Violence Against
Women
Cecilia Bailliet
UN Special Rapporteur on
Violence against Women
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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
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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
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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
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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
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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
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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)
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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
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Every woman has the right to be
free from violence in both the
public and the private spheres.
Article 4
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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
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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)
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States parties shall protect
women from all forms of violence,
particularly sexual and verbal
violence
Art 4 (2)
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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
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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
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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
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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
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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
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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
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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:
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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
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Between 1993 and 2005- 377 women
murdered, those cases involving
sexual violence only convicted 33.3%.
Due Diligence Standard
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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)
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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
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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
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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
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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
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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
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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.