Human Rights Watch Backgrounder, June 2000


Repeal and Revise All Laws That Discriminate Against Women and Deny Them Access to Justice

Eliminate Police Mistreatment of and Bias Against Female Victims of Violence

Ensure That the Medico-Legal System Provides Women with Appropriate Diagnosis and Treatment

Provide Protection from Violence

Ensure That Perpetrators are Brought to Justice

Eliminate Judicial Bias Against Women

In 1995, at the United Nations World Conference on Women in Beijing, China, 189 governments pledged to fight violence against women in all its forms. With this pledge, they agreed to end practices and policies that engaged in, condoned, or accepted violence against women; to prevent violence and protect women at risk of violence; and to build ways for women to win justice and redress when they are targeted for violence. Five years later, Human Rights Watch challenges governments to live up to their promises by ensuring that they undertake essential reforms.

Five years after the Beijing Conference, are women better off? In one key area, combatting violence against women, the answer is a resounding no. Human Rights Watch reporting on six countries—Jordan, Pakistan, Peru, Russia, South Africa, and the United States—shows alarming rates of violence against women, violence that is fueled all too often by the indifference of state officials and the failure to seriously investigate and prosecute cases of violence. These countries provide important examples of how states have failed to meet their human rights obligations when it comes to fighting violence against women. Rather than presenting extreme cases, they instead are representative of the problems that plague female victims of violence in most countries.

Grim statistics show just how prevalent violence against women continues to be. Official estimates from Russia indicate that 12,000 women die every year as a result of domestic violence. The nongovernmental Human Rights Commission of Pakistan concluded that upwards of 80 percent of women in that country are victims of domestic violence. In South Africa, there were 49,280 reported rapes in 1998; the nongovernmental Rape Crisis Center asserts that the actual number of rapes is much higher. Peru’s National Police received 28,000 reports of domestic abuse in 1998, of which the victims were overwhelmingly women. Official statistics from Jordan indicate that, each year, one third of the country’s homicides are so-called honor killings, in which women are killed by family members in the name of honor. In the United States, the Center for Disease Control reported that at least 1.8 million women are assaulted every year by their husbands or boyfriends. Also in the U.S., a 1999 government report indicated a serious problem of sexual abuse of women in state and federal prisons.

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HRW Reports on Violence Against Women

Human Rights Watch has documented how states respond to violence in numerous countries around the world, including Pakistan, Peru, the United States, Russia, South Africa and Jordan. This research shows that, even in very different countries, women confront similar barriers to justice as well as appropriate and humane treatment when they are victims of violence. The following recommendations are based on the research in these and other countries and represent the minimum steps that states should take immediately to end impunity for and tolerance of violence against women.

Repeal and Revise All Laws That Discriminate Against Women and Deny Them Access to Justice

In many parts of the world, women confront laws—or the absence of law—which make it difficult and in some cases dangerous for them to pursue justice when they have been the victims of sexual assault or domestic violence. Some laws define rape as a crime against honor or custom, rather than a crime against the physical integrity of the victim, and thus understate its seriousness. In some cases, the law allows perpetrators to escape punishment if they agree to marry their victim. In other contexts, the law may require a victim to produce excessive corroborating evidence to substantiate her case, with obvious deterrent effect, or courts—including those in Pakistan—may allow irrelevant evidence of women’s previous sexual activity to be admitted to show that she is of "generally immoral character" and undermine the seriousness of her claim. And, across the world, laws exempt rape in marriage from criminal sanction. Many countries have failed to address seriously the issue of violence by police, military guards, and prison staff against women in custody and other forms of detention. In the United States, for example, a number of states have yet to enact legislation criminalizing such sexual misconduct in prisons by guards and other staff.

Throughout the world, women have little protection under the law from domestic violence. Few countries explicitly criminalize domestic violence, and even where they do, police and judges often treat it as a non-justiciable, private or family matter or, at best, an issue for civil, rather than criminal, courts. In the case of Peru, although the country was one of the first in Latin America to adopt domestic violence legislation, as of April 2000 this legislation excluded entire categories of women from protection, either because they did not live with their abuser or because they suffered sexual abuse. Where domestic violence is not specifically criminalized, it could be prosecuted under criminal assault laws, yet, in countries like Russia, this seldom happens. If domestic violence is prosecuted at all, it is usually only in cases of murder or grave physical injury, and sometimes not even then. In some countries, such as Jordan, laws also allow for "honor" or "heat of passion" defenses in cases where women are killed by husbands or family members, thus acquiescing in murder of women on grounds of "legitimate provocation," such as actual or perceived transgression of a woman’s role in that particular society. Examples of such transgressions include a woman refusing participate in an arranged marriage to adultery.

Specifically, governments should ensure that:

  • All forms of violence against women, including marital rape and other forms of domestic violence, are criminalized with appropriately serious penalties.

  • The criminal justice system is evaluated, while ensuring respect for the rights of defendants, to identify any obstacles to women’s meaningful redress when they are victims of violence.

  • Laws specifically criminalize sexual abuse and misconduct by prison staff against incarcerated women and provide appropriately serious penalties for these violations.

  • Laws of procedure and evidence are revised, while ensuring respect for the rights of defendants, to eliminate discriminatory evidentiary burdens and prejudicial and irrelevant attacks on the character of the victim.

Eliminate Police Mistreatment of and Bias Against Female Victims of Violence

When women who have suffered sexual or domestic violence first confront the law enforcement system at police stations they often encounter abusive treatment and rejection of their complaints. Women who have been raped or otherwise sexually assaulted frequently find that they are insulted and treated as if they were the guilty party, not the victim. In cases of domestic violence, police in many countries routinely dismiss complaints, either refusing to believe the woman’s allegations or failing to recognize intra-family violence as a crime. Such biased attitudes among police frequently mean that women complainants are turned away and, at times, even intimidated or warned against attempting to file charges.

Rather than register and investigate charges of rape, some police officials impugn the veracity of such complaints and accuse women of fabricating charges. Skepticism and scorn about women's complaints of violence are rife: this is a major problem because police function as gatekeepers with respect to women's access to the criminal justice system. Many police demonstrate a simplistic and biased understanding of the dynamics of rape, a lack of knowledge and experience as to the range of circumstances in which rapes of women occur, a lack of sensitivity in dealing with rape victims, and a predisposition to disbelieve victims of rape.

Domestic violence is almost universally dismissed as a family issue not of concern to police. Few police acknowledge the seriousness of crimes of intra-family violence against women or their widespread and unchecked incidence. In Peru, for example, Human Rights Watch learned of cases in which police mistreated women filing complaints and even jeopardized their safety by having them deliver police summons to their abusers, who then responded with another violent attack. Rather than register cases, police in some countries pressure women to return to abusive situations. In Pakistan, the police frequently intervene at the behest of the accused, to try to force the concerned parties to reach a settlement without officially registering a complaint.

If a victim of sexual assault does succeed in registering a complaint, police follow-up is often minimal and rudimentary. In South Africa, despite attempts to improve police response to reports of rape, unsympathetic officers still neglect rape investigations and have allowed known perpetrators to walk free. Even getting the police to conduct limited investigations often requires persistent inquiries and pressure from the complainant. For example, police may not refer a woman who has been raped for forensic medical examination, thus failing to obtain crucial evidence of the crime. In an illustrative case, Russian police refused for seven months to provide the necessary referral for an exam to a rape victim, despite her repeated requests.

Specifically, governments should ensure that:

  • Police take detailed testimony from all relevant persons whenever a complaint of sexual and/or domestic violence is made.

  • Relevant state authorities regularly compile and publish statistics on the number of complaints of sexual and/or domestic violence made to police, the actions taken, the number of complaints referred for prosecution, and the final outcome of each complaint.

  • Independent mechanisms are established to monitor and oversee police treatment of female victims of violence. Police who reject complaints without cause, harass complainants or their families, or otherwise block investigations should be appropriately disciplined.

  • Police regulations establish clear and explicit guidelines for police intervention in cases of domestic abuse.

  • Police receive appropriate training in what constitutes crimes of sexual and/or domestic violence; how to take reports of such crimes; how to respond sensitively to complainants who often have been traumatized they their experience; how to investigate such crimes; how to collect and preserve evidence; and the protections available to ensure the safety of victims and witnesses.

Ensure That the Medico-Legal System Provides Women with Appropriate Diagnosis and Treatment

The collection and analysis of medico-legal evidence is of crucial importance in securing convictions in cases of sexual assault and domestic violence. Meticulous documentation of physical and psychological harm can be decisive in building a criminal case against a perpetrator of violence. But in order for the system to work properly, forensic doctors must be trained to conduct a thorough examination, ask the right questions, handle the physical evidence in an appropriate manner, and testify as to their findings. Unfortunately, in many countries the system frequently breaks down, leaving women who have been the victims of violence without the evidence they need to win protection from their assailants and justice from the courts.

In many cases, women must overcome tremendous obstacles to even obtain a forensic examination. Police often delay informing women of the necessity of a medico-legal examination or fail to provide them with official referrals required for this purpose. Such lapses on the part of police are especially egregious in view of the transient nature of forensic medical evidence. A timely examination of an accused can yield significant evidence in both rape or other sexual violence or domestic violence cases. Such evidence is lost if it is not recorded within a short period of time after the attack.

Forensic doctors also are sometimes biased against women victims of rape or sexual assault, especially unmarried women who were not virgins at the time of the assault. In many countries, doctors focus on the virginity status of the woman and on whether and when the hymen was broken rather than on collecting evidence to demonstrate the extent and severity of women's injuries and to identify offenders. Modern medical standards hold that the use of the condition of the hymen to indicate recent sexual intercourse, or even virginity status, is medically groundless and inaccurate. Nonetheless, in Pakistan and other countries, forensic doctors also routinely perform the so-called finger test. Now a totally discredited means of checking virginity, the test consists of seeing how many fingers can be simultaneously inserted into the vagina. The focus on the hymen also militates against effective examinations of sexually active married women because their injuries are not usually related to hymenal tearing.

Even when they do not focus solely on the virginity status of the woman, forensic examinations are often incomplete, as doctors too often only seek the bare minimum of evidence and information. Nor do they as a matter of course administer treatment for sexually transmitted diseases and emergency contraception if required, nor provide information on follow-up treatment and tests for pregnancy and HIV/AIDS.

Because they do not consider domestic violence a genuine "crime," forensic doctors frequently minimize victims’ injuries. For example, advocates in Peru told Human Rights Watch that forensic doctors frequently treat injuries in domestic violence cases as less serious than they would were the injuries sustained under other circumstances, thus thwarting women’s access to redress.

Women in detention confront special problems when they need to obtain forensic examinations. For a prisoner who has been assaulted by a prison official, being examined and treated at the prison itself may only add to the trauma. Women incarcerated in the United States have also reported that prison medical staff have physically and sexually abused them during medical exams. Moreover, the employee responsible for the abuse may be in a position to block or delay the woman’s access to the infirmary, or may try to influence the way medical staff there report the incident. Human Rights Watch has documented cases in U.S. state prisons in which prison medical staff refused to examine or treat incarcerated women reporting rape.

Specifically, governments should ensure that:

  • Women who report sexual and/or domestic violence have unobstructed and timely access to forensic medical exams.

  • All those charged with conducting forensic exams of female victims of domestic and/or sexual violence (including state and private forensic doctors, hospital emergency room medical staff, and emergency clinic staff) are trained in the appropriate and sensitive methods of collecting and handling evidence in cases of sexual and domestic violence.

  • Forensic doctors receive training in the terminology, significance and courtroom use of medico-legal evidence.

  • Victims of domestic and sexual assault are treated with fairness, compassion and respect and are able to make informed choices about medical treatment, evidence collection, and counseling.

  • Women in detention alleging rape or other sexual violence are examined at rape treatment centers staffed by professionals who are trained to handle sexual assault cases.

Provide Protection from Violence

Governments have clear obligations under international human rights law to protect women from violence. This includes both seeking to prevent violence and to protect women once they become victims from further violence. At Beijing, governments agreed that their obligations include offering women at risk of violence options such as refuge, counseling, rehabilitation and support services.

In the past five years, however, relatively few governments have implemented such measures. In some cases, officials’ actions have directly exposed women to violence. In some prison systems, women who report sexual abuse by prison staff can turn only to ineffective grievance or investigatory procedures, and cannot escape their abusers. On the contrary, they may be required to confront their abuser or continue to live under his supervision. Women who report sexual abuse under these circumstances run the risk of retaliation by their attacker or his allies, including physical abuse, verbal threats and harassment, the suspension of privileges, or longer terms of incarceration.

Some governments fail to undertake the minimum measures necessary to offer women protection from violence, for example, failing to provide shelter to women seeking refuge from violence, either alone or with their children. Officials in Jordan and other countries even place women at risk of family violence in prison, ostensibly as a form of protective custody, yet in reality effectively punishing the victim. Often, where shelters do exist, they are located only in major urban centers, leaving rural women without refuge.

Some countries offer civil protection orders as a means to protect women from known abusers, but others do not. Yet, even where civil remedies for violence are provided in the form of legally enforceable protection orders, court officials often fail to invoke their authority for this purpose, in favor of less certain and reliable informal assurances on the part of the abuser.

Specifically, governments should:

  • Establish quality shelters or other safe spaces for battered women that function not as de facto detention facilities but as refuges where women can find safety and shelter without compromising their personal autonomy and freedom of movement.

  • Support telephone hotlines for women victims of violence. These hotlines should be widely publicized and operated by trained staff who can offer basic counseling and refer women to specialized service providers and to shelters. Hotlines for women in detention should be secure and confidential.

  • Provide a civil remedy for domestic violence victims in the form of a legally enforceable protection order (or interdict) that is easily accessible and readily available. Such orders should direct the batterer to refrain from contacting, approaching, harassing or assaulting the complainant. Such remedies should be available to all women, including those who have never married or lived with their abusive partners.

  • Regularly collect and publish data on gender-based violence, including the type of violence, its pervasiveness, severity, where such violence occurs, the relationship of the perpetrator to the victim, and whether the violence was reported to any government authorities. The information should then be used to devise and implement education and prevention strategies.

  • Undertake public education campaigns on preventing violence against women.

Ensure That Perpetrators are Brought to Justice

Because police are often hostile or unsympathetic to women who have been battered by their partners or sexually assaulted, and are frequently ignorant of the legal remedies open to women, many perpetrators are not arrested, or charges against them are dropped without investigation. In those cases that do go to trial, bias on the part of the prosecutor or a failure to secure key medical evidence of the assault means that often perpetrators escape justice.

Prosecutors often are unable to successfully build a case against a perpetrator of violence against women because of shoddy police work in cases of sexual assault or a lack of police concern in cases of domestic abuse. Further, public prosecutors too often lack adequate training to effectively evaluate and use physical and medical evidence at trial. As a result, too often, prosecutors will take on only those cases where they feel certain of success, and will reject cases which they consider insufficiently serious because the victim was not a virgin or did not sustain permanent injuries or opt for a lesser charge, thus enabling rapists, for example, to escape the appropriate penalty for their crime. In Russia, prosecutors in two large cities admitted that their offices closed or failed to pursue approximately 50 percent of sexual violence cases filed with police. Nor have victims of domestic violence in countries like Peru been able to count on state prosecutors to pursue their cases; instead, prosecutors seek to resolve domestic assault cases though mediated settlements.

Specifically, governments should ensure that:

  • All prosecutors are required to undertake training to eliminate gender bias in their approach to cases of sexual and/or domestic violence.

  • Prosecutors should receive special training in the terminology, significance and courtroom use of medico-legal evidence.

Eliminate Judicial Bias Against Women

Women who have been able to register a case of rape or domestic violence face additional hurdles from the criminal justice system. In many countries, trial procedures reflect societal biases against the successful prosecution of such cases. Too often, prejudiced judges doom a case from the outset and help ensure impunity for the perpetrators.

Many judges view victims of violence skeptically and tend to hold them responsible for bringing violence upon themselves. Thus, at the trial stage, judges frequently consider the behavior of the woman as a factor when weighing the evidence and, if there is a conviction, in determining the defendant's punishment. On the basis of a presumption of female consent and a belief that women tend to lie in rape cases, judges may also ascribe undue significance to bodily evidence of the use of physical force by the defendant and physical, as opposed to verbal, resistance by the woman. In an example from Pakistan, the presiding judge dismissed a woman’s allegations of rape because he determined that she had not struggled enough; this judge further denounced women for agreeing to sex and then bringing spurious cases to court.

Like others in the criminal justice system, judges seldom receive adequate training on the significance of medical legal evidence and do not know how to interpret it at trial. Thus crucial information that could convict the defendant may be disregarded or even used against the complainant. In one South African case, for example, a judge argued that the lack of evidence of penetration in a case involving a forty-two-year-old woman who had three children indicated that a rape had not occurred. Despite such cases, magistrates at the Johannesburg court have resisted such training out of fear that it would prejudice them against defendants

Victims of domestic violence often fare even worse in court. Many judges treat domestic violence as a husband's right, and put the onus on the wife to either leave the marriage or accept the abuse. The man is deemed to have no responsibility to stop beating his wife and is instead granted legal sanction for behavior that would otherwise be punishable by a prison sentence. In a Russian case, a domestic violence victim in court for a custody hearing was subjected to a harangue by a judge on the importance of staying with her husband, despite ten years of physical abuse.

Specifically, governments should ensure that:

  • All judges are required to undertake training to eliminate gender bias in their approach to cases of sexual and/or domestic violence.

  • Judges should receive special training in the terminology, significance and courtroom use of medico-legal evidence.