Law and Policy Guide: Rape and Incest Exceptions

05.28.2019

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Rape and Incest Exceptions

The majority of countries worldwide allow abortion in cases of rape and/or incest, either through laws enumerating these grounds or by permitting abortion on request. Although rape and incest are distinct legal grounds for abortion, they are very commonly paired together in abortion laws and policies. Although a handful of countries only allow abortion in cases of rape, and not incest, whereas there are not any countries that allow abortion in cases of incest that do not also allow abortion in cases of rape. Notably, countries that allow abortion on health grounds, particularly mental health grounds, might interpret such exceptions to include cases of rape or incest, even when such are not explicitly articulated in law. For the purposes of the World Abortion Law Map, the rape and incest indicators are only included where these grounds are explicitly included in the law itself.

Human Rights Norms

UN Treaty Monitoring Bodies

Many UN Treaty Monitoring Bodies (TMBs) have urged states to allow abortion in cases of rape and incest.1 Notably, in the pivotal case of LC v. Peru, the Committee on the Elimination of Discrimination against Women (CEDAW) called on Peru to decriminalize abortion in cases of rape and sexual abuse.2 Further, the Human Rights Committee’s General Comment No. 36 on the Right to Life explicitly requires that State parties permit abortion in cases of rape and incest.3 The Committee against Torture (CAT) has criticized abortion bans that do not have exceptions for rape and incest,4 and noted that without a rape exception, a woman is constantly exposed to “the violation committed against [her] and [experiences] serious traumatic stress…”5 The Committee against Torture has also urged a state to provide support ensuring   free access to abortion care when in cases of rape.6

TMBs have also recognized that access to abortion in cases of rape should not require additional evidentiary burdens, such as medical certification, judicial authorization, or a guilty verdict.7 For example, the Committee against Torture found that, in some cases, requirements that women obtain judicial authorization before accessing an abortion may constitute an “insurmountable obstacle” to accessing abortion, and that when denial of such judicial authorization occurs for victims of rape, it may constitute torture or ill-treatment.8 The Committee against Torture further urged States to ensure that conscientious objection from a medical provider does not hinder a woman’s access to abortion in cases of rape.9

African Regional Bodies

The Maputo Protocol requires State parties to permit abortion in cases of rape and incest.10 The African Commission on Human and Peoples’ Rights clarifies this provision in its General Comment No. 2, explicitly stating that “forcing a woman to keep a pregnancy resulting from [rape, incest, or sexual assault] constitutes additional trauma.”11

European Human Rights Bodies

The European Court of Human Rights issued a landmark decision in P and S v. Poland in which the Court held Poland accountable for the failure to guarantee access to legal abortion services to an adolescent who became pregnant as a result of rape.12 The European Court of Human Rights recognized that obstructing access to legal abortion services when pregnancy results from rape can amount to cruel, inhuman, or degrading treatment.13

Inter-American Human Rights System

The Inter-American Commission on Human Rights has urged States to ensure access to abortion in cases of sexual violence, and to adopt effective health protocols to support survivors of sexual violence.14 The Committee of Experts on Violence (CEVI) notes in the Follow-up Mechanism to the Belém do Pará Convention (MESECVI) that forcing a woman to carry a pregnancy that resulted from rape “constitutes a form of institutional violence and may constitute a form of torture, in violation of Article 4 of the [Belém do Pará] Convention.”15

Global Medical Standards

The World Health Organization (WHO) recommends in its Safe Abortion: Technical and Policy Guidance for Health Systems that countries permit abortion in cases of rape and incest.16 In addition, the WHO underscores the detrimental impact of evidentiary burdens requiring women to prove pregnancy resulted from rape or incest (e.g., forensic evidence or police reports); the WHO recognizes these requirements can result in delays that may push women beyond the legal gestational limit, thereby preventing women from accessing abortion care altogether.17 Therefore, the WHO urges States to ensure that women receive prompt access to abortion services in cases of rape or incest “on the basis of the woman’s complaint rather than requiring forensic evidence or police examination.”18 The WHO also recommends that States establish clear protocols for health workers and police on referrals and access to care in cases of rape and incest cases in order to facilitate prompt access to abortion care.19

Comparative Law

In most countries where abortion is allowed in cases of rape, abortion is allowed in cases of incest. However, about a quarter of these countries only allow abortion in cases of rape, and not for incest. For example, Brazil’s criminal code explicitly provides an exception to its abortion law for rape and sexual assault, but does not mention incest.20 New Zealand is the only country that explicitly allows abortion in cases of incest but not in cases of rape, although notably, New Zealand’s mental health e exception could be interpreted to include abortion in cases of rape.21

A number of countries have clearly set forth in their laws and policies that a woman does not need to provide evidence other than her own word that the pregnancy was the result of rape or incest in order to receive abortion care. For example, in its Technical Guidelines for Safe Abortion, Ethiopia explicitly removed evidentiary burden requirements from accessing abortion in cases of rape or incest, and clearly states that “[t]ermination of pregnancy shall be carried out based upon the disclosure of the woman whether rape or incest has occurred.”22 The guidelines further state that a woman who is pregnant as a result of rape or incest does not need to identify the perpetrator, nor provide proof of rape or incest in order to access abortion.23 Other countries include additional guidelines about collecting physical evidence in support of criminal investigations without making them an obstacle to access abortion services. For example, under abortion care guidelines issued by Ghana’s Ministry of Health, a woman’s word is sufficient in cases of rape or incest. The guidelines call on services providers to “take a comprehensive history and do a thorough examination…to aid any investigation that may arise.”24

  • 1. See e.g., Human Rights Committee, General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, at 2, para. 8, U.N. Doc. CCPR/C/GC/36 (2018); L.C. v. Peru, Committee on the Elimination of Discrimination against Women (CEDAW Committee), Commc’n No. 22/2009, para. 9(b)(iii), U.N. Doc. CEDAW/C/50/D/22/2009 (2011); CEDAW Committee, Concluding Observations: State of Palestine, para. 39(a), U.N. Doc. CEDAW/C/PSE/CO/1 (2018); Committee against Torture (CAT Committee), Concluding Observations: Philippines, para. 40(b), U.N. Doc. CAT/C/PHL/CO/3 (2016); CAT Committee, Concluding Observations: Poland, para. 23, U.N. Doc. CAT/C/POL/CO5-6 (2013); Committee on the Rights of the Child (CRC Committee) Concluding Observations: Malawi, para. 35, U.N. Doc. CRC/C/MWI/CO/3-5 (2017).
  • 2. L.C. v. Peru, CEDAW Committee, Commc’n No. 22/2009, para. 9(b)(iii), U.N. Doc. CEDAW/C/50/D/22/2009 (2011).
  • 3. Human Rights Committee, General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, at 2, para. 8, U.N. Doc. CCPR/C/GC/36 (2018).
  • 4. CAT Committee, Concluding Observations: Nicaragua, para. 16, U.N. Doc. CAT/C/NIC/CO/1 (2009); CAT Committee, Concluding Observations: Peru, para. 23, U.N. Doc. CAT/C/PER/CO/4 (2006).
  • 5. CAT Committee, Concluding Observations: Nicaragua, para. 16, U.N. Doc. CAT/C/NIC/CO/1 (2009).
  • 6. CAT Committee, Concluding Observations: Kenya, para. 28, U.N. Doc. CAT/C/KEN/CO/2 (2013).
  • 7. See CEDAW Committee, Concluding Observations: Burkina Faso, para. 37(b), U.N. Doc. CEDAW/C/BFA/CO/7 (2017); CEDAW Committee, Concluding Observations: Argentina, para. 33(c), U.N. Doc. CEDAW/C/ARG/CO/7 (2016); CRC Committee, Concluding Observations: Malawi, para. 35, U.N. Doc. CRC/C/MWI/CO/3-5 (2017); Human Rights Committee, Concluding Observations: Burkina Faso, para. 20, U.N. Doc. CCPR/C/BFA/CO/1 (2016).
  • 8. CAT Committee, Concluding Observations: Bolivia, para. 23, U.N. Doc. CAT/C/BOL/CO/2 (2013).
  • 9. See CAT Committee, Concluding Observations: Kenya, para. 28, U.N. Doc. CAT/C/KEN/CO/2 (2013).
  • 10. African Commission on Human and Peoples’ Rights (African Commission), Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), art. 14(2)(c) (2003).
  • 11.  African Commission, General Comment No. 2 on Article 14.1 (a), (b), (c) and (f) and Article 14.2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, para. 37 (2014).
  • 12. P. and S. v. Poland, Application no. 57375/08, Eur. Ct. H.R. (2008).
  • 13. Id.
  • 14. Press Release, Organization of American States (OAS), IACHR Urges All States to Adopt Comprehensive, Immediate Measures to Respect and Protect Women's Sexual and Reproductive Rights (October 23, 2017), available at http://www.oas.org/en/iachr/media_center/PReleases/2017/165.asp.  
  • 15. MESECVI (Follow-up Mechanism to the Belém do Pará Convention), Second Follow-Up Report on the Recommendations of the Committee of Experts of the MESECVI 59, para. 111 (2014), available at https://www.oas.org/en/mesecvi/docs/MESECVI-SegundoInformeSeguimiento-EN.pdf.
  • 16. World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 76 (2nd ed. 2012), available at https://apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf?sequence=1.
  • 17. Id. at 92-3.
  • 18. Id. at 93.
  • 19. Id. at 93.
  • 20. Código Penal [Penal Code], Decreto-lei No. 2.848, art. 128(II) (1940) (Braz.).
  • 21. Crimes Act 1961, art. 187A(1)(b) (1961) (N.Z.).
  • 22. Federal Ministry of Health, Technical and Procedural Guidelines for Safe Abortion Services in Ethiopia 12 (2nd ed. 2013), available at https://abortion-policies.srhr.org/documents/countries/03-Ethiopia-Technical-and-procedural-guidelines-for-safe-abortion-services-2014.pdf#page=01.
  • 23. Id.
  • 24. Ghana Health Service, Prevention & Management of Unsafe Abortion 16, (3rd ed. 2012), available at https://abortion-policies.srhr.org/documents/countries/02-Ghana-Comprehensive-Abortion-Care-Services-Standards-and-Protocols-Ghana-Health-Service-2012.pdf.