7. LITIGATION AND ADVOCACY STRATEGIES Give the different legal possibilities at the national level for redressing sexual violence, it is important to make a strategic choice of the legal action to initiate. In most countries, since sexual assault is a crime within the penal regime, a criminal prosecution is not a matter of choice for the survivor. Like a case of murder or theft, it is the duty of the police to initiate a criminal investigation when the crime is reported and not necessarily by the victim herself. Sometimes, the prosecution is not pursued at the refusal of the victim to cooperate or because of a lack of evidence or other reasons, and at other times, a civil option is not available unless there is a criminal conviction. The option a survivor may exercise depends on her idea of justice for the violation, the accessibility of a given avenue of justice and the support she has for her case. If she prioritises accountability of those responsible for the violation, she could report the offence and initiate a criminal proceeding. For damages and other forms of reparations, a civil action or application to a quasilegal institution may be most appropriate. It should be noted that in many legal systems including civil law countries in Africa such as the DRC, awards of reparation or damages are kept pending the outcome of the criminal proceeding and the finding of guilt. Similarly, human rights commissions would often not act on a complaint if there are simultaneous cases pending before other courts. Filing for a violation of fundamental rights at a constitutional court, in countries where it is an option, would also achieve two objectives. First, it holds the State accountable for a failure in exercising due diligence to prevent sexual violence. Second, it builds case law to reinforce sexual violence as constituting a violation of constitutional rights. It is important that a survivor approaches the most suitable option of justice and documents the process and experience thereof. It is also important that she appeals to a higher court or pursues alternative processes, should they be available to her, in the event that her first case fails. These steps are important to make a showing of having exhausted domestic remedies (see Section 3 above) if she later seeks justice at the regional or international level. 7.1 Documenting Evidence of Sexual Violence Before engaging with any legal process, it is important to collect and document evidence of the sexual violence. This is necessary for a case to be successful. Often sexual violence cases are not pursued, are dismissed or end up in acquittal of the perpetrator because of lack of evidence. The victim herself, the lawyer or group working and supporting her must therefore ensure that the evidence is as fool proof as possible. The evidence must moreover meet the evidentiary needs of the respective legal option that the victim intends to pursue. The rules of evidence may be stricter in a criminal or constitutional case than a civil action or a claim before a human rights institution. Regardless, it is prudent to document all possible evidence in the event the victim seeks both criminal accountability and a civil remedy; or if her claims remain unsuccessful at the domestic courts and she intends to pursue her case at the regional or international level. Unlike cases of assault or murder, evidence in cases of sexual violence is often difficult to document. The survivor may not be aware that she needs to see a medical officer almost immediately after the violence. The medical facility that certifies the violence may be at a distance from the victim making it impossible for her to reach there within the stipulated time. The rules may have only designated a few doctors as qualified to certify sexual assault and such doctors may not be easily accessible to the victims. The trauma she suffers may impair her ability to accurately record details of the violence. The social stigma attached to sexual violence may inhibit her from reporting the crime or recording the violence in the language required by the law resulting in misrepresenting the violence.252 Other impediments include ineffective, inefficient or 252 At a workshop entitled ‘Litigation Strategies for Sexual Violence’ organized by FIDA-Uganda and REDRESS, April 25-27, 2012, participants from countries such as Sudan, the Democratic Republic of Congo, Burundi, Central African Republic, Kenya, Uganda, raised these issues as some of the impediments that prevent successful investigation and prosecution of sexual violence in their respective countries. 70 7. LITIGATION AND ADVOCACY STRATEGIES | REDRESS