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  This module is a resource for lecturers  

 

Introduction

 

Discrimination against women, based on gender stereotypes, stigma, harmful and patriarchal cultural norms and gender-based violence, which affects women in particular, has an adverse impact on the ability of women to gain access to justice on an equal basis with men. (Committee on the Elimination of Discrimination Against Women Committee, General Recommendation 33 , para. 8).

The terms used here by the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW Committee) are plain. On the basis of their gender, women face disproportionate hardship in gaining access to justice. Appearing in 2015, as the consolidated views of United Nations Member States, this assessment of women's differential access to justice, builds on analysis that has long characterized feminist legal scholarship globally. For decades, scholars, legal practitioners, and individuals who interact with criminal justice systems have reported that policing, legal, judicial, and penal systems cater more effectively to the needs of men (Walklate, 2004). While significant differences in legal systems, globally, prevent generalizations about the extent to which law is gendered, feminist legal scholars from all over the world contend that women and girls are adversely impacted by gendered assumptions and omissions in law (Smart, 2002).

That everyone has a gender identity, and everyone has a sexual orientation, means that it is not only women and girls who face discrimination on the grounds of gender. In recognition of contemporary understandings of sexual orientation, gender identity or expression and sex characteristics, this Module also directs students' attention to the adverse impacts that gendered assumptions and practices can bear on individuals that identify as, or are perceived to be, persons with diverse sexual orientation, gender identity or expression and sex characteristics (often referred to by the insufficient acronym LGBTI - lesbian, gay, bisexual, transgender, intersex). This Module examines the main ways in which gendered assumptions impact on the operation of the criminal justice system and the implications that these have in either facilitating or impeding access to justice for women and girls as well as for LGBTI persons. In doing so, the Module emphasizes the impact that gendered assumptions and practices have not only on victims or complainants, but also on witnesses, defendants and prisoners in all the stages of the criminal justice system, including: reporting and investigation phases; pretrial; trial; sentencing; and post-sentencing and reintegration.

The Module is divided into four topics:

  • Topic 1: Gender-based discrimination and women in conflict with the law
  • Topic 2: The vulnerabilities of girls in conflict with the law
  • Topic 3: Discrimination and violence against individuals that identify as or are perceived to be LGBTI
  • Topic 4: Gender diversity in the criminal justice system workforce 
 

Learning outcomes

  • Critically assess the various ways in which gender-based issues arise at different stages within the criminal justice system.
  • Describe how gendered assumptions, practices, structures and rules bear impacts on complainants, witnesses, defendants and prisoners within the criminal justice system.
  • Identify increased risks for individuals who face discrimination and violence on the grounds of sexual orientation, gender identity and expression and sex characteristics in the course of criminal justice proceedings, as well as heightened risks of disproportionate harm as a result of their contact with the criminal justice system. Explain how 'gender' is not a concept that is synonymous with women, and that gendered roles and attributes are both socially constructed, and potential grounds for discrimination sand violence for all (women, men, and individuals who choose to identify as a third gender, gender neutral, or gender fluid).
  • Recognize the key international standards for safeguarding the rights of women, girls and LGTBI persons in the criminal justice system.
  • Explain the key issues associated with gender diversity within the criminal justice system workforce.
 
Next: Key issues
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