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Domestic Violence Awareness Month: Remembering the Origins of WATCH

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Robin Phillips, Executive Director of The Advocates for Human Rights, presents Susan Lenfestey with the 2019 Golden WATCH Award

October is Domestic Violence Awareness Month, as well as the month in which Sheila Wellstone and her husband Sen. Paul Wellstone died in the crash of a small airplane in 2002.

For those who knew her, the two are forever linked, because Sheila was a leader in bringing awareness to the crushing impact of domestic violence.

A self-described ‘wrestling mom’, Sheila traveled the state with Paul during his 1990 senate campaign.  As she sat in coffee shops and VFW halls, she heard women talking about the abuse they suffered in their own homes at the hands of the men they thought loved them.  While economic dependency played a role, it was also a mix of fear and shame that shackled them to their abusers.

Recognizing these women and children needed laws and services to help them find safety and to break the cycle of violence, Sheila and Paul enlisted then Sen. Joe Biden to help them draft the bill that would become the Violence Against Women Act of 1994.

Meanwhile, 1991 saw the nomination of Clarence Thomas to the United States Supreme Court and the testimony of Anita Hill about the sexual comments Thomas had allegedly made to her when they worked together in a previous job.   The panel of male senators sniggered their way through her testimony like embarrassed schoolboys, and we know how that turned out. I still believe Anita Hill!

Shortly after that, the Star Tribune ran a series called “Free to Rape,” detailing the lenient sentencing practices in Minnesota in cases of rape and domestic assault.

In that series, a Hennepin County victims’ advocate said that she wished there was an organization like MADD to keep an eye on the courts.  “Until that happens, nothing will change.”

That article was the catalyst for WATCH (Women At The Court House, later condensed to WATCH), which I helped found later that year.  The mission was to make the courts more responsive and effective in handling cases of violence against women and children and to create a more informed and involved public.

The idea was simple: trained volunteers would monitor felony cases of sexual assault and domestic violence from arraignment through sentencing. They would note “objectively observable behaviors” of court personnel, such as timeliness, ability to he heard, attentiveness to the victim, apparent race of the victim and the defendant, amount of bail set, any upward or downward departures from the sentencing guidelines, as well as how much of the proceeding took place in the judges’ chambers.

Cases with unusual outcomes would be referred to staff for further research to develop a more complete understanding of the issues affecting the case.   WATCH looked for systemic patterns of behavior, not for the occasional misstep.

And yes, volunteers would carry clipboards because judges requested a way for them to be easily identifiable to them, but not to a jury.  Red clipboards were chosen because they were on sale the day we went shopping, not as an incendiary color to intimidate anyone (as one judge later charged)!

After one year, WATCH issued its first report, Hennepin County Criminal Courts, A View from the Outside, which was based on observing more than 1600 appearances in cases related to domestic abuse and criminal sexual conduct.  The report can be found here:

The report made recommendations on how the often-byzantine system could be more easily navigated by the public, especially victims and their families, as well as changes to certain policies that left victims exposed to more danger  As Hennepin County District Court Judge Daniel Mabley wrote at the time, “The report demonstrates that sometimes the best ideas for change come from “outsiders” who are not biased by the assumptions and history that often blinds insiders to the need or potential for change.”

Over the years, WATCH expanded into observing and reporting on similar cases at the misdemeanor level, conducted a multi-year monitoring and research project in child protection court, advocated successfully for a designated domestic violence court, monitored family court in order for protection hearings, compared sentencing practices in misdemeanor domestic violence cases in the suburban courts to those in the downtown court, worked to pass legislation making strangling a felony offense, not a misdemeanor, and much more.  Recently, WATCH expanded into Ramsey and Washington counties and issued two reports on the prosecution of sex trafficking in those jurisdictions.

But in the very early years, we were encouraged and guided by Sheila Wellstone. She moved behind the scenes to bring domestic violence out of the shadows. With others, including WATCH, she helped change the legal and cultural attitudes that viewed domestic violence as a family matter.

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Rosalyn Park, Director of The Advocates’ Womens’ Human Rights Program, and Susan Lenfestey announcing that WATCH will become a project of The Advocates for Human Rights (June 2019)

WATCH recently became a project of The Advocates for Human Rights, and I cannot imagine a more perfect partnership.

Our work is cut out for us.  In 2017, 24 people in Minnesota died as a result of domestic violence, 19 of them women, the other five family members or friends of the victims.

All acts of violence are horrific, but violence in the home passes its toxic seeds on to the next generation, and the next after that. Children who grow up witnessing abuse have a difficult time breaking the cycle.

In October, we pause to remember those who have been silenced by an intimate partner, and to renew our commitment to end the pandemic of domestic violence.  And I’d add, to honor the courageous work of Sheila Wellstone.

To volunteer with The Advocates’ WATCH Project, please click here.

By: Susan Lenfestey, founder of WATCH, the court monitoring and judicial policy non-profit based in Minneapolis, MN. Susan is the 2019 Gold WATCH Award Recipient. 

 

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Sexual Education in Schools in the Republic of Moldova

Laura Vition

My name is Laura.  I am 15 years old and I am from the Republic of Moldova. I am a sociable person and passionate about different things such as traveling, reading, psychology, photos and blogging, film and social justice. This is my first post for Advocates for Human Rights blog and I want to share some of  my experience and thoughts about human rights and related issues specific to teenagers, such as cyberbullying, harassment and discrimination.

I have been volunteering for different organizations since I was 13.  My first volunteer experience was for one of the largest youth-led networks in Moldova which works with and for young people between the ages of 13 and 24 to advance and promote sexual and reproductive health and rights (SRHR) of adolescents and youth. I was 14 years old when I finished the training and became one of the Y – peer trainers. The trainers have to organize several public discussions on sexual and reproductive health and rights for their peers in their lyceums.

I have to say that education about sexual and reproductive health and rights is almost absent in Moldova. Moldova is a traditional country, where the influence of the church is very large. We do not talk freely about sex, sexuality, reproductive health, menstruation, contraception, mutual consent, etc. These topics are still considered taboo, and even indecent and dirty, especially if this interest or questions are coming from teenagers. We cannot discuss these subjects with teachers and parents because we are concerned about their reactions, which are usually negative. As my mother says, the same was true 25 years ago and nothing has changed. I thought that teachers who cannot talk about sexual and reproductive health and rights would welcome an organization with relevant experience in the field, so I decided to organize four informative lessons in my school.

The experience of talking in public about things which girls should not say was great and challenging at the same time. Some boys tried to intimidate me, telling jokes, ignoring, giggling or interrupting me, while others tried to encourage me to continue. The worst thing was the pressure from my teacher who was present for the last lesson. She did not interfere while several boys were laughing and asked the boys to leave the class when I was talking about menstruation. Furthermore, she said that the subjects were inappropriate, and talking about contraception at this age is a sign of immorality and indicates that you have already had sex. When this insinuation is coming from an adult who has power and authority is even worse. It sounds like permission for pupils to stalk somebody. Honestly, I felt so bad that after finishing the lesson that, when nobody could see me, I cried. The next day the teacher was called by one angry parent of a boy who said that these topics should not be discussed in the school. Even now, after several years, I am wondering why the adults are so afraid of talking about normal things, even more so than their children. In actuality, we view these things as normal, and even joke that we could provide some new information to our parents.

Nothing has changed since then except the increasing number of rapes, sexual harassment and pregnant teenagers. Of course, when something like this is happening the girl is the one to be blamed and the one whose life is changing dramatically. I know some of the politicians in our country have started to talk about the importance of  sexual and reproductive education, but they are still very reserved. I hope, however, that my generation will manage to push these challenging issues forward on the political agenda and get rid of the traditional influence.

By youth blogger Laura Vition. Laura is a high school student in Chisinau, Moldova. 

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Absence of Justice for Women in Mexico

woman-embracing-sky-3During my time interning with the International Justice Program at The Advocates for Human Rights, I conducted research on violence against women in Mexico. What I learned through my research represents one of the most troubling cases of human rights infringements, as the State condones impunity for perpetrators.

In 2007, the government of Mexico passed a promising law regarding femicide, physical and sexual violence, as well as “violence against the woman’s dignity, integrity or freedom.” While the aim of this law is to combat the violence women suffer, the perpetrators are often government officials or public defenders themselves. Accusations made against public authorities intertwine with the ongoing relationship between drug cartels and the government, as it is reported that the cartels control the police. There have been numerous accounts of women filing claims with officers only to be sexually harassed and/or threatened in return. This, in turn, allows for the continuation of corruption and absence of justice.

The research I conducted on violence against women in Mexico was for The Advocates’ report to the UN Committee Against Torture (CAT) for their review of Mexico’s compliance with the UN Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.  The Advocates’ report revealed how violence against women and impunity violates Arts. 1, 2, 4(1), 10, 12, 13, 14 and 16 of the Convention. By comparing Mexico’s State Party Report and the CAT’s List of Issues Prior to Reporting and Recommendations from the prior review, we were able to identify he gaps between the government’s stated commitments and its actual implementation of reform to protect women.

Along with two other interns, I then analyzed information (used with permission) about human rights abuses experienced by The Advocates’ asylum clients from Mexico. The experience of these clients illustrated the Mexican government’s failure to protect women from violence.  These women reported not only experiencing violence, but also threats from the police, lack of action, and even accounts of stalking after reporting domestic violence.

One client, for example, fled to the United States out of fear of being killed by her former partner, a member of a Mexican drug cartel. The police told her that they were unable to do anything about her partner’s violent abuse and his threats to her family—the cartel “had the police,” is what she told The Advocates. The client fled to another Mexican state, but her former partner made threats on social media and left messages on her phone, saying that he would find her, kill her and chop her up. Additionally, another client was sexually harassed by a police captain when she filed a case regarding her kidnapped brother. He threatened her with further violence and following the incident, he and fellow officers frequently harassed and threatened her when patrolling her neighborhood.

In addition to sharing the firsthand experience of The Advocates’ clients with the UN Committee Against Torture, we also made recommendations for measures the Mexican government should adopt to protect women from violence. First, Mexico should establish oversight bodies and accountability processes to ensure the full implementation of the General Law on Women’s Access to a Life Free of Violence. In tandem to this, we recommend that the government of Mexico create training programs, in consultation with or led by NGOs serving victims, for their law enforcement and judiciary to be better informed on the dynamics of domestic and gender-based violence against women, including responses that follow best practice standards and international legal norms.

The slow progress toward equality and justice for women in Mexico reflects a number of discriminatory factors that allow inequality to prevail. For example, women are under-represented in governance positions in Mexico, although it is recognized that women in these positions are more inclined to “advocate for social issues that benefit all.”  Greater female representation in decision-making roles may help foster efforts to promote gender equality or focus greater attention on violence against women issues, including femicide.

Widespread violence against women and anti-feminist sentiment are embedded in other aspects of life in Mexico, including the continuation of child marriage and barriers to female education.  A study out of Mexico City revealed that 25,000 girls between 12 and 14 years of age were already married. Forced and early marriage has an impact on girls’ education, and 83% of married girls do not attend school. When girls do not complete their education, studies show that poverty increases in tandem to domestic and gender-based violence against women, unplanned or early pregnancy, and other female health issues.

When the government fails to hold offenders accountable, it sends a message that violence against women will be tolerated. Furthermore, impunity for violence against women not only perpetuates these violations, but encourages negative rhetoric concerning gender roles. The Advocates’ asylum clients’ experiences reveal that much of the violence against women involves sexual violence. Abuse, harassment, and threats against women often sexually objectify or reflect harmful misperceptions that women are a weaker sex.

Without accountability in her country, no woman is truly safe. The international community has called on Mexico to better protect women through the Human Rights Council’s Universal Periodic Review process, as well as other treaty body reviews. To date, however, Mexico’s stated commitments have not been implemented.  Pledges made to the international community mean almost nothing to those individual survivors of  violence, especially when these commitments are being made by those who have the power to rectify but merely perpetuate the situation. Many women have lost faith in the State’s ability and willingness to protect them, leading to the difficult choice to leave home and seek asylum in the United States. Until the government finds a way to create accountability and effectively combat on violence against women, Mexico will continue to be unsafe for women and girls.

I’ve learned a lot about violence against women while working with The Advocates, globally as well as domestically. Their website www.stopvaw.org offers information, tools and legal advocacy to inform the world about these injustices. Raising international awareness and advocating for international law is an exemplary tool for attempting to bring justice to women survivors of intimate partner violence when their governments cannot or will not protect them.

By Sydney Shelstad, rising University of Minnesota senior majoring in Political Science and Global Studies with a concentration in Human Rights and Social Justice. She was a spring 2019 intern with The Advocates’ International Justice Program. 

 

 

 

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International Women’s Day 2019: Think Equal, Build Smart, Innovate for Change

The theme for International Women’s Day 2019 is Think Equal, Build Smart, Innovate for Change. According to UN Women, this theme challenges us to think about how we can “advance gender equality and the empowerment of women.” This objective reflects that envisioned by Sustainable Development Goal 5, which recognizes that although discrimination against women and girls is decreasing, gender inequality persists and continues to deny women and girls basic human rights and opportunities. As we look at laws and practices around the world today, there are still laws that actively discriminate against women. Many countries still retain lists of prohibited jobs for women – banning them from jobs such as a truck driver, factory worker, metal welder, deck hand or barring them from working above certain heights or during night hours. In countries where economic opportunities are scarce, removing these employment opportunities from women’s reach hinders their empowerment, advancement and economic independence. For example, Russia bans women from 456 types of jobs, Ukraine bans women from 458 jobs, and Kazakhstan bans women from 287 jobs. These countries are rich in natural resources and therefore employment opportunities in those fields, yet the lists of banned professions often include jobs found in the extractives industries.

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At the request of the UN Group of Experts on Coal Mine Methane, The Advocates has undertaken research to examine the benefits of female inclusion and ways to support women in traditionally male-dominated industries, specifically the extractive industries of oil, gas, and mining. The report, Promoting Gender Diversity and Inclusion in the Oil, Gas and Mining Extractive Industries, demonstrates the numerous benefits that women and diversity bring to industries, including a larger talent pool for recruitment, greater profitability, improved performance, better safety records, and overall economic empowerment to women and communities. For example, it is well-documented that female inclusion boosts company profits. Companies ranking in the top 25 percent for gender diversity are 15 percent more likely to have “financial returns” higher than the national industry medians. Companies with more women employees and gender-diverse teams have better teamwork, communication, and greater creativity in solving business and technical problems than homogenous work forces, and women are more likely to use teamwork and cooperative approaches that draw on the skills and resources of a broader network. The report also addresses challenges that women face – both legal and in the workplace setting – that hinder their full participation in the workforce. The report concludes with recommendations to both states and private companies on how to promote gender diversity and inclusion, with the priority recommendation to repeal laws that discriminate against women in the workplace and in private life.

By: Rosalyn Park, director of the Women’s Human Rights Program at The Advocates for Human Rights.

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Legislation: Is It Ever Enough?

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Photo by ALICE MULOMBE MUYAMBO 

In 1985, the Republic of Zambia ratified the Convention on the Elimination of All Forms of Discrimination against Women. It was another 23 years before legislation was enacted in the form of the 2011 Anti-Gender-Based Violence Act.  Its Preamble bold declared it “An Act to provide for the protection of victims of gender-based violence,”  prompting a sharp rise in the numbers of reported cases as non-governmental organizations conducted nationwide campaigns to inform the public of the new legislation.

On paper, the law was a step in the right direction, fighting widespread violence against women and thereby challenging years of traditional gender roles by criminalizing a wide range of abuses based on sex, from economic to physical, and emotional, verbal and psychological abuse.

However, when the legislation was put to the test in the Courtroom, it failed to meet its own high standard. Cases of domestic violence, sexual violence, and gender-based violence against women continued to be tried using outdated laws such as the Penal Code and Criminal Procedure Codes. Many of the victims of these shortfalls in the law are nameless and have no safety net when their cases fall through.

Take Jessie (not her real name) for example. A 25-year-old magistrate who graduated from a premier Law School in Lusaka, she was married to a military man whom she met while at law school. Their year-long marriage was stained by violent outbursts, physical violence, public humiliation and isolation from friends and family– all the things that the Anti-Gender-Based Violence Act was meant to protect her from.

Finally on December 3, 2015, Jessie’s military employee husband beat her unconscious. Jessie woke up in Kabwe General Hospital, blood drenched and deformed with two deep cuts to the head. She accepted support from her colleagues and family and especially from the justice system that she had worked so hard to be a part of.

Instead, she woke up to humiliating headlines in two public newspapers, “Army officer batters magistrate wife,” read one newspaper; four national radio stations carried the story without bothering to verifying any of the facts.

Physically, the wounds took four months to heal.  Her employers, however, demanded that she report to work for two weeks after the incident.

Meanwhile, her husband was arrested and released when she dropped the case due to pressure from her mother, who was concerned by what friends and family would say. After all, Jessie was a successful magistrate; her parents were marriage councillors who had been married for more than twenty years, she had a daughter – her mother reminded her – who needed both parents, and there was the Zambian proverb that urges women to “stay strong” in the face of turbulent times. Shipikisha club, they call it.

So, she took the advice of her mother and dropped the case against her husband, hoping that his three days in custody would force him to reflect on his behavior and start a journey to change.

Although the Penal Code gives the state the right to prosecute cases on behalf of victims, even after they give statements stating that they wish to drop them, the Judiciary did not take kindly to Jessie’s actions. When she reported for work, she was greeted by hostile stares and a suspension letter from the Deputy Director charging her with conduct likely to bring the Judiciary into disrepute, a vague term that can be used to cover a wide range of incidents. There was no provision under any code allowing or sanctioning the suspension, and the offense she was charged with carried a punishment of a written warning. The experience left her feeling victimised. She was given seven days within which to exculpate herself, and after she did, she did not hear from her employers for nine months.

Her husband in the meantime, continued to work for the Zambian Army.  He has not faced any sanctions from his employers or accountability for his behaviour by the public media, and his life continues as before.

Numerous letters later, Jessie was reinstated, with a thinly veiled threat that she must ensure that the incident never recurred if she wanted to keep her job. This seemed contrary to the official position of the Zambian Judiciary, which had taken a strong stance against gender-based violence against women in the media and was launching a fast-track court in Kabwe.

So, how does one pick up the pieces after being abused by all the people and institutions that are supposed to protect you? You do better. Jessie is a strong advocate for women’s rights in the workplace and uses the Anti-Gender-Based Violence Act in the Courtroom. With the help of friends and other victims, she overcame her initial misgivings about handling cases similar to her own, and she now sits on the bench in Monze Zambia.

Still, Jessie’s experience begs the question: is legislation enough to end violence against women?

By Mubanga Kalimamukwento, Hubert Humphrey (Fulbright) Fellow 2018/2019 – University of Minnesota, who is doing her professional affiliation with the International Justice Program of The Advocates for Human Rights.

Expanding the Technical Expertise of Women’s Rights Defenders in 2018

FeaturedExpanding the Technical Expertise of Women’s Rights Defenders in 2018

Women’s rights are human rights. We make up half the world’s population, and therefore, half its potential. But unfortunately, laws, practices, and people’s attitudes do not always take into account the legacy of discrimination in women’s lives and the fact that women and girls routinely face violence and oppression.

We know that, when we lift up women, we see a ripple effect that goes far beyond women and girls and into the world. For example, when we see greater income equality across both women and men, poverty diminishes through the generations. When women hold assets or gain income, that money is more likely to be spent on their family’s nutrition, medicines, and housing. As a result, children are healthier and the community does better. When girls pursue a secondary education, they marry later and have fewer children. Their risk of domestic violence is lower compared to child brides who are forced to marry.

It Takes a Multifaceted Approach

From ending violence against women to stopping discrimination to empowering women.

What is The Advocates for Human Rights doing about it?

  • We change laws by analyzing and commenting on laws before they are passed to make sure they are the strongest they can be.
  • We monitor and document violations of women’s rights and make recommendations to fix the pitfalls and barriers to women.
  • We build the capacity of civil society to hold their governments accountable and safeguard women’s rights.
  • We provide our expertise to the United Nations to elaborate best practice standards on violence against women and evaluate on-the-ground practices.

We Were Busy in 2018!

Ending Violence Against Women

  • We completed the final two trainings for the Russian Legal Training Academy for Women’s Human Rights. Sixteen Russian-speaking lawyers from 8 countries in the Former Soviet Union were trained on how to use UN and European mechanisms when all domestic remedies have failed. The second training, in Chisinau, Moldova, led by Jennifer Prestholdt, Theresa Dykoschak, and Amy Bergquist, addressed using UN mechanisms to defend women’s rights. Local NGO, Promo-LEX, was our host partner for this second session. Rosalyn Park, Amy Bergquist and Theresa Dykoschak completed the third session this October in Tbilisi, Georgia. Local NGO, Anti-Violence Network of Georgia, was our host partner for the third and final session.

    • Rosalyn Park and volunteer Veronica Clark attended the Women Against Violence Europe (WAVE) Network annual conference in Malta in late October. They conducted interviews on the backlash against women’s rights across Europe.

    • Robin Phillips attended the “European Network for the Work with Perpetrators of Domestic Violence” (WWP EN) conference in Prague, Czech Republic in October with Denise Gamache of the Battered Women’s Justice Project. Our participation builds on our 2016 report, Batterer Intervention Programs: Recommendations for Effective Batterer Intervention Programs in Central & Eastern Europe & the former Soviet Union.

    • At the invitation of the Organization for Security and Cooperation in Europe (OSCE), Rosalyn Park was in Astana, Kazakhstan to present on international best practices for legal reform on domestic violence. The conference, “Preventing Domestic Violence through Effective Collaboration: A New Stage of Development of Crisis Centers,” was organized by OSCE, UN Women, UNFPA, and the Union of Crisis Centers in Kazakhstan and aimed at strengthening the work of the crisis centers and raising awareness on preventing domestic violence.

Stopping Discrimination

  • At the request of the UN Group of Experts on Coal Mine Methane, The Advocates undertook research to highlight the benefits of promoting female inclusion in traditionally male-dominated industries and identify ways to support the women in these sectors. Fish & Richardson and Dechert LLP provided pro bono assistance to help conduct the research. The Advocates presented its findings in Geneva at the annual meeting of the UN Group of Experts on Coal Mine Methane. The report will be published in early 2019.

    • Theresa Dykoschak, Staff Attorney, was in Bishkek, Kyrgyzstan in early November as an expert panelist at a conference for systems actors from Central Asian countries on eliminating gender-based violence against women and girls. The conference was organized by UN Women, UNFPA, UNDP and UNICEF.

Empowering Women and Human Rights Defenders

  • Robin Phillips and Rosalyn Park trained 25 lawyers from 15 countries for the seventh round of the Women’s Human Rights Training Institute (WHRTI) in Sofia, Bulgaria. In partnership with the Bulgarian Gender Research Foundation and Equality Now, WHRTI strives to build the capacity of young lawyers from Central and Eastern Europe and the Former Soviet Union for litigation on women’s rights issues.

    • Robin Phillips and Rosalyn Park built the capacity of civil society to hold their governments accountable to effectively respond to rape and sexual violence. At the invitation of local partner Mobilizing for Rights Associates, The Advocates trained 23 civil society members and systems actors in Marrakech, Morocco in December.

    • In March we celebrated International Women’s Day, a day to catalyze activism and to focus on advancements and challenges in women’s rights and equality. Theresa Dykoschak presented on cyberviolence and Rosalyn Park facilitated a panel discussion by the keynote speaker and performing artist, Nekessa Julia Opoti and Andrea Jenkins.

Thank you to all our supporters! We look forward to continuing the work in 2019.

By: Rosalyn Park, director of the Women’s Human Rights Program at The Advocates for Human Rights.

 

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Representing Women Seeking Asylum in the US: Gender-Based Persecution

In reSVAW logo copypresenting several women seeking asylum in the US based on gender-based persecution, I have learned a lot and had some of my most memorable experiences as a lawyer.

  • “Nancy” is a woman from Guinea who was subjected to female genital mutilation at thirteen, and again at fourteen, and then the victim of persistent violence and rape by her husband that family, friends, her doctor, and the police were unable or unwilling to stop. She twice fled the country, but her husband found her and forced her to return home, which only led to escalating violence and prolonged imprisonment.  Her family counseled her to “accept” this treatment, and the police refused to intervene because her husband was a high ranking member of the military police.  She escaped to the US, was granted asylum, and is working to reunite with her children.
  • “Donna” is a woman from Cameroon who was the victim of levirate marriage. She was viewed as property of the family, since a dowry had been paid, so after her husband died she was required to marry one of her brothers-in-law.  When she refused, she was sexually assaulted, told she would “get used to it,” and her family and business were threatened.  She escaped to the US, was granted asylum, and has reunited with her children.
  • “Janet” is a woman from Kenya who was the victim of female genital mutilation. She was seeking protection for herself, and also to prevent having to take her daughter back to Kenya where her family would require that her daughter also undergo female genital mutilation.  She was granted withholding of removal, so that she and her daughter are safe in the US.
  • “Francis” is a woman from The Gambia who was the victim of female genital mutilation, and who sought to avoid a forced marriage to a much older man. She had secretly acted as an activist working to educate people about the risks of female genital mutilation, and her mother, at great risk to herself, persuaded her father to let Francis pursue her education.  In order to prevent the forced marriage, and to continue her education, she came to the US, sought and was granted asylum.

The primary reason these awful things happened to my clients is because they are women.  Female genital mutilation, forced marriage, levirate marriage, and ongoing domestic violence continues to happen because in some places women and girls are not viewed as fully human, endowed with the same rights as men. We should be proud that our legal system rejected that view, and instead found affirming their basic human rights worthy of protection.

A recent decision from the Attorney General has proposed to make it more difficult for women fleeing gender-based violence to get protection in the US. In Matter of A-B, 27 I&N Dec. 316 (A.G. 2018), the Attorney General invoked a rarely used power to certify to himself a case for decision so that he could change the law in this area.  In the case, the primary issue that had been litigated was whether the applicant was credible, and the Department of Homeland Security even had agreed that private violence like domestic violence that a government cannot or will not control can be a proper basis for asylum.  The Attorney General, however, reached out to decide a broader issue, which was whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.  Though the holding of the decision narrowly overruled a previously-decided case from the Board of Immigration Appeals the Attorney General, largely through dicta, articulated and encouraged a very restrictive view of asylum law.  The decision posits that violence inflicted by private actors, rather than governments, is generally not the type of persecution that our asylum laws were intended to address.

There are many flaws, procedural and substantive, with the decision.  The odd procedure of the case suggests that the Attorney General was searching for a vehicle to render broad policy pronouncements to restrict asylum law.  The decision states that it is not minimizing the “vile abuse” that the woman in the case suffered in the form of domestic violence by her ex-husband.  Unfortunately, the way it elevates form over substance and erects barriers for women who have been so victimized suggests otherwise.  Most fundamentally, it applies a feeble, restrictive view of asylum law, somehow drawing perceived comfort from the rather hollow observation that “the asylum statute does not provide redress for all misfortune.”

I believe that gender-based persecution is indeed the type of harm that our asylum laws should work to address.  It is well-established in international law that states have an obligation to exercise due diligence to prevent, investigate, and punish actions by private actors. The U.N. Declaration on the Elimination of Violence against Women (DEVAW) states that governments are urged to “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by privates persons” (Art. 4(c)). General Recommendation No. 19 by the U.N. Committee on the Elimination of Discrimination against Women (CEDAW) also provides that states may be “responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.” In my experience, allowing the asylum laws to protect people deprived of their basic human rights by private actors because of their gender is a powerful way for this country to stand up for the dignity of all people.  When we see this harm not as mere private acts of violence but as systematic persecution, we affirm the importance of human rights for all people.  The Attorney General’s decision, which seeks to set aside years of development of the law in order to make it more difficult for women to obtain protection, is misguided.  It will make it more difficult for women like the ones that I’ve represented to be safe and free.

The decision will make it harder, but certainly not impossible, to win these cases.  There are still helpful cases from Circuit Courts of Appeals across the country that support gender-based claims from private actor persecution.  Advocates may need to present more arguments and evidence that demonstrate governments’ failure to prevent the harms inflicted by private actors.  Use of expert witnesses to present this evidence may also be needed in more cases.  While the Attorney General’s decision is a significant setback, there are still many claims based on private actor persecution that should prevail.

In 1788, George Washington wrote “I had always hoped that this land might become a safe and agreeable Asylum to the virtuous and persecuted part of mankind, to whatever nation they might belong.”  We know, however, that the history of the US regarding the protection of refugees has been uneven, vacillating between openness and prioritizing human rights to times where we have turned our backs to the persecuted and failed to live up to our country’s ideals.  At times like this when we fall back, lawyers can make a difference by standing up for victims of human rights abuses.  By helping asylum seekers overcome the new hurdles placed by the Attorney General, and hopefully restoring the law to embody greater respect for freedom and human rights, we can enlist ourselves on the right side of history.  I am so glad that Nancy, Donna, Janet, Francis and others like them are safe.  But today asylum seekers, particularly women who have been victims of private actor violence, are going to need help more than ever.

Dean Eyler is Principal and Intellectual Property Litigation Chair at Gray Plant Mooty and a volunteer attorney with The Advocates for Human Rights.