The legislative preamble sets the stage for the entire piece of legislation. The following elements are important to a strong and inclusive legislative preamble:
See: Council of Europe Recommendation Rec(2002)5; Handbook for legislation on violence against women, available in Arabic; English; French; Mandarin; Spanish; and Russian (hereinafter UN Handbook) 3.1.1; the Model Strategies p. 9, (hereinafter UN Handbook) 3.1.1; and Annex to General Assembly resolution 52/86.
(b) States parties should ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity…”
See a video on the UN Handbook’s model provisions on sexual assault and victim services, click here.
CASE STUDY:New Law passed following “Maze of Injustice” report on the inadequate state response to sexual violence against indigenous women in the United States, .
In 2007, Amnesty International published a report on the state response to sexual violence against indigenous women in the United States. The report found that legislation in the US does not protect indigenous women from domestic violence and sexual assault. The marginalization of indigenous women has resulted in a system that ignores their human rights.
Indigenous women in the United States experience sexual violence at a much higher rate than other US women: more than one in three indigenous women will be raped during their lifetime, compared to one in five women in the US. The report found that this sexual violence is under-reported and when reported, is often not prosecuted. There is evidence that the majority of perpetrators are non-indigenous and that the assaults are committed with a high degree of violence. Victims do not receive adequate assistance, redress and reparations. The report noted that indigenous women experience this violence as a direct result of the discrimination and violence at the root of the indigenous experience in US history.
Indian tribal law is a separate system that interacts with US federal and state laws in a complex manner. These jurisdictional issues have been a substantial barrier to perpetrator prosecution and to an adequate response to victims of sexual assault. And, the US government has limited the effectiveness of the tribal government system by underfunding its operation, by not allowing non-Indian suspects to be prosecuted in the tribal system, and by limiting any sentence a perpetrator receives under the tribal system to one year. Thus indigenous victims of sexual assault do not achieve adequate redress in the US federal or state justice systems or the tribal law system. The report stated:
“Impunity for perpetrators and indifference toward survivors contribute to a climate where sexual violence is seen as normal and inescapable rather than criminal, and where women do not seek justice because they know they will be met with inaction.” p. 9
Key recommendations for the US government include: instituting plans of action to stop sexual violence against indigenous women; recognizing the jurisdiction of tribal courts on tribal land; supporting the development of the tribal courts; and improving the response of law enforcement to reports of sexual violence against indigenous women. (p.12-13)
Responding to the report and continued advocacy by tribal leaders and organizations, Native American and Alaska Native women, the Tribal Law and Order Act of 2010 was passed by Congress in July 2010. The Act includes measures aimed to improve division of responsibility, coordination and communication among Federal, State, tribal, and local law enforcement agencies. Sspecifically, tribal courts can now impose three year sentences, tribal authorities will have access to the federal criminal database, the federal government is now required to report the number of cases it declines, and records of tribal proceedings will now be documented.
See also: A report by Human Rights Watch which found that indigenous women were not only victims of domestic violence and random violence along Highway 16 in British Columbia, Canada, but also subjected to excessive force, strip searches by male officers, and sexual abuse by members of the Royal Canadian Mounted Police. Recommendations included a national plan of action to address historical discrimination and inequalities, training of police, and elimination of protocols allowing searches in all but extraordinary circumstances. Rhoad and Msucati, Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women in Northern British Columbia, Canada (2013).
Many states reflect these principles in their preamble or introductory language in criminal codes.
For example, the Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) (2007) of South Africa includes the following in the preamble to its legislation:
“WHEREAS several international legal instruments, including the United Nations Convention on the Elimination of all Forms of Discrimination Against Women, 1979,
and the United Nations Convention on the Rights of the Child, 1989, place obligations on the Republic towards the combating and, ultimately, eradicating of abuse and violence against women and children; AND WHEREAS the Bill of Rights in the Constitution of the Republic of South Africa, 1996, enshrines the rights of all people in the Republic of South Africa, including the right to equality, the right to privacy, the right to dignity, the right to freedom and security of the person, which incorporates the right to be free from all forms of violence from either public or private sources, and the rights of children and other vulnerable persons to have their best interests considered to be of paramount importance, BE IT THEREFORE ENACTED…”
And, the Criminal Code (2004) of Turkey, in Article 3, “The Principle of Equal Treatment before the Law” states that:
In the implementation of the Penal Code no one shall receive any privilege and there shall be no discrimination against any individual on the basis of their race, language, religion, sect, nationality, colour, gender, political (or other) ideas and thought, philosophical beliefs, ethnic and social background, birth, economic and other social positions. Article 3
The Crimes Act (1958) of Victoria, Australia, has incorporated the following guiding principles into its Crimes Act:
37B. Guiding principles
It is the intention of Parliament that in interpreting and applying Subdivisions (8A) to (8G), courts are to have regard to the fact that-
(a) there is a high incidence of sexual violence within society; and
(b) sexual offences are significantly under-reported; and
(c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and
(d) sexual offenders are commonly known to their victims; and
(e) sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.
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