| UNITED | |
| NATIONS | E |
| Economic and Social | Distr. |
| Council | GENERAL | |
| E/CN.4/1995/42 | ||
| 22 November 1994 | ||
| Original: ENGLISH |
1. At its fiftieth session on 4 March 1994, the Commission on Human Rights adopted resolution 1994/45, entitled "The question of integrating the rights of women into the human rights mechanism of the United Nations and the elimination of violence against women", in which it decided to appoint, for a three-year- period, a special rapporteur on violence against women, including its causes and consequences.
2. In the same resolution, the Commission on Human Rights invited the Special Rapporteur, in carrying out that mandate, and within the framework of the Universal Declaration of Human Rights and all other international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination against Women and the Declaration on the Elimination of Violence against Women, to:
4. By its decision 1994/254 of 22 July 1994, the Economic and Social Council endorsed Commission on Human Rights resolution 1994/45.
5. In that resolution the Commission also called for the elimination of gender-based violence in the family, within the general community and where perpetrated or condoned by the State. It also emphasized the duty of Governments to take appropriate and effective action concerning acts of violence against women, whether those acts are perpetrated by the State or by private persons.
6. Furthermore, in accordance with paragraph 10 of the same resolution, the Special Rapporteur was mandated to carry out field missions, either separately or jointly, with other special rapporteurs and working groups, as well as to consult periodically with the Committee on the Elimination of Discrimination against Women. In addition, the Commission requested the Secretary-General to ensure that the reports of the Special Rapporteur were brought to the attention of the Commission on the Status of Women to assist in the Commission's work in the area of violence against women.
8. The Special Rapporteur has understood her mandate to contain two components. The first consists of setting out the elements of the problem before her, the international legal standards and a general survey of incidents and issues as they relate to the many problem areas. The second component consists of identifying and investigating factual situations, as well as allegations which may be forwarded to the Special Rapporteur by concerned parties.
9. With regard to the second component, the Special Rapporteur deems it useful to take a more specific approach by endeavouring to identify more precisely situations of violence against women. For this purpose the Special Rapporteur, in a spirit of dialogue, will approach concerned Governments and request clarifications on allegations regarding violence against women that she may have received. This method of direct dialogue with Governments is consistent with the approach of the Commission on Human Rights, which invited the Special Rapporteur "to seek and receive information on violence against women, its causes and consequences, from Governments" and further requested "all Governments to cooperate with and assist the Special Rapporteur in the performance of the tasks and duties mandated and to furnish all information requested".
10. Taking into consideration the alarming situation of violence against women throughout the world, the Special Rapporteur intends to establish dialogue with Governments concerning allegations and prospective field missions with a view to assisting the Governments concerned to find durable solutions for the elimination of violence against women in their societies.
11. In addition to inquiring into specific allegations and in accordance with paragraph 10 of resolution 1994/45, the Special Rapporteur is planning to undertake a number of field missions in connection with her first and second reports, to be submitted in 1996 and 1997, respectively. These field visits will cover all geopolitical regions. In particular, the Special Rapporteur envisages visiting the Asian, African and Eastern European regions in 1995, and the Latin American, Western European and other and Asian regions in 1996.
12. On 29 July 1994, the Secretary-General sent a note verbale to Governments transmitting the Special Rapporteur's request, with reference to paragraph 7 (a) of resolution 1994/45, for relevant information and contributions in order to assist her in her work.
13. Information and materials were requested in the areas of:
15. At the time of submission of the present report, replies had been received from Angola, Argentina, Burkina Faso, Brunei Darussalam, China, Cyprus, Denmark, Ecuador, Finland, Germany, Iraq, Kuwait, Luxembourg, Malta, Mauritania, Mexico, New Zealand, Peru, the Philippines, San Marino, Slovenia, St. Vincent and the Grenadines, Switzerland, the Syrian Arab Republic, Turkey, the United Kingdom of Great Britain and Northern Ireland, the United States of America and Yugoslavia.
16. Requests for information on violence against women, its causes and consequences, were also addressed to treaty bodies, other special rapporteurs responsible for various human rights questions, specialized agencies, United Nations bodies and organs, and intergovernmental and non-governmental organizations, including women's organizations.
17. The Special Rapporteur received responses from the Division for the Advancement of Women, the Crime Prevention and Criminal Justice Branch of the United Nations Office at Vienna, the Economic and Social Commission for Asia and the Pacific, the Economic Commission for Latin America and the Caribbean, the Office of the United Nations High Commissioner for Refugees, the International Court of Justice, the United Nations Research Institute for Social Development, the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders, the Food and Agriculture Organization of the United Nations, the United Nations Educational, Scientific and Cultural Organization and the World Health Organization, as well as from the United Nations Development Programme offices in Burundi, El Salvador, the Gambia, Guatemala, Guyana, India, the Libyan Arab Jamahiriya, Madagascar, Pakistan, Panama, Peru, Senegal, the Sudan, Turkey, the United Republic of Tanzania and Venezuela.
18. Replies were also received from the Conference on Security and Cooperation in Europe, the Commonwealth Secretariat, the Council of Europe, the Inter- American Court of Human Rights, the Inter-Parliamentary Union, the International Organization for Migration and Interpol, as well as the following non- governmental organizations: Amnesty International, Baha'i International Community, Coalition Against Trafficking in Women, Education International, Human Rights Watch/Women's Rights Project, Inter-African Committee on Traditional Practices, International Federation of Business and Professional Women, International Fellowship of Reconciliation, International Institute of Humanitarian Law, Medical Women's International Association, Socialist Women International, World Education Fellowship.
19. The Special Rapporteur will use the information received mainly in her second and third reports when she will be reporting on specific issues in greater detail.
21. At the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace, held at Nairobi in July 1985, the issue of violence against women was once again only raised as an afterthought to issues of discrimination, health and economic and social issues.
22. Paragraph 258 of the Nairobi Forward-Looking Strategies for the Advancement of Women, adopted by the World Conference, states:
24. The issue of violence against women was taken up by the Economic and Social Council in recommendations and conclusions arising from the first review and appraisal of the implementation of the Nairobi Forward-looking Strategies, annexed to its resolution 1990/15 of 24 May 1990, in which it recognized that:
25. In the same year, at the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders, it was stated that violence against women was seen as a result of the power imbalance between women and men, and that violence sustained that imbalance.
26. In March 1991, the Commission on the Status of Women, at its thirty-fifth session, in draft resolution II, recommended to the Economic and Social Council for adoption that a framework for an international instrument be developed in consultation with the Committee for the Elimination of Discrimination against Women that would address explicitly the issue of violence against women.
27. Subsequently, the Economic and Social Council, upon the recommendation of the Commission on the Status of Women, adopted resolution 1991/18 of 30 May 1991, entitled "Violence against women in all its forms", in which inter alia it urged Member States to adopt, strengthen and enforce legislation prohibiting violence against women and to take all appropriate administrative, social and educational measures to protect women from all forms of physical and mental violence; and, more importantly, recommended the development of a framework for an international instrument that would explicitly address the issue.
28. As a result, in November 1991, another expert meeting on violence against women was convened at Vienna, under the auspices of the Division for the Advancement of Women. The Expert Group recommended, inter alia, the improvement of reporting by States on violence against women to the Committee on the Elimination of Discrimination against Women (CEDAW), and the appointment of a special thematic rapporteur on violence against women, as well as preparing a draft United Nations declaration on violence against women, to be submitted to the Commission on the Status of Women and to CEDAW.
29. In 1992, CEDAW, at its eleventh session, took the important step of formally including under gender-based discrimination gender-based violence
30. In 1993, the Commission on the Status of Women had before it at its thirty-seventh session a draft declaration on violence against women, as contained in a report of the Secretary-General (E/CN.6/1993/12), and subsequently decided to convene an inter-sessional working group, which met in September 1992, to develop further the draft declaration on violence against women.
31. Also in 1993, upon the recommendation of the Commission on the Status of Women, the Economic and Social Council, in its resolution 1993/10 of 27 July 1993, urged the General Assembly to adopt the draft declaration on the elimination of violence against women, and in resolution 1993/26 also of 27 July 1993, entitled "Violence against women in all its forms", urged Governments to give their full support to its adoption.
32. The process of anchoring the issue of violence against women firmly on the international agenda culminated in the adoption, without a vote, by the General Assembly at its forty-eighth session, of resolution 48/104 on 20 December 1993, in which it proclaimed the Declaration on the Elimination of Violence Against Women.
33. This Declaration is the first international human rights instrument to deal exclusively with violence against women. It affirms that violence against women both violates and impairs or nullifies the enjoyment by women of human rights and fundamental freedoms and is concerned about the long-standing failure to protect and promote those rights and freedoms in relation to violence against women. For the first time also, a clear and comprehensive definition of violence against women has been attempted in article 1 of the Declaration (see chap. II).
34. Also in 1993, a parallel process advocating the elimination of violence against women emerged in other human rights mechanisms of the United Nations. The Commission on Human Rights, at its forty-ninth session, in its resolution 1993/46 of 8 March 1993, condemned all acts of violence and violations of human rights directed specifically against women and decided to consider the appointment of a special rapporteur on violence against women at its fiftieth session.
35. Similarly, the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights, held at Vienna in June 1993, contains important provisions in the field of the human rights of women. Part I, paragraph 18, reads as follows:
40. As part of the preparatory process for the Fourth World Conference on Women, to be held in Beijing in 1995, a draft platform of action is being elaborated. In Section II.C of this draft platform, as approved by the Commission on the Status of Women, at its thirty-eighth session, in its resolution 38/10, violence against women is recognized as a global problem, taking various forms in both public and private life, which constitutes a violation of basic human rights, instilling fear and insecurity in women's lives.
41. Lastly, on 9 June 1994 the General Assembly of the Organization of American States adopted the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (the "Convention of Belém do Pará").
42. It is evident that the human rights of women, and more specifically their integration into the mainstream of United Nations activities in the field of human rights, is gaining increasing political attention on the international human rights agenda. The appointment of a special rapporteur on violence against women by the Commission on Human Rights should be seen as one important step in this direction, as well as the culmination of joint efforts of active and interested Governments, non-governmental organizations and women's groups worldwide.
43. With regard to the integration of the human rights of women into the mainstream of United Nations human rights activities, and in accordance with paragraphs 10, 11 and 12 of Commission resolution 1994/45 and paragraph (b) of Economic and Social Council decision 1994/254, the Special Rapporteur has been closely following the preparatory process for the Fourth World Conference on Women, to be held in Beijing in September 1995. In this connection, the Special Rapporteur has met with representatives of the secretariat for the World Conference at the Division for the Advancement of Women and participated at the Arab Regional Preparatory Meeting for the World Conference on Women, held at Amman from 6 to 10 November 1994.
44. In addition, the Special Rapporteur will meet with the members of the Committee on the Elimination of Discrimination against Women at its fourteenth session, in January 1995, and is planning to attend the thirty-ninth session of the Commission on the Status of Women, in March 1995.
45. On the basis of the above, as well as in an attempt to give full justice to the complexity of the issue, the Special Rapporteur has prepared this preliminary report in which she recalls the terms of her mandate, her interpretation of these terms and the working methods in the introduction. Chapter I focuses on the nature of the problem and the specific causes and consequences of violence against women. Chapter II outlines the relevant international legal standards and human rights instruments applicable to violence against women. Chapter III addresses the general issues concerning the problems arising from such violence in the family, the community and where perpetrated or condoned by the State. Finally, in chapter V the Special Rapporteur submits conclusions and preliminary recommendations based on her analysis of the information available at the time of the finalization of the present report.
47. Violence against human beings has been one of the major factors which has prevented the realization of human rights goals in the twentieth century. War, repression, and the brutalization of public and private life have destroyed the possibility of human rights being enjoyed as a universal phenomenon. Violence against women, in particular, has inhibited women as a group from enjoying the full benefits of human rights. Women have been vulnerable to acts of violence in the family, in the community and by States. The recorded incidents of such violence have reached such unprecedented proportions that they have shocked the conscience of the world. As a result, the international community has decided to take concerted action against incidents of violence against women as part of the general campaign for human rights.
48. Women are vulnerable to violence because of their female sexuality (resulting in, inter alia, rape and female genital mutilation); because they are related to a man (domestic violence, dowry deaths, sati) or because they belong to a social group, where violence against women becomes a means of humiliation directed at the group (rape in times of armed conflict or ethnic strife). Women are subject to violence in the family (battering, sexual abuse of female children, dowry related violence, incest, deprivation of food, marital rape, female genital mutilation), to violence in the community (rape, sexual abuse, sexual harassment, trafficking in women, forced prostitution) and violence by the State (women in detention and rape during times of armed conflict).
50. Women are subject to certain universal forms of abuse such as rape and domestic violence. In addition, certain cultural forms are specific to regions and countries. These include female genital mutilation, virginity tests, bride burning or the binding of the feet of female children. It is argued that any attempt to universalize women's experience is to conceal other forms of oppression such as those based on race, class or nationality. This reservation must be noted and acknowledged. And yet it must be accepted that there are patterns of patriarchal domination which are universal, though this domination takes a number of different forms as a result of particular and different historical experiences.
51. If the roots of female subordination lie in historical power relations within society, then the institutions of State and civil society must accept responsibility for female subordination, including violence against women. The State bears a primary responsibility not only to refrain from encouraging acts of violence against women but actively to intervene in preventing such acts from taking place. State institutions such as prisons and detention centres are often the sites of violence against women. Rape is often used as an instrument of torture. State inaction in situations of violence against women is one of the major factors that allows such violence to continue.
52. In fact, in modern times, the State has become an arena of conflict: on the one hand, it may act according to legislation and practices which are against women's interests; but on the other hand, the State may emerge as the major instrument in transforming certain legislative, administrative and judicial practices which empower women to vindicate their rights. The negligence of the State may be the cause of increased violence against women, while the active intervention of the State may actually be the catalyst for reforming power relations within society.
53. Among the historical power relations responsible for violence against women are the economic and social forces which exploit female labour and the female body. Economically disadvantaged women are more vulnerable to sexual harassment, trafficking and sexual slavery. They are also employed as bonded labour and low- paid labour in many economic enterprises throughout the world. As migrant workers, they often face innumerable hardships in foreign countries.
55. Modern technology may also be a factor impinging on the question of violence against women. "Ecofeminists" have continuously pointed out that modern technology has resulted in the destruction of the lifestyle of rural women in many parts of the globe.
56. The area which is particularly relevant to the problem of violence against women in the context of technology is the issue of reproductive technology. Though reproductive technology has allowed women greater freedom and greater choice with regard to the important function of childbirth, it has also created innumerable health problems for women, problems which are often ignored by the medical establishment. These health problems have resulted in female deaths which in other circumstances might have been avoided. Women's access to adequate health care becomes a crucial factor in this regard. In addition, reproductive technology which allows for preselection of the sex of the child has resulted in the killing of female foetuses and selective abortion. The practice of surrogate motherhood which has developed recently has also resulted in the exploitation of the bodies of women from the third world. Modern technology has been the means of liberation and choice for many women, but for others it has resulted in death and exploitation.
57. In the context of the historical power relations between men and women, women must also confront the problem that men control the knowledge systems of the world. Whether it be in the field of science, culture, religion or language, men control the accompanying discourse. Women have been excluded from the enterprise of creating symbolic systems or interpreting historical experience.
59. The control of female sexual behaviour is an important aspect of many law codes.
60. In many traditions, concepts of honour are linked to a woman's sexuality. Violence against women is often justified by the argument that that honour has been violated by a woman's sexual behaviour.
61. If attitudes towards female sexuality are often the cause of violence against women, it becomes important for society to "protect" its women from the violence of "the other". This protection often entails restrictions being placed on women, whether in the form of dress codes or the freedom of movement. It also implies that women who respect these rules are protected, but that those who assert equality and independence are more vulnerable to violence. Women who challenge the codes of dress and the restrictions on movement are often targets of male violence.
62. Many authors who have analysed the subordination of women argue that fear of rape and male sexual assault remains the most important aspect of life for women in all societies.
64. The ideologies which justify the use of violence against women base their discussion on a particular construction of sexual identity. The construction of masculinity often requires that manhood be equated with the ability to exert power over others, especially through the use of force. Masculinity gives man power to control the lives of those around him, especially women. The construction of femininity in these ideologies often requires women to be passive and submissive, to accept violence as part of a woman's estate. Such ideologies also link a woman's identity and self-esteem to her relationship to her father, husband or son. An independent woman is often denied expression in feminine terms. In addition, standards of beauty, defined by women, often require women to mutilate themselves or damage their health, whether with regard to foot binding, anorexia nervosa and bulimia.
65. Article 4 of the Declaration on the Elimination of Violence against Women states clearly that "States should condemn violence against women and should not invoke custom, tradition or religious consideration to avoid their obligations with respect to its elimination".
66. It is universally accepted that the spirit of all the world's religions is dedicated to equality, including equality between the sexes. Though interpretations may vary, there is no question that all the world's religions are committed to the pursuit of equality and human rights. However, certain man-made practices performed in the name of religion not only denigrate individual religions but violate internationally accepted norms of human rights, including women's rights. Recent religious movements, often termed "fundamentalist", have sought to clothe these discriminatory practices with religious sanctity. In most societies there is an ongoing dialogue between women interested in women's rights and those who are close to religious traditions. It is the concern of the international community that this dialogue results in the elimination of man-made practices which violate human rights and the spirit of equality contained in the world's religions. This question should be high on the list of priorities. Religious considerations should never be used to justify the use of violence against women.
67. Certain customary practices and some aspects of tradition are often the cause of violence against women. Besides female genital mutilation, a whole host of practices violate female dignity. Foot binding, male preference, early marriage, virginity tests, dowry deaths, sati, female infanticide and malnutrition are among the many practices which violate a woman's human rights. Blind adherence to these practices and State inaction with regard to these customs and traditions have made possible large-scale violence against women. States are enacting new laws and regulations with regard to the development of a modern economy and modern technology and to developing practices which suit a modern democracy, yet it seems that in the area of women's rights change is slow to be accepted.
68. Not all customs and traditions are unprotective of women's rights. There are certain traditions and customary practices in all parts of the world which actually promote and defend women's rights and women's dignity. However, those customs and traditions which involve violence against women must be challenged and eliminated as violating the basic tenants of international human rights law.
69. Elements of the national and international media may also be blamed for causing attitudes which give rise to violence against women. The media sometimes reproduce negative stereotypes of women. More importantly, by often glamourizing the culture of violence they allow for the widespread acceptance of violence as a means of resolving conflict in society or in the home. Pornography is perhaps the extreme manifestation of media violence against women. Although this question involves important issues concerning the right to freedom of expression, the portrayal of violence against women in pornographic literature and film, where women are shown bound, battered, tortured, humiliated and degraded, is a major problem for those confronting violence against women in their societies. Pornography is both a symptom and a cause of violence against women. Pornography in itself violates female dignity but, in addition, it often promotes attitudes and practices which result in violence being directed against women.
74. In certain cultural contexts, especially those in which female genital mutilation is practised, a woman is denied her existence as a sexual being with needs and expectations. This denial of female sexuality through the mutilation of the body has to be seen as a violation of a fundamental human right.
75. Women who are at the receiving end of violence have serious health problems. In recent times, studies have been conducted on the harmful physical and emotional impact of violence against women, such as on the harmful effects of female genital mutilation on the health of women. Other forms of abuse also result in physical injury to the body of the victim. In addition there are psychological effects. Abused women are subject to depression and personality disorders. They manifest high levels of anxiety and somatic disorders. These psychological effects have a negative effect on the women as they paralyse them and inhibit their self-determination. What is termed the "traumatic syndrome of abused women" includes lack of volitional autonomy, fear, anguish, depression and in some cases suicide.
76. Violence in the family, in particular, has serious consequences for both women and children. Children often show signs of post-trauma stress and have behavioural and emotional disorders. In addition, a Canadian study shows that males coming from homes where there is spousal abuse are 1,000 per cent more likely to beat their own wives than those who come from families where there is no such abuse.
77. In terms of development, violence prevents women from participating fully in the life of the family and the community and in society. Energies which might be directed towards social good and development are curtailed. Women's potential and their contribution towards development and growth is an important aspect of the development process. Violence against women prevents women as well as society from realizing their full potential.
78. The cost to society in terms of violence against women is phenomenal. Much of the cost is hidden since statistics on this issue are rare. But the United States, for example, spent US$ 27.6 million on refugee accommodation for victims of violence in 1987 alone.
80. Many international legal instruments dealing with human rights include the protection of women from violence in their provisions. The Universal Declaration of Human Rights, in article 1, states that "all human beings are born free and equal in dignity and rights". Article 2 provides that "everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Article 3 of the Universal Declaration provides that "everyone has the right to life, liberty and security of person". Article 5 provides that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". The non-discrimination clause, taken together with articles 3 and 5, means that any form of violence against women which can be construed as a threat to her life, liberty or security of person or which constitutes torture or cruel, inhuman or degrading treatment is not in keeping with the Universal Declaration and is therefore a violation of the international obligations of Member States.
81. Other instruments, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, likewise prohibit violence against women. Article 2 of the International Covenant on Civil and Political Rights contains a non-discrimination clause similar to that contained in article 2 of the Universal Declaration. In addition, article 26 of the Covenant argues:
82. Article 3 of the International Covenant on Economic, Social, and Cultural Rights guarantees the equal right of men and women to the enjoyment of all rights set forth in that Covenant and many of the substantive rights set out in the Covenant cannot be enjoyed by women if gender-based violence is widespread. For example, article 7 of the International Covenant on Economic and Social Rights ensures the right of everyone to the enjoyment of just and favourable conditions of work. This, by implication, entails that women must be free of violence and harassment at the workplace.
83. In times of war, the Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 (the Fourth Geneva Convention), states clearly in its article 27 that "Women shall be especially protected against any attack on their honour in particular against rape, enforced prostitution or any form of indecent assault". This section is echoed in common article 3 of the Geneva Conventions and in Protocol II to the Geneva Conventions.
84. The most extensive instrument dealing exclusively with the rights of women, however, is the Convention on the Elimination of All Forms of Discrimination against Women, which came into force in September 1981. Although this instrument does not explicitly deal with violence against women, except in the areas of trafficking and prostitution (art. 6), many of the anti-discrimination clauses contained in it provide for the protection of women from violence. Additionally, many of the recent recommendations of the monitoring body of the Convention, the Committee for the Elimination of Discrimination Against Women (CEDAW), especially General recommendation No. 19, have addressed the issue of gender-based violence and provide the sole source of legally binding material at the international level dealing expressly with violence against women.
85. The Convention on the Elimination of All Forms of Discrimination against Women is perhaps best described as an international bill of rights for women as it sets out in detail both what is to be regarded as discrimination against women and the measures that have to be taken in order to eliminate this discrimination. Women's rights are conceptualized as human rights and a "non-discrimination" model is adopted, so that women's rights are seen to be violated if women are denied the same rights as men. Article 1 of the Convention defines discrimination against women as
86. Furthermore, CEDAW has on various occasions recommended that the issue of violence against women be included in the reports submitted to it by the State Parties. In General recommendation 12, adopted in 1989, the Committee requested that States include in their reports information about violence against women and the measures taken to eliminate such violence.
87. General recommendation No. 19,
88. General recommendation 19 also deals with specific articles of the Convention and how they relate to violence against women. The specific areas discussed are (i) traditional attitudes, customs and practices (arts. 2 (f), 5 and 10 (c)), (ii) all forms of traffic and exploitation of prostitution of women (art. 6), (iii) violence and equality in employment (art. 11), (iv) violence and health (art. 12), (v) rural women (art. 14) and (vi) family violence (art. 16).
89. General recommendation 19 argues that certain traditions and customs and practices whereby women are regarded as subordinate or as having stereotyped roles perpetuate various practices, including violence and coercion, and that such prejudices and beliefs may be used to justify gender-based violence as a form of protection or control of women, as a result of which women are deprived of the equal enjoyment of their human rights and fundamental freedoms.
90. With regard to prostitution, and traditional as well as new forms of trafficking, the recommendation states that these activities put women at special risk of violence and abuse. States parties are directed to take special preventative and punitive steps against such violence.
91. On the question of employment, General recommendation 19 states that gender-specific violence such as sexual harassment in the workplace can seriously impair equality in employment. With regard to health issues, States are directed to provide a support service for all victims of gender-based violence, including refuge, specially trained health workers, rehabilitation and counselling services.
92. The General recommendation also recognizes that rural women are at special risk of violence because of the persistence of traditional attitudes in many rural communities and it imposes an obligation on States to ensure that services for victims of violence are accessible to rural women. Where necessary, special services should be provided for isolated communities.
93. Violence in the family is seen to be widespread and present in every part of the world and measures necessary to eradicate family violence are listed.
94. General recommendation 19 also directs State parties, in their reports, to describe the extent of each problem in their countries, the measures taken to prevent and punish the occurrence of such problems, and the effectiveness of such measures.
95. The Declaration on the Elimination of Violence against Women deals exclusively with violence against women. The document is a comprehensive statement of international standards with regard to the protection of women from violence. Although the Declaration is not legally binding, it sets out international norms which States have recognized as being fundamental in the struggle to eliminate all forms of violence against women.
96. This Declaration is the first real set of international standards to deal specifically with the problem of violence against women. For the purposes of the Declaration, violence against women is defined in article 1 as
98. Violence against women is defined in the Declaration as including, but not being limited to, physical, sexual and psychological violence that occurs in the family. Such violence includes 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. The Declaration also points to the prevalence of violence in the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutes and elsewhere, trafficking in women and forced prostitution. Finally it recognizes violence which is either perpetrated or condoned by the State. The definition of violence contained in the Declaration appears, therefore, to be a broad one whereby violence is not strictly construed as meaning only the actual use of physical force, but implies the right to inquire against all forms of action which disempower women because of the fear of violence, whether the fear is instilled by the State, actors in the community or members of the family.
99. The problem of violence against women brings into sharp focus an issue that has been troubling the international community - State responsibility for the actions of private citizens. In the past, a strict judicial interpretation had made the State responsible only for actions for which it or its agents are directly accountable. In this case it would relate to issues such as women in custody and women in detention and perhaps the problem of women during armed conflict. The question of domestic violence, rape and sexual harassment, etc., were seen as the actions of individuals and thus beyond the "human rights" responsibility of the State.
100. It is a recognized part of general international human rights law that States are responsible for (i) the protection of the rights of individuals to exercise their human rights, (ii) investigation of alleged violations of human rights, (iii) punishment of the violators of human rights, (iv) provision of effective remedies for the victims of human rights violations. Yet States are rarely held responsible for ignoring their obligations with regard to women's rights.
101. The earlier sections of this chapter clearly show that women's rights have become an integral part of international human rights law and that violence against women is a violation of human rights for which States are accountable. States therefore have an international obligation with regard to the protection of these rights as part of the general regime of international human rights law.
102. Except for categories such as "pirates" and "international war criminals", private individuals and agencies are not generally bound by international human rights law. But States may be responsible for their failure to meet international obligations even when violations originate in the conduct of private individuals. State responsibility for the violation of women's human rights by private actors is anticipated by customary international law. States are held legally responsible for acts or omissions of private persons in the following instances:
104. The standards developed by customary international law have been expanded by international and regional human rights conventions and recent judicial decisions. For example, in the 1988 Valesquez case, the Inter-American Court of Human Rights imposed liability on Honduras for its lack of due diligence in preventing unexplained "disappearances", whether by the State or private actors.
105. Besides complying with the "due diligence" standard for the protection of human rights, States are required by international human rights instruments to ensure equal protection of the law for their citizens. If data collected provides evidence of systematic, discriminatory, non-prosecution by the State of crimes of violence against women, then, it is argued, States have violated their responsibility under international human rights law.
106. This emerging trend towards holding States responsible for actions of certain private actors is reflected both in the Convention on the Elimination of All Forms of Discrimination against Women and the Declaration on the Elimination of Violence Against Women. Discrimination under the Convention is not restricted to actions by or on behalf of the State; this is expressly acknowledged, in regard to violence, in General Recommendation 19. Article 2 (e) of the Convention states that States parties are required "to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise". This provision expressly covers State responsibility for violations by private actors. Article 16 explicitly refers to discrimination in the family and Recommendation 19 clearly includes family violence within its purview.
107. The Declaration sums up the current standards in operation as they relate specifically to the question of violence against women. Article 4 (c) proclaims that States should "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". All States are not only responsible for their own conduct or the conduct of their agents, but are now also responsible for their failure to take necessary steps to prosecute private citizens for their behaviour, in compliance with international standards. This emergence of State responsibility for violence in society plays an absolutely crucial role in efforts to eradicate gender-based violence and is perhaps one of the most important contributions of the women's movement to the issue of human rights.
110. The Convention was the first international instrument to target tradition and culture as influential forces in shaping gender roles and family values. The Declaration followed in its footsteps in this regard. Among the obligations of the State set out in the Declaration is the obligation to "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" (art. 4). This is a landmark in the battle against gender-based violence, as such prejudices are most prominent in the areas of culture, community and family, which are precisely the spheres of most importance to many women. If, therefore, the State were able to bring about fundamental changes in the patterns of socialization which tend to disempower women and create an atmosphere in which violence against them appears more legitimate, it would be a significant step towards the elimination of gender-based violence.
111. In this regard, it should be mentioned that some of the States that have ratified the Convention have entered reservations indicating that they will accept it only in so far as it does not conflict with certain national customs, practices, or laws. This has caused much disagreement as it is widely felt that many of these reservations are incompatible with the basic obligations of the Convention. States should, therefore, be requested to be more circumspect about entering reservations, and consider whether the contemplated reservation is compatible with the spirit of the Convention.
112. Another of the obligations imposed on States by these international instruments should help to alleviate a major problem with regard to the elimination of violence against women, which is the lack of statistics available on the issue. Both the Convention and the Declaration impose an obligation on States to encourage research and the compilation of statistics on the subject of gender-based violence. Article 4 (k) of the Declaration directs States to
115. Article 7 sets out State obligations in regard to the eradication of gender-based violence which are very similar to the obligations set out in the United Nations Declaration. Article 8, however, sets out additional obligations which generally deal with a broader agenda, namely that of education and the development of a mass consciousness in relation to violence against women. Among the obligations set out here, but not in the United Nations Declaration are the obligation to "promote awareness and observance of the right of women to be free from violence, and the right of women to have their human rights respected and protected" (art. 8 (a)) and the obligation to "encourage the communications media to develop appropriate media guidelines in order to contribute to the eradication of violence against women in all its forms, and to enhance respect for the dignity of women" (art. 8 (g)).
116. Chapter IV of the Convention of Belém do Pará sets out the mechanisms of protection available under the Convention. Under article 10 the States parties are obliged to include in their national reports to the Inter-American Commission of Women information on measures adopted to prevent and prohibit violence against women and to assist women affected by violence, as well as any difficulties they observe in applying those measures, and the factors that contribute to violence against women. This is similar to the obligation imposed by the Convention on the Elimination of All Forms of Discrimination against Women to report to CEDAW. However, unlike that Convention, the Convention of Belém do Pará also provides an individual right of petition and a right for non-governmental organizations to lodge complaints with the Inter-American Commission of Human Rights. Article 12, in this regard, provides that "any person or group of persons, or any non- governmental entity legally recognized in one or more member States of the Organization, may lodge petitions with the Inter-American Commission of Human Rights containing denunciations or complaints of violations of article 7 of this Convention by a State party, and the Commission shall consider such claims in accordance with the norms and procedure established by the American Convention on Human Rights and the Statutes and Regulations of the Inter-American Commission of Human Rights for lodging and considering petitions".
118. There are many types of domestic violence. Young girls and children are often victims of sexual assault within the family. Elderly family members and the infirm may also be subject to ill-treatment. Female domestic servants are another category which is often at the receiving end of violence. In extended families, mothers-in-law are often violent towards their daughters-in-law. Though there are many incidents of assault directed against the husband, studies show that they are not so frequent and rarely result in serious injury. Despite all those different types of domestic violence, the most prevalent is the violence of the husband against the wife.
121. While statistics on domestic violence are more scarce in developing countries, it would appear that a similar situation exists there. For example, a retrospective study of 170 cases of murder of women in Bangladesh between 1983 and 1985 revealed that 50 per cent occurred within the family.
122. The traditional legal systems sanctioned violence in the family by recognizing the husband's "right to chastisement".
124. The question of whether the criminal justice system or a system of mediation and conciliation is most appropriate in dealing with domestic violence is one which arises constantly. Advocates of the criminal justice approach point to the symbolic power of the law and argue that arrest, prosecution and conviction, with punishment, is a process that carries the clear condemnation of society for the conduct of the abuser and acknowledges his personal responsibility for the activity. In addition, some research studies reveal that intervention by the criminal justice system is the most effective mechanism for stopping acts of violence both in the short term and in the long term. The Minneapolis Domestic Violence Experiment was designed to assess which of the three police responses - conducting informal mediations between the parties involved, ordering the suspect to leave the residence for eight hours or arresting the suspect - was the most effective in preventing subsequent assault. During a six-month period, research revealed that 19 per cent of those involved in mediation and 24 per cent of those ordered to leave, repeated the assault, but only 10 per cent of those who were arrested indulged in further violence towards their spouses.
125. Despite these advantages of the criminal justice model, it is critical that those involved in policy making in this area should take account of the cultural, economic and political realities of their countries. Whilst it is important to attach a criminal label to this type of activity it is impossible to ignore that it takes place within the family, between persons who are emotionally and financially involved with each other. Any policy which fails to acknowledge the singular nature of these crimes and which is unaccompanied by attempts to provide support for the victim and help for the abuser will be doomed to failure. Thus, for example, policy makers considering the domestic violence programme of London, Ontario,
127. In most jurisdictions the power of the police to enter the private premises of the individual is limited, and this acts as an important guarantee which protects the lives of ordinary women and men from arbitrary state interference. In the context of domestic violence, however, too great an adherence to this guarantee can protect the violent man at the expense of the woman. In order to guard against this eventuality, a number of Australian states have introduced legislation to clarify and extend police powers of entry to investigate offences of domestic violence. Some legislations allow the police to enter if requested to do so by a person who apparently resides on the premises or where the officer has reason to believe that a person on those premises is under threat of attack or has recently been under threat of attack or an attack on such a person is imminent.
128. Although the power to arrest for domestic crime is usually the same as for any other crime, officers are often uncertain as to their legal powers and this is so even in cases of very serious violence. Many commentators argue that the police should be given special powers of arrest in situations of domestic violence and that they should be mandated to implement these powers. They believe that arrest not only provides the woman with immediate safety, but gives her a feeling of power, leaving the man with an immediate message that his behaviour is unacceptable, a message which is said to have long-term effects on his future behaviour. Australia, Canada and England have instituted policies for the management of domestic violence which generally advocate a presumption of arrest unless there are good, clear reasons for not arresting.
129. In many cases of domestic violence, immediate release of the offender on bail may be dangerous for the victim and, certainly, release without prior warning to the victim may have serious consequences for her. A number of Australian jurisdictions attempt to strike a balance between the interests of the offender and the victim by specifying conditions designed to protect the victim to be attached to the release of the offender. Thus, the offender can be released on condition that he does not drink or approach his spouse, while bail may not be granted where the offender has previously broken protective bail conditions.
130. It is essential that police officers are made aware that domestic violence is a serious issue which is neither a normal part of family life nor a private problem that will not profit from police intervention. The Musasa project in Zimbabwe introduced intensive education directed at police officers on the ground. As the programme progressed, the feedback indicated that women were receiving more sympathetic and prompt assistance at the police stations than was the case previously.
131. Some countries have introduced police units that have been specially and intensively trained for the purpose of dealing with spousal assault. Specific police stations for dealing with women's issues, including domestic violence, have been set up in Brazil. From the outset, the stations had two full-time police officers, eight investigators, three clerks and two prison warders, all of them women. These police stations have proved to be very successful and 41 such stations now exist in Sao Paulo.
133. The first problem which arises with regard to legislation is to allow for prosecution of husbands who beat their wives even if the wives, under pressure, want to withdraw their claims. In response to this, some countries have instructed police and prosecutors to proceed with the cases even in situations where the woman indicated that she would rather not proceed.
134. In addition to the criminal punishment attached to assault, even in a domestic violence context, most jurisdictions recognize quasi-criminal remedies. The most important of these are the "protection" or "bound over" orders. In most jurisdictions there is a procedure whereby someone can complain to a magistrate or a justice that violence has taken place and the violent party is then "bound over" to keep the peace or be of good behaviour. The standard of proof is lower than with strictly criminal proceedings and this may provide some women with appropriate relief. Law reformers in Australia, for example, recognized the potential of the "bind over" process in cases of domestic violence.
135. In addition to quasi-criminal remedies, civil law remedies are also available to women victims of violence. The most useful civil law remedy in relation to cases of domestic violence is probably the remedy known as an injunction or an interdict, which is used to support a primary cause of action. Where domestic violence is concerned, an injunction can be granted as incidental or ancillary proceedings for divorce, nullity or judicial separation or other civil proceedings, such as assault or battery. Such incidental relief could, for example, take the form of an order directing that the husband refrain from making contact with his wife or that he vacate the shared matrimonial home. Some jurisdictions have enacted legislation removing the requirement of applying for principle relief and allow the woman to apply for injunctive relief independently of any other legal action.
138. Community workers should be trained to provide information to the victim on the law and law enforcement, the available financial and other support offered by the State, the procedures for obtaining such assistance, and other organizations such as refuges, that might offer assistance. Community workers can play an important role in identifying violence, raising awareness about such issues and in directing victims to the correct procedures for seeking redress.
139. "Shelters" provide battered women with a safe haven and somewhere to go. They provide survival, safety, support, self esteem and information. The Musasa project in Zimbabwe strove to give women power over their own lives.
140. Many commentators feel that any relief given to the women victims must be accompanied by "counselling" of the battered. Treatment programmes for batterers have been established in a number of countries, including Canada, the United States and Australia. The primary aim of such programmes is to prevent recidivism and studies show that six months to a year after completing treatment, 60 to 84 per cent of men have not physically abused their partners, whereas perhaps two thirds of non-treated men would have recidivated.
141. In conclusion, it would appear that an integrated approach is necessary in dealing with battered women. Most commentators propose a multidisciplinary strategy, with lawyers, psychologists, social workers and others working together to gain a holistic understanding of each particular case and the needs of the individual victim. Giving attention to the real life context of the battered woman, her hopelessness, dependency, restricted options, and her consequent need for empowerment underpins the Chilean approach, for example, to wife abuse.
142. Most of the strategies discussed in this paper have been short-term ones. However, in order effectively to confront violence against the woman at home, these short-term measures must merge with longer-term ones. Education and training can provide this link. Formal education in schools can be used to eliminate stereotypical attitudes; the subject of family violence should be part of the curriculum and peaceful methods of conflict resolution explored. Informal methods of education can also be used, first to advise women of available options and support systems and also to convey the message to both women and men that family violence is to be deplored. Here attention should be paid to the particular national and cultural context so that suitable strategies can be used. In some countries it may be appropriate to produce simple booklets.
144. Valuable ground-breaking and informative research on the issue of traditional practices affecting the health of women and children has already been carried out by the Special Rapporteur on traditional practices affecting the health of women and children of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, as well as its Working Group on traditional practices, the Inter-African Committee for Traditional Practices, the World Health Organization and numerous other institutions. The intention of the Special Rapporteur, therefore, is to argue that, on the basis of these materials and documentation, traditional practices should be construed as a definite form of violence against women which cannot be overlooked nor be justified on the grounds of tradition, culture or social conformity.
145. The delicate nature of questioning the very existence of these age-old practices, which are deeply rooted in the tradition, culture and power inequities of societies and often serve as initiation rituals by which young women are integrated and accepted into a community, as well as the lack of information and education in many regions where these practices are prevalent, are all factors which contribute to the continuing existence of these practices despite the United Nations repeated condemnation of all practices that affect the health of women and children and its repeated calls for their complete eradication. In this connection, the Special Rapporteur would like to draw the attention of the Commission on Human Rights to the Plan of Action for the Elimination of Harmful Traditional Practices affecting the Health of Women and Children, prepared in connection with two regional seminars organized by the Centre for Human Rights in Burkina Faso for the African region and in Sri Lanka for the Asian region. This Plan of Action will be available to the Commission on Human Rights at its present session for consideration (E/CN.4/Sub.2/1994/10).
147. Female genital mutilation takes various forms, ranging from clitoridectomy (partial or total removal of the clitoris) and excision (the removal of the clitoris and the labia minora), which account for approximately 85 per cent of female genital mutilations, to its most extreme form, namely infibulation (the complete removal of the clitoris and the labia minora, as well as the inner surface of the labia majora; the vulva is then stitched together so that only a small opening is preserved in the vagina to allow for the passage of urine and menstrual blood.
148. The procedures are generally carried out by traditional birth attendants or elderly women of the village designated for this task using special knives, scissors, scalpels, pieces of glass or razor blades. Unintended damage occurs because of crude tools, poor light and septic conditions. Anaesthetics and antiseptics are generally not used. The age at which circumcision is carried out varies from a few days to seven years.
150. According to the World Health Organization, along with an increasing awareness of the dangerous repercussions of female genital mutilation, attitudes are gradually changing towards the gradual elimination of harmful traditional practices, especially among the more educated, urban communities. However, at the same time, a trend to "medicalize" the practice of female genital mutilation, that is to carry out the operation in clinical conditions to reduce the health risks, has been detected.
152. Since female genital mutilation is a sensitive issue in many societies, women's groups have preferred to rely on education, information and awareness-raising to combat the practice. They argue that legal strategies are not effective against customary practices. Since there is cultural acceptance and even celebration of the practice, in some societies, they argue that it is important to approach the question as a health issue, relying on doctors and educationalists as the major catalysts for change.
153. But, some argue that this is not enough. Since female genital mutilation is violence against women and since such violation has become of increasing concern to the international community, it is believed that legal strategies which give expression to international norms should be pursued. Legal prohibition of such a practice, accompanied by criminal sanctions, would be in keeping with international human rights standards. Such a strategy of prohibiting the practice, and criminalizing associated conduct must be accompanied by education programmes aimed at raising awareness among the people. A concerted international and national campaign should be conducted to raise consciousness about the pervasiveness of this practice and the need for its eradication.
155. The prevalence of son preference, more marked in Asian societies and historically rooted in the patriarchal system, cannot be ignored. Son preference has been defined in a report of the Working Group on Traditional Practices affecting the Health of Women and Children of the Sub-Commission as "the preference of parents for male children which often manifests itself in neglect, deprivation or discriminatory treatment of girls to the detriment of their mental and physical health" (E/CN.4/1986/42, para. 143). Son preference has also been found to be directly associated with a high mortality risk for women.
156. The entire life cycle of a woman can be affected by this practice, from its most extreme forms of foetal or female infanticide to neglect of the girl child and woman over her brother and husband as far as adequate nutrition, basic health care, access to education and information, recreation and economic options are concerned. Such sayings as "To have a son is good economics and good politics, whereas bringing up a girl is like watering the neighbour's garden" illustrate the attitude in societies where son preference is prevalent. The male child, and later the man, are considered to ensure the continuity and protection of family property, to provide "an extra pair of hands" by bringing in a bride and to provide for parents in their old age.
157. By contrast, the young woman has a subordinate and vulnerable status. Already at the foetal stage, amniocentesis tests, sonography and increasingly developed technological methods for sex determination often lead to the abortion of the female foetus. The girl continues to be subjected to violence and discrimination through differentiating food practices, resulting in malnutrition and retarded growth. Her sexuality is often controlled through physically and mentally violent practices. During sickness, the woman is not provided with medical care, generally to the benefit of the sick male. Son preference and gender discrimination continue to affect women's access to education and their low literacy rate, and seem to be instrumental in promoting the practice of early marriage, which may prove equally detrimental to the physical and mental health of young women.
158. In families where food is scarce, the more nutritious food is kept for the male child. A WHO report of 1985 shows these preferential feeding practices and gender bias in nutrition.
159. This gender bias from birth which discriminates against women when it comes to nutrition, education and health amounts to violence against women. However, legal strategies are unlikely to be effective in this context. Initially, there must be an attempt to collect gender disaggregated data so that the problem of gender bias becomes more apparent. Special education and health programmes must be devised to prevent these discriminatory practices.
161. Traditional marriage and related practices obviously still prevail in a number of societies, especially in the Asian and African regions and may range from death as a result of dowry debts to early marriage, childhood pregnancy, nutritional taboos and delivery practices to bride/widow burning.
162. In many societies the payment of a dowry is required for the groom to marry. In addition, the expenses for the marriage are also borne by the bride's family. Failure to provide the agreed amount of dowry could mark the beginning of violence within the family for the woman. She may be verbally abused, mentally and physically tortured, starved and, in certain communities, even burnt alive by the husband and/or his family members.
163. Early marriage is intended to guarantee a woman's virginity, relieve her family of the burden of a mouth to feed and ensure a long cycle of fertility to produce a number of sons. Yet early marriage generally leads to early childhood/teenage pregnancy, which in its turn, as stated at the Second United Nations Regional Seminar on Traditional Practices affecting the Health of Women and Children, lessens the life expectancy of girls, adversely affects their health, nutrition, education and employment opportunities and lowers their economic participation rate. Furthermore, maternal and child mortality rates are found to be extremely high in areas such as South Asia, where the use of traditional birth practices has been recorded.
164. Violence related to the institution of marriage is of grave concern to those interested in women's rights as human rights. The Governments of India and of Bangladesh have sought to criminalize violence related to the dowry. The Indian penal code contains provisions with regard to dowry deaths, which allow for such crime to be deduced from circumstantial evidence and for the strengthening of police powers. The crime also carries the maximum penalty.
165. The age of marriage is also a factor which contributes to the violation of women's human rights. According to a WHO report, over 50 per cent of first births in many developing countries are to women aged less than 19.
167. In India, the practice of widow-burning or sati, which has had a resurgence in recent years, has been outlawed both by national and State Governments. Though this is welcome, there is still concern that the practice may occur in small communities and that effective implementation of the laws is absolutely necessary.
169. From the above facts, it seems painfully obvious that violence against women manifests itself in its possibly most blatant form through traditional practices affecting the health of women and children. These culturally conditioned practices are not only dangerous to women's health, at times even resulting in their death, but also violate the basic human rights of women and seriously impair their dignity. Though the infliction on them of different forms of physical and mental violence throughout their life span, girls and women are denied their human right to be free and independent, and to live in a secure environment within their families, homes and communities.
173. Effective prosecution for rape is one of the fundamental demands of the women's movement. Rape occurs in the family in the form of marital rape or incest; rape occurs in the community, it is used as an instrument of torture by States against women in detention; and rape occurs in situations of armed conflict and in refugee camps. Women's vulnerability to rape is one of the main factors which prevent their empowerment and their enjoying equality with men.
174. For a long time, women have argued that rape is a form of torture inflicted by both private and public actors in violation of the international human rights instruments.
175. States have an international legal obligation to investigate, prosecute and punish rapists. State discrimination in not pursuing cases involving violence against women has been documented by some groups.
178. Hospitals are another important institution which needs to be sensitized with regard to women and rape. In Malaysia, the rape crisis centres have been set up in the hospitals and a special room in the hospital is designated for the examination of rape victims; the police are called there to take the report from the victim; only one doctor examines the victim; and a volunteer from a woman's organization is called to counsel her during this period and provide her with information and support so that she can make decisions regarding treatment and police action.
183. Related to this concept of consent is the question of whether consent which is grudging or elicited following substantial pressure being applied should be inoperative. It would appear appropriate that consent be vitiated where it is gained by the imposition of the other person's position of authority over, or professional or other trusting relation to the victim. Thus, following certain incidents and revelations in Bihar and Maharashtra, legislation in India has shifted the burden of proof in cases of women raped in State institutions, i.e. custodial rape, so that those in power have to prove that a rape did not take place.
(i) Corroboration
184. Where most crimes are concerned, the accused can be convicted on the testimony of one individual, but where the crime is sexual, the evidence of the victim alone is insufficient and it is essential that it be corroborated in some way. Additionally, in a number of countries, although corroborating evidence is not specifically required, there is a rule of law that the judge must tell the jury that it is unwise to convict on the uncorroborated testimony of the victim. In some countries, the testimony of the victim has to be corroborated by four male witnesses. (ii) Court proceedings
186. Current court practice and procedures can exacerbate the complainant's ordeal during trial. These include long time lag between incident and trial, lack of information about the progress of the case and the whereabouts of the offender, and the demeanour of the prosecutors, judicial officers and other persons with whom she may have to deal. A number of jurisdictions have legislated with these points in mind. In New Zealand, for example, the Victims of Offences Act 1987 directs prosecutors, judicial officers, counsel, officials and other persons who deal with victims to treat them with courtesy, compassion and respect for their personal dignity and privacy. Victims are to be informed of the services and remedies available to them and the conduct of the proceedings. They should be protected from intimidation, their views on bail and any fears they should have about the offender are to be imparted to the court deciding any bail application and they are to be notified of the release or escape of the offender. In some countries, provisions have been introduced to limit the number of persons who can be present at the trial. Some provide for in camera proceedings, some provide that the court is to be closed to all except specified persons when the complainant gives her evidence and others allow her to give evidence in written form.
(iii) Sentencing
187. Light sentences in sexual assault cases not only trivialize the experience of the individual victim, but also carry the wider implication that female sexual victimization is unimportant. Criticism of sentencing practice in cases of rape has led some jurisdictions to set minimum penalties. In the United Kingdom, for example, courts have laid down specific guidelines concerning rape offenders.
(iv)Treatment programme for offenders
188. The value of treatment programmes is more readily accepted in the United States than in Britain. One well established programme is a treatment unit set up in South Florida State Hospital which aims to rehabilitate incarcerated rapists and other serious sex offenders, largely by means of group discussion and self- help enterprises. Wives and girl-friends are drawn into the system and special attention is given to after-care following a gradual transition to the community. For instance, ex-offenders are given pocket telephones which they can use to dial another ex-offender volunteer for support whenever they feel the urge to re- offend creeping up on them.
Public education
189. In addition to the education of police officers, judges and other court officials, it is essential that the general public is also educated and a mass consciousness raised. In Malaysia, exhibitions and theatrical presentations, including talks and discussion sessions, were made to women's groups, schools, communities and professional groups such as nurses, police and counsellors. Many women's groups were mobilized to continue the consciousness raising programmes. To enable these groups to develop educational programmes, training sessions were held and a campaign kit, pamphlets and rape counselling booklets were produced as resources. Finally, in order to equip the leaders with the necessary skills for public speaking, representative action and writing, training sessions for them were organized. The media's role was also emphasized. Articles and reports began to appear in the press. The electronic media made an effort to have special reports on rape at prime news times. One newspaper even carried a survey for four continuous weeks with cases of rape victims.
192. When sexual harassment takes the form of acts of violence or indecency, it is regarded as a criminal offence. The German penal code imposes penalties on individuals who abuse their authority to obtain sexual favours; while in Denmark, sexual harassment is condemned under section 220 of the Penal Code, which prohibits any abuse of the subordination or financial dependence of an individual with a view to obtaining sexual favours outside of marriage.
194. Where sexual harassment occurs in the workplace, other non-criminal legal remedies may also be available. For example, the United Kingdom Sex Discrimination Act 1975, while not specifically prohibiting sexual harassment, proscribes sex discrimination, defined as treating a woman less favourably than a man, and makes it unlawful for an employer to discriminate against her by dismissing her or subjecting her to any other detriment for the sole reason that she is a women. Courts have concluded that sexual harassment is sex discrimination and that proven harassment may render an employer liable in damages.
195. In the United States of America, any discrimination is prohibited at work on the grounds of sex.
197. Recently, specific provisions aimed at discouraging sexual harassment in the workplace and elsewhere, such as educational institutions, have been enacted in a number of countries. For example, the Canadian Federal Human Rights Act prohibits sexual harassment in employment and in the provision of goods and services where these come within the jurisdiction of the federal Government. This legislation is complemented at federal level by the sexual harassment provisions of the Canada Labour Code which requires employers to issue a sexual harassment policy which condemns sexual harassment, indicates that disciplinary measures will be taken against transgressors, provides for procedures to deal with instances of harassment and informs employees of their rights under the Human Rights Act. In Portugal, legislation establishes that an employer must impose disciplinary measures on anyone who by his/her conduct, provokes or creates conditions that lead to the demoralization of workers and more particularly women.
200. Throughout the world, trade unions have issued guidelines and protocols to raise awareness and address the issue. In 1981, for example, in the United Kingdom the National Association of Local Government Officers (NALGO), the largest white collar union, issued guidelines for members on combating sexual harassment at work. NALGO's lead has been followed by other trade unions in the United Kingdom and elsewhere.
201. Codes of conduct and protocols dealing with sexual harassment have also been issued by human rights commissions. The New Zealand Human Rights Commission, for example, issued "Eliminating Sexual Harassment - A Guide for Employers", which suggests strategies for approaching workplace harassment and provides a guide for those in charge of the management of the problem in 1986. Similar guides have been produced by the Canadian and Australian Commissions, while the Report of the Commission of Inquiry (Integrity Commission) in Guyana, issued in 1987, suggested the formulation of a code of conduct for persons holding positions in public life.
203. Government bodies can do much to increase awareness of the seriousness of sexual harassment and the procedures that can be invoked to confront it. Arresting pamphlets have been issued in Australia, Canada, New Zealand and the United Kingdom which could be used by other countries in developing strategies to deal with sexual harassment. The Australian Human Rights and Equal Opportunities Commission, moreover, conducted a major campaign about sexual harassment in 1990, which was effective in sensitizing the community about the issue. This campaign, entitled SHOUT (Sexual Harassment is Out), consisted of a poster, magazine and radio advertizing campaign, with the facility of a toll free telephone line for women who wished to provide information about sexual harassment.
206. The size of the CSW population worldwide is not known, and estimates are unhelpful. In Thailand, for instance, the estimated number of female prostitutes ranges from 70,000 to 2 million.
209. Prostitutes are very dependent on the various organizational and structural edifices which profit from their labour, such as those who can manipulate the law (police officers, brothel owners, immigration officials), those who control the advertising and entertainment industries, including the pornographic and mail-order bride industries, or those who control travel agencies, airlines, restaurants and sex-shops. The violence they face from these groups ranges from beatings for refusing clients to withholding clients, and therefore income, from CSWs who have erred in some way. Women prostitutes report that clients ask them to perform bizarre, humiliating and painful acts derived in part from pornographic literature and in part from the licence afforded them by the private, anonymous nature of commercial sex. The international market for prostitution, in part owing to the fear of HIV/AIDS, has been marked in recent years by the demand for "fresh" or virgin girls. The premium placed on virginity has created a climate in which older commercial sex workers must portray themselves as something other than what they are.
210. Trafficking of women and children for the purposes of prostitution is a critical barometer of the nature of abuse that takes place within the sex industry. The rise in trafficking of women in many parts of the world is linked, among other things, to the increasing fear of HIV/AIDS (and the perceived need therefore to recruit untainted blood), the increase of sex tourism deriving from the pressure on developing countries to generate more foreign currency income, and continuing societal condonation of the imperatives of male sexuality.
212. Women who are trafficked into other countries for the purpose of prostitution generally work out of the most abusive of brothels, bars and salons. The conditions faced by these women are appalling. Asia Watch and the Women's Rights Group conducted a comprehensive study of girls and women trafficked from Burma into Thailand.
213. Of the 30 women interviewed by Asia Watch, only two were above 20 years of age. The report cites accounts of 10-year-old girls who pass out from pain when raped by clients. In Thailand, the sexual intercourse experienced by girls 15 years or younger always constitutes statutory rape. Instead of punishing the rapist, i.e. the client or the brothel owner as an accomplice to the rape, in Thailand the girls who do complain are often arrested and sent back to the brothel upon payment of a fine. Women who are trafficked are usually smuggled across borders with the bribed complicity of the border guards. Victims of trafficking report extensive police usage of brothels for free. Their status as illegal immigrants is further disabling, rendering them highly vulnerable to sexual, economic and physical abuse. Health care is virtually non-existent for them, except for the provision of birth control pills or depo provera.
215. Several international instruments address the issue of prostitution directly. States should be actively encouraged to accede to the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women. Article 6 of this Convention, in particular, obligates States parties to take all appropriate measures to "suppress all forms of traffic in women and exploitation of prostitution of women". Such measures could involve enacting legislation to prosecute all those involved in the exploitative organizations surrounding prostitution and trafficking, including brothel owners, pimps, airlines; increasing the statutory age for rape to 18, and actively prosecuting clients who violate this law; and establishing commissions of inquiry to investigate allegations of abuse and complicity by government agents.
216. The Special Rapporteur also notes with interest the work of the Working Group on Contemporary Forms of Slavery of the Sub-Commission on Prevention of Discrimination and Protection of Minorities in connection with a draft programme of action for prevention of traffic in persons and the exploitation of the prostitution of others (E/CN.4/1994/71, annex) and calls upon the Commission on Human Rights to consider the draft programme at its present session.
217. States that have not acceded to the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others should urgently be encouraged to do so. The Convention calls on States parties to protect all persons from the abuses of trafficking and exploitation of prostitution. It mandates that States parties make suitable provisions for the care and maintenance of victims, repatriate victims of trafficking only with the agreement of the State of destination, and bear the cost of repatriation to a certain extent when the victim is unable to do so (art. 19).
218. States should pay particular attention to stopping the recruitment of young girls into prostitution, by monitoring carefully employment and recruitment agencies, as well as advertising and pornography agencies. The Convention on the Rights of the Child requires States to take all appropriate "legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse". The growing trend of forcing younger and younger girls into prostitution is a problem that needs urgent and serious affirmative action. The reports of the Special Rapporteur on the sale of children, child prostitution and child pornography have raised awareness of the pervasive nature of these practices.
219. Trafficking and the abuse and exploitation of prostitutes does constitute violence against women. Many groups argue that the only way to control and regulate such violence is to legalize prostitution. Legislation allows for the enactment of health and labour regimes which would protect the CSW. However, most societies and cultures do not accept this position. They believe that moral condemnation and criminalizing activity associated with prostitution and trafficking are the only means available for eradicating violence against women in this sphere.
222. The profile of the female migrant labour force is quite varied, ranging from skilled labour (nurses, secretaries, teachers) to unskilled labour (domestic workers, waitresses, low-level factory workers). The skilled labour force is better educated and more highly remunerated, paralleling the same phenomenon in the non-migrant labour force, although the national worker tends to be better paid than the non-national worker. While certain forms of abuse are universally experienced by women, the unskilled worker, and in particular the domestic worker, experiences violence directed against her to a greater degree and of a different kind.
223. Internal unskilled migrants tend to travel either with their husband and children or in groups of men and women. Language is usually not a problem and they are better protected against violence from persons outside their migrant group.
(i) Non-physical abuse
225. A widely reported form of non-physical abuse is the common practice of withholding the migrant woman's passport or documentation papers. Employers claim to be protecting the woman (she might lose the passport), but whatever the motivation for this practice may be, it has the effect of entrapping the woman inside her employer's compound, especially in countries which require aliens to carry evidence of their legal status on them at all times. For the woman who seeks refuge in her embassy when fleeing the employer's house, she has no proof of citizenship with which to claim her right to protection.
226. Labour laws do not apply to the illegal worker and some countries explicitly exclude legal domestic workers from the labour laws altogether. Migrant women report that employers withhold their wages or pay them substantially less than originally agreed, holding them effectively in debt bondage. Domestic workers and "sweat-shop" workers, in particular, report long working hours; in one study, 72 per cent of domestic workers reported having no days off at all.
(ii) Physical violence
227. One of the most comprehensive reports documenting physical abuse against migrant women is the 1992 report of Middle East Watch on the mistreatment of Asian maids in Kuwait.
228. Of the 60 cases investigated by Middle East Watch, two thirds of the cases concerned physical abuse by the employer, including kicking, beating, slapping, punching and hair-pulling. One third of these 60 cases directly involved the rape or sexual assault of maids.
229. Female migrant workers also suffer often at the hands of the police. There are documented cases of women who report rape by employers being sent back by the police to the employer or being physically or sexually assaulted at the police station. Women who lodge such complaints are often detained at the police station for arbitrary lengths of time. Migrant women in Kuwait who try to flee their employers' houses and injure themselves in the process have been charged with violating the Kuwaiti law against suicide.
231. In recent years, a few countries have made efforts to reach out to the female migrant population. In 1981, Canada instituted the Foreign Domestic Worker's Programme (FDW) as part of its broader Employment Authorization Programme. The purpose of the FDW was to regulate better the employment of foreign domestic workers, specifically through contracts detailing issues such as wage rates, hours and benefits. The FDW also simplified the process by which migrants could acquire permanent legal resident status, by requiring only two years of consecutive work with a specific employer doing a specific job. While the FDW represents a significant step forward in the process of legitimizing and protecting migrant domestic workers, it has also been charged with artificially forcing wages down and restricting mobility in an attempt to keep the national labour force from being attracted to domestic work.
232. The Government of the Philippines under President Corazon Aquino established the Overseas Workers Welfare Administration (OWWA), which is charged, inter alia, with regulating recruitment agencies and providing orientation to migrants prior to their departure. The Government also pledged to create 1.1 million jobs annually, to increase the availability of affordable housing, and to encourage the development of income-generating cooperatives. The Government of Mauritius has recently established the Foreign Labour Inspection Squad (as of 21 February 1994) which, like OWWA, is charged with regulating recruitment agencies and reaching out to migrant workers before they leave. These are important efforts which actively try to support the migrant woman, rather than threatening her into clandestine conditions.
236. There is a school of thought that certain types of pornography are about sexual expression and identity. Some argue that such pornography or erotica liberate female sexuality. However, certain prominent writers argue that what pornography does goes beyond its content: it eroticizes hierarchy, it sexualizes inequality. From this perspective pornography is neither harmless fantasy nor a corrupt and confused misrepresentation of an otherwise natural and healthy sexual situation. It institutionalizes the sexuality of male supremacy, fusing the eroticization of dominance and submission with the social construction of males and females. Thus, pornography in itself represents a form of violence against women by constructing a situation which glamorizes the degradation and maltreatment of women, and asserts their subordinate function as mere receptacles for male lust.
240. Such definitions fail to address the issue that most pornography represents a form of violence against women and that the evidence shows that it is directly causative of further violence against women. In this context the definition put forward by Andrea Dworkin and Catherine MacKinnon provided a major breakthrough in defining pornography by conceptualizing it as "a practice of sex discrimination which sexualizes the subordination of women and which eroticizes violence against women". They then define pornography specifically, descriptively and objectively for what it depicts and communicates about the sexualized subordination of women:
245. Catherine Mackinnon and Andrea Dworkin attempted a similar strategy by drawing up the Minneapolis Ordinance in the United States of America in 1983. They argued that pornography, as defined by them (see para. 240 above), violated women's civil rights and the right not to be discriminated against. The legal process would necessitate an individual woman making a complaint that pornography had infringed her rights or her ability to exercise, or benefit from, equal opportunities.
246. The above strategy has been followed in Australia where in a recent case, two women who had been employed in a construction site complained of sex discrimination when their male colleagues hung pornographic posters on their "crib" walls. They sued their employers and the trade union and accused them of aiding and abetting these acts of sex discrimination. The Tribunal found for the women and allowed them a measure of compensation for the violation of their rights.
250. Prolonged illegal detentions and deprivation of food, sleep and water are also routine abuses faced by women in police custody. Even in States which have obligated themselves to provide legal counsel to accused persons, attorneys are not made available to them. Many detained women, especially in countries with lower literacy rates, do not know which law they have been detained under or what the alleged offence is. According to a study carried out by Human Rights Watch, "out of 90 women interviewed in a jail in Pakistan, 91 per cent did not know under what law they had been accused. Sixty-two per cent had no legal assistance whatsoever, and of those who had lawyers almost half had never met them".
251. Governments fighting armed opposition movements are known to use torture routinely as a means of extracting information. Women detained in police or military custody in many countries are commonly subjected to beatings, burns, shocks, rape and molestation. "Disappearances" and extra-judicial killings at the hands of custodial authorities have been reported in Afghanistan, Brazil, Burundi, Cambodia, Chad, Chile, India, Lebanon, Myanmar, Sri Lanka and Uganda.
252. The emergence of "special laws" in certain countries has led to an increase in custodial abuse of women. In 1980, there were 70 women in jail in all of Pakistan; by 1987, there were 125 women in detention in the state of Punjab alone, and 91 in the state of Sindh. Most of these women faced trial under Pakistan's Hudood Ordinance.
253. The extent of police mistreatment both in detention settings and in non-custodial settings in India has received much attention lately. It provides a good example of the widespread nature of the abuse. In September 1989, the Rajasthani government admitted that police officers were under trial in 50 rape cases. In New Delhi, 14 cases of rape involving 20 police officers at 12 different police stations were reported between 1 January and 11 February 1990.A. General
46. The human rights tradition privileges a certain type of human personality - an individual endowed with rights, guided by reason and empowered with dignity. Since the Universal Declaration of Human Rights, this has been the vision which has sustained many of the political, economic and social experiments of the modern world. In recent times it has provided the firm foundation for the development of democracy, justice and equality in many societies.B. Historically unequal power relations
49. As is stated in the Preamble to the United Nations Declaration on the Elimination of Violence against Women, violence against women is a manifestation of historically unequal power relations between men and women. Violence is part of a historical process and is not natural or born of biological determinism. The system of male dominance has historical roots and its functions and manifestations change over time.C. Sexuality
58. In addition to historical power relations, the causes of violence against women are also closely linked to the question of female sexuality. Violence is often used as an instrument to control female sexual behaviour. It is for this reason that violence against women often finds sexual expression. Rape, sexual harassment, trafficking, female genital mutilation, all involve forms of violence which are an assault on female sexuality.D. Cultural ideology
63. Besides history and sexuality, the prevalence of ideologies which justify the subordinate position of women is another cause of violence directed against women. In many ideologies a traditional legitimacy is given to using violence against women in certain instances. In both the developed and the developing world, there have been cultural sanctions in the past for husbands chastising or beating their wives in certain circumstances. These sanctions have been included in law codes in different cultural heritages.E. Doctrines of privacy
70. Doctrines of privacy and the concept of the sanctity of the family are other causes for violence against women to persist in society. In the past, the State and the law intervened with regard to violence in the home only when violence became a public nuisance. Otherwise, the doctrine of privacy allowed for violence to continue unabated. The public/private distinction, which has been at the root of most legal systems, including human rights law, has created major problems for the vindication of women's rights. However, in recent times the approach to law has changed. States are increasingly reaching into the privacy of the home. In developing countries the regulation of reproductive rights has become an important concern. States are now increasingly being held responsible for human rights offences committed within the home. States are required, by standards of due diligence, to prevent as well as punish crimes of violence which take place in the private domain.F. Patterns of conflict resolution
71. Patterns of conflict resolution within a given society are often responsible for violence being directed against women. The study of wife battery, as mentioned above, points to this aspect as being the second most important factor when it comes to wife abuse in different societies.G. Government inaction
72. Perhaps the greatest cause of violence against women is government inaction with regard to crimes of violence against women. There appears to be a permissive attitude, a tolerance of perpetrators of violence against women, especially when this violence is expressed in the home. The seriousness of the crime is rarely acknowledged. There exists also a non-recognition of such crimes in the laws of many countries, especially in relation to domestic violence, marital rape, sexual harassment and violence associated with traditional practices. As a result, in most societies crimes of violence against women are invisible. In addition, even where crimes of violence against women are recognized in the law, they are rarely prosecuted with vigour. In the context of norms recently established by the international community, a State that does not act against crimes of violence against women is as guilty as the perpetrators. States are under a positive duty to prevent, investigate and punish crimes associated with violence against women.H. Consequences
73. The consequences of violence directed against women are difficult to ascertain because the crimes are often invisible and there is very little data on the subject. However, it is very clear that fear is perhaps the greatest consequence. Fear of violence prevents many women from living independent lives. Fear curtails their movement, so that women in many parts of the world do not venture out alone. Fear requires that they dress in a manner that is "unprovocative" so that no-one can say that "they asked for it" if they are violently assaulted. Fear of violence requires that they seek out male protection to prevent violence being directed at them. This protection can result in a situation of vulnerability and dependence which is not conducive to women's empowerment. Women's potential remains unrealized and energies which could be directed towards the amelioration of society are often stifled.A. Protection from violence
79. Women have been invisible in the development and growth of modern international law. Though law is assumed to be gender-neutral, the norms and standards of international law are generally unconcerned with the "women's" question."All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as ... sex".
This, taken in conjunction with article 6.1 of the Covenant, which protects the right to life, article 7, which protects everyone from torture or cruel, inhuman or degrading treatment or punishment, and article 9.1, which protects the right to liberty and security of person, means that the Covenant may be construed as covering the issue of gender-based violence."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".
Violence is not expressly mentioned but a proper interpretation of the definition allows it to be included by implication."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 private life".
97. The Preamble to the Declaration clearly locates the roots of gender-based violence in "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", recognizing that "violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men". The Preamble also identifies groups of women who are especially vulnerable to violence. These include women belonging to minority groups, refugee women, migrant women, women living in rural or remote communities, destitute women, women in detention, female children, women with disabilities, elderly women and women in situations of armed conflict. Vulnerability and historicity are thus seen as the dual principles which are responsible for violence against women.B. State responsibility
(a) The person is an agent of the state;
(b) Private acts are covered by provisions of a treaty obligation;
(c) There is State complicity in the wrongs perpetrated by private actors;
(d) State failure to exercise due diligence in the control of private actors.
103. The "due diligence" standard has been generally accepted as a measure of evaluating a State's responsibility for violation of human rights by private actors.C. Obligations of the State
108. The obligations of the State with regard to the elimination of violence against women are comprehensively spelt out in article 4 of the Declaration on the Elimination of Violence against Women. The State is obliged to condemn violence against women and is expected not to invoke custom, tradition, or religion to avoid the obligation; the State is expected to pursue all "appropriate means", "without delay" in adopting a policy of eliminating violence against women. Among other obligations of the State outlined in article 4 are: (a) Ratification of the Convention on the Elimination of All Forms of Violence against Women (art. 4 (a));
(b) Specific directives with regard to the development of legal and administrative mechanisms to ensure effective justice for victims of violence (art. 4 (d));
(c) To ensure that there is specialized assistance in terms of support and rehabilitation for women victims of violence (art. 4 (g));
(d) Training of judicial and police officials (art. 4 (i));
(e) Reform of educational curricula (art. 4 (j));
(f) Promotion of research (art. 4 (k));
(g) Full reporting of the problem of violence against women to international human rights mechanisms (art. 4 (m)).
109. A basic premise of both the Convention and the Declaration appears to be that the law and legal institutions have an important role to play in realizing the gender equality and elimination of violence envisaged in these instruments. It is possible to perceive the emphasis given, in these international instruments, to law as a tool that can be used in combination with other mechanisms to deliver justice and equity to women. However, both documents refrain from placing an undue reliance on strictly legal mechanisms at the expense of other methods. They make provision for the use of non-legal mechanisms, such as rehabilitation and education of the judiciary and other officials to make them sensitive to issues of gender, as necessary complements to the law in efforts to eliminating gender-based violence."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".
Such statistics and research should help both by providing the basic material with which those working in the field of gender-based violence can make their programmes more effective, and by making the problem of violence more visible to the general public and the international community at large. D. Obligations of the international community
113. The Declaration sees the international community as an essential actor in the process of eliminating violence against women (art. 5). The directives to United Nations specialized agencies, bodies and organs are intended to ensure that they promote awareness of the issue of violence against women in their programmes, collect data on the problem and periodically analyse the trends, formulate guidelines and manuals on the issue and cooperate with non-governmental organizations in addressing it. The United Nations system should, therefore, be seen as a data bank and as an awareness-raising instrument in attempting to make the international community more sensitive to the needs of women, particularly in the area of violence against women.E. Regional conventions
114. On 9 June 1994, at Belém do Pará, countries of the Latin American region adopted the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará). Violence against women is defined in its article 1 as "any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or private sphere". Like the United Nations Declaration, the Convention of Belém do Pará divides violence against women into three broad categories: violence which occurs in the family, in the community and where it is perpetrated or condoned by the State (art. 2). However, in relation to the family, unlike the Declaration, the Convention explicitly includes people who do not and have never shared the same residence within the definition of a family or domestic unit, thus recognizing that people involved in an interpersonal relationship do not necessarily live together. This is of fundamental importance as many of the protections and remedies against violence in the family available to both the married woman and the woman living with her partner are at present unavailable to the woman who is not cohabiting with her partner.A. Violence in the family
1. Domestic violence
(a) Introduction
117. The family has been traditionally considered as a retreat, a place where individuals are able to find security and shelter. The family has been romanticized as the "private haven" where peace and harmony prevail. Recent research, however, points to the fact that the family may be a "cradle of violence" and that females within the home are often subjected to violence in the family.(b) Causes
119. The causes of violence against women in the home have been analysed in detail by a United Nations report on violence against women in the family. Among the causes discussed are:(i) Alcohol and drug abuse by the perpetrator: in one study of 60 battered women, drinking accompanied 93 per cent of the incidents. In other studies alcoholism was linked to violence in 40 per cent of the cases;
(ii) A cycle of violence: the childhood of the abusive man may have been disrupted by violence in the family. Studies conclude that violence by parents begets violence in the next generation.
(iii) "Provocation": it has been argued that in some cases the victim provokes the abuser. But research indicates that while such incidents may take place they are not the norm. The only real pattern with regard to "provocative" behaviour is the seeming failure on the part of the woman to comply with the husband's authority;
(iv) Economic and social factors: early studies on domestic violence point to, inter alia, economic and social factors such as unemployment, low wages and inadequate housing, as being causes of domestic violence. Research in developing countries seems to augment these findings. Poverty seems to aggravate violence, because of stress and frustration factors. However, violence against women also exists in wealthier circles;
(v) Culture: certain cultural factors may precipitate violence against women;
(vi) Structural inequality: the general structures of society and the family which accept male dominance and female submissiveness as the norm may help legitimate violence against women.
120. Violence against women within the family is a significant pattern in all countries of the globe. Of the 487 murders committed by men in England and Wales during the period from 1885 to 1905, 124 or more than a quarter, were murders of women by their husbands, while a further 115 were of mistresses or girlfriends by their men.(c) Criminalization
123. In many jurisdictions this approach has changed. Today many States recognize the importance of protecting the victim of wife abuse and of punishing the perpetrator of the crime. One of the major questions facing law reformers is whether to "criminalize" wife battery. There is a sense that domestic violence is a crime between those who are linked by the bonds of intimacy. The question of intimacy, i.e. whether wife-battery should be treated as an ordinary crime or whether there should be an emphasis on counselling and mediation, poses a major dilemma for policy makers.(d) Police action
126. A criminal justice approach is fundamentally dependent on the role of the police. Since the police will be the body called upon for an initial response in a complex situation, it is important that there be clear standards with regard to police action in the context of domestic violence.(e) Legislation
132. Legislation with regard to domestic violence is a modern phenomenon. In the past, domestic violence was dealt with under the laws for general criminal assault. This has proved to be unsatisfactory. There is an increasing belief that special laws should be drafted, having special remedies and procedures which are most effective with regard to crime between "intimates". Though contained within the framework of criminal laws, these procedures would try to meet the special needs posed by domestic violence.(f) Training professionals
136. Generally, all levels of the legal system are ignorant of the dynamics of domestic violence. Most police, prosecutors, magistrates and judges adhere to traditional values that support the family as an institution and the dominance of the male party within it. It is therefore necessary to train law enforcers and medical and legal professionals who come in contact with victims to understand gender violence, to appreciate the trauma of the victim and to take proper evidence for criminal proceedings. However, it is often very difficult to gain the cooperation of professionals for training of this type. Professionals in law and medicine are particularly resistant to learning from anyone outside their specialty. The Musasa project in Zimbabwe found that cooperation of the police and magistrates was facilitated by involving a legal professional in the education process and by ensuring that the content was dependable and informed. Another effective technique was to facilitate a workshop with one part of the legal system acting as host to another.(g) Community support services
137. The nature of the crime of domestic violence requires the intervention of the community to assist and support the victims. In this regard, hospitals are an important starting point since they are often the first place that victims of violence go to. Student doctors must be made aware of the dynamics and incidence of family violence and must be taught to ask appropriate questions of patients who may be abused. Refresher programmes should be initiated on the subject, the issue should be addressed in professional and academic journals and guidelines which assist in the identification of abuse and suggest appropriate treatment for battered women should be developed and used in hospitals and surgeries.2. Traditional practices
(a) Introduction
143. In many societies, women are subject to violence because of traditional practices. Among such practices which violate women's human rights are female genital mutilation, son preference, gender difference in nutrition, early childhood marriage, violence related to dowry, widow burning and virginity tests. All these practices have received international attention as aspects of the problem of women's human rights.(b) Female genital mutilation
146. The number of sexually mutilated women and girls in Africa and in some parts of Asia has increased to 100 million in 1994. According to the World Health Organization, a further 2 million girls are estimated to be at risk of the practices each year - most of them live in 26 African countries, a few in Asian countries, and their numbers are increasing among immigrant populations in Europe, Australia, Canada and the United States of America."The World Health Organization continues to advise unequivocally that female genital mutilation must not be institutionalized, nor should any form of female genital mutilation be performed by any health professionals in any setting, including hospitals or other health establishments."
151. Except for industrialized societies where female genital mutilation is practised by immigrant populations, few countries have legislation prohibiting female genital mutilation. The criminalization of the practice of female circumcision has occurred only in countries such as France and the United Kingdom.(c) Son preference and gender difference in nutrition
154. Given the present number of men in India and in China, there should today be 30 million more women in India and 38 million more women in China than there are.(d) Early marriage and dowry related violence
160. In India, 11,259 dowry related deaths were recorded in the last three years, in Nepal, 40 per cent of girls under the age of 15 are already married.(e) Other practices
166. In many traditional societies, pregnancy and childbirth are events surrounded by numerous myths and practices. As a result of dietary restrictions, many women are undernourished during maternity and have a low intake of essential proteins and vitamins, which in turn has implications for the health of the new-born. Labour and childbirth are often characterized by unhygienic conditions, unskilled assistance, as well as by religious rituals practised by traditional birth attendants. It must, however, be mentioned that some religious rituals may have a supporting effect on the women themselves and are felt to be reassuring.(f) Traditional laws
170. Certain traditional practices and sanctions which are violent towards women are justified by special legislation. The public stoning and lashing of women serve to institutionalize violence against women. The Special Rapporteur has received many allegations of such violent punishments being inflicted on women in the Islamic Republic of Iran, for example. It is important that research be conducted with regard to these laws to ascertain their impact on the full enjoyment of human rights by women and that these laws be reconsidered in the light of universally accepted human rights standards.(g) Death threats
171. Women who defy traditional practices and related legislation often are sometimes at the receiving end of death threats and violence, for example the writer Taslima Nasreen of Bangladesh and Asma Jehangir of Pakistan. In Algeria, according to information received by the Special Rapporteur, women have been killed or have received death threats, especially in March 1994. Among the victims was Mme Meziane, the director of a school in Bet Khadem. This tradition of violence against women who do not conform to cultural norms is frequent in many societies. Government inaction in the face of such threats results in women being denied their fundamental human rights - especially the right to life. It is important that Governments investigate and prosecute those who issue such death threats with seeming impunity (see report of the Special Rapporteur on the right to freedom of opinion and expression, Mr. A. Hussain (E/CN.4/1995/32)). Non-State actors should be held internationally accountable for their activities with regard to violence against women. B. Violence in the community
1. Rape and sexual assault
(a) Introduction
172. Rape has often been described as the primary instrument of control in a patriarchal society.(b) Police action
176. The police are often insensitive to issues concerning rape. They are often suspicious of complainants, particularly if there is no sign of injury, if the woman knows the offender, if she delays reporting the rape or if she appears unnaturally calm or unemotional. If the woman is seen as being morally dubious, as she will be if she is living with her boyfriend, is sexually experienced or is a prostitute, the allegation will be completely in doubt. Police stations are the traditional rape reception agencies and the police response to complainants requires priority attention. Education and training are essential for prejudice and negative attitudes to be eliminated and practical approaches to a complaint imparted. In Malaysia, women-only rape squads have been formed by the police and a policy directive established that only women police officers handle rape victims.(c) Services
177. Many countries have established what are sometimes called "rape crisis centres". Some of these operate a telephone advice service or a short-term residential facility for victims. Most provide sympathetic and knowledgeable support to victims. These rape crisis centres provide integrated services to women victims of violence. Centre staff accompany the victim to the police station and the hospital to give her support. They provide her with legal and counselling services and work closely with hospitals, the police station and the prosecutor's office. They are basically intended to give the woman victim courage to face the difficult and often embarrassing procedures that the legal process requires.(d) Legislation
179. The criminal laws which exist with regard to rape also pose certain problems. In most cases rape is defined as sexual intercourse with a woman, against her will and without her consent. Questions emerge as to what is "sexual intercourse", what is "consent" and what are the relevant rules of evidence which should govern a case concerning rape.(e) Sexual intercourse
180. Most jurisdictions consider sexual intercourse for the purposes of rape to exist only where there is penile penetration of the vagina. However, frequently, the offender is unable or chooses not to penetrate his victim in this manner, but may force her to perform acts of oral sex, penetrate her with other parts of the body or other objects or demean her in other ways. A number of jurisdictions, especially in the Commonwealth, have thus taken the view that this concentration on penile penetration is misplaced. Some define sexual intercourse to include anal and oral acts of sex.(f) Sexual assault within marriage
181. In many countries sexual assault by a husband on his own wife is not regarded as unlawful sexual intercourse and thus is not a crime. This is based on the assumption that the wife gives herself up to the husband by entering into the contract of marriage. Some jurisdictions have, however, done away with this marital immunity.(g) The complainant's consent
182. In most countries, rape is defined by statute or by common law as sexual intercourse without the consent of or against the will of the victim. Research from all jurisdictions indicates that any woman who has to prove that she did not consent will face enormous difficulty unless she shows signs of fairly serious injury. She will face particular difficulty if she knows or has had a sexual relationship with the man in the past. Thus a number of jurisdictions have attempted to shift the emphasis of the crime away from her consent. Most take as their inspiration the Michigan (h) Evidence
2. Sexual harassment
(a) Introduction
190. Sexual harassment in the workplace and elsewhere has become an increasingly important issue on the agenda for women's rights, with recent reports pointing to the widespread occurrence of the phenomenon and its serious and disturbing effects. In designing strategies to combat the phenomenon, it is of vital importance that an adequate definition of sexual harassment be first agreed upon. Behaviour which falls within this definition is bound to be very diverse and would include behaviour which is considered "normal" in today's social context, as well as behaviour which falls within the definition of many legally recognized sexual offences. The search for an adequate definition of sexual harassment is likely to be difficult and will vary with cultural values and norms. However, there are two vital ingredients to such conduct. First, it is conduct which is unwanted by the recipient, in other words, unwelcome sexual attention. Second, it is conduct which from the recipient's point of view is offensive or threatening.(b) Legal strategies
191. Some examples of sexual harassment fall within the definition of the crimes of rape, sexual assault, indecent assault or common assault. Where this is the case and since many countries have criminal laws against such activities, the woman can complain to the police, who may choose to institute a criminal prosecution against the offender. In some cases, if the police choose not to prosecute, the woman herself may prosecute privately. The woman also has the option, whether or not a criminal prosecution is being instituted, to pursue a civil action in either contract or tort, depending on the circumstance in which the offence was committed.(c) Other strategies
199. The nature of sexual misconduct is such that women have tended to concentrate on legal remedies and more or less formal methods of complaint. Organizations concerned with sexual harassment have been established in a number of countries. In the United Kingdom, Women Against Sexual Harassment (WASH) publicizes the issue, provides training for employers and support and advice for complainants of harassment. In Canada, the Women's Legal Education and Action Fund (LEAF) conducts test cases and provides assistance in claims of sexual harassment, as does it's British sister organization, the Women's Legal Defence Fund.(d) The United Nations system
204. The Special Rapporteur has received certain allegations with regard to sexual harassment within the United Nations system. She will, in due course, write to the United Nations officials concerned with a request for clarification. However, it is important to state in this preliminary report that the United Nations system must be above reproach with regard to such issues. Effective rules and procedures must exist for vindicating the rights of women who are subject to sexual harassment.3. Prostitution and trafficking
(a) General description
205. Prostitutes are a heterogenous group, with different interests, different understandings of their rights and positions, and different vulnerabilities. The "call-girl" or "escort" is relatively better off and more independent than the girl-child who is trafficked into foreign countries where she has no economic basis or cultural or familial ties. The prostitute or commercial sex worker (hereinafter, "CSW") in industrialized countries may belong to fairly sophisticated unions (albeit largely unrecognized) or movements whose agendas often conflict with those of feminist organizations working ostensibly on their behalf; the CSW in developing countries does not have access to effective networks of support or organization.(b) Nature of the abuse
207. As a result of these enormous economic incentives, CSWs are particularly vulnerable to economic exploitation. While the extent of domination and bondage varies according to the socio-economic conditions faced by each CSW, they are all subject to a certain degree of exploitation. They usually only realize a small percentage of their earnings: in Germany, for example, the CSW gets only DM 80 of the DM 350 that is charged for her services.(c) Legislation
214. Most States have either outlawed prostitution or have imposed heavy regulations on the practice of prostitution.4. Violence against women migrant workers
(a) General description
220. Migrant women workers, whether internal or international, represent an upward trend in women's economic activity. Although such women are typically lower paid than their male counterparts, they are increasingly becoming the most important, if not the only, breadwinners in their families.(b) Nature of the abuse
224. The nature of the abuse faced by international female migrants varies. Its chronic under-reporting (and under-investigation of reported cases) makes it very difficult to document with any certainty the extent of the problem. The abuses that are reported fall into two categories: non-physical abuse and physical violence. The nature of these abuses is outlined below. (c) Legislation
230. Both sending and receiving Governments have encountered difficulties in regulating the flow of migrant workers. The bulk of migrant workers are recruited through private, unregistered agencies, which evade immigration and labour laws with ease.(d) International instruments
233. There are many international instruments which can be mobilized to prevent abuse against migrant women. These instruments basically recognize the duty of the sending State to apprise its citizens of their rights and obligations, and the duty of the receiving State to assure human rights protection to the citizens of other countries. There follows below a list of recommendations deriving in part from these international instruments and in part from reports prepared by human rights organizations.(i) States must act affirmatively to regulate private recruitment agencies, which constitute the original site from which migrant women are drawn. Administrative agencies, such as OWWA in the Philippines, should be established for this purpose.
(ii) Both sending and receiving countries should establish outreach programmes for migrant women, providing legal, social and educational assistance.
(iii) Police stations should have trained female officers charged with helping migrant women who come in to report cases of abuse. Migrant women held in detention should come into contact with male officers only when a female officer is also present.
(iv) Embassies should be equipped to help their migrant citizens effectively, both when they seek refuge and when they are held in custody.
(v) Migrant women should not be excluded from the protection of the national minimum labour standards. Employers should be actively prosecuted for violating national labour standards.
(vi) Further, States should ensure that their national labour standards conform with the various guidelines and recommendations put forth by the International Labour Organisation.
(vii) A basic problem underlying the presence of abuse is Government indifference or inaction. Many States have protective laws which are not enforced. States should, therefore, be held accountable for such inaction.
(viii) Trade unions should be encouraged to help realize the rights of migrant women.
(ix) The General Assembly at its forty-eighth session in December 1993 adopted resolution 48/110, entitled "Violence against women migrant workers", in which, called upon all countries, particularly the sending and receiving States, to cooperate in taking appropriate steps to ensure that the rights of women migrant workers were protected. The General Assembly also called upon competent bodies and specialized agencies of the United Nations system, other intergovernmental organizations and non-governmental organizations to inform the Secretary-General of the extent of the problem of violence against women migrant workers and to recommend further measures to implement the purposes of the resolution. This last provision is noteworthy and concerned groups and agencies who have relevant information should actively be encouraged to report to the Secretary-General on a regular basis.
234. The economic interests that lead to migration are compelling; migration cannot be stopped, nor should it be prohibited. Rather than trying to control migration, efforts should be directed at providing maximum protection for migrant women. Providing effective legal mechanisms by which such migrant women can be officially recognized and counted as a population equally deserving of State protection must be the starting point for effective redress of abuse against this vulnerable group.5. Pornography
(a) Introduction
235. Pornography has become a major issue for women's movements all over the world. Many feminists view pornography as the very essence of patriarchy; indeed, the theory is advanced that it is the mainstay of male power and female subjugation. Pornography eroticizes domination(b) Free speech
238. The most contentious issue faced by those who wish to eliminate pornography is how to define pornography in a manner that does not deny free speech and artistic creativity. In jurisdictions within the United States of America, the free speech argument has been more persuasive than arguments which see pornography as violence against women. The Williams Committee on Obscenity and Film Censorship (1979) considered that for material to be pornographic it must have a certain function or intention, to arouse its audience sexually, and also a certain content, explicit representations of sexual material (organs, postures, activity etc.). "A work has to have both this function and this content to be a piece of pornography.""We define pornography as the sexually explicit subordination of women through pictures or words that also includes women dehumanized as sexual objects, things, or commodities, enjoying pain or humiliation or rape, being tied up, cut up, mutilated, bruised, or physically hurt, in postures of sexual submission or servility or display, reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, torture, injury, shown as filthy or inferior, bleeding, bruised or hurt in a context that makes these conditions sexual."
241. Such a definition squarely locates the issue of pornography in the area of violence against women.(c) Legislation
242. In most countries, there is in fact no legislation against pornography. What there is instead is legislation against "obscenity" and "indecency". Material is usually taken to be obscene if, taken as a whole, it has the effect of corrupting and depraving persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. Attention is focused on the possible harm to the male consumer, whilst the wider notion of harm, that of violence against women, goes unaddressed. It is, therefore, necessary to find new ways of legislating which address the issue of pornography in terms of the concerns relating to the violent subordination of women.(d) Criminal law - incitement to sexual hatred
243. In the United Kingdom, the Campaign against Pornography and Censorship (CPC), launched in 1989, took up the campaign for legislating against pornography on the grounds of incitement to sexual hatred and violence, using the United Kingdom Race Relations Act 1976 as a model. The incitement section of the Act is criminal legislation which provides a precedent for restraints on freedom of expression that can be oppressive and harmful to a particular group on the grounds of race. It could also be used as a model for restraints on freedom of expression that, as in the case of pornography, can be harmful and oppressive to a particular group on the grounds of gender. Legislation against pornography is then possible on the grounds that it can act as an "incitement to sexual hatred" and "contribute to acts of violence against women in the form of sexual abuse, sexual assault, sexual harassment, rape and murder", as well as to sexism and sex discrimination. The incitement legislation, being criminal legislation, puts the power of enforcement in the hands of the police and the "State". The potential for abuse in this form of legislation, however, would be virtually eliminated, if there were a concrete, specific and unambiguous definition of pornography.(e) Civil law - the sex discrimination model
244. CPC also proposed legislation against pornography as a form of discrimination against women on the grounds of sex. Civil sex discrimination legislation against pornography would enable women to take action on grounds of harm done to them by pornography. It would enable women to take a stand on their own behalf against the pornography industry and enable them to obtain compensation for harm or injury.(f) Child pornography
247. The problem of child pornography, often involving the girl child, has been an important concern of the Commission on Human Rights, reflected in the reports of the Special Rapporteur on the sale of children, child prostitution and child pornography, Mr. Vitit Muntarbhorn, as well as in the reports of the Working Group on Contemporary Forms of Slavery of the Sub-Commission. The Special Rapporteur on the sale of children urges that not only the production and distribution of child pornography but also its possession should be criminalized.C. Violence perpetrated or condoned by the State
1. Custodial violence against women
(a) Nature of the abuse
248. Custodial violence against women is a widespread and troubling phenomenon. Abuse of power by government agents, usually police or military personnel, under non-transparent and highly unequal conditions, together with the impunity accorded to such agents, constitute the bases on which custodial violence ferments and grows. Governmental anxiety to apprehend alleged perpetrators, especially those who are perceived as threats to national security, national identity and national morality creates a general climate of non-accountability. Governments using military force to suppress their people are particularly unresponsive to charges of military custodial violence.