last updated December 2014
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.
Specific legislation on domestic violence
Domestic violence may be addressed in the constitutions of states, in criminal codes, in administrative provisions, in gender equality provisions, and many other contexts. Many countries include domestic violence offenses within the general criminal statues prohibiting such acts as assault, homicide, and confinement of persons against their will. However, in this context if the criminal law does not specifically address domestic violence, it is often ignored or treated less seriously. It is best if domestic violence is addressed in specific laws which take into account the dynamics of domestic violence, including repeat, low level injuries, and the need for urgent protective remedies.
Example: After more than ten years of work by Tajik and international advocates against domestic violence, Tajikistan adopted a domestic violence law in March 2013. Prior to the passage of this bill, there was no law addressing domestic violence in Tajikistan. The new law defines measures to prevent domestic violence, allows police officers to bring legal complaints against abusers based on information from witnesses and expands legal consequences for violence committed or threatened after a divorce. Additionally, the law extends protection to families whose marriages are not recognized by the State. Prior to this new law, an abused woman who had a religious marriage, but who did not have a civil marriage certificate, could have been evicted from her home. The new law allows women an entitlement to property, alimony and inheritance, regardless of whether the marriage was religious or civil.
See Tajikstan moves toward a law to prevent domestic violence, UN Women (March 15, 2013); Dilafruz Nabiyeva, Tajikistan fights domestic violence (March 4, 2013); Switzerland’s human rights activity in Tajikistan, Swiss Federal Department of Foreign Affairs (April 10, 2013).
National action plans to combat domestic violence
Drafters should require in legislation the development a national plan of action to combat domestic violence.
The UN Handbook for National Action Plans on Violence Against Women recommends that national action plans should outline a comprehensive, coherent, and sustained programme of activity that builds evidence and practice over time, including the following elements:
• Cross-cutting actions to establish governance structures, ensure participation of civil society, strengthen law and policy, build capacity of workforces and organizations, and improve evidence, throughout all aspects of the Plan (see chapter 3.3);
• A coordinated strategy for the primary prevention of violence against women (see chapter 3.4);
• The establishment and ongoing improvement of an integrated service, police and judicial response to violence against women (see chapter 3.5);
• A description of how the Plan will be implemented, including articulation of concrete goals, actions, timelines and implementing entities; links to gender equality machinery and policy; and designated funding sources (see chapter 3.6); and
• Evaluation, monitoring and reporting of the above (see chapter 3.7).
Additional guidance can be found in the Beijing Platform for Action, which calls upon states to promulgate national plans of action. The Beijing Platform for Action recommends involving broad participation in the plan by national bodies that work on the advancement of women, the private sector, and other relevant institutions, including “legislative bodies, academic and research institutions, professional associations, trade unions, cooperatives, local community groups, non-governmental organizations, including women’s organizations and feminist groups, the media, religious groups, youth organizations and cultural groups, as well as financial and non-profit organizations” (294-95). Drafters should ensure that consultation is carried out with widows and civil society and takes into account the current context. The platform also emphasizes the importance of involving actors at the highest political levels, ensuring appropriate staffing and protocols are in place within ministries, having stakeholders review their goals, programs, and procedures within the framework of the plan, and engaging the media and public education to promote awareness of the plan (¶ 296). The plan should also address the roles and responsibilities of actors charged with implementing the plan. In this case, drafters should seek to engage and charge a wide range of actors as machinery for implementation. Relevant institutions include police, prosecutors, the judiciary, social services, children’s and juvenile authorities, equal opportunities offices, crime victim units, education, public health, prison and probationary authorities, disability agencies, administrative boards, immigration bureaus, cultural, religious, immigrant and ethnic community liaison offices, welfare, housing, religious groups, customary and local officials, offices working on issues related to women and girls, and civil society.
Drafters should mainstream women and girls’ human rights across diverse agency policies. They should ensure that other national development plans and poverty reduction strategies incorporate the relevant human rights standards related to women and girls into such programming and budgets. (See: Addressing Gender Equality: A Persistent Challenge for Africa, Joint AU/ECA Conference of Ministers of Gender and Women’s Affairs, Aug. 25-29, 2008, p. 3)
Example: In 2011, the Republic of Kiribati published a national Action Plan detailing the government’s dedication to ending all gender and sexual-based violence in Kiribati. The five key Strategic Areas which form the Policy’s main intervention are as follows:
• Develop National Leadership and Commitments to Eliminate Gender Based Violence
• Strengthen Legal frameworks, Law enforcement and the Justice system
• Build Institutional and Community Capacity
• Strengthen & Improve Preventive, Protective, Social and Support services
• Eliminate and Prevent GBV through Civic Engagement and Advocacy
Example: In 2012, the Pacific Regional Working Group on Women, Peace and Security was established to develop an action plan regarding women, peace and security. The action plan covers the nations of Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Republic of Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. The report acknowledges the widespread gender inequality issues that Pacific nations face, including the use of bride price and the prevalence of domestic violence. It addresses the general empowerment of women, and also specifically acknowledges the disproportionate effect that violent conflict and security threats have on the lives and livelihoods of women, including the displacement from land. One of the focus areas of the action plan is: the “Protection of women’s and girls’ human rights during humanitarian crises and in transitional and post-conflict contexts.”
Tools for developing national action plans:
Gender-Specific Language in Domestic Violence Laws
According to the UN Handbook, “There has been a long-standing debate as to the best way to ensure gender-sensitivity in legislation on violence.” Ch. 3.1.4. Some countries have chosen to adopt gender-specific language in their domestic violence laws to emphasize the gender-based nature of such violence. Often such language has been challenged on the grounds of gender discrimination.
For example, India’s Protection of Women From Domestic Violence Act, 2005 (hereinafter “Law of India”) has been challenged in various high courts for violating the constitutional right to equality. These challenges have been rejected on the grounds that a gender-specific law is necessary to achieve equality for women and that international treaties require the government to protect women against family violence. The Criminalization of Violence against Women Law (2007) of Costa Rica was also challenged. Spain justified gender specificity in the Organic Act on Integrated Protection Measures against Gender Violence (2004) (hereinafter “Law of Spain”) Comprehensive Measures Against Gender Violence on the grounds that gender violence is “the most brutal symbol of gender inequality.” See Spanish policy on gender equality: relevant current legislation and policies, European Parliament (2009) at p. 8 – 10.
The US Supreme Court has ruled that for a gender classification to be upheld it must serve important governmental objectives. Craig v. Boren, 429 US 190 (1976). An evidence-based argument could be made to show an important governmental objective in protecting women against domestic violence. But whether or not legal challenges to gender-specific laws are upheld, responding to such challenges will divert time and resources that might other wise be used to implement and enforce the law. It is recommended that any country considering using gender-specific language in it’s domestic violence law give careful considerations to the pros and cons of such a decision.
The Council of Europe wrestled with the question of gender-specific language in drafting the Istanbul Convention. The results of that debate are apparent in the official title of the document: The Convention on preventing and combating violence against women and domestic violence (implying that domestic violence is not limited to women). The drafters explained that they were leaving it to State Parties to decide the extent to which it applies the convention to “male, elderly and child victims of domestic violence.”
On the one hand, the drafters affirmed that violence against women, including domestic violence, is a distinctly gendered phenomenon because it is violence targeted at women to control them or their sexuality. On the other hand, the drafters of the Convention recognised that men and boys are not immune to some of the forms of violence covered by the Convention, in particular domestic violence, and that this violence needs to be addressed. Consequently, the Istanbul Convention leaves it to the State Party to decide on the extent to which it chooses to apply its provisions to male, elderly and child victims of domestic violence (see Article 2). In any event, States Parties are encouraged to integrate a gender perspective in all policies and this would help address the reality of gay men in abusive relationships or that of men that do not conform to what society considers to constitute “appropriate behaviour”. It should be noted that this expansion of the scope of application, however, in no way lessens the Convention’s focus on violence against women as a form of gender-based violence. Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) An instrument to promote greater equality between women and men.
Gender-specific legislation has been deemed important, particularly in Latin America, as it acknowledges violence against women as a form of gender-based discrimination and addresses the particular needs of women complainants/survivors. However, gender-specific legislation on violence against women does not allow for the prosecution of violence against men and boys and may be challenged as unconstitutional in some countries. A number of countries have adopted gender-neutral legislation, applicable to both women and men. However, such legislation may be subject to manipulation by violent offenders. For example, in some countries, women survivors of violence themselves have been prosecuted for the inability to protect their children from violence. Gender-neutral legislation has also tended to prioritize the stability of the family over the rights of the (predominantly female) complainant/survivor because it does not specifically reflect or address women’s experience of violence perpetrated against them.
Some legislation combines gender-neutral and gender-specific provisions to reflect the specific experiences and needs of female complainants/survivors of violence, while allowing the prosecution of violence against men and boys. For example, chapter 4, section 4 a of the Swedish Penal Code, as reformed by the “Kvinnofrid” package in 1998, contains a neutral offence of “gross violation of integrity” which is constituted when a perpetrator commits repeated violations, such as physical or sexual abuse, against a person with whom they have, or have had, a close relationship, as well as the gender-specific offence of “gross violation of a woman’s integrity” which is constituted by the same elements, when committed by a man against a woman. The Austrian Code of Criminal Procedure, since 2006, provides specific procedures and rights for women complainants/survivors of violence in the criminal justice process in order to avoid their secondary victimization.
United Nations Handbook for Legislation on Violence Against Women (hereinafter “UN Handbook”, Ch. 3.1.4)
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