A/HRC/17/30
appropriate.15 The Convention is therefore an essential instrument to ensure gender equality
and that the administration of justice is free from discrimination.
29.
Despite the comprehensive legal framework and some progress made, major genderspecific obstacles remain to ensuring women’s effective protection and the realization of
women's right to access to justice. These include laws that discriminate against women;
policies, plans and programmes that disregard the goal of gender equality; and the
persistence, in some countries, of practices that discriminate against or are harmful to
women.
30.
In certain countries, laws, policies, plans and programmes disregard the goal of
gender equality and exclude, or seek to exclude women (and not men in similar conditions)
from entitlements, opportunities, or benefits, for example, when laws or policies give the
right of final decision in the exercise of parental rights and duties to fathers but deny this to
mothers.
31.
Some areas where the achievement of equality appears to be a challenge still today
include education, labour, land property, inheritance and family law (e.g. alimony, child
custody, the right to divorce, and property division rights). Some examples of laws that
discriminate against women include those that prohibit women from entering certain
occupations or professions, such as performing jury duty or certain duties within the
military.
32.
In certain countries, the lack of recognition of equal rights of women and men, or
even the institutionalization of inequality, seriously hampers women’s access to justice.
This is the case of male guardianship, when women must have the backing of a male
member of their family in order to have access to justice.16 In some cases women are not
allowed to file a complaint, serve as witnesses or appear in court without the agreement of a
male member of the family, or being accompanied by a male guardian. This is of particular
concern, for example, in cases of domestic violence where the guardian and the alleged
perpetrator may be one and the same. This is also a serious concern in cases of rape and
other forms of sexual and gender-based violence (SGBV), mainly affecting women, which
are connected with shame for the family, and may result in a male guardian not facilitating
access to justice.
33.
In other countries, gender equality is recognized by law but is not reflected in
practice. Sometimes harmful practices and prejudices continue to be at the root of the most
serious, routine violations of women’s right to equality before the courts and the principle
of non-discrimination. For example, crimes against women committed in the name of
“honour” are sometimes not effectively sanctioned as they are sometimes wrongly
considered a cultural or institutionalized practice and therefore mildly penalized or not
sanctioned by criminal law). In other countries, crimes against women are not prosecuted or
suspects can easily be exonerated of penal liability, for example when a rapist marries, or
offers to marry, the victim (in some extreme cases even when the victim is a minor).
34.
While acknowledging progress made in addressing SGBV17, the Special Rapporteur
wishes to recall that under international law and human rights standards, States are obliged
to protect women from violence, which is a violation of human rights.18 In her view,
15
16
17
18
Ibid., art. 2 (b).
See for example, CEDAW/C/SAU/CO/2, para. 21; CEDAW/C/ARE/CO/1, para. 47.
United Nations Office on Drugs and Crime, Handbook on effective police responses to violence
against women, Criminal Justice Handbook Series (New York, 2010), p. 2.
See, inter alia. A/HRC/7/4, paras. 55-58 and Convention on the Elimination of All Forms of
Discrimination against Women, general recommendation No.19, on violence against women, 1992.
7
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