Private settlements and victim compensation
- Laws should ensure that practices allowing an offender to pay the victim or her family compensation in return for forgiveness or other harmful dispute resolution practices, such as payback rape, do not apply when the victim and the perpetrator are from the same family and do not preclude state prosecution. To give effect to this principle, drafters should ensure that laws require a full investigation and prosecution of “honour” crimes and killings regardless of any settlements that the victim, her family and the offenders have reached. Laws should place responsibility for prosecuting “honour” crimes and killings with the prosecutor and not with the victim or her family. (See: UN Handbook for Legislation on Violence against Women, p. 36) Laws should require pro-arrest and pro-prosecution policies where probable cause exists in “honour” crimes and killings, and these policies should apply irrespective of any private settlement or forgiveness reached between the victim’s family and the perpetrator. (See: UN Handbook for Legislation on Violence against Women, p. 37) Laws should state that “honour” crimes and killings are non-compoundable offenses, of which prosecution cannot be compromised. (See: Good Practices in Legislation on “Harmful Practices” against Women, UN Division for the Advancement of Women, May 26-29, 2009, p. 31; Section on Roles and Responsibilities of Prosecutors)
- To prevent perpetrators of “honour” killings from benefiting financially from their crime, drafters should ensure that inheritance laws prohibit perpetrators (including those who aided, abetted, incited, authorized, or were otherwise involved in the “honour” killing) from inheriting or otherwise receiving property from the victim upon her death.
- Drafters should take steps to address the issue of victim compensation. Laws should allow criminal sentences to include an order of compensation and restitution from the perpetrator to the victim or her heirs--excluding from such heirs any perpetrators or accomplices to the “honour” crime or killing;. Such compensation should cover the victim’s medical costs, pain and suffering, legal costs, counseling, loss of income, and the like. Laws should also clearly state that while compensation is a punitive element in violence against women cases, it does not substitute for other punishments, such as imprisonment, and; should make provision for a state-sponsored compensation program. (See: UN Handbook for Legislation on Violence against Women, p. 5952-53) In cases where the offender cannot pay the victim compensation, laws should provide for state-sponsored or other compensation for victims who have sustained significant bodily injury or impairment of physical or mental health as a result of the “honour” crime. (See: United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, ¶¶ 12-13) This may require the establishment of a permanent national fund for victim compensation to ensure that adequate funds are available when needed.
Examples The Nigerian draft Violence Prohibition Bill states that a prosecutor may not refuse to initiate a prosecution or drop charges except where the Director of Public Prosecutions has so authorized.
Example: Article 30 of the Council of Europe Convention on preventing and combating violence against women and domestic violence requires parties to “take the necessary legislative or other measures to ensure that victims [of violence against women] have the right to claim compensation from perpetrators.” Article 30 also provides that “[a]dequate State compensation shall be awarded to those who have sustained serious bodily injury or impairment of health, to the extent that the damage is not covered by other sources such as the perpetrator, insurance or State-funded health and social provisions.” Further, Article 30 mandates that parties take measures to ensure that such compensation is provided “within a reasonable time.”
Pakistan’s Qisas and Diyat Ordinance enables the victim or her heirs to forego prosecution in lieu of compensation from the perpetrator. Under the Qisas and Diyat Ordinance, the heirs of a murder victim may choose qisas (retribution); diyat (compensation or compromise), or; complete forgiveness of the victim. Many families choose diyat, or compensation for the victim’s death. In Mahammad Akram Khan v. The State (2001), the Supreme Court ruled that “honour” killings violated Article 9 of the Constitution
, stating that “No person shall be deprived of life or liberty save in accordance with law.” The Court stated that the use of “honour” killings is void under Article 8(1) of the Constitution: “Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.” This law essentially removes the responsibility of prosecution from the government and places accountability in the hands of the victims’ heirs, who may be accomplices to the “honour” killing or under severe economic or social pressure not to bring criminal charges. The Qisas and Diyat Ordinance should not apply to crimes of honour. “Honour” crimes and killings should be made non-compoundable offenses, and drafters should ensure that any compensation laws are not a substitute for criminal prosecution in these cases.
- Also, drafters should repeal any provisions that absolve a rapist or kidnapper if they marry their victims. For example, Egypt has removed provisions that absolve rapists/kidnappers if they marry their victims. Other countries, however, still absolve rapists and kidnappers if they marry their victims.