CEDAW: General discussion on women and access to justice
Women’s capacity to access justice is hindered by structural inequalities and pressure coming from traditional stereotypes. The failure of the system to provide justice for women prevents them from filing grievances and suing or prosecuting those who violated their rights. This remains a significant human rights challenge.
On the occasion of this general discussion organised by the Committee on the Elimination of Discrimination Against Women (CEDAW), the room was fully packed, which is a sign of the high interest from States parties and civil society in this fundamental issue of women’s access to justice.
The purpose of this discussion was to gather ideas and recommendations from experts, States and NGOs, in order to draft a General Recommendation in 2013.
Not enough information
Many women are uninformed about the processes and the various possibilities they have to access justice. In many countries, women suffer from a lack of education, which prevents them from reading and understanding complicated legal language.
Moreover, they have very limited awareness of their rights, which undeniably excludes women from the judicial system and prevents them from defending themselves and obtaining remedies and reparations.
This issue is particularly serious for migrant women: in addition to the lack of information, they also have to face cultural and language barriers if they do not speak the national language.
As the International Commission of Jurists pointed out, police officers often lack guidelines and information on women’s human rights violations. They therefore don’t know how to respond to violence against women, since they do not always know what constitutes a violation. There is therefore a critical need to combat this lack of education and information among police.
Furthermore, women very often endure harmful gender stereotypes, especially when they try to bring complaints to the police. In cases of gender violence such as marital rape, they are usually discouraged to prosecute these violations, on the grounds that these are private issues that have to be dealt with amongst the family, not in a public trial.
Women’s credibility as victims and witnesses is often challenged by police officers and even judges who reproach women for their clothes and behaviours that they consider provocative.
Furthermore, several experts raised the issue of wrongful criminalization, i.e. the fact that on the one hand women’s behaviours such as abortion and sex work are criminalized, while on the other hand marital rape, forced marriages and honour killings are not always considered as violations in many countries and can therefore remain unpunished.
That is why many UN experts, State representatives and NGOs called for wider participation and involvement of women in the judicial system, as judges and lawyers, and in particular in decision-making positions within the police and justice. This would be the first step to eradicate these appalling stereotypes against women. But trainings on gender equality will also be needed.
Specific procedures that are more protective and respectful of women’s rights should also be part of the solution. The Australian and Brazilian representatives stated that their countries have implemented specialized units within the police to deal with family and women’s issues.
The lack of recognition of women’s rights by customary judicial systems
It is often easier for women, especially for indigenous and rural women, to have access to traditional and informal systems of justice. Yet most of these systems are highly discriminatory and have a negative impact on women’s rights.
Discriminatory judicial practices are still very present in some countries (for instance in some Islamic republics) where informal systems of justice are still prevalent. That is why it is important to take such systems into account to ensure that customary principles do not contradict the CEDAW Convention, and that they do not override the principle of equality.
Avocats Sans Frontières suggested the inclusion of customary justice actors in the formal justice system to encourage both systems to cooperate with each other, not only in order to facilitate women’s access to justice but also to end discrimination against them.
Financial and economic barriers
Owing to the multiple costs that access to justice encompasses, the poorest populations often cannot afford access to justice. Women living in poverty are disproportionately impacted: many of them are dependent on their husbands and therefore cannot prosecute them in case of violations.
As Magdalena Sepulveda (UN Special Rapporteur on extreme poverty and human rights) stated, justice is incredibly expensive for women living in poverty, not only for criminal matters but also for civil cases, since most of the time they do not enjoy free legal aid for such procedures.
Moreover, they also risk losing their job since their employers are unlikely to give them permission to leave work for attending sessions at the tribunal, not to mention some women cannot rely on anyone else for childcare.
Furthermore, women also have to face inequality of arms: in case of divorce, their husbands can afford good lawyers, but women cannot if they financially depend on men, which creates a huge imbalance in the trial and more generally in access to justice.
There is an obvious and critical need to secure women’s access to justice; their rights are violated not only during the assault but also during the whole litigation. Therefore, it is now time to move from acknowledgement to action. To this end, many experts and civil society members called for a holistic and comprehensive approach in order to eliminate discrimination against women, not only in their access to justice, but also in the daily stereotypes they have to face.
WILPF is looking forward to contributing to this important dialogue and to the new General Recommendation by CEDAW on this matter.