UN Special Rapporteur Breaks New Ground with Report on Gendered Aspects of Torture

Last week I hosted a CFR roundtable with Juan E. Mendez, the United Nations special rapporteur on torture and other cruel, inhuman, and degrading treatment or punishment, to discuss his new report on gendered aspects of torture. The groundbreaking report, released earlier this year, addresses gendered aspects of torture and other ill-treatment of persons in detention. It stresses the need to apply gender analysis to torture and cruel treatment to reveal abuses that would otherwise be invisible or normalized.

During our discussion, Mendez noted that, when thinking about prisoners and torture, people often think about men—nearly ninety percent of prisoners globally are men—and the experiences of women and girls are downplayed. But torture and other abusive treatment does not only occur in detention or in formal government custody.  It can occur on the battlefield, in health facilities, and at home.

The special rapporteur spoke about how domestic violence by private actors may also violate the main treaty on torture—the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment—where the state fails to punish perpetrators and protect victims, and creates “conditions under which women may be subjected to systematic physical and mental suffering, despite their apparent freedom to resist.” While the Torture Convention requires state involvement in the abusive conduct, the state can be held accountable for its failure to act.

Mendez also notes that in some countries women and girls, as well as lesbian, gay, bisexual, transgender, and intersex persons, face particular risks of harsh punishment or targeting for actions that are considered “moral crimes.” In one case that prompted international attention, a young Nigerian woman, Amina Lawal, was sentenced to death by stoning after she became pregnant by a man whom she said had promised to marry her—he failed to, and left her to raise the child alone without any support. When women, but not men, are sentenced to be stoned for such “crimes,” allowing for discriminatory application of harsh penalties (as in Lawal’s case, until the ruling was overturned by a higher court), it is not only grossly unfair, it can constitute torture or cruel treatment. Under the Torture Convention, severe pain or suffering that is imposed to discriminate against someone (or to intimidate, coerce, punish, or extract information or a confession) constitutes torture (or cruel treatment, if it is less severe). In his report, Mendez notes that “offences that are aimed at or that solely and disproportionately affect women, girls and persons on the basis of their perceived or actual sexual orientation or gender identity,” may contribute to the perpetuation of gender-based violence that can amount to torture or cruel treatment.

The report also points out that states that fail to criminalize or enforce laws banning "cultural" practices such as honor killings or female genital mutilation and cutting (FGM/C), for example, are contributing to gender-based violence that may violate the Torture Convention.  I recently hosted a roundtable with Time magazine Person of Influence honoree, Jaha Dukureh, who spoke about her success in pressing the Gambian government to ban FGM/C, a harsh practice used to control the sexuality of women and girls. State enforcement of that legal ban will be critical.

In his report, Mendez urges that “States must finally implement their heightened obligation to prevent and combat gender-based violence and discrimination perpetrated by both state and private actors against women, girls, and persons who transgress sexual and gender norms.”