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

V
WOMEN’S ACCESS TO JUSTICE FOR GENDER-BASED VIOLENCE 205
similarly recognize that detention is one of the situations where
a victim cannot freely consent to sexual contact. Rape in
detention by a State official is always a form of torture.
State responsibility will also be engaged if a rape in custody is
committed by another prisoner or private person but the
officials failed to exercise due diligence in undertaking
preventive and protective measures.
Women are subjected to many forms of gender-based violence
while in State custody, including police cells, prisons, health
and social welfare institutions and immigration detention
centres. When these forms of violence cause severe pain or
suffering, whether physical or mental, these acts constitute
torture. Other forms of gender-based violence include
inappropriate surveillance during showers or undressing, strip
searches conducted by or in the presence of men and verbal
sexual harassment. 544
Forced and early marriage
Most child marriages may be considered forced marriages.
Early marriage, or child marriage, has come to be recognized
as purported marriage involving children under 18 years,
although there are exceptions. The majority of child marriages
involve girls, although sometimes their spouses may also be
under the age of 18 years. 545 Forced and early marriage affects
boys and girls, but girls tend to be targeted more frequently
than boys for exploitation. 546
544
For more information about gender-based violence in detention see
above Chapter IV: “The obligation to respect”.
545
“Joint general recommendation No. 31 of the Committee on the
Elimination of Discrimination against Women / general comment No.
18 of the Committee on the Rights of the Child on harmful practices”,
UN Doc CEDAW/C/GC/31-CRC/C/GC18 (2014), paragraph 20.
546
Marsha Freeman, Christine Chinkin and Beate Rudolf, The UN
Convention on the Elimination of All Forms of Discrimination against
Women. A Commentary (Oxford: Oxford University Press, 2012) –
hereafter referred to as the ‘CEDAW Commentary’, page 438.