Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

V
WOMEN’S ACCESS TO JUSTICE FOR GENDER-BASED VIOLENCE 105
Commit to effective measures to overcome these
attitudes, customs and practices;
Report on the measures they have undertaken to
overcome violence and the effect of these measures;
and
Introduce education and public information programmes
to help eliminate prejudices that hinder women’s
equality. 264
Discriminatory laws, particularly those relating to family law,
are frequently based on customs and practices that support
and foster violence against women and gender-based violence.
One typical example is the criminal law principle common
within domestic law that a husband cannot be prosecuted for
raping his wife because the marital contract implies a life-long
and constant agreement on the part of the wife to sexual
contact with her husband, and that a husband thereby has “a
right” to sexual contact with his wife. 265 Another potentially
discriminatory type of practice, often also enshrined in laws or
regulations, is that of requiring that a husband automatically
has unsupervised access to children, or custody of children in
the case of divorce, even where domestic violence is an
issue. 266
264
CEDAW General Recommendation No 19, above note 225,
paragraph 24(e) and (f).
265
S.W. v United Kingdom (1995) ECHR 52, paragraph 44: “The
essentially debasing character of rape is so manifest that the result of
the decisions of the Court of Appeal and the House of Lords - that the
applicant could be convicted of attempted rape, irrespective of his
relationship with the victim - cannot be said to be at variance with the
object and purpose of Article 7 of the Convention, namely to ensure
that no one should be subjected to arbitrary prosecution, conviction or
punishment …What is more, the abandonment of the unacceptable
idea of a husband being immune against prosecution for rape of his
wife was in conformity not only with a civilised concept of marriage
but also, and above all, with the fundamental objectives of the
Convention, the very essence of which is respect for human dignity
and human freedom”.
266
González Carreño v Spain, above note 252, paragraph 3.8.