myanmars justice system is failing survivors of sexual violence - Myanmar’s Justice System Is Failing Survivors of Sexual Violence 

It has been six months since the toddler known as “Victoria” was sexually assaulted at her private nursery in Naypyidaw, Myanmar. The handling of the case has failed to preserve and uphold the dignity of the child survivor and her family. By the time it was even transferred to the Criminal Investigation Department, the slogan “Justice for Victoria” had already been plastered on car windows, T-shirts, and social media. In an astonishing violation of protocol, the police revealed Victoria’s true identity at a press conference, and later they leaked the names and address of her parents on social media.

Sadly, Victoria’s case is not the only example of Myanmar’s justice system failing to protect survivors of gender-based violence. The mishandling of several high-profile cases of rape and sexual violence has exposed how inadequate and truly unprepared the authorities are in supporting survivors due to a flawed judiciary that lacks independence or impartiality. Indeed, the system is driven by stakeholders more interested in protecting perpetrators than victims.

Myanmar’s judicial system includes four levels: Township Courts, District Courts, High Courts, and the Supreme Court. Contrary to popular belief, prosecutors in criminal cases report to the government, not the military, as the constitution gives the president the authority to appoint a cabinet-level attorney general for a five-year term. The attorney general’s role is to provide advice on legal matters and fulfill related duties. The regional and state advocates general, and the law officers, serve under the attorney general at the courts.

The Myanmar Police Force, however, is administered by the Myanmar Army through the 2008 military-drafted constitution, which establishes defense as both a basic principle and fundamental right. The military’s efforts to uphold their reputation as one to be feared and not questioned extend into the various institutions it oversees. This is done through widespread fear-mongering tactics such as intimidation and explicit threats. In cases of gender-based violence, particularly by high-ranking officials, the integrity of survivors is compromised in favor of protecting those in power, while discrediting the legal institutions that allow them to uphold their power along the way. It is also worth noting that the country’s legal framework did not include the input of any women.

Most recently, the continued delays in the Victoria case are indicative of the long way Myanmar has to go in protecting survivors of rape. Since the trial began last July, there have been serious acts of misconduct that have contributed to the delays in the proceedings. Many are concerned that the main suspect is a scapegoat to protect the real perpetrator.

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Despite President Win Myint signing an amendment to the Penal Code in March 2019 to jail child-rapists for life, there are challenges in preventing repeat offenses as well as ensuring survivors have access to counseling and are protected in their communities. Unfortunately, the shame that follows survivors after being assaulted undermines the severity of the crimes that were committed against them. This too preserves patriarchal institutions. The Penal Code in Myanmar remains severely out of step with the current definition of rape, failing to meet international human rights standards.

For the Myanmar Army, rape is a weapon of war used to assert dominance and fear. During the recent hearings at the International Court of Justice, representatives from The Gambia gave detailed accounts of sexual violence against Rohingya women. A report released by emergency relief NGO Free Burma Rangers shared eyewitness accounts of Rohingya women who were mutilated, impregnated, and made to feel constantly unsafe in their surroundings. Despite Aung San Suu Kyi’s defense of military courts, another report by the Independent International Fact-Finding Mission on Myanmar claims that no Myanmar Army solider has been held accountable for sexual violence against the Rohingya. Even if they are not killed, survivors are denied justice when they are threatened or forced to carry their trauma.

Furthermore, this year marks the fifth anniversary of the brutal rape and murder of two Kachin teachers in Kutkai township, Shan state. The Myanmar Army was present in the community at the time of the incident and community members have long suspected soldiers from the battalion were the perpetrators. Yet the case has still not been brought to the judiciary, nor were the Muse District Police willing to interview soldiers in their investigation. Shortly after, a joint report by the Kachin Women’s Association Thailand and Legal Aid Network looked at this case in greater detail and noted how evidence was compromised that could have proved vital in the pursuit of justice. To date, no charges have been laid.

These events speak to greater concerns. Rather than focus on due process through a fair trial, it seems those in power have worked harder to distract us from the true timeline of events in order to uphold systems that deny survivors access to justice. These tactics are deliberate attempts to deny the facts, to delegitimize legal proceedings and dismiss evidence.

Ironically, the slogan for the Myanmar Police Force is “May We Help You” — which may as well have a question mark at the end, as it appears there is too often an unwillingness to actually do so. The vast number of gender-based violent crimes, especially in conflict-related circumstances, take place without accountability or formal redress. Military impunity and a culture of patriarchy have created a climate of fear for women who find themselves vulnerable in conflict zones. And yet the justice system remains fragmented, failing those who need protection. Monitoring mechanisms are virtually nonexistent, with reporting on abuses being documented by grassroots organizations risking their professional and personal security in doing so.

If its justice system is to be taken seriously, Myanmar must take concrete steps to protect survivors. These cases demonstrate that not only are those in power unwilling to provide reforms, but they are simply incapable of doing so — in particular for victims of genocide and conflict-related sexual violence. Therefore, it is important to continue strategically advocating for justice through international mechanisms. Meanwhile, Myanmar should start a meaningful judicial sector process to address the roles and jurisdiction of courts over each law that goes through the court system.

In addition to a long-term plan, short-term support is also essential to meet the mental and physical needs of a survivor after an attack. Police must be trained in gender-sensitivity approaches that seek to support rather than stigmatize. To do otherwise will continue to perpetuate a system that has already failed too many survivors and stands to further tarnish the reputation of an already unreliable justice system.

Wai Wai Nu is a human rights activist and founder of the Women’s Peace Network. She is a Rohingya and former political prisoner who is dedicated to working for human rights and democracy. She holds a Master of Laws from UC Berkeley, and is currently a visiting Scholar at Columbia University.

Maggi Quadrini works in media-advocacy for community based organizations along the Thai-Myanmar border focusing on ethnic equality and transitional justice.

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