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Introducing or reforming legislation

Legislation provides the normative framework for society and a foundation for policies and programming to prevent and respond to violence against women. It establishes rights and entitlements, government duties and obligations, and serves as a benchmark for monitoring and a framework for national accountability.

The legislative framework establishes the definition and context of violence against women and girls; determines the scope of the law; the remedies available under the law and provides guidance on its implementation, monitoring and evaluation toward the successful execution of the law. (UNDAW, 2008)

National legal frameworks and entry points to address violence against women and girls, include:

  • Constitutions
  • Legislative provisions within different parts of the law (e.g. civil, criminal, family, administrative, etc.)
  • Stand alone bills, amendments and acts
  • Jurisprudence
  • Case law
  • Decrees, regulations, protocols and guidelines

Whichever legal frameworks are in place, legislation on violence against women should aim to: prevent violence against women and girls; ensure investigation, prosecution and punishment of perpetrators; and provide protection and support for survivors of violence.

Important guiding considerations for the law include:

  • Recognition that violence against women is a form of gender-based discrimination, and a violation of women’s human rights;
  • Making clear that violence against women is unacceptable and that eliminating it is a public responsibility;
  • Ensuring that survivors of violence are not revictimized through the legal process;
  • Promoting women’s agency and survivors’ empowerment;
  • Addressing all forms of violence against women, in public and private spaces; and
  • Taking into account the different impact of measures on women according to their age, race, class, ethnicity, religion, disability, culture, indigenous or migrant status, legal status and/or sexual orientation or other status.

 

Elements that should be addressed within the law include(UN Division for the Advancement of Women, 2008):

  • Legislative preamble
  • Implementation
  • Monitoring and evaluation
  • Definitions
  • Prevention
  • Protection, support and assistance to complainants/survivors
  • Rights of immigrant women
  • Investigation
  • Legal proceedings and evidence
  • Protection/Restraining orders
  • Sentencing
  • Civil law suits
  • Family law
  • Asylum law

Strategies:

  • Advancing state ratification, without reservations, of international (such as, the Convention on the Elimination of Discrimination against Women and its Optional Protocol) and regional human rights instruments (such as Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women/Convention of Belém do Pará).
  • Aligning national legislation with the international and regional human rights standards by reviewing the concluding observations of treaty bodies (in particular, the Convention on the Elimination of Discrimination against Women) in order to integrate, for example, gender equality language in the constitution and develop national legislation on gender equality and on violence against women (either as a stand alone bill/act or by comprehensively integrating it throughout existing civil, criminal and administrative law). (UN General Assembly, 2006)
  • Conducting an assessment of the legislative framework for addressing violence against women and girls, including gaps in the content of laws; weaknesses in its implementation; barriers to protection, access to justice and services for women survivors of violence; investments and budget allocations as well as monitoring mechanisms for enforcement of the laws.
  • Developing a critical mass of expertise and capacities among lawyers, prosecutors, public defenders, paralegals, ombudspersons, and other legal professionals through training and professional development based on the existing models and lessons on legislative practices to end violence against women and girls.
  • Promoting legislative reforms which address protection for women and girls and prosecution of perpetrators, as well as other legal reforms that can reduce the risk of violence and increase the opportunities women and girls have to avoid or escape it (such as, equal marital rights regarding divorce, property, custody, child support; minimum age at marriage; and legal recognition of customary marriage).
  • Advancing legal frameworks that address forms of violence that affect girls, such as forced and child marriage; FGM/C; and dating violence.
  • Promoting cross-border and regional cooperation to address forms of violence against women which occur in international contexts, such as trafficking, crimes committed in the name of “honour”, forced marriage, female genital mutilation/cutting and violence against women migrant workers.  (UNDAW and UNODC, 2005)

 

Specific Legal Considerations

 Ensure the law is equally applied to different groups of women (across race, class, ethnicity, religion, disability, culture, age, sexual orientation, or legal status, including indigenous and migrant women).
 

 Cover all forms of violence, the various settings in which it takes place and perpetrators involved (family members, intimate partners ­– including couples not living together and same sex relationships, community members, state authorities, armed forces, etc).
 

 Contain comprehensive prevention, protection and integrated support to survivors (health, legal, employment, housing, financial assistance) alongside prosecution and conviction of perpetrators. This could include laws that mandate police to inform survivors of rape about their options for a legal abortion.
 

 Amend any related legal provisions (related to family or property law, social security, immigration, etc) to uphold women’s human rights and gender equality throughout the legal framework. For example, this includes eliminating provisions that remove criminal sanctions in rape cases if the perpetrator agrees to marry the woman or girl survivor. (Bott, et al., 2005) 

 Mandate the establishment of a national action plan or strategy to address violence against women and girls (including indicators and targets for progress); and where a plan exists, reinforce its role in implementing the legislative framework, including resource allocations. 

Set timelines and establish institutional mechanisms for developing capacities and protocols for relevant officials, toward ensuring the law’s entry into force and execution.

Strengthen the investigation and prosecution of cases by outlining responsibilities of police, prosecutors and court officials and penalties for non-compliance; describing practices for specific police units or women’s courts; and mandating resources for their operation.

Provide guidance for monitoring the implementation of legislation, such as establishing and funding a multi-sectoral oversight and reporting mechanism, as well as a statistical database on all forms of violence against women and interventions to address it. Ongoing independent institutional oversight mechanisms, such as ombudspersons, a national rapporteur or gender equality machinery can promote enforcement of laws once they are enacted.

Prevent impunity for crimes by: promoting arrest and prosecution; prohibiting mediation at any point in the legal process; making provisions for free legal aid for survivors of violence throughout court proceedings; ensuring survivors have control over the legal process and their rights are upheld (in testifying, during collection and submission of forensic evidence, removing discriminatory provisions related to sexual violence, etc), among other actions.

Develop protocols for the issuance of protection orders; establish sentencing guidelines which correspond to the gravity of crimes; address repeat and aggravated offenses; abolish exceptions and reduced sentencing; and describe the application of fines and restitutions to ensure standardized penalty procedures and results throughout the country’s judicial system.

Recognize the validity of both customary and formal justice systems and prioritize the survivor’s human rights in cases where the two systems call for contradictory measures.

Ensure survivors of violence are protected by and are able to utilize family, constitutional, civil and criminal law, and other legal remedies available, toward perpetrators as well as others negligent in protecting survivors (including intimate partners, state officials, etc.)

Recognize violence against women as persecution and survivors of gender-based violence as a particular social group in regards to asylum law. (UNDAW, 2008)

Lessons Learned:

  • Changes made in one part of the legislation need to be made consistent across other parts of the legislative framework, otherwise contradictory provisions can result in an ineffective application of the law and judicial decisions that do not uphold survivor’s rights.
  • Though criminalization of all forms of violence is imperative, other remedies (e.g. civil) are also important for a survivor-centred approach and proceedings in one case should not preclude filing a case in the other.
  • Legislation cannot be effectively implemented without an adequate budget and resource allocation.
  • Where the law provides for perpetrator programmes, there must be a strong monitoring mechanism, a capable police response and criminal recourse for discontinuation and reoffending, so that the survivor does not face further harm.
  • Aggressive restraining order and arrest policies provide the survivor with immediate protection from the abuser, but have been known to backfire in some cases deterring women from reporting abuse. These cases include for example, when a woman (and her children) is dependent on a man economically and lacks an alternative means of survival or when a woman is more immediately concerned with stopping the abuse by her intimate partner than having him removed and/or barred from being around her.
  • Training of judges and prosecutors on gender in addition to the law is essential for effective execution of the law. It is not uncommon for judicial actors (who possess some of the same traditional socio-cultural beliefs as the societies that they are part of) to shy away from proceeding with cases on violence against women and girls where the penalties for perpetrators are viewed as excessive.
To learn more about drafting, advocating for, implementing and monitoring legislation, see the Legislation Module.

Additional Resources: To search and view existing legislation on violence against women and girls by country, see:

The Secretary-General’s Database on Violence against Women

The World Legal Information Network

Global Legal Information Network

Human Rights Information and Documentation Systems

Human Rights Tools

Universal Human Rights Index

Legislation Online

Institute for Law and Justice

Bora Laskin Library for Human Rights

American Bar Association Section of International Law