Justice

The justice sector, including both formal and informal justice mechanisms, is central to the enforcement of laws and ending impunity for perpetrators.

Effective justice systems are important in reducing and preventing violence against women and girls because:

• They offer women protection from current and potential aggressors through amendment of discriminatory legislation and consistent implementation of appropriate laws and policies.

• They send a message to society that the highest authorities (e.g. Judges) are committed to human rights and ending impunity for violations of those rights.

• Prosecution removes the shame often felt by survivors, contributes to their recovery, acts as a potential deterrent to offenders and an incentive for other survivors to come forward.

Strategies:

• Seizing opportunities available for justice sector reforms to institutionalize adequate responses, procedures, training and other measures that are aligned with human rights standards and recommended practice.

• Promoting training of all personnel related to judicial processes (e.g. judges, lawyers, public defenders, paralegals, prosecutors, social service providers and ombudspersons’ offices), working with faculties of law in the development of curricula and tools, and providing benchbooks on the laws related to violence against women and girls. Judicial actors themselves should be engaged in the production of such tools and materials.

• Improving court room and legal proceedings so that they are gender-sensitive and survivor-centred, such as providing improved court and legal proceedings, such as private and separate interviews for survivors and perpetrators of violence by trained interviewers; ensuring privacy and alternative means of testifying (e.g. closed circuit televisions); safe space and security guarantees for survivors before, during and after judicial processes; and witness protection.

• Providing survivors access to free or low-cost legal assistance and representation, where possible, through partnerships with women’s and non-governmental organizations and through other mechanisms. (Council of Europe, 2000)

• Establishing periodic meetings or workshops with other key personnel, such as police and health care providers, as well as NGOs providing services to survivors. This helps personnel in each sector understand their respective roles and what is required of them to ensure the survivor’s case is handled in a coordinated and effective manner.

• Partnering with women’s advocacy, survivor and legal groups to raise awareness among judicial personnel (which tend to be male-dominated) about the specific needs and experiences of survivors.

• Allowing survivors to be accompanied by victim advocates or organizations that can help them navigate the complex and often intimidating legal/judicial system and provide them with support throughout the process.

• Ensuring that survivors have a right to actively participate in all stages of legal proceedings and to be informed about the process and progress of their case. (UNDAW and UNODC, 2005)

• Making available orders of protection/restraining orders that are mandated by the court to keep perpetrators away from the victim as well as her family members when relevant, that are enforced by the police.

• Making available legal education programmes for women and girls so that they are aware of their rights, the legal protections and remedies available to them.

• Expanding women’s participation in official positions in formal and informal justice sectors (i.e. as lawyers, prosecutors, judges) as a long-term strategic objective for improved gender-responsiveness of the judiciary.

• Working with informal justice systems (traditional councils, customary and family courts) to reduce impunity and increase access to justice, while ensuring the system is aligned with international human rights standards by engaging authorities of those systems through training and mobilization of local leaders committed to women’s rights and access to justice.

• Establishing special courts for violence against women and children. The existing evidence suggests that these courts may have positive impacts in contexts where they are adequately resourced, have case management protocols and trained staff in place. (Morrison, et al., 2004)

• Implementing monitoring mechanisms, such as human rights ombudspersons or civil society monitoring of judicial outcomes, to help advance reforms of existing formal and informal justice systems. (Morrison, et al., 2004)

• Promoting protections at the national, bilateral and multilateral levels to address the rights of migrant workers, trafficked and other groups of women who are at-risk of economic and sexual violence and exploitation.

• Where they are present and a main judicial recourse, engaging Justices of the Peace (particularly relevant for rural or semi-urban areas) in training opportunities on violence against women and appropriate response protocols for case management. This is critical to counter any personal gender biases that may promote marital mediation over formal legal redress and often results in injustice for women and girl survivors (by leading to victim-blaming and pushing traditionally female roles of forgiveness and submission).

• Addressing impunity for perpetrators in transitional justice settings who have used rape and sexual assault, forced pregnancy and other serious crimes as tactics of war and removing amnesty for perpetrators of violence against women where it is incorporated in peace agreements. (FRIDE, 2008)

Lessons Learned:

• Even when appropriate laws and policies exist and the judicial system is relatively accessible, barriers of education, literacy, language and mobility mean many women do not know about their rights or laws enacted and hesitate to engage with a justice system that seems far removed and complicated to navigate.

• Men too may be unaware when their behaviours are harmful, or criminal, and community leaders may be unaware of their legal obligations.

• In addition, fear of further violence, stigma and becoming isolated, losing their children or being forced to leave their homes may prevent women from reporting violence or pursuing court proceedings.

• Stigmatizing biases on the part of justice personnel also interfere with women’s access to justice. Legal systems are often ill equipped to properly assist victims, investigate and document incidents and prosecute cases of violence against women. The vast majority of cases remain unreported and only a small percentage are brought to trial and successfully prosecuted.

• Training judges may be challenging, especially in hierarchical societies, where because of their social status some judges may refuse to participate and believe that they do not require further learning.

• Orders of protection/restraining orders are important to securing women’s safety, but may have limited impact, particularly in resource-scarce contexts, due to understaffing of police, insufficient training, weak legal systems, and barriers to accessing a protection or restraining order. They are difficult to implement without complementary community services (e.g. safe spaces, housing, economic or social support) for women survivors.

• Women will often exhaust informal systems before turning to formal justice, since they are more accessible, have social legitimacy, resolve cases quickly and at a low cost, and for lack of a formal mechanism at the local level. (ICRW and UNFPA, 2009)

• Mediation is not recommended by experts in cases of violence against women, as it incorrectly assumes that both parties have equal power in the negotiations. Women may continue in the relationship putting them at further risk of or continued abuse, without effective recourse to justice and opportunities to leave the situation.

• Special courts dedicated to handling cases of violence against women have the benefits of specialized staff and centralized services, but may also experience problems from poor coordination with criminal courts. These courts may also be costly to operate and have been concentrated in urban centres making it challenging for rural populations to have access to equitable justice services.

• Though there is limited evidence that incarceration alone leads to reduced prevalence, the justice sector may have a preventive effect when sanctions are consistently applied for crimes (Counts, Brown and Campbell, 1999 cited in Morrison, et al 2004).

• Making greater use of non-punitive measures (e.g. civil remedies, such as financial support for housing, children’s education, or other economic supports for women survivors such as vocational training and job placement, which can be especially critical, if not essential to enable women survivors to abandon situations of abuse.

See the full module on working with the Justice Sector.

Illustrative Resources:

Responding to Domestic Violence: A Handbook for the Uganda Police Force (Center for Domestic Violence Prevention, 2010).  Available in English.

Gender-Based Violence Legal Aid: A Participatory Toolkit (American Refugee Committee International, 2005).  Available in English.

The Women's Legal Rights Initiative: Paralegal Manuals on Domestic Violence for Guatemala, Lesotho (USAID, 2006). Available in Spanish.

The Women's Legal Rights Initiative: Paralegal Manuals on Domestic Violence for Lesotho, (Federation of Women Lawyers/USAID, 2006) Available in English.