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

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WOMEN’S ACCESS TO JUSTICE FOR GENDER-BASED VIOLENCE 133
Women may also fear secondary victimization in the criminal
justice system, particularly in sexual violence cases, where
they are sometimes treated with scepticism or contempt during
the investigation and prosecution. This treatment may entail
having their previous sexual history raised at trial, so as to
suggest the woman is more likely to have consented to sexual
contact, or to undermine her character. Rape victims may also
face secondary victimization because they are subjected to
humiliating and unscientific tests, which in themselves
constitute ill-treatment or torture, such as invasive vaginal
examinations and the “two finger” test to ascertain whether the
woman or girl is accustomed to sexual penetration.
Dead ends: the State does not provide a remedy
Some State failures are in the form of “dead ends”. There is
either no possible remedy available to women, or the remedies
that are available de jure are not available de facto. There may
be no remedy available because certain crimes of violence
against women are not recognized in domestic law: for
example, rape by a husband, or forcing a child into marriage.
Often women cannot seek justice because, where women are
deemed not to have full legal personality, any legal action they
might pursue would need to be agreed to by a male relative or
“guardian”. Sometimes a perpetrator will have a legal defence
to acts of violence, for example where “provocation” or
“honour” is recognized as a defence for men who punish
women for their purported transgressions, or to “discipline”
them. 354 Often women know that no action will be taken on
354
Council of Europe Convention on preventing and combating
violence against women and domestic violence (Istanbul Convention)
of 11 May 2011, Article 42 (Unacceptable justifications for crimes,
including crimes committed in the name of so-called “honour”):
“1. Parties shall take the necessary legislative or other measures to
ensure that, in criminal proceedings initiated following the commission
of any of the acts of violence covered by the scope of this Convention,
culture, custom, religion, tradition or so-called “honour” shall not be
regarded as justification for such acts. This covers, in particular,
claims that the victim has transgressed cultural, religious, social or
traditional norms or customs of appropriate behaviour.”