Violence Against Women Cecilia Bailliet un special Rapporteur on Violence against Women

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Violence Against Women

  • Cecilia Bailliet

UN Special Rapporteur on Violence against Women

  • The Universal phenomenon of violence against women is the result of ”historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of women’s full advancement”

CEDAW Gen Rec. # 19

  • Lack of economic independence forces many women to stay in violent relationships, unable to divorce and maintain custody of children
  • Costa Rica, Honduras, Uruguay and Brazil have laws on economic violence: aggressor wipes out the victim’s economic means of subsistence or property

UN Declaration on Violence against Women

  • Article 1 For the purposes of this Declaration, the term "violence against women" means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

UN Declaration on Violence Against Women

  • Article 2 Violence against women shall be understood to encompass, but not be limited to, the following: (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;
  • (b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;
  • (c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.

Article 3

  • Women are entitled to the equal enjoyment and protection of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. These rights include, inter alia:
  • (a) The right to life;
  • (b) The right to equality;
  • (c) The right to liberty and security of person;
  • (d) The right to equal protection under the law;
  • (e) The right to be free from all forms of discrimination; (f) The right to the highest standard attainable of physical and mental health;
  • (g) The right to just and favourable conditions of work; (h) The right not to be subjected to torture, or other cruel, inhuman or degrading treatment or punishment.

Article 4

  • States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination. States should pursue by all appropriate means and without delay a policy of eliminating violence

Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belem do Para)

  • Article 2:
  • Violence against women shall be understood to include physical, sexual and psychological violence:
  • that occurs within the family or domestic unit or within any other interpersonal relationship, whether or not the perpetrator shares or has shared the same residence with the women, including, among others, rape, battery and sexual abuse,
  • that occurs in the community and is perpetrated by any person, including, among others, rape, sexual abuse, torture, trafficking in persons, forced prostitution, kidnapping and sexual harassment in the workplace, as well as in educational institutions, health facilities or any other place; and
  • that is perpetrated or condoned by the state or its agents regardless of where it occurs.

Article 3

  • Every woman has the right to be free from violence in both the public and the private spheres.

Article 4

  • Right to life
  • Physical, Mental and Moral integrity respected
  • Personal liberty and security
  • Right not to be subjected to torture
  • Inherent dignity of her person and protection of family
  • Equal protection before the law and of the law
  • Simple and prompt recourse to a competent court for protection against acts that violate her rights
  • Right to associate freely
  • Freedom of religion and beliefs within the law
  • Equal access to public service¨

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

  • Article 1 (j)
  • Violence against women means all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peacetime and during situations of armed conflicts or of war.

Art 3 (4)

  • States parties shall protect women from all forms of violence, particularly sexual and verbal violence

Art 4 (2)

  • State parties shall take appropriate and effective measures to enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public

Art 11

  • States parties undertake to protect asylum seeking women, refugees, returnees and internally displaced persons, against all forms of violence, rape and other forms of sexual exploitation, and to ensure that such acts are considered war crimes, genocide, and/or crimes against humanity and that their perpetrators are brought to justice before a competent jurisdiction.

Context of Social Discrimination

  • Gender: Subordinate role in family and community, women define themselves through their relation with a dominant man, family (including other women, uphold norms of conduct upon the woman). Victim blames man’s violent childhood, substance abuse, etc. for violence, not socially imposed codes of behaviour.
  • Ethnicity
  • Socio-Economic Status: high correlation between poverty and violence
  • Migrant/Displaced Status
  • Rural status
  • Lack of education as pertaining human rights and protection procedures, Fear of social stigmatization in going public, or stigmatization of children

Location of Violence: Public/Private Dichotomy

  • Violence in home seen as normal or mere crime of passion, Private matter
  • Community
  • Workplace
  • En route during migration, smuggling, in IDP or refugee camps
  • War- rape of female civilians due to ethnicity, female soldiers exposed to sexual abuse (institutionalized sexual violence)

Proof of violence

  • Sexual violence occurs in private, no witnesses and leave no physical evidence
  • ICC Force, threat of force, coercion or coercive enviroment may undermine victim’s ability to give voluntary and genuine connsent
  • ECHR, MC v. Bulgaria, Coercive enviroment means absence of direct proof or witnesses of the sexual aggression

De jure and de facto access to justice

  • Chiapas penal code Permits husbands to “correct” wife via physical abuse (if injuries take less than two weeks to heal)
  • Rapist redeems chastity, decency and honour of his victim if he marries her
  • Domestic Violence: State tolerates or condones de facto oppression of women within the home
  • Lack of Restraining orders, do not take husbands into custody, or do not monitor or enforce order when given. Consider danger of aggressor to society, not safety of the victim
  • Over- use of mediation- woman and man have unequal power relationship, agreement does not address the causes and consequences of the violence
  • Property rights: male tends to retain ownership and control of property, women trapped in situations of domestic violence. Widows may be evicted by family members.

De jure and de facto access to justice

  • Failure to launch immediate search for the victim, low priority in relation to other crimes,
  • Lack of human, technical, or financial resource
  • Limited Intervention by police and prosecutors- women do not trust corrupt, dysfunctional judicial system
  • Limited access to justice by women (language, costs, bias against women, geographic distance, lack of judicial protection during proceedings)
  • Focus on physical evidence and testimony to the exclusion of other types of evidence
  • Victim not considered credible
  • Authorities are not impartial in investigation
  • Authorities blame the victim for what happened
  • Victim will not testify because of fear of reprisal, fear of loss of economic support
  • Judges are biased, fear of being labelled “feminist” or “effeminate”
  • Prosecutor will not seek indictment unless sure case will win, based on strong evidence not seriousness of facts
  • Limited statistics on rape, murder, etc
  • Impunity for sexual violence
  • Lenient sentencing
  • Little compensation to survivors, No access to Counselling
  • Sparse availability of Shelters

Traditional practices:

  • Informal community justice, may use traditional sanctions, such as honor killings- cultural relativist arguments
  • Honour crimes: women protest forced marriage and leaves, accused of infidelity and killed to restore family honour
  • Female genital mutilation
  • Dowry practices
  • Forced marriage/child marriage
  • Woman ceded from one family to another in order to settle a dispute

Case Ciudad Juarez

  • Between 1993 and 2005- 377 women murdered, those cases involving sexual violence only convicted 33.3%.

Due Diligence Standard

  • Declaration on the Elimination of Violence against Women (1993)
  • State has duty to prevent, investigate, punish acts of violence against women by State or private persons
  • Inter American Convention on the Prevention, Punishment and Eradication of Violence Against Women apply due diligence
  • Traditional perspective has been response to acts of violence. Now we focus on prevention, duty to change patriarchal gender structures which promote violence against women.

Velasquez Rodriguez v. Honduras (disappearance)

  • State is responsible for act of private person when failed to exercise due diligence to prevent the violation or respond to it.
  • Legal, political, administrative, and cultural measures to promote the protection of human rights.

Maria Fernandes Case IACHR 2001- Domestic Violence

  • Brazil failed to prevent and respond despite clear evidence ( he shot and tried to electrocute her, leaving her paraplegic) against the accused and seriousness of charges, tried for 15 years to prosecute him—Inter American Commission found that the case could be viewed as a “part of a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors” Called for Brazil to train and raise awareness of judges and police, simplify criminal justice proceedings to reduce delays, establish alternatives to judicial mechanism to resolve domestic conflicts, increase police and prosecutorial capacities to ensure that complaints are investigated, teach women’s rights
  • But Switzerland moving away from mediation in domestic violence cases towards investigation and allaying of charges
  • CEDAW AT v. Hungary 2005 State failed to prevent domestic violence
  • Extraterritorial obligation for States exercising jurisdiction and effective control abroad
  • UN peacekeepers- sexual violence

Due diligence

  • Ratification of human rights instruments
  • Constitutional guarantees of equality for women
  • National legislation and or administrative sanctions providing adequate redress for women victims of violence
  • Policies or plans of action that deal with the issue of violence against women
  • Gender sensitivity of the criminal justice system and police
  • Accessibility and availability of support services
  • Existence of measures to raise awareness and modify discriminatory policies in the field of education and the media
  • The collection of data and statistics concerning violence against women

Refugee Law

  • A refugee has a well-founded fear of persecution on account of political opinion, religion, nationality, race or social group.
  • Women as a social group- internal and external perception
  • Mixed protection grounds
  • Gender related persecution
  • Gender specific persecution: rape, FGM, forced abortion
  • Credibility problems: Rape Trauma
  • Context of gender discrimination supports protection claim.
  • State proves unable or unwilling to help women due to discrimination.
  • Islam Case
  • Kasinga Case
  • Trafficking: (Hierarchical protection: temporary protection contingent on cooperation with the police)

Matter of Rodi Alvarado Pena, BIA 1999

  • Ms Avalrado’s husband dislocated her jaw, tried to cut off her hands with a machete, kicked her in the abdomen to provoke an abortion, used her head to break mirrors and windows, whipped her with electrical cords and pistols, and raped her in front of the children. She tried to attain assistance from the polic and judiciary, which refused to interfere in family matters.

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