Human Rights Watch welcomes the opportunity to provide input to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) for its General Recommendation on access to justice. Human Rights Watch has done extensive research on this topic around the world, on which the following information and recommendations are based.

This submission follows the structure of the CEDAW Committee’s concept note for the General Recommendation, with an added focus on access to justice for disadvantaged groups of women and girls.

Legal and Institutional Barriers to Justice

Legal Barriers

Constitutional articles, statutes and regulations, and customary laws that contain discriminatory provisions often limit women and girls’ access to justice. The most direct legal barriers to justice are those that deny women access simply because they are born female. Laws and practices that require women to have male legal guardians, effectively relegating them to the status of minors, may prevent women from filing legal claims themselves or from seeking out police protection independently from their guardian. 

For example, in Saudi Arabia, women must obtain permission from a guardian (father, husband, or adult son) for most basic life decisions. Male guardianship over women and sex segregation make it difficult—sometimes impossible—for victims of family violence to seek protection or redress through the justice system without a male representative. Police frequently require women and girls to obtain their guardian's permission to file a criminal complaint, even when the complaint is against the guardian.

Human Rights Watch therefore recommends that the General Recommendation state clearly that women should be considered to have reached full legal capacity at age 18 and examine how sex-segregation and guardianship systems pose barriers to access to justice.

Institutional barriers

Access to justice depends on effective implementation of laws that are available, and an adequate, gender sensitive, and timely response by responsible institutions. The recent Council of Europe Convention on preventing and combating violence against women and domestic violence states: “Parties shall take the necessary legislative or other measures to ensure that the responsible law enforcement agencies respond to all forms of violence … promptly and appropriately by offering adequate and immediate protection to victims,” and further details how access to protection, justice, and redress should be put into practice.[1]

Human Rights Watch has documented institutional barriers to justice and the enforcement of women’s rights around the world. Our research has shown obstacles in every part of the justice chain, from police officers who coerce women to not report violence, to judges who dismiss serious claims based on stereotypes or unrealistic evidence requirements. Poor investigations, outright dismissals of claims, mistreatment, lack of understanding of legislation, and poor and unethical evidence collection all lead to a systematic failure in states’ due diligence obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

For example,  the 2013 Human Rights Watch report  “Capitol Offense: Police Mishandling of Sexual Assault Cases in the District of Columbia” found that in many sexual assault cases, the police in Washington, DC, did not file incident reports, which are required to proceed with an investigation, or misclassified serious sexual assaults as lesser crimes. Human Rights Watch also found that the police presented cases to prosecutors that were so inadequately investigated that prosecutors had little choice but to refuse them, and that procedural formalities were used to close cases with only minimal investigation. Sexual assault victims said some police had discouraged them from reporting or getting forensic exams, threatened them with prosecution for false reporting, asked victim-blaming and insensitive questions, and told victims their stories were not serious enough to investigate. This behavior compounded the victims’ trauma.

In some cases, rather than providing protection and access to redress for women and girls who escape abuse, law enforcement officers arrest victims. In Afghanistan, the 2012 Human Rights Watch report “’I Had To Run Away’: The Imprisonment of Women and Girls for ‘Moral Crimes’”focused on the plight of women and girls who fled domestic violence and forced marriage, only to be charged with the so-called “moral” crimes of “running away” and zina (illicit sex). The report highlighted cases of women and girls punished for these “crimes,” and showed the frequently negative role that police, prosecutors, and judges played in punishing women and girls perceived to have committed them. While the women and girls who fled abuse often ended up incarcerated, the men responsible for the domestic violence and forced marriages almost always enjoyed impunity from prosecution. This not only directly prevents victims from getting protection and accessing justice, it deters others from seeking help when they are abused.

Elsewhere, evidentiary practices and rules sometimes hamper access to justice, and violate the rights of the victim in the process. Courts, police officers, prosecutors, and defense lawyers sometimes require “virginity tests” or other irrelevant examinations of women and girls after alleged sexual violence. In India, for example, Human Rights Watch documented in 2010 the continued practice of the archaic and unscientific “finger” test by forensic doctors and its use by many defense counsel and courts. The practice, described in outdated medical jurisprudence textbooks used by many doctors, lawyers, and judges, involves a doctor inserting fingers in a rape victim's vagina to determine the presence or absence of the hymen, and the “penetrability” or "laxity" of the vagina. These findings perpetuate false and damaging stereotypes of rape survivors as "loose" women. Defense attorneys use the findings to dubiously challenge the credibility, character, and lack of consent of the survivors, creating an obstacle to justice. The Indian central government modified its protocol in 2011 to remove some questions about the size of the hymenal orifice and the opinion of the doctor regarding survivors’ habituation to sex. This is a welcome move, but the protocol continues to fall far short of World Health Organization guidelines for medico-legal care for victims of sexual assault, especially therapeutic care.

Yet other institutional barriers to justice prevent women and girls from realizing their rights through civil proceedings. In countries where access to services, including to legal abortion, is dependent on pre-approval by an official or court, barriers to access to the justice system lead to a violation of women and girls’ right to the highest attainable standard of health, and possibly their right to life. In Mexico, abortion is permitted after rape, but Human Rights Watch documented in 2006 that access to safe abortion procedures for rape survivors was significantly undermined by a maze of unduly complicated procedures, illegal delays, lack of information, and intimidation by health sector officials.When pregnant rape and incest victims reported sexual assault and insisted that they wanted an abortion, they were forced to overcome a series of obstacles that greatly diminished their possibility of obtaining a legal abortion. The greatest resistance was encountered in jurisdictions without administrative guidelines for assisting victims, where the justice and health officials often claimed they had no mandate to facilitate access to legal abortion. Mexico issued an official policy (NOM-046)—which entered into force in April 2009—aimed at addressing the barriers and inconsistencies in the provision of health services after rape. But the policy’s effectiveness has been severely limited by the fact that it is not binding on the public prosecutor’s office, making it difficult to implement. As a result, many of the same barriers remain in place for women seeking legal abortions in cases of rape.

In other countries, Human Rights Watch found that civil courts handling family matters, such as those relating to marriage, separation, and divorce, were so inefficient, dysfunctional, or discriminatory that women found it next to impossible to seek justice through them.  For example, in Bangladesh, in our 2012 report “Will I Get My Dues Before I Die: Harm to Women from Bangladesh’s Discriminatory Laws on Marriage, Separation, and Divorce,” Human Rights Watch found that even the few economic entitlements for women recognized by personal laws, namely maintenance and mahr (contractual amounts under Muslim marriage contracts), are often meager and difficult to secure. Bangladesh’s family courts were often so plagued by delays, dysfunction, and burdensome procedures that women waited months or years—at times more than a decade— for any result. Family courts in Bangladesh do not grant any interim orders to help tide women over economic desperation in the immediate aftermath of separation or divorce.

Human Rights Watch has also documented institutional failings with respect to grievance mechanisms in state agencies. For instance in the health sector, Human Rights Watch has documented the need for redress after women and girls suffered from poor care or mistreatment by health officials in Kenya, South Africa, India, Mexico, Argentina, Ireland, and elsewhere. Some countries have dysfunctional mechanisms for patients to lodge grievances or seek redress for abuse or negligence. These states have neglected to inform patients of their rights and what to do when those rights are violated. Where individuals do successfully submit grievances, health authorities do not always conduct impartial, transparent, and efficient inquiries into specific complaints and how they may relate to broader systemic problems.

Human Rights Watch therefore recommends that the General Recommendation include an emphasis on measures for mitigating institutional barriers to justice for abuses of women’s rights not just in the criminal justice system but also in civil proceedings. It should address the need for interim relief in civil proceedings and formal grievance mechanisms outside the justice system.

 

Disadvantaged and Vulnerable Groups

Human Rights Watch supports the CEDAW Committee’s understanding of intersectional discrimination, and we believe it is important to consider this issue in the context of barriers to justice. Discrimination on the basis of sex, sexual orientation, or gender identity may affect women belonging to disadvantaged or vulnerable groups to a different degree or in different ways.

Human Rights Watch has documented the specific challenges certain disadvantaged or vulnerable groups of women and girls face when seeking justice. In this submission we focus on lesbian, bisexual and transgender people; migrant and internally displaced women and girls; lower caste and indigenous women and girls; women and girls with disabilities; victims of early marriage; sex workers; and women and girls in situations of armed conflict. 

Lesbian, Bisexual and Transgender People

International law prohibits the criminalization of same-sex conduct and other forms of discrimination against lesbian, gay, bisexual, and transgender people. UN treaty monitoring bodies have defined the scope of the term “sex” as encompassing sexual orientation. The Human Rights Committee decided in the 1994 case of Toonen v. Australia that “the reference to ‘sex’ in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation.” The Committee on Economic, Social and Cultural Rights included sexual orientation and gender identity as prohibited grounds for discrimination in its General Comment No. 20. It also included this interpretation in its General Comment No. 14 on the right to health. The CEDAW Committee explicitly noted in its General Recommendation No. 28 that “discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as […] sexual orientation and gender identity.”  The CEDAW Committee called on state parties to recognize these intersecting forms of discrimination and address negative impact of discrimination based on these statuses on women.

In reports on violence against lesbian, bisexual, and transgender people around the world, Human Rights Watch has documented patterns of abuse and inaction by the police and other officials based on victims’ sexual orientation and gender identity. 

Human Rights Watch found that Kuwaiti police have tortured and sexually abused transgender women using a discriminatory law, passed in 2007, that arbitrarily criminalizes “imitating the opposite sex.” Transgender women reported suffering multiple forms of abuse at the hands of the police while in detention, including degrading and humiliating treatment, such as being forced to strip and being paraded around the police station, being forced to dance for officers, sexual humiliation, verbal taunts and intimidation, solitary confinement, and emotional and physical abuse that could amount to torture. Redress is difficult, as few said they reported incidents of police misconduct because of threats of retribution and re-arrest.

In South Africa, Human Rights Watch found that lesbians and transgender men face discrimination and violence in their daily lives, both from private individuals and government officials. Nearly all of the people interviewed by Human Rights Watch said they were reluctant to approach the police for protection or to report crimes. In cases where lesbians and transgender men did report crimes against them, the police often verbally abused and demeaned them on the basis of their sexual orientation or gender identity. Some identified the police themselves as perpetrators of abuse. As a result, very few cases of physical and sexual assault against lesbians and transgender men result in prosecution.

In a 2009 report on Honduras, "Not Worth a Penny: Human Rights Abuses against Transgender People in Honduras," Human Rights Watch documented abuses based on gender identity and expression, including rape, beatings, extortion, and arbitrary detentions by law enforcement officials. It also documented police inaction and failure to investigate violence against transgender people. At least 17 travestis (as many transgender people are called) had been killed in public places in Honduras between 2005 and 2008, and none of those killings led to a prosecution or conviction.

Human Rights Watch recommends that the General Recommendation explicitly recognize that discrimination on the basis of sexual orientation and gender identity is a violation of CEDAW articles 2 and 15.

 

Migrant and Internally Displaced Women and Girls

Migrant women around the world are often subject to highly restrictive and discriminatory immigration laws, hampering their access to justice as they discourage them from going to the police or courts.

Human Rights Watch has conducted extensive research across Asia and the Middle East that shows how many migrant domestic workers face a range of abuses and have little access to redress because of exploitative recruitment practices, gaps in labor laws, and employment-based visa structures that tie a migrant domestic worker to an individual employer. Countries such as Saudi Arabia, Kuwait, the United Arab Emirates, and Lebanon exclude domestic workers from their labor laws entirely, including key protections such as limits to hours of work or a weekly rest day. Domestic workers have no legal basis to complain about excessively long work hours or being made to work for months without rest. A common complaint is unpaid wages, but domestic workers often do not have access to labor courts and must rely on informal negotiations where they have little bargaining power.

Many migrant domestic workers are deeply indebted due to exorbitant recruitment fees, which also inhibit them from seeking help as they lose their ability to repay their debts if they are deported. The employment-based visa system, often called a “sponsorship system,” compounds this by giving employers inordinate control over workers. Employers can choose to end a contract at any time, resulting in the immediate repatriation of the worker, and may use this as a threat. Governments using this system, such as Kuwait, often treat domestic workers who leave their employers without permission, even for reasons of abuse, as immigration offenders and may imprison, fine, and deport them. The combination of these problems, passport confiscation by employers and confinement in the workplace, and rare investigation or prosecution of abusive employers fosters other abuses.

For example, in 2011 Human Rights Watch documented in “‘They Deceived Us at Every Step’: Abuse of Cambodian Domestic Workers Migrating to Malaysia” the numerous obstacles that prevented mistreated Cambodian domestic workers who worked in Malaysia from obtaining justice and redress. Women and girls often had to surrender their passports to their agents or employers, making it harder for them to leave if they were mistreated. Many were forcibly confined to their workplaces, were not given adequate food, and were physically and verbally abused. Some were sexually abused by their employers.  These abuses restrict domestic workers’ ability to seek redress. Migrant domestic workers who approach authorities in countries of employment often encounter apathy, discrimination, or hostility. A 2010 Human Rights Watch report, “Without Protection:How the Lebanese Justice System Fails Migrant Domestic Workers”reviewed 114 Lebanese judicial decisions affecting migrant domestic workers. It found that lack of accessible complaint mechanisms, lengthy judicial procedures, and restrictive visa policies dissuaded many workers from filing or pursuing complaints against their employers. Even when workers filed complaints, the police and judicial authorities regularly failed to treat certain abuses against domestic workers as crimes.

Migrant women and girls who suffer domestic violence who have a legal status that depends on their husband or are undocumented are sometimes branded by officials as “zero-risk victims”—in other words they are unlikely to go to the police or a domestic violence shelter. In some countries, the police have a duty to report anyone who comes to them without papers to immigration authorities. Even access to emergency shelters is sometimes limited to those women and girls with papers. Human Rights Watch documented in “The Law was Against Me’: Migrant Women’s Access to Protection for Family Violence in Belgium” in 2012 that there are serious gaps for migrant women who experience domestic violence in Belgium. Women who migrated to Belgium to join a husband or partner may face deportation if they report violence during the period when their status is being confirmed, as did undocumented migrant women. And domestic violence victims, especially undocumented women, lack adequate access to shelters. This creates a disincentive to seek help and report a crime.

Internally displaced women and girls also face barriers to accessing justice. Uprooted from their homes and mostly impoverished, displaced women and girls who become victims of gender-based crimes are often unfamiliar with justice institutions in their new locations. Many have little money for transportation and other costs to seek justice, lack trust in government authorities, and fear retribution from their attackers. Human Rights Watch’s 2012 report “Rights Out of Reach: Obstacles to Health, Justice, and Protection for Displaced Victims of Gender-Based Violence in Colombia”documents how recent improvements in Colombia’s laws, policies, and programs on rape and domestic violence have not translated into more effective justice for women and girls displaced by Colombia’s armed conflict, who appear to face higher rates of such violence. Displaced women and girls interviewed by Human Rights Watch reported a wide range of obstacles to justice, including mistreatment by authorities, evidentiary challenges, and fear of retribution. Some women and girls said that police and prosecutors failed to take their cases seriously. Others reported that officials said there could be no criminal prosecution unless the women could produce physical evidence of the abuse, which in some instances was impossible due to delays in accessing forensic examinations.

 

Lower Caste and Indigenous Women and Girls

Lower caste and indigenous women and girls also face unique barriers to justice, often relating to social stigma and isolation, and sometimes to language barriers.

In India, apart from barriers faced by religious minorities, tribal communities and other vulnerable groups, there is also caste-based discrimination. Nearly 167 million Indians, or 16 percent of the population, belong to so-called Scheduled Castes, who call themselves Dalits. Dalits face enormous obstacles to the full attainment of civil, political, economic, social, and cultural rights. The 2009 Human Rights Watch report “No Tally of the Anguish: Accountability in Maternal Health Care in India” documents how caste-based discrimination by health workers and other officials excluded many lower caste women and girls from maternal and reproductive health care, as well as to justice or alternative forms of redress.

In report to be released soon, Human Rights Watch documented the specific barriers to justice for indigenous women in Canada. More than 582 indigenous women and girls have gone missing or been murdered across Canada over the last five decades.  Indigenous women are almost seven times more likely to be murdered than non-indigenous Canadian women. Our research showed the failure of the police to protect indigenous women and girls from violence and the responsibility of the police for abusive practices and behavior, including excessive use of force, and physical and sexual assault. Police oversight mechanisms are weak: complaints lodged with the Commission for Public Complaints against the police are likely to be investigated by the police itself or an external police force. Fear of retaliation from police ran high, and the apparent lack of genuine accountability for police abuse added to long-standing tensions between the police and indigenous communities.

 

Women and Girls with Disabilities

Women and girls with disabilities face distinctive obstacles to justice, protection, and redress because of limitations in physical mobility, communication barriers, and isolation. This leaves them all the more vulnerable to abuse, including physical and sexual violence.

In northern Uganda, for example, Human Rights Watch documented sexual violence against women with disabilities and found that more than one-third of 64 women with disabilities interviewed had experienced sexual or gender-based violence, often at the hands of relatives. Women with disabilities have a greater chance of being raped because abusers perceive them as less able to defend themselves or demand justice for violence. For women with disabilities, the process of reporting violence may be more difficult, for example when limited mobility impedes their ability to reach justice institutions or when such institutions lack sign language interpreters. Several women with disabilities explained to Human Rights Watch how their efforts to seek justice for such crimes had failed. Because of the stigma already associated with disability and the stigma associated with rape, women with disabilities are rarely comfortable reporting incidents of sexual violence to the local authorities. In the Ugandan context, local authorities seem to have done nothing to make such reporting less intimidating or to ensure confidentiality and thereby avoid stigma.

One important aspect of facilitating access to justice for women with disabilities is the need to make procedural and age-appropriate accommodations in all legal proceedings, in order to enable persons with disabilities to participate fully and equally in the process, whether as complainant, defendant, or witness.These include physical and communication needs such as ramps, accessible podiums, sign language interpretation, and Braille and large print text of court documents. This also involves training of law enforcement and legal professionals in how to respectfully communicate and interact with persons with disabilities, particularly women.

 

Victims of Early Marriage

Human Rights Watch has documented human rights violations against married girls in Afghanistan,Bangladesh, India, Iraq, Kenya, Kyrgyzstan, Nepal, Papua New Guinea, South Sudan, and Yemen, and has found that their status as child brides impedes their ability to seek justice or protection when they are victims of abuse. The consequences of child marriage do not end when child brides reach adulthood, but often follow them throughout their lives as they struggle with the health effects of getting pregnant too young and too often, their lack of education and economic independence, domestic violence, and marital rape.

In Afghanistan, Human Rights Watch documented in 2012 how young girls who tried to escape from forced marriages or who ran away from abusive spouses and their families are arrested and imprisoned for so-called “moral crimes” and “running away”. Both forced marriage and domestic violence are illegal in Afghanistan, but women and girls are deterred from seeking justice for such crimes if in turn they might be treated as criminals themselves by the government. Underage girls who have been forced into or are threatened with forced marriage have virtually no recourse to the Afghan justice system, in spite of a 2009 law that made arranging a child marriage a crime.

 

Sex Workers

Human Rights Watch research has consistently and repeatedly shown that while sex workers routinely face discrimination, physical and sexual violence, and other serious abuses, they face considerable challenges in obtaining access to justice. Sex workers’ marginalization and their criminalized status heighten their vulnerability to violence and other abuses, and impede their right to seek legal protection from such abuse. Few sex workers file complaints, fearing further abuse and lacking faith in police to respond with fairness and integrity, in some cases questioning the victim’s credibility or refusing to pursue sexual assault cases because the victim was a sex worker. Furthermore, reporting abuse can expose sex workers to mistreatment and disclosure of their identities by police, who often resort to extrajudicial and illegal “on-the-spot punishments” and extortion, rather than enforcing the law.

For example, in the 2010 report “Off the Streets: Arbitrary Detention and Other Abuses against Sex Workers in Cambodia,” Human Rights Watch found that sex workers in Cambodia were arbitrarily detained, raped or gang-raped, brutally beaten, and subjected to extortion by police as well as private citizens. Perpetrators had nearly absolute impunity for these crimes, as most sex workers were unwilling or unable to file complaints. Many sex workers were fearful of reprisals; others said that police disregard for sex workers made it impossible for them to file complaints about violence or abuse against them.  Human Rights Watch has documented similar harassment and abuse of sex workers by police, and widespread police impunity for these abuses in “Rhetoric and Risk: Human Rights Abuses Impeding Ukraine's Fight against HIV/AIDS,” “Still Making Their Own Rules: Ongoing Impunity for Police Beatings, Rape, and Torture in Papua New Guinea,” and “Ravaging the Vulnerable: Abuses Against Persons at High Risk of HIV Infection in Bangladesh,” among others. 

In our most recent report on the rights of sex workers in 2012, “Sex Workers at Risk: Condoms as Evidence of Prostitution in Four US Cities,” sex workers and transgender women in Los Angeles, Washington, DC, San Francisco, and New York described to Human Rights Watch abusive and unlawful police behavior, including verbal harassment, public humiliation, and extortion for sex, both in and out of detention settings. Sex workers and transgender women who were immigrants reported additional barriers to reporting abuse, as prostitution and related offenses may be grounds for removal and detention; and transgender persons who are not citizens fear deportation to countries where they face life-threatening abuse.

Human Rights Watch’s findings on the abuse of sex workers by police echo concerns the CEDAW Committee has expressed “about acts of harassment against women in prostitution by police officials.”[2]Human Rights Watch urges the CEDAW Committee to include sex workers in the General Recommendation so that states take all necessary steps to protect sex workers from violence and ensure their access to justice.

 

Women and Girls in Conflict and Post-Conflict

Challenges to access to justice are even further aggravated for women and girls in armed conflict situations. Women’s and girls’ access to justice is critical from the beginning of conflict, during conflict, and post conflict.

Human Rights Watch has documented the lack of access to justice for women and girls in conflict and post conflict situations around the world. For example, the2011 report “‘They Killed Them Like It Was Nothing’: The Need for Justice for Côte d’Ivoire’s Post-Election Crimes” detailed war crimes and likely crimes against humanity committed by forces both under Laurent Gbagbo and Alessane Ouattara. At least 3,000 people were killed and 150 women raped during the conflict, often in targeted acts perpetrated along political, ethnic, and religious lines. The report explored the accountability efforts of the Ouattara government to date, including charges brought by the civilian or military prosecutor against at least 118 members of the former Gbagbo camp. Even prior to the conflict, victims of rape faced challenges to realizing justice.  Under Ivorian law, the cours d’assises have jurisdiction over rape cases. After several years of the courts not convening (in large part because doing so was both cumbersome and costly), there was an enormous backlog of rape suspects in indefinite preventive detention. The “solution” greatly compromised victims’ right to justice: offenses were redefined and downgraded to “attacks on purity” (attentat à la pudeur),which could be tried before a lesser court. As a result, the resulting penalties for those convicted were significantly less severe than they would have been for rape. 

Human Rights Watch’s 2012 report on Guinea, "Waiting for Justice: Accountability before Guinea's Courts for the September 28, 2009 Stadium Massacre, Rapes, and Other Abuses," analyzed Guinea's efforts to hold those responsible for the crimes to account. On that day, several hundred members of Guinea's security forces burst into a stadium in Guinea's capital, opened fire on tens of thousands of opposition supporters peacefully gathered there, and raped dozens of women. In February 2010, a Guinean prosecutor appointed a panel of judges to investigate the crimes. More than 200 victims have been interviewed, and charges have been filed against at least seven people. However, the investigation has yet to be completed more than three years after the crimes were committed. In 2011 and 2012, Guinea's Justice Ministry took upward of a year to begin to address the investigative panel's lack of basic supplies, and as a result, the work of the panel was effectively halted from May to September 2012. In addition, Guinean judicial police have yet to provide the judges access to an identified possible mass grave, and a request by the judges to interview the former president in Burkina Faso about the crimes remains outstanding. Finally, two military officials implicated in the crimes continue to hold their posts as opposed to being placed on administrative leave.

 

[1]Council of Europe Convention on preventing and combating violence against women and domestic violence, Istanbul 11.v.2011, article 50, http://www.conventions.coe.int/Treaty/EN/Treaties/Html/210.htm

[2]  CEDAW Committee, “Concluding observations of the Committee on the Elimination of Discrimination against Women: Kyrgyzstan,” UN Doc CEDAW/C/KGZ/CO/3, 2008, para 43, http://www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-KGZ-CO-3.pdf(accessed January 31, 2013).