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Violence Against Women The Appropriate Legal Responses

Violence Against Women The Appropriate Legal Responses. The Protection Project at The Johns Hopkins University, School of Advanced International Studies (SAIS) . Dr. Mohamed Mattar Research Professor of Law and Executive Director

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Violence Against Women The Appropriate Legal Responses

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  1. Violence Against Women The Appropriate Legal Responses The Protection Project at The Johns Hopkins University, School of Advanced International Studies (SAIS) Dr. Mohamed Mattar Research Professor of Law and Executive Director Prepared for the workshop on “Violence Against Women: Medical and Legal Responses” at The Suzanne Mubarak Regional Center for Women’s Health and Development, Alexandria, Egypt, February 17, 2009

  2. Violence Against Women: The International Legal Standards

  3. Underlying Principles Violence Against Women is a Form Of Discrimination Violence Against Women is A Violation of Women’s Human Rights

  4. Convention On The Elimination Of All Forms Of Discrimination Against Women (Cedaw) CEDAW: Part I For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Article 1

  5. States Parties condemn and eliminate discrimination Article 2 States Parties take steps in all fields to ensure advancement of women Article 3 Adoption of special measures to accelerate de facto equality and protection Article 4 Adoption of special measures to accelerate de facto equality and protection Article 5 Article 6 Legislative Steps against prostitution and trafficking

  6. CEDAW: Part II Article 7 Equal rights in political and public life Equal rights to represent their government internationally and participate in international organizations Article 8 Article 9 Equal rights on issues of nationality of self and children

  7. CEDAW: Part III Article 10 Equal rights in all fields of education Article 11 Eliminate discrimination in all fields of employment Article 12 Eliminate discrimination in health care; ensure services in connection with pregnancy Article 13 Ensure equality in family benefits, financial aspects and cultural life Article 14 Eliminate discrimination of and ensure development for rural women

  8. CEDAW: Part IV Article 15 Legal equality Article 16 Eliminate discrimination and assure equal rights in family matters and marriage

  9. Reporting Obligations CEDAW: Part V Article 18 1. States Parties undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the present Convention and on the progress made in this respect: (a) Within one year after the entry into force for the State concerned; (b) Thereafter at least every four years and further whenever the Committee so requests. 2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Convention.

  10. CEDAW Status of Ratification Afghanistan Albania Algeria Andorra Angola Antigua and Barbuda Argentina Armenia Australia Austria Azerbaijan Bahamas Bahrain Bangladesh Barbados Belarus Belgium Belize Benin Bhutan Bolivia Bosnia and Herzegovina Botswana Brazil Brunei Darussalam Cyprus Czech Republic Democratic People’s Republic of Korea Democratic Republic of Congo Denmark Djibouti Dominica Dominican Republic Ecuador Egypt El Salvador Equatorial Guinea Eritrea Estonia Ethiopia Fiji Finland France Gabon Gambia Georgia Germany Ghana Greece Grenada Guatemala Guinea Guinea-Bissau Guyana Haiti Honduras Hungary Iceland India Indonesia Iraq Ireland Israel Italy Jamaica Japan Jordan Kazakhstan Kenya Kiribati Kuwait Kyrgyzstan Lao (People's Democratic Republic) Latvia Lebanon Lesotho Liberia Libyan Arab Jamahiriya Liechtenstein Lithuania Luxembourg Madagascar Malawi Malaysia Maldives Mali Malta Marshall Islands Mauritania Mauritius Mexico Micronesia (Federated States of) Monaco Mongolia Montenegro14 Morocco Mozambique Myanmar Namibia Nepal Netherlands New Zealand Nicaragua Niger Nigeria Norway Oman Pakistan Panama Papua New Guinea Paraguay Peru Philippines Poland Portugal Republic of Korea Republic of Moldova Romania Russian Federation Rwanda Saint Kitts and Nevis Saint Lucia Saint Vincent and the Grenadines Samoa San Marino Sao Tome and Principe Saudi Arabia Senegal Serbia Seychelles Sierra Leone Singapore Slovakia Slovenia Solomon Islands South Africa Spain Sri Lanka Suriname Swaziland 185 Parties Sweden Switzerland Syrian Arab Republic Tajikistan Thailand The Former Yugoslav Republic of Macedonia Timor-Leste Togo Trinidad and Tobago Tunisia Turkey Turkmenistan Tuvalu Uganda Ukraine United Arab Emirates United Kingdom of Great Britain and Northern Ireland United Republic of Tanzania Uruguay Uzbekistan Vanuatu Venezuela (Bolivarian Republic of) Viet Nam Yemen Zambia Zimbabwe Bulgaria Burkina Faso Burundi Cambodia Cameroon Canada Cape Verde Central African Republic Chad Chile China Colombia Comoros Congo Cook Islands Costa Rica Côte d'Ivoire Croatia Cuba

  11. CEDAW Status of Ratification THE ARAB STATES Ratified Not Yet Ratified • Palestine • Qatar • Somalia • Sudan • Algeria • Bahrain • Comoros • Djibouti • Egypt • Iraq • Jordan • Kuwait • Lebanon 10. Libya 11. Mauritania 12. Morocco 13. Oman 14. Saudi Arabia 15. Syria 16. Tunisia 17. United Arab Emirates 18. Yemen

  12. Optional Protocol to CEDAW Status of Ratification Colombia Cook Islands Costa Rica Croatia Cyprus Czech Republic Denmark Dominican Republic Ecuador Finland France Gabon Georgia Germany Greece Guatemala Hungary Iceland Ireland Norway Panama Paraguay Peru Philippines Poland Portugal Republic of Korea Romania Russian Federation Rwanda Saint Kitts and Nevis San Marino Senegal Serbia Slovakia Slovenia Solomon Islands South Africa Spain Sri Lanka Sweden 96 Parties Albania Andorra Angola Antigua and Barbuda Argentina Armenia Australia Austria Azerbaijan Bangladesh Belarus Belgium Belize Bolivia Bosnia and Herzegovina Botswana Brazil Bulgaria Burkina Faso Cameroon Canada Italy Kazakhstan Kyrgyzstan Lesotho Libyan Arab Jamahiriya Liechtenstein Lithuania Luxembourg Maldives Mali Mauritius Mexico Moldova Mongolia Montenegro Mozambique Namibia Nepal Netherlands New Zealand Niger Nigeria Switzerland Thailand The Former Yugoslav Republic of Macedonia Timor-Leste Tunisia Turkey Ukraine United Kingdom of Great Britain and Northern Ireland United Republic of Tanzania Uruguay Vanuatu Venezuela (Bolivarian Republic of)

  13. Optional Protocol to CEDAW Status of Ratification THE ARAB STATES Ratified Not Yet Ratified 1. Libya 2. Tunisia • Algeria • Bahrain • Comoros • Djibouti • Egypt • Iraq • Jordan • Kuwait • Lebanon • Mauritania • Morocco • Oman • Palestine • Qatar • Saudi Arabia • Somalia • Sudan • Syria • United Arab Emirates • Yemen

  14. Communication No 5/2005 State Party Challenged: AUSTRIA FACTS: The victim was the subject of various violent attacks from her husband. He repeatedly choked her and threatened to kill her, which the victim reported to the police. The victim was then shot by her husband in front of her two daughters but survived. Subsequently, the husband stabbed and killed the victim while she was on her way to work. Articles Alleged to be Violated: 1, 2, 3, and 5

  15. Communication No 10/2005 State Party Challenged: UNITED KINGDOM FACTS: The victim, a Pakistani national was rejected asylum from the UK. She applied on the grounds that her life was under threat from her ex-husband who had subjected her to marital rape and had threatened to kill her at knife-point. Her appeal was rejected by the UK Courts and the European Court of Human Rights. In both cases, the Court encouraged her to relocate within Pakistan. Articles Alleged to be Violated: 2 and 3

  16. Communication No 4/2004 State Party Challenged: HUNGARY FACTS: Hungarian Roma women had a caesarean operation after going into labor. The caesarean also involved sterilization for which the victim signed a consent form while on the operating table. The victim argued that she had not been sufficiently informed of the sterilization and could not remember signing the consent note. Articles Alleged to be Violated: 10 (h), 12 and 16, paragraph 1 (e)

  17. Communication No 2/2003 State Party Challenged: HUNGARY FACTS: The victim was the subject of domestic violence at the hands of her husband. After moving out the husband broke into her home after locks were changed and severely hurt the victim; she required hospitalization. The husband was granted the right to enter his home because of his right to property. Articles Alleged to be Violated: 2 (a and b), 3, 5(a) and 16

  18. Definition of Violence Against Women United Nations Declaration on the Elimination of Violence Against Women 1993 General Recommendation No. 19 Gender based violence is “violence that is directed against a women becasue she is a women or that affects women disproportionately (No. 6) Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women (Art. 1) Gender based violence which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under international law or human rights conventions is within the meaning of “discrimination against women” under Art. 1 of CEDAW (No. 7) Including, threats of such acts, coercion or arbitrary deprivation of liberty in public or private life (Art. 1) Occurring in the Family (Art 2) • Perpetrated or Condoned • by the State • (Art. 2) Occurring within the general community (Art. 2)

  19. State Obligations United Nations Declaration on the Elimination of Violence Against Women 1993 – Article 4 In light of available resources, take all appropriate measures to promote the PHYSICAL AND PSYCHOLOGICAL REHABILITATION of victims of violence and their children e.g. Assistance in child care and maintenance Counselling Health and Social services RATIFY CEDAW EXERCISE DUE DILIGENCE to prevent, punish investigate and in accordance with national legislation punish acts of VAW, by states or private persons “States should pursue by all appropriate means and without delay a policy of eliminating violence against women” States should not invoke any custom, tradition or religion to avoid this obligation TRAIN the relevant LAW ENFORCEMENT and public officials to sensitize them to the needs of women DEVELOP penal, civil, labor and administrative SANCTIONS IN DOMESTIC LEGISLATION to redress and punish the wrongs to victims ELIMINATE ALL PRACTICES, social and cultural, BASED ON THE INFERIORITY OR SUPERIORITY OF ONE OF THE SEXES, especially in the field of education Develop ACTION PLANS to promote the protection of women, taking in to account COOPERATION as can be provided by NGOs Promote RESEARCH, collect data and compile statistics, on the prevalence of the various forms of VAW, especially domestic violence INCLUDE WHEN SUBMITTING REPORTS under human rights instruments to the United Nations, information on VAW Develop comprehensive, PREVENTIVE approaches, and all measures of a legal, political, administrative and cultural nature that promote the protection of women from violence Facilitate and ENHANCE THE ROLE of the WOMEN”S MOVEMENT and NGOS and cooperate with them to raise awareness and alleviate VAW ENSURE RE-VICTIMIZATIONDOES NOT OCCUR because of laws insensitive to gender considerations, enforcement practices or other interventions

  20. United Nations Resolution A/RES/61/143 on Intensification of Efforts to Eliminate All Forms of Violence Against Women, December 2006 Urges States to take action to eliminate all forms of violence against women by means of a more systematic, comprehensive, multisectoral and sustained approach, adequately supported and facilitated by strong institutional mechanisms and financing, through national action plans, including those supported by international cooperation and, where appropriate, national development plans, including poverty eradication strategies and programme-based and sector-wide approaches, and to this end to: • Empower women, particularly poor women, through, inter alia, social and economic policies that guarantee them full and equal access to all levels of quality education and training and to affordable and adequate public and social services, as well as full and equal rights to own land and other property, and to take further appropriate measures to address the increasing rate of homelessness or inadequate housing for women in order to reduce their vulnerability to violence • Take positive measures to address structural causes of violence against women…including with regard to women who need special attention in the development of policies to address violence, such as women belonging to minority groups, including those based on nationality, ethnicity, religion or language, indigenous women, migrant women, stateless women, women living in underdeveloped, rural or remote communities, homeless women, women in institutions or in detention, women with disabilities, elderly women, widows and women who are otherwise discriminated against • Recognize that gender inequalities and all forms of violence against women and girls increase their vulnerability to HIV/AIDS and ensure that women can exercise their right to have control over, and decide freely and responsibly on, matters related to their sexuality in order to increase their ability to protect themselves from HIV infection, including their sexual and reproductive health, free of coercion, discrimination and violence

  21. A/RES/61/143 (contd.) • Ensure that men and women and boys and girls have access to education and literacy programmes and are educated on gender equality and human rights, particularly women’s rights and their responsibility to respect the rights of others, inter alia, by integrating women’s rights into all appropriate curricula and by developing gender-sensitive teaching materials and classroom practices, especially for early childhood education • Promote awareness and information campaigns on women’s rights and the responsibility to respect them, including in rural areas, and encourage men and boys to speak out strongly against violence against women • Protect women and girls in situations of armed conflict, post-conflict settings and refugee and internally displaced persons settings, where women are at greater risk of being targeted for violence and where their ability to seek and receive redress is often restricted, bearing in mind that peace is inextricably linked with equality between women and men and development • Integrate a gender perspective into national plans of action and establish or strengthen specific national plans of action on the elimination of violence against women, supported by the necessary human, financial and technical resources, including, where appropriate, time-bound measurable targets

  22. Violence Against Women: The Current Legal Map

  23. Types of Sexual Harassment Legislation • Countries Surveyed that Prohibit Sexual Harassment do so as follows: • 35.5 % Gender Equality Legislation • 25.8% Penal Codes • 25.8% Labor Codes • 9.68% Comprehensive Law • 3.23% Related Law (E.g. Human Rights Legislation) • ** Survey so far incorporates 27 countries: Albania, Algeria, Armenia, Azerbaijan, Bangladesh, Belize, Bosnia & Herzegovina, Canada, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Greece, Iceland, Ireland, Israel, Lithuania, Moldova, Pakistan, Philippines, Slovenia, Sweden, Tunisia, Turkey, Ukraine • ** Some countries prohibit sexual harassment in more than one type of legislation

  24. What Constitutes Sexual Harassment? Penal Codes Algeria: Penal Code, Law 04-15; abusing the authority conferred by one’s function or profession in order to give orders to, threaten, impose constraints or exercise pressure on another person for the purpose of obtaining sexual favors. A person convicted is subject to imprisonment of two months to one year and a fine of 50,000 to 100,000 dinars. Armenia: Penal Code, Article 140;“Forcing a person to engage in sexual intercourse, homosexuality, lesbianism or other sexual actions, by means of black mail, threats to destroy, damage or seize property, or using financial dependence or other dependence of the aggrieved, is punishable by a fine in the amount of 200 to 300 minimal salaries, correctional labor for up to two years, or imprisonment for the term of up to one year” Azerbaijan: Criminal Code, Article 151; Coercion of the person to the sexual relations, buggery or to committing of other actions of sexual nature by threat of destruction, damage or withdrawal of property or with use of material or other dependency of the victim. Bangladesh: Penal Code Section 509; Intent to insult the modesty of any women, utters any word, make any sound or gesture or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object, shall be seen, by such women, or intrudes upon the privacy of such women, shall by punished with simple imprisonment for a term which may extend to one year or with fine or with both France: Criminal Code 222-33; The act of harassing anyone using orders, threats, or constraint, in order to obtain favors of a sexual nature, by a person abusing the authority that functions confer on him. Greece: Criminal Code,Article 337; The perpetration of indecent gestures or proposals regarding indecent act. Tunisia: Penal Code, Law No. 2004-73; Persistent harassment of another person through humiliating or offensive actions, words or gestures that are intended to cause the victim to submit to one’s one sexual overtures or those of a third party or to weaken the victim’s efforts to resist those overtures. A person shall be subject to imprisonment of one year, and a fine of three thousand dinars and doubles the punishment where the victim is a child, or a person with mental disabilities. Turkey: Penal Code, Art 105; Exploitation of a hierarchical or work relationship shall be subject to three years imprisonment; considered an aggravated offense.

  25. Gender Equality Legislation Bosnia & Herzegovina: Law on Gender Equality, 2003; “is any behavior that in word, action or psychological effect of a sexual nature in intent or effect inflicts injury on the dignity of a person or gives rise to intimidation, hostility, or demeaning, threatening or similar situations and which is motivated by belonging to another gender or different sexual orientation and which to the victim represents inappropriate physical, verbal, suggestive or other behavior.” Iceland: Act on the Equal Status and Equal Rights of Women and Men, 2000; “Sexual behavior that is unreasonable and/or insulting and against the will of those who are subjected to it, and which affects their self-esteem and is continued in spite of a clear indication that this behavior is unwelcome. Behaviour can be physical, oral or symbolic.” Moldova: Law on Ensuring Equal Opportunities for Women and Men, 2006; “any form of physical, verbal, or nonverbal behavior, of sexual nature, which abases a person or creates an unpleasant, hostile, degrading, humiliating, or insulting environment.”

  26. Labor Codes Croatia: Labor Act No. 137/2004; “shall mean any verbal, non-verbal or physical conduct of a sexual nature intended to, or actually undermining the dignity of a person seeking employment and worker and creating an intimidating, hostile, degrading or offensive environment” Greece: Law No. 3488 Implementing the Principle of Equal Treatment of Men and Women as regards Access of Employment, Vocational Training and Promotion, the terms and conditions of labor, 2006; “when any kind of undesirable verbal, non-verbal or physical behavior of sexual nature is manifested, aiming at or resulting in the insult to an individual’s dignity, especially by creating an intimidating, hostile, ignominious, humiliating or aggressive environment”

  27. A Comprehensive Law • Philippines, Anti-Sexual Harassment Act of 1995 • Work, education or training-related sexual harassment is committed by: • “any person who, having authority, influence, or moral ascendancy over another in a work, training, or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act.” • In a work-related or employment environment, sexual harassment is committed when: • “(1) The sexual favor is made as a condition in the hiring or in the employment, re-employment, or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant sexual favors results in the limiting, segregating or classifying the employee in a way which would discriminate, deprive, or diminish employment opportunities or otherwise adversely impact said employee. • (2) The above act would impair the employee’s rights or privileges under existing labor laws; or • (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.” • In an education or training environment, sexual harassment is committed when: • “(3) the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance, or other benefits, privileges, or considerations; or • (4) when the sexual advance result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.”

  28. Directive 2002/73/EC Harassment: “where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment” Sexual Harassment: “where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment” • Harassment and sexual harassment within the meaning of this Directive shall be deemed to be discrimination on the grounds of sex and therefore prohibited. • A person’s rejection of, or submission to, such conduct may not be used as a basis for a decision affecting that person. • ** Directive is to be implemented by all Member States no later than October 5, 2005.

  29. Important Provisions in Sexual Harassment Legislation Gender Equality Laws • The employer shall anchor appeal mechanisms on gender-related claims in the collective labour contract. • (Albania, Law on an Equal Gender Society, No. 9198, 2004) • The relevant authorities, education institutions and other juristic persons…shall take no disciplinary or other punitive measures against a person by reason that that person has brought proceedings for discrimination, harassment or sexual harassment or has given evidence in relation to discrimination, harassment or sexual harassment. • (Bosnia & Herzegovina, Law on Gender Equality, 2003, Article 6) • Persons who have been exposed to sexual harassment…may be awarded compensation. In connection with this special importance shall be attached to whether a relationship of dependence existed between the person harassed and the harasser. • (Denmark, Gender Equality (Consolidation) Act, 2002) • Educational institutions must prepare a gender equality plan annually in cooperation with staff and student representatives.Special attention must be given to measures to ensure the prevention and elimination of sexual harassment and gender-based harassment. • (Finland, Act on Equality Between Men and Women, Law No. 609/1986 as amended in 2005) • Employers and Directors of institutions and social activities shall take measures to prevent employees, students and clients from being subjected to sexual harassment in the workplace, during social activities or within schools. • One event may constitute sexual harassment if it is serious. • If a superior is charged with sexual harassment, he/she will be deemed incompetent to take decisions on working conditions of the plaintiff and a higher superior shall take such decisions instead during the investigation of the case. • (Iceland, Act on the Equal Status and Equal rights of Women and Men, 2000, Article 17)

  30. Labor Laws • Sexual harassment constitutes discrimination on the grounds of sex and is therefore prohibited. • The fact that someone rejects or succumbs to a similar behavior cannot be used as basis to take a decision affecting the said individual. • (Greece, Law No. 3488 Implementing the Principle of Equal Treatment of Men and Women as regards Access of Employment, Vocational Training and Promotion, the terms and conditions of labor, 2006) • (1) The employer shall be obliged to provide such a working environment in whichnone of the workers is subject to employer’s, superior’s or co-worker’s undesired treatment of sexual nature including undesired physical, verbal or nonverbal treatment or other sexually based behaviour which creates intimidating, hostile or humiliating relationships andenvironment at work and offends the dignity of men and women at work. • (2) The concerned worker’s rejection of the treatment referred to in paragraph (1)may not represent the reason for discrimination in employment and at work. • (3) If in case of dispute the worker states facts which justify the assumption that theemployer behaved contrary to paragraphs (1) and (2), it is the employer who has to supply theevidence. • (Slovenia: The Employment Relationships Act, 2003, Article 45) Comprehensive Laws • Any person who directs or induces another to commit any act of sexual harassment, or who cooperates in the commission thereof by another without which it would not have been committed shall also be held liable. • Administrative sanctions shall not bar the prosecution in the proper courts for unlawful sexual harassment. • The employer or head of office, educational or training institution shall be jointly liable for damage arising from the acts of sexual harassment committed in the employment, education or training environment if the employer or head of office, educational or training institution is informed of the such acts by the offended party and no immediate action is taken thereon. • (Philippines: Anti-Sexual Harassment Act of 1995)

  31. Domestic Violence as Prohibited in a Comprehensive Act Albania: Measure Against Violence in Family Relations Law No. 9669 (2006) Australia: Domestic Violence (Amendment) Act (1996) Bahamas: Sexual Offenses and Domestic Violence Act (1991) Bosnia and Herzegovina: Law on Protection from Domestic Violence (2005) Bulgaria: Protection Against Domestic Violence Act Cambodia: The Prevention of Domestic Violence and the Protection of Victims (2005) Canada: Domestic Violence Protection 2000 Georgia: Law of Georgia on Elimination of Domestic Violence, Protection of and Support of Its Victims Greece: Domestic Violence and other Provisions Law No. 3500 (2006) Ghana: Domestic Violence Act (2007) Hong Kong: Domestic Violence Ordinance Cap 189 (1986)

  32. Domestic Violence as Prohibited in a Comprehensive Act (contd.) India: The Protection of Women from Domestic Violence Act (2005) Ireland: Domestic Violence Act (1996) Malaysia: The Domestic Violence Act (1994) Mauritius: The Protection from Domestic Violence (Amendment) Bill No. XIV (2004) Mongolia: Law of Mongolia Against Domestic Violence (1999) New Zealand: Domestic Violence Act 1995 (Act No. 86 of 1995) (1995) Pakistan: The Prevention of Domestic Violence Bill (2005 with 2006 Amendment) Romania: Law to Prevent and Fight against Domestic Violence Sri Lanka: Prevention of Domestic Violence Act, Law No. 34 (2005) United Kingdom: Domestic Violence, Crime and Victims Act (2004)

  33. Domestic Violence as Prohibited in a Penal Code Sweden: Chapter 4 Section 4a; A person who commits criminal acts as defined in Chapter 3, 4, and 6 against another person having, or have had, a close relationship to the perpetrator shall, if each of the acts formed a part of an element in a repeated violation of that person’s integrity and suited to severely damage that person’s self-confidence, be sentenced for gross violation of integrity to imprisonment for at least six months and at most six years. If the acts described in the first paragraph were committed by a man against a woman to whom he is, or has been, married or with whom he is, or has been cohabiting under circumstances comparable to marriage, he shall be sentenced for gross violation of a woman’s integrity to the same punishment. Portugal: Penal Code, Article 152; who, with his care, his custody, under the responsibility of its management or education, or working at your service, particularly minor or helpless person by reason of age, disability, illness or pregnancy, and: inflict physical or mental abuse or cruel treatment, use in hazardous activities, overload with excessive work, is punishable with imprisonment from 1 to 5 years if that is not punishable by Article 144. Norway: Penal Code, Section 219; Any person who threats, duress, deprivation of liberty, violence or any other wrong grossly or repeatedly maltreats: his former or present spouse, his former or present spouse’s kin in the direct line of descent, his or her kin in the line of ascent, any person in his or household, or any person in his or her care. If the maltreatment is gross or the aggrieved person dies or sustains considerable harm to body or health as a result of the treatment, the penalty shall be imprisonment for a term not exceeding six years.

  34. Comprehensive Violence Against Women Laws United States of America Violence Against Women Act (1994) • Safe Streets for Women • Federal Penalties for Sex Crimes: Mandatory Restitution for Sex Crimes; Authorization for Federal victim’s counselors • Grants to combat violent crimes against women • Safety for women in public transit and public parks via grants to prevent crime • New evidentiary rules concerning the sexual history in criminal and civil cases • Assistance to Victims of Sexual Assault: Education and prevention grants to reduce sexual assaults against women; Training programs; Confidentiality of communications between sexual assault or domestic violence victims and their counselors; Information programs • Safe Houses for Women • National Domestic Violence Hotline • Encouragement of arrest policies in domestic violence cases • Grant’s for battered women’s shelters • Youth education and domestic violence • Establishment of community programs on domestic violence • Confidentiality of abused person’s address • Rural domestic violence enforcement assistance • Civil rights for women • Attorney’s fees • Privacy for rape victims

  35. Violence Against Women Act 1994 (contd.) • Equal Justice for Women in the Courts Act • Grants for the education and training of judges and court personnel in state courts and federal courts • Violence Against Women Act Improvements • Enforcement of restitution orders through the suspension of federal benefits • National baseline study on campus sexual assault • Report on battered women’s syndrome, confidentiality of addresses for victims of domestic violence, and on record keeping relating to domestic violence • National Stalker and domestic violence reduction • Grant program • Criminal information databases • Technical assistance and trainings • Recommendations for intrastate communication • Protections for battered immigrant women and children • Alien petitioning rights for immediate relative or second preference status • Use of credible evidence in spousal waiver applications • Suspension of deportation

  36. Violence Against Women Act 2000 • Strengthening Law Enforcement to Reduce Violence • Full faith and credit enforcement of protection orders. • Dating violence • Strengthening Service to Victims of Violence • Study of workplace effects from violence against women • Study of unemployment compensation for victims of violence against women • Enhancing protections for older and disabled women from domestic violence • Limiting the Effects of Violence on Children • Safe havens for children pilot program • Reports on effects of parental kidnapping laws in domestic violence cases • Strengthening Education and Training to Combat Violence Against Women • Domestic Violence Task Force • Battered Immigrant Women • Equal access to immigration petitions of Violence Against Women Act 1994 for all qualified battered immigrant self-petitioners • Access to services and legal representation for battered immigrants • Annual country reports on human rights practices • Interagency taskforce to monitor and combat Trafficking • Protection and assistance for victims of trafficking • Minimum standards for the elimination of trafficking • Assistance to foreign countries to meet minimum standards • Strengthening prosecution and punishment of traffickers Trafficking Victims Protection Act 2000

  37. Violence Against Women Act 2005 • Enhancing Judicial and Law Enforcement Tools to Combat Violence Against Women • Stalker database and the prevention of cyber stalking • Prohibiting violence in special maritime and territorial jurisdiction • Enhancing culturally and linguistically specific services for victims of domestic violence, dating violence, sexual assault and stalking • Strengthening America’s Families by Preventing Violence • Public Awareness Campaign • Strengthening the Healthcare System’s Response to Violence • Training and education of health care professionals in domestic and sexual violence • Grants to foster public health responses • Research on effective interventions in the healthcare setting • Housing Opportunities and Safety for Battered Women and Children • Transitional housing assistance grants for victims • Providing Economic Security for Victims of Violence • Grant for a National Resource Center on Workplace Reponses to assist victims • Access to Violence Against Women Act protection regardless of manner of entry • Domestic violence information and resources for immigrants and regulation of international marriage brokers • Sharing of certain information International Marriage Broker Regulation 2005

  38. Violence Against Women in Human Rights Legislation Arab Charter of Human Rights 2004 League of Arab States • Article 33 • The family is the natural and fundamental group unit of society; it is based on marriage between a man and a woman. Men and women of marrying age have the right to marry and to found a family according to the rules and conditions of marriage. No marriage can take place without the full and free consent of both parties. The laws in force regulate the rights and duties of the man and woman as to marriage, during marriage and at its dissolution. • The State and society shall ensure the protection of the family, the strengthening of family ties, the protection of its members and the prohibition of all forms of violence or abuse in the relations among its members, and particularly against women and children. They shall also ensure the necessary protection and care for mothers, children, older persons and persons with special needs and shall provide adolescents and young persons with the best opportunities for physical and mental development.

  39. Violence Against Women in National Constitutions Constitution,Iraq Article 29 (4) All forms of violence and abuse in the family, school, and society shall be prohibited.

  40. The Legal Status of Violence Against Women in The Arab World • Two issues of concern: • Lack of a Comprehensive Legal Framework To Combat Violence Against Women in all its Forms In The Arab World. • A. Countries with specific penal code provisions • E.g. Bahrain • - Article 316: Adultery • - Article 322: Abortion • - Article 324: Prostitution • - Article 334: Murder of a spouse in the case of adultery • - Article 336: Battery • - Article 344: Rape • E.g. Iraq: • - Paragraph 41, provides that there is no crime in a case where a person is exercising his right to discipline his wife. • - Paragraph 377 punishes the adulteress (wife) regardless of the place where the act has been committed, while the husband is punished for adultery only if he commits the act in the marital home. • - Paragraph 380 provides for a minor sentence of imprisonment not to exceed one year in cases where the husband induces his wife to commit adultery. • - Article 409 provides for a short imprisonment sentence not to exceed three years when the husband murders his wife upon finding her committing the act of adultery

  41. B. Countries with comprehensive laws to combat a particular form of violence against women • E.g. Jordan: Law on the Prevention Against Domestic Violence 2008 • Recognizing domestic violence as a crime • Allowing for mediation and arbitration by family members through Family Reconciliation Committees • Injunction in accordance with protective order • Measures to protect the victim • E.g. Tunisia: Law No. 73 of 2004 on the Criminalization of Sexual Harassment • C. Countries currently considering a draft law on violence against women • E.g. Bahrain: Draft Law on the Protection of Family from Violence • A comprehensive definition of what constitutes violence in the family • Protective Measures • Medical Care • Providing information • Elimination of discrimination against women • Social integration • Establishment of a National Committee • Drafting an Action Plan • Attendance at law suits filed on behalf of domestic violence victims • Presentation in national and international workshops on combating violence against women • Enhancing public awareness, especially by utilizing the media • Encouragement of research, data collection and information gathering • Providing the victim with legal aid • Protective orders • Recognition of domestic violence as a crime that warrants an enhanced penalty

  42. E.g. Saudi Arabia: Draft Law on the Prohibition of Infliction of Harm within the Family • E.g. Lebanon: Draft Law on the Protection of Women Against Domestic Violence • Recognition of violence (physical, sexual, psychological or economic) as a crime • The right of a victim to file a complaint • Police must respond promptly and effectively to a complaint • Removal of victim to a place of refuge or safety • Issuance of a protective order prohibiting the perpetrator from contacting his wife • Establishment of a family court • Harmful Customary Practices that May Constitute A Threat To Women’s Rights Under Islamic Law • Right of Husband to Discipline his Wife • Obligation of Wife to Obey Husband • Execution of a Marriage Contract on Behalf of Female • Forced Marriage • Transactional Marriage • Honor Killing

  43. Violence Against Women: Elements of a Model Law

  44. A three ‘P’ Approach Prosecution Prevention Protection

  45. Prosecution I. Definition should include all forms • Legislation should: • apply to all forms of violence against women, including but not limited to: • • domestic violence; • • sexual violence, including sexual assault and sexual harassment; • • harmful practices, including early marriage, forced marriage, female genital mutilation, female infanticide, prenatal sex-selection, virginity testing, HIV/AIDS cleansing, so-called honour crimes, acid attacks, crimes committed in relation to bride-price and dowry, maltreatment of widows, forced pregnancy, and trying women for sorcery/witchcraft; • • femicide/feminicide; • • trafficking; and • • sexual slavery; and • recognize violence against women perpetrated by specific actors, and in specific contexts, including: • • violence against women in the family; • • violence against women in the community; • • violence against women in conflict situations; and • • violence against women condoned by the State, including violence in police custody and violence committed by security forces. Good Practices in Legislation on Violence Against Women (2008) Released by the UN Division for the Advancement of Women and the UN Office of Drugs and Crime

  46. II. Serious Penalties for Perpetrators Violence in the family is an aggravated offense that warrants an enhanced penalty over other forms of violence (Cyprus, Act on Violence in the Family) Handbook for Parliamentarians, Parliaments United in Combating Domestic Violence Against Women, Released by the Parliamentary Assembly of the Council of Europe A person who commits criminal acts as defined in Chapter 3, 4, and 6 against another person having, or have had, a close relationship to the perpetrator shall, if each of the acts formed a part of an element in a repeated violation of that person’s integrity and suited to severely damage that person’s self-confidence, be sentenced for gross violation of integrity to imprisonment for at least six months and at most six years. If the acts described in the first paragraph were committed by a man against a woman to whom he is, or has been, married or with whom he is, or has been cohabiting under circumstances comparable to marriage, he shall be sentenced for gross violation of a woman’s integrity to the same punishment. (Sweden, Penal Code, Chapter 4 Section 4a)

  47. III. Enhance Women’s Access to Justice a. Legal Clinics Legal clinics—public interest bodies specializing in the provision of legal information, counsel, and assistance to disadvantaged populations—constitute a highly effective, successful and increasingly global means of combating the lack of access to justice for marginalized populations throughout the world The Domestic Violence Clinic provides legal services to victims of domestic violence and sexual assault. Third-year law students receive course instruction about domestic violence at the University of Oregon School of Law, and receive law school credit while representing Legal Aid clients in court cases involving restraining orders and stalking orders. E.g. Domestic Violence Legal Clinic: A collaboration between the University of Oregon School of Law and Lane County Legal Aid and Advocacy Center(http://lclac.org/dv.htm)

  48. b. Violence against women as the basis for filing an action for divorce If the respondent has behaved in such a way that the petition cannot reasonably be expected to live with the respondent, this may be used as one of the grounds for divorce: The test is twofold: (a) The first test is unreasonable behaviour. This is an objective test. The court will look at the behaviour itself and judge whether it is unreasonable. The sort of conduct that is unreasonable will depend on the circumstances. This does not necessarily include physical violence. Verbal abuse, threats, insults, nagging, demanding, or refusing sexual intercourse unreasonably, intimate relationships with others, cruelty and failure to provide money etc. can amount to unreasonable behaviour. There is no need to prove that the petitioner intended to inflict misery on the petitioner. (b) The second test is whether the petitioner can reasonably be expected to live with the respondent. This is an objective test. The court will look at the history of the marriage as well as to the personalities of the spouses. A type of behaviour may be reasonable within one marriage but not within another marriage. If the parties to a marriage have lived together for a period of six months or more from the last incident mentioned in the petition, the petitioner will have to explain to the court the reason why they have continued to live together. If there is a proper explanation, the court will grant a decree of divorce or judicial separation. (England & Wales, The Family Law Act 1996)

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