​The Special Rapporteur on Violence against Women
​Research on State Responses to Gender Violence

In June of 1993 domestic violence catapulted to the fore of the human rights agenda at the World Conference on Human Rights held in Vienna. A new surge in the literature on the sub­ject, coupled with the relentless work of women’s rights activists worldwide who mobilized around the issue, helped to focus in­ternational governmental attention on a previously shrouded global epidemic.
Now that the issue of domestic violence had been exposed as a human rights violation, the international community was called to con­front not only the sheer magnitude of the problem but also the logistical complications of finding appropriate UN mechanisms to address the issue within the human rights framework. One ini­tiative towards addressing domestic violence was the appoint­ment in 1994 of the UN Special Rapporteur on Violence Against Women by the UN Commission on Human Rights. This appointment was seen a major victory for women’s rights activism. At WLDI, we were particularly pleased that the person named to this position was Radhika Coomaraswamy, our friend and colleague who had been instrumental in developing the WLD Forum in 1984, APWLD in 1986 and WLDI after that as a board member.
​Part of the Special Rapporteur’s mandate is to “recommend measures, ways and means, at the national, regional and interna­tional levels, to eliminate violence against women and its causes, and to remedy its consequences.”1 These recommendations are made in her annual reports to the Commission on Human Rights. This appointment is a gain for both the hu­man rights community and the global women’s movement, but effective use of such an appointment requires the sup­port of NGOs from both communities.

WLDI was eager to support the work of the Special Rapporteur in examining the problem of domestic violence worldwide. Building on its work in the areas of both domestic violence and women’s human rights worldwide (Empowerment and the Law: Strategies of Third World Women, 1986; Freedom From Vio­lence, 1992; Claiming Our Place: Working the Human Rights System to Women’s Advantage, 1993), WLDI undertook to document and analyze existing legislation and legal strategies to combat violations, initially is on domes­tic violence.
The study was published as: State Responses to Domestic Violence, intended to serve as a resource for both governments and NGOs around the world to use in advocating for specific changes in the treatment of domestic violence within their country’s legal system. In addition to outlining the interna­tional human rights instruments that support the obligation to adopt domestic violence legislation, the report provides a model for drafting legislation. The report is distinguished by including the direct input of women working in the field of domestic vio­lence worldwide, and as such provided an important vehicle for women’s voices to be heard at the highest level of the UN.
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State Responses to Domestic Violence examines domestic violence as a sub-set of gender-based violence against women, which the United Nations Declaration on the Elimination of Vio­lence Against Women (DEVAW)[3] defines as “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.”
International human rights law can now be inter­preted to define domestic violence as a human rights vio­lation and impose upon states an obligation to establish effective legal remedies to eradicate it. Yet effective state level responses are severely lacking as evidenced by the fact that domestic violence remains a problem of epi­demic proportions. This epidemic signals the need to re­view the current legal treatment of domestic violence and engage in the process of its reform.

Purpose and Research Strategy
State Responses to Domestic Violence endeavors to con­tribute to this process. Specifically, it responds to three major questions: What are states’ legal responses to do­mestic violence?; Have these responses been effective in eradicating domestic violence?; and What can be done to improve states’ legal response and treatment of do­mestic violence?
Responding to such questions required a dual re­search strategy. A review of the literature revealed that most states continue to address domestic violence through their constitutional provisions and their penal and civil codes. Only a handful of states have enacted, or are currently debating, specific legislation addressing do­mestic violence. This study analyzed twenty-one pieces of domestic violence legislation[4] with respect to: the indi­vidual relationships in which domestic violence is pro­hibited by law; the acts prohibited by law; the process for making complaints; the options for obtaining imme­diate protection; the remedies available to victims; and the classification of domestic violence by the legal system.
Evaluating the effectiveness of current legal mecha­nisms in eradicating domestic violence and identifying initiatives to improve its legal treatment could not be achieved, however, based on legal analysis alone. It re­quired the direct input of individuals and organizations working in the area of domestic violence and, therefore, in the best position to reflect on and recommend sys­temic legal improvements. This study surveyed 146 women’s rights advocates, including lawyers, academics and service providers from 94 states (covering countries or states within federal systems with discrete legislation).
The analysis and recommendations presented in this re­port incorporate the observations of the survey respondents.

Structure of the Report and Key Findings
Chapter 1: The first chapter of this report “Seizing the Strategic Moment” is an updated version of an earlier article that appeared in Freedom From Violence: Women’s Strategies From Around the World. It is incorporated into the current study to provide a broader context in which to place legal re­form as one among many strategies designed to eradi­cate gender violence. It reminds us that domestic violence is embedded in cultural, socio-economic and political power relations and therefore, will require not only law reform, but multi-pronged strategies to success­fully alter the patterns of behavior that result in violence against women.
Chapter 2: This chapter commences with an identification of international legal instruments and standards relevant to domestic vio­lence.
​Chapter 3: The study then reviews selected laws states employ to address domestic violence.
​Chapter 4: It then presents the survey respondents’ evaluation of the current legal treatment of domestic violence and their recommendations for its improvement.
Chapter 5:  Fi­nally, the study incorporates the conclusions of the re­search into a model for drafting domestic violence legislation.

Review of International Legal Standards
The analysis of international human rights law set forth in Chapter 2 demonstrates that many norms and provisions implicate the subject of domestic violence and may be interpreted to require states to both prohibit and prevent domestic violence.
The growing consensus of the international commu­nity (as expressed in such interpretative documents as the DEV AW and General Recommendation No. 19 of the
UN Committee on the Elimination of Discrimination Against Women) establishes states’ explicit obligation to engage in appropriate and effective measures to over­come domestic violence whether committed by private or public actors. Although most countries continue to address domestic violence through general provisions in their civil and penal codes, the increasing application of international human rights law to the issue of domestic violence supports the conclusion that states should adopt and implement comprehensive, gender-specific, domes­tic violence legislation.

Review of National Laws and Mechanism
A review of constitutional, civil and penal laws from twenty-nine countries demonstrates that while rigorous application of laws could go a long way toward address­ing the problem of domestic violence, the structural and substantive limitations of most existing laws supports the need for states to develop and implement gender- specific, comprehensive domestic violence legislation. To ensure effectiveness, legislation must encompass the broad range of definitions and contingencies needed to respond to the unique circumstances surrounding do­mestic violence.
An analysis of twenty-one domestic violence laws re­veals that even what is designated as “domestic violence legislation” often insufficiently protects women. Many of the laws reviewed are geared to protecting members of the family. However, without explicitly prohibiting gender-based violence and naming women as a pro­tected class, they fail to address the pernicious nature of gender abuse and the disproportionate infliction on women of violence in the family. Furthermore, many of these laws only cover limited aspects of domestic vio­lence, and therefore need to be more comprehensive.

Recommendations
Moving the discussion from what the states are pres­ently doing to combat domestic violence to what states should be doing, the study examines the suggestions of
advocates working on domestic violence issues from around the world. Their responses to the survey ques­tions reveal a lack of faith in the current treatment of do­mestic violence by legal systems. Perhaps not surprisingly, the most frequent recommendation cited is the need to adopt gender-specific, comprehensive do­mestic violence legislation.
The survey responses also highlight the critical need for domestic violence education and public advocacy, in­creased services and a coordinated, integrated govern­ment strategy in order to effectively combat domestic violence. Analysis of the survey responses shows that ad­vocates are not only concerned with the difficulties that the legal codes present, but also with the lack of services provided by the state to enable women to access legisla­tive protection. The lack of services exemplifies the larger problem, articulated by advocates, of state reluc­tance to formally acknowledge domestic violence and develop an integrated approach to combating it.

Model Legislation
Having identified deficiencies in the law and needed improvements, the study finally provides a guide for framing legislation that incorporates integral and crucial elements of gender-specific, comprehensive, domestic violence legislation. Its objective is to serve as a drafting guide to states and to organizations committed to enact­ing such legislation. The model includes a declaration of legislative purpose; definitions of relationships in which domestic violence is prohibited; acts that constitute do­mestic violence; complaint mechanisms; duties of law enforcement and court officials; and remedies and the provision of services. It also incorporates elements of protocols for police and court personnel.
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​State Responses to Domestic Violence

State Responses to Rape analyze how rape is addressed in national and international laws.
The biggest fear for most women is to get raped by a stranger. However, national statistics in most countries show that the majority of the rapes are committed by a man who knows the victim by sight alone or knows her fairly well. This type of rape is called acquaintance rape. Further, most rape victims are between the ages of 16 and 24 and the majority of rape victims never report the crime to the police.
Until recently rape laws have in effect been a means of protecting a man’s or family’s property rather than the integrity of a woman’s body. Historically, women were seen as the property of men. Therefore, sexual abuse of a woman was a violation to a man’s property and less of a violation of a “woman’s bodily integrity.” Meanwhile, through pressure from women’s advocacy groups around the world, rape is no longer conceived as a violation of family or community honor, but as an abuse of the woman’s bodily integrity
Violence against women is a manifestation of the historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of women’s full advancement. For instance, rape or threat of rape creates fear and insecurity among women. The fear of rape is a permanent constraint on the mobility of women and limits their access to resources and basic activities. The same fear of rape is not felt to the same extent by our male counterparts.
Violence against women is used to control female sexual behavior. Most abuses perpetrated against women derive from a desire to ensure women’s chastity. Rape, sexual harassment, trafficking, female genital mutilation, all these violations are an assault of female sexuality.
There are many different forms of rape, such as child rape, rape in custody, rape of prostitutes, marital rape, rape of homosexuals, etc. The primary focus in this report will be on rape of adult women in the community, during war and peacetime. The community includes the workplace, school or educational institutions, and “street” situations, such as universities, private companies, churches, sport facilities, markets, transportation facilities, and all other entities unrelated to family and state. This report does not focus on rape within the family and rape committed or condoned by state officials, (although the report briefly addresses marital rape and custodial rape). In the “community,” the social, cultural, religious, ethnic, or racial reference groups from which people derive their sense of identity and key values play a critical role in reinforcing the structure of the family and the position of women within it.[5]These reference groups can perpetrate or condone certain forms of violence against women. For instance, in some countries women still are regarded as property of the husbands and marital rape is not recognized by the community as a crime.
Rape is considered an act of gender based violence. However, just because the victim is a woman does not automatically mean that the violence is gender based. In order to speak of gender based violence, it must constitute a type of harm that is particular to the person’s gender, such as female genital mutilation, sex-selective abortions , and rape. Statistics around the world show that the majority of the rape victims are women. However, rape is also committed to men by women, or to women by other women and effective international and national laws should be adopted to address these grave violations. However, rape is recognized as a crime mostly directed towards women, and this report, therefore primarily focuses on rape as a gender- based crime against women.
Unfortunately, gender specific violence is not explicitly mentioned in any international treaties binding on all states. However, recent reinterpretation of human rights law has lead to the conclusion that violence against women, in peacetime and in war, is an affront to women’s physical and moral integrity and to their dignity as human beings. As a result rape is now viewed as a gender based violence and therefore, states are responsible to protect women against it, according the right to equal protection of the law.

Purpose of the study
The primary focus of this report is to analyze how rape is addressed in national and international laws. Although, women have long been viewed as property and rape seen as damage to property, rape is now considered a crime by most countries. Meanwhile, in some countries marital rape is still not being criminalized, and women are still being considered the property of their husbands. This report describes how the international community has only recently begin to recognize rape as a violation of human rights, through the principle of state accountability. Although, rape is still today only seen as a human rights violation where perpetrators act under higher orders to commit rape, and where there is a clear involvement of the state. Other rape cases are still considered mere violations instead of human rights violations.
The report describes the strategies used by countries around the world to address rape in their constitutional provisions, their penal and civil codes. The study revealed that even though most countries criminalize rape in their penal codes or statutes, countries are not necessarily effectively protecting woman against it. Whether rape crimes are effectively prevented and punished depends on adequate and effective laws, on the attitude of the police, prosecutors, judge and the general public. Moreover, in some countries the prosecution of rape crimes also depends on how the victim is perceived.
There are significant differences in the way countries define the crime of rape. In some countries the crime of rape is covered by a broader definition of sexual assault. Sexual assault covers different sexual offenses like abduction, defilement, indecent assault, unlawful detention for immoral purposes, and rape. Other countries define the crime of rape very narrowly, only recognizing forced penetration of the penis into the vagina. Some countries have reformed their rape laws and broadened the rape definition to include oral and anal penetration by the penis and penetration of an object or any part of the human body into the vagina or anus.

First, the report discusses the international legal instruments dealing with human rights, including provisions that provide legal redress to women in order to combat rape.
Moreover, the report describes the available international human rights mechanisms for rape victims when all the domestic options are exhausted.
Second, the report analyzes 26 national constitutions and 24 penal codes. The research covers countries with a civil law system, such as most European countries, and some Asian and African countries. It also analyzes rape statutes in countries with a common law system, such as the United States, the United Kingdom and the Commonwealth countries.
Third, the report reviews the existing criminal procedures regarding rape. Rape is often viewed differently from other crimes as states do not always view rape as a public problem that needs to be prevented and punished to protect society. In many countries a woman needs to initiate a private action in order to start the prosecution, whereas in other countries the prosecution depends on public initiation. The prosecutor then decides whether the case should be prosecuted, regardless of the victims wishes.
Fourth, the report also analyzes the evidentiary rules applicable in rape cases. Research revealed that rules of evidence are often disturbingly discriminatory against victims. Lastly, this report will briefly discuss the sentencing of rapists and the available punishments, and the available remedies. As well as touch on other relevant legal issues regarding rape.

Methodology
The research for the report is based on primary sources, such as UN treaties, authoritative interpretations, jurisprudence, national laws, regional human rights instruments, and secondary sources, such as, literature, reports, law journals, periodicals, newspapers, information provided by specialists in the field and the Internet. The Library of Congress, the United Nations Information Center and various public libraries proved very helpful in the pursuit of this research.

​

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​State Responses to Domestic Violence

Gender Violence: The Hidden War Crime​ examines sexual violence directed at women in armed conflict. The report looks at the interna­tional law against sexual assault, the international mechanisms available for its enforcement and some reasons that these laws and mechanisms thus far have so spectacularly failed to re­dress—let alone prevent—violence against women during armed conflict.
This paper argues that the reason sexual violence against women during war so wide­spread is because the warring factions, civilians and, until recently, international law and the interna­tional community itself, have shared the same gender-based and gender-biased concepts of “honor” that the Special Rapporteur on violence Against Women has analyzed in her previous re­ports.
These gender specific concepts of honor—of women as the vessels of community honor and men as its protectors—find their ultimate expression in time of war. The need to protect “our wives and daughters” is a potent rallying cry—and propa­ganda tool—for military and political leaders seeking to ready nations for war. The symbolism of rape lends itself easily to rac­ist and genocidal appeals. Men of the rival nationality, tribal group or ethnicity routinely are portrayed as sexually voracious marauders. Women of the rival group are branded, simply, “whores,” thereby suggesting that sexual access to them can be had with impunity.
International law has not been immune from these discrimi­natory notions of honor. Like domestic laws that protect only “chaste” or “honest” women, international law, too, has drawn a legal link between criminal sexual assault and the morality of the victim.

Structure of the Report
This report will answer several questions: which interna­tional, regional and national mechanisms protect civilian women against violence in armed conflict situations?; why do women find difficulties in getting access to an effective legal recourse procedure?; and what improvements are necessary to prevent and protect women against state violence?
Women are subjected to violence at all times. In times of armed conflict, violence against women often intensifies. Women are subject to different forms of violence. First, they may be sub­ject to gender-based violence which is directly targeted towards them because of their gender. Second, women may be subjected to violence that is not directly targeted to them but that affects them because women have special roles and responsibilities in society that makes them vulnerable to violence. For example, women often have the sole responsibility of the household. The performance of household duties include collecting of water, firewood and food. These duties often require them to cross minefields, or military areas. Injuries by a mine or by a stray bullet are not injuries that are directly inflicted because the per­son is a women but the chances that women are injured by ei­ther are greater because of their gender specific responsibilities.
This report mainly analyzes gender-based violence in the form of rape, sexual slavery and other sexual assaults, perpe­trated or condoned by the state during armed conflict and will discuss why women are more vulnerable to such violence. The report discusses only violence by state actors and not by private actors. Many governments allow or ignore severe human rights and humanitarian violations committed by state agents in armed conflict situations. In conflict situations, sexual abuses often oc­cur in connection with other human rights abuses that are equally harmful and destructive to women, but such other viola­tions will not be covered in this report.

Chapter One analyzes the effects of war on women with particular reference to refugee women and internally displaced women in recent conflict situations.

Chapter Two discusses the sources of humanitarian law and international and regional human rights law and refugee law. It analyzes which provisions of these instruments provide protection against gender-based violence in times of armed con­flict. The report analyzes the difference in protection for women affected by an internal conflict and those who suffer violence in an international conflict.
This chapter also describes the protection of refugee women against forced return (refoulement) and the right to asylum en­shrined in the different instruments. The report looks at the dif­ferent protection standards applicable to internally displaced women and refugee women. Further, the report discusses the right of states to take derogatory measures in a state of emer­gency. A derogation clause has been included in some interna­tional and regional human rights instrument to safeguard the right of national governments to deal effectively with national emergencies. It discusses the principle of non-derogability and the obligation for states to respect the non-derogable rights rec­ognized under the different instruments and the obligation not to take measures of obligation that conflict with any other treaty or principle of customary international law.
Chapter Two also analyzes the obligation of states to protect the right to an effective remedy embodied in international and regional human rights instruments and humanitarian law. It de­scribes why women are often deprived of their right to compen­sation. The report will look at the case of the “comfort women” and their claim for reparation for the atrocities committed by the Japanese army and other officials during World War II. The re­port also describes several national asylum regimes and the diffi­culties refugee women face in getting equal access to refugee status determination procedures. Lastly, Chapter One discusses the different declarations, resolutions and recommendations is­sued by United Nations bodies that are evidence of an increased attention to violence against women in armed conflict situations.

Chapter Three discusses how the international, regional and national legal standard should be applied and how they are applied in reality. It provides examples of adequate and inade­quate application of international legal standards by national governments, United Nations bodies and other actors. It dis­cusses why the UN and states fail to apply the legal standards.

Chapter Four analyzes the International Ad Hoc tribunals for Rwanda and Yugoslavia and their efficacy in bringing justice to sexually abused women. This chapter also discusses to what extent the proposed International Criminal Court (ICC) can provide women legal redress against sexual abuse and ultimately increase their chances for achieving justice.

Chapter Five provides conclusions and recommendations addressed at countries of origin, host countries, international non-profit organizations, profit-making organizations and the relevant organs of the United Nations. The recommendations provide detailed information about what changes are needed to prevent and protect women against gender-based violence com­mitted in times of armed conflict.

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​State Responses to Domestic Violence

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Women's human rights

Contribution to the UN Conference on Women, Beijing 1995