A/HRC/31/57 suggests consent, acquiescence and, at times, even justification of violence.4 When States are aware of a pattern of violence or the targeting of specific groups by non-State actors, their due diligence obligations are likewise engaged and they are required actively to monitor and review data, apprise themselves of trends and respond appropriately. 5 12. In Opuz v. Turkey, the European Court of Human Rights found that discriminatory judicial passivity and unresponsiveness to domestic violence gave rise to impunity and a climate that was conducive to such gender-based violence, leading to a violation of the prohibition of torture and ill-treatment. Furthermore, when a State knows or should have known that a woman is in danger, it must take positive steps to ensure her safety, even when she hesitates in pursuing legal action (A/47/38). Women’s rights to life and physical and mental integrity cannot be superseded by other rights, such as those to property and privacy.6 States have a heightened obligation to protect vulnerable and marginalized individuals from torture. 7 B. Torture and ill-treatment of women, girls, and lesbian, gay, bisexual and transgender persons in detention 13. Women, girls, and lesbian, gay, bisexual and transgender persons are at particular risk of torture and ill-treatment when deprived of liberty, both within criminal justice systems and other, non-penal settings. Structural and systemic shortcomings within criminal justice systems have a particularly negative impact on marginalized groups. Measures to protect and promote the rights and address the specific needs of female and lesbian, gay, bisexual and, transgender prisoners are required and cannot not be regarded as discriminatory. 14. In many jurisdictions, the criminalization of abortion, “moral crimes” like adultery and extramarital relationships, and witchcraft and sorcery, among others — offences that are aimed at or that solely and disproportionately affect women, girls and persons on the basis of their perceived or actual sexual orientation or gender identity — besides constituting violations of international human rights law in and of themselves are also a significant factor in prison overcrowding, which has a negative impact on all aspects of detainees’ lives and gives rise to ill-treatment or torture. 15. A clear link exists between the criminalization of lesbian, gay, bisexual and transgender persons and homophobic and transphobic hate crimes, police abuse, community and family violence and stigmatization (A/HRC/19/41). At least 76 States have laws that criminalize consensual relationships between same-sex adults, in breach of the rights to non-discrimination and privacy; in some cases, the death penalty may be imposed. Such laws foster a climate in which violence against lesbian, gay, bisexual and transgender persons by both State and non-State actors is condoned and met with impunity. Transgender persons are criminalized in many States through laws that penalize crossdressing, “imitating the opposite sex” and sex work. Lesbian, gay, bisexual and transgender persons are frequently detained on the basis of laws containing vague and undefined concepts such as “crimes against the order of nature”, “morality”, “debauchery”, “indecent acts” or “grave scandal” (A/HRC/29/23). 4 5 6 7 Inter-American Court of Human Rights, Velásquez v. Honduras, judgement of 29 July 1988. Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (art. 11). Committee on the Elimination of Discrimination against Women, communication No. 2/2003, A.T. v. Hungary, Views adopted on 26 January 2005. Inter-American Court of Human Rights, Ximenes-Lopes v. Brazil, judgement of 4 July 2006. 5