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Gender and Criminal Justice System
Crimes under ICC
War crimes committed as part of an armed conflict (international or non-international)
Crimes against humanity committed as part of a widespread or systematic attack directed against
any civilian population
Genocide any of the following acts committed with the intent to destroy, in whole or in part, a
national, ethnical, racial or religious group:
o killing members of the group;
o causing serious bodily or mental harm to members of the group;
o deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
o imposing measures intended to prevent births within the group;
o forcibly transferring children of the group to another group.
Gender-based violence as international crimes rape sexual slavery and enforced prostitution forced pregnancy and enforced sterilization (ex: Peru; other contexts: Czech Republic) other forms of sexual violence other forms of gender-based violence child-recruitment by armed forces or groups derogatory homosexual rhetoric newborn babies taken from women prisoners or “undesirable” parents (Spain, Argentina) shaven-women (“las rapadas”) gender-based persecution (ex: homosexuals under Nazi regime) The shaven-women (“Las rapadas”) Republican women As silenciadas Rape Ex. in Europe: o German women during Soviet occupation (A Woman in Berlin, 2012); French women during German occupation, etc.
o Spain: Queipo’s speeches: advocate the rape of working-class women by Rebel soldiers ‘so that they might make the acquaintance of real men’ o Bosnia War: between 20,000 – 50,000 women raped Not just a by-product of war but also a deliberate military strategy o Psychological harm / fear in community o Strategy of ethnic cleansing 1 Gender and Criminal Justice System ICTY / ICTR Jurisprudence ICTR Akayesu judgment, 1998 “Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or others person acting in an official capacity”.
“Measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led through threats or trauma, not to procreate”.
“I was convinced that no man would ever want to date, touch, be near me again, like I was damaged goods.” Woman raped at age 19 (The Voices and Faces Project, voicesandfaces.org) “Intimacy is hard. I remind myself the whole time that I’m with a nice guy, otherwise I can’t do it. And I haven’t been able to look at sex as an emotional thing anymore. I just kind of go through the motions.
Sometimes it’s too hard and I just can’t do it.” Woman raped by an acquaintance (The Voices and Faces Project, voicesandfaces.org) “I was too afraid to date, so I was single for a very long time. I couldn't go into a nightclub without having anxiety attacks, thinking someone was looking at me and was going to try to victimize me somehow. I was afraid to put on makeup or do anything to make myself look nice, because it might cause me to be appealing to an attacker. While I used to be fun and attractive, I became wary and plain.” Myla, raped while in the Army (The Voices and Faces Project, voicesandfaces.org) ICTY / ICTR Jurisprudence “The measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages.
In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group”.
Sexual slavery 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.
2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.
2 Gender and Criminal Justice System Forced prostitution 1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.
2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature.
ICC: Sexual and gender based crimes prosecution Rules of evidence Procedures Structure For ensuring court procedures are gender sensitive and women are not re-victimized during court proceedings Integrate gender perspective (understanding differences in status, power, roles, and needs between males and females, and the impact of gender on people’s opportunities and interactions) in its work.
ICC Rules of evidence Evidence of other sexual conduct o Evidence of the prior or subsequent sexual conduct of a victim or witness will not be admitted Consent o Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking an advantage of a coercive environment undermined the victim's ability to give voluntary and genuine consent; Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent; Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence; Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness ICC Procedures Witness Participation and Protection o Survivors have the right to participate in the justice process, directly or through legal representatives, by presenting their views and concerns at all stages which affect their personal interests.
3 Gender and Criminal Justice System o o The Court must protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, taking into account all relevant factors, including age, gender, and the nature of the crime.
The Victim Witness Unit (VWU) will provide protective measures, security arrangements, counseling and other appropriate assistance for witnesses and victims Rape consequences / trauma Dissociation or “frozen fright” during the assault Psychological Disorganization – Disorientation – Dissociation – Psychogenic Amnesia Nightmares – Flashbacks – Sleep and Appetite Disturbances – Difficulty Concentrating Constant reliving of the assault Re-appropriation of the situation / re-gain control over their lives Shock – Disbelief – Helplessness – Powerlessness – Loss of Control Guilt – Shame – Self-Blame – Loss of Self-Esteem Suppressed or intensified emotional experience Extreme Fear – Hypervigilance – Exaggerated Startle Response Extreme calm and denial Irritability and outbursts of anger Depression - Suicidal Thoughts and Actions Physical Symptoms – Pain - Fatigue – Muscle Tension – Gynaecological Problems Shame - Internalized Sense of Damage Changes in Social and Sexual Functioning Self-destructive behaviour Denying or minimizing the impact of the sexual assault Rationalizing why it happened PTSD ICC Structure Women as judges and staff o There must be a "fair representation of female and male judges” and staff of the ICC Legal Expertise on Violence Against Women o In the selection of judges, prosecutors and other staff, the need for legal expertise on violence against women or children must be taken into account.
Legal Advisors on Sexual and Gender Violence o The Prosecutor is required to appoint advisers with legal expertise on specific issues, including sexual and gender violence.
ICC in practice… Initially absence of charges for gender based crimes, overlooking the gender specific dimensions of cases: o The first ICC trial (Thomas Lubanga) did not include charges of mass rape or sexual violence Later, the court has charged sexual violence and gender based crimes in most of the situations under its investigation o But the charges are not being effectively prosecuted o more than 50 % of the sexual violence charges originally brought by the court are dismissed before trial 4 Gender and Criminal Justice System SESSION 7. Sex-work / prostitution and trafficking Contents Trafficking and Prostitution Stigma and prostitution Criminological relevance of prostitution Feminist views on prostitution / sex-work Legal approaches to prostitution in Europe Trafficking in human beings “The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” “Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs” (Council of Europe Convention on Action against Trafficking in Human Beings, 2005) Human trafficking Why is this a gender issue? o Victims o Sexual exploitation Different from smuggling migrants o Crime o Administrative offence Trafficking persons (UN Convention, 2000) EU Directive 2011/36/EU o Human Dignity o Recruitment o Transport o Exploitation Consent irrelevant Response of CJS Low reporting rates High attrition rates 5 Gender and Criminal Justice System Blaming the victim o Irregular status Implementation of protective measures Second thoughts Lack of evidence Dramatization of evil Moral Crusade against Prostitution Blurring the lines Mobility of sex workers in European cities (Siegel, 2012) Root causes and role of the law in preventing migration Human Rights approach (Bettio and Nandi, 2010) Inside one country Human Rights (IOM) o Free to move o Free to choose service o Ability to use condoms o Access to medical care o Protection from abuse Different legal models Prostitution Always a crime ≠ Trafficking (Except for abolitionist feminists, who consider that prostitution is never “consented”) But: The purpose of HT Regulation of prostitution and impact on HT Prostitution & stigma On January 24, 2011 Constable Michael Sanguinetti spoke on crime prevention at a York University safety forum at Osgoode Hall Law School. He said: o "I've been told I'm not supposed to say this – however, women should avoid dressing like sluts in order not to be victimized." http://www.slutwalktoronto.com/ “SlutWalk aims to challenge the word ‘slut’ and other degrading words around sexuality and sexual assault in their current mainstream use. We see language as an integral part of victim-blaming and slutand sex-shaming and something that needs to be discussed”.
6 Gender and Criminal Justice System Beyond stigma: criminology and prostitution Estimations o 42 million people in prostitution worldwide o 95% of them are female Why study sex work? o Coerced or consented prostitution o Trafficking in human being (organized crime) o Should adult prostitution be a criminal offence? o Victimization of sex workers o Signal crimes A heightened vulnerability Female sex workers are at a far higher risk of violence than any other group of women.
o Active sex workers are almost 18 times more likely to be murdered than women of similar age and race (UK) Reasons for female sex workers’ vulnerability o Perpetrators believe that their attacks will be underreported to police by prostitutes o “I picked prostitutes because I thought I could kill as many of them as I wanted without getting caught” (serial murder, UK) Feminist views on prostitution / sex-work Abolitionists (Radical feminists) Pro-rights feminists Gendered nature of prostitution Women as sexual objects Contribution to gender violence Women rights over their own bodies Prohibition increases trafficking and vulnerability Abolitionist model is based on a moral view on sexuality Legal models on prostitution Historically Nowadays Prohibitionist model Abolitionist model Regulationist model Abolitionist neo-prohibitionist model Abolitionist model Regulationist model Current legal models on prostitution in Europe Abolitionist neo-prohibitionist model o Abolitionist in theory (intended to protect women) but in practice, are prohibiting prostitution (street prostitution) Regulationist model 7 Gender and Criminal Justice System Abolitionist neo-prohibitionist model SWEDEN Women as victims Prostitution = Trafficking = VAW o Women are given exit strategies o But foreign women in prostitution are expelled Clients as criminals o fines or imprisonment for buyers (up to 6 months) o in practice, not any case of imprisonment Proposed legislation in France and Canada Critics: o Increase of stigmatization of women in prostitution o Only reduces street prostitution Increase of clandestine prostitution risks & exploitation 2009: app. 90 Thai-massage salons in Stockholm 2012: app. 250 UNITED KINGDOM Prostitution is not illegal, but most of prostitution related activities are o Offering sexual services in public space is illegal o Asking for sexual services is illegal o Brothels are illegal, o Pimping is illegal, etc.
Critics: o Increases vulnerability of women in prostitution Women are less likely to report crimes they suffer o Leads to more hidden and clandestine prostitution o Decrease in specific services offered to women in prostitution FRANCE Regulation model from 18th century – 2WW 1960 abolitionist model 1990’s – 2000’s o increase of foreign women in prostitution o demand of “cleaning” in diverse neighbourhoods 2003 Internal Security Act Prostitution is not illegal, but most of prostitution related activities are French model: o offering sexual services in public space is illegal o buying sexual services from minors or vulnerable persons is illegal, o pimping is illegal, o prostitutes pay taxes but are not covered by the social security system 8 Gender and Criminal Justice System o immigrants in prostitution may be expelled from the country Critics: o increase precariousness of sex-workers in society o increase stigmatization of sex-workers o prostitution as a problem of security and criminality instead of a problem that should be treated from a social perspective ITALY 1958: Merlin Law (current law) o Brothels are illegal, and pimping (“proxenetismo”) is illegal o Prostitution is not a crime but offering sexual services in public spaces may be an administrative offence (scandal or annoyance) o Local regulations on public security since 2008 lead to a factual prohibition of prostitution Critics: o Many sex-workers, mostly immigrants, have to go to work in places that are far from city-centres, or very late at night because in other way, prostitution is considered a public annoyance.
o Increased mistrust in authorities o Virtual prohibition of prostitution in streets leads women to an increased risk of exploitation and trafficking Regulationist model AUSTRIA 2012, Supreme Court prostitution is no longer considered as “immoral” contract Pimping is illegal Diverse regulations in different Länders (some allow street prostitution, some prohibit it) Diverse models of registry (Ex. at the police) and health controls Sex workers pay social security and taxes Critics: o In some Länders there’s a virtual prohibition of sex work o Regulation focuses on public order and leads to “hide” prostitution from public sight HOLLAND 1999 prostitution and brothels are legal Sex work is considered a form of legal work Red light district, regulation of brothels Medical controls offered but not compulsory Registry before Tax and Commerce authorities 9 Gender and Criminal Justice System Critics: o Sex work is considered a form of legal work, but it does not allow legal residence status for immigrants undocumented clandestine sex work o Most of “window room” workers are not under labour law, but working as independent workers (social security). Muchas mujeres no quieren hacer constar en su curriculum que trabajaron como porstitutas, por ello trabajan como independientes.
GERMANY 2002 Federal Law on Prostitution labour rights But prostitution is not a work as any other, workers have more autonomy and cannot be forced to perform sexual services Diverse Länders have different regulations: time or zone limits (city centres, usually excluded) diverse systems for tax payment Critics o Most sex workers are not under contract Women do not want contracts as prostitutes o Law on prostitution mostly benefits brothel’s owners Legal model in Spain Regulation in Spain (very restrictive) o Historical regulation: Act 16/1970 of 4 August on social menace and rehabilitation (Ley de peligrosidad y rehabilitación social) Moral legislation o Criminal Code: “Pimps” are criminalized o Recently: cooperatives in Spain o Administrative offence In general terms: Diverse models have in common: interest in eradication of prostitution from certain areas (street work) o Hygienist interests and gentrification processes (in the cities where new populations displaces old populations to a new area).
Vulnerability of sex workers is higher indoors There is also a need to recognize that not all sex workers see themselves as victims, oppressed, or exploited. Instead, many can and are taking control of their own lives, finding solutions to their problems, acting in their individual and collective interests and contributing to the fight against HIV/AIDS. (WHO, 2005) 10 Gender and Criminal Justice System “Laws that criminalize sex work and the sex industry should be reviewed, taking into account the adverse impact of these laws on public health and the human rights of sex workers. To enable sex workers to fully enjoy legal rights to health and safety at work requires decriminalization. Decriminalization of sex work requires the repeal of: a) laws explicitly criminalizing sex work or clients of sex workers; b) laws that criminalize activities associated with sex work, including removal of offences relating to: soliciting; living on the earnings of sex work; procuring; pimping; the management and operation of brothels; and promoting or advertising services; c) laws that require mandatory HIV or STI testing or treatment of sex workers; d) laws that authorize the compulsory detention of sex workers for the purpose of reeducation, rehabilitation or correction.” (UNDP, 2012) Initiatives to decriminalise sexwork International Council Meeting (ICM), Amnesty International, 2015: o “Sex workers are one of the most marginalized groups in the world who in most instances face constant risk of discrimination, violence and abuse. Our global movement paved the way for adopting a policy for the protection of the human rights of sex workers which will help shape Amnesty International’s future work on this important issue” 11 ...