A path towards justice: judges' perspectives on VAW cases
Date: 13 March 2017
BRINGING JUSTICE TO WOMEN SURVIVORS OF VIOLENCE
"One of the biggest challenges we face when dealing with violence against women cases is that women are not free to decide whether to proceed with their case."
Jehad Sharawna, Judge at the Magistrate Court of Bethlehem
Lack of trust in the justice and security system, economic barriers, limited legal literacy, social and family pressures, or the fact that reporting a crime to the formal legal system might jeopardize her safety, are well-known factors preventing a woman from reporting violence. For the small minority who decides to report and who enters the justice chain, those factors do not vanish and most often negatively interfere with the judicial process, creating deep challenges for both victims and judges to achieve justice.
"In these cases, women usually face the dilemma between losing their family or their case."
"This environment which lacks privacy usually results in having the victim only disclosing part of what has happened to her and losing evidence."
Dalal Almashny, Judge at the First Instance Court in Nablus
Since about 70% of violence against women cases are perpetrated by intimate partners or close relatives ensuring privacy, safety and confidentiality for the victim is key. Creating a conducive environment for the victim to give evidence, free of external pressures and with a full understanding of the criminal justice process, can prevent the victim from withdrawing her claim and give up on her right to justice.
For judges, this requires an understanding of the social dynamics and power relations between men and women in the community. Judges are not always immune themselves from societal norms and pressures, which influence their perceptions of cases, including perceptions of credibility of both alleged perpetrators, victims and witnesses. For example, changing perceptions of rape from an act of sexual desire to an act of violence, power and control is critical. Justice often focuses on women as victims and in need of protection rather than on their rights to justice and equal treatment before the law as men.
"There are many challenges in violence against women cases. The first one has to do with the faith/belief of judges in the rights of women."
Osama Al Dabbas, Judge at First Instance Court in Nablus
“Sadly there are still judges and members of public who have never been properly educated or have not taken to heart the true nature of that particular crime.”
Shireen Fisher, Judge (USA), Special Court for Sierra Leone
DIGNITY IN THE JUDICIAL PROCESS
Considering the severity of violence against women and understanding the specificities of these cases is essential for safety, protection and bringing justice to victims. Training, but also proper specialization of judges, can support adjudication of these cases by giving judges the legal and procedural tools to overcome socio-procedural barriers preventing the victim's access to her rights.
"Women will not turn to court unless they reach a critical point - psychologically and in their well-being."
Malika Hafid, Judge, Morocco
This is most important in Palestine, where the lack of legal framework provides judges with considerable discretionary power and responsibility in interpreting laws and establishing practice and policy in these cases.
While discussions have often focused on outdated laws, legislative reform is not sufficient. Judges have a fundamental duty to interpret national laws, including aligning with international treaties to which their countries have acceded. In Palestine, this provides additional opportunities by applying international standards and principles to cases of domestic violence, sexual harassment or in recognizing the testimony of a woman in front of a court as equal to that of man for example.
“When judges interpret the law they need to look at the principles behind the law as well as the words of the law itself to see how they can best reflect the criminality of action against women that are of equal gravity to those against men."
Shireen Fisher, Judge (USA), Special Court for Sierra Leone
Being able to base conviction on either or both physical and verbal evidence, avoiding multiple collection of evidences when not needed, and considering the psychological status of the victim, are important measures to facilitate fair process and judgement, with the dignity of the victim in mind.
Beyond criminal and procedural law, the sensitivity of judges is critical in establishing a conducive environment supporting a fair judgement of the case. Repeated questioning, medical and forensic examination, community and family pressures and social stigma all create an intimidating, often traumatic process, that serve as a barrier to women continuing the case and can lead to loss of evidence. Linking and liaising with other specialized services is therefore important to support the psychological well-being and empower the victim to tell her story without reliving the trauma.
“We need to support women so that they are strong enough to go through the process.”
Awatif Ahmed, Judge at the Jerusalem Appeal Court
“These services mean that women will have more opportunities to access justice and get back their dignities and be treated more fairly/dignity."
Amina Oufroukhi, Judge, Morocco
JUSTICE, PROTECTION & DETERRENCE
“It is important to give protection to women victims who have the strength to come forward because they are also setting an example for their sisters within their society who might be suffering in the same way.”
Theresa Anne Doherty, Judge, Northern Ireland
The discretionary and decisive power of judges in violence against women cases makes them a central piece in bringing justice to victims. Existence of specialized judges and services, who are able to assure the safety and psychosocial well-being of victims is paramount to ensure a fair and dignified judicial process, enhanced access to justice and realization of the rights of women survivors of violence. Judges are the final authority in domestic violence cases, with substantial power to sanction perpetrators and protect victims, and ultimately send a message to communities that violence against women cannot happen with impunity.