- Legislation should allow complainants/survivors to bring civil lawsuits against family member perpetrators irrespective of criminal charges. See: UN Handbook 3.12.1; UN Model Framework, VI; and law of Ghana,Sec. 27.
- Legislation should allow complainant/survivors to bring civil lawsuits against individuals or state entities that have not prevented, investigated or punished acts of domestic violence. See Gonzales v. US; and UN Handbook 3.12.2.
In Gonzales v. US (2007), the Inter-American Commission on Human Rights (IACHR) declared the case admissible for a merits hearing because the plaintiff had exhausted all of her legal remedies under United States law, and the American Declaration on the Rights and Duties of Man required the United States to protect domestic violence victims from private acts of violence. A merits hearing was held on 22 October 2008 in Washington, D.C., a year after the admissibility decision.
In July 2011, the IACHR issued its landmark decision finding the United States responsible for violating the human rights of the petitioner and her three deceased children. The IACHR concluded its decision by making recommendations to the United States, including the following:
2. Conduct a serious, impartial and exhaustive investigation into systemic failures that took place related to the enforcement of Jessica Lenahan’s protection order as a guarantee of their nonrepetition, including performing an inquiry to determine the responsibilities of public officials for violating state and/or federal laws, and holding those responsible accountable.
3. Offer full reparations to Jessica Lenahan and her next-of-kin considering their perspective and specific needs.
4. Adopt multifaceted legislation at the federal and state levels, or to reform existing legislation, making mandatory the enforcement of protection orders and other precautionary measures to protect women from imminent acts of violence, and to create effective implementation mechanisms. These measures should be accompanied by adequate resources destined to foster their implementation; regulations to ensure their enforcement; training programs for the law enforcement and justice system officials who will participate in their execution; and the design of model protocols and directives that can be followed by police departments throughout the country.
Legislation on violence against women should provide safety, aid, and empowerment for survivors through criminal and civil provisions which include a broad range of remedies and reparations for women who have been subjected to violence.
In 2012, the Human Rights Council conducted a panel discussion on women’s human rights including the theme of remedies and reparations for women subjected to violence. A Summary of the Human Rights Council panel discussion on the theme of remedies for women subjected to violence: Report of the Office of the United Nations High Commissioner for Human Rights sets forth some general principles, challenges, and Examples, in providing effective, prompt, just, transformative, and culturally sensitive reparations for women who have been subjected to violence in different contexts. The following summary of points made during the panel discussion may guide creation of reparations programs:
- It is the obligation of States to ensure that women victims of violence have full access to justice, including reparations.
- Reparations encompass compensation, restitution, rehabilitation, measures of satisfaction, and guarantees of non-repetition.
- Victims must be adequately informed of their rights to reparations.
- The reparation process should ”allow for women and girls to come forward when they are ready and the registration process should take into account obstacles women may face if displacement is necessary or other costs are implicated.”
- The reparation process “must not expose women to further harm, stigmatization and ostracism and should take into account their safety and best interest at all times, including by ensuring confidentiality and avoiding public disclosure of violations suffered.”
- The reparation process should ensure eligibility standards for reparations are inclusive, avoid re-victimization, and are aware of obstacles and challenges victims of certain crimes may face.
- The reparation process should ensure meaningful participation by the victim in the design and delivery of reparations. “Only women and girls themselves could determine what forms of reparation were best suited to their situation, what was culturally appropriate and did not expose them to further harm and victimization, what could lead to reconciliation, and what had the potential to address the underlying causes that exposed them to violence in the first place.”
- Generic compensation schemes that do not have a requirement of prosecution or conviction provide a positive avenue through which women who experience violence can claim compensation. This is especially significant given the low number of convictions in various areas.
- Remedies and reparations programs should also be created in post-conflict settings.
- In traditional and informal justice processes care should be taken to monitor customary dispute-resolution mechanisms as well as differences in outcomes that exist between decisions at the formal judicial level and the non-formal process that fail to protect women’s rights.
- In developing reparation policies and programs, there is a call for “substantive participation of women who have been subjected to violence and civil society actors, such as women’s groups and community leaders, alongside men and boys, to ensure a holistic concept of remedies and reparations.”
- Effort should be made to ensure remedies and reparations “are specific to individual circumstances and culture in order to prevent discrimination, stigmatization, and re-victimization of victims of violence.”