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On Monday 15th July the Court of Appeal rejected an application for Judicial Review, which would reverse an earlier refusal of permission to apply, by Ms X, a Ugandan rape victim claiming asylum. Ms X was raped by soldiers after they first interrogated her son and herself about whether their shop sold provisions to "rebels", beat her son unconscious and then took him away (she believes he was killed). She went into hiding in Kampala and then escaped to Britain, leaving her four children behind.

Ms X’s lawyer referred her to Women Against Rape (WAR), who diagnosed Ms X as suffering from severe Rape Trauma Syndrome (a medically recognised form of Post Traumatic Stress Disorder). This diagnosis was subsequently confirmed by a Consultant Psychiatrist from the Traumatic Stress Service of the Maudsley Hospital. Ms X is also traumatised by the horror of having witnessed such a brutal attack on her son, and the ongoing torture of not knowing what happened to him, and finally of being deprived of all contact with the rest of her family.

In February 2001, the Home Office refused Ms X’s asylum claim; in August 2001 Special Adjudicator Mrs JE Nichols also refused, ruling that the rape Ms X suffered was nothing more than "a very serious criminal act of sexual gratification on the part of the soldiers concerned" and simply "a gratuitous act of violence against the appellant during the course of the arrest of her son" having no and therefore Ms X did not qualify for protection under either the UN Convention on Refugees or the Human Rights Act. Ms X was then refused leave to appeal to the Immigration Appeal Tribunal, which reiterated that "the rape of the Applicant was extraneous to the political or military activities of the soldiers and did not engage the Refugee Convention."

Sitting in the Court of Appeal, Lord Justices Latham and Simon Brown upheld the Adjudicator’s ruling, finding she made no error of law in dismissing the rape. Lord Justice Latham ruled that Ms X’s rape was not a matter of persecution, but of "simple and dreadful lust". Both judges dismissed the likelihood that Ms X will be targeted again by the authorities if forced to return to Uganda, endorsing the Adjudicator’s view that Ms X could safely return to live in Kampala. This ignores the fact that Ms X would be forced to report to the Kampala authorities to explain her presence far from her home town, that she is likely to be suspected as a rebel supporter, and that in any case she is so traumatised by her experiences that returning her to Uganda would itself constitute "cruel and degrading treatment", in breach of Article 3 of the Human Rights Act.

A spokeswoman for Women Against Rape’s Asylum From Rape Initiative says: "We are outraged that the Court of Appeal has defended the way the Adjudicator dismissed the significance of rape. Reducing the rape of Ms X by the military personnel who attacked and kidnapped her son to "sexual gratification" denies, first, that her interrogation and rape were connected. Secondly, it is now widely recognised in international law that rape is violence, a weapon of war and a form of persecution and torture, especially when perpetrated by soldiers or police in the course of carrying out interrogation of women. If Ms X had been violated in ways more often associated with the torture of men, such a ruling diminishing her attack would be seen as perverse. The Metropolitan Police have said: "We want to kill the myth that rape is sexually motivated - it is usually intended to inflict violence and humiliation."

Commenting on the case, Mr Ian Macdonald QC said: "By upholding this ruling by the Adjudicator, the Court of Appeal has effectively condoned rape by soldiers carrying out official duties. This may mean that large numbers of women who deserve international protection will be denied it. The Appeal Court has also ignored the contradictory approach Adjudicators are taking to the issue of rape by police, soldiers and other security personnel. Some Adjudicators rule that rape is carried out purely for sexual gratification, and others say that rape can rarely, if ever, be treated as a question of sexual gratification because it is an exercise of State power intended to degrade or humiliate."

Estimates suggest that as many as 50% of women claiming asylum are rape victims; in this context, this ruling and the sexist standard it expresses are likely to have devastating and potentially life-threatening implications for many other victims of rape."

Asylum from rape