20 Sep 2019 - by A4ID Team

Lawyers Demonstrate Critical Demand for Gender-Responsive Criminal Justice Reform

A4ID partners gather evidence to advocate gender-responsive penal reform.

Despite evidence that domestic and sexual abuse plays a considerable role in women’s pathways to imprisonment, globally, most legal frameworks and judicial rulings ignore previous claims of domestic and sexual violence experienced by defendants in criminal cases brought against women. To back-up its advocacy work in support of vulnerable women prisoners, Penal Reform International, approached A4ID for assistance with legal research into whether a case can be made for considerations of previous domestic or sexual abuse to be taken into account in defence of crimes against the perpetrators of abuse.

Examining women’s road to violence

According to UN estimates, in 2012, 47 per cent of female homicide victims were killed by their intimate partner or family members. Digging deeper into this statistic, domestic and sexual abuse appears to play a significant role in women’s routes to incarceration, particularly in cases where women have killed their abuser. Nevertheless, most legal frameworks and judicial attitudes ignore these findings and respond harshly in cases where women have killed their abusers. Self-defence and other defences typically require an ‘imminent’ threat to be identified and do not fit situations where women are suffering from persistent emotional abuse or act after an immediate threat of attack has passed.

As part of its efforts to protect the rights of poor and vulnerable people caught up in the criminal justice system, A4ID’s Development Partner, the Dutch international NGO Penal Reform International (PRI), focuses on the promotion and implementation of the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules). Adopted in 2010 by the UN General Assembly, Rule 61 requires that courts have the power to consider mitigating factors, in light of the high proportion of women offenders who have experienced violence and have caretaking responsibilities.

Collating evidence in defence of women’s crimes

To support its advocacy for criminal justice reform to reflect the gender-specific circumstances of women offenders more accurately and fairly, PRI contacted A4ID seeking assistance with their research into the implementation of Rule 61 of the Bangkok Rules. In particular, PRI wanted to know the extent to which legislation and courts take account of histories of abuse suffered by women who are charged with killing their abusers. A4ID Legal Partner and international law firm Linklaters LLP took on this pro bono research project.

The scope of the research covered the law in a number of different jurisdictions to investigate whether a history of abuse is admissible as evidence in the trial of a woman for a violent crime against her abuser and whether sentencing guidelines allow for a past history of abuse to be considered as a mitigating factor if a woman is convicted of a violent crime against her abuser. Linklaters undertook a survey across nine national jurisdictions, namely, Australia, Brazil, Hong Kong, Japan, Mexico, Poland, Spain and the USA. The findings of these surveys demonstrated clearly that, with few exceptions, criminal justice systems are failing women by ignoring their trauma and the realities and dynamics of domestic violence unique to their gender.

In almost all jurisdictions covered by Linklaters’ research, there is no separate basis in law for a history of abuse to be considered and, generally, women have to instead rely on existing legal defences (e.g. self-defence, provocation, or temporary insanity). These typical defences tend to be ill-adapted to women who have experienced prolonged abuse. Furthermore, courts are not equipped with the right guidance, or show a reluctance, to take victimisation consistently into account as a factor, either in establishing culpability or in sentencing. However, some promising practices have developed in a few of the jurisdictions researched (specifically, a number of Australian and US states), establishing defences or partial defences for abuse cases, or enabling greater weight for the mitigating circumstance of domestic violence to be given when establishing culpability or in sentencing.

Presenting the facts to advocate penal reform

Linklaters wrote and published the findings of their research in a formal report on behalf of PRI, entitled, Women Who Kill in Response to Domestic Violence: How Do Criminal Justice Systems Respond? As the first report to present global research on the implementation of Rule 61, PRI now has ‘hard evidence’ to use in its advocacy at both the national and international levels. With the backing of the lawyers’ research, PRI can be more concrete in its recommendations and guidance on how jurisdictions can and should provide gender-sensitive responses to cases where women survivors have attacked their abusers. PRI has disseminated the case examples of good practices identified in Linklaters’ research to promote reform at the national level.

At the UN level, PRI circulated and engaged with UN bodies on the worldwide failure to implement Rule 61 of the Bangkok Rules, delivering a presentation on the issue at the UN Commission on Crime Prevention and Criminal Justice. This was the first time PRI was able to produce original, evidence-based advocacy at such a scale and, as Olivia Rope, Programme Officer at PRI explained, the lawyers’ report played a critical role in building the reputation of PRI. Without the legal support they received from Linklaters, Rope stated that PRI “would never have had the capacity to do this kind of research”. Before PRI partnered with A4ID, Rope explained that the NGO did not have the capacity or know-how to approach law firms directly for pro bono support.

Since publication of the Women Who Kill in Response to Domestic Violence report, awareness of the need to take mitigating factors into account in the sentencing of women has increased. In June 2019, Sally Challen’s life sentence for the murder of her husband was lifted. The Old Bailey in London accepted Challen’s guilty plea to manslaughter for reasons of diminished responsibility after suffering years of emotional abuse at the hands of her husband. On Challen’s release, following 9 years and 4 months in jail, she told the press, “Many other women who are victims of abuse as I was are in prison today serving life sentences. They should not be serving sentences for murder but for manslaughter.” The research and evidence collated by Linklaters and PRI provides the foundations to enact the changes to justice systems that Challen is calling for.

Linklaters’ and PRI’s report addresses one of the key barriers to gender equality and empowerment of all women and girls, outlined in Goal 5 of the UN’s Sustainable Development Goals (SDGs): discrimination and violence against women. Two of the targets of Goal 5 are: to ‘end all forms of discrimination against all women and girls everywhere’ (Target 5.1); and ‘eliminate all forms of violence against all women and girls in the public and private spheres’ (Target 5.2). This encompasses all women, including those who come into conflict with the law. The work of A4ID’s partners, Linklaters and PRI to advocate criminal justice reform that treats all women fairly in the context of their circumstances not only contributes to SDG 5, but also significantly impacts on the requirements of SDG 16 to provide access to justice for all and build effective, accountable and inclusive institutions.