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Contents of legislative preamble

The legislative preamble sets the stage for the entire piece of legislation. The following elements are important to a strong and inclusive legislative preamble:

  • State that the root cause of violence is the subordinate status of women and girls in society. See: General Recommendation 19, Article 11. The UN Secretary-General’s study on violence against women (2006) states: “The pervasiveness of violence against women across the boundaries of nation, culture, race, class and religion points to its roots in patriarchy- the systemic domination of women by men.” Part III, B 1 para.69.

See: Council of Europe Recommendation Rec(2002)5;  Handbook for legislation on violence against women, (hereinafter UN Handbook) 3.1.1; Model Strategies and Practical Measures on the Elimination of Violence Against Women in the Field of Crime Prevention and Criminal Justice: Resource Manual, p. 9 (hereinafter Model Strategies); and Annex to General Assembly resolution 52/86.

  • Define discrimination against women and girls as a restriction based upon sex which impairs the rights of women and girls. (See: UN Handbook 3.1.1)

(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…”

 

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 USA 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; reduce the prevalence of domestic and sexual violence against Native American and Alaska Native women; prevent substance abuse (drug and alcohol) on Native American territory; and expand and strengthen crime-related data collection and information sharing on among Federal, State, and tribal officials.

 

  • Ensure that a case which has been processed under a religious or customary judicial system may still be brought under the state’s formal justice system. (See: UN Handbook 3.1.5.)

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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