Justice for Pacific & Caribbean Women & Girls

Honiara, Solomon Islands: Gender discrimination has affected sentence outcomes in more than 50% of sexual and gender-based violence (SGBV) cases in Pacific Island Countries.

In a first-of-its-kind report on judicial sentencing practices of SGBV, including sexual assault and domestic violence cases, the International Center for Advocacy Against Discrimination (ICAAD) and DLA Piper revealed that the consideration of contentious factors, defined below, raised during the criminal case led to actual sentence reductions, undercutting the very function of the judicial system, which is to ensure accountability and justice.

A total of 908 sentencing records in SGBV cases, mainly between the years of 2000-2014 and involving seven PICs (Fiji, Samoa, Solomon Islands, Tonga, Papua New Guinea, Kiribati, and Vanuatu) were analyzed to determine whether contentious factors were considered, and if so, how they directly impacted sentencing. There were 111 Domestic Violence (DV) cases, and 787 sexual assault (SA) cases reviewed. Contentious factors, as defined by the authors of the report, are those that when used in mitigation by the court, discriminate against the victim on the basis of gender. Such discrimination may relate to gender stereotyping, rape myths, consideration of customary practices, or other factors that unjustly privilege the interests of the male perpetrator over the interest of the victim/ survivor.

Out of 90% of domestic violence cases where contentious factors were raised, 66% led to a reduction in sentencing. For sexual assault cases, contentious factors were considered in 73% of cases and this led to a sentence reduction in 50% of the cases. Importantly, where a combination of contentious factors were considered, perpetrators were four times more likely to receive no prison sentence than in cases where no contentious factors were considered. Even more alarming was that 40% of victims were under 15 years of age, and 58% of the victims/survivors were under 18 years of age.

Hansdeep Singh presents to senior legal officers from across the Pacific on analysis of SGBV cases at the 34th PILON Conference

Hansdeep Singh, Co-Founder of ICAAD, points out that male supremacy has embedded gender inequality in the PICs, within the very systems that should be providing avenues for justice, redress, and protection. "If one recognizes the almost insurmountable obstacles a woman must face to obtain even a modicum of accountability in SGBV cases, it is a cruel final act when the judiciary fails to recognize the true gravity of the crime and decides to reduce or suspend sentences based on gender stereotypes and customary (both formal and informal) forms of reconciliation," he said.

"Though we have the utmost of respect for the importance of customary practices in the lives of Pacific Islanders, what we are advocating is that in a narrow subset of cases, domestic violence and sexual assault, that the court refrain from recognizing customary reconciliation as a form of sentence reduction." Singh said that by doing so, the courts would acknowledge the inherent power imbalance and societal pressure that often accompanies such customary practices. At a minimum, if courts do recognize customary reconciliation as a form of mitigation, "they should ensure that the victim/survivor clearly consented to being part of the process and that an apology and compensation is directed to the victim/survivor," he said. Singh said that sentences must be imposed that are free from gender bias, which he says can be achieved by "magistrates/ judges becoming more cognizant of arguments or justifications rooted in gender stereotypes."

Emily Christie, Human Rights Lawyer, DLA Piper, presents on analysis of SGBV cases at the 34th PILON Conference

Human Rights lawyer at DLA Piper, Emily Christie expressed that "DLA Piper is proud to partner with ICAAD to deliver this report, which provides crucial evidence of the effect that gender discrimination has on sentencing decisions by courts. This report highlights the extent to which gender bias continues to prevent women from accessing justice on an equal basis with men."

Senior Public Law Officers from numerous Pacific Island Countries, Australia, and New Zealand at the 34th PILON Conference

Commenting on the report, representatives of the Regional Rights Resource Team of the Secretariat of the Pacific Community (RRRT) said, "Survivors are not well informed about the legal system and do not have resources to access the system. Gender biases means hardly any sympathy for their suffering, and conflicts between custom and formal laws result in ineffective penalties. All of these result in justice systems which indirectly fuel tolerance of gender based violence, and systematic legitimisation of the abuse of women and girls." ICAAD is committed to serving civil society and government to address the systemic nature of SGBV.

Click here to read the report: An Analysis of Judicial Sentencing Practices in Sexual & Gender-Based Violence Cases in the Pacific Region.

Background

Sexual and gender based violence (SGBV) has a negative and profound impact on women and girls’ lives: health, education, safety, familial relationships, economic advancement etc.. According to a U.N. Women study in the Solomon Islands, 74% of women survey believed the court system would be the best forum for redress for gender based violence. Yet, the same study found that women had a low level of trust in the Justice System, and therefore, were less likely to seek justice through the courts. ICAAD’s analysis of over 900+ SGBV legal cases in the Pacific region found that accountability is undermined by pervasive gender stereotypes and customary reconciliation practices that are used by Judges to reduce or suspend sentences for perpetrators. Access to justice for women and girls means having a justice system that recognizes the gravity of the violence being committed.

Key Output

On September 17th – 18th, ICAAD’s co-founder Hansdeep Singh shared research conducted over two years on how gender stereotypes and customary forms of reconciliation impact sentencing of perpetrators in SGBV cases at the South Pacific Lawyer’s Conference in Brisbane, Australia. The Conference was attended by 100 lawyers from 16 Pacific Island Countries.

Read the full update by clicking the attachment below! 

ICAAD has been working in partnership with DLA Piper and Manatt, law firms based in Australia and New York, since 2013 to pinpoint underlying causes of structural discrimination and violence against women and girls. In partnership with DLA Piper, we analyzed 908 cases from 7 Pacific Island Countries, from the Magistrate to the Supreme Court level, we were able to uncover the degree to which gender stereotypes and customary reconciliation practices were being used as mitigating factors to reduce sentences for perpetrators in domestic violence (DV) and sexual assault (SA) cases. Shockingly, reliance on gender stereotypes and customary reconciliation, led to a sentence reduction in 66% of DV cases and 50% of SA cases.

 ICAAD Co-Founder Hansdeep Singh Presenting at SPLA Conference

Compelling Story 

One of the poignant stories about domestic violence shared at the Conference involved a woman who was 8 months pregnant. One Sunday, she asked her husband to accompany her to Church. Her husband was unresponsive, and she inquired if he was upset about her extramarital affair, which she had received punishment from the village for two months earlier. In that instant, he picked up a rock holding down a mosquito net and slammed it into her jaw. As she screamed, he covered her mouth to silence her at which time she instinctively bit down on his fingers to protect herself. In response to her act of self-defense, he picked up another rock and struck her head, ultimately killing her.

In this particular case, the judge did not focus on the defensive action taken by the pregnant wife to protect herself, rather, he saw her actions as a “substantial degree of provocation” for her husband’s murderous response. He identified two reasons that would merit a lower starting sentence for her husband because she provoked him: 1) the wife mentioning her extramarital affair; and 2) her biting down on her husband’s fingers. The judge eventually sentenced the perpetrator to 5 ½ years in prison. Emily Christie of DLA Piper, our partner on this project, stated, “provocation, in the context of gender based violence cases, can reflect gender stereotypes.” This case provides a clear example of how judges use the language of provocation to engage in victim blaming to justify low sentences of perpetrators.

Recommendations

To ameliorate the injustice and indignities that women and girls face, ICAAD developed a set of recommendations (detailed in the upcoming Report) that include: the creation of an independent monitoring body and complaint mechanism process for reporting low sentences; the removal of gender stereotypes and customary reconciliation practices as a form of mitigation (sentence reduction); restitution for the survivor in both civil and criminal proceedings; and the imposition of sentencing guidelines that account for the gravity of the crime. 

This initiative is part of our three year Clinton Global Initiative Commitment to Action and our rule of law trainings in 2014 and 2015 combined with the publication of this Report will provide significant momentum as we move into year 2 of the Commitment.

Conclusion

Our Initiative is designed to strengthen the rule of law, which in turn promotes democracy and human rights within the Pacific region. By conducting in-depth research disseminated through rule of law trainings for magistrates/ judges, lawyers, and civil society, we are able to effectively advocate for law reform that aims to remove gender bias and improve judicial accountability.

We are grateful for your continuing support!

Any feedback from our supporters would be welcome, especially any ideas on what would make our Report more compelling for you. If you want a more in depth look at our work, we would be happy to engage on a Skype or Google Hangout. 

Please contact Bryan Miller, Board of Director, at bryan@icaadglobal.org to schedule a meeting. 

Future Updates:

• Release of ICAAD’s Groundbreaking Report on the impact of gender bias in the judiciary within 7 Pacific Island Countries
• The Attorney General’s Office for Australia invited us to present at an upcoming meeting for Pacific Island Law Officer’s Network (PILON) on December 8th in the Solomon Islands. The PILON meeting will include Attorney General’s from across the Pacific region.
• Signing memorandums of understandings (MOUs) with local civil society and the Ministry of Health in Fiji
• Medico-Legal Trainings in Fiji

• Update 2: Access to Justice for Women & Girls (PDF)