Property Grabbing
- The CEDAW Committee’s General Recommendation No. 29 makes clear that property grabbing should be criminalized. See: Para. 53. The Canadian HIV/AIDS Legal Network defines property grabbing as “practice whereby the property of a deceased person is taken from the surviving family members and heirs to whom it rightly belongs.” It provides the following criminal definition:
Article 48. Property dispossession
(1) No person shall, before the distribution of the deceased’s estate, eject a surviving spouse or child from the matrimonial home.
(2) Any person who, before the distribution of the deceased’s estate:
(a) ejects a surviving spouse or child from the matrimonial home;
(b) deprives an entitled person of the use of:
(i) any part of the property of the entitled person; or
(ii) any portion of the remainder which the entitled person stands to inherit under this law;
(c) removes, destroys or otherwise unlawfully interferes with the property of the deceased person; or
(d) removes any children from the care and control of the surviving parent, unless mandated by [relevant child protection services]; commits an illegal act and is punishable by a fine not exceeding [monetary amount] and/or a term of imprisonment not exceeding [number] years.
(3) Any person ejected from her or his matrimonial home, or who has her or his property removed, destroyed or otherwise unlawfully interfered with, may file a civil cause of action against the perpetrators of said conduct for the return of the property, for its value if it has been destroyed, and for damages.
(See: Canadian HIV/AIDS Legal Network, Respect, Protect and Fulfill: Legislation for Women’s Rights in the Context of HIV/AIDS, Vol. Two: Family and Property Issues, 2009)
- Drafters should consider whether to create a specific offense of property grabbing or address it through other related criminal laws. For example, other related criminal laws may address components of property grabbing, including theft, conversion, embezzlement, criminal breach of trust, unauthorized use of property and criminal trespass. These criminal laws should prohibit the taking of the home, land, livestock, and other moveable property. Laws should increase the penalties when such theft is carried out using violence, threats including threats of bewitchment, intimidation, dangerous weapons or sexual assault. See: Section on Definition of Property Grabbing and Adverse Possession.
- Drafters should review laws and ensure correlation between criminal and civil legislation regarding marital property. Civil legislation should provide for a full community of property regime, which considers all property and money brought into and obtained during the marriage joint property. Community of property regimes should be set up to account for women’s non-documented contributions to the property, including domestic labor, agricultural work, and childrearing.
Illustrative Examples:
Malawi: The Deceased Estate Act (2011) makes property grabbing an offence and that protects a spouse’s rights in the estate of the deceased. The law with its enhanced penalties was passed after a decade-long campaign by activists in Malawi.
Section 16 of the Act clarifies that in cases of intestate succession, “every spouse of the intestate shall be entitled to retain all the household belongings which belong to his or her household.” Section 84 (A) specifies that:
Any person not being entitled thereto under a will or upon any intestacy who, in contravention of the will or of this Act, takes possession of, grabs, seizes, diverts or in any manner deals in, or disposes of, any property forming part of the estate of a deceased person, or does anything, in relation to such property, which occasions or causes or is likely to occasion or cause deprivation or any form of hardship to a person who is entitled thereto under the will or upon the intestacy, shall be guilty of an offence and liable to a fine of K1,000,000 and to imprisonment for ten years and in addition to such sentence, the court shall make an order directing that-
(a) the property or the monetary value thereof be immediately restored to the person or persons lawfully entitled thereto or to the estate of the deceased person; and
(b) the whole, or such part as the court shall specify in the order, of the fine imposed be paid to the person or persons entitled or into the estate of the deceased person. See: Robyn Curnow and Jenni Watts, Lawyer Fights Widow Sex Tradition in Malawi, CNN.com, March 21, 2013.
India: Where an executor of a will or administrator of an estate abuses his position to engage in property grabbing of the deceased’s estate, legislation should criminalize such abuse of authority. India’s Penal Code contains such a provision, entitled Criminal Breach of Trust:
“Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust.”
Forced Eviction
- Legislation should criminalize forced evictions and punish perpetrators who forcibly evict widows. Criminal laws should also punish other offenses used to effect the forced eviction, such as violence, threats including threats of bewitchment, intimidation, use of dangerous weapons and sexual assault.
- Drafters should review laws and ensure correlation between criminal and civil legislation regarding forced eviction. Drafters should ensure that civil legislation guarantees a widow’s right to remain in the marital home with her children after her husband’s death. Civil legislation should promote due process and explore all feasible alternatives in consultation with affected persons in those limited circumstances that do allow eviction.
Extortion Laws
- Legislation should also criminalize property grabbing that is carried out with the infliction of injury, grievous injury, death or attempts thereof, or with the threat of injury, grievous injury, bewitchment or death. Drafters should model the provision of property grabbing on extortion or explicitly incorporate the offense into existing extortion laws.
- Extortion laws should include provisions that focus both on intentional infliction of fear of injury (emotional distress), as well as actual infliction of injury (physical assault).
Illustrative Examples:
Pakistan: The Pakistani Penal Code chapter on extortion focuses on the intentional infliction of fear of injury to oneself or a third person:
383. Extortion:
Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits "extortion".
384. Punishment for extortion:
Whoever, commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
385. Putting person in fear of injury in order to commit extortion:
Whoever, in order to the committing of extortion, puts any, person in fear, or attempts to put any person in fear, of any injury, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
386. Extortion by putting a person in fear of death or grievous hurt:
Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person to any other, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
387. Putting person in fear of death or of grievous hurt, in order to commit extortion:
Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of death or of grievous hurt to that person or to any Other, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
India: India’s Penal Code defines extortion, as intentionally placing one in fear of injury to herself or another: “Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion" (Article 383). India’s Penal Code similarly punishes extortion through infliction of fear of injury to oneself or a third person as offences against property (Articles 383-86). India’s Penal Code also punishes infliction of injury for purposes of extortion as offences against the human body. Articles 327 states:
“Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything which is illegal or which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Article 329 states:
“Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything that is illegal or which may facilitate the commission of an offence, shall be punished with 152[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”