Legislation
                          
                            Introduction                                    
                          
                            Introduction
                          
                            Guiding Principles for Developing Legislation                                    
                          
Ensure that the Goal of the Legislation Is Well-DefinedConsult with Key StakeholdersEnsure that the Legislation is based on Reliable Evidence
                              Ensure that the legislation is based on international and regional human rights frameworks for legislation on violence against women and girls
                            
                            OverviewInternational InstrumentsInternational Instruments addressing specific forms of violence against womenSecurity Council ResolutionsGeneral Assembly ResolutionsSpecial RapporteursRegional Treaties
Legislation should be based on specific guiding principlesLegislation should contain specific implementation mechanismsProvide safety, aid, and empowerment for survivors through criminal and civil provisions which include a broad range of remedies and reparationsTools and Resources

                            Drafting Specific Legislation on Violence against Women and Girls                                    
                          
                              Introductory Note
                            
Throughout this knowledge module, reference to certain provisions or  sections of a piece of legislation, part of a legal judgment, or aspect  of a practice does not imply that the legislation, judgment, or practice  is considered in its entirety to be a good example or a promising  practice.
Some of the laws cited herein may contain provisions which authorize  the death penalty. In light of the United Nations General Assembly  resolutions 62/149, 63/168, 65/206, and 67/176 calling for a moratorium on and ultimate abolition of capital  punishment, the death penalty should not be included in sentencing  provisions for crimes of violence against women and girls.

                              Domestic Violence
                            
                              Overview
                            
                            Core elements of legislation on domestic violenceSources of international lawSpecific legislation on domestic violenceNational action plans to combat domestic violenceGender-Specific Language in Domestic Violence Laws

                              Objectives, Definitions and Scope of Legislation
                            
                            Drafting the legislative preambleContents of legislative preambleDefinition of domestic violenceScope of persons protected by law

                              Rights of Complainants/Survivors
                            
                            Rights of complainants/survivorsOther important legislative provisions for assistance to complainant/survivorsState agency to establish aid centres Confidentiality for complainants/survivorsAdvocates

                              Coordinated Community Response and Implementation of Laws
                            
                            Coordinated Community ResponseImplementation of a coordinated community responseBatterers’ intervention programmesImplementation of domestic violence lawsTime limit between enacting and enforcing laws 

                              Civil Remedies for Domestic Violence
                            
                              Protection order  remedies
                            
                            Protection order remediesEmergency or ex parte order for protection remedyContents of emergency or ex parte orders for protectionPost-hearing protection order remedyContent of post-hearing orders for protectionWarning provisionsTime limits on protection ordersOther key provisions in legislation on post-hearing protection ordersChild custody provisions in protection orders

                              Family law and divorce
                            
                            Family law and divorceCustodyResidence of childCompeting statutory provisionsInadmissibility of “parental alienation syndrome”VisitationConfidentiality of address
Remedies and reparations for damages

                              Criminal Justice System Response to Domestic Violence
                            
                              Duties of Police Officers
                            
                            IntroductionLethality or risk assessmentsMediation or assisted alternative dispute resolutionDetermining the predominant aggressorProbable cause standard of arrest
Duties of prosecutorsDuties of judiciary

                              Criminal Law Provisions
                            
                            Criminal penalties and proceduresCriminal sanctions and sentencing provisions 
Other Provisions Related to Domestic Violence LawsResources for Developing Legislation on Domestic Violence

                              Sexual Assault
                            
                              Overview
                            
                            Core elements of legislation on sexual assault Sources of international lawContents of legislative preamble

                              Criminal Law on Sexual Assault
                            
                            Definition of sexual assault and other elementsAggravating circumstancesSexual assault of minorsSexual assault of vulnerable populationsSexual assault in universities or institutions of higher educationSexual assault within an intimate partner or marital relationshipCapacity to commit sexual assault and other factorsConsentEvidenceSentencingOther ProvisionsRoles and responsibilities of policeRoles and responsibilities of prosecutorsTreatment or diversion programs for perpetrators and offender registration

                              Rights of Survivors  
                            
                            Rights of Survivors  Protection and no contact ordersCourtroom safetyOther Measures
Survivor ServicesOther Legal Issues in Sexual Assault CasesResources for Drafting Legislation on Sexual Assault

                              Sexual Harassment
                            
                              Overview
                            
                            Overview and Definition of TermsSources of International Law Related to Sexual HarassmentPlacement of Sexual Harassment Laws in National Legislation

                              General Principles For Sexual Harassment Laws 
                            
                            Core Elements of Sexual Harassment Laws Statement of PurposeGuidance on Interpreting the LawDefinitionBurden of Proof and Proof of InjuryRetaliationRemedies and Policy Development & TrainingEducation & Awareness-RaisingOversight & Monitoring

                              Anti-Discrimination/Equal Opportunity Laws 
                            
                            OverviewSexual Harassment as DiscriminationEnforcement & Oversight 

                              Sexual Harassment in Employment
                            
                            Overview and DefinitionTheories of Workplace Sexual Harassment Employer Obligations under LawEmployer Liability under LawEstablishing Enforcement Agencies and Special TribunalsSpecial Procedures for Workplace Sexual Harassment Cases Involvement of Unions and Other Employee Groups

                              Sexual Harassment In Education
                            
                            Overview and Core Elements for Sexual Harassment Laws in the Educational SettingTeachers/Staff Harassing StudentsZero-tolerance for Teacher-Student Sexual RelationsUnwelcomeness Requirement Students Harassing StudentsBroadly Define Educational Institution and Educational ActivitiesDuties of Educational Institutions
Sexual Harassment in Sport
                              Sexual Harassment in Housing 
                            
                            Overview and Core Elements of Sexual Harassment Laws in the Housing/ Accommodation ContextPreventionRemedies

                              Sexual Harassment in Provision of Goods, Benefits, and Services
                            
                            Overview and Core Elements of Laws on Sexual Harassment in Provision of Goods and ServicesDefining Goods & ServicesHumanitarian Relief and Peacekeeping Operations

                              Criminal Law
                            
                            Overview and Workplace Sexual Harassment as a CrimePublic Sexual Harassment Sample Laws
Tools for Drafting Sexual Harassment Laws and Policies 

                              Sex Trafficking of Women and Girls
                            
                              Overview
                            
OverviewCore elements of legislation on sex trafficking of women and girls
                              Sources of International Law
                            
                            United Nations Treaties, Conventions and General RecommendationsRegional Laws and Agreements

                              Drafting the Legislative Preamble
                            
                            OverviewSex trafficking is a grave violation of human rights and a form of violence against women and childrenSex trafficking may occur whether or not an international, national or regional border is crossedSex trafficking may involve foreign nationals, citizens, and legal permanent residents of a particular countryThe purpose of sex trafficking laws, and the effective implementation of such laws must include:  Prosecution, Protection, Prevention, Provision of Services and PartnershipsNon-discrimination should be incorporated into each and every principle and provisionFair and equal treatment of child victims should also be incorporated into each and every principle and provision

                              Definitions
                            
                            Sex Trafficking Acts, Means and PurposeForce, Fraud, or CoercionAbuse of a position of vulnerability Exploitation; Sexual Exploitation; or Commercial Sex ActTrafficking Victims:  Non-Detention/ Arrest/ Charge/ Prosecution

                              Criminal Provisions
                            
                            OverviewSpecific Criminal OffencesCriminal Acts:  Recruiting, Receiving, Transporting, or HarboringCriminal Means: By any means; or threat, Force, Coercion, Fraud, Abuse of Power, or abuse of a Position of VulnerabilityCriminal Purposes: Exploitation of the prostitution of others, Sexual Exploitation, or Commercial Sex ActPenalties for Sex TraffickersPenalties for BuyersProstitution and Sex Trafficking OffencesEvidence of Prior Sexual Activity or Prostitution Convictions

                              Victim and Witness Protection and Assistance
                            
                            Overview and identification and screening for sex traffickingReflection PeriodProvision of Benefits and ServicesCrime Victim RightsCrime Victim-Witness Protection

                              Civil Remedies for Trafficking Victims
                            
                            OverviewRestitutionCrime Victim’s Restoration FundAsset ForfeitureCivil LiabilityEnsuring Privacy and Identity of Victims
Immigration Provisions
                              Administrative and Regulatory Provisions
                            
                            Overview and National Action PlansTraining Building Public Awareness to Prevent Sex Trafficking and Sexual ExploitationTask Forces and Inter-Agency CooperationData CollectionAppropriations Other Related Regulations
Resources for developing legislation on sex trafficking of women and girls

                              Harmful Practices
                            
                              Overview
                            
Overview
                              Sources of human rights law related to harmful practices
                            
                            Overview and international legal instrumentsInternational policy instrumentsRegional instruments

                              General principles for legislation on harmful practices
                            
                            OverviewCore Elements of Legislation on Harmful PracticesDrafting the Legislative Preamble to Laws Addressing Harmful Practices

                              Elements to increase effectiveness of draft legislation on harmful practices
                            
                            Legislation to mandate adoption of national plan and strategy to eliminate harmful practicesRatify international and regional human rights instrumentsEnsure Constitutional Protection ProvisionsHarmonization of new legislation with existing law (formal and customary)

                              Considerations for drafting provisions criminalizing harmful practices
                            
                            OverviewGeneral considerations for imposing penalties or sanctionsClear definitions of harmful practices and broad liabilityExtraterritoriality and extraditionMitigationConsent

                              Other legal protections and considerations
                            
                            Overview and protection ordersCivil lawsuits Prohibition on the use of harmful traditional dispute resolution mechanismsCompensationChild protection provisionsImmigration and asylum laws
Victim servicesPublic awareness and education
                              Drafting legislation on specific harmful practices
                            
                            OverviewSon preference / female infanticide / sex-selective abortionsAcid attacksStove burningBreast ironing
Resources on drafting legislation on harmful practices

                              Forced and Child Marriage
                            
                              Overview
                            
                            Core Elements of Legislation on Forced and Child Marriage Sources of International LawDrafting the legislative preamble

                              Definitions and forms of forced and child marriage
                            
                            Definition of forced and child marriageDefining and establishing consentEstablishing a minimum age for marriageDevelopment of a national action plan on forced marriagesDefining other forms of forced marriage: human traffickingDefining other forms of forced marriage: international marriage brokeringDefining other forms of forced marriage: slavery, sexual slavery, forced labor and debt bondageDefining other forms of forced marriage: wife inheritance, levirate and sororate marriages Defining other forms of forced marriage: bride kidnappingDefining other forms of forced marriage: bounty huntingDefining other forms of forced marriage: forced and child marriage as settlementPolygamous marriagesPremarital, post-nuptial and other forms of marriage contractInheritance lawsAddressing customary laws and practices that conflict with formal laws

                              Civil Laws
                            
                            Registration of marriages and birthsCivil remedy for victims of forced marriage 

                              Criminal Laws
                            
                            Criminalization of forced and child marriageOther related offences: criminalization of marital rape Other related offences: acts of retribution and intimidation 

                              Victims’ Rights and Responding to Victims’ Needs
                            
                            OverviewRights of victimsAddressing forced marriages involving immigrant women and girlsAddressing extraterritorial jurisdiction Addressing forced marriages involving victims outside their country-of-residenceAnnulment of a forced marriage and divorce
Child Protection Provisions
                              Roles and Responsibilities
                            
                            Duties of policeDuties of prosecutors Role of other Helping Professions and StakeholdersPrevention of forced and child marriagesPublic awarenessStatistics gathering Trainings
Resources on Forced and Child Marriage

                              Female Genital Mutilation/Cutting
                            
                              Overview
                            
                            Use of term “Female Genital Mutilation” Guiding principles for drafting legislation on Female Genital MutilationSources of international human rights law on Female Genital Mutilation

                              General principles for legislation on Female Genital Mutilation
                            
                            Core elements for legislation on Female Genital MutilationNational plan and strategyDrafting the legislative preamble for a law against FGMOther elements
Clear and precise definition of Female Genital Mutilation
                              Criminalization 
                            
                            OverviewClear definition of crime and liabilitySentencing provisionsEnhanced penaltiesProhibition of medicalizationCriminalization of aiding and abetting the performance of FGMDuty to reportMitigationConsentExtraterritoriality

                              Child protection provisions
                            
                            OverviewCore elements in child protection laws and systems to protect against FMGProtection ordersHearing by courtOther provisions

                              Victims’ rights and responding to needs
                            
                            Rights of survivorsRestitution and compensation for survivorsCivil lawsuitsImmigration and asylum

                              Roles and responsibilities
                            
                            Police protocolsProsecutor protocolsRegulations and administrative provisions

                              Broader coordinated policies
                            
                            Training of professionalsRegional, national and international cooperation protocolsCoordinated Community ResponsePublic Education
Resources for drafting legislation on Female Genital Mutilation/Cutting

                              Honour Crimes
                            
                              Overview
                            
                            Core recommended elements of legislation on “honour” crimes Sources of international law related to “honour” crimes and killingsPreamble

                              General principles for laws on honour crimes and killings 
                            
                            Defining “honour”crimes and “honour” killingsNational plan of action to prevent and punish “honour” crimes

                              Legal reform in civil, customary, criminal and asylum laws
                            
                            Elimination of discriminatory lawsAddressing customary laws and practices that conflict with formal lawsCriminalization of “honour” crimes, “honour” killings and other related offensesCriminalization of aiding, abetting, soliciting another, condoning or conspiring to commit an “honour” crime or killingForced suicides Decriminalization of adultery and defensesSentencing provisionsPrivate settlements and victim compensationAccompanying domestic violence legislationImmigration laws

                              Roles and responsibilities
                            
                            Roles and responsibilities of policeRoles and responsibilities of courts and judiciaryRoles and responsibilities of prosecutors Data collection and information gatheringPublic education 

                              Victim protection
                            
                            Rights of victimsChild protection Order for protectionHearing by court

                              Maltreatment of Widows
                            
                              Overview
                            
                            Core elements of legislation on the maltreatment of widowsSources of international law Drafting the legislative preambleConstitutional guaranteesAddressing customary laws and practices that conflict with formal lawsNational/ Regional plan of action to combat the maltreatment of widows
Definition and forms of maltreatment of widows
                              Civil laws
                            
                            Family law and marriage lawsMarriages Equal rights and responsibilities in marriageInheritance lawsLand and property reformLand and tenure reformPromoting security of tenure for womenJoint tenure and titling for spousesEnsuring effective implementationDomestic violence civil remediesCivil claim for compensation

                              Criminal laws
                            
                            OverviewSexual assaultOther forms of violenceOffenses involving property

                              Victims’ rights and responding to victims’ needs
                            
                            OverviewVictims’ rightsResponding to victims' needs

                              Roles and responsibilities
                            
                            Coordinated Community ResponseRoles of Police Roles of JudgesRoles of ProsecutorsMediation or Assisted Alternative Dispute Resolution ProvisionsRole of Traditional Leaders and Customary Justice MechanismsTraining for Legal Actors on Legal Reform and Succession
Other provisions related to the maltreatment of widowsResources for drafting legislation on maltreatment of widows

                              Dowry-related Violence
                            
                              Main strategies for drafting legislation on dowry-related violence
                            
                            OverviewCore elements of legislation on dowry-related violenceSources of international law

                              Objectives, definitions and scope of legislation
                            
                            Drafting the legislative preamble and contentsDefinition of dowry-related violenceScope of persons protected by law and culpable persons

                              Rights of complainants/survivors
                            
                            Rights of complainant/survivorsOther important legislative provisions for assistance to complainant/survivorsState agency to establish aid centres Confidentiality for complainant/survivorsAdvocates

                              Coordinated community response and implementation of laws
                            
                            Coordinated community responseImplementation of a coordinated community responseBatterers’ intervention programmesImplementation of domestic violence and dowry-related violence lawsTime limit between enacting and enforcing laws 

                              Criminal justice system response to dowry-related and domestic violence
                            
                            Duties of police officersDetermining the predominant aggressorProbable cause standard of arrestDuties of prosecutorsPro-prosecution policyAbsent victim prosecutionDuties of judiciaryMediation or assisted alternative dispute resolution provisionsTimely and expedited proceedings

                              Criminal laws
                            
                            Criminal penalties and proceduresDowry deathsAiding and abetting suicideStatute of limitations and Obstruction of justiceCriminal sanctions and sentencing provisions Addressing dowry-related violence through criminalization of dowry demandsEvidenceTreatment or diversion programs for perpetratorsLethality or risk assessmentsFelony strangulation and other provisions

                              Civil remedies on dowry-related violence
                            
                            Order for Protection RemediesEmergency or ex parte Order for Protection RemedyContents of Emergency or ex parte Orders for ProtectionPost-hearing Order for Protection RemedyContent of post-hearing orders for protectionWarning provisions, Time limits and Other key provisionsChild custody provisions in orders for protectionFamily law and divorceCustody and Related ProvisionsCivil Lawsuits for Damages and CompensationEnsure women’s property and inheritance rights
Other provisions related to dowry-related and domestic violence laws

                            Advocating for New Laws or the Reforming of Existing Laws                                     
                          
                              What is advocacy and why is it important?
                            
What is Advocacy and Why is It Important?How is Advocacy Defined?
                              Types of Advocacy
                            
                            Women's human rights and legislative advocacyWhat is advocacy for legal system reform?What is international human rights advocacy?How does litigation relate to advocacy?

                              Identifying the problem: investigating and gathering evidence
                            
                            Research the nature and extent of the problem Key steps in investigating and documenting violations of womenResearch best practices, Gather testimonials and Review research 

                              The advocacy process
                            
                            OverviewDefining your advocacy goals:  what is success?Factors that contribute to success Developing an advocacy strategyLeadership and OrganizationCommunication and EducationMobilization and action; Self assessment and Measuring progress

                              Understanding the government structure, legal obligations, and legislative process
                            
                            Overview and Compliance with national, regional and international lawsUnderstanding the legislative process Understanding the role of NGOs in the legislative process

                              Taking action
                            
                            Review research, gather testimonials, anticipate and know the argumentsDrafting the Bill, Policy and Systems ChangeCoalition Building Mobilize the Constituency and Use the MediaInfluencing Legislators or Other Policy Makers 
After the campaign: now what?Resources for advocating for new laws or reforming existing laws

                            Implementing Laws                                    
                          
Introduction
                              Interagency approach / coordinated community response
                            
                            What is a coordinated community response to violence against women?Goals and principles for a coordinated community response (CCR)Benefits of coordinated community responseCreating a coordinated community response program

                              National action plans and strategies
                            
                            Requiring national action plans in legislationDeveloping a national action plan
Funding implementation
                              Police & other law enforcement professionals
                            
                            Laws on police role in implementationPolice trainingSpecial police units/designated officersSpecial investigative & other proceduresOther law enforcement professionals

                              Courts & prosecutors
                            
                            OverviewLaws on courts’ role in implementation Policies relating to victims in courtSpecialized courts/tribunals for violence against womenSpecialized ProsecutorsTraining for JudgesTraining ProsecutorsSpecial policies, procedures, and protocols

                              Health care, social workers & other helping professions
                            
                            Laws on Helping Professionals’ Role in ImplementationTrainingEstablishing Specialized Programs and Protocols
Employers and Unions
                              Services For Victims
                            
                            OverviewPhysical and mental servicesLegal ServicesShelterRights-based Education, Hotlines, and Crisis CentersEconomic empowerment

                              Public Awareness & Education
                            
                            OverviewCampaignsWorking with the mediaWorking with faith communities
Resources for Implementing Laws

                            Monitoring of Laws                                     
                          
Foundation for monitoring of laws
                              Monitoring mechanisms
                            
                            International mechanismsGovernment mechanismsNon-governmental mechanismsHuman rights organizations

                              How to monitor the implementation of laws on violence against women and girls
                            
                            OverviewIndicatorsData sources and collectionDesigning a qualitative research project or a “situation analysis”Challenges in monitoring certain types of violence against women and girlsEthical considerationsCourt monitoring

                              Elements of a monitoring report
                            
Background researchMonitoring multiple aspects of lawsInterviews for a monitoring reportComplicating factorsConclusion of monitoring study
                              Sample methodology to monitor the government’s response to legislation on violence against women and girls
                            
                            OverviewQuestions for security  actorsQuestions for judicial actorsQuestions for victim service organizationsQuestions for medical professionalsQuestions for academics, journalists, and the religious communityQuestions about children witnessing domestic violence
Resources for monitoring the implementation of legislation

                            References                                    
                          
References for introduction and guiding principles
                              References for drafting specific legislation on violence against women and girls
                            
                            Domestic ViolenceSexual AssaultSexual HarassmentSex TraffickingForced and Child MarriageFemale Genital MutilationHonour CrimesHarmful PracticesMaltreatment of WidowsDowry-related Violence
References for advocating for new laws or reforming existing lawsReferences for implementing lawsReferences for monitoring of laws
Related Tools
Resources for drafting legislation on maltreatment of widows

Last edited: October 30, 2010
This content is available in
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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. Available in English.
Global Rights, Conditions, Not Conflict: Promoting Women’s Human Rights in the Maghreb through Strategic Use of the Marriage Contract, 2008. Available in English.
Knox, Anna, et al., Connecting Rights to Reality: A Progressive Framework of Core Protections for Women’s Property Rights, International Center for Research on Women. Available in English.
Global Land Tool Network website; available in English.
UN-HABITAT website. Available in English.
United Nations Division for the Advancement of Women and United Nations Economic Commission for Africa, Good practices in legislation on “harmful practices” against women, (2010). Available in English.
Using the Law to Tackle Accusations of Witchcraft: HelpAge International’s Position (HelpAge International, 2011). Available in English.
Women’s Inheritance Now, winafrica.org. Available in English.