Procedural Obstacles

In addition to obstacles that relate to the definition of the prohibited conduct and the inclusion of force or resistance elements, the law may create additional legal obstacles to prosecuting perpetrators of sexual assault.

In many countries in CEE/FSU, victims of sexual assault are faced with numerous procedural barriers. Barring exceptional circumstances, victims must file complaints to initiate prosecutions in Albania, Azerbaijan, Belarus, Latvia, Poland, Romania, and Ukraine, among others. From International Helsinki Federation for Human Rights, Women 2000: An Investigation into the Status of Women's Rights in Central and South-Eastern Europe and the Newly Independent States 32, 59, 77, 262, 336, 487 (9 November 2000). In Uzbekistan, "[e]ven a sincere repentance and written statement admitting the rape by the perpetrator is not enough unless the victim files a complaint." In Slovakia, "[t]he offender of rape can only be prosecuted with the explicit consent of the victim, which must be given three times throughout the entire process." In Tajikistan, criminal prosecutions can only be initiated by the written complaint of the victim, who is "warned of the criminal responsibility accompanying a false accusation." Until recently, the Criminal Code in Kazakhstan placed "the burden of gathering and submitting evidence" on the victim. With amendments to Kazakhstan's Criminal Code in 2000, the prosecutor is now responsible for investigating sexual assault cases. In Armenia, "[i]f the police see/catch/stop the perpetrator in the act of rape and the victim confirms the act of rape, a report is filed. In other cases, either the victim or the family must make a complaint." From International Helsinki Federation for Human Rights, Women 2000: An Investigation into the Status of Women's Rights in Central and South-Eastern Europe and the Newly Independent States 505, 406, 437, 230, 45 (9 November 2000). By contrast, some jurisdictions around the world require prosecutors to pursue prosecution of rape even if they do not have the complaint or cooperation of the victim.  This practice reinforces the principle that sexual assault is a crime against the state and that prosecution of this crime is in the public interest.

In other jurisdictions, the law imposes a short time limit for prosecuting these crimes. These time limits—also called statues of limitations—prohibit prosecutions after a specified period of time had past. As a Dublin study of sexual assault prosecutions in selected EU legal systems noted, time limits "range[] from six months in Portugal and Italy to an indefinite time (no limit) in England and Ireland. Time limits have represented a particular problem in Belgium; where a charge of rape is reduced to one of sexual assault, then a shorter time limit applies."

Historically, one of the rationales behind such time limits is that a victim who had "truly" been raped would report the crime within a short period of time after the assault. In reality, however, it may take months or years for an assault victim to come forward to report an assault. Although most jurisdictions in the United States have since repealed such time limits, they continue to be informally applied. For example, decision makers such as judges and juries may believe that a victim who waited for a long period of time before coming forward to report the assault is not credible.

As Jane Doe Inc. stated in an amici brief on the issue, "The reality that at least some jurors still believe in the timing myth is evidenced by the fact that defendants continue to challenge a victim’s credibility based on delayed disclosure of the crime. Defendants would not make such challenges if they did not frequently contribute to acquittals."

From Ivana Bacik, Catherine Maunsell, & Susan Gogan, The Legal Process and Victims of Rape, 4 (September 1998); Neal Miller, Review of State Sexual Assault Laws: 1997 (7 October 1997); Testimony of Professor Michelle J. Anderson before the Supreme Court of Pennsylvania, Committee on Racial and Gender Bias in the Justice System (6 December 2001). Jane Doe Inc., Massachusetts v. King Amici Brief (21 March 2005).