Tema 3 (2016)Apunte Inglés
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Gender and Criminal Justice System
"Discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of
sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any other field.
Two types of discrimination: Direct: purpose/intention It has the purpose or intention of impairing or nullifying the recognition, enjoyment or exercise of rights by women, it wants to exclude.
Indirect: consequence/effect Discrimination is not the intention, but is an effect, a consequence.
Example 1: Increasing the cost of university. Doing this, certain groups (poor class) are excluded.
Example 2: Unconscious bias Some forms of discrimination that are not evident. We have prejudices about some groups.
Example: When we ask who the boss is, we assume that it will be a man, because we see authority as a masculine thing.
Positive discrimination (Spain) vs. Affirmative action (International) Affirmative action is a policy of favoring members of a disadvantaged group who suffer from discrimination within a culture.
It is a policy or law intended to overcome an historical or actual situation of discrimination. Affirmative action is never discrimination; it has the purpose of correct discrimination. For this reason, the concept of “positive discrimination” is wrong.
SESSION 3. Gender-based violence and gender-based violence against women Contents Discrimination, violence and human rights Gender-based violence (GBV) o Violence against women (GBVAW) o Difference between GBV and GBVAW GBV / GBVAW and the Criminal Justice System o GBVAW and Domestic violence 1 Gender and Criminal Justice System Discrimination, violence and human rights Rule of law human rights non discrimination principle Violence and human rights: o Life, physical and psychological integrity, health, etc.
When violence is based on race, sex, gender, sexual orientation, religion, etc. is considered a form of discrimination.
Violence as human rights issue The States have to take adequate measures to prevent and punish violence: o criminal legislation and criminal justice o crime prevention When violence is also a form of discrimination: o Measures must be adequate to prevent and punish that kind of violence o The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights States cannot be passive in front of discrimination, because if they do this, they are encouraging discrimination. The measures have to protect the discriminated groups.
Gender based violence Violence that is targeted at women or men because of their sex and/or their socially constructed gender roles.
Example: suicide of Alan, a transgender boy Includes but it’s not limited to sexual violence Principally affects women and girls across all cultures violence against women (VAW) GBV against men / boys and LGTB people It doesn’t affect only LGTB people, it also can affect to heterosexual women/men that don’t wear clothes in accordance with their gender.
Perpetrators may include family members, community members, state agents, etc.
Examples of gender based violence GBV against men/boys o Armed groups: forced recruitment of children (boys) Soldier boys: They force these boys to join the army to express their masculinity. If they don’t do it, they are considered as feminine and harassed for this reason.
o Collective assumptions on masculine identity, nationalism and militarism GBV against LGTB people o Harassment, aggression, etc.
o Ex: Killing of Sònia Rescalvo (Parc de la Ciutadella, 1991) 2 Gender and Criminal Justice System Gender based violence GBV "punishes those who deviate from what is considered normal in terms of social roles assigned to men and women, and punishes divergent behaviors and sexual options” (Juliano, 2006) GBV & GBVAW GBV includes GVVAW, but it is not limited to VAW o GBVAW is the most prevalent form of GBB HOWEVER, some legislations confuse GBV and GBVAW o EX: Spanish legislation on “violencia de género” (LO 1/2004) “Violencia de género” is a limited concept: only refers to IPV against women in heterosexual relations.
GBV GBVAI GBVAW GBVTG GB Violence against women GBVAW encompasses many forms of violence, including o violence by an intimate partner (intimate partner violence, IPV) o violence (mostly sexual) perpetrated by someone other than a partner (non-partner sexual violence) o female genital mutilation, honor killings* trafficking of women, etc.
*Honor killing: all those killings of women (usually) that are justified as a form to restore and preserve the honor of the family. Example: a women killed by stoning 35% of women worldwide have experienced either physical and/or sexual intimate partner violence or non-partner sexual violence.
o GBVAW is a public health problem of epidemic proportions Most of GBVAW is intimate partner violence: o Worldwide, almost one third (30%) of all women who have been in a relationship have experienced physical and/or sexual violence by their intimate partner.
Intimate partner abuse A batterer is generally not trying to hurt the woman he batters only to cause injury, but to dominate her so as to gain power and control over every facet of her life.
3 Gender and Criminal Justice System The violence is used as a tool to instill fear in his victim. This fear -kept fresh by renewed incidents of violence- is what allows a batterer to exercise power and control over his victim, often over a long period of time.
GB VAW and the role of the Law Historically, many forms of GBVAW (IPV) were not considered as crimes: o ”Moderate" punishment was socially and legally accepted, both by doctrine and judicial practice o Ancient Rome: patriarchal model (ius corrigendi) o Based on the duty of obedience set in biblical messages (Siete Partidas, Ordenanza de Alcalá, Ordenanzas y Leyes de Toro) o Under the Common law, in the United Kingdom, the traditional husband’s right to inflict moderate corporal punishment to his woman was removed in 1891 (case R. v Jackson) Criminal law & GBVAW UK: The Domestic Violence Act, first introduced in 1976 enables women to obtain a court order against their violent husband or partner Spain: Ley Orgánica 3/1989 (habitual domestic violence) 1970’s second wave feminism first shelters for battered women in UK and USA 4 Gender and Criminal Justice System Report of the UN Secretary-General on the 20- year review and appraisal of the implementation of the Beijing Declaration (E/CN.6/2015/3) A major obstacle for ending violence against women is the persistence of discriminatory attitudes and social norms that normalize and permit violence.
Victim-blaming attitudes* are widespread across all countries. Data from 37 developing countries show that 21 per cent of women believe that a husband is justified in beating his wife if she argues with him.
Similarly, 27 per cent of women believe that a husband is justified in beating his wife if she neglects the children. While those surveys collected data from women about their attitudes, surveys of men also reveal high levels of acceptance of violence against women. A 2010 survey conducted in 15 out of 27 States members of the European Union asked whether women’s behaviour was a cause of domestic violence against women. The proportion of individuals who agreed with this statement averaged 52 per cent and ranged from 33 per cent to 86 per cent across countries.
*Victim blaming attitude considers that violence is the fault of the victim. Example: She has earned it, she deserves it, etc.
CJS & GBVAW: Main problems Sentencing & treatment / rehabilitation o emotional / social / economics effects of incarceration o rehabilitation models: interventions have a minimal impact on reducing recidivism beyond the effect of being arrested (Babcock, Green and Robie, 2002) Underreported o women who don’t report IPV fear, isolation, shame, etc.
having children past failures of the system to respond religious and/or societal pressures class / race factors (economic dependency, migrant status) –intersectional analysis Report of the UN Secretary-General on the 20-year review and appraisal of the implementation of the Beijing Declaration (E/CN.6/2015/3).
While global data are not available, a study of 42,000 women undertaken across 28 member States of the European Union found that only one third of victims of partner violence and one quarter of victims of nonpartner violence contacted either the police or support services following the most serious incident of violence. Victims reported the most serious incident of partner violence to the police in only 14 per cent of cases.
Police officers and mandatory arrest policies o US: Debate about police officers role early 1980’s: small study of policy responses to domestic violence calls (Minnesota): arrests were the most effective strategy for reducing future violence o 1980’s: “Mandatory arrest” laws (MAL, 22 States and DC) o Now: number of murders committed by IP is significantly higher in states with MAL than it is in other states.
Mandatory arrest laws: it consists in the intervention from the very beginning in VAW cases. Every time that women call the police, they would arrest the husband, no matter for what problem.
5 Gender and Criminal Justice System Investigate and prosecute, no matter what the victim says. In most of the cases, women withdraw the case because of the emotional relation that they had with the perpetrator.
The intention of that policy was good (reduce domestic violence), but the consequences not: many more women were killed by their partners in that states that had applied this law. Women knew that if they call the police, they would arrest the perpetrator, so women didn’t call and then more were killed.
Prosecution: Women’s will and ‘no drop’ policies o Victim’s empowerment model of domestic violence advocacy A battered woman regains her autonomy by making decisions for herself / women as decision maker. Women’s decisions will be taken into consideration always.
o No drop policy the state prosecutor decides whether to prosecute a domestic violence perpetrator, regardless of the victim’s wishes.
general state interest of ending abusive relationships Debate 1. Feminists consider that if women withdraw the case, it will be impunity.
2. We have to respect the decision of women.
Women on trial o women who are not the “ideal victim” o innocent victim / less innocent victim (victim precipitation, provocation) “the possibility of being considered both an agent and a victim is limited in the criminal judicial discourse and women risk having to deny their agency to be offered full criminal legal protection against violence in heterosexual relationships” (Burman, 2010) Women: between victimization and agency Agency is a factor that is considered as negative.
In Spain exists the legal possibility for the victim of not to declare in front of the perpetrator during the trial, they don’t have to do it if they don’t want (cannot be forced). It isn’t a decision to protect exclusively women, it comes from an old law based in the values of family (catholic vision of family) based in the right of not to declare one against each other.