They threaten and intimidate survivors to [pressure them to] remain silent in the face of mass atrocities.”
In 2013, Physicians for Human Rights filed a constitutional petition with a coalition of other organizations and eight survivors seeking to hold the Kenyan government accountable for the post-election sexualized violence. The coalition has asked the Kenyan government to admit that it failed to protect citizens from sexualized violence during elections, and during interethnic, land, and other resource-related violence; to compensate survivors; and to provide survivors with adequate access to justice. The eight survivors suffered gang rape, defilement, and forced genital mutilation, and continue to experience significant health complications including HIV infections, psychological trauma, and socioeconomic difficulties as a result.
The constitutional court will rule on the petition this year. If it finds the government liable for having failed to protect the victims against abuse, the court will order the government to compensate survivors for damages suffered, and to arrest and prosecute security officers and others accused of committing the violations.
If the court rules against them, the petitioners say they will seek redress at the African Court on Human and Peoples’ Rights, in Tanzania. But should the petition sail through, it will change how sexualized violence crimes are seen in Kenya and force the government to prosecute its own security officials.
EDITOR'S NOTE: Paragraph 11 has been corrected to reflect that there are only three government chemists in all of Kenya, not one in each county, as previously stated.
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