A 13-year-old girl’s request for access to legal abortion following rape, in a case filed by her mother, was denied by the first court who heard the request. The abortion was later allowed on appeal in a judgement handed down on 30 October 2015. This is what happened according to the official English translation of the proceedings, redacted to preserve her privacy:
The judge in the first court hearing refused the abortion for the following reasons:
- The man accused of raping her had not yet been charged or convicted of the crime.
- The prosecutor claimed that there were other ways that she could have become pregnant, that is, not by being raped.
- Rwandan law permitting abortion following rape says that an exception to illegality can be made if a ‘woman’ has been raped, but this was a 13-year-old girl, not a woman.
- The law punishes defilement of children under the age of 18, but defilement is not the same as rape; therefore, the law allowing abortion following rape does not cover defilement of a child.
The appeal court responded that:
- The girl was definitely defiled. She was too young to decide whether to have intercourse, so this is the same as being raped as it was done without her consent.
- The court ought not to wait until the man is tried or found guilty.
- It was not shown that she had not become pregnant due to rape.
- It is the right of a mother to request an abortion on behalf of her daughter as the daughter is under the age of 18.
- When abortion is provided by a medical doctor for a woman who has been raped, both of them are exempt from criminal liability.
- Article 14(2)C of the Protocol to African Charter on Human and People’s rights on the rights of Women in Africa, in which Rwanda is signatory and authorized its use in Rwanda concerning the observation of Article 14.2.c …provides that “member States shall take all appropriate measures to protect the reproductive rights of women by authorizing medical abortion in case of sexual assaults, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the fetus”.
- “The Court finds that the mother has the right to request a medical abortion [meaning a safe abortion here] for her daughter as it is clear that she was defiled at the age of 13, and any child defilement regardless of the form and any means used is qualified as defilement as the sexual intercourse is done against the child’s consent.”
- The girl was no longer going to school as she felt ashamed in front of her classmates. That she needs to continue her lessons is reasonable.
- Abortion can only be carried out up to 22 weeks of pregnancy. She is not yet that far into the pregnancy.
Decision of the court: As it is the wish of the girl and her lawyers, the court finds that the appeal is well-founded, the previous judgment should be altered in all its aspects, the girl is granted the abortion, the hospital should be informed immediately, and it should be carried out before she reaches 22 weeks of pregnancy.
* This girl is not the girl in the photo.
SOURCE: Women’s Link Worldwide Case RPA 0787/15/HC/KIG, 30 October 2015
PHOTO: Unknown rape victim, Rwanda