Introduction

In the eastern provinces of the Democratic Republic of Congo (DR Congo), victims of sexual violence are turning to the courts in greater numbers than ever before. To the casual observer, it might seem unlikely that vulnerable victims of sexual abuse would turn to the law in the aftermath of violence, particularly when they face possibilities of retribution from perpetrators or family members. This should be especially true in a country like DR Congo, where the state is frequently described as “collapsed” (Reference Herbst and GregHerbst and Mills 2013; Reference TrefonTrefon et al. 2011) and the justice system has been characterized by corruption, nepotism and mismanagement since the early years of independence (Reference Baaz, Verweijen and DeslaurierBaaz et al 2013; Reference Vlassenroot and RaeymaekersVlassenroot and Raeymaekers 2004). Furthermore, sexual crimes are deeply stigmatized across much of central Africa, mitigating chances that victims will report incidents of their own volition (Reference BartelsBartels et al. 2013; Reference Kalonda and OmbaKalonda 2013; Reference Palermo, Bleck and PetermanPalermo et al 2014; Reference VerelstVerelst et al. 2014).

However, in spite of a dilapidated legal system and a seemingly inhospitable social environment, victims of sexual violence have turned to DR Congo's courts to seek legal remedy in increasing numbers in recent years. A growing international emphasis on building the rule of law in the aftermath of conflict, as well as an increasing humanitarian focus on gender issues, have meant that global donors have invested heavily in improving access to justice for women. Programs designed to promote legal accountability for gendered crimes have been implemented across North and South Kivu and the result has been that, over the past 5 years, the vast majority of cases passing through criminal courts in the east have involved sexual offenses (Reference AskinAskin 2011; Reference Douma and DorotheaDouma and Hilhorst 2012; Reference LakeLake 2014b). This represents a radical break from earlier patterns of nonreporting. However, to date, we know very little about why victims of sexual crimes are choosing to opt for formal legal remedy.

How vulnerable individuals come to see their particular struggles as matters relevant to state law, and when they decide to address their grievances through formal legal channels, have been crucial questions for scholars and human rights activists (see, e.g., Reference MassoudMassoud 2006; Reference McCannMcCann 2006, Reference McCann2014; Reference Widner and RobertWidner 2004). While recent work has shown that prosecuting violence is important in its own right—and necessary for ensuring the transition from cyclical instability and violence to stable and durable peace (Reference SikkinkSikkink 2011; Reference Sikkink and Booth WallingSikkink and Walling 2007)—criminal justice is most immediately intended to provide accountability, recognition, and healing to victims (ABA 2014; Reference Méndez, Alex, Levy and SchefferMéndez 1997; Reference O'ConnellO'Connell 2005; UNDP 2013). It is thus surprising that so little attention has yet been paid to the intended beneficiaries of legal outreach efforts.

Without local buy-in, and without victims and witnesses willing to come forward to report crimes to the police or provide testimony in court, efforts to strengthen legal systems and build public confidence in new forms of dispute resolution will surely fail. Furthermore, without input from local participants, we remain ill-equipped to evaluate the potential for legal development aid to contribute to its overarching program objectives of empowering women and building respect for the rule of law. The perspectives of first-time participants in legal processes are especially salient in postconflict settings, where international resources are channeled toward institution-building in large sums and where local communities often have little prior experience with state law.

To begin to understand how increased legal accountability for gender-based crimes has been experienced on the ground, not least by those it is most directly intended to benefit, we conducted in-depth interviews with 50 individuals at various stages in the pursuit of criminal justice. Through these interviews, we analyzed how women involved in legal processes conceptualized criminal justice, what motivated their decisions to seek formal legal remedy given their limited prior experience with the law, and how they reflected, post hoc, on their experiences as legal subjects.Footnote ¹

Our interviews revealed that a dual paradox of opportunity and disempowerment overshadowed both decisions to utilize legal avenues in the first place, as well as overall experiences in doing so. Rather than being motivated by exclusively material or ideational factors as earlier studies have implied (e.g., Reference Douma and DorotheaDouma and Hilhorst 2012), we found that many interviewees expressed a sense of agency and empowerment at being able to utilize legal tools to seek symbolic and material redress. In turning to legal institutions for the first time, many embraced the language of the law as a powerful new vehicle through which they could call out and condemn previously tolerated abuses. Others were drawn to legal avenues by the promise of reparations or other forms of much-needed material assistance, such as free healthcare or child support offered by legal aid programs. Often, actors turned to legal avenues as a form of last resort, viewing the pursuit of civil and criminal charges against perpetrators as the only way they could access necessary socio-economic support structures. Others still expressed many of these sentiments simultaneously, espousing the injustices of the violence committed against them but reiterating their urgent and overriding need for practical material support.

Participants in criminal cases expressed similar ambivalence with regard to their experiences as legal subjects, frequently reporting seemingly contradictory sentiments concerning the value of legal remedy. In spite of overwhelmingly negative experiences in practice, many interviewees nonetheless found validation in the pursuit of legal justice, even when the process failed spectacularly to deliver on its most basic of promises to them. Despite feeling deeply betrayed by what the law had promised, therefore, many nevertheless professed that they were pleased to have reported their cases to legal authorities and that they would do so again under similar circumstances. The fact that our interviewees’ responses were characterized by such deep-seated ambivalence towards their experiences as legal subjects demonstrates that the visible failings of legal outreach cannot be understood in isolation from the symbolic importance of the promises that accompany outreach efforts.

Positively, therefore, our interviews suggest that gender-based legal outreach has clearly reduced societal tolerance for sexual violence, allowing victims to take advantage of a new vocabulary with which to reject problematic and violent gender practices. It has also offered new entry points through which to access free healthcare, child support, and other critical social services that are often used to incentivize participation in criminal cases. In this way, legal development programs have presented new choice sets to vulnerable individuals in the aftermath of violent crime, and victims have been able to exercise new forms of agency as a result. However, the fact that interviewees frequently articulated their motivations for pursuing legal remedy as the need for material support (either in combination with or in place of a deep-seated desire for punitive justice), and the fact that the legal system failed to deliver on so many of its promises to victims, suggests that this newfound agency can be illusory, representing a “political lion-skin” that serves as much to constrain as to emancipate.Footnote ²

To elaborate, our interviews suggest that behavior that demonstrates opportunity and empowerment on an individual level (adopting legal language in order to reject problematic gender practices and instrumentalizing opportunities provided by legal aid programs in order to access critical social services) in fact offers evidence of the continued institutional marginalization of vulnerable individuals. This dynamic arguably serves to further subjugate, disempower and silence those it seeks to assist. The paradox of opportunity and disempowerment, drawn from the disjuncture between individual and institutional opportunity, and what legal remedy promises and what it delivers in practice, offers a useful paradigm to make sense of these complex and seemingly contradictory testimonies. The remainder of the article explores and elucidates this dual paradox through responses offered by our interviewees.

Part II discusses our motivations for the project and describes our interview data. Part III provides a brief background on gender-based harm and legal development aid in eastern DR Congo. Part IV analyzes why victims of violence have turned to the law, highlighting the paradox of opportunity and disempowerment that overshadowed our interviewees’ decisions to embark on the quest for legal remedy. Part V untangles the paradox of opportunity and disempowerment as it pertains to our interviewees’ experiences as legal subjects. Part VI concludes.

Our Interviews

The arguments presented in this article are drawn from extended field research in eastern DR Congo between 2011 and 2013. During this period, the authors were engaged in a large body of broader research involving the Congolese criminal justice system, which informed many of the research decisions undertaken for this study. Supporting Information Appendix A discusses this work, as well as the many ethical and methodological considerations we encountered in the field, in some depth. The project was motivated by a desire to incorporate the voices and perspectives of the individuals that legal reforms have most directly intended to benefit into existing analyses of legal capacity-building. While many legal aid organizations espouse the importance of providing healing and accountability to victims of violent crime, the perspectives of those involved in criminal cases have remained strikingly absent (see, e.g., Reference Khan and WormingtonKhan and Wormington 2011; Open Society Foundation 2013).

To begin to redress this imbalance, we conducted a discrete subset of interviews in one urban and two rural locations in North and South Kivu between January and June 2013. These interviews were carried out in partnership with three Congolese organizations that we refer to as: “A,” “B,” and “C.” Given their extensive experience in working with vulnerable populations, organizations “A,” “B,” and “C” were well placed to assist us in carrying out this work. “A,” “B,” and “C” used their judgment to identify and discern who was likely to feel comfortable in sharing their experiences with us and gauge the interest of prospective interviewees. If individuals appeared willing and eager to be interviewed for the project, they were introduced to the lead researcher who provided further explanation and solicited interviewee consent.

First and foremost, we were interested in understanding how, in their own words, participants in legal processes conceptualized their decisions to pursue legal remedy and how they felt the pursuit of criminal justice had served them. To answer these questions, we present evidence from interviewees in three loose categories: those who successfully initiated legal proceedings (27); those who attempted to initiate legal proceedings but failed (12); and those who reported an incident of violence but opted against pursuing formal legal remedy (11). Since we were extremely wary of causing further discomfort or distress, our sample of interviewees was selected extremely carefully to include only those our partner organizations identified as willing and eager to share their experiences. While this necessarily limits the generalizability of our findings, we nevertheless expect many of the patterns we identify to travel beyond this specific subset of respondents. We discuss the sample and its broader applicability, as well as our recruitment of interviewees, in Supporting Information Appendix A.

In order to make sense of the myriad concerns and complexities facing individuals involved in criminal cases, we encouraged interviewees to speak freely and at length in their responses to our questions. Our interviews were semistructured in nature, in that we posed certain questions identically to each respondent. These included basic demographic questions, as well as questions pertaining to the incident leading to the pursuit of legal redress; what course of action our interviewees followed; what options they perceived to be available to them; and how they arrived at the decisions they made. After this, we let the interviewees guide our conversations. Most of the interviews were conducted individually, however, at the suggestion of organizations “B” and “C” some were held in small groups in order to ensure that interviewees felt fully comfortable and at ease. Each interview was recorded for subsequent analysis.

Regulating Violence in Eastern DR Congo: Situating Gender-Based Legal Outreach in Socio-Historical Context

Before moving on to examine the reflections and responses of our interviewees, it is necessary to provide some background on the Congolese legal system and the outreach activities undertaken by NGOs in the region. Over the past decade, the Kivus have been the site of unprecedented attention to sexual and gender-based violence in conflict. Although rape has always been used to reward soldiers and torture or punish civilians, many have commented that its use as a targeted military strategy in DR Congo's wars is unmatched in contemporary warfare (Reference Gardam and CharlesworthGardam and Charlesworth 2000; Reference MegerMeger 2011). However, under-reporting and definitional challenges make gathering reliable data on the prevalence of sexual crimes extremely challenging (Cohen et al. 2013; Reference JohnsonJohnson et al. 2010; Reference Peterman, Palermo and BredenkampPeterman, Palermo, and Bredenkamp 2011; UNFPA 2013). Thus, while we can say with some certainty that rates of sexual assault in the Kivus are high, we have little conclusive evidence to suggest that they are, in fact, higher than other conflict contexts.

Following widespread public attention to rape in Rwanda and the former Yugoslavia, gender activists made a concerted effort to draw the attention of policy-makers to the disproportionate ways in which women have been victimized by conflict (UNSC 1325; Reference WillettWillett 2010). As a result of these efforts, and alongside a host of other reforms, a new sexual violence law was introduced in DR Congo in 2006 reflecting a more expansive definition of gender violence. The 2006 reforms formalized the notion that both men and women may be victims of gendered abuses and recognized that violence stemming from gendered patterns of behavior may go beyond violence of a sexual nature (Reference LakeLake 2014a, Reference Lake2014b). Moreover, global donors and policy makers have ensured that organizations working in DR Congo give high priority to gender issues. The vast majority of legal aid organizations, as well as other nonlegal outreach and advocacy projects, thus have gender components to their work, engaging in outreach to promote legal accountability for a variety of gendered crimes. Theoretically, most of these programs incorporate non-sexual forms of gendered violence in their approach, promoting accountability evenly for sexual and nonsexual gendered harms. However, in practice, the vast majority of organizations have focused predominantly on sexual violence. In this article, we use the term “gender-based violence” to refer to the broad-based advocacy and outreach carried out in eastern DR Congo that encompasses both sexual and nonsexual offenses. We use the term “sexual violence” to refer exclusively to violence of a sexualized nature. Since the majority of gender violence cases that travel through Kivu's courts involve sexual crimes, the cases we analyzed all fell into this latter category.

Customary Governance and Legal Reform

In order to understand how gender-based legal outreach and new mechanisms of legal accountability have been utilized by those they are intended to benefit, it is important to understand earlier patterns of formal and informal dispute resolution. Mimicking the colonial-era state apparatus, the post-independence legal system has predominantly served to entrench the interests of a small and well-connected elite (Reference LundLund 2006; Reference Vlassenroot and RomkemaVlassenroot and Romkema 2007; Reference Young and Edwin TurnerYoung and Turner 2013). Given rampant corruption and institutional decay, most Congolese citizens, particularly outside of large urban areas, have continued to rely on informal or customary mechanisms to resolve a variety of grievances, even following expansive legal reforms. Gender violence is no exception. Despite the criminalization of rape in the late colonial period, sexual violence within marriage has historically been considered a private matter to be dealt with at the discretion of the (male) head of the household. When a family faces an extreme instance of violence perpetrated inside or outside of the family that could not be resolved privately, they may seek support and advice from the village chief (the mwami or chef du village), or from a local counsel of elders (a baraza or conseil des sages).Footnote ³

In most such cases dispute resolution processes remained predominantly male-led. For cases of domestic violence, interviewees reported that if a woman decided to seek help she would go first to her parents. If they agreed, they would go to the mwami and negotiate with the husband and his family on her behalf. The family would follow a similar process in cases of nonpartner rape. If a married woman was raped, she may keep it hidden for fear of being rejected by her husband or family.Footnote ⁴ However, if she were unable to keep the matter secret, she would likely report the incident either to her parents or her husband. Fatuma told us:

The husband would confront the other man and fine him a goat. He had to pay. If things couldn't be resolved this way, the man could be imprisoned. Another solution was, if the man and woman were not married, he could marry her.Footnote ⁵

In 1940, the colonial administration introduced a formal distinction between criminal law and civil law with the creation of the Code Pénal Congolaise. The criminal code explicitly defined rape as a criminal offense for the very first time.Footnote ⁶ However, while jurisdiction over the criminal code fell to the tribunaux européens most interviewees agreed that, despite the explicit criminalization of rape in 1940, sexualized violence involving Congolese rather than European subjects was unlikely to be heard by the tribunaux européens (Reference DembourDembour 2000). While there were some exceptions, most sexual crimes committed against Congolese women and girls continued to be considered by colonial authorities as “tribal” matters that should be resolved informally and not by courts of law.

Deference to customary authorities on a variety of gender issues continued long into the postcolonial period. In 1987, Mobutu introduced the Code Zaïrois de la Famille (Zaire Family Code, now simply called the Code de la Famille), establishing the legal framework governing familial relationships in a single comprehensive document. However, in practice, the protections were rarely afforded to women, who remained unable to seek the support of the law other than in cases of extreme abuse (Reference BadibangaBadibanga 1980; Reference IlungaIlunga 1974; Reference MiandaMianda 1995; Reference PauwelsPauwels 1970, Reference Pauwels1973). The obstacles to using the Family Code in court are reinforced by a series of contradictory provisions within the law. Most significantly, Article 448 provides that married women cannot engage in judicial activity without the consent of their husbands.Footnote ⁷ This tension between law and practice has led Reference MiandaMianda (1995: 52) to refer to the reforms of this era as “the illusion of emancipation” which, she argues, only led to the further deterioration of the status and rights of women in public life.

Among the reforms initiated by Laurent Kabila after the overthrow of Mobuto Sese-Seko in 1996 was the introduction of the nyumbakumi or the “representative in charge of ten houses.” The nyumbakumi, imported from Tanzania, was intended to bring the administration of governance closer to DR Congo's people. The nyumbakumi reports to the chef du village or the chef du quartier and has often been the first port of call for victims of gender-based violence (or their husbands) who could not resolve cases privately. Another innovation of roughly the same period was the reintroduction of the Baraza Inter-Communautaire. Much like the conseil des sages of earlier periods, the baraza would organize meetings between leaders of different ethnic groups and parties to land disputes in an effort to reach mutually agreeable resolutions to local conflicts (Reference ClarkClark 2008; Reference DunnDunn 2013; Reference TullTull 2005). Where cases involving sexual and gender-based violence have been brought to baraza, they are traditionally addressed through direct compensation paid to the victim's family, referred to colloquially as an arrangement amiable (amicable arrangement or settlement). The result is that, despite new protections afforded to women by law, until recently local justice mechanisms have remained the primary venue for resolving gender-based disputes. Legal reforms have been limited in their abilities to provide women with viable opportunities to leave violent relationships or report sexual assaults in or outside of marriage.

In contrast to the reforms of earlier decades, the 2006 legal reforms have provided a host of new opportunities to female victims of gender violence. First, they were accompanied by a number of complementary initiatives that transformed the support networks available to victims of violence. These included the creation of a Ministry of Gender within the Congolese government, the introduction of a National Strategy against Gender-Based Violence, the creation of the Comité Provincial de Lutte Contre les Violences Sexuelles (CVPLS), the establishment of the Police Spécial pour le Protection des Femmes et des Enfants (PSPEF abbreviated to PSP), and the development of Comprehensive Strategy on Combating Sexual Violence (and the creation of a dedicated unit to coordinate activities on this topic) by the United Nations Mission in DR Congo. Perhaps most consequentially, legal reforms have been accompanied by intense gender outreach by NGOs dedicated to increasing accountability and improving access to justice for certain types of crimes.

Sexual violence cases may be initiated in four ways: a victim may open a case directly with the prosecutor, with the police, or through a legal aid clinic, or the prosecutor may initiate cases on his or her own accord. Like many legal systems, the state prosecutor (“parquet”) is always a party to the case; however, victims can also appear as “civil parties” to criminal cases and can thus be afforded civil reparations in the final judgment. Table 1 below details the various pathways through which victims of violence may enter into formal legal processes and have their cases resolved by law.

Table 1. The Justice Process

Advocates have increasingly framed the fight against sexual violence as a broad-based social problem that cannot be solved by a single sector but requires a holistic, multifaceted, and coordinated response that engages multiple stakeholders. As such, domestic and international NGOs have pursued increasingly diverse activities, incorporating medical assistance, legal assistance, psychosocial support, socio-economic support, education, outreach, rehabilitation, and more into their activities. Given this holistic approach, and an equally dogmatic emphasis on building the rule of law, many nonlegal services are provided to victims of violence participating as witnesses or civil parties in criminal cases. For instance, in addition to providing free legal representation, the American Bar Association Rule of Law Initiative (ABA ROLI) covers all medical expenses for individuals involved in its cases for the duration of the investigation and trial. However, participating in a criminal case with a legal aid organization offering these benefits is often a precondition for receiving them. As will be shown in the subsequent section, this type of socio-medical support has proved crucial for motivating individual victims of violence to turn to previously dysfunctional state institutions.

Logics of Consequence and Appropriateness: Understanding Decisions to Take Sexual Violence Cases to Court

While the legal reforms of earlier decades were limited in their abilities to provide victims of gender violence with practical entry points to the legal system or any meaningful recognition of wrongdoing, recent interventions have, by contrast, allowed victims of violence to access a range of material and nonmaterial benefits through the pursuit of legal remedy that were previously unavailable to them. In addition, NGOs and international organizations have provided crucial logistical support and funding to the legal system to develop legal infrastructure and increase the capacity of local courts to hear cases. Much of this work has explicitly involved promoting accountability for gender-based crimes. The result has been that courts are dealing with incidents of sexual violence and other gender crimes in far higher numbers than ever before.

This section elaborates the ways in which victims of violence have reflected on their decisions to turn to formal legal institutions in spite of a state that has previously demonstrated itself to be neither a trustworthy nor capable arbiter of disputes. Our interviews reveal that NGOs have served as critical intermediaries connecting victims of violence to the law. However, increasing participation in legal processes does not necessarily indicate that individuals have internalized new norms of legal accountability in precisely the ways that NGO outreach programs have intended. Instead, victims of violent crime have been motivated to turn to formal legal institutions by a combination of material and ideational factors. A high number of interviewees emphasized a newfound belief in the role and the duty of state institutions to punish acts of sexual or gender-based violence committed against its citizens, despite the fact that the state had rarely played this role in their prior experiences. Many interviewees contrasted this belief against an earlier understanding of gendered crimes, for which any resolution must remain within the family. We, thus, identified a new logic of appropriateness (Reference March, Olsen, Goodin, Moran and ReinMarch and Olsen 2008) guiding the decisions to seek legal remedy, which could be traced directly to gender-based legal outreach and sensitization programs.

At the same time; however, some interviewees were instrumental in their use of the criminal justice system, pointing to their need for important social and material benefits such as antiretrovirals and prenatal care provided by legal outreach programs free of charge. These interviewees noted that they had little interest in punitive justice, but only sought to access the critical services that legal aid organizations provided and that they had been unable to find elsewhere. While some clearly engaged in the savvy instrumentalization of legal development aid in order to take care of needs overlooked by the state and NGOs, the fact that legal remedy appeared to many women to be the only viable avenue to access socio-economic support demonstrates that the decision to utilize legal aid strategically can often be born out of desperation. Rather than exercising new agency, therefore, some have felt compelled to frame their grievances as victims of violence in search of punitive legal justice simply in order to have basic needs met. In a context in which sexual crimes have been prioritized, and the pursuit of legal remedy is demarcated as the only appropriate response to violence, legal aid programs that strive to be gender-inclusive potentially reveal an inherently exclusionary institution.

Changing Attitudes: Embracing the Language of Punitive Justice

For those who are geographically removed from rule of law outreach activities, little may have changed over the past decade. However, for those in urban centers of the Kivus and villages well-connected by road, recent reforms and interventions have radically transformed the ways in which many individuals respond to sexual assault. Increasingly, victims of sexual violence are rejecting informal settlements and customary practices, and turning to formal legal processes. NGO outreach promoting formal gender justice can frequently be identified as the source of this shift.

It is not, however, the case that all of our interviewees eagerly sought the protection of the law. Indeed, 13 of those we interviewed had reported an incident of sexual violence but ultimately declined to pursue any form of formal legal remedy, largely because they felt unable to do so rather than because they explicitly rejected legal avenues. In two of the 13 cases, interviewees informed us that they did not wish to pursue legal remedy as they believed that true justice could only be delivered by god. The remaining 11 individuals could be loosely divided into two broad categories. Either they were unwilling to seek support from the police because they knew that they would be asked for money and they could not pay; or they were afraid for their personal physical security and possible repercussions against them by the accused, or some combination of the two.

Speaking to her fear of retaliation, Alika, 18, who was attacked on the road to school in South Kivu, told us:

Many people, they are taken to court, or arrested, but they are not going to spend much time there. Someone is arrested today and tomorrow he's released. Then this person is going to do very bad things against you.

Joellie, when weighing up whether or not to pursue formal legal remedy, noted:

We were afraid of a number of things. Number one, we have no money. Because most of the time, if you take the case to the court or police…they will ask you for money to process your case. Two, is that we were very much afraid of retaliation. When he comes back, if he is arrested…they are going to ill-treat him. But for sure he's going to pay. He's going to bribe. And after bribing, he will come back. So we are afraid that when he comes back from court, or from arrest, he will kill us, or he can do bad things against myself and my family.

Naema told us:

One of my neighbors tried to report a case like that and they came one night to burn him, to burn down the house. If you take him to the police, then they come back and burn your house.

Chiza, who attempted to pursue legal remedy but did not get very far with the process, pointed to financial resources as the key barrier to justice:

It was during the war in Goma, the military came into the house. They took everything, and when they finished they left. I started to cry but I didn't know what to do. Then I told the chef du quartier. The chef told me that he would help find a solution. He didn't find a solution. He said that he must refer the problem to the superior administrators but the police wanted money, and we didn't have money so it finished.

And Noelle, who was attacked in her home by soldiers and civilians, reiterated this point:

The case can be successful if you have money, if you open your hand. But if you are empty then nothing will come out. Justice is for rich people.

It is notable that the vast majority of those skeptical of legal remedy were located in the most remote and rural locations in our study. While it is difficult to draw conclusive inferences given our small sample of respondents, we do know that those located in more remote locations are far less likely to have been exposed to rule of law programs designed to socialize local participants to the objectives of criminal justice. Given this, it is understandable that those in the most remote locations had far more negative attitudes towards the value or viability of legal remedy.

Turning to those individuals who have engaged the law in some capacity, what little analysis that exists suggests that the overarching motivation for turning to the law in eastern DR Congo is the pursuit of material gain (Reference Douma and DorotheaDouma and Hilhorst 2012; Reference MansfieldMansfield 2009: 380; Reference Van Velzen and Van VelzenVan Velzen and Van Velzen 2011). Practitioners, on the other hand, have tended to assume that increasing use of the courts signifies that victims of violence have internalized new norms of appropriate behavior concerning criminal justice and the rule of law (Open Society Foundation 2013), or that litigants turn to the law in pursuit of an idealized image of justice delivered by the state (Reference Rubbers and GallezRubbers and Gallez 2012).

The reality appears far more complex. Émilie, a 42-year-old woman from North Kivu, was assaulted in her home by two colleagues of her husband. After she confronted the perpetrators in a police interview, she explained: “They agreed to pay us two cows, but the police said no. Even still he must be sentenced.” Marie, 21, similarly reflected on changing attitudes towards sexual violence:

In most cases, people will try to find common ground before they go to the police…I think for most things traditional leaders are better - when a problem is solved by a traditional leader it is well managed. If there is a problem of farm limits or if people in the village are fighting, then the chief is good to solve these. But in the case of rape it is such a big issue it can't be dealt with by the traditional leaders.

The belief that rape was “too serious” to be dealt with traditional leaders was shared by almost all of the victims of violence we interviewed, as well as the vast majority of local NGOs and civil society representatives we consulted. Moreover, a number of interviewees strongly and explicitly rejected the institution of arrangement amiable, which was outlawed for rape cases in the 2006 sexual violence law. Table 2 summarizes some of the most common responses on this theme.

Table 2. Key Themes that Emerged from Interviewee Testimonies: Theme One

Alika went on to note:

The tribunal is good…I think it makes most sense to go to a court or tribunal [rather than a traditional leader or the chef du quartier]. The tribunal can sort out a judgment and the person will face the consequences of that judgment and be sentenced for some years…The chefs du quartier are also afraid of retaliation, but the courts, the lawyers, the judges, they are not afraid.

These sentiments represent a stark break from the custom of the past. While it is impossible to know whether the emphasis on punitive justice has been shaped by legal outreach, by shifting societal norms, by the personal instincts and preferences of victims, or by a combination, some interviewees explicitly linked their rejection of arrangement amiable to a declining cultural tolerance of rape. Année Joyeuse was raped by a group of Mai Mai soldiers when she was traveling from Maniema to North Kivu. She explained:

In this Congo, you have to pay. Even if you are stolen from, if you go to the police it is you who will have to pay, instead of the one who stole from you. But now it's very strict. Now, the police, they are serious. If you rape and you are arrested, you have to spend 25 years in prison, because rape is serious now.

Luce, a 45-year-old woman living in North Kivu, spoke about her disappointment at having to marry the man who caused her such physical and emotional harm. But she similarly observed that things were very different now than when she was raped in 1995. She explained:

At the time, rape was not known as a problem in public opinion. It was not known in the same context. I stayed there and after three days I escaped and ran away and went to stay at my friend's, and I explained what happened and she told me that I was already a woman…Since then it is in that way that I am living with him, but I am always a victim of violence…At that moment I didn't report the case to justice because rape was not then a priority for justice….Today it is quite different, if you have raped, justice is formed and you shall be punished.

As Luce demonstrates, the landscape of options available to victims of rape or sexual assault has changed dramatically in the past two decades. Rather than turning to the head of the household or the local customary authority, victims of violence have been introduced—in some cases for the very first time—to courts and police as possible venues for resolving these types of injustices. The decision to turn to the law has, therefore, assumed a normative dimension. Despite their visible failings, for people like Marie, Année, and Luce, the police now represent the only appropriate venue for crimes of this nature (Sarat 1986: 539). Grâce captured this sentiment in a simple phrase:

If something bad happens to you like rape, then you go to the police. That is what you should do.

For those who desire revenge or punishment against those who harmed them, ideas of formal legal justice—and the notion that their accused might be sentenced to years in prison—is hailed as an appropriate and welcome response. Others, like Année Joyeuse, do not necessarily express a deep personal commitment to ideas of formal justice, but do appear to have internalized the sentiment that the criminal justice system is the appropriate (if not the most desirable) mechanism for dealing with sexual violence. In support of the idea that going to the police had replaced customary responses to sexual violence as the socially sanctioned and most appropriate forum for resolving these types of grievances, Clarisse emphasized that she had been told that going to the police was the “right” thing to do:

People told us what we should do when there was a problem of rape; that we should go to the police…We heard of other people who had help with justice from lawyers at [organization name redacted] so we went there…I heard that people who had these sorts of problems could come here and look to punish the people who committed these crimes…

Individual victims of sexual violence may always have felt repulsed at being compelled to marry or accept money from men who caused them harm, desiring instead some recognition of wrongdoing or some form of punishment for their aggressor. However, whatever their personal beliefs about punishment and justice, the above quotes demonstrate that changing societal attitudes toward rape have allowed women to frame and express these opinions in the language of law and punishment, in ways that were not possible previously. Thus, whether or not victims of violence have truly internalized the idea that formal mechanisms are the most desirable form of justice, or are simply relaying the sentiment that formal mechanisms are the socially sanctioned form of redress, the emphasis that many placed on arrest and imprisonment illustrates that new forms of justice have proved of considerable value. Moreover, it is clear that the language of law has offered new tools with which victims of abuse have been able to reject problematic gender practices.

Material Incentives in the Pursuit of Legal Remedy

Given the significant overlap between gender-based legal outreach, human rights education and socio-economic support, the question of whether or not victims of violence are motivated predominantly by material or ideational factors as earlier scholarship has assumed, is not a straightforward one. While many interviewees professed to value the pursuit of punitive justice in the aftermath of violence, others emphasized material support in the form of formal compensation awarded by law, or assistance offered by legal aid clinics, as their primary motivation for reporting a case. When asked about why she went to the American Bar Association's legal aid clinic, Francine told us: “the ABA gave me money and some baby clothes.” Mupenda explained her motivations for going to the ABA and what happened when she got there:

I thought that I could get some help to look after the baby. When I went to the office they appointed someone to follow the case, and he took me to Heal Africa for medical assistance. They were really very nice with me. The first time I went to meet [the lawyer] she gave me $5 USD for transport but then I stayed home because I was waiting for the birth. Then when the baby was born I went to see her again and she gave me clothes for the baby and $20 USD.

Francine, Mupenda and others like them, had each been informed by friends or colleagues that the ABA could offer help and support.

In their powerful article, Fond de Commerce, Reference Douma and DorotheaDouma and Hilhurst (2012) argue that the majority of rape cases that travel through the Congolese courts do so because litigants expect to benefit financially from pursuing a rape claim. Indeed, in contrast to prior decades when family members were rejected after they had been raped, partners or parents may now encourage—or even pressure—victims to report a case to a police or an NGO, thinking they will receive financial compensation as a result. Charlene told us:

The most important thing for me was that they were in prison: justice. I want them to be punished because I don't want them to do it to other people. I wanted the chief to arrest him, but my husband wanted only money from the case.

Marie, 21, recounted the story of how she was raped by bandits in the bush. She explains that her husband supported her in reporting the case to the police, predominantly because he wanted financial compensation:

My husband [did not throw me out] and instead reported this to the police. He wanted those people to get punished, and he wanted to get compensation. We went together. I chose to go [with him] because otherwise if I refused, my husband could say that I was an accomplice. I had to go. I also wanted punishment, for those people, and reparations for what they did.

Table 3 summarizes common responses on this theme

Table 3. Key Themes that Emerged from Interviewee Testimonies: Theme Two

There was evidently some confusion among many interviewees between abstract ideas about financial compensation provided in court judgments, and cash assistance or other forms of socio-economic support provided directly to victims by legal aid organizations. Despite this confusion, many of the victims that we spoke to saw their participation in a criminal case as an avenue—and sometimes the only viable avenue—through which they could access social, medical, and economic support that they desperately needed. Like earlier studies in other contexts, many continued to view legal mechanisms as foreign, corrupt, or elusive. Yet, simultaneously, they were willing to experiment with what these new systems had to offer, hoping that the law “could be made to work for them in this instance” (Sarat 1990: 346).

The fact that a significant number of interviewees did not foreground the language of rights and justice when speaking about their involvement in criminal cases, but instead discussed their concrete material needs, suggests that the support provided to victims of gendered crimes pursuing civil or criminal cases has offered new avenues for material assistance that would not otherwise be available. The decision to access these support structures through the strategic adoption of a legal identity represents a form of agency that is not typically attributed to vulnerable victims of crime, particularly in fragile humanitarian spaces (Reference GrahamGraham 2014).

However, rather than representing new avenues for agency and empowerment, the material assistance provided to victims participating in criminal cases has backed some women into a corner. Utas (2005) offers a compelling description of similar dynamics in Sierra Leone. He discusses the ways in which women frequently chose to frame their identities as victims in need of particular forms of assistance in order to be perceived as worthy and legitimate recipients of humanitarian aid for relevant domestic and international audiences.

Étienne, the brother of a 14-year-old girl from North Kivu, Divine, notified us of his perception that humanitarian assistance for rape victims was only available to participants in criminal cases. Étienne had accompanied his sister to the ABA to report a rape. He had heard that the ABA could provide compensation and legal assistance. The ABA lawyer gave Divine and Étienne $20 for food, clothes, and shelter, and accompanied them to the police station to file a report. The lawyer also assured Divine that they would assist with her pregnancy at the local hospital. However, since neither Étienne nor Divine could identify or recognize the perpetrator of the attack, and the attacker had already fled the village in which they lived, the police were unable to move forward with the case. Étienne informed us that, once the police no longer had a case open, the ABA could no longer provide them with medical assistance for Divine's pregnancy. Étienne and Divine adamantly reported that their access to medical assistance through the ABA was contingent on being able to identify the perpetrators and participate in criminal proceedings. In this way, an emerging culture of using the legal system to seek material assistance in the aftermath of sexual violence has inadvertently been perpetuated by legal outreach organizations who only support victims of gender-based crimes participating in their cases. These dynamics create perverse and problematic incentive structures for those in dire need of material support.

It is difficult, if not impossible, to systematically tease apart why certain individuals seek out or value legal solutions, especially from such a small sample of interviewees. However, our interviews reveal a number of important factors. First, a complex range of motivations and incentives construct the landscape of legal remedy in eastern DR Congo. These interviews thus permit us to reject simplistic narratives about why vulnerable individuals in volatile conflict environments turn to formal legal avenues. They reveal that, although NGOs and other humanitarian actors have dramatically altered the landscape of legal consciousness, individuals have engaged with these new structures and opportunities in varied and sophisticated ways. While there is strong evidence to indicate that some have developed a staunch ideological commitment to the normative ideals of punitive criminal justice, others evidently feel they have few other avenues open to them.

On the one hand, the strategic adoption of law as a vehicle to access other socio-material benefits demonstrates considerable individual agency on the part of seemingly disempowered women. Such actions depict victims of violence as autonomous agents of their own fate, who are able to make a seemingly unjust system (one that seeks to narrowly define legal remedy as the only appropriate response to sexual violence) work for them in a particular moment. Yet, the fact that so many individuals have felt compelled to identify as victims of sexual violence in search of legal remedy in order to meet a few very basic needs signifies a simultaneous and striking lack of agency and empowerment. Divine was compelled to pursue a criminal trial in order to ensure she could receive medical attention throughout her pregnancy. When she could not meet the criteria demanded of her, her access to medical support was denied.

These complex dynamics that overshadow victim participation in legal accountability efforts thus reveal a paradox of agency and disempowerment, in which gender-based legal outreach creates and shuts down opportunities simultaneously. This paradox not only characterizes decisions to turn to the law in the first place, but is also reflected in the everyday experiences of victims of violence in the pursuit of legal remedy. The subsequent section calls attention to the myriad disappointments and rewards that victims of violence have encountered in attempting to realize the promises of formal legal justice.

“Now the government knows my daughter was raped”: Experiences with the Law

Despite access to some material and social benefits as a result of pursuing legal remedy, the vast majority of women were let down by the legal system and rarely received the outcomes they were promised, even in seemingly “successful” cases. However, interestingly, the ways in which some interviewees spoke about their experiences reveals that many found some validation in the pursuit of legal remedy, even when the overall process appeared to fail them. The satisfaction or validation that some interviewees alluded to reinforces the sentiments expressed in their initial decisions to turn to the courts; namely, a commitment to the idea that the attacks against them were wrong and that the harms they experienced should be formally acknowledged and sanctioned, even if the actual process delivered nothing of what they hoped.

In reflecting on their experiences, interviewees referenced the various ways in which the legal system failed to deliver what it promised. Some reported cases that were simply never pursued by the police, either because the victims could not identify the attackers and an investigation could not be started, or because the police were not willing to assist when the victim could not cover the costs of the investigation or “motivate” the officer involved. Other cases ended in arrest and sometimes trial. However, in many of these cases the perpetrators escaped, either after paying a counter-bribe to the police, or after being sentenced and/or imprisoned. Others still were simply never informed of the outcome or progress of their case. In seven cases, victims reported receiving formal legal reparations, but in five of these, victims had paid out more money in the form of bribes or fees than they received back. Almost none of those interviewed, therefore, experienced a genuinely satisfactory outcome, outside of securing some minimal benefits in the form of aid or NGO assistance.

Indeed, even when NGOs had supported them, victims were often cast aside after their role in giving testimony was over. They were rarely kept informed of the outcome or progress of their case, either by their legal representatives, by NGOs, or by the court itself. Agathe, from South Kivu, told us that she never received the compensation she had been promised and had not heard anything more from the NGO who assisted her after her case was completed.

Agathe followed up her story by telling us that she was forced to leave her hometown after the case because the family of the accused was threatening her. “But,” she repeated: “I felt really satisfied because he was sentenced to 20 years in jail…The compensation would be good, but I am satisfied because he is in prison.” The story Agathe told us was a common one. Many interviewees who had been assisted, either by an NGO, or by the special police unit, had been promised compensation and consequently decided to participate in a trial and give evidence. However, once their part in the investigation was over, they never heard anything more from anyone.

In addition to never receiving compensation, many interviewees were asked to pay large sums in informal fees to police or judges. 13 of the 37 interviewees who attempted to initiate criminal proceedings reported paying a bribe at some stage of the process. Bribes ranged from a few hundred Congolese francs (less than $1 USD) to thousands of U.S. dollars. Even when bribes were paid out in large sums, the process rarely improved, with the accused either buying his way out of custody; offering financial compensation to the victim's family to evade punishment; never being arrested; or escaping from prison. Marie's story, paraphrased below, was typical:

In the rare cases where compensation was awarded in a trial, it rarely amounted to the sums already paid out by the victim or her family. In a particularly extreme case, Virginie lost nearly $8000 to legal fees and bribes, selling all of her family's land to proceed with her case through the courts. Following the judgment, she eventually received close to $5000 USD back from the defendants. While she personally lost an exorbitant amount of money, like Agathe above, she still reported some satisfaction with the action she had taken:

By the end of the legal process, the financial compensation was simply not the main point of the case for many of those we interviewed. Grâce, who also paid out large sums in legal “fees” and received nothing back, noted:

In fact, Noelle, who was awarded and received $1500 in compensation, told us:

Noelle appeared to attribute equal significance to seeing her attacker punished for his actions by remaining in prison as receiving the compensation she was awarded.

The contradictions encapsulated in Agathe and Virginie's experiences—in terms of losing vast sums of money yet still finding aspects to commend or appreciate in a process that had let them down in multiple different ways—was a thread running through many of the interviews. Shani's interview highlights the tension between being able to reflect positively on certain aspects of the process even despite extremely negative experiences overall. She explains:

Although she characterized her experiences with the justice system overall as “unsuccessful and corrupt,” she nevertheless observed:

The apparent discrepancy between losing money and yet still ascribing some value or success to the process may be better understood by the fact that many interviewees did not appear to speak about demands for money from courts and police as corruption. Instead, they interpreted these requests as part of the necessary fees they were required to pay for reporting the crime. These informal fees did not appear to detract from whether or not they considered the police to have been helpful, sympathetic, “good,” or effective at doing their jobs. Grâce, who lost vast sums of money, reflected:

It is interesting that, despite these overwhelmingly negative experiences and a great deal of disappointment with the individual outcomes of their cases, 23 of the 37 interviewees who had sought criminal justice reported a willingness to seek the support of the justice system again in the future if a similar incident arose. Thus, in spite of its glaring imperfections, the formal recognition from the institutions of the state that an injustice had occurred emerged as an important feature of the legal process for many respondents. In this context, after never having been informed of the verdict of her case or receiving any of the compensation she was promised, but receiving information from an acquaintance that the man who raped her had escaped from prison, Mayifa's reflection on her experience is illuminating:

Mayifa's implicit reference to a recognition by the institutions of the state that a violation had occurred, like the symbolism expressed by Grâce and others above of seeing their attacker/s arrested and punished, signifies that, for some women, the changing socio-legal response to gender violence represents something of value in and of itself, regardless of their own particular positive or negative experiences.

On this point, Reference MerrySally Merry (2003b) in her discussion of domestic violence in the United States, observes that, in turning to formal legal mechanisms for the first time, some women undergo a powerful identity shift. Rather than being defined and protected by the familial structures they were previously embedded within, in turning to the law aggrieved women take on a new and more autonomous self; one that warrants protection from the institutions of the state. Reference MerryMerry (2003b: 351) writes:

Yet, in other contexts, scholars have observed that turning to the law can reinforce a sense of victimhood, further disempowerment or alienation (Quinn 2000). By recounting tales of abuse to the very authorities that, for many, symbolize pervasive abuse themselves - such as the institutions of the police—victims of violence may feel as though they are stripped of power rather than assuming the empowered identity Merry suggests. This may be especially true when individuals feel that identifying themselves to local authorities as victims of sexual assault is perceived as their only option for help, forcing them to adopt an identity of “victim” that they would prefer to reject or ignore in order to have their needs met. Such feelings may be compounded when individuals move through the entire process only to see those who violated them evading justice.

By far the most common source of disappointment and disillusionment with regard to the legal process, therefore, stemmed from the accused having escaped from custody, usually by paying money to the police or other legal officials to buy their release. These escapes took place at various stages of the legal process. Marie described what happened and how she felt after her attackers escaped:

After her attackers escaped from prison, Aude noted:

A number of themes emerge from these testimonies. It is clear that, in spite of dramatic interventions by NGOs, corruption is still pervasive in the legal system. Perhaps even more disturbing is the fact that, even in cases where victims receive assistance from NGOs, those individuals are frequently cut out of the process once their specific role in providing testimony is over. Furthermore, even in the seemingly successful cases in which the incident proceeds to trial and guilty verdicts are handed down, victims rarely receive any tangible benefits and, more often than not, indictments go unenforced. Yet in spite of these seemingly insurmountable obstacles and disappointments, some interviewees still found value in the pursuit of legal remedy, and note that they would turn to the courts again if a similar incident occurred in the future. These experiences highlight the janus-face of legal outreach in weak state settings, where the promise of legal is justice is necessarily mediated by what it is able to deliver in practice.

Conclusion

Even in the context of ongoing institutional failings, and the emotional trauma and stigmatization that follows sexual assault, it is evident that some victims of violence find new closure and resolution in ideas of legal accountability that were previously unfamiliar to them. Luce expressed disgust and disappointment at having to spend her life with a man who violated her trust by sexually assaulting her. She applauded a changing legal culture that criminalized rape rather than socially sanctioning it.

However, in contrast to Luce's experience, other interviewees were savvy in their instrumentalization of legal aid to reap practical material benefits. Still others expressed frustration or disinterest at having to respond and readjust to new externally imposed systems regulating and governing their responses to violence when they felt that real justice could only be delivered by god. Although many of those interviewed expressed a genuine desire to see those who had hurt them incarcerated or punished, this research revealed that individual participation in criminal trials does not always imply that legal outreach has been successful in socializing participants to new cultures of legal accountability in precisely the ways its advocates intended. Instead, some vulnerable women have used human rights and legal aid programs instrumentally to access social and material benefits that were not previously available to them.

Reflections from our interviewees thus illustrated that, rather than being driven by a single dominant narrative, victims of violence in eastern DR Congo turn to the law for a variety of complex and sometimes contradictory reasons, that incorporate both material and ideational factors. The interviews also reveal that, for better or worse, NGOs have played a critical role in transforming the landscape of dispute resolution for victims of gendered crimes, offering a combination of normative and socio-economic incentives to encourage the pursuit of legal remedy. Finally, the interviews reveal that gender-based legal development aid has created both positive and negative externalities for victims of sexual violence, often simultaneously.

These dynamics give rise to two central paradoxes that characterize the landscape of gender justice in eastern DR Congo. First, the interviews reveal a paradox of agency. There are undoubtedly a broader spectrum of options available to victims of violence than existed in previous years. Many have been able to utilize legal avenues to formally acknowledge acts of violence and access new opportunities for material support. Whether or not they place any inherent value in the pursuit of justice, the opportunity to utilize the law instrumentally to access other support services suggests that women have been able to exert increased agency over their actions in the aftermath of violence in ways that proved impossible in earlier decades. Yet, oftentimes the pursuit of criminal justice has been perceived as the only available avenue through which to have pressing socio-economic needs taken seriously by NGOs and the state. In an environment in which foreign donors have narrowly identified those “most in need” as victims of gender-based violence—and prescribed legal accountability as the only appropriate form of remedy—some vulnerable individuals have felt compelled to adopt this narrow identity in order to have their particular grievances addressed.Footnote ⁸

Second, in their early interactions with state law, the vast majority of victims reported experiencing feelings of empowerment and overwhelming neglect simultaneously. While they may find value and validation in certain aspects of what the law represents, many expressed deep regret at its failure to deliver on its promises to them. This dual paradox reveals a litany of unintended consequences associated with legal outreach—positive and negative—that must be taken seriously by donors and program implementers.

The dynamics identified herein travel to other contexts and issue areas. The findings prove particularly salient for international interventions that prioritize one particular form of harm over any other (Reference AutesserreAutesserre 2012; Reference CarpenterCarpenter 2007); prescribe one specific remedy to a social problem to the exclusion of other approaches (Reference BerryBerry 2015; Reference FraserFraser 2009); or grants rights and legal access to one community while implicitly marginalizing others (Reference EnglundEnglund 2006; Reference GoluboffGoluboff 2007; Reference McCannMcCann 2014). The prioritization of sexual violence by courts and legal aid programs in the Kivus, and the fact that many social and material benefits are only available to victims willing (and able) to pursue criminal cases, reflects an institutional marginalization of other forms of injustice or other expressions of need. In this way, legal outreach activities promoted by the international community that appear to provide gender-inclusive opportunities to victims of violence in fact reveal potentially exclusionary institutions. Such programs have demonstrated remarkable successes to donors in improving access to justice narrowly conceived but have, so far, fallen short of adequately responding to the needs, concerns and priorities of the communities they were created to serve.