Groundbreaking laws change women's world
Strategic litigations have helped stop discrimination and promote equality of women, says the maiden report by UN Women. These litigations have enhanced the legal understanding of women's human rights, thus making positive changes in their lives.
Delhi: The first ‘Progress of the World’s Women’ Report brought out by the new UN entity, UN Women, focuses on justice. In this telling extract from the Report, we bring you four stories of women who refused to stay silent in the face of injustice, who persisted in spite of overwhelming obstacles to use all legal avenues available in pursuit of their cause, and ended up changing the world.
Women who refuse to stay silent in the face of injustice, who persist in spite of overwhelming obstacles to use all legal avenues available in pursuit of their cause, these women have changed the world.
Strategic litigation is the process of bringing a case to court with the goal of creating broader legal and social change. Alongside political lobbying and mobilising social movements, it is a tactic that advocates have used to challenge gender discrimination and raise awareness of women’s rights.
Where it is successful, strategic litigation can have groundbreaking results. By identifying gaps and changing laws that violate constitutional or human rights principles, such cases can motivate government action to provide for citizens, guarantee the equal rights of minorities or stop discrimination. The greatest impact is achieved when cases are part of wider campaigns for social change that provoke public debate and discussion in the media, to help ensure that progressive decisions are embraced by society as a whole.
The cases highlighted have increased women’s access to justice in countries all over the world. Some have advanced the legal understanding of women’s human rights under international law and confirmed that they are enforceable at the national level; have enforced or clarified laws already on the books; some have challenged laws that should be repealed; and some have created new laws. All have led to positive changes in women’s lives.
When a husband rapes his wife, it is a crime
Meera Dhungana on behalf of FWLD v HMG
In Nepal, married women subjected to rape by their husbands had no recourse to justice until 2002, when the Forum for Women, Law and Development (FWLD) brought a case to the Supreme Court. The case invalidated the provision of the criminal code that exempted husbands from being charged with the rape of their lives.
In rejecting the Government’s argument that outlawing marital rape would offend Hindu beliefs, the ruling also ended the conflict between the country’s Muluki Ain civil code, based on Hindu religious principles, and the 1990 Constitution, which pledges to end all forms of gender discrimination. The Court stated: “Sexual intercourse in conjugal life is normal course of behaviour which must be based on consent. No religion may ever take it (marital rape) as lawful because the aim of a good religion is not to hate or cause loss to anyone.”
The Court ordered Parliament to amend the rape law, but the penalty for marital rape was set only six months’ imprisonment, significantly lower than for other types of sexual assault. FWLD went back to court, winning a decision that the difference in penalties was discriminatory and that the law must be amended.
Cases such as these reflect sweeping changes to the assumption that a wife implicitly consents to all sexual activity. By April 2011, at least 52 States had explicitly outlawed marital rape in their criminal codes.
Women have the right to be free from sexual harassment in the workplace
Vishaka v State of Rajasthan
When Bhanwari Devi was gang-raped by local men while doing her job as a social worker in a village in Rajasthan, India, she not only initiated criminal proceedings, but she also sought a broader remedy for other working women. Supported by five women’s organisations, including Vishaka, she took the case to the Indian Supreme Court, where in 1997 she eventually won watershed recognition of sexual harassment in the workplace, against which the Government had an obligation to provide legal protection.
Undeterred by the absence of existing sexual harassment laws, the Court’s decision recognised the right to gender equality and to a safe working environment free from sexual harassment or abuse, based on the Constitution and India’s international obligations under CEDAW. The Court used the case to produce the first enforceable civil law guidelines on the rights of working women to be free from violence and harassment in both public and private employment. This prompted the Government to introduce a long-awaited bill prohibiting sexual harassment in the workplace in 2007.
The case has also inspired other reformers in the region. In 2009, the Supreme Court of Bangladesh, referring to the Vishaka case, recognised that the ‘harrowing tales of repression and sexual abuse of women in their workplaces’ were a result of the Government’s failure to enact a sexual harassment law. The detailed guidelines on protection against sexual harassment set out in the case now have the force of law in Bangladesh until the Government enacts the relevant legislation. Similarly, in Pakistan, advocated looked to the Vishaka guidelines in preparation for their successful push for legislation to protect women from harassment in the workplace.
It is not enough to have laws in place, they must be implemented
Sahide Goekce (deceased) v Austria and Fatma Yildirim (deceased) vs Austria
Sahide Goekce and Fatma Yildirim were both murdered by their husbands following years of brutal abuse. Despite reporting the violence to the police and obtaining protections orders, lack of coordination among law enforcement and judicial officials results in repeated failure to detail the offenders and ensure the women’s safety.
Two non-governments organisations (NGOs) took the cases to the CEDAW Committee under the Optional Protocol. The Committee’s decisions on the cases in 2007 were of global significance because they made clear that the State’s obligation to protect women from domestic violence extends beyond passing laws. The Committee found that Austria had failed to act with ‘due diligence’, by not ensuring that the law was implemented properly in the Goekce case the Committee said: ‘In order for the individual woman victim of domestic violence to enjoy the practical realisation of the principle of equality of men and women and of her human rights and fundamental freedoms, the political will…must be supported by State actors, who adhere to the State party’s due diligence obligations.’
In response to the Committee’s recommendations and the media attention that surrounded the case, the Austrian Government introduced and accelerated legal reforms to protect women from violence, including an amendment to the Code of Criminal Procedure, new protection measures and the creation of specialised domestic violence prosecutors. In order to support these reforms, the Government increased funding for implementation of the law by 60 % in 2007.
Maria da Penah Fernandes v Brazil
As she slept at her home in May 1983, Maria da Penha Pernandes was shot by her husband. Having suffered years of debilitating abuse, the mother of three children was left paralysed from waist down. Two weeks after her return from the hospital, her husband attempted to electrocute her. The case languished in the criminal justice system for years and Maria’s husband remained free for nearly two decades. When he was finally sentenced in 2002, he served just two years in prison.
In this landmark ruling, the Inter-American Court of Human Rights held the Government of Brazil responsible under international law for failing to take effective action to prosecute and convict perpetrators of domestic violence. It stated that: ‘Failure to prosecute and convict the perpetrator…is an indication that the Brazilian State condones the violence suffered by Maria de Penha and this failure by the Brazilian courts to take action is exacerbating the direct consequences of the aggression by her ex-husband.’
The case contributed to the growing international consensus that States have a legal obligation to take positive steps, measured by the standard of ‘due diligence’, to uphold women’s human rights.
In 2006, the Government of Brazil enacted domestic violence legislation, symbolically named the Maria da Penha Law on domestic and family violence, mandating preventive measures, special courts and tough sentences. Maria da Penha continues to campaign for justice for survivors of domestic abuse and is outspoken about the need for thorough implementation of the law.
(Excerpted from UN Women’s ‘Progress of the World’s Women 2011-12: In Pursuit of Justice’.)
