Haiti’s Draft Penal Code Legislation
June 14, 2017

Sénat de la République d'Haiti
La commission Justice, Sécurité et Défense Nationale

CC: Senate President, the Honorable Senator Youri Latortue
Re: Draft Penal Code Legislation

Dear Honorable Jean Renel Sénatus:

We the undersigned organizations applaud the work of the Senate on the draft Penal Code. This bill signifies tremendous progress made to uphold the fundamental rights and freedoms of the Haitian people, in line with international human rights standards. We hope for its speedy passage into law.

We are particularly pleased that this landmark legislation comprehensively addresses gender-based violence. We propose a small amendment to the provision of the element of consent under the definition of the crime of sexual assault in order to bring the law into full compliance with international law standards and ensure that justice is delivered to victims.

Specifically, we are writing to respectfully request that you consider amending the evidentiary burden required for convictions under the definition of consent. Article 296, under Section 3, on Sexual Assault currently states, “Sexual assault is any sexual offense committed against a person without his or her consent, with violence, coercion, threat or surprise.”

We request striking the language: violence, coercion, threat or surprise. The presence of one or more of these additional elements, to be sure, would prove that consent had not been freely given. However, because the definition of consent is the absence of coercion, inclusion of a requirement of proving coercion would be superfluous and, moreover, adding the requirement of violence, threat or surprise would add a heightened burden on victims out of step with international standards.

Consent is the touchstone of modern definitions of rape in the criminal law. Under this modern definition and in accordance with international law standards, rape is defined based on lack of consent, not on the use of violence, coercion, threat or surprise. All forms of rape and sexual assault offenses are premised on lack of consent, without the need to show such aggravating factors. Adding an additional requirement of proving either coercion, violence or threats surprise is limiting and excludes some forms of rape.

International law looks to the circumstances surrounding an incident of rape to determine if consent was freely given. It dictates that if a court finds threats, coercion, violence, duress, lack of capacity or any other similar circumstance then the court should conclude on this evidence that the victim did not freely give consent. It also finds that while the existence of such force can be considered evidence of the lack of consent, it should not be treated as an independent element of the crime of sexual aggression under the definition of rape. As such, it is critical for Article 296 to recognize that any finding of sexual assault should be based on lack of consent alone and not dependent on the added requirement of proving coercion, threat, violence or surprise.

We therefore respectfully request your consideration in amending the draft law to define rape and sexual aggression around the central element of lack of consent in compliance with international criminal and human right law. We propose that Article 296 be edited to: “Sexual assault is any sexual offense committed against a person without his or her consent.” This alteration better encapsulates the legal definition of consent, bringing the Penal Code further in line with the international legal standards.

We commend the ongoing efforts of the Senate to protect the rights of the people of Haiti and ensure their access to justice. In bringing this issue to your attention, we are lending our support to, and pledging our future assistance with, any efforts that you undertake to protect victims and those at risk of sexual assault. We hope to see the Penal Code voted into law with this amendment and thank you for your time and dedication to strengthening the rule of law in Haiti.

Respectfully Submitted,

[local sign-ons here]

Other Supporting Organizations:

We the undersigned non-governmental organizations are writing to express our support for Haitian organizations’ call to amend Article 296 and pass the Haitian Penal Code Draft Law. We thank you for your time and dedication to strengthening the rule of law in Haiti.

[other sign-ons here]
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