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Criminalizing Sexual Violence Against Women in Intimate Relationships: State Obligations Under Human Rights Law

Part of: International Legal Obligation to Criminalize Marital Rape

Published online by Cambridge University Press:  20 January 2017

Melanie Randall  and
Vasanthi Venkatesh
Melanie Randall
Affiliation:
Western Law
Vasanthi Venkatesh
Affiliation:
University of California, Berkley
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Criminalization of sexual violence against women in intimate relationships must form a central part of the human rights agenda for achieving gender equality. According to a study by the United Nations Secretary-General, “[t]he most common form of violence experienced by women globally is intimate partner violence” including “a range of sexually, psychologically and physically coercive acts.” The World Health Organization reports that nearly one in four women in some countries may experience sexual violence perpetrated against them by an intimate partner. Other research suggests that approximately 40% of all assaulted women are forced into sex at one time or another by their male partners.

Type
Symposium on the International Legal Obligation to Criminalize Marital Rape
Information
AJIL Unbound , Volume 109 , 2015 , pp. 189 - 196
Copyright
Copyright © American Society of International Law 2015

References

The authors sincerely thank AJIL Editors in Chief José Alvarez and Benedict Kingsbury, and AJIL Unbound editors, Karen Knop, Carlos Vazquez, and Catherine Powell for organizing this symposium and for their extensive and thoughtful engagement with this text, assisting us condense, refine, and strengthen its arguments.

1 Secretary General, In-depth study on all forms of violence against women, paras. 112-113 UN Doc. A/61/122/Add.1 (July 6, 2006) (emphasis added) [hereinafter Unsg Vaw Study]. See also Human Rights Council Res. 23/25, UN Doc. A/HRC/RES/23/25 (June 25, 2013).

2 Krug, Etienne G. et al., World Report on Violence and Health, World Health Organization [WHO] 149 (2002)Google Scholar.

3 Campbell, Jacquelyn C. & Alford, Peggy, The Dark Consequences of Marital Rape, 89 Am. J. Nursing 946, 946 (1989)Google ScholarPubMed. McFarlane, Judith M. & Malecha, Ann, Sexual Assault Among Intimates: Frequency, Consequences & Treatments 3, U.S. Dept. of Justice Grant No. 2002-WG-BX-0003 (2005)Google Scholar.

4 World Bank, Protecting Women From Violence (2015).

5 Id.

6 Klarfeld, Jessica, A Striking Disconnect: Marital Rape Law’s Failure to Keep up with Domestic Violence Law, 48 Am. Crim. L. Rev. 1819, 1842 (2011)Google Scholar.

7 Human Rights Watch, Lebanon: Domestic Violence Law Good, but Incomplete (April 3, 2014).

8 Sexual violence in intimate relationships refers to marital rape, spousal sexual assault, and sexual assault in marriage. The term marriage refers to a range of intimate spousal type relationships, whether legally constituted or not.

9 For a fuller elaboration, see Randall, Melanie & Venkatesh, Vasanthi, The Right to No: State Obligations to Criminalize Marital Rape and International Human Rights Law, 41 Brook. J. Int’l L. (forthcoming 2016)Google Scholar.

10 Velásquez Rodríguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 4, paras. 172-176 (July 29, 1988)

11 The UN Declaration on the Elimination of Violence Against Women, Ga Res. 48/104, arts. 1-2 (Dec. 20, 1993).

12 Id., art. 4(c,d).

13 World Conference on Women, Report of the Fourth World Conference on Women, paras. 118, 124(c,h) UN Doc. A/Conf.177/20/Rev.1 (Sept. 4-15, 1996).

14 Comm. on the Elimination of Discrimination Against Women, General Recommendation 19, para. 7, UN Doc. A/47/38 (1992) [hereinafter General Recommendation 19].

15 The United States is among the states that do not accept the opinions of treaty bodies as authoritative (see U.S. Department of State, Response of the United States to List of Issues to Be Taken Up in Connection With the Consideration of the Second and Third Periodic Reports of the United States of America (July 17, 2006)). However, courts in many jurisdictions, including several in the United States, have recognized that treaty bodies’ “interpretations deserve to be given considerable weight in determining the meaning of a relevant right and the existence of a violation.” See International Law Association, Committee on Human Rights Law and Practice, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies, para. 148 (2004) (emphasis added).

16 International Covenant on Civil and Political Rights, art. 4(2), Dec. 16, 1966, 6 ILM 360 (1967).

17 Un Human Rights Comm., Concluding Observations on Colombia, UN Doc. A/52/40, at para. 287 (1997); UN Human Rights Comm., Concluding Observations on Peru, UN Doc. A/52/40, at para. 167 (1997). In several concluding observations, the Committee has specifically demanded that the member states criminalize marital rape (See UN Human Rights Comm., Concluding Observations on Sri Lanka, UN Doc. CCPR/CO/79/LKA, at para. 20 (2003)).

18 Un Human Rights Comm., General Comment 28, Equality of Rights Between Men and Women (Article 3), para. 10, UN Doc. CCPR/C/21/Rev.1/Add.10 (2000) [hereinafter Unhrc General Comment 28].

19 See Opuz v. Turkey, App. No. 33401/02, 2009 Eur. Ct. H.R. 870; Maria Da Penha v. Brazil, Case 12.051, Inter-Am. Comm’n H.R., Report No. 54/01, OEA/Ser.L/V/II.111, doc. 20 rev. 704 (2001); Lenahan v. United States, Case 12.626, Inter-Am. Comm’n H.R., Report No. 80/11, OEA/Ser.L/V/II.142, paras. 170, 177, 199 (2011).

20 World Health Organization, Understanding and Addressing Violence Against Women: Sexual Violence, WHO/RHR/12.37, at 6 (2012).

21 Id.

22 UN Human Rights Comm., General Comment 35: Article 9—Liberty and Security of Person, para. 9, UN Doc. CCPR/C/Gc/35 (Dec. 16, 2014).

23 UNHRC General Comment 28, supra note 18, at para. 10.

24 General Recommendation 19, supra note 14, art. 6; Yakin Ertürk (Special Rapporteur on violence against women, its causes and consequences), The Due Diligence Standard as a Tool for the Elimination of Violence against Women, para. 35, UN Doc. E/CN.4/2006/61 (Jan. 20, 2006); Rashida Manjoo (Special Rapporteur on violence against women, its causes and consequences), Report of the Special Rapporteur on Violence Against Women, paras. 50, 74 UN Doc. A/HRC/23/49 (May 14, 2013) (due diligence standard requires that states impose “severe” and effective sanctions against spousal violence to prevent future conduct “because of the ongoing nature of the relationship between victim and perpetrator”); Yakin Ertürk (Special Rapporteur on violence against women, its causes and consequences), Indicators on violence against women and State response, paras. 71, 78, 81 UN Doc. A/HRC/7/6 (Jan. 29, 2008) (the criminalization of domestic and intimate partner violence is a specific requirement under the Beijing Platform and was a “minimum standard”).

25 Rashida Manjoo (Special Rapporteur on violence against women, its causes and consequences), Report of the Special Rappor teur on Violence against Women, UN Doc. A/HRC/14/22 (19 April 2010).

26 UNSG Vaw Study, supra note 1, at 12 (emphasis added). The study also noted, “State inaction with regard to the proper func tioning of the criminal justice system has particularly corrosive effects as impunity for acts of violence against women encourages further violence and reinforces women’s subordination.”

27 Comm. Against Torture, General Comment 2, Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2/CRP. 1/Rev.4 (2007) [hereinafter Comm. Against Torture, General Comment 2.

28 Id.

29 Id. at paras. 8,9. Marital rape satisfies all the elements of “torture” as defined in Article 1 since it is an act (1) inflicting severe pain and suffering; (2) for a prohibited purpose that includes coercion, intimidation, or discrimination; and (3) acquiesced or con doned by a state actor.

30 Id. at para. 13.

31 See Prosecutor v. Furundžija, Case No. It-95-17/1-T, Judgment, paras. 144, 153-189 (Int’l Crim. Trib. For the Former Yugoslavia Dec. 10, 1998). See also Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment, para. 597 (Sep. 2, 1998). See also Aydin v. Turkey (No. 50), 1996–VII 75 Eur. Ct. H. R. 1866, para. 86 (1997); Opuz v. Turkey, Eur. Ct. H. R. App. No. 33401/02 (2009)

32 Redress, Redress for Rape, Using International Jurisprudence on Rape as a Form of Torture or Other Ill Treatment (2013).

33 Comm. Against Torture, General Comment 2, supra note 27, at para. 22. See also Alexander, Barbara Cochrane, Convention Against Torture: A Viable Alternative Legal Remedy for Domestic Violence Victims, 15 Am. U. Int’l L. Rev. 895 (2000)Google Scholar; Copelon, Rhonda, Gender Violence as Torture: The Contribution of Cat General Comment No. 2, 11 N.Y. City L. Rev. 229 (2007)Google Scholar

34 UN Comm. on Economic, Social and Cultural Rights, General Comment No. 16: The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights, para. 27, UN Doc. E/C.12/2005/4 (Aug. 11, 2005).

35 UN Comm. on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), para. 21, 51, UN Doc. E/C.12/2000/4 (Aug. 11, 2000).

36 General Recommendation 19, supra note 14.

37 Organization of American States, Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women preamble and art. 7, June 9 1994, 33 ILM 1534.

38 Id. art. 2

39 Inter-American Commission on Human Rights, Access to Justice for Women Victims of Sexual Violence in Mesoamerica, ix, OEA/Ser.L/V/II. Doc. 63 (2011). See also, Maria Da Penha v. Brazil, Case 12.051, Inter-Am. Comm’n H.R., Report No. 54/01, OEA/Ser.L/V/II.111, doc. 20 rev. 704 (2001).

40 Council of Europe Comm. of Ministers, Recommendation Rec (2002)5 on the Protection of Women Against Violence, 794th Sess., para. 34 (Apr. 30, 2002); 2010 O.J (C285 E) 53 preamble, art. 1 (26 Nov 2009) (Eur. Parl. Resolution on the Elimination of Violence Against Women).

41 1986 O.J. (C176) 73 (Jul 14, 1986) (European Parliament Resolution on Violence Against Women).

42 Id. art. 24 (emphasis added).

43 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, and replacing Framework Decision 2001/220/JHA, 2012 O.J. (L 315) 57.

44 Council of Europe, Convention on Preventing and Combating Violence Against Women and Domestic Violence, art. 36 para. 36, May 11, 2011, C.E.T.S. No. 210.

45 African Commission on Human and Peoples’ Rights, Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, art. 1(i) (July 11, 2003) (emphasis added). As of December 2015, only three out of 54 African countries have not signed the Protocol and 38 states have ratified it. African Commission on Human and Peoples Rights, Ratification Table, available at African Commission on Human and Peoples’ Rights, Protocol to the African Charter on Human and Peoples’ on the Rights of Women in Africa.

46 At least 11 Asian countries explicitly criminalize marital rape, including Nepal, Thailand, Indonesia, and China. See World Bank, Protecting Women From Violence (2015). See also Meera Dhungana v. His Majesty’s Government et al., Writ No. 55 of the year 2058 Bs (2006 AD) (Nepal).

47 Comm. on the Elimination of Discrimination against Women, Report of the Committee on the Elimination of Discrimination Against Women 195, paras. 333–334, UN Doc. A/57/38 (2002).

48 Rebecca Cook et al., Report to the UN Special Rapporteur on Violence against Women – Analysis of Canadian Law, quoted in the submis sion of Interights in the case of M.C v Bulgaria, 2003-XII Eur. Ct. H. R. 1, 12 April 2003.

49 Human Rights Watch, Afghanistan: Surge in Women Jailed for “Moral Crimes” (May 21, 2013); Amnesty International, Hungary: Cries Unheard: The Failure to Protect Women from Rape and Sexual Violence in the Home 4-5, AI Index EUR 27/002/2007 (2007); Mollmann, Marianne, Ending Impunity for Rape, Wash. Post (Dec. 27, 2008)Google Scholar.

50 Comm. on the Elimination of Discrimination against Women, Concluding Comments: Hungary, paras. 20-21 UN Doc. CEDAW/C/HUN/CO/6 (Aug. 10, 2007); Inter-American Commission on Human Rights, Access to Justice For Women Victims of Sexual Violence in Mesoamerica, IX, OEA/Ser.L/V/II. Doc. 63 (2011); Council of Europe Comm. of Ministers, Recommendation Rec (2002)5 on the Protection of Women Against Violence, 794th Sess., para. 34 (Apr. 30, 2002).

51 Bumiller, Kristin, Feminist Collaboration with the State in Response to Sexual Violence, in Gender, Violence, and Human Security: Critical Feminist Perspectives 191 (Tripp, Aili Mari et al. eds., 2013)CrossRefGoogle Scholar.

52 For example, see Jennifer Koshan, The Legal Treatment of Marital Rape and Women’S Equality: An Analysis of the Canadian Experience (2010).

53 Stop Violence Against Women: A project of the Advocates for Human Rights, Marital and Intimate Partner Sexual Assault (Aug., 2013).