Women and Criminal Law part-1

Violence Against Women: International Commitments

Q. 1. Give the definition of Violence Against Woman (VAW) as defined under various international conventions.

Ans. The Council of Europe Convention on preventing and combating violence against women and domestic violence, also known as the Istanbul Convention, provides the following definition of violence against women:

“violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender- based violence that result in, or are likely to result in, physical, sexual. psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

Although the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) includes VAW in its General Recommendations 12 and 19,and the Vienna Declaration and Programme of Action mentions VAW at paragraph 18, it was the 1993 United Nations General Assembly resolution on the Declaration on the Elimination of Violence Against Women which became the first international instrument to explicitly define VAW and elaborate on the subject.

In addition, the term gender-based violence refers to “any acts or threats of acts intended to hurt or make women suffer physically, sexually or psychologically, and which affect women because they are women or affect women disproportionately.” The definition of gender-based violence is most often “used interchangeably with violence against women”, and some articles on VAW reiterate these conceptions by suggesting that men are the main perpetrators of this violence,

Moreover, the definition stated by the 1993 Declaration on the Elimination of Violence Against Women also supported the notion that violence is rooted in the inequality between men and women when the term violence is used together with the term gender-based Articles 1 and 2 of the resolution provide the most widely used definition of violence against women:

Article One 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.

Article Two-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 prostiturion,

In Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence, the Council of Europe stipulated that VAW “includes, but is not limited to, the following”:

(a) violence occurring in the family or domestic unit, including, inter alia, physical and mental aggression, emotional and psychological abuse, rape and sexual abuse, incest, rape between spouses, regular or occasional partners and cohabitants, crimes committed in the name of honour, female genital and sexual mutilation and other traditional practices harmful to women, such as forced marriages,

(b) violence occurring within the general community, including, inter alia, rape, sexual abuse, sexual harassment and intimidation at work, in institutions or elsewhere trafficking in women for the purposes of sexual exploitation and economic exploitation and sex tourism;

(d) violation of the human rights of women in situations of armed conflict, in particular the taking of hostages, forced displacement, systematic rape, sexual slavery, forced pregnancy, and trafficking for the purposes of sexual exploitation and economic exploitation.

These definitions of VAW as being gender-based are seen by some to be unsatisfactory and problematic. These definitions are conceptualized in an understanding of society as patriarchal, signifying unequal relations between men and women. Opponents of such definitions argue that the definitions disregard violence against men and that the term gender, as used in gender hased violence, only refers to women Other critics argue that employing the term gender in this particular way may introduce notions of inferiority and subordination for femininity and superiority for masculinity. There is no widely accepted current definition that covers all the dimensions of gender based violence rather than the one for women that tends to reproduce the concept of binary oppositions masculinity versus femininity.

Q. 2. (a) “Although the history of violence against women is difficult to track, it is clear that much of the violence was accepted, condoned and even legally sanctioned.” Comment.

(b) To what extent different marriage laws across the globe can be held responsible for violence against women ?

Ans. (a) Although the history of violence against women is difficult to track, it is clear that much of the violence was accepted, condoned and even legally sanctioned Examples include that Roman law gave men the right to chastise their wives, even to the point of death, the burning of witches, which was condoned by both the church and the state, and an 18th-century English common law allowing a man to punish his wife using a stick “no wider than his thumb. This rule for punishment of wives prevailed in England and America until the late 19th century.

The history of violence against women remains vague in scientific literature. This is in part because many kinds of violence against women (specifically rape, sexual assault, and domestic violence) are under-reported, often due to societal norms, taboos, stigma, and the sensitive nature of the subject. It is widely recognized that even today, a lack of reliable and continuous data is an obstacle to forming a clear picture of violence against women.

The history of violence against women is closely related to the historical view of women as property and a gender role of subservience. Explanations of patriarchy and an overall world system or status quo in which gender inequalities exist and are perpetuated are cited to explain the scope and history of violence against women. The UN Declaration on the Elimination of Violence against Women (1993) states that “violence against women is a manifestation 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 the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.”

According to the UN, “there is no region of the world, no country and no culture in which women’s freedom from violence has been secured. Several forms of violence are more prevalent in certain parts of the world, often in developing countries. For example, dowry violence and bride burning is associated with India, Pakistan, Bangladesh, Sri Lanka, and Nepal. Acid throwing is also associated with these countries, as well as in Southeast Asia, including Cambodia. Honor killing is associated with the Middle East and South Asia.

Female genital mutilation is found mostly in Africa, and to a lesser extent in the Middle East and some other parts of Asia. Marriage by abduction is found in Ethiopia, Central Asia and the Caucasus. Abuse related to payment of bride price (such as violence, trafficking and forced marriage) is linked to parts of Sub-Saharan Africa and Oceania.

Certain regions are no longer associated with a specific form of violence, but such violence was common until quite recently in those places, this is true of honor-based crimes in Southern/Mediterranean Europe. For instance, in Italy, before 1981, the Criminal Code provided for mitigating circumstances in case of a killing of a woman or her sexual partner for reasons related to honor, providing for a reduced sentence.

Invoking culture to explain particular forms of violence against women risks appearing to legitimize them. There is also debate and controversy about the ways in which cultural traditions, local customs and social expectations, as well as various interpretations of religion, interact with abusive practices. Specifically, cultural justifications for certain violent acts against women are asserted by some states and social groups within many countries claiming to defend their traditions. These justifications are questionable precisely because the defenses are generally voiced by political leaders or traditional authorities. not by those actually affected. The need for sensitivity and respect of culture is an element which cannot be ignored either, thus a sensitive debate has ensued and is ongoing.

There has also been a history of recognizing the harmful effects of this violence. In the 1870s, courts in the United States stopped recognizing the common-law principle that a husband had the right to “physically chastise an errant wife”. The first state to rescind this right was Alabama in 1871. In the UK the right of a husband to inflict moderate corporal punishment on his wife to keep her “within the bounds of duty” was removed in 1891.

In the 20th and 21st centuries, and in particular since the 1990s, there has been increased activity on both the national and international levels to research, raise awareness and advocate for the prevention of all kinds of violence against women. Most often, violence against women has been framed as a health issue, and also as a violation of human rights. A study in 2002 estimated that at least one in five women in the world had been physically or sexually abused by a man sometime in their lives, and that “gender-based violence accounts for as much death and ill-health in women aged 15-44 years as cancer, and is a greater cause of ill-health than malaria and traffic accidents combined.”

Certain characteristics of violence against women have emerged from the research. For example, acts of violence against women are often not unique episodes, but are ongoing over time. More often than not, the violence is perpetrated by someone the woman knows, not by a stranger. The research seems to provide convincing evidence that violence against women is a severe and pervasive problem the world over, with devastating effects on the health and well-being of women and children.

(b) Relation between VAW and marriage laws- The relation between violence against women and marriage laws, regulations and traditions has also been discussed while studying the subject. The US and English law subscribed until the 20th century to the system of coverture, that is, a legal doctrine under which, upon marriage, a woman’s legal rights were subsumed by those of her husband. Today, outside the West, many countries severely restrict the rights of married women: for example, in Yemen, marriage regulations state that a wife must obey her husband and must not leave home without his permission. In Iraq husbands have a legal right to “punish” their wives. The criminal code states at Paragraph 41 that there is no crime if an act is committed while exercising a legal right; examples of legal rights include: “The punishment of a wife by her husband, the disciplining by parents and teachers of children under their authority within certain limits prescribed by law or by custom” In the West. married women faced discrimination until just a few decades ago for instance, in France, married women received the right to work without their husband’s permission in 1965. In Spain, during the Franco era, a married woman required her husband’s consent (permiso marital) for nearly all economic activities, including employment, ownership of property and traveling away from home; the permiso marital was abolished in 1975. Concerns exist about violence related to marriage both inside marriage (physical abuse, sexual violence, restriction of liberty) and in relation to marriage customs (dowry, bride price, forced marriage, child marriage, marriage by abduction, violence related to female premarital virginity). Claudia Card, professor of Philosophy at the University of Wisconsin- Madison, writes that “The legal rights of access that married partners have to each other’s persons, property, and lives makes it all but impossible for a spouse to defend herself (or himself), or to be protected against torture, rape, battery, stalking, mayhem, or murder by the other spouse. Legal marriage thus enlists state support for conditions conducive to murder and mayhem.”

Q. 3. Discuss some of the most important milestones on the international level for the prevention of violence against women.

Ans. Some of the most important milestones on the international level for the prevention of violence against women include:

The 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which recognizes violence as a part of discrimination against women in recommendations 12 and 19.

The 1993 World Conference on Human Rights, which recognized violence against women as a human rights violation, and which contributed to the following UN declaration.

The 1993 UN Declaration on the Elimination of Violence against Women was the first international instrument explicitly defining and addressing violence against women. This document specifically refers to the historically forever- present nature of gender inequalities in understanding violence against women. This Declaration, as well as the World Conference of the same year, is often viewed as a “turning point” at which the consideration of violence against women by the international community began to be taken much more seriously, and after which more countries mobilized around this problem.

The 1994 International Conference on Population and Development, linking violence against women to reproductive health and rights, and also providing recommendations to governments on how to prevent and respond to violence against women and girls.

In 1996, the World Health Assembly (WHA) declared violence a major public health issue, and included in the subtypes recognized were intimate partner violence and sexual violence, two kinds of violence which are often perpetrated as violence against women. This was followed by a WHO report in 2002. The UN also created the Trust Fund to Support Actions to Eliminate Violence Against Women.

In 1999, the UN adopted the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women and designated November 25 as the International Day for the Elimination of Violence against Women.

In 2002, as a follow-up of the WHA declaration in 1996 of violence as a major public health issue, the World Health Organization published the first World Report on Violence and Health, which addressed many types of violence and their effect on public health, including forms of violence affecting women particularly strongly. The report specifically noted the sharp rise in civil society organizations and activities directed at responding to gender-based violence against women from the 1970s to the 1990s.

In 2004, the World Health Organization published its “Multi-country study on Women’s Health and Domestic Violence against Women”, a study of women’s health and domestic violence by surveying over 24,000 women in 10 countries from all regions of the world, which assessed the prevalence and extent of violence against women, particularly violence by intimate partners. and linked this with health outcomes to women as well as documenting strategies and services which women use to cope with intimate-partner violence.

The 2006 UN Secretary General’s “In-depth study on all forms of violence against women”, the first comprehensive international document on the issue.

The 2011 Council of Europe Convention on preventing and combating violence against women and domestic violence, which is the second regional legally-binding instrument on violence against women and girls.

In 2013, the United Nations Commission on the Status of Women (CSW) adopted, by consensus, Agreed Conclusions on the elimination and prevention of all forms of violence against women and girls (formerly, there were no agreed-upon conclusions).

Also in 2013, the UN General Assembly passed its first resolution calling for the protection of defenders of women’s human rights. The resolution urges states to put in place gender-specific laws and policies for the protection of women’s human rights defenders and to ensure that defenders themselves are involved in the design and implementation of these measures, and calls on states to protect women’s human rights defenders from reprisals for cooperating with the UN and to ensure their unhindered access to and communication with international human rights bodies and mechanisms.

Additionally, on the national level, individual countries have also organized efforts (legally, politically, socially) to prevent, reduce and punish violence against women. Many countries have enacted comparable legislative. political and social instruments to address violence against women. Experts in the international community generally believe, however, that solely enacting punitive legislation for prevention and punishment of violence against women is not sufficient to address the problem. For example, although much stricter laws on violence against women have been passed in Bangladesh, violence against women is still rising. Instead, it is thought that wide societal changes to address gender inequalities and women’s empowerment will be the way to reduce violence against women.

The UN Declaration on the Elimination of Violence Against Women, 1993.

Q. 1. Write a note on The UN Declaration on the Elimination of Violence Against Women, 1993. How does the does the resolution defines Violence Against Women and what rights of women have been recognised by it? Also give an account of the challenges faced by it.

Ans. The Declaration on the Elimination of Violence Against Women was adopted by the United Nations General Assembly in its resolution of 20 December 1993. Contained within it is the recognition of “the urgent need for the universal application to women of the rights and principles with regard to equality, security, liberty, integrity and dignity of all human beings”. The resolution is often seen as complementary to, and a strengthening of, the work of the Convention on the Elimination of All Forms of Discrimination against Women and Vienna Declaration and Programme of Action. It recalls and embodies the same rights and principles as those enshrined in such instruments as the Universal Declaration of Human Rights and Articles 1 and 2 provide the most widely used definition of violence against women. As a consequence of the resolution, in 1999, the General Assembly, led by the representative from the Dominican Republic, designated 25 November as the International Day for the Elimination of Violence against Women.

The international recognition that women have a right to a life free from violence is a recent one. Historically, their struggles with violence, and with the impunity that often protects the perpetrators, is linked with their fight to overcome discrimination. Since its founding the United Nations has concerned itself with the advancement of women’s rights, but did not specifically target the high rates of female targeted violence until 1993. One of the aims of the resolution was to overturn the prevailing governmental stance that violence against women was a private, domestic matter not requiring state intervention.

Definition of Violence against women: Articles 1 and 2 of the resolution provide ‘ne most widely used defir tion of violence against women

Article One: For the purpe of this Declaration, the term “violence against women” means any act o 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.

Article Two: Violence against women shall be understood to encompass, but not be limited to, the following:

Rights of women recognised by the UN Declaration:

Article 3 states that 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,

(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.

Challenges Many advocates of Women’s Rights as Human Rights have expressed concerns that much of the ground gained by the declaration has been threatened by the rise of more conservative forces within the international community. In March 2003, during a meeting of the UN Commission on the Status of Women the delegate from Iran objected to the inclusion of a paragraph that called on governments to “condemn violence against women and refrain from invoking any custom, tradition, or religious consideration to avoid their obligations with respect to its elimination as set out in the Declaration of the Elimination of Violence against Women.” Representatives from Egypt, Pakistan, Sudan and US also raised objections, making it the first ever diplomatic failure at the UN Commission on the Status of Women.

Q. 2. Why was a need felt for a separate Declaration on the Elimination of Violence against Women?

Ans. Need for a separate Declaration on the Elimination of Violence against Women: The U.N. General Assembly, while proclaiming the Declaration on the Elimination of Violence against Women states that

(i) There is urgent need for the universal application to women of the rights and principles with regard to equality, security, liberty, integrity and dignity of all human beings.

(ii) It had noted that those rights and principles are enshrined in international instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

(iii) It was recognised that effective implementation of the Convention on the Elimination of All Forms of Discrimination against Women would contribute to the elimination of violence against women and that the Declaration on the Elimination of Violence against Women, set forth in the present resolution, will strengthen and complement that process.

(iv) The UN General assembly was concerned that violence against women is an obstacle to the achievement of equality, development and peace, as recognized in the Nairobi Forward-looking Strategies for the Advancement of Women, in which a set of measures to combat violence against women was recommended, and to the full implementation of the Convention on the Elimination of All Forms of Discrimination against Women.

(v) The UNGA affirmed that violence against women constitutes a violation of the rights and fundamental freedoms of women and impairs or nullifies their enjoyment of those rights and freedoms, and concerned about the long-standing failure to protect and promote those rights and freedoms in the case of violence against women.

(vi) The UNGA also recognized that violence against women is a manifestation 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 the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.

(vii) The UNGA was concerned that some groups of women, such as women belonging to minority groups, indigenous women, refugee women, migrant women, women living in rural or remote communities, destitute women, women in institutions or in detention, female children, women with disabilities. elderly women and women in situations of armed conflict, are especially vulnerable to violence.

(viii) The UNGA recalled the conclusion in paragraph 23 of the annex to Economic and Social Council resolution 1990/15 of 24 May 1990 that the recognition that violence against women in the family and society was pervasive and cut across lines of income, class and culture had to be matched by urgent and effective steps to eliminate its incidence.

(ix) It also relled the Economic and Social Council resolution 1991/18 of 30 May 1991, in which the Council recommended the development of a framework for an international instrument that would address explicitly the issue of violence against women.

(x) The Assembly welcomed the role that women’s movements are playing in drawing increasing attention to the nature, severity and magnitude of the problem of violence against women.

(xi) The UNGA was alarmed that opportunities for women to achieve legal, social, political and economic equality in society are limited, inter alia, by continuing and endemic violence.

(xii) Finally the UNGA was convinced that in the light of the above there is a need for a clear and comprehensive definition of violence against women, a clear statement of the rights to be applied to ensure the elimination of violence against women in all its forms, a commitment by States in respect of their responsibilities, and a commitment by the international community at large to the elimination of violence against women.

Q.3. What are the responsibilities of the international community with regard to elimination of violence against women, as envisaged by the UN Declaration of Elimination of Violence against Women, 1993?

Ans. Article 4 of the declaration entrusts a duty on member States to condemn violence against women and and that theyshould 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 against women and, to this end. should

(a) Consider, where they have not yet done so, ratifying or acceding to the Convention on the Elimination of All Forms of Discrimination against Women or withdrawing reservations to that Convention;

(b) Refrain from engaging in violence against women,

(c) Exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons;

(d) Develop penal, civil, labour and administrative sanctions in domestic legislation to punish and redress the wrongs caused to women who are subjected to violence, women who are subjected to violence should be provided with access to the mechanisms of justice and, as provided for by national legislation. to just and effective remedies for the harm that they have suffered. States should also inform women of their rights in seeking redress through such mechanisms;

(e) Consider the possibility of developing national plans of action to promote the protection of women against any form of violence, or to include provisions for that purpose in plans already existing, taking into account, as appropriate, such cooperation as can be provided by non-governmental organizations, particularly those concerned with the issue of violence against women,

(f) Develop, in a comprehensive way, preventive approaches and all those measures of a legal, political, administrative and cultural nature that promote the protection of women against any form of violence, and ensure that the re- victimization of women does not occur because of laws insensitive to gender considerations, enforcement practices or other interventions;

(g) Work to ensure, to the maximum extent feasible in the light of their available resources and, where needed, within the framework of international cooperation, that women subjected to violence and, where appropriate, their children have specialized assistance, such as rehabilitation, assistance in child care and maintenance, treatment, counselling, and health and social services, facilities and programmes, as well as support structures, and should take all other appropriate measures to promote their safety and physical and psychological rehabilitation;

(h) Include in government budgets adequate resources for their activities related to the elimination of violence against women;

(i) Take measures to ensure that law enforcement officers and public officials responsible for implementing policies to prevent, investigate and punish violence against women receive training to sensitize them to the needs of women;

(j) Adopt all appropriate measures, especially in the field of education, to modify the social and cultural patterns of conduct of men and women and to eliminate prejudices, customary practices and all other practices based on the idea of the inferiority or superiority of either of the sexes and on stereotyped roles for men and women,

(k) Promote research, collect data and compile statistics, especially Concerning domestic violence, relating to the prevalence of different forms of violence against women and encourage research on the causes, nature, seriousness and consequences of violence against women and on the effectiveness of measures implemented to prevent and redress violence against women, those statistics and findings of the research will be made public.

(1) Adopt measures directed towards the elimination of violence against women who are especially vulnerable to violence,

(m) Include, in submitting reports as required under relevant human rights instruments of the United Nations, information pertaining to violence against women and measures taken to implement the present Declaration.

(n) Encourage the development of appropriate guidelines to assist in the implementation of the principles set forth in the present Declaration:

(o) Recognize the important role of the women’s movement and non- governmental organizations world wide in raising awareness and alleviating the problem of violence against women:

(p) Facilitate and enhance the work of the women’s movement and non- governmental organizations and cooperate with them at local, national and regional levels,

(q) Encourage intergovernmental regional organizations of which they are members to include the elimination of violence against women in their programmes, as appropriate

Article 5 puts an obligation upon the organs and specialized agencies of the United Nations system so that they should, within their respective fields of competence, contribute to the recognition and realization of the rights and the principles set forth in the present Declaration and, to this end, should, inter alia:

(a) Foster international and regional cooperation with a view to defining regional strategies for combating violence, exchanging experiences and financing programmes relating to the elimination of violence against women.

(b) Promote meetings and seminars with the aim of creating and raising awareness among all persons of the issue of the elimination of violence against women,

(c) Poster coordination and exchange within the United Nations system between human rights treaty bodies to address the issue of violence against women effectively.

(d) Include in analyses prepared by organizations and bodies of the United Nations system of social trends and problems, such as the periodic reports on the world social situation, examination of trends in violence against women,

(e) Encourage coordination between organizations and bodies of the United Nations system to incorporate the issue of violence against women into ongoing programmes, especially with reference to groups of women particularly vulnerable to violence;

(f) Promote the formulation of guidelines or manuals relating to violence against women, taking into account the measures referred to in the present Declaration,

(g) Consider the issue of the elimination of violence against women, as appropriate, in fulfilling their mandates with respect to the implementation of human rights instruments;

(h) Cooperate with non-governmental organizations in addressing the issue of violence against women.

Women and Criminal Law part-1

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