VII. Human Rights Law and Responses to Sexual Violence

[I]naction can be every bit as abusive of power as action … oppression can result when a State undertakes a vital duty and then ignores it.[242]

-US Supreme Court Justice William Brennan

The rape kit backlog in Los Angeles County inhibits investigation of rape cases, bars rape victims from obtaining redress through the criminal justice system, prevents assailants from facing justice, and fails to protect future rape victim by failing, at a minimum, to provide deterrence. Human rights law imposes an obligation on states to take measures to protect all persons against human rights violations, including crimes of rape or other forms of sexual violence perpetrated by private actors, and also to provide a remedy where fundamental protections-such as those relating to the right to life and bodily integrity-have been violated. For this reason, failure to effectively investigate serious crimes such as murder and assault, including sexual violence, means that a state runs afoul of its obligations. In Los Angeles County the number of untested rape kits suggests a failure to systematically investigate reported sexual violence, in violation of human rights obligations.

Unfortunately, US law has not yet incorporated these human rights obligations in a way that offers enforceable protections for rape victims whose cases are reported but not investigated or where available evidence is not tested.[243]

Sexual Violence as a Human Rights Violation

The United States is party to a number of international conventions that unequivocally acknowledge rape as a human rights abuse, and require the US to ensure the protection of its citizens from sexual assault and rape.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[244] obligates states party to combat discrimination against women. The Committee on the Elimination of Discrimination against Women, the treaty body that interprets and monitors compliance with CEDAW, has affirmed that violence against women is a form of discrimination against women, and that states party should have effective legal, preventive, and protective measures in place to provide justice for victims, hold offenders accountable, and protect society from future acts of sexual violence.[245] While the US has not ratified CEDAW and is therefore not a full party to the treaty, as a signatory since 1980 the US does undertake a number of legal obligations including, at a minimum, not to act in a way that would undermine the intent and purpose of the treaty.[246] The International Covenant on Civil and Political Rights (ICCPR) guarantees the right to bodily integrity and security under article 9.[247] Both the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention against Torture") and article 7 of the ICCPR guarantee the right to be free from torture and cruel, inhuman, or degrading treatment.[248] International tribunals and other bodies have established that rape is covered by these prohibitions on torture.[249]

The Inter-American Court system pays special attention to violence committed against women and children. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women prohibits violence against women and affirms a woman's right to physical integrity and security. It further requires states party to act with "due diligence to prevent, investigate and impose penalties for violence against women."[250] Since rape is a crime that is primarily committed against women, states party to the Convention have a special obligation to respond to and prevent rape and sexual assault. The United States is one of two American nations that have not ratified the Convention.

State Responsibility to Protect Against Sexual Violence by Private Actors

The United Nations Human Rights Committee (HRC) has made it clear that states party to the ICCPR and other conventions are in violation of their obligation under these treaties not only when state actors are responsible for the action, but also when the state fails to take necessary steps to prevent violations caused by private actors. The HRC's General Recommendation 31 to the ICCPR notes that states party must "take appropriate measures or … exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities."[251] The Committee Against Torture requires states party to prevent and protect victims from gender-based violence and rape by exercising due diligence in investigating, prosecuting, and punishing perpetrators-even private actors-of rape and sexual assault.[252] The Inter-American Court of Human Rights has also made clear that states are "obliged to organize the public authorities to guarantee persons subject to its jurisdiction the free and full exercise of human rights … whether those responsible for the violations of those rights are members of the public authorities, private individuals, or groups."[253]

Additionally, CEDAW obliges states party to "take all legal and other measures that are necessary to provide effective protection of women against gender-based violence."[254]

These provisions make clear that the United States is bound to take all possible measures to prevent sexual assault and rape even when carried out by private actors.

Duty to Prevent Rape, Investigate Sexual Violence, and Protect Victims

Human rights courts have repeatedly held governments responsible for authorities'inaction or lack of due diligence in response to a violation by private actors.[255]

For example, in E. and Others v. United Kingdom, the European Court of Human Rights (ECtHR) held the state responsible for the injury inflicted on six children who were physically and sexually abused by their father for a period of up to 10 years. The court held that a failure to carry out a thorough investigation into what was a suspected situation in the house, which could have minimized the risk to the children, violated the state's obligation to protect them from inhuman and degrading treatment.[256]

The case law of human rights tribunals also affirms that the obligation to prevent violations includes the diligent and thorough investigation of reported rapes and assaults. The ECtHR through a long line of jurisprudence has made clear that the obligation under international law to protect the rights to life and bodily integrity entails the conduct of an effective official investigation when a violation of either occurs, so that the domestic laws that are intended to offer protection are effectively implemented. An effective investigation is one that is capable of leading to the identification and punishment of those responsible. The ECtHR has held that the authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including forensic evidence. Any deficiency in the investigation that undermines its ability to establish the person or persons responsible will risk running afoul of the requirement to provide an effective remedy.[257]

Likewise, the Inter-American Court of Human Rights has long upheld the duty of states to take affirmative steps to prevent human rights violations. According to the Court, these steps include the obligation to investigate allegations of violations and to prosecute and punish the perpetrators of those violations.[258] The Court has made clear that responsibility for violations of human rights rests equally with the state as with the perpetrators when the state refrains from taking any measures to investigate crimes or prevent future violations.[259] Additionally, an investigation of alleged violations alone is not enough to clear the state of liability. Instead, it explains, any inquiry "must be undertaken in a serious manner and not as a mere formality preordained to be ineffective … Where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, making the State responsible on the international plane."[260]