Moving Slowly to Regulate and Recognize: Human Rights Meets Intimate Partner Sexual Violence

McWilliams, M. and Ní Aoláin, F. (2016)

Key points:
• Structural and conceptual limitations of existing paradigms challenge public bodies’ address of rape by intimate partners.
• International human rights law is slowly recognising intimate sexual violence as fully experienced and consequential human rights violation.
• There is increased explicit recognition – notably in the Istanbul Convention – of the complex and multi-layered nature of violence against women which includes economic, social and cultural forces.

Abstract: Over the last three decades, sexual violence against women in intimate partner relationships has become a global health issue. The development of a human rights perspective on the phenomenon has been more recent. Assessing the prevalence of coercive sex in the context of intimate relationships — and marital rape in particular — is challenging for many reasons. Sexual violence is highly stigmatized and is among the few crimes in which the victim might also be blamed for the harm experienced.

Despite that historical baggage, a discernible shift in human rights protections is now emerging, emanating from the specialist human rights treaty regimes. These shifts have potentially significant consequence by delineating the harms women experience and seeking accountability for them. The first part of this chapter addresses the institutional structures of human rights protection, including human rights treaty law and practice. The second part examines the specialist treaty addressing women’s rights under international law, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the challenges that addressing violence against women has encountered in this area. The chapter concludes with an overview of the European and inter-American human rights treaty systems, where some of the most innovative judicial developments have been taking place in recent years. By drawing on recent jurisprudence from the European Court of Human Rights and the Inter-American Court of Human Rights, the chapter demonstrates how this important human rights initiative influenced the changes now in place. Despite these changes, weaknesses and limitations of the human rights system (and law more broadly) in addressing violent harm to women still remain. Legal acknowledgment and redress are only one (albeit important) dimension of an engaged policy and structural response to violence.

Keywords: Gender; Sexual Violence; CEDAW

Citation:

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