The State’s Due Diligence Obligation to Respond to Violence Against Women

Maria McCabe. Maria is a 2L at the Sandra Day O’Connor College of Law at Arizona State University. She was an IRLS fellow for the 2020-2021 academic year. She is currently co-president of the ASU Chapter of the American Constitution Society, a staff writer for the Arizona State Law Journal, and on the board of the International Law Society. She completed a summer internship with the Initiative for Strategic Litigation in Africa in 2021.

Warning: This post discusses cases of domestic violence and sexual assault, which may be upsetting to some readers. 

State underenforcement of laws addressing violence against women is a global problem. The United Nations estimates that one in three women worldwide experiences domestic violence or sexual violence at least once. Not all victims seek help from the police, and in many countries those who do find the response inadequate. For women in this situation, what recourse is available?  

I looked at this question during my internship with the Initiative for Strategic Litigation in Africa (ISLA), a South Africa-based, pan-African, feminist organization focused on violence against women, women’s social and economic rights, and sexual rights. My first assignment involved the State’s due diligence obligations regarding violence against women.

Generally, international human rights law addresses rights’ violations only by State actors; however, the due diligence principle holds the State responsible for private acts when it fails to act with due diligence to prevent, investigate, punish, or provide compensation for rights violations. Due diligence requires the state to use reasonable means but does not guarantee a particular result. As former UN special rapporteur on violence against women Yakin Ertürk noted in 2006, due diligence can help to improve the inadequate implementation of human rights standards related to violence against women.

My research turned up a number of cases from international and regional tribunals and foreign jurisdictions applying these principles. For example:

  • In AT v. Hungary, the Committee on the Elimination of Discrimination Against Women held that the State failed to take appropriate measures to protect the complainant from her abusive husband. Criminal proceedings against the husband dragged on for years. Meanwhile, the State never detained the husband, and the complainant had no way to bar him from their apartment because there was no law under which she could seek a protection order or restraining order.
  • In the Cotton Field case, the Inter-American Court of Human Rights found that Mexico violated the obligation to search for three missing women and investigate their deaths, and therefore failed to guarantee their rights to life, personal integrity, and personal liberty. The State knew about the pattern of violence in the region but did not act with due diligence to find the victims alive or investigate their disappearance.
  • In MC v. Bulgaria, the European Court of Human Rights (ECtHR) found the investigation into the rape of a 14-year-old girl fell short of the State’s due diligence obligation under the European Convention on Human Rights (ECHR). The perpetrators had claimed they had consensual sexual intercourse, the investigator had concluded that there was no evidence that the girl had been forced to have intercourse, and prosecutors had brought no charges. The ECtHR found that the State had failed to sufficiently investigate, to focus the investigation on “non-consent” instead of on evidence of threats or violence, and to consider the particular vulnerabilities of young people.
  • In the seminal South African case Carmichele v. Minister of Safety and Security, the Constitutional Court recognized its obligation to evolve the common law to advance gender equality, and found that the State could be held liable for its failure to protect a woman from a violent sexual assault committed by a man who was released from police custody while awaiting trial for another crime involving sexual violence.
  • The United Kingdom Supreme Court upheld a ruling in favor of two victims of a serial rapist in Commissioner of the Police for the Metropolis v. DSD and Another. The Court found that while the perpetrator was eventually convicted of multiple charges, the inadequate police investigation violated the plaintiff’s rights under the UK’s Human Rights Act, which incorporated ECHR and ECtHR’s case law.

The due diligence principle is no panacea for violence against women. Countries with positive case law on due diligence like the UK and South Africa still struggle with violence against women, and there are reasons to be skeptical of policing-centered responses to violence against women when the intervention of an often dysfunctional criminal justice system may do more harm than good. However, the comparative perspective I gained from my internship made clear that it is feasible to require the State to take reasonable steps to protect women facing domestic violence and investigate cases of sexual violence, and it is important to provide legal recourse for survivors when it fails to do so. In general, I will carry the feminist insights I gained at ISLA forward in my law school and legal career. I am extremely grateful to ISLA and ASU’s International Rule of Law and Security (IRLS) program for this opportunity.

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