Violence Against Women

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					Violence Against
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
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

   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;
   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
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
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
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
   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
   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
   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
   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
   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
   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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