Thursday, July 6, 2017

Legal frameworks 2/15

4. Most replies included information in relation to the respective domestic legal framework, including the definitions of relevant criminal offences and other legal provisions concerning the elimination of gender-related killing and other forms of violence against women.

 A. Relevant offences

5. Most States reported on their national criminal legislation and on how it related to punishing gender-related killings of women and girls. Several States reported that the killing of women and girls was covered by criminal law provisions on homicide, murder or manslaughter.1 Saudi Arabia noted that the killing of women was a criminal act under the provisions of sharia law.

6. Several States made reference to criminal law provisions concerning  gender-related aggravating factors for homicide and other offences. In some cases, these provisions were formulated in a gender neutral manner while others specifically applied to women. Some States considered specific motives as aggravating factors (Belgium, Canada, Spain and Turkey). In Belgium, hatred against, contempt for, or hostility to persons because of their sex was one of the grounds on which the penalties of specified crimes could be increased  (articles 33-42 of the law against certain forms of discrimination of 10 May 2007). The penal code of Canada provided for aggravated sentences where an offence was motivated by bias, prejudice or hate based on the sex of the victim  (paragraph 718.2 (a)(i)). In Spain, the penal code (article 22(4)) also envisaged the commission of a crime on discriminatory grounds regarding the victim’s sex as  an aggravating circumstance. Committing crimes due to motives of honour and custom was included as aggravating circumstances in the penal code of Turkey  (article 82(k)).

7. In other cases, factual circumstances were considered as aggravating factors. Some States considered as an aggravating circumstance the fact that the victim of homicide or other offences was pregnant (Russian Federation and Turkey) or was the spouse of the perpetrator (Belgium, Spain and Turkey). The penal code of the Russian Federation required that the offender knew that the victim was pregnant (articles 63 and 105, subpara. 2(d)), and included homicide attended by rape or violent sexual actions as another aggravating circumstance (article 105(2)(j)). In Belgium, marital rape was considered an aggravated form of rape. Spain reported on the introduction of aggravating circumstances for certain offences when the victim was a woman and presently or previously in an intimate relationship with the perpetrator (articles 33-42, organic law 1/2004). The domestic law of Sweden included an aggravated form of assault that included repeated assault and other violations committed by a closely related person. In addition, aggravating circumstances included the exploitation of another person’s vulnerable position or that person’s special difficulties in protecting him or herself.

8. Only States from Latin America (Chile, Ecuador, Guatemala, Honduras and Mexico) reported that they had specifically criminalized forms of gender-related killing (as “femicide” or “feminicide”). Chile’s Law 20.480 provided that the offence of femicide is committed when the victim is female and is killed by former spouses or former cohabitants. It also established a broad defence of criminal responsibility in cases of women that experienced a history of violence before attacking or killing their partners. In Ecuador a code was adopted on 13 October 2013, defining the crime of femicide. Article 141 of the code defined the offence of femicide, and article 142 included aggravating circumstances of femicide.2 Through a penal reform in 2013, the offence of femicide was introduced in Honduras. In Mexico, this offence was included in the federal penal code in 2012 and since then also incorporated in the penal codes of most federated states.

 9. The extension of the definition of specific offences to cover gender-related acts was, however, being considered in Canada. A draft law would amend hate crime legislation, so that hate propaganda against an “identifiable group” distinguished by sex would also be captured by the offences of advocating genocide  (subsection 318(1)), public incitement of hatred likely to lead to a breach of the peace (subsection 319(1)) and wilful promotion of hatred (subsection 319(2)). Canada further reported that gender-related killing may fall within the definition under domestic law of crimes against humanity, genocide and war crimes.

10. Some States (Angola, Austria, Chile, China and Russian Federation) stated that their national constitutions provided that men and women were equal before the law. One State specified that it did not consider it appropriate to introduce a specific offence of femicide, as the current offence regime was regarded as sufficient (Australia), whereas another State stressed the importance of promoting the criminalization of femicide (Mexico).

11. Several States also made reference to other relevant offences under their domestic law, including domestic or intra-family violence,3 rape,4 forced marriage (Australia, Belgium, Pakistan, Spain [draft legislation] and United Kingdom of Great Britain and Northern Ireland), trafficking in persons (Australia, Chile, China, State of Palestine), stalking (Italy, Japan), acid attacks (Pakistan), female genital mutilation (Belgium), sexual harassment (Pakistan) and slavery (Australia). In some States, the breach of a protection order in cases of domestic violence was criminalized (Belgium and Spain).

12. States also mentioned criminal law provisions protecting the rights of children, such as the offence of sexual intercourse with a child (Bosnia and Herzegovina) or killing an unborn child in act of birth (Canada) and infanticide (Angola, Canada and Guatemala). In Sweden, harming the security and trust of a child in its relation to a closely related person was considered an aggravating circumstance.

13. Mitigating circumstances were available under the penal codes of Jordan (article 340) and Morocco (article 418) to both husband and wife in murder cases involving adultery. In Turkey, the Penal Code was reformed to remove the availability of reduced sentences on the grounds of unjust provocation for any family member or other relative killing a woman with honour motives after a sexual assault. In the State of Palestine, a presidential decree removed article 340 of the Jordanian Penal Code of 1960, which applies in the West Bank, and amended the provision on mitigating circumstances for crimes committed in a state of rage (article 98), to exclude this ground of mitigation if the crime is committed against a woman for “honour grounds”. However, reduced sentences were frequently imposed based on other provisions, especially on victims “relinquishing personal rights” (article 99). The Palestinian draft penal code, if adopted, would introduce a number of reforms to address existing challenges.5 The draft law would also repeal  article 62 (A) of Penal Code No. 16, which granted parents the authority to punish their children and was used as a pretext by parents who murdered their daughters in so-called honour cases and avoided punishment by justifying their actions as disciplinary. A draft law on legal aid was also initiated.

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