《法学资料大全》（英文版）刑事审判系统中女性扮演的角色.pdf

A/CONF. 187/1 I. Introduction response on the part of justice systems to criminal violence perpetrated against women, pursuant to the Model 1. The Fourth World Conference on Women. held in Strategies and in line with other international instruments Beijing from 4 to 15 September 1995, called upon Through the Global Programme against Trafficking in Governments, the international community and civil Human Beings, the Global Studies on Transnational society to take strategic action in a number of critical areas organized Crime and planned and ongoing operational ofconcern, one of which was violence against women. The activities, the Centre intends to foster a global approach term "violence against women" means any act of and international cooperation aimed at eliminating gender-based violence that results in, or is likely to result violence against women in, physical, sexual or psychological harm or suffering to 5. The subject of women and criminal justice is relevant women,including threats of such acts, coercion or arbitrary to many issues to be dealt with at the Tenth United Nations deprivation of liberty, whether occurring in public or Congress on the Prevention of Crime and the Treatment of private life 2 Offenders. The workshop on women in the criminal justice 2. Within the framework of criminal justice administra- system, to be organized within the framework of the Tenth tion, the continued marginal status and position of women Congress, will provide a forum in which gender-related in society and vis-a-vis legal systems have also resulted in issues concerning criminal justice administration may be their special needs also being regarded as marginal. Crimi- discussed nal justice systems are male-oriented and male-dominated status of women is such that women are in a problematic Il. Module 1: Women as offenders and situation as offenders. detainees. victims and even risoner practitioners. One example of this problematic situation is transnational organized crime, with its unique processes, 6. Little is known about the participation of women in mechanisms and operations. It demonstrates the nature, perpetrating organized crime, including trafficking extent (increasing, yet unrecorded) and gravity of various persons, stolen art, endangered species and stolen cars forms of criminal violence and exploitation by which However, information is increasingly becoming available women and girls are victimized. It underlines the need to on women imprisoned as drug couriers, perhaps due to freedoms, equal protection under the law and fair treatment 7. Women account for a relatively small proportion of in the justice system. It even blurs the lines of distinction the known number of offenders of all types. Recorded between women offenders and women victims offences committed by women are predominantly property 3. An intensified response on the part of justice systems related and, increasingly, drug-related. Violent offences to criminal violence and exploitation perpetrated against committed by females have a lower incidence than those omen and girls is provided for in the Model Strategies committed by males. Most violent offences in which and Practical Measures on the Elimination of violence women were known to be the perpetrators were committed against Women in the Field of Crime Prevention and against family members, most often the women's abusive Criminal Justice( General Assembly resolution 52/86 of spouses or children. Women's involvement in crime has 12 December 1997, annex), which builds upon the objec- been linked by researchers to opportunity theory and tives of the Platform for Action adopted by the Fourth changes in opportunity structures over the years World Conference on Women. The Model Strategies are particularly in some parts of the world' Over the years aimed at deterring and punishing violence against women much attention has been given in United Nations bodies to in all its forms and at mainstreaming a gender perspective the fair treatment of women, in particular the girl child,? in the field of criminal justice by the criminal justice system. That, in turn, has had an 4. Eliminating violence against women and girls and impact on the development of an international notion of promoting their fair treatment are continuing programmatic Juvenile justice. In the wake of the Fourth United Nations concerns of the Centre for International Crime Prevention. Conference on Women, the elimination of violence against Through its programmes on technical cooperation, research women in all its forms became a major international issue, and standards and norms, the Centre promotes an efiective including in United Nations programmes, in activities con-

A/CONF.187/12 3 I. Introduction 1. The Fourth World Conference on Women, held in Beijing from 4 to 15 September 1995, called upon Governments, the international community and civil society to take strategic action in a number of critical areas of concern, one of which was violence against women.1 The term “violence against women” means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.2 2. Within the framework of criminal justice administration, the continued marginal status and position of women in society and vis-à-vis legal systems have also resulted in their special needs also being regarded as marginal. Criminal justice systems are male-oriented and male-dominated and typically do not regard gender issues as relevant. The status of women is such that women are in a problematic situation as offenders, detainees, victims and even practitioners. One example of this problematic situation is transnational organized crime, with its unique processes, mechanisms and operations. It demonstrates the nature, extent (increasing, yet unrecorded) and gravity of various forms of criminal violence and exploitation by which women and girls are victimized. It underlines the need to guarantee women their legal rights and fundamental freedoms, equal protection under the law and fair treatment in the justice system. It even blurs the lines of distinction between women offenders and women victims. 3. An intensified response on the part of justice systems to criminal violence and exploitation perpetrated against women and girls is provided for in the Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice (General Assembly resolution 52/86 of 12 December 1997, annex), which builds upon the objectives of the Platform for Action adopted by the Fourth World Conference on Women.3 The Model Strategies are aimed at deterring and punishing violence against women in all its forms and at mainstreaming a gender perspective in the field of criminal justice. 4. Eliminating violence against women and girls and promoting their fair treatment are continuing programmatic concerns of the Centre for International Crime Prevention. Through its programmes on technical cooperation, research and standards and norms, the Centre promotes an effective response on the part of justice systems to criminal violence perpetrated against women, pursuant to the Model Strategies and in line with other international instruments. Through the Global Programme against Trafficking in Human Beings, the Global Studies on Transnational Organized Crime and planned and ongoing operational activities, the Centre intends to foster a global approach and international cooperation aimed at eliminating violence against women. 5. The subject of women and criminal justice is relevant to many issues to be dealt with at the Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. The workshop on women in the criminal justice system, to be organized within the framework of the Tenth Congress, will provide a forum in which gender-related issues concerning criminal justice administration may be discussed. II. Module 1: Women as offenders and prisoners 6. Little is known about the participation of women in perpetrating organized crime, including trafficking in persons, stolen art, endangered species and stolen cars. However, information is increasingly becoming available on women imprisoned as drug couriers, perhaps due to their rapidly increasing numbers. 7. Women account for a relatively small proportion of the known number of offenders of all types.4 Recorded offences committed by women are predominantly propertyrelated and, increasingly, drug-related. Violent offences committed by females have a lower incidence than those committed by males. Most violent offences in which women were known to be the perpetrators were committed against family members, most often the women’s abusive spouses or children. Women’s involvement in crime has been linked by researchers to opportunity theory and changes in opportunity structures over the years, particularly in some parts of the world.5 Over the years, much attention has been given in United Nations bodies to the fair treatment of women,6 in particular the girl child,7 by the criminal justice system. That, in turn, has had an impact on the development of an international notion of juvenile justice.8 In the wake of the Fourth United Nations Conference on Women, the elimination of violence against women in all its forms became a major international issue, including in United Nations programmes, in activities con-

A/CONF. 187/12 cerning women refugees, women migrants, women migrant inappropriate health services(especially in relation to workers, the girl child, womens health and education, maternity), classification and segregation, family visita- women and labour, the rights of women and children, and tion, programmes geared towards males and limited access human rights in the administration of justice. Trafficking to other programmes. Post-incarceration difficulties relate in women for the purpose of prostitution has led to a debate to the preparedness for and support upon release and focusing on womens victimization, human rights and reintegration into society. In a number of countries, traf- fundamental freedoms ficked persons are held in prison before deportation, which 8. The issue of women committing offences has to be might be considered a form of secondary victimization understood in the context of the status and quality of life of 12. In general, the stigma associated with criminality is women and opportunity structures with respect to women. far greater for women than for men; communities are often The consideration of the criminal nature of the activity in far less forgiving of a female criminal. Women may be which women are engaged typically overrides that of the rejected not only by their community but also by their victimization itself. For the most part, women offenders families. This situation has to be acknowledged and come from economically and socially disadvantaged addressed in the development of post-release options and segments of the population. Typically, they are relatively programmes and community-based rehabilitation or alter young and unemployed, have reached relatively low levels natives to imprisonment. Imprisoned drug couriers face of education and have dependent children difficulties in obtaining alternatives to custody in senten 9 Many women imprisoned for offences related to cing, in some cases for reasons that might have to do with drug their situation as immigrants or illegal aliens. There is a They are often duped, entrapped and even enslaved by need for immediate review and monitoring of criminal drug trafficking networks and unaware of the risks and con- Justice policies and practices. Separation from their sequences involved, which, in some cases, include criminal families and anxiety about the well-being of their children sanction and deportation. They receive remuneration that are major issues for women in detention. The access that a is disproportionate to the risks involved and to the market female prisoner has to her children varies considerably value of, and profits derived from, the illicit substances from country to country; there has been some discussion being trafficked. Such women are exposed to danger from concerning the most appropriate arrangements in this the trafficking processes involved and from the organizers. regard, but many problems remain unresolved. While The women nevertheless take part in such activity, as the culture-related variations are to be expected, there is a small remuneration that they receive helps them to meet the need for more sharing of information at the international basic needs of their families. The increasing number of level regarding best practices women in prison for drug offences indicates the urgent 13. One matter of particular concern in relation to the need for an examination of the consequences that women imprisonment of women is the disproportionate share of suffer for participating in such activity imprisoned women in many countries who are members of ethnic and racial minorities. a woman convicted of com- work illegally in sweatshops, as beggars, and in the sex mitting a transnational crime may be imprisoned away from prostitution become older and are no longer able to work women face particular problems such as not being familiar within the sex trade, they may find that their victimization with the local language and not understanding formal and has severely limited their options in life. Faced with living informal rules of the prison system. They may well be confronted not only with linguistic and cultural isolation, on the streets, many of them turn to trafficking in younger but also with racism and xenophobic violence. The abuse women of women in custody is a particularly urgent matter that I1. Women constitute a minority of the detainees in requires a more prompt and effective response on the part prisonsystems. Prison systems are designed, organized and of prison systems in accordance with international administered predominantly by males and with a standards and norms predominantly male population in mind. Many women are held for extensive periods in pre-trial detention centres. Ill. Module 2: Women as victims and Reviews and evaluations concerning the terms of imp- survivors risonment of women identify problems of inadequate or

A/CONF.187/12 4 cerning women refugees, women migrants, women migrant workers, the girl child,9 women’s health and education, women and labour, the rights of women and children, and human rights in the administration of justice. Trafficking in women for the purpose of prostitution has led to a debate focusing on women’s victimization, human rights and fundamental freedoms. 8. The issue of women committing offences has to be understood in the context of the status and quality of life of women and opportunity structures with respect to women. The consideration of the criminal nature of the activity in which women are engaged typically overrides that of the victimization itself. For the most part, women offenders come from economically and socially disadvantaged segments of the population. Typically, they are relatively young and unemployed, have reached relatively low levels of education and have dependent children. 9. Many women imprisoned for offences related to drug trafficking are without legitimate financial means. They are often duped, entrapped and even enslaved by drug trafficking networks and unaware of the risks and consequences involved, which, in some cases, include criminal sanction and deportation. They receive remuneration that is disproportionate to the risks involved and to the market value of, and profits derived from, the illicit substances being trafficked. Such women are exposed to danger from the trafficking processes involved and from the organizers. The women nevertheless take part in such activity, as the small remuneration that they receive helps them to meet the basic needs of their families. The increasing number of women in prison for drug offences indicates the urgent need for an examination of the consequences that women suffer for participating in such activity. 10. Women who have been trafficked are often forced to work illegally in sweatshops, as beggars, and in the sex trade. As women who were trafficked for the purpose of prostitution become older and are no longer able to work within the sex trade, they may find that their victimization has severely limited their options in life. Faced with living on the streets, many of them turn to trafficking in younger women. 11. Women constitute a minority of the detainees in prison systems. Prison systems are designed, organized and administered predominantly by males and with a predominantly male population in mind. Many women are held for extensive periods in pre-trial detention centres. Reviews and evaluations concerning the terms of imprisonment of women identify problems of inadequate or inappropriate health services (especially in relation to maternity), classification and segregation, family visitation, programmes geared towards males and limited access to other programmes. Post-incarceration difficulties relate to the preparedness for and support upon release and reintegration into society. In a number of countries, trafficked persons are held in prison before deportation, which might be considered a form of secondary victimization. 12. In general, the stigma associated with criminality is far greater for women than for men; communities are often far less forgiving of a female criminal. Women may be rejected not only by their community but also by their families. This situation has to be acknowledged and addressed in the development of post-release options and programmes and community-based rehabilitation or alternatives to imprisonment. Imprisoned drug couriers face difficulties in obtaining alternatives to custody in sentencing, in some cases for reasons that might have to do with their situation as immigrants or illegal aliens. There is a need for immediate review and monitoring of criminal justice policies and practices. Separation from their families and anxiety about the well-being of their children are major issues for women in detention. The access that a female prisoner has to her children varies considerably from country to country; there has been some discussion concerning the most appropriate arrangements in this regard, but many problems remain unresolved. While culture-related variations are to be expected, there is a need for more sharing of information at the international level regarding best practices. 13. One matter of particular concern in relation to the imprisonment of women is the disproportionate share of imprisoned women in many countries who are members of ethnic and racial minorities. A woman convicted of committing a transnational crime may be imprisoned away from her home country, family and community network. Such women face particular problems such as not being familiar with the local language and not understanding formal and informal rules of the prison system. They may well be confronted not only with linguistic and cultural isolation, but also with racism and xenophobic violence. The abuse of women in custody is a particularly urgent matter that requires a more prompt and effective response on the part of prison systems in accordance with international standards and norms. III. Module 2: Women as victims and survivors

A/CONF. 187/1 14. Transnational crime poses complex problems in protection under the law, equal access to justice terms of victimization for many individuals; however, it mechanisms, equal protection and safeguarding of their has a disproportionately adverse impa women,as legal rights, fundamental freedoms and dignity, and fair shown by the work of the Ad Hoc Committee on the treatment, including in terms of victim support and Elaboration of a Convention against Transnational Orga- assistance There should not be circumstances under which nized Crime, which is negotiating the revised draft Proto- gender-directed criminal violence can be invited, tolerated col to Prevent, Suppress and Punish Trafficking in Persons, or condoned; nor should there be circumstances of non- especially Women and Children, supplementing the United feasance or malfeasance in response to such victimization Nations Convention against Transnational Organized The forwarding and/or acceptance of stereotypic arguments Crime(A/AC254/4/Add. 3/Rev. 5), and the revised draft of victim precipitation and victim-blaming, including on Protocol against the Smuggling of Migrants by Land, Air the part of justice officials, do not conform with nd Sea, supplementing the United Nations Convention international standards and norms against Transnational Organized Crime 18. One matter of high priority is to promote safe (A/AC 254/4/Add. 1/Rev. 4), both of which pay particular communities and streets for women and girls so that they attention to the protection and support of victims. In the may realize their potential through equal opportunities and proposed preamble to the revised draft Protocol to Prevent, exercise their rights. Of critical importance to this is the Suppress and Punish Trafficking in Persons, it is stated that realization, in terms of policy-making and decision-making targeted by transnational criminal organizations engaged in causes and consequences of victimization on the one hand trafficking in pe ersons and the pressing needs of potential women victims on the 15. The victimization of women cannot be addressed other. Public awareness campaigns, coupled with without examining their disadvantaged situation. There is community-based prevention, including in homes and evidence that womens victimization is directly linked to schools, are among the best ways to utilize scarce their social status. Women are at relatively greater risk of resources; such campaigns often contain a strong and various forms of victimization due to gender inequality. coherent anti-violence message. The proper education, The information available on women as victims of crime is socialization and rearing of children and the setting up of derived mostly from victimization surveys a system of support, referral and response also constitute 16. Various forms of criminal violence are gender- n important part of such efforts directed or gender-targeted violence and include exploita- 19. Research has demonstrated that women and girls who tion for sex and labour via organized criminal operations. commit crime often have a history of prior victimization The elimination of all such forms of violence is the object Familial abuse may force women to try to survive on the of the Model Strategies and Practical Measures on the streets. Women who are illegal migrants might be Elimination of Violence against Women in the Field of pressured to further violate the law in order to avoid Crime Prevention and Criminal Justice. Major United deportation. Trafficked women might have been physically such violence in all its forms nullifies the advancement and city might have been used to get them to enter into thea, Nations conferences on the subject have made clear that and psychologically coerced, or false pretences or dupli fundamental freedoms of women and violates their human trade. Attempts by such victims to resist rape and exploita rights. It is incumbent on the justice systems to upgrade tion or to defend themselves against violence perpetrated heir responses to criminal victimization perpetrated by family members, intimates, associates, sponsors or against women and girls, in terms of prevention, deter- employers commonly result in the victims committing rence, law enactment, law enforcement, sanctioning and additional criminal acts victim support. Criminal justice systems have a central role 20. To combat women's victimization, particularly in the to play in ensuring the security and safety of women and in context of transnational organized crime, it is necessary to removing what might be regarded as invisible barriers to focus on the freedom from their criminal victimization s for such criminality. Despite thei tempts to resist abi porting 17. Thus, women have to be protected in terms of the risk authorities about being victimized. Research has resulted that they bear as a highly vulnerable segment of the victim in the identification of factors, including cultural values

A/CONF.187/12 5 14. Transnational crime poses complex problems in terms of victimization for many individuals; however, it has a disproportionately adverse impact on women, as shown by the work of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime, which is negotiating the revised draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (A/AC.254/4/Add.3/Rev.5), and the revised draft Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organized Crime (A/AC.254/4/Add.1/Rev.4), both of which pay particular attention to the protection and support of victims. In the proposed preamble to the revised draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, it is stated that women and children are particularly vulnerable to and targeted by transnational criminal organizations engaged in trafficking in persons. 15. The victimization of women cannot be addressed without examining their disadvantaged situation.10 There is evidence that women’s victimization is directly linked to their social status. Women are at relatively greater risk of various forms of victimization due to gender inequality. The information available on women as victims of crime is derived mostly from victimization surveys. 16. Various forms of criminal violence are genderdirected or gender-targeted violence and include exploitation for sex and labour via organized criminal operations. The elimination of all such forms of violence is the object of the Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice. Major United Nations conferences on the subject have made clear that such violence in all its forms nullifies the advancement and fundamental freedoms of women and violates their human rights. It is incumbent on the justice systems to upgrade their responses to criminal victimization perpetrated against women and girls, in terms of prevention, deterrence, law enactment, law enforcement, sanctioning and victim support. Criminal justice systems have a central role to play in ensuring the security and safety of women and in removing what might be regarded as invisible barriers to freedom from their criminal victimization. 17. Thus, women have to be protected in terms of the risk that they bear as a highly vulnerable segment of the victim population. In addition to that, however, they deserve equal protection under the law, equal access to justice mechanisms, equal protection and safeguarding of their legal rights, fundamental freedoms and dignity, and fair treatment, including in terms of victim support and assistance. There should not be circumstances under which gender-directed criminal violence can be invited, tolerated or condoned; nor should there be circumstances of nonfeasance or malfeasance in response to such victimization. The forwarding and/or acceptance of stereotypic arguments of victim precipitation and victim-blaming, including on the part of justice officials, do not conform with international standards and norms. 18. One matter of high priority is to promote safe communities and streets for women and girls so that they may realize their potential through equal opportunities and exercise their rights. Of critical importance to this is the realization, in terms of policy-making and decision-making and practical responses, of the relationships between the causes and consequences of victimization on the one hand and the pressing needs of potential women victims on the other. Public awareness campaigns, coupled with community-based prevention, including in homes and schools, are among the best ways to utilize scarce resources; such campaigns often contain a strong and coherent anti-violence message. The proper education, socialization and rearing of children and the setting up of a system of support, referral and response also constitute an important part of such efforts. 19. Research has demonstrated that women and girls who commit crime often have a history of prior victimization. Familial abuse may force women to try to survive on the streets. Women who are illegal migrants might be pressured to further violate the law in order to avoid deportation. Trafficked women might have been physically and psychologically coerced, or false pretences or duplicity might have been used to get them to enter into the sex trade. Attempts by such victims to resist rape and exploitation or to defend themselves against violence perpetrated by family members, intimates, associates, sponsors or employers commonly result in the victims committing additional criminal acts. 20. To combat women’s victimization, particularly in the context of transnational organized crime, it is necessary to focus on the reasons for such criminality. Despite their attempts to resist abuse, most victims avoid reporting to authorities about being victimized. Research has resulted in the identification of factors, including cultural values, that contribute to non-reporting on the part of victims