Overview and protection orders
Regardless of whether a harmful practice is criminalized, legislation addressing harmful practices should take a comprehensive human rights-based approach. Legislation should include not only criminalization and punishment of the perpetrator, but also “prevention, empowerment, support and protection of the survivor, and mechanisms to ensure its effective implementation” (See: Good Practices on Harmful Practices Expert Group Report, citing Good Practices in Legislation to Address Violence Against Women, Report of the Expert Group Meeting)
In order to ensure that harmful practices are not just punished but also prevented, legislation should create alternative civil protections and remedies.
- Legislation should include a civil order-for-protection remedy, including an emergency ex parte protection order, for victims under a threat of a harmful practice.
- Legislation should criminalize violations of protection orders.
- Legislation should require a woman’s consent to a petition that has been filed by a third party on behalf of an adult woman, with the exception of when a victim is unable to file a petition herself, due to certain circumstances, such as being falsely imprisoned, in another country, or a vulnerable adult.
- Legislation should allow for third party petitions on behalf of a child only with court permission or appointment of a guardian ad litem.
(See: “Sample Orders for Protection”, The Advocates for Human Rights, Stop VAW, for information on orders for protection in domestic violence cases. See also: Domestic Violence Section and Forced and Child Marriage Section; Forced Marriage (Civil Protection) Act 2007 Relevant Third Party, Newham Asian Women’s Project, 2008)
- Drafters should also allow for an individual to seek judicial intervention to avoid undergoing an impending harmful practice.
For example, in Uganda, a country which does not have a criminal penalty for the practice of FGM, a girl upon whom FGM was to be completed successfully obtained intervention of a court to prevent the FGM. Female Genital Mutilation: A Guide to Laws and Policies Worldwide, Anika Rahman and Nahid Toubia, citing Dr. Josepine Kasolo, Safe Motherhood Initiative in Uganda, Questionnaire (undated, Spring 1998).