Mar 8, 2010
Sandra Ka Hon Chu of the Canadian HIV/AIDS Legal Network and Priti Patel of the Southern Africa Litigation Centre responded to questions about women’s rights and HIV
Is there support under international law to criminalize marital rape? How have some countries chosen to respond to this issue?
The U.N. General Assembly has specifically identified marital rape and other forms of sexual assault as an act of gender-based violence in its 1993 Declaration on the Elimination of Violence against Women. Marital rape and sexual violence occurring within the family are also explicitly listed in the Beijing Declaration and Platform for Action as a form of violence against women, which states have a duty to combat. Furthermore, the U.N. Human Rights Committee has issued statements and recommendations to a number of countries urging them to take effective measures to combat marital rape and ensure that violence against women constitutes an offence punishable under criminal law.
In the context of the HIV epidemic, the explicit criminalization of marital rape signals recognition that married women are not immune from the risk of HIV transmission during forced sex. The failure to recognize marital rape as rape may also pose a barrier for survivors to access health services, including post-exposure prophylaxis for HIV. Despite this, in both statutory and common law, examples exist where marriage is treated as an exemption to the crime of rape, reinforcing the view that women are the property of their husbands and do not have the right to make independent choices about their actions, bodies and sexuality.
Where countries do criminalize marital rape, the manner in which this is done covers a spectrum, from removing marital rape exemptions in criminal law, to adding text specifying that marriage is not a defence to a charge of rape. Some countries have explicitly built a clause into their definition of rape that specifies that the crime is perpetrated by one person “whether or not married to the other person.” Such a clause may also be included in laws to address domestic violence.
When statutory and customary laws affecting women conflict, which legal system take precedence?
Within any country, a complicated collection of international laws, constitutional protections, customary laws and practices, statutory provisions, regulations and other forms of subsidiary law, judicial decisions and government policies may comprise the legal terrain that structures women’s rights. Where those laws conflict, it is not always clear which legal system takes precedence.
For example, in some countries, despite legal guarantees of women’s equal rights in the Constitution and other legislation, “marital powers” award husbands full legal power over their spouses and over all family property, denying women the right to administer property, sign contracts or obtain credit and, ultimately, the right to economic independence. Similarly, where constitutional and statutory law defer to customary law, it may be difficult or impossible for women to inherit or divorce. Gains made on one front may be undermined by existing rules in another, or limited in effect because of contradictory rules and processes in other laws. It is therefore imperative to prioritize the harmonization of laws and policies in efforts to legislate for women’s rights.
Why have customary laws or practices been perceived by some to be detrimental to the rights of women? If they are, how can one reconcile customary laws and practices with women’s human rights?
Customary laws have evolved over many years, impacted by a wide range of influences and serving a variety of purposes. Where customary laws have not kept pace with changing social and economic conditions, the original rationale underlying a custom may be lost, and the discriminatory aspect of the law may become more apparent and unjustifiable. For example, with the development of private property regimes, the application of customary laws that originated in the context of collective land ownership now often operate to exclude women from ownership and inheritance. As a result, women have lost the rights of use and occupancy they once enjoyed.
In particular, failures of customary law to meet evolving social conditions have some of their gravest consequences in the context of the HIV epidemic. Concerning inheritance, for example, the search for a male heir may result in increasingly distant relatives inheriting or administering estates as AIDS-related deaths affect more family members. These distant relatives may be less inclined to assume maintenance and support obligations, or to see to the best interests of the deceased’s dependants.
Prohibitions of certain customary practices, to the extent that they violate women’s human rights, may be an important step towards changing the way these customs are viewed. However, where a legal regime departs too radically from the accustomed practice, there is a possibility that the law will be ignored, circumvented or result in greater rights violations for the communities it is intended to protect. One response is to ensure, wherever possible, that statutory reforms take into account customary norms and structures and, in the process, strengthen women’s rights within those systems, while ensuring that rules and practices that perpetuate gender inequalities are eliminated. This may involve empowering customary courts to preside over issues formerly limited to civil courts or requiring customary leaders to oversee the fulfillment of minimum statutory protections for women.
Many countries already have progressive laws related to women’s rights, but implementation remains a challenge. How can activists ensure women are benefiting from laws that are intended to protect their rights?
Ideally, the law reform process should involve timely consultation with stakeholders who will be affected by, or will implement, the legislation. This is essential in order to ensure that the realities of women’s lives are accurately reflected in an appropriate legislative response. An important opportunity also exists within the legislative drafting process to include implementation provisions within legislation. By giving forethought to what realistically will be required to put the legislative provisions into practice, specific provisions can be placed within the relevant acts to concretize implementation commitments and provide accountability for the implementation and enforcement of the new law.
Provisions related to implementation could include explicit obligations on governments to: support training programs for the judiciary, police and customary leaders about new laws or legal provisions; ensure access to legal aid mechanisms; develop public education programs and campaigns that underscore the linkages between human rights, HIV/AIDS and legislative change; allocate the necessary resources for implementation; and develop monitoring and evaluation schemes.
Where such provisions are not explicitly incorporated into laws, governments should be encouraged, and in some cases may be obligated, to support and fund such endeavours to ensure that laws remain relevant and effective in order to achieve the full potential of legislative reform for women’s rights, especially in the context of HIV. For example, the Convention on the Elimination of All Forms of Discrimination against Women obligates states to condemn discrimination against women in all of its forms and to pursue by all appropriate means and without delay the elimination of discrimination. This requires states to not only adopt appropriate legislation, but also establish legal protection of the rights of women through competent tribunals and other public institutions.
What has been the response on the global stage about men's participation in reducing HIV risk? Is there room for a broader critique of patriarchy as opposed to containing the discussion within discourses of "risk behaviours"?
All international agencies have acknowledged the importance of involving men in the response to HIV, including in reducing the risk of HIV transmission. Studies have shown that, in many circumstances, women are, due to various gender and power inequities, unable to negotiate safe sex in their interpersonal relationships. Given that situation, in 2004 a joint statement from UNAIDS, the UNFPA and the WHO noted how highly vulnerable women would remain to HIV exposure unless men and women shared equal decision-making powers in their interpersonal relationships.
With respect to there being room for a broader critique of patriarchy, numerous international guidelines relevant to HIV do acknowledge the need to address structural inequalities facing women in society at large. For example, the International Guidelines on HIV/AIDS and Human Rights notes the importance of “promot[ing] a supportive and enabling environment for women, children and other vulnerable groups by addressing underlying prejudices and inequalities.” UNAIDS has listed as two of its top priorities the need for “top leadership at every level of society [to] speak out against stigma, discrimination, gender inequality and women’s empowerment”, and the enactment, publication and enforcement of “[l]aws and policies that protect women and girls against sexual violence, disinheritance and gender discrimination of all kinds, including harmful traditional practices and sexual violence in and outside of marriage”.
This rejection of a wide range of entrenched gender inequality is a first step, but more needs to be done by international, regional and local leaders and activists to mainstream a broader critique of patriarchy within the response to HIV.
There is a lot of discussion on how strengthening women’s rights will help mitigate the negative impact of HIV, but is there any hard evidence to support such an assertion?
Yes. Numerous studies have shown how something as innocuous as inequality in women’s access to property can decrease a women’s ability to protect herself against HIV and increase obstacles to accessing treatment and other services if she is HIV-positive. For example, women who are economically dependent on their husbands are much less likely to insist on using a condom or to refuse sex and are less likely to leave violent relationships. A South African study found that poorer women were more likely to have exchanged sex for money, goods or favours—all significant risk factors for HIV transmission.
On the other hand, women with access to property ownership and control of economic assets have greater bargaining power within their households and are better able to protect themselves against domestic violence and having to exchange sex to meet their essential economic needs. Evidence from Ethiopia, for example, revealed that women with land rights and autonomy to make land-use decisions were more willing to leave unhealthy marriages. One study from Zambia documents how physical and psychological abuse, as well as the fear of loss of economic support if widowed or divorced, seriously impedes HIV-positive women’s efforts to access and adhere to HIV treatment and, in some cases, prevents them from sharing their HIV status with their partners.
From the evidence we have thus far, it is clear that strengthening women’s rights is an essential piece of any broader strategy to respond to HIV effectively.
In southern Africa, it appears that HIV-positive women experience violations of their sexual and reproductive rights specifically because of their HIV status. What can and has been done to rectify this?
The sexual and reproductive rights violations HIV-positive women in southern Africa face ranges from discouraging them from getting pregnant to their coerced and forced sterilization. There is strong evidence in Namibia and South Africa that HIV-positive women were sterilized without their consent. In Namibia, legal challenges have been filed and six of the cases are expected to be heard as early as July 2010.
In addition, a number of groups in southern Africa are now focusing on documenting violations of HIV-positive women’s sexual and reproductive rights. Documenting violations of their rights can be a difficult task as many such women, having internalized the stigma around exercising their sexual and reproductive rights, do not recognize that their rights have been violated. Rights to control one’s reproduction are provided for under the Convention on the Elimination of All Forms of Discrimination against Women and the International Covenant for Civil and Political Rights.
It is hoped that, with local groups focusing on documenting violations of HIV-positive women’s sexual and reproductive rights, a clearer picture of what types of violations they face will emerge, leading to greater awareness not only among HIV positive women but among key decision-makers.
In many parts of the world, the legal framework explicitly discriminates against women. What is the best way for activists to go about changing such discriminatory laws?
Ideally, many different strategies, including law reform, litigation and raising public awareness, would be pursued in trying to strike down a discriminatory law depending on the specific local context. In southern Africa, both law reform and litigation have been successful in repealing laws that discriminate against women. For example, recently in Swaziland, the High Court held that s 16(3) of the Deeds Registry Act, which denied women married in community of property from owning property in her name, was unconstitutional. The application challenged s 16(3), arguing that it violated a women’s right to equality guaranteed under the Swazi Constitution. On the other hand, in Botswana, Parliament passed the Abolition of Marital Power Act No. 34 of 2004 that, through law reform, successfully abolished women’s status as minors.
Thus, both strategies can be effective, but should often work in conjunction with each other. Often legal action is necessary to enforce legislative victories. In other cases, when legislative reform is unsuccessful, activists may turn to courts. For example, in Botswana activists were unsuccessful in lobbying Parliament to repeal the exemption to marital rape. It may be given that activists may turn to the local courts to advocate for the repeal of the exemption to marital rape.