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Review and reform of legislation

Law reform should start with a comprehensive review of laws and their impact on women’s ability to claim justice for violence. Justice sector reform processes should advocate for changing discriminatory laws by including provisions that support the human rights of women and amending provisions which discriminate against women. Specific strategies include:

  • Support the reform of procedural and evidentiary policies and laws which devalue or disallow a woman’s testimony. For example, in some countries, a woman’s testimony is valued less than a man’s testimony and in others two or more men must have witnessed an act of sexual violence against a woman.
  • Defenses such as “honor” and provocation should not be allowed in cases of violence against women.
  • Recognize and account for the context of violence when women use violence against their abusers. Incorporate claims of self-defense and a requirement to discern the primary aggressor.
  • Perpetrators who are under the influence of alcohol or drugs should not be absolved of responsibility in cases of violence against women and girls.
  • Ensure that courts can protect women through orders for protection and restraining orders, and that violation of protective orders is criminalized.
  • Ensure that constitutional protections against discrimination in marriage are codified in statutory law to ensure effective protection of women and girls. For example, divorce or custody laws should comply with constitutional provisions that guarantee equality to women in marriage and family relations.
  • Ensure that courts can address economic concerns of women and girl victims of violence, including maintenance, alimony, and child support. Economic justice is an important foundation for independence from battering.
  • Ensure that reforms address inconsistencies among and within laws.
  • Improve the status and opportunities of girls and women who do not have official identification documents. The lack of such documents creates lifelong problems in claiming such basic rights as education, participation in economic life, participation in political life, and claiming property rights through inheritance.
  • Ensure that reforms address marginalized women such as migrant women who are often subject to violence. Permit access to justice to women independently of their immigration status and do not punish them (e.g. denounce them to the immigration authorities) for coming forward for redress from gender-based violence.
  • Support the reform of inequalities which exist in property and land ownership laws, citizenship laws, inheritance laws, family laws, marriage laws, divorce laws, dissolution, adoption, and employment laws. Laws that codify women’s subordinate status in the community and family are directly related to problems of violence against women.

Turkey – Tougher Sanctions for Violence Against Women and Girls

After a massive campaign waged by civil society organizations in Turkey, the Turkish Penal Code was amended to abolish provisions that legitimized violence against women and girls in 2004. During the reform process, 30 amendments concerning gender equality and women were incorporated into the Penal Code.

Reforms include overarching definitions of sex crimes (i.e. no requirement of penetration), longer sentences for sex crimes, the criminalization of sexual harassment in the workplace, and the criminalization of marital rape. The amendments also prevent perpetrators of so-called “honor killings” from receiving sentence reductions and prevent perpetrators of sexual violence from receiving sentence reductions when they marry their victims. Additionally, terms such as “honor,” “morality,” “chastity,” and “decency” were removed from the Penal Code, as was the idea of “consent” in instances of sexual violence. The Turkish Penal Code reform movement demonstrates that even in tough political environments (a conservative government came to power in 2002) persistent civil society lobbying can lead to changes in laws that legitimize violence against women and girls.

Changes in laws may have unintended consequences for women and girls. In Turkey, the enforcement of full sentences against “honor” killers has caused some deaths to be disguised as suicides and some forced suicides.

 

Sources: Anil, Arin, Hacimirzaoğlu, Bingöllü, İlkkaracan, and Amado. 2005. Turkish Civil and Penal Code Reforms From a Gender Perspective: The Success of Two Nationwide Campaigns and Bilefsky. 2006. How to Avoid Honor Killing in Turkey? Honor Suicide.

 

Egypt – Legal Rights for Women and Children

In Egypt, a significant number of women and children do not have a birth certificate or an identification card, making them ineligible for many social services, including primary education and pensions. A programme was designed to reduce barriers that women and girls face when accessing services and to offer them more opportunities to exercise their human rights. Strategies included: A nation-wide awareness campaign on the need for registration; educating legislative and governmental officials at all levels on the need for procedural and legal reform on registration; targeting assistance to minor girls in poverty-stricken households in obtaining birth certificates and identification cards; and training social service and health workers, other members of civil society, and registry officials on how to teach families about the importance of registering their children and on current registration procedures.

Source: World Bank. 2009. Initiatives in Justice Reform 2009.

 

Bangladesh- Legislating against Acid Violence

Acid attacks involve intentional acts of violence in which perpetrators throw, spray, or pour acid onto victims’ faces and bodies. It is a form of gender-based violence that is prohibited by international law. Legislative reform can play an important role in addressing this devastating form of violence. Laws should be enacted that both appropriately punish the perpetrators and limit the availability of acid. Acid availability is linked to the prevalence of acid attacks and when the sale and use of acid is regulated the rate of acid violence decreases. Bangladesh, Cambodia, and India have the highest rates of recorded acid violence, but of those countries only Bangladesh has implemented laws to curb the easy availability of acid. Since 2002, when those laws and others relating to acid violence were adopted, Bangladesh has seen acid violence drop by fifteen to twenty percent a year. Several other countries—Cambodia, for example—are now considering the adoption of new legislation to more effectively address the problem of acid violence.

 

Source: Avon Global Justice Center for Women and Justice et al., Combating Acid Violence in Bangladesh, India, and Cambodia (2011).

Laws in areas such as commerce, property, and inheritance are directly connected to violence against women due to the effect which resources an economic autonomy have upon independence, decision-making, and status. Poverty can increase the vulnerability of women and girls to violence, and violence against women and girls can contribute to their poverty as for example when girls leave school due to forced marriage or prostitution or women miss/are unable to work due to violence.

Laws in areas such as commerce, property, and inheritance are directly connected to violence against women due to the effect which resources an economic autonomy have upon independence, decision-making, and status. Poverty can increase the vulnerability of women and girls to violence, and violence against women and girls can contribute to their poverty as for example when girls leave school due to forced marriage or prostitution or women miss/are unable to work due to violence.

Commercial  and Labour Laws

  • Support the reform of commercial and labour laws which discriminate against women, including employment discrimination on the basis of gender. These laws may affect the ability of a survivor of violence to leave a situation of violence, to report the violence, or increase her vulnerability to further violence.  
  • Support the repeal of laws and the prohibition of practices that: disallow women from entering into contracts; disallow women from accessing financial credit or precondition 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;  restrict women’s right to choose her domicile on the same basis as men; and directly or indirectly discriminate in the access by women to work.

Property Laws

  • Support the reform of property and land laws to grant women the same right to own, manage, use and dispose of property that men enjoy. These laws should protect women’s right to own, administer, and dispose of equal shares of property during marriage and at its dissolution.
  • Support the repeal or amendment of laws that grant males a larger share of property at the dissolution of a marriage or upon a spouse’s death.
  • Support laws which accord equitable weight to monetary and non-monetary contributions, including unpaid domestic labour or agricultural work, upon division or distribution of joint marital property.
  • Support laws that ensure that women have an equal right as men to be beneficiaries of agrarian reforms and land redistribution schemes.

Marriage, Inheritance and Family Laws

  • Support the reform of inheritance laws to ensure that women are entitled to inherit on an equal basis with men, including in equal shares and equal rank in the line of succession.
  • Work to repeal any laws that prevent women from inheriting on an equal basis at the death of a spouse.
  • Work to repeal any laws that grant restricted rights of inherited property to a woman.
  • Support the repeal and prohibition of laws and practices that allow polygamous marriages. Polygamous marriages are also considered unequal terms of marriage in international law (CEDAW General Recommendation 25) and may make a woman more vulnerable to violence.
  • Work to repeal laws and practices that deny women equal rights and responsibilities with regard to their children. In countries that do not grant women the equal opportunity to apply for or retain custody of their children, women may decide to stay in abusive relationships in order to maintain access to their children. Strategies include:
  • Support laws that 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.
  • Support laws which deny custody, guardianship, wardship, and visitation privileges to the biological father who committed the rape in cases where a child is conceived and born of an act of sexual assault.
  • Support laws which restrict the custody and visitation rights of violent parents.

 

Tools for Reforming Laws:

Extensive information about reforming legislation is available in the Legislation module of this website.

Respect, Protect and Fulfill: Legislating for Women’s Rights in the Context of HIV/AIDS (Canadian HIV/AIDS Legal Network, 2009). Volume One is on Sexual and Domestic Violence, Volume Two is on Family and Property Issues. Available in English.

United Nations Handbook for legislation on violence against women (United Nations Department of Economic and Social Affairs and Division for the Advancement of Women, 2009). Available in Arabic, Chinese, English, Spanish, Russian, and French. A PowerPoint presentation on this United Nations model framework is available here. A video dialogue between two experts discussing the model framework is available here.

Supplement to the Handbook for Legislation on Violence Against Women: “Harmful Practices” Against Women (United Nations Division for the Advancement of Women and United Nations Economic Commission for Africa, 2010). Available in Arabic, Chinese, English, Spanish, Russian, and French.

Morocco – Discriminatory Personal Status Laws Reformed

In 2004, Morocco’s Parliament made groundbreaking changes to the family code (moudawana) concerning family law matters. Before the 2004 moudawana reforms introduced more equitable and streamlined divorce procedures, women were sometimes mired in divorce proceedings for 10-15 years as they attempted to prove “mistreatment,” whereas men could simply hand their wives a divorce letter. Now, both men and women can cite “irreconcilable differences” in a process that, legally, should last six months or less.

Women can now initiate a marriage without the permission of a male family member and the legal age for marriage has been increased from 15 to 18 years of age. Significantly, men are legally obligated to ask their first wives for permission before they are allowed to marry a second wife. Although the moudawana continues to leave women disadvantaged in certain circumstances, it represents a significant victory for greater gender equality in Morocco. The moudawana reforms demonstrate that even in a deeply conservative society, relatively progressive legislation is possible when the head of state and civil society organizations push for change. Source: Harrak. 2009. The History and Significance of the New Moroccan Family Code.

 Implementing legal reform

Legal reform does not end with the passage of a new or amended law. Strategies for successful legal reform beyond changing the language of the law include:

  • Advocate for development of rules and regulations necessary to implement the law. For example, see Rules of Procedure in Cases of Family Violence (Government of Croatia and Ministry of Family, Veterans’ Affairs and Intergenerational Solidarity, 2008. Available in Croatian and English (p. 25).
  • Ensure that implementing regulations are enacted in a timely manner, within 6 months of the law coming into effect.
  • Support national action plans that delegate implementation responsibility to specific ministries or government offices and that authorize funding for implementation.
  • Support national action plans that incorporate a plan for regular monitoring and evaluation of the reformed law.
  • Provide advocacy for women and girls to help them access remedies for violence. See section on establish and expand legal assistance programmes for women and girls.

See sections on Implementation and Advocating for New Laws or the Reform of Laws in the module on Legislation.

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