Contextualising sexual violence in Southeast Myanmar: Continued impunity following the widespread use of rape as a weapon of war

A survivor of conflict-related sexual violence from Thaton District described her experiences to KHRG in a 1992 interview: “All night long the soldiers would come and drag women away to be raped. They took turns and women were often raped by several soldiers in one night. I was raped frequently like the others. While I was being raped or trying to sleep I could hear the screams of other women all around. This went on all night, and then in the morning they’d make us carry our loads over mountains again. I felt especially sorry for Naw Ae—, who was being raped very badly every night and was much too small to carry her load”.^[9]

KHRG’s research from 1992 to 2012 shows that the widespread and systematic use of sexual violence against women by Tatmadaw soldiers was ingrained in military tactics of civilian abuse in Southeast Myanmar.  Over the years, KHRG has also received numerous reports of conflict-related sexual violence committed by Tatmadaw soldiers and members of armed groups. Sexual violence was committed by soldiers at all levels – from privates to commanders – and was aimed at eroding the existing social structures of the local communities in order to undermine their support for the KNU/KNLA.^[10] These findings are echoed by the Karen Women’s Organisation (KWO)’s research into conflict-related sexual violence. Between 1988 and 2004, KWO documented 125 cases of sexual violence committed by military troops in Karen State, half of which were perpetrated by high-ranking army officers. According to KWO, 40% of the cases were gang rapes, and the victim was killed in 28% of the cases.^[11]

In 1997, a woman from Mergui-Tavoy District reported the systemic nature of these abuses: “If the Burmese [soldiers] capture them [the villagers], they will use them as slaves, rape them and beat them until they are dead, because that is what the Burmese Army usually does. They kill the children, they make the husband work, they rape the wives and daughters.”^[12]

The signature of the preliminary ceasefire agreement in 2012, followed by the NCA in 2015, led to a reduction in the pattern of systemic sexual violence committed by the Tatmadaw in Southeast Myanmar. Section 9(m) of the NCA states that the Tatmadaw and the Ethnic Armed Organisations shall “avoid any form of sexual attack on women, including sexual molestation, sexual assault or violence, rape and sex slavery”. Section 9(n) further states that the signatories shall avoid “rape or other forms of sexual assault” against children.^[13]

An analysis of reports of sexual violence received by KHRG from 2012 to the present shows that systemic rape by the Tatmadaw has reduced, and that the majority of incidents of sexual violence by armed actors are now perpetrated by lone individuals. Despite their much smaller scale, abuses continue, and are often met with impunity.

On 10 December 2013, a 22-year-old woman from Thandaunggyi Township, Toungoo District, was assaulted by the Tatmadaw soldier Tun Thein while she was travelling alone. She managed to escape after struggling with the offender. The perpetrator served in the 1^st Military Operations Command, based in Shan State. The woman reported the case to the village leaders, who referred the matter to the Tatmadaw. The perpetrator was eventually arrested by the Myanmar police. Even though the police told the village leaders and the victim that the perpetrator would be condemned to a prison sentence,  they did not give any update regarding the proceedings, and KHRG was not able to confirm whether he received any punishment for his crime.^[14]

Overall, local women continue to fear the Tatmadaw because of the past and present cases of sexual violence perpetrated by its soldiers, as well as the climate of impunity that surrounds them. Some of them reported to KHRG that they feel insecure whenever Tatmadaw soldiers or Border Guard Forces operate in or are based near their community. In January 2016, a woman from Dooplaya District, explained: “They [Tatmadaw soldiers] are male and also have weapons in their hands. We are afraid of them when we travel because we are women. As you know, in the past, they killed and raped villagers as they wanted.”^[15]

The signing of the NCA, coupled with recent movements in favour of women’s rights, also made women more likely to report cases of sexual violence and torture that occurred during the conflict period. In December 2017, a 30-year-old woman from Hpapun District reported to KHRG that she had been a victim of sexual harassment by a DKBA soldier. She also reported how her neighbour was raped by Tatmadaw soldiers during the conflict period, when they were both 16 years old. She explained:

“In the past, I thought that I would never talk about it because it was a very shameful thing for us. If anyone had known about this case, it could have led us to suicide. When I see that women from other countries do not believe that their experiences are shameful and report their rape cases to the public or the media, I feel more comfortable reporting my experiences.”^[16]

In 2017, KHRG also received three reports about a case of conflict-related sexual violence that took place in 1996. A 41-year-old woman from the Tavoy Hkee area was tortured and brutally raped by Tatmadaw soldiers, who also killed her husband. She said: “My husband and I were tortured by the Tatmadaw like animals, after which the Tatmadaw Intelligence Officer U Than Kyaw brutally raped me. The Tatmadaw Battalions involved where the 407^th, 403^rd and 273^rd. Oh no, no… I don’t want to talk about it anymore. Whenever I speak about this experience, I always feel terrified and get ill.”^[17] Despite the fact that some women are breaking the silence, the soldiers guilty of sexual violence have yet to be held accountable for their crimes.

Impunity in the classroom: sexual violence in Myanmar government schools

KHRG recently documented two instances of sexual violence committed by Myanmar government teachers against teenage girls in December 2017. It should be noted that, in some areas of Southeast Myanmar, there were no Myanmar government teachers before the signing of the preliminary ceasefire agreement.

The first case involved a teacher from a Myanmar government high school in Hpapun District, U Chit Oo Maung, who subjected three female students to unwanted sexual touching during a night study session on 11 December 2017.^[18]The case was reported by one of the three girls. When the school principal failed to address the situation, around 80 students held a demonstration in front of the school to call for an investigation. They also submitted an objection letter to the Chief Minister of Karen State, Nan Khin Htwe Myint. Consequently, the school’s principal held a meeting to try and convince the students’ legal guardians that the teacher was innocent. However, the students were convinced of U Chit Oo Maung’s culpability so they rejected these explanations. Finally, the principal agreed to transfer the teacher to another school, around nine miles away from where the incident took place. He then asked the parents to sign a conciliation agreement. Even though most of them did, one of the victims’ mothers reported that, “I was not satisfied. I want this case to be handled effectively [by law]. However, since the other parents agreed to sign, I also had to follow them to protect my daughter from embarrassment.”

The second case involved a school principal, Thet Naing Oo, who attempted to rape a 15-year-old girl with a mental illness, in Bilin Township on 5 December 2017. After the KNU police arrested the perpetrator, local leaders came together to handle the case, including village heads, village tract leaders, local school teachers and the KNU liaison administrator for Bilin Township. The victim’s mother stated that “it [was] not good to keep him in the village due to the security of other children and their futures”, and that the case needed to be considered “carefully”. Although the perpetrator was found guilty at the local level, the Myanmar government’s Vice Education Officer for Bilin Township, U Lwin Maung Soe, interrupted the local investigation process and freed the perpetrator. He stated that the teacher was under his authority, and that the investigation should be transferred to the Myanmar government. Instead of punishing the perpetrator, the Vice Education Officer transferred the school principal to a nearby village.

Even though the small number of cases involving Myanmar government teachers at the local level does not allow KHRG to regard their behaviour as a new pattern of sexual violence against girls, the fact that the perpetrators were not held accountable by Myanmar government authorities is deeply worrying. Indeed, this could pave the way for similar cases in the future, increasing the vulnerability of female students to sexual violence.

Preying on the vulnerable: Sexual violence against children and women with mental illnesses 

Children, orphans, and women who suffer from mental illnesses or who experience economic difficulties are particularly vulnerable to sexual violence. Out of the 27 rape and sexual assault cases that KHRG documented between 2012 and 2018, 12 involved particularly vulnerable women. These included six cases involving mentally disabled women, as well as three cases involving child victims from 2018.

Sexual violence against girls

Girls are an easy target for perpetrators, and special measures are needed to protect them from sexual violence. According to the Ministry of Home Affairs, the majority of rape cases reported to the authorities at the national level involve child victims (61% in 2016, 63.8% in 2017).^[19] From 2012 to 2018, KHRG documented two cases of rape involving girls in Southeast Myanmar. Both of them took place in 2018.

In March 2018, a five-year-old girl who was left unsupervised was raped by her aunt’s husband in Tanintharyi Township, Mergui-Tavoy District. The girl was seriously injured and hospitalised in Dawei Town. The Myanmar police investigated the case and arrested the perpetrator. In November 2018, KHRG was informed that the perpetrator had been sentenced to 20 years in prison. The victim did not receive any compensation.^[20]

A similar situation took place on 12 March 2018. A 15-year-old girl was raped by her older sister’s husband in Noh T’Kaw Township, Dooplaya District.^[21] The victim told her sister about what happened, but the sister did not dare to take action against her husband. The victim’s family shunned her. A local woman sheltered the girl and brought up the case to the authorities in the perpetrator’s village. On 4 April 2018, the village leaders offered money to the girl, and requested to take her with them in order to settle the case, but the woman hosting her refused. Later on, the Township level KNU police and local authorities investigated this case and condemned the perpetrator to one year in prison. The fact that such a serious crime was not referred to a District court, and that the perpetrator was given such a minimal penalty, raises serious questions about the KNU’s ability to prosecute cases of sexual violence against children.

Sexual violence against women with mental illnesses

KHRG documented two cases of sexual violence against women with mental illnesses in 2014. In both instances, the sexual violence became known only when the victim became pregnant. Local leaders did not know when the offence took place and how long the victims had suffered from rape and threats. The survivors were often unable to remember the details of the events, and the local leaders did not take their accounts seriously. Both cases were investigated by local KNU authorities. The Karen Women Organisation (KWO) was also involved in the process and provided assistance to the victims. In March 2016, one of their representatives reported:

“We do have quite a few women who suffer from mental disorders who are raped and then get pregnant. Because people don’t find out [about the rape] unless the woman gets pregnant, it can be really difficult to help them if they cannot identify the perpetrator… People will [frequently] blame the woman [for the abuse] because she has a mental illness… Most of the blame will go to the woman first, but some blame will also go to the man: how can they do such a thing to a woman who really doesn’t know what’s going on?”^[22]

When rape is committed by a person in a position of power, women with mental illnesses have reduced recourse to justice. In 2014, Ko Myo, the son of a former Tatmadaw soldier, attempted to rape a woman suffering from mental illness in Hpapun District. The woman’s brother-in-law caught the man and reported the case to the village and village tract leaders, who did not act upon it. Three days later, the perpetrator escaped. Due to his absence, the local authorities dropped the case. In October 2018, a KHRG researcher reported that the perpetrator had returned to the village. However, no investigation has been conducted to this day and the victim has yet to receive any protection or compensation.

Sexual violence against women with socio-economic difficulties

Sexual violence also occurs when men are in a position of power in relation to the victim. In 2017, a 23-year-old woman became pregnant after being repeatedly raped by her landlord, Hpa Htee Nga Htun. The incident took place in Tanintharyi Township, Mergui-Tavoy District. The perpetrator threatened to kill her if she revealed the abuse. The victim tried to report this case to the village tract secretary, Saw Hpoh Kwa, but he did not take any action. She reported to KHRG: “I am afraid and feel insecure. He does not allow me to go home either.”^[23] In September 2018, KHRG received an update about this case. Local leaders ordered the perpetrator to pay 4,500,000 kyats (US $2,888.97) to the victim.^[24] The perpetrator will also need to pay 1,000,000 kyats (US $641.99) per year to the mother from the time that the child reaches 5 years old until he turns 18. However, the delayed reaction of the local authorities raises serious concerns, as it put the victim in a potentially life-threatening situation. In addition, the fact that the perpetrator was not sentenced to a prison penalty is hardly comprehensible given the gravity of the offence.

Assessing the root causes of sexual violence in Southeast Myanmar : a first step towards prevention

Rooted in traditional gender norms: stigma, victim-blaming and sexual violence

Gender perceptions in Southeast Myanmar are heavily influenced by religious norms. Even though women and men theoretically enjoy equal rights under the Constitution, men traditionally have a higher religious status in Buddhism, the dominant religion in Southeast ^[25]Myanmar, which paves the way for a multiple types of discriminations. As a result, women are expected to dress in a conservative way, especially in rural areas. The perception that wearing revealing clothing increases the likelihood of sexual violence remains widespread in the country, as even the Ministry of Home Affairs urged women “to wear suitable clothing in order not to tempt fate.”^[26]

In its General Recommendation No. 19 on Violence against Women, the UN Committee on the Elimination of Discrimination against Women concluded that gender stereotyping perpetuates “widespread practices involving violence or coercion”, thus increasing the likelihood of sexual violence against women. Gender stereotyping remains prevalent in Southeast Myanmar, where women are expected to take care of children and family matters while men focus on business. The common Burmese and Karen proverb, “The sun will not rise if the hen crows“, illustrates traditional perceptions of women’s roles.

Because of gender stereotyping, victim-blaming is common, and survivors often face discrimination and social stigma. Police officers and criminal court judges are reportedly prone to blaming women when confronted with cases of sexual violence. There is a widespread perception that rape only happens to women who behave in a way that does not match traditional social expectations.^[27] In one of the cases documented by KHRG, the victim’s sister stated that “I just want to say that my sister is not a prostitute and not a person who has a bad moral behaviour. She is just a person who is uneducated and has a mental disability.”^[28]Such a statement conveys the idea that women are to blame for sexual violence.

Virginity is regarded as sacred in Southeast Myanmar, where a proverb compares women to leaves: “If sharp material falls on them, or if they fall on sharp material, they will be damaged”. The fact that survivors of sexual violence have lost their virginity is therefore seen as something that can bring bad luck to the community. As other men will not agree to marry rape victims, they can feel like they have no choice but to marry the perpetrator – and local leaders sometimes pressure them to do so. However, such an outcome would  likely condemn them to a life of sexual abuse, as marital rape is not a crime in Myanmar.

It should be noted that traditional perceptions of gender roles were challenged during the conflict period, as some women had to replace men as village leaders. As a result, attitudes towards women began to change, and some of them also became teachers, customary leaders and healthcare workers. Despite these positive developments, a lot remains to be done to ensure full gender equality in the region.

Inadequate legal protections for survivors of sexual violence

Myanmar’s legislation on sexual violence against women is outdated and poorly enforced. The definition of rape laid down in Section 375 of the colonial era Penal Code only covers sexual intercourse, and marital rape is not criminalised unless the victim is under 15 years of age. According to section 376 of the Penal Code, rape offences carry a penalty of 10 to 20 years in prison.^[29] However, the penalties associated with prohibited instances of marital rape are significantly lower (up to two years in prison, or a fine, or both).

Even if these shortcomings were to be fully addressed in the future, Myanmar government law exists in parallel with the KNU legal system in many areas of Southeast Myanmar. As noted by Kay Thi Myint Thein, senior coordinator at the Gender Equality Network: “The arm of the [Myanmar government] law does not reach ethnic areas and other remote places”.^[30] Indeed, the KNU enforces its own legislation in the areas under its control, and its provisions regarding sexual violence remain unclear at the time of drafting. Overall, because two legal systems exist in parallel, local civilians usually have limited knowledge of both the applicable legislation and the mechanisms for reporting a crime to the relevant authorities.

The NLD has committed to strengthening the legal framework on the protection of women, including through the adoption of a comprehensive Prevention of Violence Against Women Bill (PoVaW). Even though this bill has been in development since 2013, it has yet to be approved by the Parliament. In May 2017, the New York Times reported that the whole process was undermined by several ministries, notably the military-controlled Ministry of Home Affairs, which opposes provisions that would clearly define sexual violence and hold soldiers accountable for acts of rape perpetrated in conflict-affected areas.^[31]In October 2017, the Irrawady reported that the Parliament was about to review the draft PoVaW. It also informed that the bill would punish marital rape with two to five years in prison, and carry a life sentence for the rape of children and disabled women.^[32] In November 2018, the deputy minister of Social Welfare, Relief and Resettlement, U Soe Aung, expressed his hopes that the law would be enacted in 2019.^[33]Should this happen, it is of paramount importance that the government takes the necessary measures to ensure the full implementation of the future law in all the areas under its jurisdiction

A climate of impunity fuelled by under-reporting and lack of access to justice

KHRG documentation showed that women in Southeast Myanmar often choose not to report cases of sexual violence due to the fear of social stigma, but also due to a lack of knowledge about how to take the matter to court. It was also reported that perpetrators of sexual violence often threaten the victims, as well as their female family members, in order to deter them from reporting or speaking about the incident.

The lack of trust in and the partiality of the Myanmar judiciary also remains a significant impediment to delivering justice to the victims and enforcing the rule of law. This is particularly true for cases of past or present sexual violence committed by Tatmadaw soldiers, which are either ignored or handled by opaque military courts that usually shield perpetrators from further prosecution and sanctions. Other factors contributing to the widespread disuse and distrust of the official justice system include its high cost, corruption, gender bias, lengthy trial delays and language barriers for ethnic minorities with little or no knowledge of the Burmese language.^[34]

In KNU controlled areas, the local justice system does not seem to fully comply with the international standards for the administration of justice. Indeed, KHRG documentation reveals that cases of sexual violence are sometimes handled by low-level courts that focus on negotiating settlements between victims and the perpetrators. They often do not have the capacity to condemn perpetrators to a prison sentence that is consistent with the gravity of the offence.

As a result, the local population often tends to rely on traditional justice mechanisms that provide no guarantees to protect the rights of the victims, who have to face delays and bias. Indeed, local village leaders are usually slow to respond to allegations, and they do not handle such sexual violence complaints according to the Penal Code because of their lack of legal knowledge. Instead, they tend to settle the case informally. Typically, the perpetrator will be asked to marry the victim or to pay a small sum as a form of compensation. The victim is often pressured by her family to accept these terms in order to close the case. In July 2016, the UN Committee for the Elimination of Discrimination against Women stated that, in Myanmar, “the use of traditional justice mechanisms […] often perpetuate[s] gender-based violence against women, such as that requiring a victim of rape to marry the perpetrator”.^[35]

For example, in 2017, a 44-year-old widow in Nyaunglebin District, was raped by a villager, Saw Honet Htoo. She reported the case to her local church and to the village administration in order to access justice. Instead, the local leaders tried to encourage her to marry the perpetrator. Her name was also removed from the church’s list of members, and some neighbours started gossiping about her situation instead of providing support to her. She refused to marry the perpetrator. Her rapist ultimately ran away and the local authorities did not take any further action to investigate this case.

Due to the above-mentioned shortcomings, perpetrators of sexual violence routinely enjoy impunity for their actions, and are therefore able to retaliate against women who attempted to report the abuses they suffered. Out of the 27 cases that KHRG received from 2012 to 2018, only one was handled according to existing legislation in a formal court of law.

Preventing the Root Causes of Sexual Violence: Gender Sensitivity

Article 5 of the Convention on the Elimination of All Forms of Discrimination against Women, to which Myanmar is a party since 1997, states that “States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” However, the fact that traditional gender perceptions remain prevalent in the country demonstrates that more steps should be taken to comply with this provision.

Reports of sexual violence received by KHRG show that civilian populations often lack awareness about women’s rights and gender-equality. In addition, women have less opportunities to participate in the decision-making process at the local level, so their voices and concerns are usually ignore by the village authorities. In order to reduce the vulnerability of women to sexual violence, it is paramount to sensitise all the sections of the community to this issue, including students, villagers, teachers, police and health personnel, judges, government officials and local leaders.

The lack of sexuality education in Myanmar also puts women in a situation of increased vulnerability to sexual violence. According to the UNESCO, comprehensive sexuality education (CSE) is a “curriculum-based process of teaching and learning about the cognitive, emotional, physical and social aspects of sexuality. It aims to equip children and young people with knowledge, skills, attitudes and values that will empower them to: realise their health, well-being and dignity; develop respectful social and sexual relationships; consider how their choices affect their own well-being and that of others; and, understand and ensure the protection of their rights throughout their lives.”^[36] Therefore, CSE provides the appropriate framework for educating children about notions such as consent and sexual abuse. It also gives them the right tools to identify the behaviours that can amount to sexual violence, to resist pressure and to seek assistance.^[37]

Increasing gender sensitivity at all social levels, and facilitating discussions on consent are important steps towards decreasing the vulnerability of women and girls to sexual violence.

Conclusion

Despite a decrease in conflict-related sexual violence since 2012, sexual violence against women remains a persistent problem in Southeast Myanmar, especially in rural areas. Without adequate measures to address the root causes of the problem, protect the rights of the victims and hold the perpetrators accountable, a climate of impunity will prevail.

KHRG documentation also demonstrated that the vast majority of victims do not benefit from any protection measures. Many survivors continue to grapple with trauma and face stigma within their communities. In one of the cases documented by KHRG, one girl who was a victim of sexual violence did not return to school due to the fear of social stigma. Such outcomes are common, and they put survivors in a situation of social isolation, which further increases their vulnerability to sexual violence and undermines the full enjoyment of their rights.

It is therefore urgent to provide victims with immediate assistance before tackling the root causes of the problem. Such measures must be implemented as part of a comprehensive and victim-centred approach, and include legal counselling, shelter, financial support, healthcare and psychological services, as well as professional training to help victims reintegrate into society.

Recommendations

In order to comply with international standards for the protection of women and girls, KHRG recommends that the Myanmar government should:

• Ensure that the Prevention of Violence Against Women bill features comprehensive protection measures for survivors of sexual violence; and take the necessary steps to secure its adoption as soon as possible;
• Take the necessary steps to criminalise all forms of marital rape;
• Repeal all laws that perpetuate impunity for conflict-related sexual violence and ensure impartial and effective investigation into past and present sexual violence perpetrated against women and children by the military and armed groups;
• Ensure the full implementation of the Convention on the Elimination of All Forms of Discrimination against Women.

In order to facilitate access to justice in Southeast Myanmar, KHRG recommends that both the Myanmar government and the KNU authorities should work to:

• Put in place and promote dedicated reporting mechanisms for all forms of sexual violence against women and girls;
• Ensure that law enforcement staff, members of the judiciary, local leaders and other relevant personnel in both systems are trained in strictly applying the criminal law and in handling complaints of sexual violence against women in a gender sensitive way;
• Take the necessary measures to curb the use of traditional justice mechanisms for cases of sexual violence against women.

In order to prevent sexual violence against women and girls, the Myanmar government and the KNU authorities should:

• Take necessary measures to sensitise all the sections of communities to gender equality and women’s rights in order to change traditional practices and social norms that are harmful for women;
• Ensure that schools include comprehensive trainings on gender sensitivity, sexuality education and consent in their curricula.

KHRG also recommends that the Myanmar government and KNU authorities take the following steps to protect survivors of sexual violence:

• Ensure that enough shelters for female survivors of sexual violence are available and staffed by professionals who were trained to deal with this kind of trauma;
• Offer comprehensive assistance measures to survivors, including legal counselling, witness protection programmes, financial support, healthcare and psychological services, professional training.

In order to put an end to impunity for conflict-related sexual violence, the Tatmadaw, Border Guard Forces and Ethnic Armed Oganisations should:

• Support efforts towards the de-escalation of conflict, especially near civilian areas, to reduce the risk of (gender-based) violence against women and to protect women from conflict;
• Hold military personnel accountable for (gender-based) violence against women in fair and transparent judicial processes, whilst paying due regard to gender sensitivities of the female victims.