Underpinning an effective judicial response to gender-based violence against women and girls.
“[W]hile there has been a marked ideological shift in the ways Judges adjudicate matters relating to gender-based violence and femicide in recent times … the fate of these victims should not be left to the off-chance that the individual Judges hearing their cases will be attuned to the sensitivities. There should be a formalization and standardization of these norms so that it is incumbent on the Courts to pay particular attention to the treatment of victims in these cases.”
Conceptual framework underpinning an effective judicial response to gender-based violence against women and girls
Part one: “Judges do not enter public office as ideological virgins. They ascend the Bench with a built-in and often strongly-held set of values, preconceptions, opinions and prejudices. These are inevitably expressed in the decisions they give, constituting ‘inarticulate premises’ in the process of judicial reasoning.”
Summary: While the role of the judiciary in criminal proceedings varies depending on their country’s legal system, all judges have common responsibilities. These include applying and interpreting the domestic criminal legal framework; fact determination; protecting the rights of the defendant and victim; and, upon conviction, providing appropriate punishment. This part of the handbook develops a conceptual framework to assist judges in the performance of their duty when responding to GBVAWG. An effective judicial response requires incorporating a gender and human rights perspective into all judicial tasks.
Section 1 reviews recent research on the extent and nature of GBVAWG globally; the realities faced by victims in seeking protection and justice; understanding the trauma experienced by victims of gender-based violence; and the influence of harmful gender stereotyping on judicial decision-making. These are elements of a framework that judges can use in the conduct of their duties and in carrying out a context-driven analysis in order to move away from prejudicial generalizations of women victims of violence.
Section 2 covers key obligations under international law to assist the judiciary in making informed and human rights-compliant decisions in cases involving GBVAWG. It includes a discussion on integrating international law standards into different national legal systems, and how they can be applied.
Glossary of terms
Bail hearings is a judicial proceeding where the court determines if a person charged with a criminal offence should be released on conditions pending trial, including cash bail or bond.
Committal hearing is a hearing where a judge or magistrates decides if the prosecution has enough evidence for a criminal case to go to trial.
Complainant is a legal term designating a person who has made a complaint of a crime which has not yet been proven in court.
Compensation means quantifiable damages resulting from the violence and includes both pecuniary and non-pecuniary remedies, such as an injunction. When compensation is not fully available from the offender or other sources, States should provide financial compensation.
Court dockets refers to the written list of judicial proceedings set down for trial in a court. In practice, a docket is a roster that the clerk of the court prepares, listing the cases pending trial.
Court staff includes the personal staff of the judge, including law clerks. Criminal justice refers to a system that is derived from criminal law and focuses on concepts such as accountability of the person who commits a crime or offends public order/violates the rights of another; protection and compensation/redress of the victims; and fairness in terms of all parties.
Criminal justice also refers to a mechanism for administering criminal justice that can provide a fair outcome and has appropriate capacity and authority.
De facto equality (substantive equality) consists of ensuring “equality of results” for women, which means that progress towards equality must bring about concrete outcomes or long-term changes in gender relations.
De jure equality (formal equality) requires that men and women must receive equal protection of their rights and be guaranteed equality of opportunity where they are situated. Equality of opportunity means that everyone should, at the outset, have the same opportunities so that they can realize their capabilities and participate in all areas of economic, social, political and cultural life as equals.
Discrimination is a difference in treatment based on certain grounds such as race, colour, language, religion, belief, caste, employment, political opinion, nationality, social origin, disability, age, location, region, indigenous and minority status, sex, gender, sexual orientation, gender identity, or other status, which has the purpose or effect of nullifying or impairing the enjoyment or exercise of rights. Discrimination may be direct (differentiated treatment which adversely affects the enjoyment of rights of one group in particular) or indirect (treatment that seems to be neutral, but whose consequences adversely affect the enjoyment of rights of one or more groups in particular).
Gender refers to the roles, behaviours, activities and attributes that a given society at a given time considers appropriate for men and women. In addition, “gender” refers to the social attributes and opportunities associated with being male and female and the relationships between women and men and girls and boys. These attributes, opportunities and relationships are socially constructed and are learned through socialization processes. They are context- and/or time-specific and changeable. Gender determines what is expected, allowed and valued in a woman or a man in a given context. In most societies, there are differences and inequalities between women and men in responsibilities assigned, activities undertaken and access to and control over resources and decision-making opportunities. Gender is part of the broader sociocultural context, as are other important criteria for sociocultural analysis, such as class, race, poverty level, ethnic group, sexual orientation and age.
Gender identity refers to each person’s deeply felt internal and individual experience of their own gender, which may or may not correspond to the sex assigned at birth. This includes an individual’s personal sense of their own body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech, mannerisms and choice of personal pronouns (he/him; she/her; or gender-neutral and nonbinary pronouns e.g. they). Gender identity is not restricted to male or female, as individuals may choose to identify as neither male nor female, as both male and female or as a third gender (irrespective of anatomy).
Gender-based violence against women and girls (GBVAWG) is violence directed towards, or disproportionately affecting women because of their gender or sex. This term makes explicit the gendered causes and impacts of the violence. Such violence takes multiple forms, including acts or omissions intended or likely to cause or result in death or physical, sexual, psychological or economic harm or suffering to women, threats of such acts, harassment, coercion and arbitrary deprivation of liberty. GBVAWG can be defined differently under national laws.
Gender equality refers to the equal rights, responsibilities and opportunities of women and men and girls and boys. Equality does not mean that women and men will become the same, but that their rights, responsibilities and opportunities will not depend on whether they are born male or female. Gender equality implies that the interests, needs and priorities of both women and men are taken into consideration, recognizing the diversity of different groups of women and men. Gender equality is not a women’s issue; it should concern and fully engage men as well as women. Equality between women and men is seen as both a human rights issue and a precondition for, and indicator of, sustainable, people-centred development.
Gender-related killing of women and girls (GRKWG) refers to the killing of women and girls by their intimate partners or family members, “honour”-related killing of women and girls, dowry-related killing of women, killing of women in the context of armed conflict, gender-based killing of aboriginal and indigenous women, extreme forms of violent killing of women, killing as a result of sexual orientation and gender identity, killing of women due to accusations of sorcery and witchcraft, or killing of sex workers. In some countries GRKWG was criminalized as “femicide” or “feminicide” and has been incorporated as such into national legislation in those countries. Intimate partner/family-related homicides are one of the most visible and widely researched forms of GRKWG, with data from the 2018 UNODC Global Study on Homicide showing that 137 women across the world are intentionally killed by current or former intimate partners each day.
Gender-responsive justice means ensuring that laws, justice institutions, justice processes and justice outcomes do not discriminate against anyone on the basis of gender. It necessitates taking a gender perspective on the rights themselves, as well as an assessment of access and obstacles to the enjoyment of these rights by women and men, and adopting gender-sensitive strategies for protecting and promoting them. Gender sensitivity means using respectful and non-discriminatory language and taking into account the different situations, needs and attributes of women, men and others, in order to make sure behaviours, mindsets or programmes respect the human rights of all persons.
Gender stereotype is a generalized view or preconception about the attributes, characteristics or roles that are or ought to be possessed by or performed by women and men. A gender stereotype is harmful when it limits women’s and men’s capacity to develop their personal abilities, pursue their professional careers and make choices about their lives.
Gender stereotyping refers to the practice of ascribing to an individual woman or man specific attributes, characteristics, or roles by reason only of her or his membership in the social group of women or xi men. Gender stereotyping is wrongful when it results in a violation or violations of human rights and fundamental freedoms.
Intimate partner violence is the most common form of violence experienced by women globally and includes a range of sexually, psychologically, physically and economically coercive and harmful acts used against adult women and adolescent girls by a current or former intimate partner, without her consent.
Physical violence involves intentionally using physical force, strength or a weapon to harm or injure the woman. Sexual violence includes abusive sexual contact, making a woman engage in a sexual act without her consent, and attempted or completed sex acts with a woman who is ill, disabled, under pressure or under the influence of alcohol or other drugs. Psychological violence includes controlling or isolating the woman, humiliating or embarrassing her, or ensuring that she is in a constant state of fear, hypervigilance, or insecurity. Economic violence includes denying a woman access to and basic control over economic resources, including access to employment, such that she is controlled by, or becomes dependent on, her intimate partner.
Legal aid refers to legal advice, assistance and representation for victims and witnesses at no cost for those without sufficient means or when the interests of justice so require. Legal aid also includes access to legal information for victims.
Judge means any person exercising judicial power, however designated.
Judiciary refers to: (1) the branch of authority in a country which is concerned with law and the legal system; (2) the system of courts of justice in a country; and (3) judges collectively.
Judicial stereotyping is the practice of judges ascribing to an individual specific attributes, characteristics or roles by reason only of her or his membership in a particular social group and perpetuating harmful stereotypes through their failure to challenge those stereotypes. Myths are widely held but false beliefs or ideas.
Myths about GBVAWG are based on prejudices and harmful gender stereotyping.
Non-partner sexual violence refers to violence by a relative, friend, acquaintance, neighbour, work colleague or stranger. It includes being forced to perform any unwanted sexual act, sexual harassment and violence perpetrated against women and girls frequently by an offender known by them, including in public spaces, schools, workplaces and in the community.
Perpetrator refers to a person who has committed GBVAWG.
Recidivism refers to reoffending: a situation in which a person who is the object of a criminal justice intervention (sanction) commits a new criminal offence.
Reparations means to remedy, as far as possible, all consequences of an illegal act and re-establish the situation which would have probably existed if that act had not been committed.
Reparations cover two aspects: procedural and substantive.
Restitution is defined as measures designed to restore the victim to her original situation before the violence.
Secondary victimization is the victimization that occurs not as a direct result of the criminal act but through the inadequate response of criminal justice institutions and providers to the victim.
Sex refers to anatomical sex characteristics, reproductive organs, hormonal and/or chromosomal patterns. While “sex” is often understood as a binary concept of either male or female, contemporary understanding of sex, informed by advancements in the study of genetics, reveals the natural occurrence of considerable variability in sex characteristics (sometimes referred to as intersex)
Victim refers to a woman or a girl impacted by violence against women or against whom violence has been committed. The term victim rather than “survivor” is used as the handbook focuses on the criminal justice process, where this term designates a legal status.
Women and girls will be predominately used in the handbook. This will also include persons who identify as women and girls. Girls are children, that is, below the age of eighteen.
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