WUNRN
State Obligations under CEDAW to Eliminate the Social Barriers that
Undermine Women’s Access to Justice
Simone Cusack
Senior Policy and Research Officer
Australian Human Rights Commission
54th Session of the Committee on the Elimination of Discrimination against
Women, General Discussion on Access to Justice
Palais des Nations, Geneva, 18 February 2013
Madam Chair,
distinguished members of the Committee, my fellow panellists, ladies and
gentlemen,
I have been asked to speak about the social barriers that impede women’s
access to justice—those aspects of our social and cultural lives that influence
the development and operation of our justice systems and that play a defining
role in whether or not justice is achievable for women.
Women encounter numerous social barriers in their
efforts to seek justice: limited awareness of women’s rights; cultural
perceptions of men (and not women) as rights-holders; fear of stigma and
reprisals; and, for example, the inability to claim rights when fighting for
survival, such as in conflict situations or when fleeing a situation of
domestic or family violence.
The particular barrier I want to focus on affects all
women and was raised as an issue of concern in over half of the submissions
received by the CEDAW Committee for today’s General Discussion. It’s the issue of gender stereotyping.
Harmful gender stereotypes and the practice of
wrongful gender stereotyping affect women’s ability to obtain justice in
diverse and complex ways.
Firstly, gender stereotyping affects women’s
experiences as victims of human
rights violations, beginning with whether or not a violation of women’s rights
is perceived to have occurred through to whether or not women are able to
obtain reparations for those violations.
Let me explain.
Gender stereotyping is often a key factor in the
failure of states to recognise violations of women’s rights, such as in cases
where states fail to criminalise marital rape or the rape of trans women.
Stereotyping has been shown to discourage women from reporting
or pursuing violations of their rights.
And, for some women, for example women with a disability or women
subject to male guardianship laws, stereotyping has led to the denial of
women’s legal capacity and their ability to pursue complaints in their own
right.
Stereotyping has also played a significant role in the
failure of states to investigate and prosecute violations of women’s rights,
significantly reducing women’s chances of obtaining justice. In the recent case of Isatou Jallow v. Bulgaria, for example, we saw how the stereotype
of men as heads of households and the related assumption of male superiority
influenced the decision of the State Party to investigate allegations of
domestic violence made by Jallow’s partner, but not by Jallow herself.
Stereotyping has influenced the treatment of women by
a range of different actors within the justice system, placing them at a
distinct legal disadvantage. For
example, the various inquiries into abduction, rape and murder of women in
Ciudad Juárez, Mexico, have revealed how state authorities failed to conduct
timely and effective investigations into these serious human rights abuses and,
instead, made potential victims responsible for their own protection because of
their perceived failure to comply with prescriptive stereotypes—they were out
at night, had boyfriends or because of the clothes they were wearing. The case of Atala Riffo and Daughters v. Chile, decided by
the Inter-American Court of Human Rights, provides another example. It highlighted discriminatory treatment in
child custody proceedings resulting from harmful stereotypes
related to the capacity and suitability of a lesbian parent to care for her
children.
There are also numerous examples of states failing to
punish and remedy violations of women’s rights as a result of gender
stereotyping. R.K.B. v. Turkey provides such an example. The Committee held the State
Party accountable in that case for the failure of its courts to challenge and
reject evidence submitted by an employer in an unfair dismissal case, which
relied on sexual stereotypes and the related assumption that “extramarital
relationships [are] acceptable for men and not for women and that only women
[have] the duty to ‘refrain from even the slightest offence against morality’.”
Secondly, in addition to affecting women’s experiences
as victims, gender stereotyping undermines the role and perceptions of women as
witnesses within the justice system.
There is
a long history of women’s credibility as witnesses being questioned on the
basis of stereotypes as well as women’s non-conformity with stereotypes. For some women, including women with a
disability, the effects of stereotypes are particularly pronounced. Karen
Tayag Vertido v. The Philippines—the case initiated by my fellow
panellist and now the leading international decision on stereotyping—highlights
how stereotypes affect perceptions of the competence of female witnesses. The CEDAW Committee concluded in that case
that the trial judge’s reliance on stereotypes was a determining factor in her
forming a negative view of the credibility of Karen Vertido’s testimony and a
favourable view of the accused’s testimony.
In some
cases, as we heard from Mr Tayler, States Parties have
enshrined stereotypes related to women’s credibility as witnesses into their
laws and rules of procedure, requiring women, but not men, to satisfy additional
evidentiary requirements, such as corroboration by a third party.
Thirdly, female offenders
are also affected by gender stereotyping.
By this, I mean that gender stereotyping can influence the introduction
of different crimes and whether or not women are charged with and convicted of
criminal offences.
States will often criminalise behaviour that falls
foul of prescriptive gender stereotypes and, at the same, will often take
punitive action against women who fail to conform or only party conform to
those stereotypes. For instance, gender
stereotypes play a significant role in the criminalisation of sex work and
abortion as well as in relation to the practice of charging rape survivors with
adultery in cases where they have been unable to prove rape.
And, finally, gender stereotyping also affects women’s
ability to participate in the justice
system—as judges, as lawyers, as prosecutors, as jurors and as law
enforcement officials. And, as we all
know, women’s level of participation in the justice system has significant
implications for women’s ability to access justice on a basis of equality with
men.
The multiple and complex ways in which stereotypes and
stereotyping affect women’s ability to access justice reinforce the importance
of adopting a holistic view of the obligations set out in articles 2 and 15 of
CEDAW. We need to consider the obligations
in these articles not only in their own right, but also in light of CEDAW’s
overarching object and purpose and in light of crosscutting obligations, like
those obligations found in articles 2(f) and 5 of CEDAW.
When articles 2(b), 2(c), 15(1) and 15(2) of CEDAW—the
primary focus of today’s discussion—are interpreted in conjunction with
articles 2(f) and 5, it is clear that States Parties must take all appropriate
measures to address stereotypes and stereotyping that undermine women’s ability
to access justice. In other words, it is
not enough for States Parties to guarantee women equal access to justice in
their laws and policies. They must also
take steps to address the barriers that women encounter—in this case, harmful
gender stereotypes and wrongful gender stereotyping—so that women are able to
access justice in practice.
The Committee’s General Recommendation on access to
justice provides an important opportunity to acknowledge that addressing
stereotyping is an important aspect of States Parties’ obligations to ensure
women equal access to justice. Perhaps
more importantly, it provides an opportunity to elaborate the content and
meaning of those obligations and to provide practical guidance on the types of
measures States Parties should adopt to eliminate this
particular social barrier.
The General Recommendation might explain, for
instance, that States Parties must adopt legislation and other measures to
prohibit wrongful gender stereotyping in the justice system as well as in other
areas of life.
It might clarify that courts and tribunals must
effectively enforce legal protections against wrongful gender stereotyping and
provide reparations to women whose access to justice has been compromised as a
result of being wrongly stereotyped.
The Committee might also clarify that States Parties
are obligated to take all appropriate measures to ensure that gender
stereotyping does not nullify or impair women’s right to equality of and before
the law. For example, drawing of the
Committee’s decisions in the Vertido case
and V.K. v. Bulgaria, the Committee
could again confirm that
the judiciary must take caution not to create
inflexible standards of what women or girls should be or what they should have
done when confronted with a situation of rape based merely on preconceived
notions of what defines a rape victim or a victim of gender-based violence….
It might also clarify, as the Human Rights Committee
has done, that stereotypes should not be a determining factor in deciding the
extent of women’s legal rights and protections.
And, finally, the Committee might make it clear that
States Parties must ensure that the legal capacity of women is not denied or
restricted on the basis of harmful stereotypes or wrongful gender stereotyping.
In addition to addressing stereotyping as part of its
General Recommendation on access to justice, I would encourage the Committee to
consider developing a stand-alone General Recommendation that elaborates the
full extent of States Parties’ obligations with respect to gender stereotyping
across all areas of life. After all, the
stereotypes that affect women’s ability to access justice are rarely—if
ever—limited to the justice system.
In conclusion, I would like to congratulate the
Committee on its leadership in developing a General Recommendation on the
important issue of women’s access to justice.
The Recommendation will make an invaluable and much needed contribution
to women’s access to justice around the world.
I would also like to thank the Committee, the Office of the High
Commissioner for Human Rights, the United Nations Development Programme and UN
Women for the opportunity to join this conversation and to share some of my
views on stereotyping.
Gender stereotyping has been proven to affect a wide
range of women’s rights—and women’s right to access justice on a basis of
equality is no exception. If we are to
succeed in addressing this issue, we need to tackle it with vigour at every
available opportunity. And this includes
in the Committee’s General Recommendation on access to justice.
Thank you