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Comparative Perspectives on Gender ViolenceLessons From Efforts Worldwide$

Rashmi Goel and Leigh Goodmark

Print publication date: 2015

Print ISBN-13: 9780199346578

Published to Oxford Scholarship Online: November 2015

DOI: 10.1093/acprof:oso/9780199346578.001.0001

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Gaps and Challenges in States’ Responses in the Quest to Eliminate Violence Against Women

Gaps and Challenges in States’ Responses in the Quest to Eliminate Violence Against Women

A Global Perspective

Chapter:
(p.15) 2 Gaps and Challenges in States’ Responses in the Quest to Eliminate Violence Against Women
Source:
Comparative Perspectives on Gender Violence
Author(s):

Rashida Manjoo

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199346578.003.0002

Abstract and Keywords

This chapter, authored by the United Nations Special Rapporteur on violence against women, traces the evolution of the treatment of violence against women as a human rights issue, explaining the State responsibility to act with due diligence to promote and protect human rights and describing the international instruments that apply that responsibility to the area of women’s rights. The chapter then outlines the Special Rapporteur’s findings on how State responsibility to act with due diligence was understood, interpreted, and implemented throughout the world. The chapter concludes that although there has been progress worldwide in the governmental response to violence against women, it is difficult to determine whether the laws and policies that have been adopted by States have been effective.

Keywords:   United Nations, Special Rapporteur, due diligence, human rights

I. Introduction

Violence against women is a pervasive and widespread human rights violation that affects one in three women globally (World Health Organization, 2013). It is generally rooted in multiple and intersecting forms of discrimination and inequality, and is a reflection and reinforcement of the discrimination, inequality, subordination, and oppression to which many women are subject, in public and private spaces. Violence against women cannot be fully understood without also considering interpersonal, institutional, and structural manifestations of violence that form the reality of women’s lives in many instances. Furthermore, violence is a barrier to the realization of numerous human rights, including those linked to the effective exercise of citizenship rights.

In June 2013, the United Nations Special Rapporteur on violence against women, its causes and consequences, submitted a report to the Human Rights Council on the issue of State responsibility for eliminating violence against women (Manjoo, 2013). Member States and civil society organizations provided information, particularly on the interpretation, application, and effectiveness of the measures being undertaken by States in their efforts to eliminate violence against women. Using the principle of due diligence, as articulated in General Recommendation 19 of the Convention on the Elimination of All Forms of Discrimination against Women and the Declaration on the Elimination of Violence against Women, the report provides (p.16) an overview of the existing practices, which include interpretation and basic guiding elements in respect of State responsibility to act with due diligence.

The report concludes that for a State to ascertain what constitutes effective fulfillment of its obligations, it is imperative for States to create an assessment framework which includes two categories: individual due diligence, which States owe to individual victims of violence, and systemic due diligence, which requires States to create a functioning system to eliminate violence against women. This dual assessment allows for a more comprehensive and in-depth assessment by a State of its actions or inactions to address violence against women. Furthermore, due diligence also requires States to hold accountable those who fail to protect and prevent, as well as those who perpetrate, violations of human rights of women.

The following sections of this chapter include a general discussion on the historical developments related to the understanding of violence against women as a human rights issue; the developments relevant to the doctrine of State responsibility to act with due diligence; and a synopsis of the findings emanating from regional consultations that were held to gather information on this issue.

II. Historical Developments on Violence Against Women as a Human Rights Issue

Prior to and during the designated United Nations Decade for Women (1975 to 1985), the issue of violence against women generally, and more specifically domestic violence, was high on the agenda of women’s rights activists. Advocacy at the Mexico and Copenhagen World Conferences on Women served as a catalyst for the 1985 General Assembly resolution on domestic violence (United Nations General Assembly, 1985). The 1985 Third World Conference on Women in Nairobi, and the 1986 expert meeting in Vienna the following year, further reinforced the global nature and concern about violence against women. In May 1991, the Economic and Social Council (ECOSOC) adopted a resolution on “Violence against women in all its forms” upon the recommendation of the Commission on the Status of Women (United Nations General Assembly, 1993). The ECOSOC recommended the development of a framework for an international instrument that would explicitly address violence against women. It also urged Member States to adopt, strengthen, and enforce legislation prohibiting violence against women and to take appropriate administrative, social, and educational measures to protect women from all forms of physical and mental violence.

The explicit recognition by the United Nations of violence against women as a human rights violation occurred at the 1993 World Conference on Human Rights in Vienna. The Vienna Declaration and Programme of Action noted that “the human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights” (United Nations World Conference on Human Rights, 1993). Further, the document emphasized that the elimination of violence against women in all areas of life, public and private, was central to the attainment of women’s human rights (para. 38). Accordingly, the document outlined the steps necessary for the realization of these goals. These steps included integrating the human rights of women “into the mainstream of United Nations system-wide activity” (para. 37) through the treaty monitoring bodies, the effective use of existing (p.17) procedures, and the creation of new procedures to “strengthen implementation of the commitment to women’s equality and the human rights of women” (para. 40). In the same year, the General Assembly adopted two seminal resolutions. One set out the Declaration on the Elimination of Violence against Women (DEVAW), as recommended by the ECOSOC. The other established the mandate of the Special Rapporteur on violence against women, its causes and consequences, as recommended by the Commission on Human Rights.

III. State Responsibility to Act with Due Diligence

Generally, due diligence is understood as including a duty of care by a State to its people to prevent and protect against human rights violations and to punish and compensate for harms done in violation of that duty. Furthermore, due diligence is used as a standard to evaluate the responsibility of the State for failures to promote and protect human rights. Farrior and Clagett argue that “over the course of the last century, States have been found responsible under a due diligence standard for inaction or inadequate action in a range of situations, including failure to provide police protection to prevent private violence, failure to investigate or to investigate adequately killings by private individuals, and failure to punish adequately or punish at all” (Farrior & Clagett, 1998).

Under international human rights law, the actions of non-State actors can lead to a finding of State responsibility for violations when the State fails to exercise an expected duty of care. States have a responsibility to create and implement measures, including laws, policies, and programs, “to control, regulate, investigate and prosecute actions by non-State actors that violate the human rights of those within the territory of that State. These actions by non-State actors do not have to be attributed to the State, rather this responsibility is part of the State’s obligation to exercise due diligence to protect the rights of all persons in a State’s territory” (McCorquodale & Simons, 2007).

A State may incur responsibility where there is a failure to exercise due diligence to prevent or respond to certain acts or omissions of both State and non-State actors. The last 25 years has seen developments in legal rules governing State responsibility in general and due diligence in particular regarding the obligations of States to protect individuals within their territory or jurisdiction from human rights violations.1 Due diligence is generally described as an obligation of conduct, rather than results. It encompasses an assessment not only of acts, but also of omissions, as well as the need for formal legal and policy frameworks to be effective in practice. The due diligence standard serves as a tool for rights holders to hold States accountable, providing an assessment framework for what constitutes fulfillment of a State’s obligations and for analyzing the State’s actions or omissions. The duty to act with due diligence is non-derogable and requires application of both non-discrimination and good faith principles.

Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women refers to the obligation of States to pursue by all appropriate means, and without delay, a policy of eliminating discrimination against women. There is no specific provision pertaining to a State’s responsibility to act with due diligence in eliminating violence against women. In an attempt to address the defect, the (p.18) Committee on the Elimination of Discrimination against Women issued interpretative guidelines in the form of two general recommendations. General recommendation No. 12 (1989) highlights the obligation of States to protect women from violence in the family, workplace, or any other area of social life under articles 2, 5, 11, 12, and 16 of the Convention. Interpreting within specific articles in the Convention a cumulative prohibition on gender-based violence, the Committee recommended that States include in their periodic reports information concerning legislative and other measures to protect women from violence, the existence of support services for women, and statistical data on the prevalence of all forms of violence against women. In general recommendation No. 19, para. 6 (1992), the Committee stated that “gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.” The Committee reiterated “that discrimination under the Convention is not restricted to action by or on behalf of Governments” and that “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation” (para. 9).

Article 4(c) of the Declaration on the Elimination of Violence against Women asserts that States must “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether they are perpetrated by the State or by private persons.” The Committee against Torture has recognized in General Comment No. 2 that the State will be responsible when it has reasonable grounds to believe that acts of torture are being committed and it fails to exercise due diligence to prevent, investigate, prosecute, and punish the perpetrators.

The mandate of the United Nations Special Rapporteur on violence against women has for two decades observed and paid attention to the responsibility of the State in general and to the principle of due diligence in particular. It examined the concept of due diligence in 1999, 2006, and again in 2013 (Coomaraswamy, 1999; Ertürk, 2006; Manjoo, 2013). All three reports explain that the due diligence standard requires a holistic view of State responsibility to address violence against women in law, policy, and practice. The standard also requires taking into consideration other principles of human rights and gender equality in meeting its obligations. The principle of non-discrimination requires States to use the same level of commitment in relation to prevention, investigation, punishment, and provision of remedies for violence against women as they do with regard to other forms of violence. A 2011 report of the mandate on violence against women highlighted the lack of State accountability for structural factors, such as sex and gender inequality and discrimination, that create environments that are conducive to acts of violence against women (Manjoo, 2011).

The UN Secretary-General has endorsed the principle of State responsibility to act with due diligence in the context of violence against women (United Nations General Assembly, 2006). Furthermore, resolutions from the Human Rights Council and General Assembly have called on States to “exercise due diligence to prevent and investigate acts of violence against women and girls and punish the perpetrators.”2 In its resolution 1325 (2000), the Security Council emphasized the responsibility of States to end impunity and hold accountable those responsible for war crimes concerning sexual and other types of violence against women.

At the regional level, the development of specific legally binding instruments, or provisions in other instruments, regarding violence against women, (p.19) has strengthened the existing human rights frameworks in the African, the Inter-American, and the European human rights systems. The 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará) in article 7(b) holds that States must apply due diligence to prevent, investigate, and impose penalties for violence against women. The Council of Europe Convention on preventing and combating violence against women and domestic violence States in article 5(2) that “parties shall take the necessary legislative and other measures to exercise due diligence to prevent, investigate, punish and provide reparation for acts of violence covered by the scope of this Convention that are perpetrated by non-State actors.” The 2005 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) draws heavily on international law instruments, particularly the Declaration on the Elimination of Violence against Women and the Beijing Declaration. Article 2 addresses the elimination of all forms of discrimination through appropriate legislative, institutional, and regulatory measures. The due diligence standard is incorporated in several provisions, including in article 4, para. 2(a), which calls on States to enact and enforce laws to prohibit all forms of violence against women, including unwanted or forced sex, whether the violence takes place in private or public. Article 4, para. 2(b) broadly directs States to adopt any other measures necessary to ensure the prevention, punishment, and eradication of all forms of violence against women.

The jurisprudence of both international and regional human rights monitoring bodies highlights a number of clear elements of the doctrine of State responsibility to act with due diligence. These include, but are not limited to, the promotion of the right to a life free from violence; prevention of violence against women; investigation of acts of violence; prosecution of cases of violence; punishment for perpetrators; protection for victims of violence; the provision of effective redress measures including reparations; addressing the root causes of violence; and addressing the systemic failures in redress measures.

IV. Overview of Findings from Regional Consultations

The mandate on Violence against Women convened or attended five consultations in different regions.3 These included two in the sub-Saharan Africa region (hereafter African region),4 and one each in the Middle East and North Africa region (hereafter MENA region),5 Pacific Islands region (hereafter Pacific region),6 and Central and South-Eastern Europe (hereafter European region).7 The objective of such consultations was to gather information from civil society actors on how State responsibility to act with due diligence was understood, interpreted, and implemented in their country contexts. The measures undertaken by governments in their attempts to address the problem of violence against women were discussed. They included legislative measures, such as the ratification of international human rights instruments, the harmonization of national legislation, or the adoption of specific legislation on violence against women; institutional and policy measures, such as the introduction of specialized mechanisms to investigate and prosecute violence against women, developing national action plans, providing support and services (p.20) to victims, and enhancing cooperation and information-sharing between authorities and service providers; and awareness raising and capacity-building activities, including gender training for civil servants, campaigns aimed at raising awareness on violence against women, and the integration of a gender equality perspective into policies and programs.

Some commonalities and differences are highlighted in the following sections. These comparisons focus on the general country context regarding women’s human rights; the manifestations of violence against women; the law, policy, and institutional context; data collection and analysis aspects; service provision in the different regions; and the fulfillment of States’ responsibility to act with due diligence in their efforts to eliminate violence against women.

A. General Country Context with Respect to Women’s Human Rights

Many regions generally embrace strong patriarchal traditions and practices, and to differing degrees, women face de facto discrimination in numerous aspects of their lives. In the MENA region, for example, family laws are usually based on the provisions of religious laws. Men are considered to be the head of the household, to whom women owe a duty of obedience. Failure to obey men can result in violence, which is then justified on the basis of religion. In the European region, discrimination is reflected in stereotypes about the proper role of women in society, in practices such as victim blaming when women report violence, in the promotion of mediation of disputes in the interests of family unity, and the lack of accountability for acts of violence against women. Many States in the region continue to use a “women as victims” approach rather than an accountability and empowerment approach when dealing with the issue of violence against women. Violence against women in the Pacific Islands region occurs in the context of patriarchal societies that are experiencing a growth of societal conservatism, which is increasing the silencing of women victims of violence. Many women live in close-knit small communities, and reporting violence and pursuing legal and other remedies is particularly difficult. Victims face stigmatization as well as constant pressure from the perpetrator, his friends, or family members on both sides, either not to report or to withdraw complaints that are filed. In addition, for most women living in rural areas in the region, there are minimal government services, including police, courts, and health services. Across the African region, men are often considered the head of the household, with women being primary caretakers of children. In most States, civil, customary, and religious law regimes exist with respect to personal and family law. This often gives rise to discriminatory practices, including legalized polygamy, compulsory bride price, women being seen as the “property” of the husband, early marriage, and discriminatory inheritance and widowhood practices.

B. Manifestations of Violence Against Women

Domestic violence broadly, and spousal violence specifically, was identified as the most common manifestation of violence against women in all the regions under (p.21) discussion. Sexual violence in the family, in the context of marriage, is generally not recognized as violence, either at the State or non-State level. Female genital mutilation (FGM) and trafficking of women and girls is prevalent in some countries. Violence against women in conflict and post-conflict situations has not been sufficiently addressed within any region. In the MENA region, women who have been raped are sometimes forced by their families to marry the perpetrator, either due to legal provisions or arguments linked to family honor. In the Pacific region, concerns were raised about the growth of sex tourism and prostitution, which is driving an increase in the trafficking of women and girls. This situation is further exacerbated due to the demands of expatriate workers in the extractive and other industries. In the African region, sexual violence, including rape, sexual abuse, and incest, is a problem impacting both women and girls. Violence against women who are categorized as “witches” is also a problem in some countries in the African and Pacific regions.

C. Laws, Policies, and Institutional Responses

In terms of relevant international law, all States have ratified the Convention on the Elimination of All Forms of Discrimination against Women, but the vast majority of countries have made reservations to crucial articles. Many States have also ratified regional human rights instruments, including those that are specific to women’s human rights.

Most countries’ constitutions have provisions on equality between the sexes, equality before the law, and/or the outlawing of sex-based discrimination. Many States have included provisions concerning the prohibition of slavery, forced labor, and torture and inhumane treatment. Some provide for guarantees to the right to life, personal liberty, health care, education, legal services, and due process. Some States have explicit provisions guaranteeing the right to recognition and practice of religion, custom, and tradition, including customary law. In the MENA region, most constitutions provide for the supremacy of Islamic Sharia laws, particularly in family law matters. Some African States permit de jure and de facto inequality and discrimination through the exemption from equality provisions in personal status/family laws that emanate from customary and religious laws. In the majority of Pacific Island States, international law obligations must also be enacted at the domestic level to be enforceable. The failure to adopt domestic laws is the norm in the region, which results in States not meeting their international law commitments in regard to women’s human rights.

National level legislation on violence against women ranges from specificity on certain forms of violence to the general application of criminal laws to violence against women. In the MENA region, the vast majority of States do not have any specific legislation protecting women from gender-based violence. In many countries, domestic violence is not a punishable offense, and where it is, prosecution is limited to crimes in which there is visible injury. Severe acts of violence, including murder, carry no punishment or extremely light sentences, when crimes are committed in the name of “honor.” Some States provide for the bringing of private suits for domestic violence, whereas others have begun to abolish discriminatory provisions in criminal statutes. Laws that criminalize sexual relations outside of marriage (p.22) carry severe penalties, including stoning, lashes, or the death penalty. Penalties for such acts are higher for women than for men. Rape, abduction, prostitution, and sexual offenses are punishable in the penal codes of most States. In many countries, rape is not punishable if the perpetrator marries the victim. Marital rape as a specific offense is not criminalized in the MENA region. Sexual harassment is not a crime in most countries, although some reforms have been undertaken in North African countries to criminalize such acts. A few States have passed specific legislation to prohibit sex trafficking. Female genital mutilation is criminalized in a few States, but sometimes in limited circumstances, such as where it would “result in prejudice” or if it is not carried out in health institutions.

Most countries in the European region have laws that specifically address domestic violence. The violation of these laws is an offense, either at a criminal or an administrative level. Although domestic violence is punishable as an offense, the sentences are often lower both in law and in practice, as compared with those imposed for comparable crimes involving people who are not involved in intimate relationships. In some instances, these laws do not cover all relationships, and thus fail to recognize non-cohabiting or same-sex relationships. In some countries, violence against women, unlike other forms of violence, requires a private prosecution. All States provide for the granting of protection orders by the courts. Penal codes in some countries set out provisions for the punishment of perpetrators for numerous manifestations of violence, including physical and sexual violence, war crimes, exploitation, trafficking, and prostitution. Many countries have specific laws and policies on human trafficking.

Some States in the Pacific region have adopted laws dealing specifically with domestic violence. These laws criminalize domestic violence and provide for restraining orders and injunctions. Other States have had laws in draft form for a long time (up to five years in one instance), and have yet to pass those laws. In States without specific laws on violence against women, restraining orders can be obtained through the use of other laws. This process can be time consuming and expensive and is applicable only to certain relationships or based on the status of the relationship (for example, available only on the breakdown of a marriage). The criminal codes of all Pacific States prohibit offenses against the person, including assault and battery, bodily harm, and murder. Rape and other sexual offenses are prohibited across all States, but marital rape is not criminalized in any of these countries. Prostitution, pimping, trafficking, and other crimes “against morality” are prohibited across the region. A few States do have specific human trafficking laws. In many States, customs and traditions are expressly taken into account when determining the guilt and sentencing of perpetrators, which often leads to significant reductions in sentences.

In the African region, domestic violence is increasingly covered by specific legislation, including criminal remedies and protection orders. In some instances, the nature of the relationship between the perpetrator and the victim is broadly defined, recognizing relationships other than those linked to intimate partners. Some States specifically prohibit and criminalize other forms of violence, including harmful customary practices. Other States rely on provisions of the penal code to address all forms of violence against women. Rape is prohibited across all States, with definitions ranging from broad (coercive circumstances) to narrow and outdated (requiring penile penetration of the vagina). Other sexual offenses, (p.23) including sexual and indecent assault, attempted rape, abduction, defilement, indecent assault, and incest, are criminalized across the region. States have begun to improve criminal procedures, allowing cases to be held in camera, abolishing corroboration requirements, and preventing cross-examination on previous sexual history. Also, the human immunodeficiency virus (HIV) status of the perpetrator of sexual violence is considered an aggravating factor in some States. There is specific legislation regarding human trafficking in many States, with some States including such provisions in their penal codes. Prostitution and other forms of sexual exploitation are often prohibited in the region. In many States, sexual harassment is prohibited under employment legislation and is criminalized in some instances. Female genital mutilation is prohibited in some States, but sometimes only for girls under the age of 18.

To differing degrees, policies and institutional measures in the regions under review include national strategies, national action plans, protocols, and specialist units and mechanisms. Most States in the MENA region do not have a specific national strategy or a national action plan on violence against women, gender-based violence, or gender equality. A few States have general national plans that include a reference to domestic violence or violence against women. Some States have multidisciplinary policies on violence against women, which include protection, prevention, and education measures as well as monitoring provisions and operational plans. However, these policies are not adequately funded and remain largely unimplemented. Police practices reflect inadequate training. Married women who report violence face the risk of repudiation (divorce) by their husbands and further violence within the extended family. In cases of “honor” killings, police do not investigate the cause of the killings and instead close files as “accidental deaths.” When acts of violence do reach the courts, it is very rare for perpetrators to be convicted, and the burden of proof is often placed on victims.

Most European States have national action plans and strategies to foster gender equality. However, fewer States have specific national action plans with regard to violence against women. In contexts in which there are such plans, they tend to focus on inter-sectoral approaches to domestic violence. Often insufficient funding is allocated to such plans, and monitoring and evaluation mechanisms are insufficient or non-existent. Many States also have specific programs for human trafficking, with a focus on the protection of victims. Some countries have specific institutional bodies to deal with particular manifestations of violence, primarily human trafficking, and less commonly, domestic violence. Protocols for police functioning have been adopted to try and ensure uniform standards. Many policies mandate the cooperation of different State organs responsible for addressing violence against women, but these organs do not collaborate substantively at the national or local levels. Some frontline services, such as shelters, and other institutions, such as Centers for Social Work, focus on encouraging family reconciliation; they are not equipped to deal with all forms of violence. These agencies promote mediation in situations of violence. They fail to report violence and to provide adequate safety measures, including the removal of perpetrators from the home and the provision of shelter services for women and their children. Police often fail to comply with the obligations set out in national legislation and policy. They promote mediation, do not record all complaints that they receive, make (p.24) dual arrests, and fail to investigate crimes. There is an overall lack of accountability and minimal sanctions for State officials who breach their obligations. There is insufficient funding provided by States for services, preventive programs, financial assistance, and other resources for addressing violence against women. The financial crisis has led to an increase in cuts to funding for welfare services generally, but particularly for addressing violence against womenin a context in which funding was insufficient to start.

In the Pacific region, some countries have national plans of action that broadly address women and development and/or gender equality, with many including violence against women as a subsection of the overall policy. Only one country (Kiribati) has a specific national plan on violence against women. Most of these plans are extremely broad and do not include specific interventions. There is no money provided for their implementation, and no monitoring and evaluation provisions are included. Ministries and departments that are mandated to implement these plans do not have the human and financial resources for effective implementation. Some governments are corrupt and inefficient, and their focus is often on formal compliance, rather than on developing sustainable and meaningful interventions. Regulations providing guidance to officials and service providers are minimal or mostly informal, usually with non-governmental organizations (NGOs) providing the guidance. Specialist police units, including those set up to deal with violence against women, are underfunded and are not available full time. Prosecutors rarely proceed with cases, despite no-drop policies. When such cases are prosecuted, they are primarily brought in lower courts with limited sentencing authority. Magistrates are poorly trained in both the law and on violence against women, and they often push for reconciliation in such cases. Mitigating circumstances, both based on law and custom, are used commonly and inappropriately to lower sentences for perpetrators. Protection orders are rarely granted, and magistrates and judges demonstrate patriarchal views and perpetuate victim-blaming and victim-shaming stereotypes. Access to services, legal remedies, and multi-sectoral approaches are weak. These problems are exacerbated by the geographical complexities of the countries in the region.

Some States in the African region have national policies, action plans, and programs on equality, domestic violence, trafficking, HIV/AIDS, or preventing and responding to gender-based violence. The trend, however, is to focus national plans on the advancement of gender equality, with violence against women being included as one element of such plans. Ministries in many States provide training for a range of stakeholders, including those in law enforcement, the judiciary, health and education, community leaders, and women and girls. Many of these policies were developed with significant support from and in collaboration with NGOs and international organizations. There are ministries and/or departments that deal with gender or women in the majority of States. Many of the ministries are understaffed, under-resourced, and have insufficient capacity to carry out the tasks allocated to them, however. Some States have committees and national agencies that deal with violence against women, some of which include collaboration between civil society and government. Oversight mechanisms include human rights/gender commissions, ombudspersons, and women’s observatories in the region. Many suffer from a lack of funding and support from the State, and some have been politicized through appointment processes.

(p.25) D. Data Collection and Analysis

In many States, no national surveys have been conducted regarding the manifestations and prevalence of violence against women. Data collection by service providers, including the police, hospitals, court systems, and NGOs, is extremely poor. In those States where surveys have been carried out, data collection has focused on the prevalence of domestic violence. These surveys do not necessarily analyze all manifestations of violence against women, the implementation of laws and policies, the impact of interventions, the performance of the relevant public sector, the attitudes, behaviors, and views of the public on violence against women, or the social and economic costs of violence. Gender disaggregation or disaggregation of data on the basis of membership in a vulnerable group is rare. Data analysis is sometimes biased, highlighting selective statistics such as the number of cases resulting in conviction, for example, without any comparison to the number of reported cases overall. Across the Pacific region, externally funded Family Health and Safety Surveys have been undertaken in some countries. The findings highlight the high rates of family violence against women and girls in the region, as well as the attitudes, behaviors, and experiences of women, men, and young people. The surveys have provided significant momentum for activists, NGOs, and others to advocate for increased legislative and other support for victims of gender violence, particularly intimate partner violence. Other forms of violence, however, including rape, sexual harassment, and violence outside the home, are not analyzed or addressed. Many African States rely on NGOs and international agencies to provide them with data regarding the prevalence and manifestations of violence.

E. Service Provision

The frontline services available in many regions, in most instances and to differing degrees, include the provision of shelter and hotline services, legal services, and psychological counseling and support. In many States, however, the primary service providers are NGOs who are largely funded by external donors. Such funding is usually project-based and does not guarantee sustainability for NGOs in the long term. Where States do support NGOs’ efforts, it is often on a much smaller financial scale, and it is sometimes perceived as money being given by the State in return for control over the activities of the NGO service providers. Insufficient resources and the lack of capacity result in the lack of access to services on a full-time basis, the lack of long-term assistance, and the lack of minimum standards related to the provision of services. The geographical challenges faced by States in the Pacific region result in many women, particularly on the outer islands, not having access to services, including the police, courts, and services provided by the State or NGOs. In the African region, some States provide one-stop service centers, toll-free helplines, and psychosocial support. These programs are often underfunded, however, and are unable to provide support on a full-time basis.

F. Assessment of Fulfillment of Obligation to Act with Due Diligence to Eliminate Violence Against Women

The promotion of the right to a life free of violence broadly includes the following elements: the prevention of violence; protection from violence; the investigation, (p.26) prosecution, conviction, and punishment for acts of violence; the addressing of causes and consequences of violence; the provision of effective remedies, both in law and practice; the addressing of widespread failures in redress measures; and the failure to hold State actors accountable for failure to protect and prevent. It is clear that States are, to differing degrees, failing to address violence against women in a holistic manner. Almost all States’ responses reflect a limited focus on legislative and policy developments, to the exclusion of a focus on implementation of such laws and policies, service provision broadly, monitoring and evaluation of responses, holding accountable those who perpetrate violence as well as those who fail to protect against and prevent violence, and complying with international and regional human rights law standards.

In addition to gaps in legislation addressing all manifestations of violence against women, the existing laws on prohibiting violence are often very specific, mostly dealing with domestic violence and trafficking. These laws largely fail to address linkages between violence and other systems of oppression. Generally, legal and policy measures face implementation challenges of inadequate resources, the lack of relevant expertise, stereotypes about women that influence and shape responses, limited public awareness on redress measures in existence, and the lack of commitment in implementation efforts. Many States in the regions demonstrate strong familial and protectionist attitudes, which make it difficult for women to realize their human rights as autonomous individuals.

Regarding prevention, in some countries there is limited access to services, including counseling, shelter, police, and court services. Other obstacles to prevention include geographic challenges, women’s economic dependency on perpetrators, a justice system that is not responsive to the causes and consequences of violence, and the lack of accountability of perpetrators. States in some regions condone cultural practices that discriminate against and perpetuate violence against women, both through the lack of legislation and due to a lack of enforcement of existing legislation.

Numerous concerns exist regarding the role of the police in ensuring victim safety and offender accountability. Police brutality and violence, as well as widespread corruption, are the norm in some States. Despite official no-drop policies on domestic violence in some countries, not only do police fail to register complaints, they also fail to investigate reports of violence, drop cases due to a lack of evidence, encourage “reconciliation” with perpetrators, fail to exercise powers to arrest the perpetrator, and fail to assist victims regarding their safety needs. This in turn has an adverse impact on the prosecution, conviction, and sentencing of perpetrators of violence against women. Police and court officers fail to act with due diligence to investigate and prosecute acts of violence. They dismiss the victim, exercise inappropriate discretion to drop cases, or pressure the victim to drop charges. In some jurisdictions, the norm is to impose mediation processes to resolve cases of violence against women and to sentence offenders to treatment programs.

Although protection orders are theoretically available across the regions, it is often difficult for victims to access them, with judges promoting mediation instead. When protection orders are granted, it is often after delays, despite the urgent need for protection. When protection orders are breached, the State fails to respond effectively and in a timely manner. If breaches are acted upon, they result in suspended (p.27) sentences, warnings, or perpetrator programs, rather than further protection for victims.

The lack of legal, therapeutic, and social services is the norm, in many contexts with insufficient State resources allocated to effectively implement laws and policies on violence against women. Foreign donor funding is largely relied on by civil society to provide relevant services. In most instances, civil society organizations carry the burden and costs of providing services to women victims of violence. Where services are provided by the State, a family welfare/protectionist approach is adopted, instead of a human rights approach. Often, State service providers are insufficiently trained and largely promote mediation and reconciliation, thereby further endangering victims. Specialist police units that are set up to deal with violence against women often only operate during working hours and staff are insufficiently trained and have access to limited resources. Furthermore, a move toward gender-neutrality has meant that specific services for women victims of violence are decreasing.

In the absence of adequate data collection systems, it is unclear what influences law and policy developments in many countries. In many States women are not aware of their rights under new laws, due to insufficient educative and publicizing efforts. Transformative reparations for violence against women are rarely provided, with some States providing compensation that does not address the victim’s needs.

Although there are a range of national complaint and oversight mechanisms, including ombudspersons and commissions, these are not sufficiently funded to provide advice and information or to address violations. The lack of objective and effective functioning of such mechanisms also raises concerns about their independence.

V. Conclusion

In the last two decades there have been many positive developments in addressing violence against women. Yet there remains a long way to go toward effective efforts to address women’s human rights broadly, including the elimination of violence against women. As illustrated, promising practices are emerging. These include specific laws for different manifestations of violence against women; the adoption of policies such as national action plans; the establishment of specific institutional mechanisms to provide services in a holistic manner; and the creation of specialized mechanisms within the criminal justice system, including at the level of the police, prosecution, and the courts. These measures reflect attempts to address a pervasive human rights violation, with goals that include accountability and the minimization of re-victimization.

Nonetheless, it is difficult to identify whether any of these measures effectively contribute to the elimination of violence against women. The subjective analysis by States that measures adopted in the quest to eliminate violence against women have been successful is belied by the reality of increasing prevalence rates, despite numerous positive developments. Globally, and to differing degrees, there is a lack of effective interpretation and implementation of laws, policies, and programs in a holistic and sustained manner. Theoretically, the measures adopted in the different regions should and could contribute to the elimination of violence against women, (p.28) but the analysis of the foundations and efficacy of measures provides a bleak picture of limited success.

Laws, policies, programs, and resources are crucial to effectively address violence against women and girls, but such efforts must be coupled with renewed political will and action to combat the structural and systemic challenges that are a cause and consequence of such violence. In order to prevent and eliminate violence against women and girls, violence has to be understood as an element that affects women through their life cycle, underpinned by a complex interplay of individual, family, community, economic, and social factors.

The responsibility to protect women and girls from violence and discrimination is primarily a State obligation. At the national level, it is important to note that a legislative and policy approach will not bring about substantive change if it is not implemented within a holistic approach that targets the accountability deficit that continues to exist. The lack of substantive focus on the empowerment of women and the failure to address broad social transformation must also be addressed. Finally, providing transformative remedies that ultimately break the continuum of discrimination and violence against women is an essential component of real change.

Notes:

(1) For a full discussion see the 2013 report of the United Nations Special Rapporteur on Violence against Women A/HRC/23/49

(2) See A/RES/64/137, A/RES/65/187, A/HRC/RES/14/12

(3) This section does not claim to reflect the exact situation in each country in the region. The analysis is based on desk research and inputs from participants during and after the regional workshops.

(4) The consultations were attended by experts from Angola, Botswana, Burundi, Cameroon, Democratic Republic of Congo, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Nigeria, Rwanda, South Africa, Swaziland, Uganda, United republic of Tanzania (including Island of Zanzibar), Zambia, and Zimbabwe.

(5) This information is based on a report prepared by a consultant. The countries reviewed include Algeria, Saudi Arabia, Bahrain, Djibouti, Egypt, United Arab Emirates, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Mauritania, Oman, Palestine, Qatar, Syria, Tunisia, and Yemen.

(6) The consultation was attended by experts from Fiji, Tonga, Samoa, Kiribati, Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), the Cook Islands, and Vanuatu.

(7) The consultation was attended by experts from Estonia, Lithuania, Latvia, Ukraine, Moldova, Bulgaria, Slovenia, Montenegro, Croatia, Serbia, Bosnia and Herzegovina, FYR Macedonia, and Kosovo.