Rape and the Istanbul Convention

Rape and the Istanbul Convention Dr Marceline Naudi Marceline Naudi

Negotiations… Yes Maybe Possibly… Impossible! No We will not agree! We cannot be expected… It’s not possible… What about the women? WHAT Definitely Maybe No Yes Perhaps Compromise… Better than nothing Not good enough We’ll see… We will not sign unless… Marceline Naudi

That’s a lot of words! 12 chapters, 77 Articles, several with sub-clauses – 37 pages of words... People’s lives? Women? PEOPLE’S and a further 387 paragraphs in 58 pages of words in the Explanatory Report... Marceline Naudi

overview 1. What are we talking about? Rape and sexual violence! 2. Quick overview of the Convention 3. Specific articles that mainly deal with rape Marceline Naudi

Chapter V article 36 a) engaging in non‐consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object; b) engaging in other non‐consensual acts of a sexual nature with a person; c) causing another person to engage in non‐consensual acts of a sexual nature with a third person. …not only stranger assault, but also intimate partners and other people known to the victim… Marceline Naudi

It goes on to state that consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances and that absence of physical resistance by the victim does NOT signify consent. Assessment of whether or not consent was freely given must recognise the wide range of behavioural responses to sexual violence and rape which victims exhibit and should not be based on assumptions of typical behaviour in such situations. It is equally important to ensure that interpretations of rape legislation and the prosecution of rape cases are not influenced by gender stereotypes and myths about male and female sexuality. Marceline Naudi

Chapter I – Purposes, definitions, equality and non-discrimination, general obligations Art 1-6 violence against women and domestic violence discrimination against women protect women against all forms of violence prevent, prosecute and eliminate Violence against Women and Domestic Violence Marceline Naudi

it plans to do this by: comprehensive framework, policies and measures for the protection of and assistance to all victims of violence against women and domestic violence international co-operation support and assistance to organisations and law enforcement agencies to effectively co-operate in order to adopt an integrated approach to eliminating violence against women and domestic violence. Marceline Naudi

Cornerstones of the convention preventing violence, protecting its victims and prosecuting the perpetrators, together with the requirement to co-ordinate any such measures through comprehensive policies, and at heart, it is a renewed call for greater equality between women and men. Marceline Naudi

without discrimination on any ground such as: sex, gender, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status, or other status. Marceline Naudi

Chapters… Chapter I – Purposes, definitions, equality and non-discrimination, general obligations Art 1-6 Chapter II – Integrated policies and data collection Art 7-11 Chapter III – Prevention Art 12-17 Chapter IV – Protection and support Art 18-28 Chapter V – Substantive law Art 29-48 Chapter VI – Investigation, prosecution, procedural law and protective measures Art 49-58 Marceline Naudi

Chapter VII – Migration and asylum Art 59-61 Chapter VIII – International co-operation Art 62-65 Chapter IX – Monitoring mechanism Art 66-70 Chapter X – Relationship with other international instruments Art 71 Chapter XI – Amendments to the Convention Art 72 Chapter XII – Final clauses Art 73-77 Marceline Naudi

Chapter II – Integrated Policies and Data Collection directly addresses the coordinated approach needed to tackle VAW and DV a ‘holistic response to violence against women’ first legally binding instrument to provide for comprehensive measures and integrated policies ‘all relevant actors, such as government agencies, the national, regional and local parliaments and authorities, national human rights institutions and civil society organisations.’ ‘allocate appropriate financial and human resources for the adequate implementation of integrated policies, measures and programmes’ Marceline Naudi

Chapter III – Prevention Art 12-17 eradicate prejudices, customs, traditions and all other practices which are based on the idea of the inferiority of women or on stereotyped roles for women and men encourages all members of society, especially men and boys, to contribute actively to prevention regular awareness‐raising campaigns appropriate training for the relevant professionals dealing with victims or perpetrators programmes aimed at teaching perpetrators of domestic violence to adopt non‐violent behaviour in interpersonal relationships Marceline Naudi

Chapter IV – Protection and support Art 18-28 Legislative or other measures are taken to protect all victims and to ensure appropriate mechanisms are in place to provide for effective co‐operation between all relevant state agencies. Both short and longer term measures: sufficient and accessible shelters; state‐wide 24/7 telephone helplines free of charge; appropriate, easily accessible rape crisis centre; legal and psychological counselling; access to health care and social services; financial assistance, housing, education, training and assistance in finding employment. Marceline Naudi

And more… professionals need to be trained specialised services for women and their children adequately resourced rights and needs of child-witnesses are emphasised third party reporting is encouraged all services and measures taken should be based on a gendered understanding of violence against women and domestic violence and focus on the human rights and safety of the victim. Marceline Naudi

Chapter V – Substantive Law Art 29-48 provide victims with adequate civil remedies against the perpetrator and against state authorities if they have not protected them, and to be granted compensation, within a reasonable time, for injuries sustained. custody/visitation of children, ensuring that incidents of violence are taken into account and that the rights and safety of the victim or children are not jeopardised. criminalises various forms of violence: psychological violence, stalking, physical violence, sexual violence, including rape, forced marriage, female genital mutilation, forced abortion and forced sterilisation, sexual harassment (criminal or other legal sanction). Marceline Naudi

And more… • culture, religion and so-called honour cannot be used as justification • offences are punished in a way that acknowledges their seriousness and that sanctions are effective, proportionate and dissuasive • aggravating circumstances, including if the offence is committed within a present or past intimate relationship, if it was committed repeatedly or the perpetrator had been previously convicted for similar offences, and if committed in the presence of a child etc. • prohibits mandatory dispute resolution processes such as mediation or conciliation. Marceline Naudi

Chapter VI – Investigation, prosecution, procedural law and protective measures Art 49-58 investigations and judicial proceedings are carried out without undue delay; the responsible law enforcement agencies respond promptly and appropriately; an assessment of the lethality risk, the seriousness of the situation and the risk of repeated violence is carried out (including possession or access to firearms); competent authorities are granted the power to order a perpetrator of domestic violence to vacate the residence of the victim; appropriate restraining or protection orders are available to victims. Marceline Naudi

And more… ex parte and ex officio proceedings counsellors to assist/ support victims during proceedings right to legal assistance and to free legal aid for victims protection of the victim’s rights and interests their own protection and that of their families/witnesses Marceline Naudi

Chapter VII – Migration and Asylum Art 59-61 in the event of a relationship break-up, and as per various conditions, they are given a residence permit in their own right obtain a suspension of expulsion proceedings initiated in relation to a residence status dependent on that of the spouse or partner gender‐based violence against women is recognised as a form of persecution, allowing complementary/subsidiary protection to be granted develop gender‐sensitive reception procedures and support services for asylum‐seekers gender guidelines and gender‐sensitive asylum procedures Marceline Naudi

Chapter VIII – International co-operation Art 62-65 • preventing, combating and prosecuting acts of violence • protecting and providing assistance to victims • investigations or proceedings • enforcing relevant civil and criminal judgments issued by the judicial authorities of Parties, including protection order • measures relating to persons at risk • information • Data Protection Marceline Naudi

Chapter IX – Monitoring mechanism Art 66-70 establishes the monitoring body, “GREVIO” as a group of experts on action against violence against women and domestic violence, composed of a minimum of 10 members and a maximum of 15 members, taking into account a gender and geographical balance, as well as multidisciplinary expertise, and will establish its own rules of procedure. It will devise questionnaires for parties to fill in; receive, analyse, evaluate information; write reports; make recommendations; and where necessary hold country visits. Marceline Naudi

Chapter X – Relationship with other international instruments Art 71 clarifies that this Convention does not affect obligations parties may have in relation to other international instruments, and that parties may also cooperate bilaterally or multilaterally in relation to this Convention. Chapter XI – Amendments to the Convention Art 72regulates how amendments may be made to the convention. Chapter XII – Final clauses Art 73-77 establishes that this Convention does not prejudice any existing national laws or other binding international instruments that are or may come into force that provide for even more favourable conditions. It further explains how/when the Convention will come into force, and what reservations may be made on signing/ratifying the convention. Marceline Naudi

CEDAW comments on Malta Report • The Committee urges the State party to define the crimes of rape and violent assault as crimes against the physical and mental integrity of women and as a form of sex and gender based-discrimination that seriously inhibits women’s ability to enjoy their human rights and fundamental freedoms on a basis of equality with men. If further urges the State party to review the definition of rape so as to place the lack of consent at its centre. Marceline Naudi

Final message… Protection of women against violence in the family or domestic unit should be placed at the highest political level in all Council of Europe member states, and should consequently be allocated the necessary financial resources. All member states should be committed to preventing this type of violence, to protect its victims and provide adequate services, legal redress and compensation as well as to prosecute, punish and provide treatment to the perpetrators. Marceline Naudi

Women survivors of male violence Women experiencing male violence are not passive victims; they develop a wide range of strategies to avoid violence, to preserve their dignity, to protect their children, in short, to restart their lives. Their stories are stories of resistance, about the resistance that is possible given the social, cultural and economic situation of each woman. ... Women’s organisations, while advocating for policies combating male violence against women, should also work with all women to strengthen their courage and creativity. Marceline Naudi

Rape and the Istanbul Convention