Posted in Legislative Analysis on Feb 14, 2020
Why is this a hot topic?
This issue is under the spotlight this month because a Prevention and Protection of Violence Against Women Bill was published in state media on 25th January, and on 27th appeared on the Pyidaungsu Hluttaw website. It's also because of the description of the bill in the private newspaper and journal. The Pyithu Hluttaw Women and Child Rights Committee discussed the Bill on 10th February. As usual The Ananda has published a Bill Backgrounder and Summary.
The Bill has had a long gestation, and ‘was first drafted by the Department of Social Welfare (DSW) in 2013 with input from international experts, the community and women’s groups such as GEN (Gender Equality Network).’1
What is violence against women?
The Declaration on the Elimination of Violence Against Women defines violence against women (VAW) to mean “any act of gender-based violence that results in, or is likely to result in, physical, sexual, psychological harm or suffering to women, including threats of such acts, coercion, arbitrary deprivation of liberty, whether occurring in public or private life.” At the Fourth World Conference on Women in Beijing in 1995 (also known as the Beijing Platform) a definition was given of VAW which includes:
(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;
(b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women, and forced prostitution;
(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.
Other acts of violence against women include violation of the human rights of women in situations of armed conflict, in particular murder, systematic rape, sexual slavery and forced pregnancy. Acts of violence against women also include forced sterilization and forced abortion, coercive/ forced use of contraceptives, female infanticide and prenatal sex selection.
‘The Declaration acknowledges violence against women (VAW) is both a cause and consequence of women’s inequality in relation to men. Addressing VAW, therefore, entails tackling root causes of the problem from the home to the international arena. Countries are obligated to eliminate all forms of discrimination against women, as well as act with ‘due diligence’ to prevent the violation of rights. Under the due diligence standard, countries have a duty to take positive action to prevent and protect women from violence, punish perpetrators of violent acts, and compensate victims of violence.’2
Why is a law needed?
Violence against women is everywhere, highly prevalent, but often unseen. It is most likely to occur in the home – the private sphere where women and girls should expect to feel most safe and secure. However, In Myanmar, 17% of ever-partnered women in long-term relationships aged 15-49 years have experienced intimate partner physical and/or sexual violence at least once in their lifetime and 11% of ever-partnered women aged 15-49 years experienced intimate partner physical and/or sexual violence in the last 12 months.3 The actual numbers are likely to be higher, as fear of stigmatisation or reprisals mean that many incidents go unreported. Longstanding cultural norms in some communities mean that violence against women by a male partner is not even always recognised at wrong.
‘Laws to address violence against women act in two ways: they a) criminalize acts of violence against women by stipulating penalties; and b) Provide civil remedies such as protection orders, restraining orders, etc (civil orders). Criminal provisions, which result in arrest and convictions, act as a deterrent; while civil remedies serve to provide an array of immediate reliefs to protect women from further acts of violence.’ 4
Laws can also ensure that support is available for victims of violence, such as by providing counselling or legal aid. Funding can also be mandated for the police, the courts and medical staff to receive appropriate training on violence against women.
What are the challenges and considerations for policymakers?
The difficulties of legislating to protect women from violence are rooted in the fact that very often they directly challenge strongly held cultural beliefs, and patriarchal power. The list below is not comprehensive, but points to some of the tensions and challenges that policymakers and legislators may face when crafting such laws.
1/ Cultural norms and customary law
In spite of being codified in the constitution, equality of women often does not translate into practice for many communities. From the Burmese Buddhist concept of hpone, to the many varied cultural practices that exist in Myanmar’s ethnic minority areas, women face discrimination. When it comes to violence, in many cultures, ‘the practice of discriminatory customary law also hinders women’s will to speak up and any attempt to find justice for themselves. These customary laws are not codified, and rest in the hands of village authorities, who are almost exclusively men’5
2/ Access to justice
Even if there are well-crafted laws to protect women from violence and punish perpetrators, law enforcement and the courts must stand ready to implement the law, protect victims and bring perpetrators to justice. However, ‘the long duration and relatively high cost of legal proceedings are an important factor preventing women survivors from accessing justice. Criminal proceedings last between one and two years for first instance only, with frequent adjournments. The cost of hiring a lawyer, and the time spent travelling and attending court hearings can be overly burdensome for many women, especially in ethnic areas where farming is the main source of livelihood.’6
In ethnic minority areas, language is also a barrier. Often interpreters are unavailable, or simply choose to not attend court due to the sensitive nature of gender-based violence cases and their fear of participating in such proceedings.
And most cases never enter the formal criminal justice system. ‘As they are deeply embedded in longstanding social and cultural norms, cases of violence are rarely reported to the police. Moreover, community level intervention often perpetuates a culture of impunity, by awarding survivors of violence with monetary compensation, and merely reprimanding perpetrators for “bad behaviour”.’ 7
3/ Other forms of marginalisation and violence
Whilst it is essential to protect women from violence in the law, there are other forms of marginalisation that also require adequate protection. For example, sexual violence against men and boys, and gender diverse people, also requires prevention / protection measures.
4/ Institutional violence
Institutional forms violence may be of particular interest in contexts like Myanmar. Institutional violence refers to when an institution creates an environment where perpetrators can act with greater impunity, or where the organisation works to deny or cover up incidents. In such cases, we can say that the leadership of the organisation or institution is complicit in the violence. For example:
Violence against women by security forces: Some military forces in conflicts around the world have historically used rape as an instrument of war and oppression. In Myanmar, even though ‘section 72 of the 1959 Defense Services Act allows for military personnel to be tried in civilian courts in cases of murder, homicide and/or rape‘ 8, in practice this rarely happens. Policymakers should therefore consider what measures need to be put in place to ensure military perpetrators cannot escape accountability; and where perpetrators are made to answer for their crimes this is not done in secret (eg through courts martial), but in open courts, in order that justice is seen to be done by the victims.
Violence in religious institutions: Globally, there have been a number of notable examples where endemic sexual abuse in religious institutions has been systematically denied or covered up by their leadership. The power that religious authorities have over some communities, whose strongly held beliefs prevent them from challenging religious leaders, can offer perpetrators complete impunity. All must be equal under the law, even priests, monks and imams.
Laws to protect people from violence should take such institutional power into account when preparing legislation.
5/ Gendered, or otherwise biased government institutions
We have noted above how in customary law situations laws are not codified and are enforced often by men, but also in formal national government systems this is frequently encountered. In many countries, Myanmar being no exception, the courts, the legislature, government departments, the police force and many other institutions are overwhelmingly run and staffed by men. It is difficult to envisage how laws and policies that serve the interests of women and victims of violence can be developed and implemented with such institutional bias.
In Myanmar, ‘Government-organized non-governmental organizations (“GONGO”s) such as the Myanmar Women’s Affairs Federation (MWAF) and the Myanmar National Committee for Women’s Affairs (MNCWA), the focal point for CEDAW enforcement, have historically been led by men or the wives of high-ranking members of the military, and favour programs focusing on women’s protection rather than women’s empowerment.’9
With highly centralised government systems, as in Myanmar, state institutions such as the police, the courts and the general administration report primarily to their own leadership hierarchy, rather than serving the community. The eventual implementation of genuinely federal devolution in Myanmar can support these institutions to work for the community and protect citizens’ legal rights and access to justice.
6/ Education of men and boys
Often the culture of debate around protection against violence for women can descend into language that is patronising, characterising women as ‘weak’ or ‘in need of help’. Alongside new laws, therefore, there must be effort to work with whole communities, included men and boys, to educate them on the equality of women. ‘Engaging with men and boys to end violence, through awareness raising and peer-to-peer mentoring, is crucial.’10
‘In Rakhine’s Mayut Chain village tract, a participant in ActionAid’s male-to-male engagement program has helped dramatically modify the behaviour and attitudes of, at least, 4 men in his community who, as a result of their encounters with him, have stopped beating their wives, as they were unaware that “beating your wife is not alright”.’ 11
7/ The role of civil society
Governments must recognise the active and vital contribution that civil society and community-based organisations, including legal and counselling service, are making to support women victims of violence. In many settings, there is no access to legal representation, and so without the existence of these brave and persistent organisations many women would remain at the mercy of abusive elements in their home or community. As well as supporting individual victims, CSOs play an essential role in monitoring cases and may be the only reliable source of data on the scale of the problem in many areas. Due to their distinct position and expansive knowledge, governments should recognise the important role CSOs have to play in policy making and supporting legislation.
Furthermore, with Bills entering parliament, there is an opportunity for the legislature to demonstrate its commitment to listening and learning, by conducting inquires and inviting broad representation to come and help shape legislation. The tendency in many developing country contexts is to rely on ‘technical’ support from international agencies who may lack the on-the-ground experience of these national grassroots organisations.
For example, a domestic abuse inquiry in the UK conducted by that Parliament’s Home Affairs Committee received over 130 written submissions from a range of organisations and individuals, heard oral evidence from a range of representatives from statutory agencies, support organisations and academics, and made 32 recommendations to the Government. Subsequently the government published its formal response to the committee.12 This kind of open ‘listening’ approach would rejuvenate civil society and public faith that the Hluttaw is working with the public interest at its heart.
8/ Governments must be vocal and unequivocal in their condemnation of violence
Government should, according to the Beijing Declaration, actively ‘condemn violence against women’13 and support and encourage women to seek justice. People in positions of government authority should refrain from statements that deny the existence of violence against women, as this will embolden the perpetrators further and could erase all hope for victims that they will ever achieve justice. For example, stating that allegations of rape are ‘fake’ via state sponsored social media is likely to immediately put many women at greater risk.
1:Tharthi Myay Foundation. (2017). Draft Law on the Protection and Prevention of Violence Against Women: Update and Next Steps .
2:Gender Equality Network. (2013). Developing Anti-Violence Against Women Laws. Discussion Paper Part 1: Background Information.
3:UN Women. (2016). Myanmar. Retrieved from Global Database on Violence against Women: https://evaw-global-database.unwomen.org/en/countries/asia/myanmar#3
4:Gender Equality Network. (2013). Developing Anti-Violence Against Women Laws. Discussion Paper Part 1: Background Information.
5:Women's League of Burma & Asia Justice & Rights. (2016). Briefing Paper: Access to Justice for Women Survivors of Gender-based violence committed by state actors in Burma.
7:Action Aid. (2014). Violence Against Women and Girls & Access to Justice in Myanmar: Gender Analysis Brief.
8:Women's League of Burma & Asia Justice & Rights. (2016). Briefing Paper: Access to Justice for Women Survivors of Gender-based violence committed by state actors in Burma.
10:Action Aid. (2014). Violence Against Women and Girls & Access to Justice in Myanmar: Gender Analysis Brief.
12:UK Parliament. (2018). Home Affairs Committtee: Domestic Abuse Inquiry. Retrieved January 2020, from www.parliament.uk: https://www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/inquiries/parliament-2017/domestic-abuse-inquiry-17-19/
13:UN Women. (1995). Beijing Declaration and Platform for Action; Beijing+5 Political Declaration and Outcome. Retrieved from https://www.unwomen.org/~/media/headquarters/attachments/sections/csw/pfa_e_final_web.pdf