In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women's Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.
Private settlements and victim compensation
• Laws should ensure that practices allowing an offender to pay the victim or her family compensation in return for forgiveness or other harmful dispute resolution practices, such as payback rape, do not apply when the victim and the perpetrator are from the same family and do not preclude state prosecution. To give effect to this principle, drafters should ensure that laws require a full investigation and prosecution of “honour” crimes and killings regardless of any settlements that the victim, her family and the offenders have reached. Laws should place responsibility for prosecuting “honour” crimes and killings with the prosecutor and not with the victim or her family. (See: UN Handbook for Legislation on Violence against Women, p. 36) Laws should require pro-arrest and pro-prosecution policies where probable cause exists in “honour” crimes and killings, and these policies should apply irrespective of any private settlement or forgiveness reached between the victim’s family and the perpetrator. (See: UN Handbook for Legislation on Violence against Women, p. 37) Laws should state that “honour” crimes and killings are non-compoundable offenses, of which prosecution cannot be compromised. (See: Good Practices in Legislation on “Harmful Practices” against Women, UN Division for the Advancement of Women, May 26-29, 2009, p. 31; Section on Roles and Responsibilities of Prosecutors)
• To prevent perpetrators of “honour” killings from benefiting financially from their crime, drafters should ensure that inheritance laws prohibit perpetrators (including those who aided, abetted, incited, authorized, or were otherwise involved in the “honour” killing) from inheriting or otherwise receiving property from the victim upon her death.
• Drafters should take steps to address the issue of victim compensation. Laws should allow criminal sentences to include an order of compensation and restitution from the perpetrator to the victim or her heirs--excluding from such heirs any perpetrators or accomplices to the “honour” crime or killing;. Such compensation should cover the victim’s medical costs, pain and suffering, legal costs, counseling, loss of income, and the like. Laws should also clearly state that while compensation is a punitive element in violence against women cases, it does not substitute for other punishments, such as imprisonment, and; should make provision for a state-sponsored compensation program. (See: UN Handbook for Legislation on Violence against Women, p. 5952-53) 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 “honour” crime. (See: United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, ¶¶ 12-13) This may require the establishment of a permanent national fund for victim compensation to ensure that adequate funds are available when needed.
Examples The Nigerian draft Violence Prohibition Bill states that a prosecutor may not refuse to initiate a prosecution or drop charges except where the Director of Public Prosecutions has so authorized.
Example: Article 30 of the Council of Europe Convention on preventing and combating violence against women and domestic violence requires parties to “take the necessary legislative or other measures to ensure that victims [of violence against women] have the right to claim compensation from perpetrators.” Article 30 also provides that “[a]dequate State compensation shall be awarded to those who have sustained serious bodily injury or impairment of health, to the extent that the damage is not covered by other sources such as the perpetrator, insurance or State-funded health and social provisions.” Further, Article 30 mandates that parties take measures to ensure that such compensation is provided “within a reasonable time.”
CASE STUDY: Pakistan’s Qisas and Diyat Ordinance enables the victim or her heirs to forego prosecution in lieu of compensation from the perpetrator. Under the Qisas and Diyat Ordinance, the heirs of a murder victim may choose qisas (retribution); diyat (compensation or compromise), or; complete forgiveness of the victim. Many families choose diyat, or compensation for the victim’s death. In Mahammad Akram Khan v. The State (2001), the Supreme Court ruled that “honour” killings violated Article 9 of the Constitution, stating that “No person shall be deprived of life or liberty save in accordance with law.” The Court stated that the use of “honour” killings is void under Article 8(1) of the Constitution: “Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.” This law essentially removes the responsibility of prosecution from the government and places accountability in the hands of the victims’ heirs, who may be accomplices to the “honour” killing or under severe economic or social pressure not to bring criminal charges. The Qisas and Diyat Ordinance should not apply to crimes of honour. “Honour” crimes and killings should be made non-compoundable offenses, and drafters should ensure that any compensation laws are not a substitute for criminal prosecution in these cases.
• Also, drafters should repeal any provisions that absolve a rapist or kidnapper if they marry their victims. For example, Egypt has removed provisions that absolve rapists/kidnappers if they marry their victims. Other countries, however, still absolve rapists and kidnappers if they marry their victims.
Laws should also provide victims of “honour” crimes with a civil remedy against the state in cases where government authorities fail to take the necessary preventative or protective measures within the scope of their powers. (See: Council of Europe Convention on preventing and combating violence against women and domestic violence, Article 29(2))
Accompanying domestic violence legislation
• Drafters should consider framing “honour” crimes within the domestic violence context. Should drafters use a domestic violence framework to address “honour” crimes, it should account for the particular dynamics of “honour” crimes and ensure the scope encompasses all potential perpetrators and victims. Factors to consider are that perpetrators of “honour” crimes may not be a partner or family member for purposes of domestic violence, there may be multiple perpetrators involved in an “honour” crime, there may be more than one victim, and the scope of domestic violence protection may exclude certain perpetrators or victims, such as minors. (See: ACPO Honour Based Violence Strategy, Appendix B) Laws should include a civil order for protection remedy, including an emergency ex parte protection order, for victims under threat of an “honour” crime or killing or the victim of an “honour” crime. Laws should criminalize violations of protection orders. Drafters may apply much of the same theory on domestic violence to orders for protection in “honour”-based violence cases: the goals are to afford protection to the victim through a speedy process that acts as an alternative to criminal prosecution. (See: Orders for Protection and Sample Orders for Protection, Stop VAW, the Advocates for Human Rights; Section on Order for protection) (For information on orders for protection in domestic violence cases (see: Section on Domestic Violence: Order for protection remedies)
• Laws should ensure that where a petition for an order for protection is filed by a third party on behalf of an adult woman, the petition can only be brought with her consent. An exception to this rule is where the victim is unable to file an application herself, whether because she is falsely imprisoned, in another country or is a vulnerable adult. Third party applications on behalf of a child should only be permitted with court permission or appointment of a guardian ad litem. (See: Section on Domestic Violence; Forced Marriage (Civil Protection) Act 2007: Relevant Third Party Consultation Paper, U.K. Ministry of Justice, December 2007).
Drafters should also ensure that criminal laws prohibit and punish acts of domestic violence and violations of orders for protection. (See: Domestic Violence)
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 fear of a harmful practice targeting women and/or girls, including an “honour” crime or killing. Laws should state that women and girls who are victims of or fear persecution through “honour” crimes or killings constitute members of a particular social group for asylum purposes. (See: Prochazka, Susanne J., Note – There Is No Honor in Honor Killing: Why Women at Risk for Defying Sociosexual Norms Must Be Considered a “Particular Social Group” Under Asylum Law, Thomas Jefferson Law Review, Vol. 34, Spring 2012, p. 445). Laws should also provide that a relative may also seek asylum on the basis of seeking to protect a woman or girl from an “honour” crime or killing, as relatives who do so may themselves be at risk of retributive violence. 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 in Legislation on “Harmful Practices” against Women , UN Division for the Advancement of Women, 26-29 May 2009, Section 3.8.1)
Countries should ensure that survivors of “honour” crimes do not face deportation or other negative immigration consequences when reporting such crimes to police and other officials. Drafters should ensure that laws allow victims of violence to independently and confidentially apply for legal immigration status. (See: the United Nations expert group report entitled "Good practices in legislation on violence against women,” 26-28 May 2008, p. 38).
Best practice: Domestic violence victims whose residency in the U.S. is dependent on another’s immigration status may apply for their own immigration status under certain conditions. VAWA. Individuals with a dependent residence permit in the Netherlands, may seek residence status where they can show proof of sexual or other forms of violence in a relationship. (See the United Nations expert group report entitled "Good practices in legislation on violence against women,” p. 37)
(See: Good Practices in Legislation on “Harmful Practices” against Women, UN Division for the Advancement of Women, May 26-29, 2009, p. 34; The Stockholm Platform for Action to Combat Honour Related Violence in Europe, Adopted within the framework of the Conference "Honour Related Violence within a Global Perspective: Mitigation and Prevention in Europe", Stockholm,7-8 October 2004, ¶ i)
Guidelines and Protocols for Asylum Officers
The UN Handbook for Legislation on Violence against Women recommends that laws require the appropriate ministerial branch responsible for asylum procedures to consult with police, prosecutors, judges, and health and education professionals to develop regulations, guidelines and other protocols for implementation of such laws within a specified timeframe of the law’s’ entry into force (p. 20-21). Drafters should ensure that the relevant government body works in coordination with other professionals and, in developing such guidelines and protocols, should draw upon the UNHCR 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, which recommend the following practices for handling gender-related asylum claims:
• Interview female asylum-seekers separately;
• Provide women asylum-seekers with information about and access to the asylum process, in a manner 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 during asylum interviews;
• Interviewers should make introductions, explain persons’ roles, making clear he or she is not a trauma counselor, explain the interview purpose and emphasize confidentiality;
• Interviewers should maintain a demeanor that is neutral, compassionate and objective with minimal interruptions;
• Interviewers should ask open-ended and specific questions, keeping in mind that female asylum applicants may not associate “honour”-related violence they are fleeing with questions about torture;
• Interviewers should be open to stopping and scheduling subsequent interviews should the claimants’ emotional needs require;
• Interviewers should allow for adequate preparation to build confidence and trust, as well as allow them to pose the right questions;
• Collect relevant information about the country of origin;
• Avoid allowing the claimant’s emotional state while recounting her experiences to influence credibility. Recognize that exact details of a rape or sexual assault may not be necessary, but focus on the events leading up to, and after, the act, the context and other details, and the possible motivation of the perpetrator;
• Provide referrals to psychosocial counseling and support services. Strive to make available psycho-social counselors prior to and following the interview.
(See: Sections on Domestic Violence, Sex Trafficking of Women and Girls, Female Genital Mutilation/Cutting, Forced and Child Marriage, and Harmful Practices)
Also, laws should provide trainings for asylum and immigration officers on gender-sensitive issues and customs and practices. Trainings should seek to increase officers’ understanding of the dynamics of “honour” crimes, as well as those customs and practices that place women and girls at risk for “honour”-based violence. At a minimum, trainings should include the following basic information about common ways women are persecuted:
• Violations of social mores, such as marrying outside of an arranged marriage, wearing lipstick or failing to comply with other 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 in their country of origin, and seeking asylum elsewhere may be their only means of escaping “honour”-based violence.
• A woman’s claim may be based on persecution particular to her gender that may be analyzed and approved under one or more grounds. For example, rape, sexual abuse, domestic violence, infanticide, "honour"-based violence 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 five grounds enumerated under many asylum laws.
• 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: Gender-based Asylum Law in the United States, Stop VAW, the Advocates for Human Rights and Considerations for Asylum Officers Adjudicating Asylum Claims from Women, Memorandum to All INS Asylum Officers/HQASM Coordinators from Phyllis Coven, Office of International Affairs, May 26, 1995, p. 4)
Promising Practice: 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, Stop VAW, the Advocates for Human Rights)
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