Civil, Protective and Asylum Laws on Harmful Practices

last updated June 2010

Regardless of whether a harmful practice is criminalized, legislation addressing harmful practices should take a comprehensive human rights-based approach. Legislation should include not only criminalization and punishment of the perpetrator, but also “prevention, empowerment, support and protection of the survivor, and mechanisms to ensure its effective implementation” See: Good Practices on Harmful Practices Expert Group Report, citing Good Practices in Legislation to Address Violence Against Women, Report of the Expert Group Meeting.

In order to ensure that harmful practices are not just punished but also prevented, legislation should create alternative civil protections and remedies.   

Protection Orders
  • Legislation should include a civil order-for-protection remedy, including an emergency ex parte protection order, for victims under a threat of a harmful practice. 
  • Legislation should criminalize violations of protection orders.
  • Legislation should require a woman’s consent to a petition that has been filed by a third party on behalf of an adult woman, with the exception of when a victim is unable to file a petition herself, due to certain circumstances, such as being falsely imprisoned, in another country, or a vulnerable adult. 
  • Legislation should allow for third party petitions on behalf of a child only with court permission or appointment of a guardian ad litem. 
 
Judicial Intervention
Drafters should also allow for an individual to seek judicial intervention to avoid undergoing an impending harmful practice. 
 
For example, in Uganda, a country which does not have a criminal penalty for the practice of FGM, a girl upon whom FGM was to be completed successfully obtained intervention of a court to prevent the FGM.   Female Genital Mutilation: A Guide to Laws and Policies Worldwide, Anika Rahman and Nahid Toubia, citing Dr. Josepine Kasolo, Safe Motherhood Initiative in Ugangda, Questionnaire (undated, Spring 1998). 
 
Civil Lawsuits
Some harmful practices may be recognized as an injury that gives rise to civil liability. 
Civil lawsuits are a valuable supplement or alternative to criminal prosecution, civil protection orders, and other available legal remedies. Depending on the facts of the case and the law of the jurisdiction, the forms of relief available to successful plaintiffs in civil lawsuits may include compensatory damages, punitive damages, declaratory and injunctive relief, and a court order requiring the defendant to pay the prevailing plaintiff’s attorney fees. In many legal systems, civil actions have advantages over criminal actions. Civil cases are governed by a lower burden of proof than criminal cases, complainants/survivors have control over the action, and some complainants/survivors consider the types of relief granted in a successful civil lawsuit more helpful than incarceration of the perpetrator.

UN Handbook, 3.12
Here are guidelines for developing legislation for civil, protective or asylum laws related to harmful practices.
  • Legislation should allow civil lawsuits against perpetrators of harmful practices.  
  • Legislation should abolish any obstacles that prevent girls or their parents or guardians, or women from bringing civil lawsuits against a family member who is a perpetrator. 
  • Legislation should abolish any requirement that the consent of a husband or other family member be obtained in order to bring a civil lawsuit. 
  • Legislation should allow survivors/complainants to bring civil lawsuits against governmental or non-governmental parties for not exercising due diligence to prevent, investigate or punish harmful practices. 
  • Legislation should allow survivors/complainants to bring civil lawsuits on the basis of anti-discrimination laws, human rights provisions, or civil rights laws. 
Prohibition on the Use of Harmful Traditional Dispute Resolution Mechanisms
Laws continue to exist in many countries whereby a perpetrator of violence against women is absolved of his crime if he pays the victim or her family or marries the victim. These practices not only deny women victims/survivors justice but also constitute harmful practices in and of themselves. Such is the case with the practice of “payback rape” whereby men who are members of a tribe or family of a woman who has been raped, rape a woman from the tribe or family of the perpetrator as “payback.” Or instances of forced marriage where a woman who has been raped is forced to marry the perpetrator. 
 
Such harmful dispute resolution practices should be eliminated and should not preclude state prosecution.  Legislation to eliminate harmful practices should:
  • require a full investigation and prosecution of harmful practices regardless of any settlements that the victim, her family and the offenders have reached;
  • place responsibility for prosecuting harmful practices with the prosecutor and not with the victim or her family (See: UN Handbook, p. 40);
  • require pro-arrest and pro-prosecution policies (See: UN Handbook, p. 41); and
  • state that harmful practices are non-compoundable offenses, of which prosecution cannot be compromised. (See: Good Practices on Harmful Practices Expert Group Report.)
Compensation
Drafters should take steps to address the issue of compensation.  Laws should allow criminal sentences to include an order of compensation and restitution from the perpetrator to the victim or her heirs, excluding perpetrators or accomplices to the harmful practice; clearly state that while compensation is a punitive element in violence against women cases, it is not a substitute for other punishments, such as imprisonment, and make provision for a state-sponsored compensation program. See: UN Handbook, p. 59.  In cases where the offender cannot pay the victim compensation, laws should provide for state-sponsored or other compensation for victims who have sustained significant bodily injury or impairment of physical or mental health as a result of the harmful practice. See: Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, paras. 12-13.  
  
Child Protection Provisions
Because so many harmful practices are perpetrated against girl children, drafters should acknowledge harmful practices as a form of child abuse and create or amend child protection laws and services to include harmful practices. 
 
The following elements should be established as the core elements in child protection laws and systems to protect against harmful practices. 
  • Legislation should ensure that there are child welfare laws and policies to prevent child abuse.
  • Legislation should identify harmful practices as a form of child abuse.
  • Legislation should mandate that the prevention and prosecution of harmful practices are given the same resources as other forms of child abuse. 
  • Legislation should create a child protection system that contains, at a minimum, survivor support, alternative care options, family support services, justice system responses (see order for protection section below) and referral mechanisms. See: UNICEF Child Protection Strategy for all the components necessary to establish a child protection system. See: Child Protection: A handbook for Parliamentarians.
  • Legislation should create child protection protocols for each sector that comes in contact with abuse in the form of harmful practices, including social services, police and the judicial system. Such protocols can help in creating dialogue about harmful practices, aid professionals in assessing the level of risk to a child, and in ensuring consistent and appropriate referrals to various services based on the particular circumstances.  
  • Drafters should also create child protection laws or amendments to laws that allow for state intervention in cases harmful practices against girls by their parents or guardians. 
  • Legislation should focus on the best interest of the child as opposed to having the primary focus being the punishment or prosecution of the parents or guardian. 
  • Drafters should provide for an emergency order for protection for children at risk of harmful practices.
  • Drafters should provide a mechanism to allow the state to remove a child from the home if the court determines that there is a reasonable fear that a harmful practice has occurred or is likely to occur. 
  • Legislation should authorize the placement of a child in danger of infliction of a harmful practice in a shelter, refuge or foster home. 
  • Legislation should authorize the continuing placement of a child in a shelter or foster home until the child can be reconciled with the family, or, if the parent or parents will not give up their intention to have the child subjected to the harmful practice, authorization for the child to continue in shelter or foster care and attend school locally, or attend a boarding school to continue her education.
  • Legislation should authorize the suspension of travel authority for the child if the court determines that the parents are considering authorizing the performance of a harmful practice or if the court determines that the child or a responsible adult has a reasonable fear that the parents are considering authorizing the performance of a harmful practice. 
  • Legislation should provide for procedures by which the parents can regain custody of the minor child, including receiving counseling and warnings.  Once the minor child has been returned to her parents, legislation should provide for on-going visits to the minor child by social service providers and counselors to ensure the well-being of the minor child. Legislation should provide for counseling of parents to ensure that minor children do not receive pressure to undergo harmful practices.
  • If there are multiple daughters in a family and one daughter has been subjected to a harmful practice, legislation should provide for on-going visits to determine the risk of the other children to being subjected to the same or other harmful practices. 
  • Legislation should provide for periodic physical examinations of a child if a court finds that there are reasonable grounds to suspect a child may be at risk of the harmful practice of FGM.
  • Legislation should provide that where court orders are issued for protection against a harmful practice, the order remain in place until the parents have demonstrated at a court hearing that they understand that the harmful practice is illegal and/or has adverse health consequences, and that they will not subject their daughter to the harmful practice. 
  • Legislation should provide for child-centered legal services, including representation for petitioning for civil or criminal liability victim compensation. 
Legislation should also incorporate a presumption that there is no justification for the practice of any harmful practice and it is in the child’s best interests to not undergo the harmful practice.
 
For example, The Children Statute 1996 (Statute No. 6 of 1996) [Section 8] explicitly protects children against harmful practices in general, stating, "It shall be unlawful to subject a child to social or customary practices that are harmful to the child’s health."
 
In addition, the European Parliament resolution of 24 March 2009 on combating female genital mutilation in the EU (2008/2071(INI), Paras. 28 and 29, call on Member States to create legislation that focuses on the protection of children from FGM:
The European Parliament:

Calls on the member states to . . . adopt legislative measures to allow judges or public prosecutors to take precautionary and preventive measures if they are aware of cases of women or girls at risk of being mutilated;

Calls on the Member States to implement a preventive strategy of social action aimed at protecting minors without stigmatizing immigrant communities, through public programmes and social services aimed at both preventing these practices (training, education and awareness-raising among the communities at risk) and assisting the victims who have been subjected to them (psychological and medical support including, where possible, free medical treatment to repair the damage); calls also on the Member States to consider, in accordance with child protection legislation, that the threat or risk of being subjected to FGM may justify intervention by the authorities [.]
Both Kenya’s Children Act of 2001 and South Australia’s Children’s Protection Act, Section 26B, contain language in their child protection legislation to protect against harmful practices:
Kenya, Children Act of 2001

14. No person shall subject a child to female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development.

119. (1) For the purposes of this Act, a child is in need of care and protection …
(h) who, being a female, is subjected or is likely to be subjected to female circumcision or early marriage or to customs and practices prejudicial to the child’s life, education and health; …
South Australia’s Children’s Protection Act, Section 26B

Protection of children at risk of genital mutilation

26B. (1) If the Court is satisfied that there are reasonable grounds to suspect that a child may be at risk of female genital mutilation, the Court may make orders for the protection of the child. . .

Examples — The Court might for example make an order—
(a) preventing a person from taking the child from the State; or

(b) requiring that the child’s passport be held by the Court for a period specified in the order or until further order; or

(c) providing for the periodic examination of the child to ensure that the child is not subjected to female genital mutilation.
(2) An application for an order under this section may be made by a member of the police force or by the Chief Executive Officer.

(3) The Court may make an order on an application under this section without giving a person who is to be bound by the Court’s order notice of the proceedings or an opportunity to be heard in the proceedings.

(4) However, in that case the Court must allow the person against whom the order is made a reasonable opportunity to appear before the Court to show why the order should be varied or revoked.

(5) In proceedings under this section the Court must assume that it is in the child’s best interest to resist pressure of racial, ethnic, religious, cultural or family origin that might lead to genital mutilation of the child.

See: Female Genital Mutilation, Child Protection Provisions, and Forced and Child Marriage.
Immigration and Asylum Laws
Legislation and guiding policies on immigration and asylum for cases involving harmful practices should be developed within the framework of international human rights law. Drafters should ensure that grounds for asylum include gender persecution.  Specifically, laws should ensure that a woman or girl may seek asylum on the basis of having been subjected to a harmful practice or that she is at risk of harmful practice.  Laws should state that women and girls who are victims of or fear persecution through harmful practices constitute members of a particular social group for asylum purposes. Laws should also provide that a relative may also seek asylum for seeking to protect a woman or girl from a harmful practice.  Where a conflict between women’s human rights and cultural rights arises, laws should clearly state that women’s human rights prevail in determining asylum grants. See: Good Practices on Harmful Practices Expert Group Report.

Countries should ensure that survivors of harmful practices not face deportation or other negative immigration consequences when reporting crimes of violence to police and other officials. Drafters should ensure that laws allow victims of violence to independently and confidentially apply for legal immigration status. See: Good Practices in Legislation to Address Violence Against Women, Report of the Expert Group Meeting, p. 37.
Guidelines and Protocols for Asylum Officers
The UN Handbook recommends that laws require the ministerial branch responsible for asylum procedures consult with police, prosecutors, judges, health and education professionals to develop regulations, guidelines and other protocols for implementation within a specified timeframe of the law’s entry into force (p. 20-21). Drafters should ensure that the relevant government body work in coordination with other professionals and should draw upon the UN Guidelines on International Protection: Gender Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees. Those responsible for considering asylum requests should:
  • Interview female asylum-seekers separately;
  • Provide women asylum-seekers with information about and access to the asylum process, in a way and language understandable to them;
  • Provide interviewees with a choice of interviewers and interpreters of their same sex and who are aware of cultural, religious or social sensitivities;
  • Offer an open and reassuring environment;
  • Make introductions, explain persons’ roles, making clear he or she is not a trauma counselor, explain the interview purpose and emphasize confidentiality;
  • Maintain a demeanor that is neutral, compassionate and objective with minimal interruptions;
  • Ask open-ended and specific questions, keeping in mind that women and girl asylum applicants may not associate harmful practices they are fleeing with questions about torture;
  • Be open to stopping and scheduling subsequent interviews should the claimants’ emotional needs require;
  • Allow for adequate preparation to build confidence and trust, as well as allow the officer to pose the right questions;
  • Collect relevant information from the country of origin;
  • Avoid allowing the claimant’s type and level of emotion to influence credibility. Recognize that exact details of the act of rape, sexual assault, or harmful practice, may not be necessary, but focus on the events prior to and during the violation, the context and other details, and the possible motivation of the perpetrator; and
  • Provide referrals to psychosocial counseling and support services. Strive to make available psycho-social counselors prior to and following the interview.
See: Domestic Violence, Trafficking in Women and Girls, Female Genital Mutilation, Forced and Child Marriage, Honour Crimes.

Also, laws should provide trainings for asylum and immigration officers on gender-sensitive issues and customs and practices. Trainings should increase officers’ understanding of the dynamics of harmful practices, as well as those customs and practices that place women and girls at risk for harmful practices. At a minimum, trainings should include the following basic information about common ways women are persecuted:
  • Violations of social mores or failing to comply with cultural or religious norms that may result in harm, abuse or harsh treatment distinguishable from the treatment given the general population. Applicants frequently are without meaningful recourse to state protection. 
  • A woman’s claim may be based on persecution particular to her gender. Such a claim may be analyzed and approved under one or more grounds. For example, rape, sexual abuse, domestic violence, infanticide and genital mutilation are forms of mistreatment primarily directed at girls and women and they may serve as evidence of past persecution on account of one or more of the grounds for which asylum is granted. 
  • Societal expectations that require women to live under the protection of male family members. The death or absence of a spouse or other male family members may render a woman even more vulnerable to abuse.
  • Survivors of rape or other sexual abuse may face stigmatization from their community. They may also be at risk for additional violence, abuse or discrimination because they are viewed as having brought shame and dishonour on themselves, their families, and communities.
See: United States Gender-Based Asylum: Law and Policy; Memorandum to All INS Officers/HQASM Coordinators from Phyllis Coven, Office of International Affairs, May 26, 1995, p. 4.

Promising Practice: Canada - Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution
The Immigration and Refugee Board of Canada published Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, providing a 4-part framework through which to assess claims: 1) Assess whether the harm feared constitutes persecution; 2) determine whether the grounds for fear fall under any of the five grounds set forth in the UN Refugee Convention; 3) determine whether the fear is well-founded, and; 4) determine whether there is an option of internal flight. The Canadian adjudication guidelines on this issue are, for the most part, in alignment with UNHCR guidance, and several countries have followed the Canadian model in addressing these issues. See: Canada Gender-Based Asylum: Law and Policy