A/HRC/47/26 B. 1. Prosecution of rape and protection of victims Prosecution ex officio and without undue delay 91. In the vast majority of States, rape is prosecuted ex officio: that is, by public prosecution, not wholly dependent upon the victim’s complaint. However, in some States, rape is prosecuted ex parte. In Cuba, for example, rape is always prosecuted ex parte and prosecution is interrupted if victims withdraw their complaint. In other States, there is a mixed approach. For example, in Ecuador prosecution is ex parte in cases of estupro (sexual relations with a minor through deceit), and in Mexico, Slovenia and Turkey in cases of marital rape or rape by an intimate partner. Likewise, only aggravated forms of rape are prosecuted ex officio in States such as Azerbaijan and Romania, and in others, victims may pursue private prosecution if they have been denied public prosecution. 92. Non-prosecution of rape cases is generally the result of discretionary decisions by prosecutors. The criteria established by law for non-prosecution vary and may give wide discretionary power to prosecutors. Such is the case in Japan, for example, where a prosecutor may decide not to press charges if prosecution is deemed unnecessary owing to the character, age and environment of the offender, the gravity of the offence and the circumstances or situation after the offence, as is the case for all criminal offences. 93. In its general recommendation No. 35 (2017), the Committee on the Elimination of Discrimination against Women recommended that States parties apply ex officio prosecution to bring alleged perpetrators to trial in a fair, impartial, timely and expeditious manner. Similarly, the Istanbul Convention requires parties to ensure that investigations and judicial proceedings are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings, and that prosecution of rape is not wholly dependent upon a report or complaint filed by a victim. 94. The Special Rapporteur makes the following recommendations: (a) The crime of rape should be prosecuted ex officio, without the discretionary powers of prosecutors being too wide, and prosecution should not depend solely on the victim’s complaint; (b) 2. Prosecution should be pursued without undue delay. Standard of proof, rape shield provisions and other protective measures 95. The application of criminal law standard of proof, “beyond reasonable doubt”, in rape cases is closely interconnected with the definition of rape. For example, if the definition of rape requires proof of the use of force or coercion, victims bear the burden of providing such proof, which leads to impunity for perpetrators given that rape usually takes place behind closed doors and may not result in visible physical harm. On the other hand, if the definition of rape is based on lack of consent, the burden with respect to that proof is shared with or shifted in part to the perpetrator, and a different standard of proof from that of beyond reasonable doubt is therefore required. 96. Many States have definitions that are based on the use of force and coercion. Some of them have explicit provisions on requirements regarding proof; in many States, in practice it is often necessary to present medical examinations as evidence of rape, and in some, there must be witnesses, including in Afghanistan, Bangladesh, Ghana, Mauritius, Morocco, Nigeria, Pakistan and Sierra Leone. In Yemen, the law establishes that without a confession from the perpetrator, a rape victim must provide four male witnesses to establish that the offence had been committed. This requirement makes most rape cases impossible to prove, owing to the circumstances in which rape usually takes place. 97. Another worrisome practice is virginity testing, which is still being reported in some States. For example, in Armenia, an ordinance by the Minister of Health provides for forensic medical examinations, including the identification of the sexual condition, sexual integrity and virginity or otherwise of the victim. 16