He Said, She Said: Assessing the Post-Colonial Legacy on Somalia’s Rape Laws

Authors

Natalia W. Nyczak

Abstract

Most jurisdictions have adopted changes in legislation within the past fifty years that reflect the evolution and advancement of women’s legal rights. Somalia, however, has not undergone a significant change in its legal regime since the 1960s. Somalia’s penal code and criminal procedure code are based on laws that were written in the late 1800s to early 1900s. When it comes to rape, judges harbor the beliefs that women must “put up a fight” against their assailants and doubt the inherent trustworthiness of women. These prevailing gender myths prevent women from accessing justice and infringe on their rights to equality and non-discrimination in the courtroom. Many of these gender myths are supported by outdated colonial laws and are a result of Italy and Great Britain’s legal legacies in Somalia. This article is the first of its kind to examine colonial influences on gender myths in the Somali courtroom. It commences with an introduction into Somalia’s legal past and limitations in case law that are attributable to its longstanding civil war and frail infrastructure. Part II continues with a brief background into international human rights standards for victims of gender-based violence—the principles that set the standard against which the treatment of women under laws should be compared. Part III highlights how Somali cultural norms have contributed to preconceptions about women that are reflected in the courtroom. Part IV and V shed light on how fascist-era Italy and British India not only defined Somali criminal laws but also shaped the current Somali legal system’s treatment of women as unreliable victims and witnesses. Both the resistance standard and cautionary rules like the corroboration requirement and immoral character provision are legacies of Somalia’s colonial past. These rules hinder a Somali woman’s access to justice because they are only applied in rape cases where the victim is a female. Moreover, they require a higher evidentiary standard than any other crime. In conclusion, this article draws attention to the dangers of legal stagnation and the importance of legal reform.

Recommended Citation

Natalia W. Nyczak, He Said, She Said: Assessing the Post-Colonial Legacy on Somalia’s Rape Laws, 37 Emory Int'l L. Rev. 167 (2023).
Available at: https://scholarlycommons.law.emory.edu/eilr/vol37/iss2/1