Definition of Maltreatment of Widows
Drafters should recognize that the maltreatment of widows encompasses various types of human rights violations. Widows face maltreatment that includes domestic violence, sexual assault, forced marriage, trafficking, property grabbing, conversion of property, forced evictions, as well as discrimination against women in regard to marriage, its dissolution and divorce, property and land rights, children and inheritance. Civil and criminal laws must address and prohibit all of these forms, protect the rights of women and girls, provide a legal remedy, and promote accountability for perpetrators.
Defining Discrimination against Women
Legislation should broadly define discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” (See: Convention on the Elimination of All Forms of Discrimination against Women, Article 1) Legislation should also recognize that widows are entitled to freedom of movement, to access to social, educational or health services, to choose her residence, diet, attire and lifestyle, as well as equality with men in terms of citizenship. (See Model Charter for the Rights of Widows, Art. 4) In addition, legislation should protect widows living with or affected by HIV/AIDS by prohibiting discrimination based on HIV/AIDS in the sale, lease, inheritance or disposition of other property. (See: Canadian HIV/AIDS Legal Network, Respect, Protect and Fulfill: Legislation for Women’s Rights in the Context of HIV/AIDS, Vol. Two: Family and Property Issues, 2009, §5-7)
On September 12, 2010, a constitutional referendum was held in Turkey, and the results are codified in Law 5982
. Several amendments to Turkey’s 1982 Constitution were approved, including to Article 10, “Equality Before the Law.” The revised Article 10 clarifies that measures taken to ensure the equality of men and women “shall not be interpreted as contrary to the principle of equality.” This change removes an important barrier to the passage of legislation focused specifically on women, namely the argument that such legislation is discriminatory on its face because of its gender-based focus.
Specific Forms of Discrimination against women and widows
Discrimination against Women with Respect to Marriage
- Legislation should guarantee women equal rights and responsibilities in marriage with men, irrespective of the form of family or the religion, custom, tradition or legal system under which it is established. Drafters should realize that discrimination against women in marriage encompasses several issues, including their civil status, ability to enter a marriage of their own choosing, legal capacity to own and administer property, right to inherit, right to maintain or change nationality, and rights and responsibilities with regard to their children. Legislation should address and prohibit discrimination in all of these areas to promote and protect the rights of widows.
- Legislation should require the free and full consent of both parties to enter into a marriage and fully protect a woman’s right to choose, when, if and who she marries. (See: Forced and Child Marriage). Legislation should provide the same legal protections of equality of status between parties in de facto marriages, customary and non-formal marriages as those conferred upon parties in formal civil marriages. CEDAW Gen. Rec. Nos. 21, 29. Legislation should state that both parents have the same rights and responsibilities for the care, maintenance and protection of children. See: Section on Discrimination against Women with Respect to Children.
- Drafters should repeal laws and prohibit practices that disallow women from entering into contracts; disallow women from accessing financial credit or preconditioning their access on male consent or guarantee; restrict a woman from holding property as the sole owner; disallow women from administering their own business; limit a woman’s right to effectively realizing or retaining her right to shared property with a man; limiting a woman’s right to seek a remedy before the courts; assigning a woman’s testimony or evidence lesser weight than a man’s before the law, and; restricting women’s right to choose her domicile on the same basis as men. Laws should prohibit laws and practices that allow polygamous marriages. (See: Polygamous Marriages in Forced and Child Marriage Section)
- Legislation should ensure that women enjoy the same right to own, manage, use and dispose of property. Specifically, laws should protect women’s right to own, administer and dispose of equal shares of property during marriage and at its dissolution. Drafters should repeal or amend laws that grant males a larger share of property at the dissolution of a marriage or upon a spouse’s death. Upon division or distribution of joint marital property, legislation should accord equitable weight to monetary and non-monetary contributions, including unpaid domestic labor or agricultural work, to that property. Finally, legislation should ensure that women have an equal right as men to be beneficiaries of agrarian reforms and land redistribution schemes. (See: Section on Discrimination against Women in Land and Property Rights).
- Legislation should ensure that wives and husbands are entitled to inherit on an equal basis, including in equal shares and equal rank in the line of succession, upon the death of the spouse. Drafters should repeal any laws that prevent women from inheriting on an equal basis as men or that grant restricted rights of inherited property to a woman. (See: Section on Discrimination against Women in Inheritance).
- Legislation should make modified or partial community of property the default legal regime with regard to marital property. (See: Section on Marital Property Systems)
(See: CEDAW, General Recommendation 21, Equality in Marriage and Family Relations)
The Legal Capacity of Married Persons Act 9 of 2006 in Lesotho abolished multiple discriminatory practices that had been placed on women in marriage. Specifically, the law repealed the notion of “marital power”, which granted husbands power to control his wife’s actions:
Part II. (3) The following restrictions which the marital power places on the legal capacity of a wife are removed
(a) entering into a contact;
(b) suing or being sued;
(c) registering immovable property in her name;
(d) acting as an executrix of a deceased’s estate;
(e) acting as a trustee of an estate;
(f) acting as a director of a company:
(g) binding herself as surety; and
(h) performing any other act which was restricted by any law due to the marital power before the commencement of this Act.
The law specifically made the repeal of marital power applicable to common law marriages and customary marriages.
CASE STUDY – Discrimination in Respect to Citizenship and Residence Laws
To ensure full equality for women and men in marriage, legislation should recognize that widows are entitled to freedom of movement, to choose her residence, as well as equality with men in terms of citizenship. (See Widows for Peace Through Democracy, Model Charter for the Rights of Widows, Art. 4) The rights of women and widows to citizenship has been an issue around the world. Kenya’s Constitution 2010 specifies that “citizenship is not lost through marriage or the dissolution of a marriage.” (Art. 13(3))
In The Attorney General of the Republic of Botswana v. Unity Dow, 103. I.L.R. 128 (Bots. Ct. App. 1992), the plaintiff Unity Dow, a female citizen of Botswana, successfully challenged the legitimacy of Botswana's Citizenship Act on the constitutional ground that the Act unlawfully discriminated against her on the basis of her gender. Under Botswana's Citizenship law, citizenship was denied to the children of a female citizen married to a foreigner. The court of original jurisdiction found, and the appellate court upheld, that the Citizenship Act in this respect unconstitutionally discriminated against women. Significantly, to make this finding, the court rejected the argument that the absence of gender or sex as protected classes in the Botswana Constitution was an intentional reflection of the patriarchal nature of the society. In reasoning to conclusion on this point, the lower court cited to a variety of cases from around the world, including the United States Supreme Court case South Dakota v. North Carolina, 12 U.S. 268 (1940), in which Justice White wrote that all of a Constitution's provisions “bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purpose of the instrument.”
The United States recently repealed a law that had a negative impact on the immigrant spouses of US citizens. Before the law was changed, immigrant spouses of US citizens could be deported from the United States upon the death of their citizen spouse. The so-called “widow-penalty” was ended in 2010 with passage of new immigration legislation. Watch a video about the impact of the “widow-penalty” in the US.
Discrimination against Women with Respect to Children
- Legislation should state that laws and practices that deny women equal rights and responsibilities with regard to their children constitute discrimination against women. Drafters should repeal laws and prohibit practices that automatically transfer guardianship to someone other than the mother upon the father’s death or dissolution of the marriage. Legislation should prohibit practices that allow a testator to will the guardianship of children to a person not their mother and state that any such provisions that do so are null and void.
- Laws should state that both parents, regardless of marital status, share equal rights and responsibilities for their children, including with regard to their guardianship, wardship and trusteeship. In cases where a child is conceived and born of an act of sexual assault, however, legislation should deny these equal rights, custody, guardianship, wardship and visitation privileges to the biological father who committed the rape.
- Law should state that a child has the right to know and be cared for by his or her parents, and the right to his or her identity, including family relations. Laws addressing the maltreatment of widows should state that a child may not be separated from the mother/widow against her will upon the death of the husband/father.
Discrimination against women in land and property rights
- Legislation should guarantee women equal rights to conclude contracts and to administer property. Specifically, legislation should grant women the independent right to enter a contract and access credit without requiring her husband or male relative’s permission or guarantee. Laws should treat women and men equally in all stages of procedure in courts and tribunals.
- Land reform and redistribution programs should ensure women’s right to be a beneficiary of these schemes on equal terms with men. Legislation should take into account traditional roles and how it may impede women’s access to land in registration systems. Administrative forms that employ the “head of household” concept discriminate against women in practice and should either eliminate this concept or else include other measures to ensure women’s equal access. For example, land redistribution programs that require registration by the household head should ensure that such land is titled jointly in both spouses’ names, even if only one spouse registers.
Tool: Women, Business and the Law – Using Property is a World Bank database of legal information on women’s access to and use of property by country, including the marital property regime, the joint titling regime and any applicable presumption of joint titling, inheritance rights, as well as women’s rights over moveable and immovable property. Data is available for most countries in the world.
Discrimination against women in inheritance
- Legislation should state that men and women in the same degree of relationship to a deceased are entitled to equal shares in the estate and to equal rank in the order of succession. Legislation should extend this equality of status in inheritance to intestacy cases. Drafters should repeal laws and prohibit practices that discriminate against women and girls in inheritance, including: disallowing females to inherit from their husbands or fathers, preventing women and girls from inheriting equal shares or on an equal rank as males, disallowing them from executing a will, curtailing the full inheritance rights of female heirs to only limited or controlled rights or only income from the deceased's property.
(See: CEDAW, General Recommendation 21, Equality in Marriage and Family Relations.)
Definition of Criminal Sexual Assault
- The definition of sexual assault should state that:
1) A person who, without a person’s consent –
(a) touches, with any part of his body, the sexual parts of that other person; or
(b) compels another person to touch, with any part of this body, the sexual parts of the accused person’s own body, is guilty of a crime of sexual assault. Sec. 349
Offences against Sexual Integrity; Sexual assault
ARTICLE 102– (1) The perpetrator who violates the physical integrity of another person by means of sexual conduct shall be imprisoned for a term of two to seven years upon the complaint of the victim.
(2) Where the act is committed by means of inserting an organ or a similar object to the body, the perpetrator shall be imprisoned for a term of seven to twelve years.”
See the Sexual Assault section of this module for more information.
- Sexual contact obtained without consent is often obtained not only through force, but also through coercion. Coercion can cover a wide range of behaviors, including intimidation, manipulation, threats of negative treatment (withholding a needed service or benefit), and blackmail. (See Sexual Assault, Stop VAW).
- Legislation should explicitly define “widow cleansing” as a form of sexual assault, or nonconsensual sexual contact. In widow cleansing, community expectations and pressure may coerce a widow to have sex with a cleanser or her husband’s relative to cleanse her of her deceased husband’s spirit. Drafters should ensure that laws prohibiting sexual assault are applicable to the offense of widow cleansing. Drafters should take all appropriate measures to ensure that customary practices and laws do not authorize or condone “widow cleansing” and that perpetrators are punished.
- Widow cleansing is deeply embedded cultural practice in some African communities. Watch a video about changing laws and harmful practices such as widow cleansing in Malawi.
- Drafters should also ensure that marital rape, including rape in levirate and sororate marriages, is a punishable crime. (See: Marital and Intimate Partner Sexual Assault, StopVAW) Levirate marriage is the forced marriage of a widow to the brother of her deceased husband; sororate marriage is the forced marriage of the sister of a deceased or infertile wife to marry or have sex with her brother-in-law, the widower/husband. (See: Section on Criminal Laws)
Case Study: Brunei
The Brunei Penal Code previously prevented police from taking action in cases where women report rape by their spouse; Section 375 of this code states that sexual intercourse with one’s wife is not rape if the woman is over 13 years of age. The Attorney General’s Chamber of Brunei has indicated that it currently has no plans to amend this section of the Penal Code; however, two new acts that have recently passed may provide some protection against sexual assault within marriage.
The Islamic Family Law Order 2010 and Married Women Act Order 2010 both define sexual assault as a form of domestic violence. The language of these orders makes clear that causing hurt to a family member or forcing them to engage in an act which results in harm are considered domestic abuse.
The punishment for breaching the protection order is a fine not exceeding $2,000 or imprisonment not exceeding six months, or both. Compensation may also be awarded to a victim taking into account the degree of the physical and mental harm suffered.
Research indicates that marital rape has significant consequences. Women who are raped by their partners are more likely to experience multiple assaults and completed sexual attacks. In addition, marital rape victims often suffer severe psychological consequences as a result of being assaulted by someone they presumably loved and trusted.
Critics of the new orders argue that they do not go far enough in providing protection. The laws do not refer to the crime as rape, but rather as sexual intercourse, and cases prosecuted under the new orders can only be brought to the Magistrate’s Court. There is no minimum sentence set forth by the law, meaning that a spouse found guilty could receive as little as a day in jail if convicted.
See: StopVAW, Brunei: Amendments May Provide Legal Recourse for Marital Rape Victims, The Advocates for Human Rights (2010).
Definition of Domestic Violence
- Legislation should include a broad definition of domestic violence that includes physical, sexual, psychological and economic violence. In 2008, a group of experts at meetings convened by the United Nations recommended that “any definition of domestic violence that includes psychological and/or economic violence is enforced in a gender-sensitive and appropriate manner. Legislation should include the following provision in a definition of domestic violence: “No marriage or other relationship shall constitute a defence to a charge of sexual domestic violence under this legislation.” (See: UN Handbook, 184.108.40.206)
- Drafters should strive to make the scope of persons to be protected by a domestic violence law clear and reflective of current reality and the dynamics of widow maltreatment. The scope of domestic violence legislation has, in many countries, been expanded to include not only married couples but those who are or have been in intimate relationships, as well as family members and members of the same household. (See: UN Handbook, 220.127.116.11) Legislation protecting widows from domestic violence should ensure that the scope of persons includes widows’ in-laws, including parents, siblings, aunts, uncles and cousins of the deceased, as well as any other heirs of the deceased under intestacy or customary laws.
See the Domestic Violence section of this module for more information.
Definition of Trafficking
Legislation should prohibit the trafficking of widows into forms of exploitation, such as prostitution or forced marriage, and punish perpetrators. Drafters should define sex trafficking to include:
- The acts of: recruitment, receipt, enticement, harboring, obtaining, providing, transferring, or transportation of persons;
- The means of:
- By any means (recognizing that no one can consent to being trafficked for the purpose of sexual exploitation); or
- By one of the following means to achieve the consent of a person having control over another person, for the purpose of exploitation (except where the trafficking victims are under age 18 in which case drafters should ensure that the means element of the definition of sex trafficking in not required):
- Threats or use of force; or
- Other forms of coercion, of abduction, of fraud, of deception; the abuse of power or a position of vulnerability; or
- The giving or receiving of payments or benefits to achieve the consent of a person having control over another person; AND
- The purpose of: Sexual exploitation, which must include at a minimum, the exploitation of the prostitution of others. (See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, Article 3(a))
- Drafters should ensure that the means element of the definition of sex trafficking is not a required element for the sex trafficking of children, where a child or children is defined as any person under the age of 18. (See the Sex Trafficking of Women and Girls section of this module for more information)
Definition of Forced Marriage
- When constructing the definition of forced marriage, drafters should consider how to define and establish consent in forced marriages. Drafters may look to other states’ laws, which have used terms, such as “free,” “full,” “mutual,” “voluntary,” and “informed,” to describe consent. Laws should include the following elements in a definition of consent: free, informed, and not extracted under pressure or vitiated by external factors, such as constraint. Drafters may wish to include legal commentary explaining that consent is absent when family members use “coercive methods such as pressure of various kinds, emotional blackmail, physical duress, violence, abduction, confinement and confiscation of official papers” in an arranged marriage, thus denying one or both parties the option of refusal. (See: Explanatory memorandum, Council of Europe Parliamentary Assembly, Section II.A.1.b.16-17, 2005)
- Legislation should state that levirate and sororate marriages, which require a woman to marry her brother-in-law, constitute forced marriage and are prohibited. Levirate marriage is the forced marriage of a widow to the brother of her deceased husband; sororate marriage is the forced marriage of the sister of a deceased or infertile wife to marry or have sex with her brother-in-law, the widower/husband. Legislation should also address and prohibit polygamous marriages under the rubric of forced marriage.
(See: Forced and Child Marriage)
Definition of Forced Evictions
Legislation should prohibit the forced eviction of widows and their children. A definition of forced eviction should include the following basic elements:
- involuntary removal of a widow or the widow and her children from the marital residence or land;
- using either force or coercion;
- without access to appropriate forms of legal or other protection.
The Office of the High Commissioner for Human Rights Fact Sheet No. 25 defines forced eviction as:
“the involuntary removal of persons from their homes or land, directly or indirectly attributable to the State. It entails the effective elimination of the possibility of an individual or group living in a particular house, residence or place, and the assisted (in the case of resettlement) or unassisted (without resettlement) movement of evicted persons or groups to other areas.”
The Centre on Housing Rights and Evictions (COHRE) further describes “forced eviction” as:
“The permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. Forced Evictions are a particular type of Displacement which are most often characterized by (1) a relation to specific decisions, legislation, or policies of States or the failure of States to intervene to halt evictions by non-state actors; (2) an element of force or coercion; and (3) are often planned, formulated, and announced prior to being carried out. The UN Committee on Economic, Social and Cultural Rights has stated that "forced eviction are prima facie incompatible with the requirements of the [International Covenant on Economic, Social and Cultural Rights] and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.” See: Committees General Comment No. 7 and OHCHR Fact Sheet No. 25: Forced Evictions and Human Rights. COHRE also notes that the “arbitrary deprivation of women’s housing, land and property—when it is a result of gender-biased norms, policies and practices which negatively affect women” must fall within the state’s obligation to protect all people from forced eviction. This is particularly important because the forced eviction of individual women is often invisible against the more visible, mass scale evictions. See: Centre on Housing Rights and Evictions, Shelter from the Storm: Women’s Housing Rights and the Struggle against HIV/AIDS in Sub-Saharan Africa, 2009.
(See also: OHCHR Fact Sheet No. 25: Forced Evictions and Human Rights; COHRE, Guidelines on Gender-Sensitive Approaches and Alternatives to Evictions (2010), Fact Sheet No. 3: Women and Forced Evictions)
- Drafters should take into account that the marital home may be titled under the deceased’s name, and customary or religious systems may transfer ownership of the home to the deceased’s relatives. In these and intestacy cases, legislation should guarantee the widow’s right to remain in the home with her children as a life interest and state that her remarriage does not terminate this right. Legislation should prohibit a testator from willing the marital home to another when survived by his spouse; any such provision should be construed as null and void.
Definition of Property Grabbing and Adverse Possession
- Legislation should define and address property grabbing perpetrated against a widow by her in-laws and/or other community members. Drafters should either adopt a specific and comprehensive offense for property grabbing or address it through other related offenses. A specific offense of property grabbing should define it as the taking of property of a deceased person from the surviving wife and/or children to whom it stands to be distributed pursuant to inheritance. Such property may include the marital home, land, and any other moveable or non-moveable property. Other related offenses include theft, embezzlement or conversion, unauthorized use, and criminal trespass, as well as attempts thereof. Legislation should also address the physical violence or threats that may accompany property grabbing. See: Section on Criminal Laws.
- Laws addressing property grabbing from widows should define theft as the taking of moveable or non-moveable property from a widow’s possession before proper distribution of the deceased’s estate. Legislation should outline aggravating factors in theft, such as where the property taken is valuable or important to a widow’s livelihood, the taking causes significant loss to the widow in light of her circumstances, the perpetrator takes advantage of the victim’s status as a widow or other vulnerability such as HIV status, the perpetrator carries out the taking using a dangerous weapon or threats to the widow and her family, or the taking involves a break-in to the widow’s occupied residence.
- Laws addressing property grabbing from widows should define embezzlement or corruption as the taking of assets or moveable property from the widow which are in the in-laws’ possession. Legislation should outline aggravating factors, such as where the property or assets are valuable or important to a widow’s livelihood, the offense causes significant loss to the widow in light of her circumstances, and the perpetrator takes advantage of his position of particular responsibility, including as an executor of the will.
- Legislation addressing property grabbing from widows should define unauthorized use as the use of moveable and non-moveable property of the widow without her freely given permission. Aggravating factors should include the perpetrator’s use of the property to seek significant monetary benefit or significant loss or inconvenience to the victim.
- Legislation addressing property grabbing from widows should define criminal trespass as taking possession of, moving or hiding moveable property that is in the widow’s possession, the use of land in the widow’s possession without her freely given permission such as by farming, excavating, burying humans or animals, grazing animals, or taking possession of land or building that is in the widow’s possession.
- Legislation addressing property grabbing from widows should provide for a civil cause of action against the perpetrators of such property grabbing for return of the property, for value if it has been destroyed, and for damages. (See Respect, Protect and Fulfill: Legislating for Women’s Rights in the Context of HIV/AIDS, Volume Two: Family and Property Issues, Article 48)
Legislation should also address other insidious forms of property grabbing, such as adverse possession tactics. Legislation should describe adverse possession as an act by which one party possesses the land of another until she or he can claim legal title to it. Generally, the elements may require possession to be real, open, notorious, exclusive, hostile, under the guise of a claim or right, continuous and uninterrupted for a specific time period. Drafters should ensure that a definition is sufficiently broad to encompass different adverse possession tactics. For example, the deceased’s relatives may plant crops on the fringe of a widow’s land to shift boundaries which may constitute an attempt to adversely possess a portion of her land.