Carla Ferstman
19
Reparations for Sexual and Other
Gender-Based Violence
carla FerStman*
Abstract
This chapter considers the legal framework related to reparations for sexual and other gender-based
violence. It describes the way in which the legal framework has evolved over time and the challenges
for victims of sexual and other gender-based violence to access reparation in practice.
I. Introduction
The Special Rapporteur’s report on gender perspectives of torture assesses the applicability of
the prohibition of torture and other cruel, inhuman or degrading treatment or punishment in inter
national law to the unique experiences of women, girls, and lesbian, gay, bisexual, transgender,
and intersex persons.1 He determines that “The torture protection framework must be interpreted
against the background of the human rights norms that have developed to combat discrimination
and violence against women.”2 A part of that protection framework is the obligation to afford rep
arations for torture. Taking that as a starting point, this article analyses the normative content of
the right to reparation for torture from a gendered perspective. It considers acts of gender-based
violence that may amount to torture under applicable international law standards, and assesses
the challenges for victims of such crimes to access meaningful and appropriate reparations for the
harm suffered.
Not all acts of gender-based violence will amount to torture, though this does not make those
that do not fit within the definition less problematic or important to address. Moreover, fitting
within the definition of torture is not the only entry-point for victims of gender-based violence
to obtain reparation. The right to reparation is increasingly recognised as applicable to all human
rights violations.
Nonetheless, torture is one of the lenses through which gender-based violence can be under
stood. It is an important lens because of the status and weight given to torture under international
law. Nevertheless, considering gender-based violence through this torture lens is not a perfect fit.
This is because of the way in which torture has been historically understood —as an offence that is
carried out by or at the instigation of, or with the consent or acquiescence of, public officials, usu
ally in the context of detention, to exert force, subvert the will of the victim, or to obtain a confes
sion. Gender-based violence is broader in scope than this definition. Also, until relatively recently,
Carla Ferstman is the Director of REDRESS.
Juan Mendez, Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment, U.N. Doc. A/HRC/31/57 (Jan. 5, 2016).
2
Id. at ¶ 9.
*
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