Thematic report on “Rape as a Grave and Systematic Human Rights Violation and Gender-based Violence Against Women”
In response to the call for submissions by the UN Special Rapporteur on violence against women, its causes and consequences (SRVAW), CREA, Amnesty International, RESURJ, IWRAW-Asia Pacific and the Global Health Justice Partnership of Yale Law School and the Yale School of Public Health,1 submit this memorandum for consideration in the upcoming thematic report on “rape as a grave and systematic human rights violation and gender-based violence against women”, to be presented to the UN General Assembly in September 2020.
Our submission reaffirms states’ responsibility to address sexual and gender-based violence (SGBV) as a grave and systematic human rights violation, but recommends that the report use a broader analytical frame that situates penal reform within more comprehensive approaches to combat SGBV, beyond prosecution and punishment. While the SRVAW rightly seeks to further elucidate states’ obligations to “prosecute and punish”, this focus would be more effective if criminal law responses were explicitly linked with other state due diligence obligations to prevent, remedy and redress SGBV.
The submitting organizations propose that the SRVAW’s report should ambitiously encompass more than an audit of criminal laws, by bringing a critical perspective to the role and the use of the criminal law as a matter of human rights, and in particular, the larger picture of the causes and consequences of SGBV; the full-range of states’ due diligence obligations (prevent, protect against, prosecute, punish, and provide redress for acts violence by state and non-state actors); the effectiveness of criminal laws in reducing incidence and prevention of SGBV; and the frequent exclusion of marginalized and criminalized individuals and groups from protection from violence. In any focus on prosecution and punishment for SGBV, a human rights consistent approach must grapple with the potential for abuse of the criminal law, as our experience has revealed a paradox: globally, there is a ratcheting up of criminal punishments for some SGBV crimes, unsupported by evidence of effectiveness, whereas in other cases, there is a lack of enforcement and punishment for SGBV. Thus, we encourage the SRVAW to call for accountability for punitive state actions that have abusive or other discriminatory effects: when penal acts by the state are undertaken with the aim of combating SGBV but produce other injustices, or create the conditions for SGBV and other injustices to thrive, equality for women is undermined. Broadening the scope of analysis within the SRVAW’s report and more generally to approaches to preventing and halting SGBV is critical to achieving gender justice,2 as well as consonant with states’ non-discrimination obligations.
What follows is a brief discussion of the often uneven and discriminatory application of criminal laws and an overview of key issues that impede SGBV prevention and access to justice, along with proposed recommendations for states. The submission also contains an Annex which highlights examples of specific complementary and alternative, victim-centered measures that can be used alongside criminal laws, to ensure a comprehensive approach to preventing and redressing SGBV, that do not solely rely on penalization and punishment.
1 CREA, https://creaworld.org/; Amnesty International, https://www.amnesty.org/en/; RESURJ, http://resurj.org/; IWRAW-Asia Pacific, https://www.iwraw-ap.org/; and Global Health Justice Partnership of Yale Law School and Yale School of Public Health, https://law.yale.edu/ghjp.
2 For purposes of this submission, gender justice is defined as a response to people’s lived experiences of violence and oppression that legal and civil protections alone cannot tackle. Gender justice as a framework recognizes the role that state, legal, and economic systems can play in perpetuating gender-based violence and oppression. Additionally, it recognizes that while changes in law and policy are necessary, alone they are insufficient to eliminate structural inequalities and discrimination that deprives individuals or groups from accessing rights, resources and power on an equal footing due to their gender and other intersecting elements of their identities.