26 GENDER PERSPECTIVES ON TORTURE: Law and Practice What is transformative will depend on the situation of vulnerability and discrimination requir­ ing transformation. In practice, the measures awarded draw upon the types of reparation measures that have traditionally been associated with satisfaction and guarantees of non-repetition— described more fully later in this chapter, such as strengthening laws, providing services, improv­ ing structures for accountability, and memorialisation of the victims. What is important is that the measures identified align with victims’ needs and choices, and do not inadvertently under­ mine victims’ safety, privacy and dignity. Consulting with and involving victims in devising appropriate forms of reparations and in determining the modalities for their implementation is therefore crucial. 2. Compensation: The need to take full account of the harms that result from gender-based violence Compensation is an important form of reparation for gender-based violence, and must be prompt, fair, adequate, as well as sufficient to compensate for any economically assessable dam­ age resulting from the crime, whether pecuniary or non-pecuniary.40 It is important for courts to appreciate the severity of the harms caused by gender-based violence, which, particularly for psy­ chological harm, can be under-valued and may result in low awards. In most cases, financial com­ pensation will not alone be sufficient. At the domestic level, claims for reparations against both private and State actors can in theory be pursued through civil claims for damages, although the high costs of such proceedings tend to make them inaccessible to the majority of victims. In predominantly civil law jurisdictions, claims for damages tend to be joined to criminal complaints. This can present certain advantages because the prosecution will be responsible for taking the case to court and the victim will only have to demonstrate the harm suffered in connection to the crime. However, a negative aspect is that usu­ ally the sole form of reparation on offer is financial compensation. Furthermore, compensation is only available if the accused person is convicted. Also, the enforcement of compensation awards can be complex and the barriers to enforcement may be so great that the victim does not obtain the actual judgment. In the case of Gerasimov v Kazakhstan, the U.N. Committee gainst Torture determined that, “not­ withstanding the evidentiary benefits to victims afforded by a criminal investigation, a civil pro­ ceeding and the victim’s claim for reparation should not be dependent on the conclusion of a criminal proceeding. [The Committee] considers that compensation should not be delayed until criminal liability has been established. A civil proceeding should be available that is independent of the criminal proceeding, and necessary legislation and institutions for such civil procedures should be in place. If criminal proceedings are required by domestic legislation to take place before civil compensation can be sought, then the absence or undue delay of those criminal proceedings constitute a failure on behalf of the State party to fulfil its obligations under the Convention.”41 Because of the challenges involved in pursuing domestic civil claims, and the broader limita­ tions of the criminal justice system, victims may not pursue cases due to a fear of being re-trauma­ tised by the process of serving as a witness, because they do not wish to be identified as a victim, or because they have no faith in such processes. After all, many criminal prosecutions of sexual and other gender-based violence do not result in convictions. This can result in victims or their families 40 41 CAT, General Comment 3, supra note 14, at ¶ 10. Gerasimov v. Kazakhstan, U.N. Doc. CAT/C/48/D/433/2010, at ¶ 12.8 (July 10, 2012).