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  This module is a resource for lecturers  

 

Topic 3 - Who has rights in this situation? Prosecuting domestic violence and sexual violence - a human rights approach

 

This section on domestic violence and sexual violence engages with gender discrimination and stereotypes. This includes attention to the fact that gendered stereotypes and discrimination is a cause, consequence, and manifestation of violence against women. The entrenched nature of gendered stereotypes, and the fact that many forms of gendered discrimination are naturalized as everyday practices, contributes to the persistence of the problem and serves as an obstacle to legal and other initiatives achieve gender equality. Stereotypes relating to two types of crime - domestic violence (which covers intimate partner violence and violence in the family), and stereotypes about the situations when sexual contact is acceptable - tend to disadvantage women and girls in criminal justice processes, leading to impunity for acts of violence. For further materials on this, see Module 9 on Gender in the Criminal Justice System.

This section has the most potential for exploring complex ideas about the nature of law - what it means to have a legal right, and what it means to protect that right, how social and legal institutions function to protect individual rights and the rule of law.

This creation and implementation of law is also a function of politics and society - whose rights are respected? What rights are respected? Are there situations where an individual gives up their rights to physical and mental integrity? How easy or difficult is it to take remedial action if an individual's right to physical and mental integrity are violated? 

Lecturers could take this as an opportunity to investigate how the crimes of domestic violence, and rape and sexual violence are defined in their jurisdiction; how these crimes are investigated and prosecuted, and whether there is critical engagement to challenge and transform these laws and practices. These kinds of case studies could be relevant for students of sociology, law, history and anthropology. It is fascinating to consider how law relating to domestic violence and sexual violence was formed and how legal institutions and conceptual frameworks have persisted over time. Thinking about how legal institutions and the attitudes of those working in the criminal justice system need to change, to be humane and responsive to the realities of women and girls, is potentially very exciting for students of law, philosophy, sociology, politics, or media studies.

While domestic violence and sexual violence are often considered to be two separate issues, in reality, there is an overlap. Acts of rape and sexual violence are often part of the violence inflicted in intimate partnerships, marriages, and in the family. In many jurisdictions, it has been a legal impossibility for a man to rape his wife, as the legal contract was deemed to be a permanent consent to sexual contact: this injustice persists in many jurisdictions in the world. A similar injustice takes place where an alleged rapist can escape prosecution if he marries his victim. Advocacy has taken place in many places in the world to transform these legal structures that make impunity for violence part of the legal construct of marriage.

 

Implementing a comprehensive response to domestic violence, including effective criminal law

As with child marriage, the persistence and social acceptance of domestic violence is rooted in the idea that women's and girls' priorities and role in life should be their intimate relationships with men, and that these relationships should be sustained whatever the cost to the woman, and no matter how abusive the man is. Women are significantly overrepresented as victims of homicide perpetrated exclusively by an intimate partner: 82 per cent female victims versus 18 per cent male victims (UNODC, 2018).

The idea set out in the previous Topic about State responsibility for the criminal behaviour of non-state actors is very clearly illustrated in the situation of domestic violence:

Often people ask, about women in a situation of domestic violence - "Why didn't she leave?"

When faced with the question - "Why didn't she leave?" It might be best first to respond - "Why does the man continue to inflict violence? Why has he not been investigated, arrested and prosecuted? Who could do something about this situation - and who is legally and morally obliged to act?" This question may then become the focus of discussion. However, if the "why didn't she leave?" question persists, then the answers can be complex.

First, often a woman or girl will be too afraid to leave - domestic violence is often accompanied with threats of increased violence, against her, or someone she loves. It is notable that in two cases in international human rights law relating to domestic violence, the violent husband was not only violent to his wife, but threats escalated and in one case, Opuz v Turkey (No. 33401/02), the abusive husband went on to kill the wife's mother, and in another case, Gonzales Carreno v Spain (Communication No. 47/2012), the abusive husband killed the child, having told his wife that he was going to take away what mattered most to her. Research shows that the moment when a woman has made the decision to leave the relationship, and started to take steps to do so, is the moment when she is most at risk. Given that a man has started a pattern of violent behaviour, threats to escalate the violence are likely to be believed. Similarly, if the woman reports violence to the police, that may also provoke more violence.

Second, a woman or girl may be dependent on the violent man for her housing and income - particularly if there are children born of the relationship, and she has no other opportunities for work because she stays at home to take care of the children. This kind of economic dependence is even more acute where other laws in the country - for example, rules about inheritance or ownership of land and property, or rules that require a husband to give permission for his wife to work - mean that a woman does not have access to independent economic means and the control over her own life that this brings.

Third, shame may stop a woman or girl from making her situation known and taking steps to leave her abuser, particularly in cultures which promote female submission to male control - violence may be part of what people expect as normal in relationships. For more information about attitudes and myths that support domestic violence, see this factsheet from Women's Aid.

Children involved in violent relationships face a range of serious consequences. Domestic violence often begins during pregnancy - which has serious health issues for the pregnant woman or girl, and the foetus. Witnessing violence is in itself a form of violence against children, and has serious ramifications for child well-being and development. A man who is violent to a partner is often also violent to children, putting them at further risk. Violent men often use children as a way of threatening their partners, using psychological violence, for example threatening to take the children away from their mother, or saying that the children will be taken into care if the woman reports the violence.

Therefore, for various reasons, women and girls may stay in violent relationships. Does this mean that this is their problem - that they have to face the consequences?

According to international human rights law, and relevant United Nations standards and norms on crime prevention and criminal justice, the answer is no. International human rights law and United Nations standards - such as the United Nations General Assembly Declaration on the Elimination of Violence against Women (GA Resolution 48/104), and General Recommendation 19 and 35 from the CEDAW Committee, as well as the United Nations Updated Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice (GA resolution 65/228) - mandate a range of laws, policies and practices that all States are legally required to implement, as part of their duty to prevent, investigate and punish all forms of violence against women. Many of these initiatives are based on good practices developed by feminist civil society organizations, based on their grass-roots initiatives to help women and girls in need (for additional reading on the UN standards and norms, see Module 1 of this E4J University Series)

Recognizing domestic violence as a crime and applying the criminal law

Domestic violence involves criminal acts - and the police and judiciary are required to intervene as part of their duty to uphold the rule of law: criminal laws around the world require action to be taken on physical assaults. Where domestic violence has been accepted as a normal part of intimate relationships and family life, often law reform processes will lead to new, specific laws on domestic violence being adopted to make it clear that these acts are crimes. These laws usually cover physical and other forms of violence, and sometimes these also cover psychological violence and coercive control. Economic violence (or financial abuse) is also a part of some the definition of domestic violence in some national laws, for example, taking a woman's money, refusing to give money for basic living expenses for the woman and her children, or preventing a woman from entering or staying in the paid workforce.

However, for laws to be effective, police, prosecutors and judges need to be trained on the law and the effectiveness of their work needs to be monitored. UNODC has developed a range of manuals to train criminal justice professionals, including the Resource Guide on Strengthening Judicial Integrity and Capacity and the Handbook on Police Accountability, Oversight and Integrity. Given that reporting violence is often dangerous, it is important that there are mechanisms for witnesses or police officers to make reports and initiate complaints and investigations. States also need to provide appropriate funding for police to be able to carry out this work. This requires sufficient numbers of properly trained officers, with the time and resources to carry out investigations and gather evidence in a manner that prioritizes the safety of a woman and her children, while also preserving her dignity.

Enforcement of criminal law needs to take place with awareness of the situation of victims of domestic violence and the risks that they are taking in making reports. It is often the case that women consciously decide not to report violence to the authorities because they are afraid of escalating violence. Authorities need to understand and respect victims' agency and decision-making about their own situation and the risks that the perpetrator poses to them. Neither the law, nor those enforcing the law, should penalize women for delaying in making a complaint, or refusing to testify. In both situations, women may be doing the best that they can to preserve their own safety and the safety of their children. In cases where a woman does wish to press charges, police and prosecutors should be diligent in gathering evidence from multiple sources, to supplement or, where appropriate, substitute for, victim testimony. Evidence may be gathered, for example, from neighbours or relatives, medical records of a victim's injuries when she is taken to hospital, or from the recordings of body-worn cameras used by police when they are called to attend a scene. Police and investigators should be trained and resourced to gather this kind of evidence, as well as on how to assess immediate and longer-term risks for women and girls (and their children). Victims and witnesses should also benefit from a variety of measures to ensure their safety and privacy - for example, witness protection schemes, specialized procedures at court to prevent interaction with the accused, and the option for victims to provide evidence via video-link or other communication technologies.

Finally, criminal laws often need to be reformed to address impunity for perpetrators. In many jurisdictions, those who kill or injure women and girls can benefit from discriminatory defences, for example, "honour" "crime of passion" or "provocation." These defences are built on the legal tradition that it is understandable and excusable if a man uses violence against a woman if he does not like her behaviour, particularly her actual or suspected sexual behaviour. So, in some countries, if a man believes that his wife is sexually unfaithful, he will be found guilty of a lesser crime than murder - for example, manslaughter - or given a lighter sentence on conviction, because the law permits the court to excuse the behaviour of a man who kills because of jealousy ("crime of passion") to uphold his good name, or the reputation of his family ("crime in the name of honour") or simply because the wife's actual or alleged behaviour makes him angry ("provocation"). These terms are used in different legal systems in all regions of the world, but the thinking behind these legal traditions is the same - that men are legally entitled to use physical violence to control and punish the behaviour or women, and that if women do not behave in the manner expected of them, they will face violent consequences. Similarly, perpetrators who are convicted of crimes of violence against women, whether or not that violence is fatal, should be sentenced to a penalty that is proportionate to their crime.

Developing and using civil law remedies

Often States pass laws on civil remedies for domestic violence, as well as using criminal laws. These civil remedies allow a woman or girl at risk to go to court to obtain an order to stop a man from committing violence, for example, requiring him to leave the shared home, or to stay away from her, or her place of residence, work or education. These have to be enforced - particularly because, in seeking a protection order, women draw the attention of the State and other people to the violence perpetrated by the abusive partner, and this can exacerbate his anger and increase the risk of further violence. In addition, seeking a protection order is a way for the woman to take back control over her life, and the abusive partner wants power and control. If the authorities do not act to enforce orders, then violence escalates. The case of Lenahan (Gonzales) v United States of America (2007) shows what happens when a woman reports the violation of a protection order to the police, and they fail to respond in a professional manner - the risks posed by the perpetrator escalate, sometimes with fatal outcomes.

Civil laws relating to family and personal status law also need to be reformed to ensure justice and protection for survivors of domestic violence, so that they can get access to divorce, division of marital property, and ensuring safe custody arrangements for their children, so that they can regain autonomy and control over their own lives, and be secure in living in safety and dignity. The case of Gonzalez Carreno v Spain (Communication No. 47/2012) shows the importance of this - the family court permitted the abusive husband to have unsupervised access to his child, and during an unsupervised visit, he killed the child and then committed suicide, having told her mother the day before that "he would take away what was most important to her".

Access to services for survivors of domestic violence

State responsibility to address domestic violence goes beyond the adoption and enforcement of criminal and civil laws. For a woman who is surviving domestic violence to get to a stage where she is able to use laws, she may need a variety of services to assist her: medical care to deal with injuries and counselling or psychosocial support to recover from the psychological effects of violence; housing, to allow her to find a safe place to live away from the abuser; access to work or education, with an income which allows her to start a new life away from the abuser. If she has children, they may need specialist support too, especially when they have witnessed violence. She may need legal advice on access to divorce, and access to child custody - family and personal status law needs to be consistent with criminal law.

Most importantly, women need to feel understood and supported, not judged, by their friends, families, and communities, so that they can make their own decisions about the next steps of their lives in confidence.

Solutions for survivors now, and preparing for a better future

To return to the question that is often asked, "Why doesn't she leave?" - better questions to ask are: How does this woman see her situation, does she feel that she has autonomy over her situation? If not, what does she need to get to that situation of autonomy? What does this woman need in order to be safe? What practical steps are needed to get her to that situation - what services need to be in place? What are the risks that she faces and how can these risks be mitigated? Who is supporting her, and what additional supports does she need to create an independent future that is safe and empowering?

So far, this section has set out what needs to happen for women to make a new life away from violence. But effective redress for violence and women and girls starts with the identification of root causes, and the economic and socio-cultural structures that perpetuate gender-based violence. The attitudes of police and judiciary are important, as are the attitudes of the general public. It is important that at all levels of society, it is understood that: the control and abuse of women and girls is wrong; that women and girls have a right to be safe on their own terms; and that the survivors are entitled to access to justice, a full remedy and a new life free of violence. Key to this is economic empowerment for women and girls. For this to be achieved, deeply entrenched patterns of gender equality must be challenged, and a non-discriminatory legal framework is needed to ensure that women and girls can pursue justice with respect to divorce, child custody, inheritance, and property.

Achieving these broad structural changes (economic, political, legal, and attitudinal) requires that children be provided with quality education that promotes gender equality. (See Mayeza & Bhana, 2017, for an examination of the complexities of education to address gender-based violence, with a focus on South Africa). Gender equality is the foundation for the formation of economic structures, laws, and social and political systems that both prohibit gender-based violence, and provide effective avenues for redress if gender-based violence occurs.

 

Implementing a comprehensive response to rape and sexual violence, including effective criminal law

 

Defining the crimes of rape and sexual violence - whose rights are protected?

The crimes of rape and sexual violence have been recognized in domestic legal jurisdictions for centuries. While most definitions identified forced or unwanted sexual conduct against a woman or girl as rape, the function of the law - the way the law is administered - has often not been to protect the well-being of the woman or girl affected. In some places, rape has been seen as harm perpetrated against the woman's family, or against customs or morals - not as a violation of women's physical and mental integrity. Indeed, in some places, a woman or girl who reports rape may face prosecution herself, for perjury or for admitting to extramarital sex if she cannot persuade the court that she was raped. For a prosecution for rape to succeed in many domestic jurisdictions, victims/survivors need to persuade a court that they were subjected to overwhelming physical force by the perpetrator.

Until recently, in many jurisdictions it was considered legally impossible for a husband to rape his wife (and in some jurisdictions this still stands), because the law considers that the marital contract constitutes a constant and on-going consent to sexual contact between husband and wife. For example, in the United Kingdom, the law on this issue was not clear until the mid-1990s, when the European Court of Human Rights ruled on a case where a husband claimed that the authorities had unfairly changed the law in order to prosecute him for raping his wife. In the case of SW v United Kingdom in 1995 (No. 20166/92), the European Court of Human Rights said that the "essentially debasing character of rape is so manifest" that "the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity not only with a civilized concept of marriage but also, and above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom."

The legal, sociological and philosophical issues raised by these challenges for women and girls in asserting their right to autonomy over their own bodies are striking, when other forms of law are considered - and how the law protects individuals' rights in other areas.

This excerpt from Professor Stephen Schulhofer's book Unwanted Sex: the culture of intimidation and the failure of law, illustrates how property rights and rights to sexual integrity have been treated differently over centuries in British and then US criminal law.

In the sixteenth century, the common law of theft protected an owner's property only when a wrongdoer physically removed it from the owner's possession, against the owner's will and by force. Shippers and servants who made off with property entrusted to them and scoundrels who obtained possession under false pretences could not be prosecuted, and the law of theft didn't protect intangible interests or immovable property at all. As commerce and the nature of valuables became more complex, the law evolved, slowly at first, to fill the intolerable gaps, although many of them survived into the early twentieth century. Today the law of theft protects property owners comprehensively. It guards against embezzlement by employees and dispossession by fraud, and it protects intangible items of value such as debts, property rights, trade secrets, and most recently, computer software. It punishes virtually all interference with property rights without the owner's genuine consent. Yet there has been no comparable evolution and modernization of the law of sexual assault. In nearly all states, rape laws continue to require proof of physical force. And the law's conception of what counts as physical force remains extremely demanding. (Schulhofer, 1998, p. 3-4)

Schulhofer's point is that men with power, particularly economic resources, are vigorous in bringing complaints to the authorities about how their rights have been interfered with, whether through case law in the courts, or through advocating for legal reform: therefore over time, law develops to protect those rights and to provide access to justice. Because, economically, historically and culturally, women have less power, their well-being and interests are less well protected by law (Smart 2002; Fitzgibbon and Walklate, 2018).

When teaching this Module, it may be helpful to consider how the crime of rape is defined in the domestic law of the State where this Module is being taught in terms of - who is being protected here? Whose rights are being protected? Is it the right not to be subjected to violence? Is it the right to choose what happens to your own body?

Procedural law relating to how rape and sexual violence is investigated and prosecuted

As well as the definitions of rape and sexual violence in domestic criminal law, it is also important to consider the procedural laws and practices relating to how authorities investigate and prosecute these crimes. These laws and practices can also discriminate against women and girls, this is commonly known as "secondary victimization." For further materials on justice for victims, refer to Module 11 on Justice for Victims in the E4J University Module Series on Crime Prevention and Criminal Justice.

Under the administration of domestic criminal law, perpetrators may be able to benefit from rules allowing them to undermine the credibility of the victim in the eyes of the court, whether the decision-making about criminal responsibility is taken by a jury, or a judge. This action in itself can be very humiliating - a form of psychological violence in itself.

For example, men accused of rape may seek to bring evidence of the victim's previous sexual history, to imply that this victim regularly consents to sexual contact, and is therefore likely to have consented in the situation which is being examined by the court. Given gender stereotypes about women and sexuality, such evidence of previous sexual history will tend to undermine the good character of the victim - particularly, the stereotype that a woman or girl who is promiscuous is less morally scrupulous in general, and might well be a liar. Another common rule in domestic jurisdictions has been that a victim's evidence can only be accepted if it is corroborated by other evidence, because it is easy for women to lie about being raped: therefore, defendants should not be convicted on the basis of a victim's testimony alone. This is a particularly irrational stereotype as women and girls tend to find the process of making a complaint and being a witness at trial extremely stressful as well as potentially dangerous: crimes in the name of so-called "honour" such as murder and assault are often committed against women and girls who complain of rape.

The impact of these rules - the risk to a woman or girl of making known the fact that she has been raped and the risk of being portrayed as a liar or someone who regularly agrees to sexual contact - are often significant in deterring the search for justice. They also act as a de facto encouragement to men to rape - perpetrators know that victims risk too much in seeking justice, therefore rape and sexual violence is likely to be unreported, perpetrators can commit crimes knowing that they are likely to benefit from impunity.

Understanding how rape and sexual violence affects individuals in all their diversity

These questions of substantive and procedural law are important, not just for the rights of women and girls, but also for the rights of men and boys: because men and boys, as well as women and girls, are subjected to rape and sexual violence. Sometimes rape and sexual violence is described in law as a penetration of a vagina by a penis - therefore crimes against men, such as oral or anal penetration by the perpetrator's penis, are not recognized as forms of rape. Indeed, homophobic attitudes may mean that a man or boy who is raped is assumed to have agreed to sex because he is gay (whether or not the victim is in fact gay) and, in some places, a man who reports rape will himself be prosecuted for having committed a same-sex act, even when the act took place without his consent. Homophobic discrimination of this kind means that men and boys are reluctant to report rape because they fear being perceived as gay, or as 'not masculine enough' due to cultural ideals that a 'real man' would be able to fight back against rape.

Rape and sexual violence are often committed against people who are lesbian, gay, bisexual, transgender or intersex (LGBTI persons), and the barriers to justice for LGBTI people are even higher, particularly in places where same-sex sexual acts are criminalized or highly stigmatized. In many places, lesbians are targeted for rape as a purported method of making them heterosexual, but in fact, this is a pure hate crime, as illustrated in this article: "South Africa's 'corrective rape' of lesbians" by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) 6 August 2012 (see the ILGA website for a comprehensive set of reports on homophobia, transphobia and sexual orientation hate crimes around the world).

Transgender people are often targeted for rape and sexual violence, particularly in custody or prison situations. For further materials on the risks faced by transgender persons in prisons, see Module 9 on Gender in the Criminal Justice System in the E4J University Module Series on Crime Prevention and Criminal Justice.

See the Just Detention International website for very thoughtful and careful work on rape in prison, which provides important opportunities for solidarity with survivors as well as research on situations in prisons around the world.

People who engage in sex work/prostitution are also targeted for rape and sexual violence, and face extreme prejudice in seeking justice. Law enforcement officials assume that because these victims are sex workers, that they 'cannot be raped' - that they are always agreeing to sexual contact, irrespective of how violent or coercive that sexual contact is. The reality is that the marginalized status of sex workers means that violent people target them, knowing that they are likely to escape with impunity because crimes against sex workers are not taken seriously. Those involved in sex work include men and women, including transgender men and women and intersex individuals. Children under 18 who may incorrectly be described as being involved in prostitution/sex work are, in fact, victims of child sex abuse.

For detailed reports on the violence and stigma inflicted on sex workers, and the need for effective laws to protect those who are forced into sex work, including children under 18 and trafficked persons, see Amnesty International's policy on protecting the human rights of sex workers (2016).

Human rights law has developed more accurate ways of understanding rape: a form of torture, involving penetration of diverse kinds, in situations where a victim has not freely agreed to take part in a sexual act.

Rape is recognized as a form of torture, as it causes severe physical and mental pain and suffering. Rape should be understood as a physical invasion involving penetration. Penetration should be understood not only as the penetration of a woman or girl's vagina by the perpetrator's penis, any object, or any other body part, for example, fingers or hands. The case law also recognizes that if a perpetrator uses his penis to penetrate a victim's mouth or anus, then this also constitutes rape, irrespective of whether the victim is a woman or girl, boy or man, transgender or intersex person. Penetration of a victim's anus with an object should also be prosecuted as rape. Sexual touching or forced nudity can be prosecuted as sexual violence - acts of penetration are what distinguishes rape from other forms of sexual violence.

In national and local contexts, the definition of rape varies according to the criminal law and criminal procedural law of each jurisdiction. In general, acts of rape are acts of penetration for which consent is not freely given, and/or which have been obtained by use of force, violence, or coercion. Comprehensive legislation to criminalize rape, and all other forms of sexual and gender-based violence, is an important pillar of access to justice for victims. For this reason, the Updated Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice calls on Member States "to review, evaluate and update their national laws, policies, codes, procedures, programmes and practices, especially their criminal laws, on an ongoing basis to ensure and guarantee their value, comprehensiveness and effectiveness in eliminating all forms of violence against women and to remove provisions that allow for or condone violence against women or that increase the vulnerability or revictimization of women who have been subject to violence" (United Nations General Assembly, 2011, para. 14).

International human rights law and several United Nations criminal justice standards and norms have also addressed the issue of "secondary victimization" of survivors in the criminal justice process. Of particular importance here, is the definition provided in the United Nations Updated Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, whereby secondary victimization is defined as "victimization that occurs not as a direct result of a criminal act but through the inadequate response of institutions and responses to the victim" (United Nations General Assembly, 2011, GA resolution 65/228 para. 15(c)). To ensure a fair and just administration of law in relation to rape and sexual assault, the rules governing how crimes are investigated and prosecuted need to respect the rights and well-being of the victim, as well as the rights to fair trial of the alleged perpetrator. These include, for example, ensuring that the victim's testimony should not be required to be corroborated in order to be persuasive to the court; that the victim should not be cross-examined directly by the perpetrator; the victim should be able to give evidence through video link, rather than be forced to face the perpetrator directly; that the identity and privacy of the victim be protected, and that effective witness protection be available when there are threats to the victim's life, safety or well-being.

While many of the cases which developed this area of law arose in situations of armed conflict, the basic principle - that physical and mental integrity and sexual autonomy must be protected - has been applied in peace-time situations as well as conflict, as the cup of tea video resource illustrates.

Rape and sexual slavery in conflict

While rape and sexual violence have been understood to be a violation of the laws of war for decades, these crimes were accepted as an unfortunate but inescapable facet of war.

In the 1990s, during the war in former Yugoslavia and in the genocide in Rwanda, feminist lawyers drew attention to the rape and sexual slavery inflicted on women and girls, and sought justice. Often these crimes ended with the killing of the women and girls. The compelling need to secure justice for the victims of these crimes were an inspiration to ensure that the International Criminal Court - its definitions of crimes and way of working - would permit victims of sexual violence to seek justice.

In addition, during the 1990s, a movement began to address the situation of women and girls who had been enslaved by the Japanese army during World War II and subjected to multiple rapes - forced to become 'comfort women' - a euphemism which masks the extent of the torture these women and girls were subjected for years. After the war, these women had been highly stigmatized and traumatized. Most had not been able to recover their health and well-being, and go on to have families of their own. These women sought an apology from the Japanese Government for their life-time of suffering and, in 2000, when no apology was forthcoming, they set up a tribunal to present evidence of their experiences and establish responsibility.

Also in 2000, the United Nations Security Council adopted its first Resolution on women, peace and security, which called on States and United Nations agencies to prioritize the prevention of sexual violence and to promote women's and girls' participation in peace-making and peacebuilding.

From these beginnings, feminist lawyers and activists have been working with survivors from many different conflicts to seek justice and reparation, including healthcare and compensation.

In recent years, it has been recognized that criminal justice approaches are not enough in themselves to prevent sexual violence in conflict. The UK Government, together with the actress Angelina Jolie, hosted a global summit in 2014, which was attended by heads of States, ministers, survivors of sexual violence and civil society organizations. This summit was the start of a process to raise awareness of the issue and galvanize international action to train militaries to improve respect for the existing laws against sexual violence, and provide justice and reparation for victims. Securing real change on the ground is a complex issue - more work needs to be done to ensure the prevention of sexual violence in conflict.

For further information about the realities of conflict-related sexual violence, see the website of the Foundation of Dr Denis Mukwege. Mukwege is an eminent doctor who has run the Panzi hospital in the Democratic Republic of Congo since 1999. Over the last decades of war in the DRC, Dr Mukwege has treated thousands of survivors of sexual violence - including many children, as well as adults - for their injuries and advocated for comprehensive reparation for survivors. On 5 October 2018, Dr Mukwege was awarded the Nobel Peace Prize for this lifetime of work for the survivors of sexual violence.

Children born of war-time rape and their mothers tend to be highly stigmatized, and have complex needs for justice and reparation.

 

A human rights approach to various types of violence against women and girls

This section permits a closer examination of five aspects of violence against women and girls which have been chosen because of particularly high prevalence (domestic violence, online violence and street harassment) and/or also because students are likely to be the same age as  those who experience these forms of violence (violence against women students in university, online violence or child marriage) or just a few years older, and therefore likely to be able to consider their situation with insight and empathy.

These five subjects illustrate the human rights approach to violence against women and girls, reflecting the requirement in the UN General Assembly Declaration on the Elimination of Violence against Women "to exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons" (GA Resolution 48/104, Article 4c). Investigation and prosecution often requires criminal laws, and practical measures to ensure access to justice. Prevention can be done in a variety of ways. Where a woman or girl is known to be at risk, then civil laws remedies may be appropriate - injunctions requiring Internet companies to take down violent content relating to women and girls, for example, in cases of online rape threats or image-based abuse; injunctions to stop a child being taken abroad for a forced marriage; protection orders for women and girls known to be at risk of domestic violence. Prevention of violence can include a variety of other measures services which give psychological support to women and girls, so that they are empowered to make decisions on how to best leave a situation of violence. Education is another method of preventing violence, by redressing the attitudes which support violence. UNODC has developed a range of E4J tools to enhance primary, secondary and tertiary education about gender equality. In addition to this Module, lecturers may wish to consult Module 9 on Gender in the Criminal Justice System. A resource developed for use by primary school students, and primary teachers, the videogame Chuka is designed to break the silence about gender-based violence.

In 2018 the United Nations Special Rapporteur on Violence against Women, its causes and consequences, produced a report on online violence against women and girls. Identifying key legal and practical issues, the special rapporteur asserts:

"Online and ICT facilitated forms of violence against women have become increasingly common, particularly with the use, every day and everywhere, of social media platforms and other technical applications (A/HRC/32/42 and Corr.1). In today's digital age, the Internet and ICT are rapidly creating new social digital spaces and transforming how individuals meet, communicate and interact, and by this more generally, reshape society as a whole. This development is especially critical for new generations of girls and boys, who are starting their lives extensively using new technologies to mediate in their relationships, affecting all aspects of their lives. In the section below, the Special Rapporteur considers the phenomenon of violence against women facilitated by new technologies and digital spaces from a human rights perspective.

Even though the core international human rights instruments, including those on women's rights, were drafted before the advent of ICT, they provide a global and dynamic set of rights and obligations with transformative potential, and have a key role to play in the promotion and protection of fundamental human rights, including a woman's rights to live a life free from violence, to freedom of expression, to privacy, to have access to information shared through ICT, and other rights.

When women and girls do have access to and use the Internet, they face online forms and manifestations of violence that are part of the continuum multiple, recurring and interrelated forms of gender-based violence against women. Despite the benefits and empowering potential of the Internet and ICT, women and girls across the word have increasingly voiced their concern at harmful, sexist, misogynistic and violent content and behaviour online. It is therefore important to acknowledge that the Internet is being used in a broader environment of widespread and systemic structural discrimination and gender-based violence against women and girls, which frame their access to and use of the Internet and other ICT. Emerging forms of ICT have facilitated new types of gender-based violence and gender inequality in access to technologies, which hinder women's and girls' full enjoyment of their human rights and their ability to achieve gender equality"(para. 12-14).

"Online and ICT facilitated forms of violence against women have become increasingly common, particularly with the use, every day and everywhere, of social media platforms and other technical applications (A/HRC/32/42 and Corr.1). In today's digital age, the Internet and ICT are rapidly creating new social digital spaces and transforming how individuals meet, communicate and interact, and by this more generally, reshape society as a whole. This development is especially critical for new generations of girls and boys, who are starting their lives extensively using new technologies to mediate in their relationships, affecting all aspects of their lives. In the section below, the Special Rapporteur considers the phenomenon of violence against women facilitated by new technologies and digital spaces from a human rights perspective.

Even though the core international human rights instruments, including those on women's rights, were drafted before the advent of ICT, they provide a global and dynamic set of rights and obligations with transformative potential, and have a key role to play in the promotion and protection of fundamental human rights, including a woman's rights to live a life free from violence, to freedom of expression, to privacy, to have access to information shared through ICT, and other rights.

When women and girls do have access to and use the Internet, they face online forms and manifestations of violence that are part of the continuum multiple, recurring and interrelated forms of gender-based violence against women. Despite the benefits and empowering potential of the Internet and ICT, women and girls across the word have increasingly voiced their concern at harmful, sexist, misogynistic and violent content and behaviour online. It is therefore important to acknowledge that the Internet is being used in a broader environment of widespread and systemic structural discrimination and gender-based violence against women and girls, which frame their access to and use of the Internet and other ICT. Emerging forms of ICT have facilitated new types of gender-based violence and gender inequality in access to technologies, which hinder women's and girls' full enjoyment of their human rights and their ability to achieve gender equality" (para. 17-20).

This issue is dealt with extensively in Module 12 on Interpersonal Cybercrime of the E4J University Module Series on Cybercrime.

Child Marriage

The Office of the High Commissioner for Human Rights (OHCHR) describes " child, early and forced marriage" as "a human rights violation and a harmful practice that disproportionately affects women and girls globally, preventing them from living their lives free from all forms of violence. CEFM threatens the lives and futures of girls and women around the world, robbing them of their agency to make decisions about their lives, disrupting their education, making them more vulnerable to violence, discrimination and abuse, and preventing their full participation in economic, political and social spheres. Child marriage is also often accompanied by early and frequent pregnancy and childbirth, resulting in higher than average maternal morbidity and mortality rates. CEFM often results in women and girls attempting to flee their communities or to commit suicide to avoid or escape the marriage". The organization Girls not Brides identifies child marriage "any formal marriage or informal union where one or both of the parties are under 18 years of age".

The practice is prevalent in all regions of the world, in developed and developing countries alike, and across all religious traditions. Child marriage of girls emphasizes and maintains girls' inequality, as it is based broadly on the idea that the only, or main, appropriate role in life for girls and women is as wives and mothers, irrespective of whether that is their preference for their life. Some traditions require that a girl marries as soon as her menstruation begins - at puberty girls are considered adults, even though they are too young for adult experiences and obligations. Often, religious or traditional laws allow a girl under 18 to marry if she is pregnant or is known to have had sex with a partner - or even if she has been raped. These traditions are based on the sexist stereotype that "chastity" or "virginity" are important values for girls, and preserving social and moral rules are more important than protecting children from assault and allowing children their human rights, particularly their right to physical and mental integrity. Girls are more likely to be forced into early marriage in situations of poverty and insecurity, as families tend to want to move a girl to another family, in order to "protect" her from sexual harassment or assault (for example, in refugee camps) or where they do not have sufficient resources to feed, clothe and educate all their children.   

What if a girl wants to get married? International human rights law requires full, free and informed consent to marriage, this means only adults over 18 can marry. While international human rights law allows that children and young people develop evolving capabilities to make decisions about their own lives, the reality is that marriage is a legal contract which can have important ramifications on a girl's right to continue her education, to work, or to choose her own path in life, so the protection of young people - girls and boys alike - allows that they gain a minimum age of maturity before they can marry. Setting the age at 18 allows for an objective and enforceable standard on this.

Harassment of women and girls in public places

Harassment of women and girls in public places includes verbal abuse - insults, sexually explicit comments, leering, whistling, and physical abuse. Women and girls are often followed, their path is blocked, and they are subjected to sexual touching and assault, or men and boys exposing their genitals or masturbating.

This tends to be treated as "something normal" but it needs to be addressed as a form of violence against women and girls.

The reasons why harassment of women and girls in public places is a huge problem, set out in the Hollaback website, which campaigns against street harassment:

Envision a society where all of us can enjoy a concert, a night out, a jog through campus or a ride home free of harassment from strangers. Picture a global community where anyone could log onto their favourite website and express their opinions openly, freely and respectfully without being ridiculed or threatened.

That world is possible, and with your help we can help make it happen.

We should all be able to move freely and participate fully in the world around us, comfortable in our own skin, no matter what we look like or how we identify. Harassment - whether it happens online, in the streets, in school, or at the supermarket - erodes our ability to move through public space. It stifles our sense of freedom and creates fear and mistrust of those around us.

People often think that harassment is just an interaction between the harasser and the target. We know that's not true. So many incidents of harassment as well as the overall culture of violence that it fuels, can be silently perpetuated by people who witness or know about the abuse and do nothing.

Join us in this movement to build a safer world, where everyone has the right to be who they are. Whatever that means that day, that hour, that minute.

I pledge to do something when I see someone being harassed in any public space.

I plan to educate myself about what harassment looks like, how it affects people differently based on their identities, and what I can do to help - long and short term.

I promise to share my experience with harassment in public space and encourage my loved ones to do the same- so that others can know they are not alone

Source: Hollaback n.d.

It is only in the last few years that harassment of women and girls in public has been examined in detail and treated as a human rights problem. The International Commission of Jurists has produced a Practitioner Guide to Women's Access to Justice for Gender-based Violence (2016). This guide explains the human rights approach to this problem:

Sexual harassment in public places: "street harassment" or "harassment on the street"

Sexual harassment in public places has received relatively little attention in human rights standards and jurisprudence, but several initiatives have highlighted the adverse effects of street harassment. Important initiatives using Internet applications to record acts of street harassment [such as Hollaback] have brought attention to the way that sexual harassment on the street threatens women and leads to them limiting their activities.

In the case of the Egyptian Initiative for Personal Rights and Interights v Egypt (Communication 323/06), the African Commission on Human and Peoples' Rights examined sexual harassment of various kinds as gender-based violence, in violation of Article 2 and  Article 18(3)  of  the  African  Charter on Human and People's Rights (1986) (Egyptian Initiative for Personal Rights and Interights v Egypt, para. 166).

In the Agreed Conclusions of the Commission on the Status of Women, on the Elimination and Prevention of All Forms of Violence Against Women and Girls, the United Nations Commission  on the Status of  Women expressed "deep concern about violence against women and girls  in public spaces, including sexual harassment, especially when it is being used to intimidate women and girls who are exercising any of their human rights and fundamental freedoms" (2013, para 23).

The Commission recommended that States act to:

  • Improve the safety of girls at, and on the way to and from, school;
  • Establish a safe and violence-free environment by improving infrastructure such as transportation;
  • Provide separate and adequate sanitation facilities and improved lighting, playgrounds and safe environments;
  • Adopt national policies to prohibit, prevent and address violence against children, especially girls, including sexual harassment and bullying and other forms of violence;
  • Conduct violence prevention activities in schools and communities, and establishing and enforcing penalties for violence against girls;
  • Increase measures to protect women and girls from violence and harassment, including sexual harassment and bullying, in both public and private spaces; and
  • Address security and safety, through:
    • Social and interactive media;
    • Awareness-raising and involvement of local communities;
    • Adoption of crime prevention laws and policies;
    • Adoption of programmes such as the Safe Cities Initiative of the United Nations; and
    • Improved urban planning, infrastructure, public transport and street lighting" (Commission on the Status of Women, 2013).
 

Domestic violence

Topic Three provides an overview of the international human rights framework as it relates to domestic violence - noting the obligation on States to criminalize, investigate, and prosecute acts of domestic violence. Criminal justice responses do not address the full range of needs and rights for women and girls that are subjected to SGBV, and Case study 3 illustrates the importance of social and health services for women and girls in the wake of gender-based violence.

While such an illustration is illuminating - especially in situations where economic austerity in macro-economic policies have led to cuts in victim services - it is important to remember that State action to address domestic violence is part of the State's legal duties to ensure human rights, and this would be the case even if the rights-based approach was not cost-effective.

Violence against female students at university

In recent years there has been increased attention to the importance of prevention strategies at universities, to prevent women and girls from being targets of SGBV on campus, or through online fora associated with university peer groups. The following article, by Helen Mott (2016), explores these issues in detail, by asking whether universities are doing enough to prevent violence against women (Mott, 2016).

As Mott (2016) identifies, universities are both a microcosm of wider society, and living institutions in themselves - like States, universities need to take measures to appraise the situation, through ethical and safe reporting, and to respond through establishing policies and procedures. Furthermore, universities need to make positive efforts to create a culture where violence, bullying and coercion of all kinds is not acceptable. Given that perpetrators of violence against women students are often peers, but also often staff members who are in positions of power over their victims, universities need to have effective policies to deal with wrongdoing. It is important to emphasize that violence against women in universities needs to be dealt with by police and prosecutors, as well as university authorities.

 
Next:  Topic 4 - What about the men? Transforming stereotypes and acting in solidarity to end discrimination and violence for everyone
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