CEDAW/C/92/D/187/2022

United Nations

CEDAW/C/92/D/187/2022

Convention on the Elimination

of All Forms of Discrimination

against Women

Distr.: General

3 March 2026

Original: English

26-03002 (E) 190326

*2603002*

Committee on the Elimination of Discrimination

against Women

Views adopted by the Committee under article 7 (3)

of the Optional Protocol, concerning communication

No. 187/2022*,**

Communication submitted by:

C.Y. and B.Y. (represented by the

Cambodian League for the Promotion

and Defense of Human Rights)

Alleged victim:

C.Y.

State Party:

Cambodia

Date of communication:

19 September 2022

References:

Transmitted to the State Party on

26 September 2022 (not issued in

document form)

Date of adoption of views:

20 February 2026

Subject matter:

Failure of the State Party to exercise

due diligence in investigating,

prosecuting and remedying a case of

sexual violence against a girl child with

a perceived disability

Procedural issues:

Substantive issues:

Gender-based violence; effective

investigation; best interests of the child

Articles of the Convention:

1, 2, 3, 5 (a) and 15 (1)

Article of the Optional Protocol:

4 (1) and (2)

* Adopted by the Committee at its ninety-second session (2–20 February 2026).

** The following members of the Committee participated in the examination of the present

communication: Brenda Akia, Hiroko Akizuki, Hamida Al-Shukairi, Violet Eudine Barriteau,

Rangita de Silva de Alwis, Corinne Dettmeijer-Vermeulen, Esther Eghobamien-Mshelia, Yamila

González Ferrer, Nahla Haidar El Addal, Madina Jarbussynova, Marianne Mikko, Mu Hong,

Ana Peláez Narváez, Jelena Pia-Comella, Bandana Rana, Rhoda Reddock, Elgun Safarov,

Natasha Stott Despoja, Genoveva Tisheva and Patsilí Toledo Vásquez.

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1.1 The communication is submitted by C.Y. and her father B.Y., both nationals of

Cambodia born on 4 April 1999 and 1 March 1963, respectively. The authors claim

that the State Party violated C.Y.’s rights under articles 1, 2, 3, 5 (a) and 15 (1) of the

Convention, as interpreted by the Committee in its general recommendations No. 19

(1992) on violence against women, No. 28 (2010) on the core obligations of States

Parties under article 2 of the Convention, No. 33 (2015) on women’s access to justice

and No. 35 (2017) on gender-based violence against women, updating general

recommendation No. 19. The Optional Protocol entered into force for the State Party

on 13 January 2011. The authors are represented by counsel.

1.2 On 26 September 2022, the Committee, acting through its Working Group on

Communications under the Optional Protocol, requested the State Party to ensure that

meaningful protections are put in place to guarantee the safety of the victim and her

family and to take all measures necessary to protect them against any form of

retaliation while their communication is under consideration.

Factual background

Normative framework regulating the crime of rape

2.1 Article 239 of the Criminal Code defines rape as “any act of sexual penetration

with a sexual organ or an object committed against another person of either sex by

violence, coercion, threat or by being opportunistic” and establishes that it shall be

punishable by imprisonment of 5 to 10 years and that the age of sexual majority shall

be 15 years of age. In addition, article 240 defines “aggravating circumstances (means

used or status of the perpetrator)” and provides for penalties of 7 to 15 years of

imprisonment if the rape is committed, inter alia, “by any person having authority

over the victim”. Article 5 of the Law on Aggravating Circumstances of Crimes, in

turn, defines rape as “any penetration of the genital organ or other means carried out

through cruelty, coercion or surprise” and provides for prison sentences of 10 to

15 years.

Facts as submitted by the authors

2.2 Between July and August 2010, when C.Y. was 11 years old, she was raped four

times by a 48-year-old man in Village 3, Sangkat 3, Preah Sihanouk Municipality,

Preah Sihanouk Province. The perpetrator, a police officer with the Police

Commissariat of Preah Sihanouk Province, instructed her not to tell her parents. He

would sometimes give her 500 riel (about $0.12) or a fruit after raping her. However,

C.Y. told a coffee seller about being raped, and he informed her father on 15 August

2010. The authors indicate that C.Y. is perceived by people in her family and

community as having an intellectual disability.1

2.3 On 16 August 2010, the father filed a criminal complaint to the Anti-Human

Trafficking and Juvenile Protection Department of the Royal Gendarmerie in Preah

Sihanouk Province2 against the police officer for rape. The same day, C.Y. underwent

a medical examination at Preah Sihanouk Referral Hospital. The perpetrator was

arrested that afternoon.

2.4 In the following days, the perpetrator’s family, friends and members of the

military police attempted to persuade C.Y.’s family to accept monetary compensation

__________________

1 She has not received a professional evaluation.

2 Military police that also have civil jurisdiction in Cambodia.

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in exchange for withdrawing the complaint and changing C.Y.’s statement. The father

refused.3

2.5 On 18 August 2010, the military police filed a report detailing the father’s

complaint, C.Y.’s statement and the accused’s statement.4 This report is outlined in

the judgment of the Court of First Instance of Preah Sihanouk Province (Preah

Sihanouk Court).5 According to the judgment, in the military police report, it was

documented that the accused denied the accusations and asserted that the victim was

mentally unfit. The military police report concluded that the accusation was untrue

based on the lack of witnesses and clear evidence; the victim being mentally unfit

because her verbal expression was not understandable; and the medical examination

not demonstrating any damage. The same day, the case was sent to the Preah Sihanouk

Court and a criminal case was opened.6

2.6 The same day, the Deputy Commissioner of the Police Commissariat of Preah

Sihanouk Province wrote to the Prosecutor of the Preah Sihanouk Court requesting

that the accused be released on bail. The accused was released from custody that day.

2.7 On 20 August 2010, C.Y. moved to a safe shelter where she remained for

approximately 10 years. On 27 December 2011, the father filed a complaint with the

Anti-Corruption Unit of Cambodia, requesting its intervention to provide justice for

the rape of C.Y. He alleged that the accused and the Deputy Commissioner had bribed

the Prosecutor and the Investigating Judge in charge of the case.

2.8 On an unspecified date, the Investigating Judge indicted the perpetrator on

charges of rape under article 5 of the Law on Aggravating Circumstances of Crimes.

On 29 March 2012, the Prosecutor in charge of the case issued an introductory note

to the Investigating Judge recommending that the charges be dropped.

2.9 On 5 April 2012, the Investigating Judge referred the case to trial. On 3 and

11 May 2012, the father filed complaints to the Minister of Justice and again to the

Anti-Corruption Unit, respectively, requesting their intervention. On 18 September

2012, the Minister of Justice responded that the Investigating Judge had issued a

committal for trial dated 5 April 2012 and that a trial would be scheduled soon.

2.10 The Preah Sihanouk Court conducted a non-public hearing on 8 May 2013 and

public hearings on 9 and 30 October 2013.7 A verdict was not issued until almost

18 months after the third hearing. On 24 April 2014, the father filed complaints again

to the Minister of Justice and the Anti-Corruption Unit, requesting their intervention

because the case had stalled while waiting for the submission of additional medical

evidence and health records from the referral hospital.

2.11 On 10 November 2014, the Minister of Justice wrote to the President of the

Preah Sihanouk Court, requesting information about the status of the case. On

21 January 2015, the Anti-Corruption Unit responded with an outline of the

proceedings to date.

__________________

3 The authors explain that out-of-court settlements are commonly used to resolve rape cases and

improperly end criminal proceedings in Cambodia.

4 The authors do not have a copy of the report.

5 Anti-Human Trafficking and Juvenile Protection Department of the Royal Gendarmerie in Preah

Sihanouk Province, Report 16/010, dated 18 August 2010. Cited in: Court of First Instance of

Preah Sihanouk Province, Criminal Case No. 311, dated 18 August 2010. Verdict No. 01, dated

9 April 2015.

6 Court of First Instance of Preah Sihanouk Province, Criminal Case No. 311, dated 18 August

2010. Verdict No. 01, dated 9 April 2015.

7 Ibid.

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2.12 On 9 April 2015, over 4.5 years after the complaint was filed, the Preah

Sihanouk Court issued a judgment convicting the accused in absentia.8 The Court,

however, changed the charge of rape,9 and convicted the perpetrator for the crimes of

“purchase of child prostitution” and “sexual intercourse with a minor under

15 years”. 10 Purchase of child prostitution involving a minor under 15 years is

punishable by 7 to 15 years in prison. Sexual intercourse with a minor under 15 years

is punishable by 5 to 10 years in prison under article 239 of the Criminal Code. The

court sentenced the accused to 5 years in prison and ordered him to pay 40 million

riel (about $10,000) in civil compensation to the father of C.Y. The Court changed

the charge on the grounds that the offence fell under the scope of the Law on

Aggravating Circumstances of Crimes at the time that it was committed, but under

the scope of the Criminal Code and the Law on Suppression of Human Trafficking

and Sexual Exploitation at the time that the case was adjudicated. The punishments

in the latter were less severe and applied based on the principle of the defendant’s

benefit. While the Court found evidence that the accused had had sexual intercourse

with the victim, it found no evidence that it had been committed by “violence,

coercion, threat or by being opportunistic”, which are required elements of rape under

the Criminal Code. Therefore, the Court applied the charge of sexual intercourse with

a minor under 15 years. The Court found that the accused gave the victim 500 riel or

fruit, which was therefore considered purchase of child prostitution. The minimum

sentence was applied due to the “nature of the accusation, circumstances and the

accused’s personality”. The same day, the accused appealed all elements of the

judgment.11

2.13 On 27 August 2015, the authors filed a complaint with the Minister of Women’s

Affairs, requesting that she intervene with the Appeal Court to obtain justice. On

16 November 2015, the Ministry of Women’s Affairs submitted an intervention letter

to the Appeal Court requesting justice for the victim. On 5 January 2016, the

Cambodian Human Rights Committee submitted an intervention letter to the Appeal

Court following a request from the father of the victim. In the letter, the Cambodian

Human Rights Committee highlighted that the accused remaining at liberty was an

injustice to the victim.

2.14 On 13 January 2016, the Appeal Court conducted a public hearing. On

26 January 2016, the Appeal Court upheld the judgment of the Preah Sihanouk Court,

except for the decision to change the charge from rape to purchase of child

prostitution and sexual intercourse with a minor under 15 years. 12 Therefore, the

Appeal Court applied the initial charge of rape under article 5 of the Law on

Aggravating Circumstances of Crimes.

13 The Appeal Court noted several

inconsistencies in the accused’s testimony. The Court also found no evidence that the

victim, her parents or any other party was engaged in the sale of child prostitution,

making the purchase of child prostitution unfeasible. Rather, giving the victim

500 riel or fruit was an act of persuasion and concealment of rape. The Court found

sufficient evidence to find the accused guilty of rape.

2.15 The Appeal Court found that the accused living at liberty could pose a risk to

the safety and security of the victim and her family and therefore ordered his arrest

__________________

8 Ibid.

9 Under article 5 of the Law on Aggravating Circumstances of Crimes.

10 Under articles 34 (2) and 42 of the Law on Suppression of Human Trafficking and Sexual

Exploitation.

11 Appeal No. 14, dated 9 April 2015, submitted by the accused. Cited in: Appeal Court, Phnom

Penh, Criminal Case No. 761, dated 11 August 2015. Verdict No. 03, dated 26 January 2016.

12 Appeal Court, Phnom Penh, Criminal Case No. 761, dated 11 August 2015. Verdict No. 03,

dated 26 January 2016.

13 In accordance with article 407 of the Code of Criminal Procedure.

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and detention. The accused was not present at the announcement of the judgment. The

judgment was appealed by the accused and by the Prosecutor General on 2 and

23 February 2016, respectively.14 On 17 February 2016, the Appeal Court issued an

arrest and detention warrant for the accused.

2.16 On 2 May 2016, the authors filed letters with the Minister of Justice, the

Anti-Corruption Unit and the Chief of the Cabinet of the Prime Minister, requesting

an investigation into the execution of the arrest and detention warrant. The letters

outlined that the Prosecutor’s Office had ordered the Police Commissariat of Preah

Sihanouk Province to execute the arrest warrant on 10 March 2016. On 23 March

2016, the Police Commissariat reported that the accused remained at large. B.Y.

questioned why the Prosecutor had ordered the Police Commissariat to execute the

warrant rather than other relevant authorities, considering that the accused was still a

police official within that unit. He also questioned why the accused had not been

arrested given that he continued to be seen at his home until 14 March 2016, which

was after the arrest warrant had been issued.

2.17 On 4 August 2016, the Ministry of Interior dismissed the accused from the

national police for violating national police rules, with no salary or benefits paid

beyond October 2016. At the time of dismissal, the accused held the rank of lieutenant

and was deputy head of a bureau at the Internal Security Office of the Police

Commissariat of Preah Sihanouk Province.

2.18 On 10 October 2016, the Supreme Court conducted a public hearing. On

17 October 2016, the Supreme Court announced a judgment in which it upheld the

judgment of the Appeal Court, except for the decision to arrest and detain the accused,

and it therefore overturned the warrant that had been issued on 17 February 2016. 15

The Supreme Court found that the victim’s testimony was consistent, while the

accused’s testimony was not. It found sufficient reasoning to uphold the conviction

of rape. The Supreme Court found that the Appeal Court was incorrect in ruling that

the accused should be arrested and detained because the accused had appealed the

judgment of the Preah Sihanouk Court judgment. Therefore, in accordance with

article 399 of the Code of Criminal Procedure, the judgment could be modified only

in favour of the accused.

2.19 On 23 November 2016, the Prosecutor’s Office of the Preah Sihanouk Court

issued an arrest warrant against the perpetrator, ordering the judicial police to arrest

and detain him, on the grounds that he had been convicted of rape and the Supreme

Court verdict had come into full effect. At the time of the submission of the

communication to the Committee, the perpetrator had not been arrested or detained.

2.20 On 28 November 2016, the Preah Sihanouk Provincial Governor met with the

father after the latter posted about the case on Facebook. That evening, the Chief of

the military police in Preah Sihanouk Municipality informed the father about the

arrest warrant and instructed him to be quiet so as not to alert the perpetrator. On

23 January 2017, the authors requested the President of the Preah Sihanouk Court to

implement the judgment through the seizure and sale of the perpetrator’s house and

land to pay the civil compensation owed. The Preah Sihanouk Court requested the

authorities to assess any property owned by the perpetrator.

__________________

14 Appeal No. 29, dated 2 February 2016, submitted by the accused; Appeal No. 54, dated

23 February 2016, submitted by the Prosecutor General attached to the Appeal Court. Cited in:

Supreme Court, Phnom Penh, Criminal Case No. 72, dated 16 March 2016. Verdict No. 364,

dated 17 October 2016.

15 Supreme Court, Phnom Penh, Criminal Case No. 72, dated 16 March 2016. Verdict No. 364,

dated 17 October 2016.

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2.21 On 19 June 2017, the Commune Chief of Sangkat 3 in Preah Sihanouk

Municipality issued a certificate and shared a sale contract documenting that the

perpetrator had transferred the assets to another person on 29 December 2015. At the

time of the submission of the communication to the Committee, no compensation had

been paid.

Complaint

3.1 The authors claim continuing violations of C.Y.’s rights under articles 1, 2, 3,

5 (a) and 15 (1) of the Convention, as interpreted by the Committee in its general

recommendations Nos. 19, 28, 33 and 35, owing to the State Party’s failure to exercise

due diligence in effectively investigating the case, punishing the perpetrator and

providing remedies and reparation to the victim, as well as in ensuring the

effectiveness of the justice system.

3.2 Specifically, the authors claim that the State Party failed to guarantee

independence and impartiality in providing justice. Military police attempted to

persuade C.Y.’s family to accept out-of-court payments and forgo criminal

proceedings. The perpetrator’s role within the Police Commissariat was likely to have

influenced proceedings, including his pretrial release and the failure to execute the

arrest and detention warrants. No evidence suggests that the authors’ allegations of

bribery of magistrates were investigated.

3.3 The authors claim that law enforcement and courts applied unreasonable

evidentiary standards. All proceedings relied excessively on establishing physical

injury and medical evidence, even though these elements are not required to meet the

definition of rape established in the Criminal Code. The State Party failed to ensure

timely remedies thereby causing unreasonably prolonged proceedings without

sufficient justification. The victim had sought reparation for over 12 years by the time

of the submission of the communication to the Committee. Almost five years passed

before the Preah Sihanouk Court announced a judgment, which is excessively slow

compared with similar cases. In the meantime, the perpetrator kept his position for

over six years. Failure to enforce the final judgment displays an additional

unreasonable delay.

3.4 The authors further claim that the courts failed to impose adequate penalties.

They applied an unreasonably short sentence of five years, failing to consider the

victim’s testimony, age or perceived disability status and the power imbalance

between the victim and the perpetrator. Purchase of child prostitution carries a

sentence of 7 to 15 years, and sexual intercourse with a minor under 15 years carries

a sentence of 5 to 10 years. Although the Appeal Court changed the charge to rape,

the sentence was not adjusted to match the corresponding sentence of 15 to 20 years

if committed against someone under 14 years or a person with a disability, or by a

person in a position of power.

3.5 The authors claim that the State Party failed to enforce remedies. The final

judgment issued in 2016 has not been enforced yet. The perpetrator has not served his

sentence or paid civil compensation. Unreasonably prolonged proceedings enabled

the perpetrator to transfer assets, thereby evading payment. The State Party does not

have specific reparation funds to support people harmed by gender-based violence.

3.6 The authors also claim that the State Party failed to protect C.Y. and her family

before, during and after the legal proceedings. No measures were implemented to

protect the victim from additional violence, harassment or other pressure and she

remained at risk of ongoing harm due to impunity.

3.7 Stereotypes regarding C.Y.’s gender, age and perceived disability status

negatively affected the weight given to her testimony by the military police and likely

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the prosecutor. The report of the military police and a statement made by the

prosecutor relied on stereotypes and bias. The authors request that the State Party’s

authorities immediately provide meaningful protection to block the perpetrator and

his relatives from all contact with them and their relatives. The perpetrator ’s family

has previously pressured C.Y. to accept out-of-court monetary compensation to avoid

the perpetrator being held criminally responsible. Pressure and harassment from the

perpetrator and his family are humiliating and a continuation of the harms related to

the original act of rape. They cause irreparable harm to the victim’s psychological

well-being.

3.8 Lastly, the authors request that the State Party immediately enforce the Supreme

Court judgment, including the perpetrator’s arrest and detention and full payment of

civil compensation; prevent further asset transfers from the perpetrator until the civil

compensation has been fully paid; grant the victim appropriate reparation, including

compensation commensurate with the seriousness of the rights violations; ban use of

non-judicial resolutions in sexual assault cases, including reconciliation, mediation

and other alternative methods of dispute resolution; ensure that all responses to sexual

assault are survivor-centred, emphasizing that perpetrators’ rights cannot supersede

women’s human rights to life and physical and mental integrity.

Lack of cooperation by the State Party

4.

In notes verbales sent on 26 September 2022, 23 January 2024 and 24 February

2025, the Committee requested the State Party to provide information and

observations on the admissibility and the merits of the present communication. The

Committee regrets the State Party’s failure to provide any information with regard to

the admissibility or the merits of the authors’ claims. It recalls that article 7 of the

Optional Protocol obliges States Parties to examine in good faith all allegations

brought against them and to make available to the Committee all information at their

disposal. In the absence of any observations from the State Party, due weight must be

given to the authors’ allegations, to the extent that they are properly substantiated.16

Issues and proceedings before the Committee

Consideration of admissibility

5.1 In accordance with rule 64 of its rules of procedure, the Committee must decide

whether the communication is admissible under the Optional Protocol. In accordance

with rule 72 (4), it is to do so before considering the merits of the communication.

5.2 The Committee recalls that, under article 4 (1) of the Optional Protocol, it is

precluded from considering a communication unless it has ascertained that all

available domestic remedies have been exhausted or that the application of such

remedies is unreasonably prolonged or unlikely to bring effective relief. In the present

case, the Committee notes the authors’ contention that they have exhausted all

available domestic remedies.

5.3 The Committee observes that the State Party has not provided any information

to challenge the authors’ assertions. It also observes that, at the time of the submission

of the present communication, more than a decade after the repeated rape of C.Y., and

despite the fact that the case has been appealed all the way to the Supreme Court, the

perpetrator has remained at large, and no reparation has been received by the victim.

In the absence of any submissions from the State Party to the contrary, in particular

to identify any remedy that would have been effective and available to the authors to

raise the claims brought before the Committee, the Committee considers that it is not

__________________

16 X. v. Timor-Leste (CEDAW/C/69/D/88/2015), para. 4.

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precluded under article 4 (1) of the Optional Protocol from considering the

communication.

5.4 The Committee takes note that, in terms of crime classification, the Appeal

Court remedied the decision of the court of first instance, namely, the Preah Sihanouk

Court, and the rape conviction was upheld by the Supreme Court in its final judicial

decision. The Committee considers, however, that these decisions cannot be

considered an effective remedy in the light of the non-execution of the final decision

in contempt of court and the absence of recognition of discrimination in the judicial

proceedings. The Committee also observes that the State Party has failed to address:

(a) the delay in the adjudication of the case by the Preah Sihanouk Court; (b) the

sentence of the Appeal Court, which was not commensurate with the full range of

violations alleged; or (c) the non-enforcement of the final judgment of the Supreme

Court, which is tantamount to contempt of court.17

5.5 The Committee notes the authors’ claims that the State Party failed to ensure

justice and protection for C.Y. after the sexual violence to which she was subjected,

citing systemic delays, inadequate penalties, non-enforcement of judgments, lack of

victim protection, and bias rooted in stereotypes based on gender and disability. The

Committee further notes the lack of cooperation by the State Party in the present case.

The Committee considers that, for the purposes of admissibility, the authors have

sufficiently substantiated their claims under articles 1, 2, 3, 5 (a) and 15 (1) of the

Convention. It also notes that no information has been received from the State Party

in the present case. Accordingly, the Committee decides to give due weight to the

authors’ allegations, to the extent that they have been sufficiently substantiated.

Accordingly, it decides that the communication is admissible under article 4 (2) (c)

of the Optional Protocol and proceeds with its consideration of the merits.

Consideration of the merits

6.1 The Committee has considered the present communication in the light of all the

information made available to it by the authors, in accordance with the provisions of

article 7 (1) of the Optional Protocol.

6.2 The questions before the Committee are as follows: whether the State Party

discharged its duty of due diligence in investigating, prosecuting and remedying the

rape that C.Y. endured; and whether the judiciary and other organs in the State Party

carried out their mandates in order to ensure that C.Y. received a fair trial, without

bias, discrimination or stereotyping based on gender and disability. The Committee

takes note in this regard of the authors’ allegations that justice was compromised by

a lack of independence and impartiality, undue influence as a result of the

perpetrator’s position within the police and the unaddressed bribery allegations, that

proceedings were marred by unreasonable evidentiary standards, excessive delays –

over 12 years without enforcement of the final judgment – and inadequate penalties

that reflected a disregard for such aggravating factors as C.Y.’s age and perceived

disability status and the power imbalance between victim and perpetrator, with the

latter holding a high position of official authority in law enforcement. The Committee

notes that, under article 240 of the Criminal Code, any person having authority over

another person constitutes an aggravating circumstance. The Committee further notes

the authors’ assertions that the State Party also failed: to enforce civil compensation;

to protect C.Y. and her family from harassment; and to address harmful stereotypes

based on gender and disability that undermined her testimony. The Committee will

__________________

17 See Lula da Silva v. Brazil (CCPR/C/134/D/2841/2016 (Final proceedings)), in which the

Human Rights Committee expressed the view that, although the Supreme Federal Court had

vacated the conviction and imprisonment of Mr. Lula da Silva in 2021, those decisions were not

timely and effective enough to avoid or redress the violations.

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determine whether the above amounted to a violation of C.Y.’s rights and a breach of

the corresponding obligations of the State Party under articles 1, 2, 3, 5 (a) and 15 (1)

of the Convention.

6.3 The Committee first recalls that gender-based violence against women, which

impairs or nullifies the enjoyment by women of human rights and fundamental

freedoms under general international law or under human rights conventions, is

discrimination within the meaning of article 1 of the Convention. 18 The Committee

further recalls that gender-based violence affects women throughout their life cycle,19

so that any reference to women includes girls. The Committee has also stated that

“discrimination against women, based on gender stereotypes, stigma, harmful and

patriarchal cultural norms and gender-based violence [...] has an adverse impact on

the ability of women to gain access to justice on an equal basis with men” and that

“discrimination against women is compounded by intersecting factors”, including age

and disability, which “make it more difficult for women from those groups to gain

access to justice”.20 In this regard, the Committee has called on States to “ensure that

all legal systems […] protect victims/survivors of gender-based violence against

women and ensure that they have access to justice and to an effective remedy”.21

6.4 With regard to the authors’ claim in relation to article 2 of the Convention, the

Committee recalls that the right to effective protection, which also includes the right

to an effective remedy, is inherent in the Convention.22 It falls within the ambit of

article 2 (c), whereby States Parties are required “to establish legal protection of the

rights of women on an equal basis with men and to ensure through competent national

tribunals and other public institutions the effective protection of women against any

act of discrimination”, in conjunction with paragraph 24 (b) and (i) of general

recommendation No. 19, whereby States Parties should “ensure that laws against

family violence and abuse, rape, sexual assault and other gender-based violence give

adequate protection to all women, and respect their integrity and dignity” and provide

“effective complaints procedures and remedies, including compensation”, in order to

overcome all forms of gender-based violence. The Committee also recalls that, for a

remedy to be effective, adjudication of a case involving rape and sexual offences

claims should be dealt with in a fair, impartial, timely and expeditious manner. 23 It

further recalls its general recommendation No. 18 (1991) on disabled women, in

which it observed that women with disabilities “suffer from a double discrimination

linked to their special living conditions”. In this context, the Committee emphasizes

that it is crucial to ensure that women and girls with disabilities enjoy effective

protection against sex- and gender-based discrimination by States Parties and have

access to effective remedies24 on an equal basis with others, including through the

__________________

18 General recommendation No. 19, para. 7.

19 See general recommendation No. 27 (2010) on older women and the protection of their human

rights and joint general recommendation No. 31 of the Committee on the Elimination of

Discrimination against Women/general comment No. 18 of the Committee on the Rights of the

Child (2019) on harmful practices. See also general recommendation No. 35, para. 14, and

L.C. v. Peru (CEDAW/C/50/D/22/2009), in which the Committee addressed the violation of the

rights of a girl who survived sexual violence, in particular the rights to life, health and freedom

from discrimination.

20 General recommendation No. 33, para. 8.

21 General recommendation No. 35, para. 29 (b).

22 See, for example, Vertido v. Philippines (CEDAW/C/46/D/18/2008), para. 8.4; and R.P.B.

v. Philippines (CEDAW/C/57/D/34/2011), para. 8.3.

23 Vertido v. Philippines, para. 8.3.

24 See R.P.B. v. Philippines, para. 8.3. See also Committee on the Rights of Persons with

Disabilities, general comment No. 3 (2016) on women and girls with disabilities, para. 33.

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provision of procedural and age-appropriate accommodations, in order to facilitate

their effective role as direct and indirect participants in all legal proceedings. 25

6.5 The Committee notes the authors’ assertion that the State Party failed to

guarantee impartial justice and effective remedies. The Committee notes, in

particular, the attempts by military police to pressure C.Y.’s family into out-of-court

settlements, combined with the perpetrator’s influence over law enforcement,

prosecutorial and judicial authorities. The Committee observes that these factors

demonstrate institutional bias that led to excessive delays at the level of the court of

first instance, namely, the Preah Sihanouk Court, the non-enforcement of judgments

and a lack of reparations and that they reflect a failure of the State Party to exercise

due diligence in addressing gender-based violence, thereby perpetuating impunity and

discrimination.

6.6 With regard to the authors’ claim under article 2 (f) of the Convention, the

Committee recalls that the Convention places obligations on all State authorities and

that States Parties are responsible for judicial decisions that violate the provisions of

the Convention. It notes that, under this provision of the Convention, the State Party

is to take appropriate measures to modify or abolish not only existing laws and

regulations, but also customs and practices that constitute discrimination against

women. In this regard, the Committee stresses that stereotyping affects the right of

women and girls to a fair and just trial and that the judiciary must take caution not to

create inflexible standards of what women or girls should be or what they should have

done when confronted with a situation of rape based merely on preconceived notions

of what defines a rape victim.26

6.7 In the present case, the compliance of the State Party’s obligation to banish

gender stereotypes on the grounds of article 2 (f) needs to be assessed in the light of

the level of gender, age and disability sensitivity applied in the prosecutorial and

judicial handling of C.Y.’s case. In this regard, the Committee notes that the Preah

Sihanouk Court convicted the accused over 4.5 years after the complaint had been

filed, changed the charge from rape to purchase of child prostitution and sexual

intercourse with a minor under 15 years, which are punishable by prison sentences of

7 to 15 years and 5 to 10 years, respectively, and proceeded to impose the minimum

possible sentence for the minor crime, namely, 5 years, whereas under the initial

classification of rape the sentence would have been 15 to 20 years. Furthermore, the

court found evidence of sexual intercourse, but instead of reasoning on that basis and

taking into account C.Y.’s age, it required express evidence of violence or coercion

as elements of rape. The court further deemed the offer of a fruit or 500 riels as an

element establishing the purchase of child prostitution. Regarding the issue of

consent, the Committee notes that both article 239 of the Criminal Code and article 5

of the Law on Aggravating Circumstances of Crimes include provisions that are

gender-discriminatory. The Preah Sihanouk Court relied on what was considered the

consent of the victim under article 239 of the Criminal Code, which permeated the

Court’s ruling to convict the defendant on the basis of prostitution rather than rape.

Although the Appeal Court and the Supreme Court changed the charge to rape, the

sentence of the Preah Sihanouk Court, based on false and stereotypical

understandings of rape, was maintained. The Committee recalls that, as stated by the

Special Rapporteur on violence against women, its causes and consequences, consent

to sexual intercourse must be given voluntarily and must be genuine and result from the

person’s free will, assessed in the context of the surrounding circumstances, and can be

withdrawn at any moment. While consent need not be explicit in all cases, it cannot be

inferred from: (a) silence by the victim; (b) non-resistance, verbal or physical, by the

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25 Convention on the Rights of Persons with Disabilities, art. 13.

26 Vertido v. Philippines, para. 8.4; and R.P.B. v. Philippines, para. 8.8.

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victim; (c) the victim’s past sexual behaviour; or (d) the victim’s status, occupation or

relationship to the accused.27

6.8 The requirement that the victim display evidence of resistance or that she “must

fight back” is one of the popular myths in rape trials. The Committee considers that,

by disqualifying the sexual intercourse as rape owing to an absence of physical

violence, the Preah Sihanouk Court not only reinforced the stereotypical myth of

consent based on lack of physical resistance, 28 it also failed to consider important

factors related to the power difference between the parties, such as the victim’s young

age and disability, as well as the perpetrator’s position of police authority. Furthermore,

the State Party failed to apply its own Criminal Code, which explicitly states that the

“legality of sexual intercourse is determined from the age of 15 years” and that rape

carries a higher penalty (7–15 years) when committed “against a person who is

particularly vulnerable by reason of his or her age”.29 Under the age of 15, a child

cannot legally consent to sexual intercourse.

6.9 With regard to the authors’ claims under article 3, the Committee recalls that

State Parties must ensure women’s enjoyment of fundamental rights, including

security and protection from violence. In the case of girls, States have a positive

obligation to adopt measures to protect them from all forms of physical and mental

violence, including sexual abuse.30 The Committee notes the authors’ argument that

the State Party failed to implement protective measures before, during and after the

legal proceedings. In that regard, far from protecting C.Y. as a child victim of sexual

abuse and violence, the State Party exposed her to ongoing harassment and

intimidation, causing irreparable psychological harm and revictimizing her. 31

Furthermore, the State Party’s failure to exercise due diligence in guaranteeing

effective delivery of justice resulted in C.Y. being forced to seek shelter, thereby

depriving her of her right to liberty and freedom of movement and association.

6.10 With regard to the authors’ claim under article 5 (a) of the persistence of

gendered and ableist stereotypes in official reports and prosecutorial statements, the

Committee recalls that, under articles 2 (f) and 5 (a) of the Convention, States Parties

have the obligation to adopt appropriate measures to amend or abolish not only

existing laws and regulations but also customs and practices that constitute

discrimination against women. The Committee notes that stereotypes regarding C.Y.’s

gender, age and perceived disability status negatively affected the weight given to her

testimony by the military police, the prosecutor and ultimately the courts.32

6.11 Lastly, the Committee notes the authors’ claims concerning equality before the

law, unreasonable evidentiary requirements, sentencing disproportionate to the crime,

and failure to enforce judgments, in violation of article 15 (1) of the Convention. In

this regard, the Committee observes that by prioritizing (lack of) physical injury and

medical evidence – elements required to meet the definition of rape established in the

Criminal Code – the courts have imposed barriers to C.Y.’s access to justice. The

Committee takes note that the Appeal Court reclassified the crime as rape, which was

upheld by the Supreme Court, but since the Prosecutor had not appealed, the

procedural principle of appellate criminal law reformatio in peius applied, and the

Supreme Court could not sentence the defendant to a harsher penalty. The Committee

observes, however, that, while neither the failure to appeal nor the sentence per se

amount to a violation of the author’s rights under the Convention, the broader

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27 A/HRC/47/26/Add.1, para. 17.

28 See Vertido v. the Philippines, para. 8.5, and R.P.B. v. Philippines, para. 8.10.

29 Cambodia Criminal Code, arts. 239–241.

30 Convention of the Rights of the Child, art. 19.

31 Committee on the Rights of the Child, Camila v. Peru. (CRC/C/93/D/136/2021), para. 8.17.

32 Convention on the Rights of Persons with Disabilities, art. 8.

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procedural failures (lack of prompt, impartial and thorough investigation; lack of

independent prosecution free from institutional bias and influence; lack of

accountability for a perpetrator who continues to be a serving police officer (State

agent); and intersectional discrimination based on sex, gender, age and disability) are

tantamount to a failure of justice. A sentence incommensurate with the crime,

compounded by prosecutorial negligence and the absence of reparation for a child

victim in the present case, amounts to a denial of effective justice. The Committee

concludes that, in issuing a sentence of jail time below that required under the

aggravating circumstances provisions of the Criminal Code, the courts disregarded

aggravating factors such as age (C.Y. was 11 years old at the time of the crime),

disability status and the power imbalance between C.Y. and the perpetrator, while the

non-enforcement of the Supreme Court judgment undermined the rule of law, eroded

the principle of equality before the law and deprived C.Y. of access to the remedies

guaranteed by a fair trial and due process, leaving the perpetrator at large.33

6.12 The Committee recalls that it is not in a position to review the assessment of

facts and evidence by domestic courts and authorities unless such assessment was in

itself arbitrary or otherwise discriminatory. 34 The Committee observes, however, that,

in the present case, the authors have sufficiently demonstrated that the Preah

Sihanouk Court failed to duly consider crucial elements and that its assessment and

decision were arbitrary and discriminatory on the basis of sex, gender and disability

status. The Committee considers that the authors have demonstrated that the courts’

assessments were manifestly arbitrary and that the lack of enforcement of the

Supreme Court judgment amounted to a denial of effective justice.35

7.

Acting under article 7 (3) of the Optional Protocol to the Convention, and in the

light of all the above considerations, and the lack of cooperation by the State Party,

the Committee is of the view that the State Party has failed to fulfil its obligations

and has thereby violated the rights of C.Y. under articles 2, 3, 5 (a) and 15 (1), read

in conjunction with article 1, of the Convention. The Committee makes the following

recommendations to the State Party:

(a)

Concerning the authors of the communication:

(i)

Immediately enforce the Supreme Court judgment, including the

perpetrator’s arrest and detention and full and adequate compensation to

C.Y., commensurate with the nature of a crime committed under

aggravating circumstances;

(ii) Ensure that C.Y. is provided with reparative justice by the State Party for

physical, psychological and moral harm, taking into account her loss of

liberty in the 10 years that she was in a protective shelter with limited

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33 See Human Rights Committee, Tholal and Mahmood v. Maldives (CCPR/C/130/D/3248/2018),

regarding the dismissal of two National Human Rights Commission members in Maldives.

While the initial individual communication was focused on the retaliatory dismissal, the Human

Rights Committee addressed related broader issues, such as the independence of the judiciary.

34 See, for example, R.P.B. v. Philippines, para. 7.5; T.N. v. Denmark (CEDAW/C/59/D/37/2012),

para. 12.7; G.D. v. Bulgaria (CEDAW/C/80/D/142/2019), para. 6.5; and V.K. v. Bulgaria

(CEDAW/C/49/D/20/2008), para. 9.6. See also S.V.P. v. Bulgaria (CEDAW/C/53/D/31/2011).

35 See R.S.A.A. et al v. Denmark (CEDAW/C/73/D/86/2015), para. 8.4, in which the Committee

stated that deference to domestic courts may be waived if it can be established that the

evaluation: (a) was biased or based on gender stereotypes that constitute discrimination against

women; (b) was clearly arbitrary; or (c) amounted to a denial of justice.

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access to the rights to education, freedom of association and movement,

and that B.Y. is provided restitution of full financial damages;36

(iii) Restore C.Y.’s dignity through reintegration into the community and

participation in income-generating activity, with a view to ameliorating

her 10-year social isolation, and provide psychological counselling and

therapy for C.Y., as needed and free of charge;

(b)

General:

(i)

Review the legislation on statutory rape concerning child victims, for

which consent is irrelevant, and remove from law any requirement that

sexual assault be committed by force or violence or any implication of

consent owing to a lack of physical injury or visible signs of resistance or

silence on the part of the victim. Moreover, the revisions to the law and

judicial interpretation must recognize that an affirmative consent

provision protects women and girls in situations where they feel they

might not be able to say no, namely, when there is a threat of violence, a

fear of retribution or a power imbalance or strength asymmetry;37

(ii) In cognizance of article 240 of the Criminal Code, in a crime concerning

the abuse or misuse of authority vested in the perpetrator, ensure the strict

application of the penalty prescribed in the Code, prohibit the use of non-

judicial resolutions in sexual assault cases, including reconciliation,

mediation and other alternative methods of dispute resolution, and shift

the shame and stigma of sexual abuse to the perpetrator through a policy

of zero tolerance for sexual violence;

(iii) In line with article 31 of the Constitution,38 ensure effective and gender-

sensitive access to justice, a fair trial and the exercise of due process in

the criminal justice system, including ensuring that all criminal

proceedings involving rape and other sexual offences are conducted in a

safe, impartial and fair manner and free from prejudice, compounded

discrimination and stereotypical notions regarding the victim’s gender, age

and disability status or other intersectional identity, within a victim-

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36 Article 39 of the Constitution reads as follows: “Khmer citizens have the right to denounce,

make complaints or claim compensation for damages caused by any breach of the law by

institutions of the State, by social organizations or by members of such organizations.”

37 Rule 70 of the Rules of Procedure and Evidence of the International Criminal Court, entitled

“Principles of evidence in cases of sexual violence”, provides that consent cannot be inferred by

reason of: (a) “any words or conduct of a victim where force, threat of force or coercion or

taking advantage of a coercive environment, undermined the victim’s ability to give voluntary

and genuine consent”; (b) “any words or conduct of a victim where the victim is incapable of

giving genuine consent”; or (c) “the silence of, or lack of resistance by, a victim to the alleged

sexual violence”. According to a policy paper on gender-based violence issued in 2023 by the

Office of the Prosecutor of the International Criminal Court, “… consent cannot be inferred in

any situation where force, threat of force, coercion or taking advantage of coercive

circumstances undermines the victim’s ability to give voluntary and genuine consent. Likewise,

consent cannot be inferred by reason of silence or lack of resistance to the act of sexual

violence, or when the victim, such as a child, is incapable of giving genuine consent”.

38 Article 31 of the Constitution reads as follows:

The Kingdom of Cambodia recognizes and respects human rights as stipulated in the

United Nations Charter, the Universal Declaration of Human Rights and the covenants

and conventions related to human rights, women’s rights and children’s rights.

Khmer citizens shall be equal before the law, enjoying the same rights and freedom and

obligations regardless of race, colour, sex, language, religious belief, political tendency,

national origin, social status, wealth or other status. The exercise of personal rights and

freedom by any individual shall not adversely affect the rights and freedom of others. The

exercise of such rights and freedom shall be in accordance with the law.

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centred and trauma-informed justice system. In cases of child victims,

provide child-protection officers and victim and witness protection

procedures and ensure the safety and security of the victim and her family.

Ensure that evidentiary standards are fair and in line with due process, as

well as with new forensic and medical protocols, and do not overburden

the victim;

(iv) Convene regular judicial colloquiums on the Convention, the

Optional Protocol thereto and the Committee’s general recommendations

and jurisprudence to the judiciary and the legal profession.

8.

In accordance with article 7 (4) of the Optional Protocol, the State Party shall

give due consideration to the views of the Committee, together with its

recommendations, and shall submit to the Committee, within six months, a written

response, including information on any action taken in the light of the views and

recommendations of the Committee. The State Party is also requested to publish the

Committee’s views and recommendations and to have them translated into Khmer,

and widely disseminated in order to reach all relevant sectors of society.