TABLE OF CONTENTS EXECUTIVE SUMMARY... iv INTRODUCTION... 1 Report Methodology... 1 BACKGROUND... 1 Scope of SGBV in Myanmar... 1 Legal Framework...

Transcription

1

2 TABLE OF CONTENTS EXECUTIVE SUMMARY... iv INTRODUCTION... 1 Report Methodology... 1 BACKGROUND... 1 Scope of SGBV in Myanmar... 1 Legal Framework... 3 CULTURAL NORMS... 4 ACCESS TO SUPPORT SERVICES INCLUDING SHELTERS... 4 FORMAL JUSTICE SECTOR INTERACTIONS... 5 VULNERABLE GROUPS... 6 Sex workers... 6 Internally displaced persons... 6 Children... 7 HUMAN TRAFFICKING...7 DOMESTIC VIOLENCE... 8 RECOMMENDATIONS FOR ADDRESSING SEXUAL AND GENDER-BASED VIOLENCE IN RULE OF LAW CENTRE COMMUNITIES TO THE LOCAL AND NATIONAL GOVERNMENT TO CIVIL SOCIETY ORGANIZATIONS TO DEVELOPMENT PARTNERS TO THE RULE OF LAW CENTRES ANNEX 1. DEVELOPMENT OF A SHELTER SYSTEM ii

3 THE RULE OF LAW CENTRES ISSUE BRIEF SERIES The Rule of Law Centres Initiative (ROLCs), launched in 2014 by the United Nations Development Programme (UNDP) at the request of the Pyithu Hluttaw Rule of Law and Tranquility Committee and now guided by the Coordinating Body on Rule of Law Centre and Justice Affairs, helps increase trust and cooperation between justice providers and the communities they serve. UNDP and the International Development Law Organization (IDLO), under their global partnership agreement, have established four nationally operated Rule of Law Centres in Myanmar to provide communities with the knowledge, skills and values they need to address local justice issues through training, dialogue and access to resources. The initiative is made possible by the generous support of the governments of Australia, Finland, Japan, Sweden and the United Kingdom. A key challenge for both government and non-governmental actors in Myanmar is the limited availability of an evidence base for policymaking and law making and limited capacity to generate research and analysis. There is also limited public and practitioner understanding of the policymaking and lawmaking processes and how decisions are made within government, including identifying where advocacy by national and international actors may be most effective. The Issue Brief Series seeks to help address this gap by drawing on the insights and local knowledge generated through the extensive programmatic work of the Rule of Law Centres in four locations across Myanmar, to provide concrete recommendations to government and non-governmental actors on priority justice issues. Through community forums and legal discussions, the Rule of Law Centres bring together communities, civil society, lawyers and local government officials to share knowledge, build dialogue and discuss solutions to local justice issues. Between August 2015 and December 2016, more than 3,300 participants 1 attended a total of 42 community forums and discussions across the four Centre locations, focused on justice issues of concern in the community. Civil society and government participants alike regularly comment on the value of this rare opportunity to come together to openly discuss community justice issues and identify solutions. This Issue Brief outlines key findings regarding leading local justice concerns related to sexual and gender based violence and proposed solutions, jointly identified by lawyers, civil society organizations (CSOs), academics and local justice officials at Rule of Law Centre events and through further desk research and analysis. The intention is to contribute to a knowledge base and develop targeted recommendations to address local justice priorities. Research draws on the deep relationships the Rule of Law Centres enjoy with their host communities which engages both government and non-government actors in programming, making the Centres an ideal platform to support communities to identify and implement grassroots level solutions identified in the Issue Briefs. The Rule of Law Centres wishes to thank all Rule of Law Centre participants and key informants interviewed for this Brief for their active engagement and participation towards strengthening rule of law in Myanmar. 1 Note this figure includes attendance at multiple events by a single individual. iii

4 EXECUTIVE SUMMARY In each Rule of Law Centre, one of the most persistent themes in community forums and discussions is the prevalence of sexual and gender-based violence (SGBV) in communities across Myanmar. Reflecting the extent of this concern, a third of community forums or discussions hosted at the Rule of Law Centres since their establishment focused on issues related to SGBV, including domestic violence, human trafficking and child protection. While the concept of sexual and gender based violence itself is not well understood, issues that clearly involve a gender dimension, frequently identified as violence against women and children, are widespread. Forum participants and CSO representatives interviewed for this report spoke of a silent crisis of violence for women and children, with very few psychosocial, medical or legal remedies available to victims. This Brief is part of a Rule of Law Centres initiative to document community justice concerns generally, and in particular around sexual and gender-based violence, raised by Centre participants through community forums and discussions held in four diverse states and regions around Myanmar: Mandalay and Yangon Regions and Shan and Kachin States. Concerns center on the prevalence and normalization of domestic violence, the consequences of human trafficking for women and girls, and the vulnerabilities of particular groups, including women living in areas with especially challenging cultural norms around domestic violence, children, internally displaced people, sex workers and LGBT individuals. The country s antiquated and inadequate domestic legal framework is compounded by a formal justice system, as well as informal justice actors, including administrative officials and religious leaders, that are poorly equipped to deal sensitively and effectively with SGBV cases. Inadequate access to services, including legal, medical and psycho-social support, underlie each of these issues. This Issues Brief is intended to both document the concerns raised in Rule of Law Centre community forums between August 2015 and December 2016, and to offer concrete recommendations for addressing them to both the Rule of Law Centres and key stakeholders such as national, state/regional and local governments, civil society organizations (CSOs), and other development partners. Detailed recommendations drawn from the solutions put forward by community leaders, CSOs, lawyers and government officials, are provided in this Brief, but they fall within the following overall areas: SUMMARY OF RECOMMENDATIONS UNION, STATE AND REGIONAL GOVERNMENTS Prioritize amending existing and passing new legislation to improve the legal protection options available to SGBV victims. Train judicial officers, law officers, police, ward/village tract administrators and informal justice sector actors, including community and religious leaders, to effectively and sensitively handle SGBV cases. Coordinate with relevant government agencies, civil society organizations and development partners in addressing harmful cultural norms around SGBV, including in Shan and Kachin states. Create broader, more accessible health, legal and psychosocial services, including access to shelters, and expand services offered under the Ministry of Social Welfare s one stop centre initiatives. iv

5 DEVELOPMENT PARTNERS Support local and national governments in collecting baseline data on prevalence of SGBV to inform service provision in high need areas. Support CSOs through grants, capacity building and provision of technical advice on the construction of shelters and other critical SGBV services. Advocate to national, state/regional and local government actors for law and justice reform on SGBV and broader gender equality. Support capacity development of justice actors, including judicial officers, law officers and police, and informal actors, including community and religious leaders. CIVIL SOCIETY ORGANIZATIONS Implement awareness raising and service provision initiatives to address SGBV issues. In collaboration with SGBV experts, identify community-appropriate shelter and psychosocial support models to improve access to necessary support services. Advocate to national, state/regional and local government actors for law reform and the provision of better psychosocial services for victims of SGBV. Through programming and community engagement, target harmful cultural practices around SGBV. RULE OF LAW CENTRES Raise awareness of SGBV and related rule of law principles and legal frameworks and remedies in Rule of Law Centre communities. Provide a forum for discussion and coordination between the government, informal justice actors, CSOs and local lawyers to address SGBV related issues and take action on proposed solutions. Support the capacity development of critical stakeholders, including: National, State/Regional and Local government, informal justice actors, CSOs and local lawyers. v

6 INTRODUCTION In each Rule of Law Centre, located in Yangon, Mandalay, Taunggyi and Myitkyina, one of the most persistent themes in forums and discussions is the prevalence of SGBV in communities across Myanmar. Forum participants and civil society organization (CSO) representatives interviewed for this brief spoke of a silent crisis of violence for women and girls, with very few psychosocial, medical or legal remedies available to victims. During community theatre workshops held in Taunggyi and Mandalay in December 2016 and May 2017 in collaboration with Arts for All, participants were asked to identify a pressing community issue they wished to address through street theatre. Groups selected gender-based violence, domestic violence and child sexual abuse as the issues of greatest concern in their communities. Fourteen of Rule of Law Centres community forums and discussions activities roughly a third of all community forums or discussions hosted at the Centres between July 2015 and December 2016 focused on issues related to SGBV, including domestic violence, human trafficking and child protection. Forum discussions in all locations were frequently attended by members of the local and national government, the police, and in some cases, the judiciary. Members of the government concurred with community assessments about the prevalence and seriousness of SGBV in communities. Methodology Findings and recommendations included in this brief are informed by activity reports generated by Centre staff following community forums and discussions and situational analyses conducted by Centre staff in each location in January 2017, 2 as well as key informant interviews with Centre staff, local CSO leaders and lawyers and UNDP staff in November and December 2016 at each of the Centre locations. During interviews, CSO representatives were asked to explain the dynamics surrounding SGBV in their communities particularly, what resources were available (if any), how the Rule of Law Centres could support SGBV reduction initiatives, and any other changes the participants believed were necessary. Given the geographic and ethnic diversity represented in the Rule of Law Centre locations, participants were asked to elaborate on any customary practices or cultural beliefs that might influence the way SGBV is both perceived and resolved by victims and their communities. Though the results of those conversations are not intended to reflect the full complexity of these beliefs, they offer context to the potential challenges in addressing SGBV in Myanmar. This Brief is not intended to provide an in-depth or exhaustive analysis of the many complex issues related to sexual and gender based violence in Myanmar or serve as an empirical study; rather it is a compilation of qualitative findings generated at the community level in one and half years of Rule of Law Centres programming, supplemented by desk research and in-depth key informant interviews. BACKGROUND Scope of SGBV in Myanmar In the Rule of Law Centres, women s rights CSOs and community leaders report that women continue to face discrimination in nearly all aspects of their daily lives, from seeking educational and employment opportunities, to inheriting land and acquiring moveable assets, to being treated equally by law enforcement. This deep social inequality undoubtedly contributes to the high levels of gender-based violence and the lack of effective laws and services to address it. Gender-based violence is defined as violence or attempted violence, whether physical, sexual psychological or emotional, including harassment or threats, against an individual on the basis of his or her gender. It may include sexual violence, domestic violence, trafficking, forced or early marriage, and harmful cultural practices. 3 There is no national data on the number of individuals who experience SGBV in Myanmar, but 2 Following at least one year of programming in each Centre. 3 United Nations Office of the High Commissioner of Human Rights, Sexual and Gender-Based Violence in the Context of Transitional Justice, Oct

7 anecdotal reports from Rule of Law Centres, and the studies and statistics that do exist suggest violence against women occurs at epidemic rates. 4 Data from the first Myanmar Demographic and Health Survey , conducted by Burma s Ministry of Health and Sports, found that one in five women have experienced domestic violence. 5 Seventy percent of women visiting the United Nationas Population Fund (UNFPA)-supported Metta Foundation Women and Girls Centres, which operate in conflict zones in Kachin State, report experiencing domestic violence. 6 A 2017 study in Southeastern Myanmar found gender-based violence to be significant and widespread, with intimate partner violence the most frequently reported type of gender-based violence. 7 Domestic violence rates outside of conflict zones may be even higher, as individuals living in peaceful areas reported higher levels of social acceptance of SGBV than individuals living in conflict zones. 8 This Brief notes that when issues are raised at the community level they tend to be framed as the need to ensure the protection of women and children from violence, understood as a social concern. There is limited understanding of the broader concept of SGBV as it relates to systemic inequality and pervasive discriminatory social and cultural norms. There is also little recognition that sexual and gender based violence can also affect boys or men, particularly LGBT individuals. Legal Clinic Myanmar, a legal services provider that offers free or low-cost information sessions, legal counseling and legal assistance in five locations across the country including in Yangon, Mandalay and Myitkyina, reports that 75 percent of SGBV cases presented to their Yangon office involve an intimate partner. Thirty-eight percent of SGBV cases involve mental abuse, 25 percent of SGBV cases involve physical abuse, 21 percent involve sexual abuse, and 16 percent involve socioeconomic damage, such as neglect or abandonment. Of sexual violence cases, 75 percent are perpetrated by an acquaintance, 13 percent by a relative, and 7 percent an immediate family member. The low representation of SGBV cases by relatives and family members may reflect strong stigma associated with discussing intra-familial abuse. Furthermore, Legal Clinic Myanmar reports that most domestic abuse cases originate in poor, rural families, with middle class, wealthy and urban families preferring to settle disputes at home out of court to avoid public shame and stigma. It is clear that women in Myanmar face significant barriers and challenges in seeking justice in such cases, from all levels of the justice chain. As a 2016 UN Women study concluded: many women and families still chose traditional dispute resolution mechanisms for most cases due to the persistence of long-held, widespread distrust of the state legal system and complaints about its high costs, corruption, gender bias, lengthy trial delays and language barriers for ethnic minorities who are non-myanmar language speakers. 9 Recent research by UNDP in Shan and Kachin States found that a primary barrier to access to justice is that social norms treat domestic violence as a dispute between couples to be mediated. 10 Cases are rarely formally reported to the police; when victims do seek help, it is most likely to be from local community or religious leaders, administrative officials at the household or ward/village tract level, or in some cases, the Women s Affairs Federation See Gender Equality Network, Behind the Silence Violence Against Women and their Resilience Myanmar, 2015; Action Aid Myanmar, Violence Against Women and Girls & Access to Justice in Myanmar: Gender Analysis Brief (2014); and, UNDP, Challenges and Opportunities for Strengthening the Rule of Law and Access to Justice in Myanmar, 2015 (unpublished). 5 Htet Naing Zaw, Health Ministry: One in Five Women Experience Domestic Violence, The Irrawaddy, 23 March 2017, 6 UNFPA, A silent emergency: Violence against women and girls, UNFPA, Powerful Myths, Hidden Secrets, Id. 9 UN Women, Voices from the Intersection: Women s Access to Justice in the Plural Legal System in Myanmar, UNDP, Access to Justice and Informal Justice Systems Research: Access to Justice and Legal Protection for Women, 2017 (unpublished). 11 Id. 2

8 In addition to urging the amendment of laws that discriminate against women and the implementation of adequate legislation to address violence against women, CSO leaders highlighted the role that men and boys play in combatting SGBV. Many felt educating boys about women s rights and de-normalizing the domestic abuse they may have witnessed at home and in their communities, as well as encouraging men to see themselves as partners in realizing women s rights, is critical to breaking cycles of violence. CSO leaders urged the Rule of Law Centres to consider incorporating trainings on men as partners in preventing SGBV. \ Legal Framework The government of Myanmar has made high level commitments to uphold the rights of women and take measures to prevent and effectively respond to SGBV cases. It has ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which imposes a range of obligations under international human rights law. Domestically, the government has made high level policy commitments through the development of the National Strategic Plan for the Advancement of Women (NSPAW) 12 which contains provisions for strengthening legal protections against SGBV, as well as the reduction of barriers to accessing SGBV services. At the time of writing the Myanmar parliament was preparing to consider the draft Prevention of Violence Against Women law, drafted by the Department of Social Welfare in collaboration with the Gender Equality Network and UN agencies, that would provide a comprehensive legal framework and protection measures for addressing violence against women. Although these promising developments are to be welcomed, significant challenges remain and there is much work to be done to ensure an adequate legal framework is in place to protect women and children from violence and that barriers to accessing justice are addressed. Myanmar s domestic legal framework is drawn from colonial and traditional sources dating from the 19 th century and does not offer adequate remedies for SGBV. Although rape is a punishable offence, it is narrowly defined, and marital rape is not prohibited unless the wife is younger than 15 years old. 13 Access to effective remedies and protective measures are very limited, and there are no provisions allowing women to seek restraining orders. 14 In its 2016 Concluding Observations, the CEDAW Committee expressed concern regarding reports of judicial corruption that discourage women from reporting instances of SGBV, and encouraged Myanmar to ensure that members of the police and judiciary deliver impartial, professional and gender sensitive services. 15 The Committee also expressed concern that Myanmar has not enacted legislation defining discrimination against women. 16 Further, there are a number of laws, particularly in the civil and family law sphere that are discriminatory towards women, including the four Race and Religion laws, and require amendment. While the 2008 Myanmar Constitution guarantees women s equality, it does not contain a definition of the term, and access to remedies for constitutional violations is very limited. 17 The 2008 Constitution also contains a number of provisions substantively limiting women s rights. These include provisions barring women from participating in fields regarded as naturally suitable for men only. 18 Domestic anti-trafficking legislation, which was passed in 2005, meets international standards but could be amended to include stronger protections for victims and the provision of adequate social services UNFPA, Myanmar s national strategic action plan for women announced, 4 Oct Penal Code of Burma (India Act XLV 1860), sections ; Law Amending the Penal Code - Pyidaungsu Hluttaw Law No. 6/ Id. at 375. Concerning the absence of legislation allowing restraining orders, see Gender Equality Network, Myanmar Laws and CEDAW: The Case for Anti-Violence Against Women Laws, Jan 2013, at Concluding Observations on the Combined Fourth and Fifth Periodic Reports of Myanmar, CEDAW, CEDAW/C/MMR/CO/4-5, paragraph Id. 17 Sections 347 and 348 of the 2008 Constitution of Myanmar prohibit discrimination on the basis of sex. Section 351 states Women shall be entitled to the same rights and salaries as received by men in respect of similar work, s. 352 states However, nothing in this Section shall prevent appointment of men to the positions that are suitable for men only. 18 Id. 19 Id. 3

9 CULTURAL NORMS In interviews, forums and discussions, CSO leaders and lawyers spoke repeatedly of the strong cultural norms that blame and stigmatize victims, inhibit reporting of SGBV cases and lead to remedies that violate women s rights. For example, one interviewee relayed a Kachin expression meaning wash your face, following an incident of violence or rape, implying that her dignity is ruined and needs to be washed or cleaned. Under traditional customary practices, this is often done by reparations paid to the family. In all Rule of Law Centre communities, CSOs reported that women are pressured to resolve domestic and sexual violence through customary means, including mediation with a village elder or religious leader. Such mechanisms typically emphasize reconciliation for married couples, marriage for unmarried couples, or restitution through payment to the victim s family. Lawyers recounted cases of women facing discouragement or harassment from community members for having attracted an abusive partner. Several interviewees felt that cultural norms amongst ethnic groups, including the Kachin and Shan, were prohibitive, with women facing intense community pressure to remain silent about abuse but also finding police to be unresponsive. Patriarchal norms tend to persist within these traditional customs. For example, in Kachin, SGBV cases are often handled by Htaung Hking Salangs, elder community leaders who are mostly men, at the village/ward level, and other community members. As per the informal Htaung Hking approach, mediation, compensation, and reconciliation are employed, and there is no mechanism to monitor whether the abuser follows the decision. If disputes cannot be handled at village/ward level, the Kachin Literature and Culture Office can be approached for further action. If the victim informs police of an incident, typically the first question is whether have you tried to solve with Htaung Hking ; if not, the justice sector actors encourage the victim to seek informal justice first. In Shan State, participants at Taunggyi Centre discussions noted the impact of discriminatory traditional practices, including prohibitions on women inheriting property, as factors contributing to GBV. It was also noted that some people did not perceive violence by their partners as a crime, given the husband s traditional role as head of the household, and identified that awareness raising campaigns are key. In cases of child abuse, mothers are viewed as responsible for failing to protect their children, although according to CSO representatives, there is less stigma attached to registering a child abuse case than an SGBV case involving an adult. Interviewees in all locations felt that, in addition to prohibitive cultural norms, low expectations of the formal justice system also dissuade women from reporting SGBV to the police. In conflict-affected areas in Shan and Kachin States access to the formal justice system is often particularly difficult. Interviewees in Yangon reported that government representatives at forums agreed with community members that increased awareness of SGBV and women s rights is the most important response to cultural practices that normalize violence against women. ACCESS TO SUPPORT SERVICES INCLUDING SHELTERS An issue raised in all Centre locations is the lack of access to support services for victims of SGBV, including psychosocial, health, legal and shelter options. There are currently no effectively functioning SGBV shelters in Myanmar, and psychosocial support is extremely limited and uneven across the country. Recent initiatives led by the Social Welfare Department to establish one stop service centres offering referrals to medical services and legal assistance for women experiencing domestic violence in Yangon and Mandalay are a welcome development. 20 International non-governmental organizations (INGOs), including Marie Stopes International and Population Services International, currently also offer psychosocial and medical support services in some locations, while some legal aid organizations, including Legal Clinic Myanmar, provides legal assistance to SGBV victims. However, there is a clear need to substantially improve access to support services. Importantly, community and civil society interest in SGBV-reduction activities is matched by the government. For example, during meetings with the Director General of IDLO in October 2016, U Zaw Myint Maung, the Chief Minister of Mandalay, also requested that the Centres address SGBV issues through future programming, and specifically identified the need for a shelter for women and children experiencing violence. 20 Htike Nandar Win, Government to open one-stop service centres for domestic violence victims, MYANMAR TIMES, 12 Dec

10 At a community discussion hosted by the Mandalay Centre in January 2017, participants including CSO and NGO representatives and government representatives from the judiciary, the Advocate General s Office, the Department of Social welfare, the regional chief of police, and the regional Parliament discussed possible responses to SGBV, as a follow up to a community forum on human trafficking held in December. The group identified several key challenges. They noted the lack of coordination both among INGOs, NGOs and CSOs working on the issue, and between those groups and government. At a community forum at Taunggyi Centre in August 2016, more than 80 participants, including civil society groups and high level government officials, similarly highlighted the importance of measures for strengthened coordination and cooperation among civil society organizations, police, the Social Welfare Department, and the Mother and Child Association and Women s Affairs Association. Although a government coordination body working on human trafficking (which does not address other types of gender-based violence) headed by the General Administrative Department at the central and regional levels already exists, in Mandalay participants recommended increased involvement by CSOs and NGOs working in the issue to increase its effectiveness. They also emphasized the need for the establishment of a crisis centre or temporary shelter for victims. The lack of any such service currently makes it difficult to access a safe place in an emergency situation and puts more women and girls at risk. They recommended the following measures: development of an information channel and coordination mechanism among the civil society groups and relevant governmental organizations working on SGBV and with trafficking victims; and the introduction of temporary shelters for victims of domestic violence and trafficking. FORMAL JUSTICE SECTOR INTERACTIONS CSOs and lawyers cited a host of serious problems that individuals reporting SGBV encounter at all stages of the formal justice system. Lawyers in all Centre locations said that when women approach police stations to report SGBV, police officers often refuse to file a First Instance Report (police report) or open an investigation on the grounds that SGBV, and domestic violence in particular, is a family matter and not a crime. According to CSOs interviewed for this brief, in cases where the individual reporting SGBV is gay or transsexual or suspected of being a sex worker, the police interaction often involves harassment or demands for sex. Only 4 percent of the Myanmar Police Force is female. 21 While government officials have reportedly indicated that efforts are underway to recruit more female officers, these efforts should continue until the police force is more representative of the community and that women feel comfortable reporting SGBV to the police. Lawyers in Mandalay and Yangon indicated that when the police do file a report and commence an investigation, victims are typically expected to submit to an evaluation of their genitals, sometimes by the police officer in the station. Lawyers also reported that, once a First Instance Report is filed, a woman is required to undergo an examination by a forensic doctor designated by the police force. In Mandalay, lawyers and CSO representatives complained that abusers frequently bribed forensic doctors to report no evidence of physical abuse, regardless of the victim s actual injuries. Additionally, the examining doctor is not the same doctor that testifies during trial, meaning the testifying doctor is only able to report what is listed on forensic findings contained in (often tampered) records, further reducing the ability of women to present evidence of physical abuse. At trial, women encounter other obstacles to justice, including a lack of privacy protections and crossexaminations that place the burden on the woman to prove that she did not instigate the abuse or invite it based on imputed violations of cultural norms. CSO leaders and lawyers report that a major impediment to SGBV cases is that no provisions protect the identity of the victim during the investigation process or trial. Finally, few women receive outcomes that justify the taxing experience of trial criminal sentences, when they are applied, are often quite low and victims report dissatisfaction with sentences frequently perceived as being unduly lenient. 21 UN, Asia Development Bank, Ministry of Social Welfare, Gender Equality and Women s Rights in Myanmar, A Situational Analysis,

11 CSOs and lawyers interviewed for this brief urged the Rule of Law Centres to host workshops, forums and discussions with government counterparts on best practices for handling SGBV cases, as well as discussions with the judiciary about sentencing guidelines and meaningful restitution for victims. They also urged the Centres to facilitate discussions around community advocacy. VULNERABLE GROUPS Sex workers Sex work is illegal in Myanmar under the 1949 Suppression of Prostitution Act. 22 Although the penal code indicates that punishment is to be directed at customers and organizers rather than sex workers, CSOs and lawyers report that sex workers are frequently the targets of arrest and police violence, with transgender sex workers facing the brunt of police attention. Despite an ordinance from 2000 prohibiting the use of condoms as evidence of sex work, CSOs interviewed for this report indicated the practice remains common. 23 In interviews with sex workers rights CSOs in Yangon and Mandalay, advocates spoke of the danger sex workers encounter when trying to report SGBV both through informal community mechanisms and to the police. One interviewee in Yangon recounted the case of a sex worker who, when she approached the police station to register a rape case, was raped and beaten by several police officers. Afterwards, the police declined to open a case for her and sent her home. Other members of sex worker CSOs report needing to pay the police to avoid harassment, and that police officers often force sex workers to have sex, sometimes in exchange for an agreement not to arrest them. At a UNDP-led roundtable discussion on SGBV in Aung Ban, Shan State, following on the Taunggyi Rule of Law Centres outreach programming on SGBV in this location, CSO representatives noted that sex workers are routinely arrested and are often physically assaulted and beaten when they are arrested. In particular, LGBT and transgender individuals report allegedly high levels of abuse and mistreatment by police officials. CSO leaders also indicated that though condoms are legal, and the Ministry of Home Affairs issued an administrative order in 2000 directing that condoms should not be used as evidence of sex work, in practice possession of condoms is frequently used as evidence of suspected sex work. In Aung Ban, CSO representatives indicated that sex workers are often arrested under the Monogamy Law (2014), accused of extra-marital affairs. CSO leaders and lawyers said that improved awareness of the fundamental rights of sex workers and other vulnerable groups, such as transgender and gay individuals, is critical. Internally displaced persons The Myitkyina Centre hosted a forum in collaboration with the Metta Foundation on SGBV in June 2016 that was attended by internally displaced person camp administrators from a variety of locations in southern Kachin state, including Bhamo, Mansi, Sarmaw, Panwa, Hpa Kant and Chipwe. Camp administrators reported that the most frequent types of SGBV reported in the camps were domestic violence perpetrated by intimate partners, forced and early marriage, denial of available resources, sexual violence and rape, and the threat of each of these. Camp administrators felt that contributing factors to SGBV were the widespread abuse of alcohol and drugs, the lack of educational opportunities for women, and low community awareness of SGBV. Furthermore, under Kachin traditional law, it is extremely difficult for couples to seek divorce, which both serves as a risk factor for women in abusive relationships and reduces the options available to her to escape further abuse. According to camp leaders, women reporting to hospitals seeking treatment for injuries resulting from SGBV were often visited by religious leaders who prayed for the women. In most cases, there are no consequences for the abuser. Camp leaders reported that occasionally, men accused of domestic violence receive 22 Suppression of Prostitution Act of The law was amended in 1998 to broaden the definition of brothel to include any place habitually used for sex work, including massage and beauty parlors. 23 Order No (1/2000). 6

12 educational materials encouraging them not to engage in violence against their partners. Most individuals who experience SGBV seek the advice of informal community administrators, both as a result of community pressure and because of the poor reputation of the formal justice system. As in other Rule of Law Centre communities, forum participants in Myitkyina reported that women bringing SGBV cases to the police faced long delays, intrusive and embarrassing medical examinations, complicated transportation logistics, and many appointments without a guarantee that the abuser would receive punishment. Community mediators encourage women to reconcile with their abusers and strongly discourage divorce outside of evidence of male adultery, severe physical abuse, and abandonment of the woman spanning several years. Forum participants felt that, in addition to the provision of more services, such as psychosocial support and the introduction of women s shelters, communities generally are badly in need of awareness trainings on SGBV and that women and girls, particularly those living under strained circumstances in camps, need information about what constitutes SGBV, their rights under Myanmar law, and what options are available to them if they seek to engage the formal justice system. Children Child abuse is frequently raised in community discussions and workshops. Child sexual abuse in particular has been identified as a serious problem across Myanmar. Child rape incidents have been highlighted in recent media reports and indicate a rise in the number of reported rape cases involving children. 24 Currently, rape cases involving a minor are charged under section 376 of the Penal Code. Victim advocates report that convicted rapists receive short sentences, perceived to be lenient in light of the crime. 25 Reportedly, the Myanmar Police Force does not offer training to officers on child abuse or handling juvenile victims, nor do courts offer special services for children, including when the abuser is a member of the victim s family. In addition to the stigma and shame associated with publicly reporting a child abuse case, victims reportedly also see little efficacy in bringing cases to the formal justice system. In September 2016, a Community Forum on Child Sexual Abuse was held at the Yangon Center. More than 80 representatives from CSOs, NGOs, lawyers, and government officials representing the Yangon Parliament, Yangon Regional Law Office, Yangon Regional Supreme Court, Department of Social Welfare, Myanmar Police Force, Yangon Regional General Administration Department attended. Discussion focused on the need for greater understanding of the causes and scale of the problem. The need to raise awareness of the legal framework and services for victims was also highlighted. Lawyers and CSO representatives reported that even fewer resources exist for addressing the needs of juvenile victims than exist for adult SGBV victims. Centre participants also report that families and mothers in particular frequently feel intense shame and stigma for reporting child abuse, and are sometimes blamed by the community for failing to prevent the incident. Consequently, they often prefer to solve the problem within the family. Lawyers interviewed said that sensitization of the police force and the judiciary to the needs of child abuse victims, as well as the introduction of measures to protect the identities of child victims is critical. Additionally, families and community leaders, including informal justice sector actors, must receive awareness training about child abuse and be encouraged to approach the formal justice system rather than attempting to solve the problem at home. HUMAN TRAFFICKING Rule of Law Centre communities also reported human trafficking as a serious problem, often with a strong gendered dimension. Myanmar is a significant source country for trafficking in persons, with women, children and men trafficked into forced marriage, forced labor and sex work, primarily to China, Thailand and Malaysia. 26 In addition, internal trafficking occurs often with women trafficked into sex work and men 24 Pyae Thet Pyo, Deputy Minister notes worrisome rise in child rape cases, MYANMAR TIMES, 15 Dec UNICEF, Child Protection Overview, Myanmar. Note that the proposed amendments to the Child Law are expected to address the sexual abuse of minors specifically, adding mandatory minimum sentencing guidelines of between 10 and 20 years for individuals convicted of rape of a minor. 26 United States Department of State, 2016 Trafficking in Persons Report: Burma, online: See also UN-ACT, Myanmar: National Trafficking Trends, online: 7

13 into forced labor from rural to urban areas within the country. 27 In ethnic areas, including Shan and Kachin States, conflict-affected and internally displaced persons face additional risk of being trafficked into domestic servitude, sex work and forced marriages or recruitment by ethnic armed forces. 28 Although trafficking affects men, women and children, including in relation to forced labor, the majority of identified human trafficking cases to date involve the trafficking of women to China, typically for marriage arrangements. 29 Due to low awareness about the scope and range of trafficking, there is a tendency for police to view only certain kinds of trafficking as falling within the criminal offence predominantly involving women for sexual purposes. Six of Mandalay s seven townships are considered trafficking source hot spots by the Myanmar Police Anti-Trafficking Task Force (ATTFs). 30 While Myanmar has taken some steps towards combatting trafficking, including the introduction of the Anti Trafficking in Persons Law in 2005 and the establishment of the Anti-trafficking Unit with ATTFs at the local level, serious challenges remain. In the U.S. State Department s annual Trafficking in Persons Report for 2016, Myanmar was downgraded to the lowest level due to ongoing concerns with levels of trafficking and forced labor. 31 In response to community demand, each of the Rule of Law Centres have hosted anti-trafficking forums and discussions, which are frequently attended by members of the police force and local government. Participants and interviewees indicated that the ability of the Centres to foster relationships between government officials and the community is especially critical in human trafficking cases, given the sensitivity required in identifying cases and handling victims. In Yangon, the Rule of Law Centre hosted a forum on human trafficking in October of 2016, which was attended by members of the police force, CSO leaders and local lawyers. At the request of the police to have further opportunities to collaborate with CSOs and lawyers on trafficking issues, the Centre facilitated a follow up discussion, where both sides further discussed the challenges faced in combatting trafficking, and developed plans to collaborate on anti-trafficking activities including through linking victims with CSOprovided services such as counseling and interpretation. The participants have since formed a working group to continue to collaborate on anti-trafficking initiatives. At this event, a representative from the ATTF remarked that he found the opportunity connect with CSOs useful, and suggested that the Rule of Law Centre should play the role of coordinator between government and CSOs. Unlike other categories of SGBV that are construed as family affairs rather than crimes, lawyers and CSO representatives reported that communities do typically identify human trafficking as a crime, and tend to seek the involvement of the police rather than attempting to resolve the issue through informal justice channels. However, lawyers and CSO representatives reported that the challenge arises in convincing the police to take action. According to local CSOs, the police are more likely to intervene if the trafficking offense involves forced prostitution, but unlikely to investigate forced labor cases, which they perceive as labor disputes rather than possible trafficking cases. CSO leaders urged the Centres to incorporate information into discussions and workshops with government counterparts on the variety of forms that trafficking can take. DOMESTIC VIOLENCE Interviewees for this report felt that domestic violence is one of the most stigmatized categories of SGBV and likely the least reported, and when reported, most likely to be categorized a family affair by the police and dismissed. Research on domestic violence in Myanmar has likewise highlighted the role that shame and inaction by local authorities has in deterring women from reporting incidents UN-ACT, Myanmar: National Trafficking Trends, online: 28 United States Department of State, 2016 Trafficking in Persons Report: Burma, online: 29 UN-ACT, Myanmar: National Trafficking Trends, online: 30 Than Naing Soe, Mandalay a Hotspot for Human Trafficking, MYANMAR TIMES, 22 Sept United States Department of State, 2016 Trafficking in Persons Report: Burma, online: 32 See Gender Equality Network, Behind the Silence Violence Against Women and their Resilience Myanmar, 2015, and Action Aid Myanmar, Violence Against Women and Girls & Access to Justice in Myanmar: Gender Analysis Brief,

14 When speaking about domestic violence, many interviewees offered local sayings to illustrate the shame of reporting spousal abuse. For example, a customary Kachin idiom loosely translated means that women need to wash their faces following an incident of violence or rape, implying that her dignity is ruined and needs to be washed or cleaned. Under traditional customary practices, this is often done by reparations paid to the family. A Shan idiom meaning to clean one s home implies the same meaning. According to Legal Clinic Myanmar, the majority of SGBV cases filed with courts involve poor, rural families who feel they have no alternative, with middle class and wealthy urban families preferring to settle the matter privately to avoid public shame and stigma. Interviewees overwhelmingly urged the Rule of Law Centres to support awareness raising around domestic violence as a crime rather than a marital issue, both with community leaders and with the police and justice sector. Additionally, representatives from Legal Clinic Myanmar encouraged the Rule of Law Centres to target perceptions of privacy that may impact reporting by victims, particularly among middle and upper-class urban areas in Yangon and Mandalay. 9

15 RECOMMENDATIONS FOR ADDRESSING SEXUAL AND GENDER-BASED VIOLENCE IN RULE OF LAW CENTRE COMMUNITIES TO THE LOCAL AND NATIONAL GOVERNMENT Prioritize amending existing laws and passing new legislation to improve the legal protection options available to SGBV victims. The Myanmar government should prioritize repealing, amending and/or adopting legislation or legal provisions to adequately address SGBV in compliance with its international obligations. For example, the definition of rape under the penal code is restrictive and does not adequately protect victims of SGBV. Laws which are discriminatory should be repealed. The draft Prevention of Violence against Women Law, which would introduce protection orders available to victims, should be enacted as a priority. Train judicial officers, law officers, police, ward/village tract administrators, and informal justice sector actors, including community and religious leaders, to sensitively and effectively handle SGBV cases. Training of formal and informal justice actors on good practices in handling SGBV cases is needed, including sensitization regarding the criminal nature of SGBV cases, respect for victim confidentiality, handling of juvenile cases, and properly conducted forensic medical examinations, among others. There is a need to recruit more female police officers, and these efforts should continue until the police force is more representative of the community and that women feel comfortable reporting SGBV to the police. Coordinate with other government agencies, and civil society organizations and development partners in addressing harmful cultural practices around SGBV, including in Shan and Kachin states. More effective coordination among relevant government agencies could help support responses to SGBV. Where possible, include civil society representatives in existing coordination groups. Cooperate with civil society to establish coordination mechanisms to develop more effective and collaborative responses to SGBV. The Rule of Law Centres can support this process in Centre locations where there is interest. Particular attention should be paid to harmful cultural practices in Shan and Kachin, as respondents reported that women in these communities face especially strong barriers to accessing SGBV remedies and services. Seek to engage collaboratively with informal justice actors, including community and religious leaders to strengthen women s rights and victim-centered responses. Create broader, more accessible health, legal and psychosocial services, particularly access to shelters, and expand services offered under the Ministry of Social Welfare s one stop centre initiatives. The service centers planned for Mandalay and elsewhere are excellent starting points and should be expanded to many other locations around the country. Services should be broadened to include a shelter to house women and girls fleeing dangerous situations. Because many women, girls, LGBT individuals and sex workers are afraid to approach police stations, consider locating one stop centers in hospitals or other neutral spaces. In addition to one stop centres, there is also a need to have more effective referral system that is responsive and sensitive to the needs of survivors in particular the need to have more coordinated services and to avoid multiples steps and re-victimization. TO CIVIL SOCIETY ORGANIZATIONS Engage in partnerships with INGOS to improve community services, including the provision of shelters. CSOs working in Rule of Law Centre communities can benefit greatly from the technical expertise of international organizations on SGBV service provision and should seek partnerships that enhance the 10

16 technical skills of CSOs in all relevant areas of SGBV service provision, including the design and implementation of shelters and similar facilities. Target community programming to address cultural norms and sensitization around SGBV. CSOs are often knowledge leaders in their communities, with established relationships with important community leaders, including traditional and religious leaders. CSOs should use skills acquired at Rule of Law Centre forums and through INGO partnerships to address harmful cultural practices that perpetuate SGBV, including those that prevent women and children from accessing services for SGBV. Advocate to national, regional/state and local governments for the introduction of legislation to address SGBV, and the amendment of inadequate existing legislation. In collaboration with other CSOs working on similar issues, and with support from Rule of Law Centres on identifying key advocacy areas and planning advocacy strategies, CSOs should advocate for the amendment of harmful legislation and the introduction of legislation that provides substantive protection against SGBVrelated crimes. There are already well-established networks and the Violence Against Women Technical Working Group leading work in this area. TO DEVELOPMENT PARTNERS Support CSOs through grants, capacity building partnerships and provision of technical advice on the development and strengthening of critical SGBV services, especially shelters. CSOs interviewed for this report indicated that many are interested in addressing the need for critical SGBV services, but none are sure where to start. International development partners should identify CSOs interested in receiving support, whether through grants or the provision of technical advice, in the design and implementation of critical SGBV services, such as health, psychosocial support, legal aid, and shelter provision. Support local and national government actors in collecting baseline data on prevalence of SGBV to inform service provision in high need areas. Currently there are very few statistics about the scope of SGBV in communities in Myanmar. Baseline data is critical to identifying the communities where services are most urgently needed. International donors should support local and government actors in collecting data, especially provision of technical advice and tools, and help CSOs identify advocacy efforts based on the results of data collection. Advocate to national, state/regional and local government actors for law and justice reform. In addition to building the capacity of local CSOs to offer SGBV services, international donors should also support CSOs in advocating to local and national government actors on the reform of laws addressing SGBV. Support government partners, particularly the Social Welfare Department, in implementation of the NSPAW commitments related to violence against women. Support capacity building of justice actors, including judicial officers, law officers, and police, and informal actors, including community and religious leaders. Capacity development initiatives to address gender inequality and enable formal and informal justice actors to enable them to sensitively and effectively prevent and respond to SGBV cases are needed. TO THE RULE OF LAW CENTRES Raise awareness of SGBV and related rule of law principles and legal frameworks and remedies in Rule of Law Centre Communities. The Rule of Law Centres should continue to incorporate SGBV programming into more forums, discussions, awareness initiatives and trainings to give Centre participants the knowledge and tools to combat SGBV. 11

17 Provide a forum for discussion and coordination between the government, informal justice actors, CSOs and local lawyers to address SGBV related issues and take action on proposed solutions. The Rule of Law Centres should use their convening power to bring together key stakeholders and to foster the creation of networks and relationships to address SGBV related issues. To address SGBV, this should include trainings and discussions led by international and national experts for CSOs and government actors around SGBV sensitization and service provision, as well as strategic planning workshops to help organizations identify implementation strategies for proposed solutions. Support the capacity development of critical stakeholders, including: National, State/Regional and Local government, informal justice actors including community and religious leaders, CSOs and local lawyers. Through training and outreach programming, the Rule of Law Centres should continue to build the capacity of government actors, informal justice actors including community and religious leaders, CSOs and local lawyers to address SGBV. 12

18 ANNEX 1. DEVELOPMENT OF A SHELTER SYSTEM As noted above, the need for shelters to provide emergency protection to women and girls experiencing violence was raised as a high priority need in all Centre locations, with particular interest in taking concrete next steps to move this forward expressed among civil society and government participants in Mandalay. While Rule of Law Centre participants indicated that their communities would welcome badly needed shelter services, none knew where to start. Because of the unique role that the Rule of Law Centres play in facilitating discussions and relationships between community leaders and the government, future programming might focus on helping community members and local government officials move this initiative forward, in tandem with international experts and existing government gender specialists. The following is intended as a basic roadmap for the Rule of Law Centres and their partners on shelter coordination efforts. 1. CONSULTATION Establish a coordination mechanism (such as a committee or working group) to lead the shelter development initiative. The Rule of Law Centres are well placed to support this effort, and can provide secretarial, facilitation and technical support, but the mechanism should be led by local civil society groups in collaboration with local government officials. Where possible, liaise and coordinate with any Union level working groups, including the proposed Technical Working Group for NSPAW implementation led by the Department of Social Welfare (DSW). 2. COORDINATION Identify relevant outside experts. Interviewees were adamant that shelter services are needed, but so is external support to make them a reality. Rule of Law Centre programming should include international organizations and donors interested in supporting the creation of a shelter system, as well as discussions on how local organizations and government agencies can partner with international donors and service providers. The Rule of Law Centres should focus on fostering relationships between local CSOs and lawyers and international experts. Identify interested government partners. Relevant government partners would likely include the police, the DSW and the General Administration Department. The DSW in particular has taken the lead in developing one stop service centres, and is well placed to take forward support to shelter services. Identify interested community groups. Interviewees unanimously supported the provision of shelter services in their communities, but most Rule of Law Centre participant groups are not well situated to undertake the creation of a shelter, primarily because they are either legal services providers or CSOs that do not work directly on SGBV. However, all interviewees indicated that there are members of the community who work with local organizations that would be interested in being trained to provide shelter services. Rule of Law Centre programming should include discussions aimed at helping communities identify potential leaders for a shelter project. 3. EXPERT ADVICE Once a network is in place, provide comprehensive training on shelter design and management best practices. Communities were anxious to know what size shelters should be, what best practices are surrounding women accompanied by children, how shelters should manage security, and what minimum social support services should be included on a limited budget, as well as how shelter staff should interface with women s communities of origin and community elders. Building a shelter network in Myanmar will require providing extensive support on best practices. Therefore, Rule of Law Centre programming should include discussions and workshops led by international and national experts on shelter best practices to help implementing partners design appropriate facilities and services. Conduct a feasibility study to determine the feasibility of establishing a shelter system. There are complex challenges that can arise related to the establishment of shelters, including government control, abuse, 13

19 stigmatization and safety concerns. A feasibility study would ensure these risks and challenges have been considered and an objective assessment concluded. Development of shelter guidelines. The working group, with expert advice, could develop shelter guidelines that provides guidance on aspects of shelter set up. This helps standardized shelter development across different places but also provide good practices or protocols for shelter work. 4. SERVICE REFERRAL Create referral networks to raise awareness of new services among justice system actors and local communities. Support services are only as good as the referral networks that lead women to them. The Rule of Law Centres should incorporate forums on forming referral networks with the police, judiciary, community leaders and CSOs. Additionally, Rule of Law Centres should include referrals to available psychosocial and medical services, including shelters should they become available, in their existing legal aid referral programs. 14

20