Case Study 2: Continuing violations of women’s reproductive rights

This is an example of a situation that could be considered under the Communications Procedure of the OP-CEDAW.

In December 2002, M, a ten year-old girl in Atlantis, was raped by a burglar who entered her home. The rape resulted in pregnancy. Atlantis law allows for the termination of unwanted pregnancy in the case of rape. Based on this, M and her mother decided to opt for an abortion.

However, when M was admitted by a public hospital for an abortion, she was visited by a group of social workers who showed her graphic videos of abortions in a failed attempt to dissuade her. After M had been hospitalised for two weeks, her mother was told that all the doctors at the hospital were refusing to perform the procedure citing conscientious reasons. When M and her mother appealed to the Attorney General, the state’s highest judicial official, he referred them to a counsellor who reminded them that abortion is a sin.

M and her mother were determined and sought help in various places. By the time they found a doctor who was willing to carry out a safe abortion, many weeks had passed and the health risks for M greater. Without the doctor’s knowledge, a nurse went to M’s house and told them that one of the likely consequences of having the abortion would be fatal haemorrhage or sterility. M then carried the pregnancy to term and delivered a baby whom she planned to raise with the help of her parents, and with some economic assistance from several non-governmental organisations.

Lawyers brought the case to the High Court seeking compensation and reparation. The case was dismissed.

As a result of the rape and lack of access to her right to an abortion, M had to forfeit her education so that she could work to support herself and her child.

M is now 14 years old. She has been able to link-up with other teenagers who have been in similar situations and who want to advocate for the implementation of the law. M also now wants her mother to bring a case on her behalf. They have been told a communication under the OP-CEDAW is possible and want to know how it would work.

Atlantis is a party to the CEDAW Convention and to the OP-CEDAW.

Note: The facts of this case are loosely based on the Paulina case.

This case study involves a number of violations. To get us started, here are some useful questions to ask ourselves:

1. What principles and provisions of the CEDAW Convention have been violated? Details

2. How would the Communications Procedure set forth in the OP-CEDAW apply to this case? Details

3. What kinds of follow-up activities would be necessary to ensure implementation of the CEDAW Committee’s views and recommendations? Details

1. What provisions and principles of the CEDAW Convention have been violated?

To assess which provisions of the CEDAW Convention have been violated, it is helpful to list some of the articles of the convention that could relate to this case:

Article 1
Article 2(a), (d), (e), (f)
Article 5(a)
Article 10(e), (f)
Article 12(1)

Further, at least two CEDAW General Recommendations are relevant to this case.

General Recommendation 19
which deals with Violence against Women. This states that:

“7. Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the Convention.

19. States parties are required by article 12 to take measures to ensure equal access to health care. Violence against women puts their health and lives at risk.

24. In light of these comments, the Committee on the Elimination of Discrimination against Women recommends:

(a) States parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act;

(b) States parties should ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity. Appropriate protective and support services should be provided for victims. Gender-sensitive training of judicial and law enforcement officers and other public officials is essential for the effective implementation of the Convention;

[…]

(k) States parties should establish or support services for victims of family violence, rape, sex assault and other forms of gender-based violence, including refuges, specially trained health workers, rehabilitation and counselling;”

General Recommendation 24 deals with women’s access to healthcare and includes important points that relate to this case. For example, paragraph 11 reads:

“Measures to eliminate discrimination against women are considered to be inappropriate if a health-care system lacks services to prevent, detect and treat illnesses specific to women. It is discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women. For instance, if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers...”.

It can be argued that the following principles of the CEDAW Convention were violated in this case.

Gender Discrimination:M as a victim of gender discrimination

M being raped at 10 years old was a result of gender discrimination. She was targeted because she was a girl and a child and thus, she was seen to be in a vulnerable position. The rape was a violation of her human rights and it caused on-going effects, continuing violations.

The first negative effect was that M did not have access to abortion services, her right to abort in these circumstances was set forth in the law, and yet this option was unavailable to her. She was a child who was pregnant but the beliefs and biases of doctors and nurses kept them from helping her access safe abortion and were against her best interests. A ten year old child is more likely to have a risky pregnancy and delivery. In addition to that, M was traumatised by the rape and did not want a child. Since only girls and women experience rape it can be argued that gender discrimination had the effect of keeping M from accessing and exercising her right to abort within due time. It does not matter whether or not the doctors and nurses were intending to discriminate against M, what matters is that M was in fact, discriminated against.

The second negative effect was that M and her family had to carry the burden of raising M’s child without any support or assistance. M had to keep on carrying the burden of the rape, to the point that as a single mother, she had to drop out of school. Not having access to an education or social programme aimed to benefit young mothers means M will never be able to access opportunities available to other children. Without education, she will have less access to economic and social opportunities to improve her condition and help her child.

State obligation/responsibility: The state of Atlantis is responsible for the violations experienced by M

In the first place, the government of Atlantis should have had in place mechanisms to prevent the rape of a ten year old girl. Instead, it failed to protect M. Secondly, and perhaps more importantly, it is responsible for the actions of the doctors and nurses – defined by the CEDAW Convention as agents of the state – who prevented M from accessing her right to a safe abortion. It failed to respect M’s rights. Thirdly, the state should have in place mechanisms to ensure that laws benefiting girls and women are implemented. Again, it failed to ensure M’s rights. Also, it does not have remedies for girls in similar situations and neither does it provide programmes to assist these girls.

2. How would the Communications Procedure set forth in the OP-CEDAW apply to this case?

Stage 1 : Assessing the possibility of bringing forward an individual complaint under the Communications Procedure. More

Stage 2 : Submission of complaint to the CEDAW Committee and initial review. More

Stage 3 : Consideration of the case. More

Stage 4 : Recommendations and follow-up. More

STAGE 1: Assessing the possibility of bringing forward an individual complaint under the Communications Procedure

Can a victim or victims be identified?
In this case action can be brought on behalf of M.

Does her mother have standing to bring the claim?
As M is only 14 years old, the mother’s standing to lodge the communication on her behalf stems from her capacity as her daughter’s legal guardian.

Is the individual within the jurisdiction of the State party?
Yes, M and her mother are citizens of Atlantis and were within the jurisdiction of Atlantis when the alleged violations took place.

Has the State party ratified or acceded to both the CEDAW Convention and its Optional Protocol?
Yes. Atlantis is a State party to the CEDAW Convention and ratified the Optional Protocol on 15 March 2002 .

Was the Optional Protocol in force at the time the violation occurred or is it a continuing violation?
Yes, Atlantis ratified the Optional Protocol on 15 March 2002 and it came into force three months after that date i.e. on 15 September 2002 . The rape occurred in December 2002. After that date, the violations continued including the denial of access of the girl’s right to have an abortion, and further the subsequent impediments to her right to education.

Have all domestic remedies been exhausted or are domestic remedies unavailable or insufficient?
Yes. The High Court, the highest domestic court in Atlantis, dismissed the original case. There are no remaining options for a domestic remedy.

Has the claim been considered by another international mechanism?
No, after the exhaustion of domestic remedies, M’s mother opted to take the case directly to the CEDAW Committee for consideration.

Is the communication substantiated? Well-founded?
Section 4 of the Sample Complaints Form issued by the CEDAW Committee asks for the provision of detailed information to substantiate the claim , including:
- Description of alleged violation(s) and alleged perpetrator(s);
- Date(s);
- Place(s);
- Provisions of the CEDAW Convention that were allegedly violated. If the communication refers to more than one provision, describe each issue separately

In this case such information could include:

The date and time of the rape;

Police records, statements, investigation file;

Medical records of the examination after the rape;

Copy of legislation allowing for abortion to be an option that should be made available to victims of rape;

Brief descriptions of the steps taken by M and her family in trying to seek an abortion and the obstacles faced;

Testimonies of the girl, her mother and family members;

Testimonies from others involved (e.g. police, doctors and staff from the hospital, the Attorney General, priests);

Documentary evidence (photographs, video recordings, etc.); and

Information about the current situation of M and her family.

Is the communication compatible with the provisions of the CEDAW Convention?
Yes. The alleged violations contained in the communication within the scope of the CEDAW Convention and the General Recommendations of the CEDAW Committee.

Does the communication constitute an abuse of the right to petition?
No, the claim has not been previously considered by the CEDAW Committee; it is not being lodged with the intent of harassing or defaming the State party or an individual; and nor, for example, will it be submitted with defamatory or insulting language.

STAGE 2: Submission of complaint to the CEDAW Committee and initial review

After the admissibility of the communication is considered on the preliminary basis by the CEDAW Committee, it will be forwarded to the government of Atlantis for consideration and comment. If for any reason the government of Atlantis considers that the CEDAW Committee should dismiss the communication as inadmissible, it should respond within 3 months. Otherwise its response within 6 months should address:

Information about remedies at the national level (including for example, the Court order indicating that the actions were aimed at protecting the women and girls in M’s situation); and
Legal and factual arguments addressing the claim and, if necessary, its admissibility. This information will essentially constitute the State’s defense.

STAGE 3: Consideration of the case

The CEDAW Committee will consider the communication based on all the evidence received. The admissibility of the communication will be reconsidered in-depth in light of the information provided by the State party and the author(s) of the communication.

STAGE 4: Recommendations and follow-up

The CEDAW Committee will issue its views as to whether or not a violation(s) has taken place. If the Committee determines there has been a violation(s) and/or there are continuing violations, recommendations in this case might include:

Recommending the Atlantis government to issue an order for all health facilities to comply with the law and allow for termination of pregnancy in the case of rape, and to establish a monitoring process;
Recommending the Atlantis government to design better services and programmes to prevent rape, and address child rape in a way that is more effective on top of exploring mechanisms for better support of rape victims;
Reparations made to the M and her family such as compensation for the violation(s) and financial provision to support the upbringing of her child;
Instructions to facilitate the resumption of immediate and appropriate educational services by M;
Adoption of regulations for all health facilities or sexual and reproductive health services in Atlantis, and the development of a detailed action plan for monitoring their implementation; and
Inclusion of specific information regarding the availability of abortion services in Atlantis generally, and to victims of rape in particular, to be submitted to the CEDAW Committee within a designated timeframe or in the Atlantis State party report.

3. What kinds of follow-up activities would be necessary to ensure implementation of the CEDAW Committee’s views and recommendations?

The follow-up should come in two ways:

1) By the CEDAW Committee

Should the Committee deem it necessary, a rapporteur or working group can be designated to follow-up on and ascertain the measures taken by the State party involved to give effect to the Committee’s views and recommendations. The appointed rapporteur or working group should then report to the overall Committee on this.

2) By civil society

Although the Optional Protocol obliges the Atlantis government to, “make widely known and to give publicity… and to facilitate access to information about the views and recommendations of the Committee…” efforts from civil society to increase awareness of the CEDAW Committee’s views and recommendations will help to ensure these have maximum impact.

In this case, assuming that the Committee finds M’s allegations to be well-founded, M’s mother would have to seek support to make its decision widely know. Moreover, to highlight awareness of her daughter’s case and ensure recommendations are implemented and have far-reaching impact, M’s mother could enlist the help of the Atlantis press and/or national NGOs to ensure wide publicity. Such publicity can be used as a tool to highlight the Atlantis government’s obligations towards this girl as well as other women in the country. The more attention the recommendations get in the domestic arena, the more pressure on the state to enact them.

Through these channels efforts should be made to circulate the recommendations amongst lawyers and judges so that they might be understood and used as precedents for future cases with women’s rights or human rights implications.

Further, there is every reason for civil society, perhaps led by NGOs and other public interest organisations to use these recommendations as a basis from which to formulate and demand other positive action from the Atlantis government. If, for example, the recommendations fall short of suggesting a reform of the law in relation to abortion in Atlantis, they can still be used as fuel for demands for action from the government in this area.