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IV. Barriers to Prosecution in Cases of Sexual Violence and Abduction

While there can be no doubt that the reasons why many rapes go unreported include cultural attitudes and long-term institutional issues, the current breakdown in the policing and security system has compounded the problem and in some cases created additional difficulties for those women who do choose to turn to the authorities for protection.

Police Failure to Investigate

For those victims who choose to report sexual crimes, first contact with the law enforcement system generally occurs at the police station. Policing in Iraq is perceived as a male profession, unsuitable for women, and Iraqi police officials told Human Rights Watch that there are no female police officers in Iraq. While the Iraqi police officers Human Rights Watch met were virtually unanimous in their concern for women generally in the post-war security vacuum, they failed to identify their own role in addressing sexual violence. Police officers we spoke with frequently did not appear to recognize, or purposefully downplayed, the seriousness of allegations of sexual violence and abductions. For example, when Human Rights Watch inquired about the case of Muna B., the fifteen-year-old girl who had been kidnapped and held for four weeks before escaping, Iraqi police at the station referred to her as “the girl who ran away from home.”41 Muna B. told Human Rights Watch that while Iraqi police and U.S. military police were present when she gave her statement, the Iraqi police did not seem interested in her case. “The Americans wrote the report. The Iraqis didn’t write anything down. The Iraqis said, ‘It is not up to us, we have nothing to do with your case.” They said that the ‘Americans are handling it.’”42 Police officers at the station confirmed that they did not open an investigation, claiming that it was not within their geographical jurisdiction; nor did they refer the case to Iraqi police officers in the relevant district.43

At other stations Human Rights Watch visited, police downplayed reports of rape, at times indicating that women and girls provoked rape by venturing out of the house before the city was safe.44 One police officer suggested that because a woman who had been abducted was a prostitute, her case was not rape, despite the fact that the woman reported it as rape and there was evidence of significant bruising and other injuries.45 Police officers of all ranks consistently told Human Rights Watch that sexual violence and abduction allegations had low priority given the high rate of other crimes, particularly killings, carjacking, and theft. Police officers also frequently downplayed the importance of the criminal justice system in resolving such cases, noting that families “resolve” such cases between themselves.46

U.S. military police have also failed to follow up with some sexual violence complaints, according to testimonies taken by Human Rights Watch. Dalal S.’s father reported her abduction to the police station immediately after she was abducted on May 18, 2003.47 A U.S. military police officer took the report, but no one followed up on the complaint. Dalal S. remembers many details about the perpetrators and the place where she was detained, but the police have never come to her to investigate, which has left her mother bitter.

This type of thing never happened before the war, and now the Americans are doing nothing. We reported this to the police, but they did nothing. The same day it happened, we went to the police and made a report, but then [Dalal S.] came back so we didn’t inform them. We knew it would be in vain... And they have never come here to inquire. You can go there yourself and ask what happened to the case.48

Policing Vacuum

There can be no question that the current security vacuum has exacerbated the situation. The widespread looting and destruction of property in the immediate aftermath of the war left most police stations stripped bare if not completely burnt shells. While personnel returned, they did so in many cases to empty offices.49 Many stations had no vehicles to use to investigate complaints. Until the second week of June, when U.S. forces distributed radios, Iraqi police had no communications equipment whatsoever unless the U.S. military had a presence in the station.50 Local Iraqi police were unable to collect even the most basic information about crimes, let alone analyze trends or conduct in depth investigations.

The disarray in the police is partly a result of the U.S. “de-Ba`thification” policy, in which L. Paul Bremer, the head of the CPA, dismissed most of the experienced Iraqi police management and other personnel. This process has disrupted the preexisting chain of command and left inexperienced officers in charge of felony investigations. While Human Rights Watch has emphasized the urgency of vetting the police to remove those responsible for past human rights abuses, this summary process has not met Iraqi security needs. In addition it does not satisfy the demands for due process and is absent of investigations of individual responsibilities for past crimes and human rights violations.

At the police headquarters for East Baghdad, Human Rights Watch found similar chaos. The statistics office had no information on several cases of sexual violence that Human Rights Watch learned had been reported to the police. Investigating Judge Muhammad Jassim al-Jumaili of the al-`Adhamiyya court told Human Rights Watch about an incident where a man was killed and his girlfriend was gang-raped.51 According to the judge, he opened an investigation and returned the file to the relevant police station. However, when Human Rights Watch visited that and other nearby police stations, police officers denied that they had even heard of the case.52 Although investigations have been formally opened in a number of cases, Human Rights Watch is aware of only two in which suspects were apprehended and in detention. One case was mentioned in a U.S. Military Command press release of June 1, 2003, which noted that a suspect was apprehended and in detention. In a different case, U.S. military police told Human Rights Watch that on May 19, an eighteen-year-old girl was walking to school in the al-Alam district of Baghdad when a car drove up and its occupants abducted her; she escaped but was later able to identify one of the perpetrators, who was arrested.53 Iraqi police in that precinct’s headquarters, however, did not appear to have records of the case.54

Most of the U.S. military police units Human Rights Watch encountered did keep some records, but it is unclear to what extent that reporting is feeding into the Iraqi criminal justice process. Military police repeatedly told Human Rights Watch that when they take reports, they pass them up their chain of command, and no copy of the original report is kept at the police station. If the crime involves an attack against U.S. or coalition forces, they said, it is investigated by the U.S. If it is “Iraqi on Iraqi,” then U.S. headquarters turns the case over to Iraqi police investigators.55

Although U.S. and coalition military police keep records of crime complaints, they do not publicize the information. U.S. officials frequently announce the number of attacks against coalition or international forces in press and other briefings, and report on the number of patrols they conduct and weapons they seize. Such briefings contain at best only anecdotal accounts of some of the crimes reported in Baghdad. There is no comprehensive information on crime reported in Baghdad. The absence of accurate crime data only fuels rumors and further aggravates the sense of insecurity felt by ordinary Iraqis.

Furthermore, it is unclear if U.S. or coalition military police are conducting investigations, and if so how such investigations will feed into the Iraqi criminal justice system. For example, Muna B.’s testimony suggests that child trafficking networks may be operating in the Basra and Baghdad areas.56 Iraqi police completely deferred competence to the U.S. military police in proceeding with an investigation. But nearly two weeks after Muna B. first appeared at the U.S. military police station, civilian affairs officers involved in the case were unable to establish whether there was any investigation underway.57 In an environment when many Iraqis feel that U.S. priorities are unrelated to their own security concerns, failure to take action on such issues is a glaring omission.

Barriers to Obtaining Forensic Medical Examinations

Under Iraq’s Code of Criminal Procedure, police are required to use all possible means to preserve evidence of a crime.58 Police must also immediately report all information about felonies or misdemeanors to an investigating magistrate or a Ministry of Justice investigator operating under the magistrate’s supervision, who then begins the initial investigation.59 The code also authorizes police to begin investigations into felonies and misdemeanors without authorization from an investigating magistrate or investigator if waiting for authorization would delay necessary action and result in evidence being destroyed or lost or in the suspect fleeing.60

While formally investigations should be opened by the investigating magistrate before victims of sexual violence are referred to the forensic institute for an examination, police officers told Human Rights Watch that in practice they, and not magistrates, referred women and girls who made complaints of rape for forensic examination. In Baghdad, these examinations are conducted at the Institute of Forensic Medicine, which is also the city morgue: at the entrance to the building a sign designates a department for the living (qism al-ahyaa’) and a department for the dead (qism al-amwat).61

According to Dr. Faek Amin Bakr, the director of the Institute of Forensic Medicine, the institute only conducts forensic examinations upon an official referral, and turns away victims who seek an examination without such a referral.62 The institute does not provide any medical treatment to victims of sexual violence, who are expected to go to a hospital for urgent care.63 The doctors on staff are all men.64 Dr. Bakr told Human Rights Watch that the examinations in rape cases involve a swab test for the presence of semen, examination of the exterior and internal genital area for bruising, tears, or other damage, and examination of the condition of the hymen. In some cases where examiners believe such evidence would be deemed to be significant in ensuing legal proceedings, the forensic laboratory photographs the victim’s injuries.65

The need to obtain a police referral to the forensic institute places a substantial burden on women and girls who wish to document sexual violence, as demonstrated by the case of Hala R. When Human Rights Watch first interviewed Hala R. on June 1, less than twenty-four hours after the alleged attack, she had not as yet had a chance to wash or change her clothes. When she filed her initial complaint, police at the station did not refer Hala R. to the institute for a forensic examination that might have revealed evidence corroborating her allegation that she had been raped by a neighbor. Hala R. told Human Rights Watch that police did not tell her about the possibility of getting a forensic medical exam at the time she gave her statement. While there were contradictory accounts in relation to Hala’s requests for a forensic examination, when Hala R. returned to the station to explicitly request a referral for a forensic examination, the captain questioned her credibility and it took an hour for him to agree give her a referral.66 But first he insisted that she repeat her complaint, even though he had a copy of the original complaint in front of him. This she did.

When the captain did eventually give Hala R. a referral, the referral was to al-Kindi general hospital, not the forensic institute. At the hospital the deputy head doctor explained that the hospital was not able to conduct the examination, and referred Hala R. to the al-`Alwiyya maternity hospital. There, doctors conducted an exam, but afterwards doctors and nurses gathered in a semi-public room and informed Hala R. that the results were inconclusive and were not valid for legal purposes. They then told Hala R. that it would be necessary for her to go to the forensic institute, which by that time was closed for the day.

Legal Barriers to Justice

Rape, sexual violence, and abduction are felonies under Iraqi law, punishable by lengthy prison sentences.67 Yet victims of abduction and sexual violence still face important legal and social barriers to obtaining justice. Some of these barriers are the provisions in the Penal Code that allow a man to escape punishment for abduction if he marries the victim.68 The Penal Code also allows perpetrators of rape, sodomy, sexual violence, or attempted sexual violence to receive reduced sentences if they marry their victims.69 A high ranking police official described the procedure positively to Human Rights Watch: “This is part of our law, the kidnapper and kidnapped are married so that there won’t be other cases, of revenge.70 Other provisions allow for significantly reduced sentences for so-called honor killings.71 At the time of writing, these provisions are unaffected by the Coalition Provisional Authority’s June 9, 2003 order that suspended certain provisions of the Penal Code.

Since prosecutors, perpetrators, and “anyone who has an interest” in the matter may petition for the suspension of the investigation or sentence under these provisions, the law adds to the already considerable social pressures on victims not to pursue their cases. If victims do file and pursue a complaint, they are faced with the possibility that their abuser or their families will force them to enter into a marriage where they are likely to endure marital rape or other sexual and physical violence. Perpetrators who enter such marriages must remain married for at least three years, potentially extending the torment of their victims, or face a resumption of prosecution or reinstatement of the sentence. The absence of functioning criminal and judicial systems in post-conflict Iraq may lead to increased resort to such marriages that in many cases may amount to forced marriages in reality as family members and criminals seek “resolutions” at the expense of victims’ rights.

41 Human Rights Watch interview with Iraqi police officer at the al-`Adhamiyya police station, Baghdad, June 11, 2003.

42 Human Rights Watch interview with Muna B., age fifteen, Baghdad, June 13, 2003.

43 Human Rights Watch interview with Brigadir Samir `Abbas Isma`il, al-`Adhamiyya police station, Baghdad, June 14, 2003.

44 Human Rights Watch interview with police officers at East Baghdad headquarters, Baghdad, May 31, 2003.

45 The woman was abducted at gunpoint on June 9 and taken to a house where she was raped and held overnight; she was released in the morning. Human Rights Watch interview with police officer at Zeyuna police station, Baghdad, June 24, 2003.

46 Human Rights Watch interview with police officers at East Baghdad headquarters, Baghdad, May 31, 2003.

47 Dalal S.’s mother showed Human Rights Watch a copy of the police report taken by the U.S. military police officer; the officer’s identity and MP company are known to Human Rights Watch.

48 Human Rights Watch interview with Dalal S.’s mother, Baghdad, June 20, 2003.

49 In some cases police staff had difficulty finding three chairs so that the police commander, the Human Rights Watch researcher, and an interpreter could all sit down to talk.

50 Human Rights Watch visited eight police stations between May 26 and June 13, 2003, while pursuing this research.

51 Human Rights Watch interview with Investigating Judge Mohammad Jassim al-Jumaili, East Baghdad investigative court (al-`Adhamiyya), June 7, 2003 and June 14, 2003.

52 Human Rights Watch interview with police officers at East Baghdad police headquarters, Baghdad, June 4, 2003 and June 12, 2003, and Sa’adun police station, June 11, 2003; and subsequent inquiries made at Sa’adun, al-`Alwiyya, Bab al Sheikh, Bab al Sharji and the East Baghdad headquarters.

53 Human Rights Watch interview with U.S. military police officer Staff Sergeant Taylor, 615 MP Company, Baghdad, June 22, 2003.

54 Human Rights Watch interview with Lt. Col. Saif Ghaleb, administration of West Baghdad police headquarters, Baghdad, June 24, 2003.

55 Human Rights Watch interview with military police battalion officer (name withheld), Baghdad, June 19, 2003.

56 See also, UNICEF, “UNICEF wary of post-war child trafficking in Iraq,” News Notes, June 13, 2003, [online] (retrieved July 2, 2003).

57 Human Rights Watch interview with civil affairs officer (name withheld), Baghdad, June 19, 2003.

58 The Code of Criminal Procedure further specifies that if a police officer receives information about a crime committed in the presence of witnesses the officer must immediate go to the crime scene and take written statements from victims, witnesses, and suspects. Code of Criminal Procedure, articles 39, 42, 43.

59 The magistrate or investigator is then responsible for conducting the initial investigation, including examining the scene of the incident, recording evidence and injuries, appointing experts to offer opinions, and compelling plaintiffs or defendants to cooperate in a physical examination. The code specifies that, as far as possible, any physical examination of a female should be conducted by a female. Code of Criminal Procedure, articles 49, 51, 52, 69, 70.

60 Code of Criminal Procedure, article 50.

61 Other than rape examinations, the forensic institute’s department for the living also examines people who have made allegations of torture or ill-treatment and other examinations where a medical opinion is necessary for a legal decision, for example in divorce cases where the grounds are impotence or sterility. Human Rights Watch interview with Dr. Faek Amin Bakr, director, Institute of Forensic Medicine, Baghdad, June 1, 2003.

62 This phenomenon was the experience of Saba A., the nine-year-old victim described above. The practice was confirmed by Dr. Faek Amin Bakr, director, Institute of Forensic Medicine. Human Rights Watch interview, Dr. Faek Amin Bakr, the director of the Institute of Forensic Medicine, Baghdad, June 1, 2003 and June 12, 2003.

63 Human Rights Watch interview with Dr. Faek Amin Bakr, Baghdad, June 12, 2003.

64 According to the director, women do not choose to enter this branch of medicine.

65 Human Rights Watch interview with Dr. Faek Amin Bakr, Baghdad, June 12, 2003.

66 A male U.S. military officer told Human Rights Watch that Hala R’s was offered a referral for a forensic examination and she declined. A female military police officer told Human Rights Watch that Hala R. had expressed interest in having such a test but nothing was done to follow up that request.

67 Rape or sodomy are punishable by up to life imprisonment, and sexual violence or attempted sexual violence by means of force, threat, or deception by up to seven years imprisonment. The law applies to both male and female victims of rape, sodomy, and sexual violence, and longer sentences apply in sexual violence and attempted violence cases where the victim is a child, and in rape or sodomy cases where the victim is a child or the perpetrator is a relative, government official, or otherwise responsible for the victim’s care, or where victim dies, contracts a sexually transmitted disease, loses her virginity or becomes pregnant. The law further punishes abduction of a child by force or deception by imprisonment for up to fifteen years. The penalty is death or life imprisonment in cases of abduction by force or deception where the victim is a woman and the abduction results in rape, or attempted rape, or where the victim is a child or a woman and the use of force results in death. See Penal Code (Law 111 of 1969, as amended) articles 393, 396(1), 396(2), 393(2), 135, 136, 422, 423, and 424.

Human Rights Watch opposes capital punishment in all circumstances because of its cruel and inhumane nature.

68 Article 427 of the Penal Code states:

If the offender mentioned in this section then lawfully marries the victim, any action becomes void and any investigation or other procedure is discontinued and, if a sentence has already been passed in respect of such action, the sentence will be quashed.

Legal proceedings will resume or the sentence will be reinstated according to the circumstances if the marriage ends in a divorce brought about by the husband without legal justification or in a divorce ordered by the court for wrongs committed by the husband or for his bad behavior within 3 years following the cessation of proceedings.

The public prosecutor, the accused, the victim or any person who has an interest in the proceedings may, according to the circumstances, make application for the proceedings, investigation, procedures or execution of the sentence to be stopped for their resumption of the reinstatement of the sentence.

(Translation by Human Rights Watch)

69 Article 398 of the Penal Code states:

If a proper marriage is contracted between the perpetrator of one of the crimes in covered in this section [Part II, Chapter 9, Section One: Rape and Sodomy and Indecent Assault, articles 393-398] and the victim it shall be considered a legally mitigating excuse under the terms of articles 130 and 131 of the Penal Code. And if prior to the passage of three years the marriage ends in divorce instigated by the husband without legal justification or by court ordered divorce for reasons related to a wrong on the part of the husband or to his bad behavior the judge in the case must at the request of the prosecutor or the victim or whomever has an interest in the case review the punishment to increase it.

(Translation by Human Rights Watch)

70 Human Rights Watch interview with Lt. Col. Saif Ghaleb, West Baghdad Police Headquarters, June 24, 2003.

71 “Honor” killing (most commonly committed by men) is a type of domestic violence in which a close family member or relative kills a female family member as punishment for having been involved in behavior that transgressed community or family mores and brought disgrace to the family’s sense of “honor.” The imputed transgressive behavior could include a woman or girl dating against her family’s wishes, marrying against her family’s wishes, being the victim of sexual violence, no longer being a virgin, or seeking a divorce or separation from her husband against her family’s wishes. Typically, the behavior that is deemed inappropriate is sexual in nature and “honor” crimes ultimately seek to punish and control women’s and girls’ exercise of sexual autonomy and their equality before the law.

For example, Penal Code article 409 sets a maximum punishment of three years’ detention for anyone who kills or permanently disables his wife or female relative upon finding her in bed with a partner. Penal Code 128 further allows for reduced sentences in cases where a crime, including murder, is committed “for honorable reasons or based on a serious and unjustified provocation by the victim of the offense,” which when coupled by article 409 can reduce the punishment to a fine with no detention.

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July 2003