70 GENDER PERSPECTIVES ON TORTURE: Law and Practice It is clear that women are often tortured in different ways than men, and that women are tar­ geted for discriminatory treatment because of their sex or gender.77 Rape and other forms of sexual violence are widely used by men as ways of humiliating, intimidating, and subjugating women in society.78 Rape and other forms of sexual violence are gender-based violence, because they are based on a conception of women as inferior and as the property of men. These forms of violence also constitute a particularly vicious attack on women’s identity and sexuality.79 Even today, rape is one of the least-prosecuted crimes both in domestic and international contexts, as it is often triv­ ialized, justified, or denied.80 It may be helpful to begin with a review of some key concepts of the dynamics of gender-based violence. First, the terms “sex” and “gender” are not entirely interchangeable. Both terms, but particularly gender, have been interpreted in many different ways by different feminist theories. Initially, the feminist movement, inspired by works such as The Second Sex by Simone de Beauvoir, held that “sex” refers to biological differences between men and women, while “gender” is a social and cultural construct, unrelated to biology, that determines what is meant by male and female in each society, culture, and era.81 However, this definition was criticized by later feminist theorists who argued that this sex/gender system failed to explain the hierarchical power relationships that subjugate female to male. Any definition of gender must therefore take this aspect into account. One possible definition of gender is “a constitutive element of social relationships based on perceived differences between the sexes, and (…) a primary way of signifying relationships of power.”82 Gender constructs determine what the values, behaviors, and expectations are for men and women in a specific social and cultural context.83 Gender is therefore not immutable, but may change depend­ ing on the social context and dominating culture at a given place and time. It is a relational concept that highlights relationships of inequality between men and women—or “male” and “female”—as it regards the distribution of power, a key element for understanding the differential use of violence in contexts of conflict, widespread or systematic attacks, or serious human rights violations. 77 Askin, Kelly (2003): Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles, 21 Berkeley Journal of Int’l Law 288, 347. 78 Akayesu, op. cit., paras. 382-384. 79 UN. Declaration on the Elimination of Violence against Women. Resolution of the General Assembly 48/104 of December 20, 1993. A/RES/48/104, February 23, 1994. http://www.ohchr.org/SP/ProfessionalInterest/ Pages/ViolenceAgainstWomen.aspx 80 Maja Kirilova Eriksson, Reproductive Freedom: In the Context of International Human Rights and Humanitarian Law 478 (1999) (stating that “rape and other grave violations of women’s reproductive rights under international humanitarian law committed all over the world have for centuries remained... the least prosecuted crimes”); ECOSOC, Comm’n on Human Rights, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission: Alternative Approaches and Ways and Means Within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms, P 263, UN Doc. E/CN.4/1995/42 (Nov. 22, 1994) (prepared by Radhika Coomaraswamy) (describing rape as the “least condemned war crime”). 81 Ávila, Ramiro, Salgado, Judith, Valladares, Lola (editors). El género en el derecho. Ensayos críticos. Ecuador: Ministry of Justice and Human Rights, UNIFEM, United Nations High Commissioner for Human Rights, 2009, pp. 103-133. 82 Scott, Joan. “El género: una categoría útil para el análisis histórico” in Lamas, Marta (ed.) “El Género, la construcción cultural de la diferencia sexual.” Mexico: UNAM Grupo Editorial Miguel Angel Porrua, 1997, p. 289. It is important to note that this theory of gender has also been challenged by feminist theories, such as queer theory, that argue that sex is not strictly biological but also cultural. 83 Bergara, Ander, Riviere, Bacete Josetxu, Bacete Ritxar. Los hombres, la igualdad y las nuevas masculinidades. [online] Emakunde-Basque Institute for Women, July 2008. P. 21. http://www.berdingune.euskadi.net/u89­ congizon/es/contenidos/enlace/enlaces_mochila_gizonduz1/es_gizonduz/adjuntos/guia_masculinidad_ cas.pdf.