Justice for rape victims with mental conditions

On New Year’s Eve, Cynthia, from Chileka in Blantyre, was defiled by a 21-year-old man who was aware of her mental illness incurred after surviving cerebral malaria as a two-year-old.

“Her attacker is a man she trusted, but the court declared him innocent,” says her mother who has admittedly lost confidence in the country’s criminal justice system.

Salc reports that scales of justice are tipping against persons with mental illness

To her, going to court is “a waste of time” and she contemplates withdrawing Cynthia from school because she is convinced the girl is only safer at home where “I keep an eye on her”.

“Government is not doing much to protect children with disabilities even though it encourages us to send them to school,” she says.

In Malawi, women and girls with mental illnesses continue to face sexual assault from people who are supposed to protect them.

Women and girls  are more likely to be victims of sexual assault than the general population. The attacks both at home and on the streets put the victims at risk of pregnancies and sexually transmitted infections (STIs), including HIV, from men who are seldom identified or penalised.

But Section 139 of the Penal Code outlaws sexual intercourse with people in Cynthia’s mental state, making offenders liable to 14 years imprisonment for rape.

This is in line with the United Nations Convention on the Elimination of all Forms of Discrimination against Women (Cedaw) as well as the Convention on the Rights of Persons with Disabilities (CRPD).

People Serving Girls at Risk executive director Caleb Ng’ombo urges the country to broaden its efforts to protect women and girls in conformity with existing laws, regional standards and global agreements.

“We want to remind law enforcers and everyone in the corridors of justice to step up efforts to achieve Sustainable Development Goal Five on elimination of all forms of violence against all women and girls in both public and private spheres, including trafficking and sexual and exploitation,” he says.

Ng’ombo notes that miscarriage of justice erodes public confidence in courts.

“We believe that it is because of such practices that cases of sexual violence go unreported by parents and victims,” he explains.

Campaigners for equal treatment bemoan lack of will by the police to investigate and prosecute sexual violence against persons with disabilities.

“The major problem is that women and girls with mental illnesses are rarely believed by the police or social worker in one-stop centres,” says Mental Health Users and Carers Association (Mehuca) executive director Thandiwe Mkandawire.

“However, persons with mental illness should be given proper assistance, including medical drugs, to testify better in courts,” she says.

In 2017, the Southern Africa Litigation Centre (Salc) reported that women with disabilities face numerous obstacles in the legal justice system, including courts’ failure to acknowledge them as competent witnesses.

“This exclusion is particularly problematic in cases involving sexual assault or other forms of gender-based violence in which the complaining witness may provide key evidence necessary for a conviction,” reads the human rights think-tank’s report, Prosecuting Sexual Violence against Women and Girls with Disability in Malawi.

The findings also show that police officers, magistrates and other players in the criminal justice system hold stereotypes that compromise access to justice. At worst, it shows, victims with disabilities are misperceived as having lesser capacity to understand and report sexual violence.

Salc reports: “In some instances, the testimony of the victim is considered less credible on the basis of the victim’s psychosocial or intellectual disability.

“This is more pronounced during the police investigation phase and points to reasons, among others, why cases of sexual violence against women or girls with psychosocial and intellectual disability rarely proceed beyond the community and police investigation phase.”

Centre for Human Rights, Education, Advice and Assistance (Chreaa) executive director Victor Chagunyuka Mhango calls for a human rights approach to cases involving persons with mental conditions in compliance with CRPD.

He proposes that such cases should be referred to psychosocial and intellectual disability experts.

 “Without recognising the right to legal capacity of women with disabilities and doing more to remove legal, social and economic barriers to empower women and girls with mental and psychosocial disabilities to live independently in their communities, the vulnerability to both sexual violence and inadequate access to justice will persist,” states Mhango.

He is worried that courts throughout southern Africa often dismiss evidence presented by women with mental disabilities who are required to present to court medical reports confirming their condition and attack.

 “Sometimes the local courts do consider evidence from persons with mental and psychosocial disabilities in criminal cases, so that is not the sole problem,” Mhango says.

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