In 1991, Sudan’s Islamist regime expanded the circumstances under which abortions are permitted within 90 days of conception to include rape. This reform has received great attention, especially given the rampant rape that occurred during the violent conflict in Darfur. Rape victims have been unable to take full advantage of this law, however, since a victim must overcome serious legal and practical hurdles in order to access an abortion. This became even more difficult after the International Criminal Court’s 2009 indictment of President Bashir because Sudan expelled many of the humanitarian organizations, including Médecins Sans Frontières,that were providing vital medical treatment after rape. The expulsions has caused a reduction in sexual violence protection programs, including the closing of medical centers and denying women the right to post rape medical care. Victims of rape in war struck Darfur often end up with an unwanted child and the lifelong stigma that entails or seek an illegal and unsafe abortion risking life threatening health complications.
Sudan’s Rape Laws
At first sight, Sudan’s liberalization of abortion rights in 1991 would seem to be welcome step forward for Sudanese women. The Islamist state expanded the circumstances under which a woman can seek a legal abortion to include rape. At second sight, however, the law reform seems to have had little practical significance for rape victims, since it is extremely difficult to prove rape and failure to do so may result in prosecution for zina.
In article 149 of Sudan’s Criminal Code of 1991, rape is categorized as zina (that is, sexual intercourse before and outside of marriage) without consent. At the same time, though, Sudan criminalizes zina and, building on the Islamic hudud penalties, this crime is punished with 100 lashes (if the person is unmarried) and capital punishment by stoning (if the person is married).
This creates a dilemma for a rape victim. In order to prove rape, the victim must prove that someone has forcibly committed sexual intercourse with her. The burden of proof falls on the rape victim. Only physical injuries and bruises are regarded as evidence for the lack of consent in Sudanese courts, unless the victim of rape is a child. If the police do not document such injuries on Form 8 (the form used to report a violent act, which is then used as evidence in court), an accusation of rape may lead to the victim’s incrimination for zina.
This is especially likely to occur if the victim is an unmarried woman or girl who becomes pregnant because of the rape, since her pregnancy will serve as clear evidence that sexual intercourse occurred. Pregnancy in unmarried women is the evidence for zina, in addition to a confession (which is not retracted before the verdict) or the testimony of four male eyewitnesses. If an unmarried woman becomes pregnant after rape she can thus be punished for the crime of zina if she fails to prove the lack of consent. In the words of one of my informants; “if you cannot prove rape, you become the perpetrator.”
Access to emergency contraception after rape in Darfur
Abortion care in connection with rape received heightened attention after the Darfur conflict erupted in 2003 because sexual violence and rape became widely documented. Humanitarian organizations rushed to the scene, providing victims of sexual violence with so-called “rape kits” that included the “morning after pill,” which prevents pregnancy if taken within 72 hours after a rape.
On 4 March 2009, the ICC issued an arrest warrant for Sudan’s President Bashir, indicting him on five counts of crimes against humanity in Darfur (murder, extermination, forcible transfer, torture, and rape) and two counts of war crimes (pillaging and intentionally directing attacks against civilians). Following this, the Sudanese government immediately expelled 13 international NGOs operating in Darfur that, among other things, provided post-rape treatment. This caused a dramatic reduction in women’s access to medical treatment after rape. According to a Darfuri activist (2013 interview),
After the expulsion of international and national health service providers, medical centers were closed down, such as the Italian hospital in Nyala. Thus, services for raped women are now only found in public hospitals, as state protocols dictate that only doctors are allowed to deal with rape cases. Many displaced women are far away from hospitals and there is no regular transportation from the camps to the hospitals.
The Sudanese regime did not entirely stop the distribution of rape kits after the ICC arrest order, but it required the Ministry of Health to distribute them. State protocols further dictate that only doctors may provide legal abortions. The practical effect of these policies has been to restrict access to services. As a country struggling with poverty, internal displacement, and several armed conflicts, Sudan lacks medical infrastructure, particularly doctors. In many rural areas, particularly in conflict zones like Darfur where sexual violence is rampant, midwives and nurses are the only healthcare providers. However, they are not allowed to prescribe emergency contraceptives in cases of rape. One humanitarian actor working in Darfur has explained (2012 interview),
Only doctors have authorization to give emergency contraceptive. In rural areas of Darfur there are no doctors. It cannot be given by a nurse. The pill has to be taken within 72 hours after the rape. Women cannot travel to urban centers to access medical centers due both to the armed conflict and lack of resources. There are a lot of children born in Darfur as a result of rape.
Furthermore, the Darfur region is obviously characterized by a fundamental lack of trust in government hospitals, and women are generally reluctant to seek medical treatment there.
Because of the expulsions, only UN organizations are currently bringing rape kits to Sudan. Most international humanitarian organizations have reduced their efforts within the area of sexual violence in order to avoid being barred from the country. As the UN is cooperating with the government, women’s access to medical services after rape outside of state hospitals is therefore reduced. Even the UN is facing some difficulties, according to Sudanese activists (2015 Interview):
These rape kits are stuck in the warehouses under the auspice of the Ministry of Health. Thus, the rape kits do not reach many hospitals. Further, doctors are instructed to not document the use of rape kits (because the government is not keen to document the occurrence of rape in Darfur) and thus hospitals run out of them.
In short, access to emergency contraceptives is extremely difficult in the increasingly polarized political setting of Darfur. Many women in war struck Darfur who cannot access emergency contraceptive within 72 hours after the rape, end up with an unwanted child or seek an illegal and unsafe abortion because of the risk of punishment for zina and the lack of medical infrastructure.
Note: This blog is derived from the author’s participation in the research project Protection of Civilians: from principle to practice. A more detailed analysis on “Women’s Right to Abortion after Rape in Sudan” is available in Tønnessen’s publication in CMI Insight, available here.