Domestic Violence

Legislation should state the penalties for all acts of domestic violence, including those involving low-level injuries. Widows may be vulnerable to domestic violence by in-laws and other relatives for various reasons, such as economic hardship due to discriminatory inheritance laws, lack of housing or shelter, patriarchal notions that discriminate against women, and a lack of legal protections. For example, in-laws may resort to violence and other harassment as a tactic to evict the widow from the marital home or intimidate from her asserting her rights. Legislation should prohibit payment of bride price or other customary traditions that grant deceased spouse’s relatives ownership over the deceased’s home or property as defenses to charges of domestic violence. Criminal penalties should be increased for repeated domestic violence offenses, even if they involve low-level injury. (See: Family Violence:  A Model State Code, Sec. 203) Legislation should specify that penalties for crimes involving domestic violence should be more severe than similar non-domestic violence-related crimes. Legislation should include guidelines for appropriate sentences for domestic violence-related offenses. Legislation should provide that sentencing guidelines reflect the gravity of the offense. Legislation should provide that sentencing be enhanced for repeat offenses, including repeated violations of orders for protection.

(See: Domestic Violence)

Trafficking

Drafters should criminalize the offence of sex trafficking. Widows may be vulnerable to trafficking because of a number of factors, such as financial hardship and lack of housing, shelter or viable economic opportunities. Also, women who are victims of violence are susceptible to being trafficked as they leave an abusive home to find work. (See: Factors That Contribute to Trafficking in Women, StopVAW, The Advocates for Human Rights) Drafters should criminalize attempts to commit sex trafficking, aiding and abetting sex trafficking, the unlawful use of documents in furtherance of sex trafficking, and unlawful disclosure of the identity of victims or witnesses; and create accomplice liability for sex trafficking.  Drafters should ensure that the penalties for sex trafficking address aggravating circumstances and punishment for public officials involvement and complicity in sex trafficking and related exploitation. (See: UN Trafficking Protocol, Arts. 3 and 5)

Criminal provisions addressing the following should be included in legislation to combat sex trafficking:

• Criminal sex trafficking offences by traffickers and buyers
• Attempted sex trafficking offences (those who attempt sex trafficking should be held accountable in line with the offence of “attempt” of other serious crimes)
• Aiding and abetting (those who assist and participate in the sex trafficking of others should be held accountable in line with the offence of “aiding and abetting” other serious offences)
• Accomplice liability for sex trafficking
• Organizing and directing others to commit sex trafficking offences
• Unlawful use of documents in furtherance of sex trafficking
• Unlawful disclosure of the identity of victims or witnesses
• Aggravating circumstances for sex trafficking offences
• Punishment for public officials involvement and complicity in trafficking and related exploitation

(See: UN Trafficking Protocol, Art.5; UNODC Model Law Against Trafficking in Persons, Chapters V and VII, 2009; See: UN Recommended Principles and Guidelines on Human Rights and Human Trafficking, Guideline 4(10); UNHCR Guidelines on International Protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked, Section II(d)(21-24), 9-10, 2008.)

Drafters should ensure that criminalization of sex trafficking and sex trafficking-related offences do not inadvertently penalize trafficking victims for crimes committed as a result of being trafficked. Drafters should affirmatively protect trafficking victims from being arrested, charged, detained and convicted of such crimes.  Without such protections, the human rights of trafficking victims cannot be protected. Furthermore, trafficking victims will be reluctant if not unwilling to participate in the prosecution of their traffickers without such protections because they fear retaliation, harm and death.  Without prosecutions and convictions of sex traffickers, there will be no deterrents for this crime and no message to the community about its heinous and criminal nature.

(See: Sex Trafficking of Women and Girls)

Forced Marriage

Legislation should criminalize forced marriage and all the forms it may assume, including child marriage, levirate marriage, sororate marriage and widow inheritance. Criminal laws should specifically prohibit any institution or practice where a widow may be inherited by another person or where a sister is forced to marry her brother-in-law or other relative. Legislation should define forced marriage broadly, including free and full consent provisions. Legislation should punish those who perpetrate, aid or authorize these types of forced marriages. (See: Forced and Child Marriage)

Criminal laws should grade the crime of forced marriage based on harm to the victim and aggravating factors. Aggravating factors may include offenses that accompany or are used to effect the forced marriage, such as kidnapping, child abduction, false imprisonment, assault, battery, threats of violence or death, breach of the peace or conduct that disrupts the public order, harassment, child abuse, rape, sexual crimes, blackmail, and violations of protection orders. Drafters should ensure these offenses also constitute offenses under the criminal code.

Drafters should ensure that such criminal laws supersede customary laws that allow for widows to be inherited by her husband’s brother or other male relative.

Child Abduction and Kidnapping

Legislation should criminalize the wrongful removal of a child from his biological mother/widow upon her husband’s death. Legislation should criminalize the harmful practice where a deceased’s relatives remove a widow’s children from her care. Provisions on child abduction, kidnapping, interference with family relations, or other conduct concerning a child, should explicitly prohibit this practice. Drafters should ensure that such criminal laws supersede customary laws and practices that presume the charge and custody of the children is with the patrilineal relatives, not the biological mother.

Criminal legislation should reference civil laws stating that removal of the child from the parent is wrongful unless a determination is made in accordance with law and procedures by a competent authority that the child’s best interests dictate so, subject to judicial review by a recognized court of law. Drafters should ensure legislation compels the immediate return of a child wrongfully removed from the mother. Legislation should allow a judge to issue a criminal no contact order against the abductors where a judicial determination has found it to be in the best interests of the child. 

Femicides and “Honour” Killings

Drafters should recognize that murder is another form of widow maltreatment and should criminalize it accordingly. For example, legislation should prohibit and punish witch hunting, an offense often directed at widows. Witch hunting involves the accusation of individuals, often elderly women, of practicing witch craft when others fall ill or die. Witchcraft, however, may often be a pretense for the perpetrators’ personal gain. Such perpetrators use vigilante violence to torture and kill so-called “witches,” thus removing these women from the line of inheritance, or from the home or land. Legislation should impose penalties for these murders that are commensurate with other first-degree murders.

Legislation should list aggravating factors that increase the sentence, such as committing murder for financial gain, committing murder as witch hunting, vulnerability of the victim due to old age or widow status, the murder was carried out in a particularly heinous way that inflicted torture or serious physical abuse to the victim, the murder was committed after substantial planning or premeditation, and a prior criminal history of the perpetrator.

Drafters should create a separate criminal offense of “honour” crimes and “honour” killings. Drafters should ensure that crimes of “honour” are non-compoundable offenses: they should be prosecuted regardless of whether the victim or her family have withdrawn the complaint or whether the parties have reached a private settlement. Penalties for “honour” crimes and killings should be reflective of the seriousness of the crime and commensurate with other similar offenses. (See: sub-section on Sentencing Provisions in Section on “Honour” Crimes)