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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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slide1

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

slide2

Violence Against Women:

The International Legal Standards

slide3

Underlying Principles

Violence Against Women is a Form Of Discrimination

Violence Against Women is A Violation of Women’s Human Rights

slide4

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

slide5

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

slide6

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

slide7

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

slide8

CEDAW: Part IV

Article 15

Legal equality

Article 16

Eliminate discrimination and assure equal rights in family matters and marriage

slide9

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.

slide10

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

slide11

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

slide12

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)

slide13

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
slide14

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

slide15

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

slide16

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)

slide17

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

slide18

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)

slide19

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

slide20

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
slide21

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
slide22

Violence Against Women:

The Current Legal Map

slide25

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
slide26

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.

slide27

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.”

slide28

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”

slide29

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.”
slide30

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.
slide31

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)
slide32

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)
slide33

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)

slide34

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)

slide35

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.

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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
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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
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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

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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

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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.
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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.

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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
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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
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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
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Violence Against Women:

Elements of a Model Law

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A three ‘P’ Approach

Prosecution

Prevention

Protection

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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

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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)

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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)

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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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Prevention

I. Raising Public Awareness

a. Incorporating issues of gender equality into human rights curricula

Implementation of integrated prevention measures, including encouraging the communications media to avoid stereotyped roles that legitimize or encourage domestic and family violence, public educational campaigns, and emphasis, in educational curricula at all levels, on human rights and the problem of domestic and family violence against women

(Brazil, Maria da Penha Law, 2006, Article 6)

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

b. Training the media on covering cases of violence against women

The National Committee established for Combating Domestic Violence shall have the authority upon a request from the Ministry of Communications to supervise the preparation of TV and radio programs to provide legal, psychological and social guidance for the purpose of confronting domestic violence

(Bahrain, Draft Law on Protection of the Family Against Violence, Article 13)

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II. Establishing Specialized Mechanisms to Monitor the Implementation of the Law

Creation of an Inter-Agency Council on Violence Against Women and Their Children to monitor the effectiveness of initiatives to address violence against women and develop programmes and projects to eliminate such violence.

(Philippines, Anti-Violence against Women and their Children Act (2004), Section 36)

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

III. Training Law Enforcement

Police training covers violence against women

(Denmark)

Handbook for Parliamentarians, Parliaments United in Combating Domestic Violence Against Women,

Released by the Parliamentary Assembly of the Council of Europe

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Protection

I. Hotline

The Secretary may award a grant to a private, nonprofit entity to provide for the operation of a national, toll-free telephone hotline to provide information and assistance to victims of domestic violence.

(United States, Violence Against Women Act 1994, Sec 316)

II. Safe Houses

The State, through the Government to ensure the creation, installation, operation and maintenance of public houses to support women victims of violence.

In conjunction with private institutions of social solidarity such as NGOs, the Government will, as geographically appropriate, promote and support the creation of a nuclei of care for women victims of violence.

The services provided through the network of public housing and service centers to support women victims of violence are free.

(Portugal, Law No. 107/99 Creation of Public Houses to Support Women Victims of Violence)

Requirement that shelters be established in municipalities with more than 50,000 inhabitants.

(Turkey, Local Administration Law)

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III. Protective Order

A court within 8 hours following the receipt of a complaint shall issue an ex parte restraining order against an offender.

The ex parte restraining order can be issued in the absence of the offender if the latter cannot be summoned.

The ex parte restraining order may be issued in the presence of a victim if he/she requests.

The court shall be issue the ex parte restraining order provided the fact of committing an act of domestic violence in circumstances of a real danger has been attested to by the victim’s complaint, witnesses’ testimony or/and other evidences.

The court shall dispatch immediately the issued ex parte restraining order to the police of the area where the offender, victim , and other persons concerned reside.

(Mongolia, Law Against Domestic Violence, 1999, Article 15)

  • For the purpose of immediate effect (response), protection of the victim and certain restriction of the abuser’s activities, relevant bodies as a temporary measure may issue a protective or restrictive order.
  • A protective order is an act issued by the first instance court judge based on administrative proceedings, which defines temporary protection measures of victims in cases of domestic violence, except cases, where the grounds for instituting criminal proceedings exists and the person is deprived of liberty based on the restrictive measure.
  • Restrictive order is an act issued by the authorized employee of police, which defines temporary protection measures of victims in cases of domestic violence and which shall be submitted to the court for approval within 24 hours.
  • Failure to comply with the conditions prescribed by protective and restrictive order shall lead to criminal responsibility of the abuser
  • (Georgia, Law on the Elimination of Domestic Violence, Protection of and Support to its Victims, Article 10)
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IV. Annulment of Tenancy Agreement

In cases of domestic violence, threatening the safety of the victim is now an excuse to annul a tenancy agreement between the parties

(Canada, Amendment to Article 174 of the Quebec Civil Code)

Handbook for Parliamentarians, Parliaments United in Combating Domestic Violence Against Women,

Released by the Parliamentary Assembly of the Council of Europe

Where a person applies for an occupation order or a tenancy order in respect of a dwelling house, that person may—

If the Court makes an occupation order or a tenancy order on that application, at any time while that order remains in force, apply to the Court for an order granting to the applicant the possession and use of all or any of the furniture, household appliances, and household effects in that dwelling.

(New Zealand, Domestic Violence Act 1995, Law No. 86 (and amendment 1998)

V. Transfer of Work

A civil servant subject to gender based violence may apply to transfer to another unit or locality (Spain, Amendment to Labor Law, 2005)

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VI. Right to Compensation: Mandatory restitution, civil compensation, state fund

The order of restitution under this section shall direct that— the defendant pay to the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by the court; the United States Attorney enforce the restitution order by all available and reasonable means.

(United States of America, Violence Against Women Act 1994, §2327)

A special fund for survivors of violent crimes and crimes against sexual freedom established

(Spain, Act Concerning Aid and Assistance to Victims of Violent Crimes and Crimes against Sexual Freedom (1995))

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

VII. Granting Immigration Status to Victims

If a girl is at risk of female genital mutilation, she and her family may be granted residence status (Netherlands, Aliens Act Implementation Guidelines 2003; For the granting of immigration status see also, United States of America, Violence Against Women Act 1994; Canada, Immigration and Refugee Protection Act 2002; Sweden, Aliens Act 2005)

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