Gender-based violence, and in particular violence against women, is one of the most pronounced expressions of the unequal power relations between women and men. The main cause of the violence is the perpetrator him or herself: it is very important to keep in mind that a person who has been affected by gender based violence is never responsible for the perpetrator’s actions.
There is no single factor that can explain gender-based violence in our societies, but rather a myriad of factors contribute to it, and the interplay of these factors lies at the root of the problem. Four types of factors can be identified: cultural, legal, economic and political.

Cultural factors 

Patriarchal and sexist views legitimize violence to ensure the dominance and superiority of men. Other cultural factors include gender stereotypes and prejudice, normative expectations of femininity and masculinity, the socialization of gender, an understanding of the family sphere as private and under male authority, and a general acceptance of violence as part of the public sphere (e.g. street sexual harassment of women), and/or as an acceptable means to solve conflict and assert oneself.

Religious and historical traditions have sanctioned the physical punishment of women under the notion of entitlement and ownership of women. The concept of ownership, in turn, legitimizes control over women’s sexuality, which, according to many legal codes, has been deemed essential to ensure patrilineal inheritance. Sexuality is also tied to the concept of so-called “family honor” in many societies.

Traditional norms in these societies allow the killing of women suspected of defiling the “honor” of the family by indulging in forbidden sex or marrying and divorcing without the consent of the family. Norms around sexuality also help to account for the high numbers of homeless LGBT+ young people, and for the prevalence of hate crimes against them, on the grounds that they are considered a “threat” to societal norms. The same norms around sexuality can help to account for the mass rape of women. 

Legal factors 

Being a victim of gender-based violence is perceived in many societies as shameful and weak, with many women still being considered guilty of attracting violence against themselves through their behavior. This partly accounts for enduring low levels of reporting and investigation.
Until recently, the law in some countries still differentiated between the public and private spaces, which left women particularly vulnerable to domestic violence. 

The Istanbul Convention ensures the right for everyone, particularly women, to live free from violence in both the public and the private spheres.
While most forms of gender-based violence are criminalized in most European countries, the practices of law enforcement in many cases favor the perpetrators, which helps to account for low levels of trust in public authorities and for the fact that most of these crimes go unreported.

The decriminalization of homosexuality is still very recent in many societies. While progress has been achieved in many states by adopting equal marriage, this has sometimes led to a backlash, for example by strengthening opinions holding the traditional family to be the union between a man and a woman, or where countries have adopted laws that forbid “homosexual propaganda”. 

Economic factors 

The lack of economic resources generally makes women, but also LGBT+ people particularly vulnerable to violence. It creates patterns of violence and poverty that become self-perpetuating, making it extremely difficult for the victims to extricate themselves. When unemployment and poverty affect men, this can also cause them to assert their masculinity through violent means.  

Political factors 

The under-representation of women and LGBT+ people in power and politics means that they have fewer opportunities to shape the discussion and to affect changes in policy, or to adopt measures to combat gender-based violence and support equality. The topic of gender-based violence is in some cases deemed not to be important, with domestic violence also being given insufficient resources and attention. Women’s and LGBT+ movements have raised questions and increased public awareness around traditional gender norms, highlighting aspects of inequality. For some, this threat to the status quo has been used as a justification for violence.

Gender equality is an essential aim for any society based on human rights, democracy and the rule of law. Gender equality concerns almost every aspect of social interaction and public policy, including youth policy and youth work. Every individual is directly and personally affected by issues relating to gender equality and gender-based violence.
However, discussing gender and gender-based violence can be difficult, as these discussions include concepts and terms which are not always clear, which may change over time, and which cut across different disciplines such as psychology, sociology, culture, medicine, law, education, activism or politics. The baseline is that gender-based violence is a human rights violation and affects not only people who are directly targeted by it, but also the whole of society.

 The Spotlight Initiative of the United Nations and the European Union provides the following data :

•  35% of girls and women in the world have experienced physical or sexual abuse;
• 70% of all human-trafficking victims worldwide are girls or women;
  
• more than 700 million women alive today were married before the age of 18;
  
• 200 million women and girls alive today have been victims of female genital mutilation. 
  

Successful programs in the area of sexual and gender-based violence prevention and response are those that have been designed in consultation with refugee communities, particularly women and girls, and are based on multi-sectoral and inter-agency collaboration.

Some of the steps to be taken in developing a framework for action need to be taken simultaneously, others after prevention and monitoring strategies have been implemented. These steps are as follows:

1. Identify and Involve Relevant Stakeholders – refugee community leaders, both male and female, influential individuals and groups in the community, local community representatives, health services, community service agencies, national and international NGOs, jurists in the field, UN agencies. They should be brought together in a working meeting, including training and lobbying on human rights issues, sexual and gender-based violence, protection and a presentation of all available services. The coordinating agency/institution and action plan for information gathering, situation analysis and future meetings to plan prevention and response strategies should also be established.
2. Understanding all the facets of this phenomenon and agreeing on the purpose of the joint actions of the actors involved – knowledge of the terminology and the phenomenon allows for rigorous collection of information as well as comparative analysis at international level, thus making use of important data for the planning and development of programs that may not have been possible until now.
3. Situational analysis – this involves defining problems, needs, resources, and specific goals and objectives, activities and expected results. Depending on available resources and experience, methods of gathering information may include: individual interviews, site visits, coordination meetings, focus groups, observations, reviewing and supplementing existing information.
4. Agreement on a set of guiding principles at programs and individual level.
5. Definition of roles and responsibilities for all involved.
6. Establish monitoring and evaluation arrangements – ongoing monitoring ensures that prevention and response actions are being carried out appropriately, while regular evaluations highlight the impact of prevention and response strategies. This action plan should also include financial and human resources for monitoring and evaluation.
7. Establish reporting and coordination mechanisms by establishing and continuously reviewing reporting methods among and between the different actors involved.

The best interests of the child must be paramount.

Children who are victims/survivors of sexual and gender-based violence must have immediate access to medical care and psychological support, and where appropriate, legal assistance. All actions must circumscribe the principle of the best interests of the child.

In determining the best interests of the child, the expression of the child’s own wishes and feelings must be taken into account.

Refugee children can be victims of many forms of violence and gender, but they are especially exposed to the following specific forms:

Painful/harmful traditional practices

There are positive traditional practices that contribute to the preservation of a community’s cultural identity, and these should be encouraged. Others, however, practiced at a young age (female genital mutilation, premature marriages, forced marriages, taking advantage of male children, violence associated with dowry customs), have harmful effects on the child’s health and development. Practiced at an early age, when the child cannot oppose or defend themselves, these practices are vehemently condemned internationally, due to the considerable negative effects on the health of the victims.

Trafficking

Refugee children, especially separated or unaccompanied children, can become, by force or enticement, victims of trafficking, usually for the purposes of sexual exploitation. Defined as the recruitment, transportation, transfer, harvesting, deception of a child for the purpose of exploitation, child trafficking is condemned internationally even if the victim has given his consent (“Protocol to Prevent, Suppress and Condemn Trafficking in Human Beings, especially of Women and Children – Supplement to the United Nations Convention against Transfrontier Crime”, 2000). Even more severe are the dangers faced by these children at the moment of escape, of return, with the possibility of being trafficked or punished again, deprived of freedom, marginalized by the family, discriminated in the community.

The infantile position

Child prostitution is the use of children in remunerated activities of a sexual nature. Once engaged in such activities, these children are exposed to other forms of sexual and gender-based violence. Girls are vulnerable from this point of view, given their virginity, perceived as innocence and physical immaturity, something appreciated by the aggressors.

Sexual violence in the family

This kind of violence. Committed by a male relative, it is considered a family matter, private, in which outsiders have no right to get involved. Hence, a further abused and victimized child. Children can also be victims of this type of abuse when they have witnessed such violence in the family, witnessing violence that they cannot understand and that traumatizes them. The intervention focuses, in addition to the child himself, on the parent who did not abuse him and on the removal of the abuser during the investigation of the abuse.

Sexual exploitation, abuse and violence by people who come into contact with the child

These people can be teachers, chaperones/guardians, humanitarian agency workers, who come into contact with the child in isolated environments, outside the home. In this sense, the first step is to identify these sources of risk and monitor these activities as well as the personnel who come into contact with refugee children.

Special considerations regarding the prevention of sexual and gender-based violence against refugee children

In addition to the previously mentioned prevention strategies, child-centred situational analysis will need to identify areas of particular risk and existing resources. Community contribution to protecting refugee children is a resource that needs to be explored and developed in this regard.

1. The transformation of cultural norms

Strategies for achieving this objective include: information and education campaigns, aimed at all actors involved in assisting refugees, based on the provisions of the Convention on the Rights of the Child; Information campaigns addressed to refugees, based on already existing cultural norms that value; Sex education and HIV/AIDS prevention campaigns; preventing painful/harmful traditional practices.

2. Rebuilding family and community support

The main strategy is to ensure access to primary education for all refugee children, and where possible, to secondary and professional education, with the aim of preventing their exploitation. In this sense, it is very important for the refugee community that they are involved in educational activities, communicate and trust the teachers.

3. Creating the premises for improving the conditions of transparency and rigor

The strategy consists in assessing the level of knowledge, attitudes and professional behavior of all workers who come into contact with refugee children. Therefore, staff training and monitoring are essential elements of preventing sexual and gender-based violence against refugee children.

4. Creating effective services and facilities

The strategies, in this direction, aim at the following actions: The separate registration of each child, from the registration of each birth to the provision of identity documents; Ensuring access to services, including building special shelters for households where children are the sole breadwinners of the family, Searching for families of separated/accompanied refugee children, etc.

The best interest of the child must prevail. Children who are victims/survivors of sexual and gender-based violence must have immediate access to medical care and psychological support, and where appropriate, legal assistance.

All actions must be limited to the principle of the best interest of the child.

Refugee children face a different, increased risk of sexual and gender-based victimization, given their dependence on adults, their limited ability to protect themselves and make decisions, their limited power. Linked to their developmental level, they cannot fully understand the sexual connotations of certain behaviours, nor can they express informed consent. Gender, ethnicity, cultural, social and economic factors may constitute additional risk factors that may expose them to sexual and gender-based violence.

Sexual and gender-based violence against children has devastating effects on their development as well as on their physical and mental health.

Relevant to the protection of refugee children under the Rights of the Child are the following guiding principles:

• Right to life, survival and development;
• Non-discrimination;
• Best interests of the child;
• Participation (the right to have a say in decisions affecting the child from a certain age);

 Categories of refugee children who may easily become victims of sexual and gender-based violence:

1. Separated and/or unaccompanied children (these children are not “orphans” unless there is clear evidence of parental responsibility).

They are at risk of sexual exploitation, abuse, military recruitment, abduction, trafficking and detention as long as they are not accompanied by a protective adult. Although they may be accompanied by an adult/relative, they may face the same risks. If parents are deceased, these children are often the sole breadwinners in the family.

2. Children in detention 

Sexual abuse has been frequently reported among children held in detention or deprived of their liberty, often because they are believed to be HIV- or AIDS-free, or based on cultural beliefs about the value of virginity.

3.   Children conscripted into the military

The recruitment of refugee children takes different forms: while boys are used in armed confrontations (whether they enlist to support their families or are forcibly recruited or abducted), girls are used for sexual slavery or forced labour (through the same mechanisms).

4.  Adolescents

The assumption of adult roles and responsibilities by an adolescent is culturally conditioned in some cases and often a consequence of the refugee situation. Adolescent girls are particularly exposed to sexual and gender-based violence. Considered too young to suffer from sexually transmitted diseases, they are targets for perpetrators.

 5. Children with physical or mental disabilities

“Hidden” by their families because of their disabilities, these children are, in practice, “invisible”. Excluded, marginalized and often unable to avoid perpetrators, they are another category of children at high risk of becoming victims of sexual and gender-based violence.

 6. Working children

These are separated children who remain breadwinners for the rest of the family, children who work to support the family, are victims of exploitation and abuse of all kinds.

 7. Girl-mothers

Unable to meet their own needs and those of their children because of poverty, they are exposed to sexual exploitation. If they have become mothers as a result of rape, they also become victims of isolation, stigma and discrimination and therefore their access to services and facilities is limited.

 8.  Male victims/survivors of sexual and gender-based violence

This type of abuse is under-recognized, under-reported and under-investigated. Given some cultural restrictions, stereotypes and myths about homosexuality or strong feelings of shame, boys are much less likely to report abuse than girls.

 9. Child abusers

Like adults, refugee children can use their power in relation to other children. Forcing another child, more sexual relations is a form of sexual abuse. Often a victim of sexual abuse themselves, the child abuser must also be assisted. It is also necessary to protect juvenile offenders while they are serving sentences in prison, as they may be abused in detention. Their psycho-social support must be continued during their post-detention period in order to rehabilitate them.

Children who are victims/survivors of sexual and gender-based violence must have immediate access to medical care and psychological support, and where appropriate, legal assistance. All actions must be in the best interests of the child.

The European Commission has proposed EU-wide rules to combat violence against women and domestic violence in 2022. The proposed directive will criminalize rape defined on the basis of lack of consent, female genital mutilation and cyber violence, including: non-consensual sharing of intimate images; cyber stalking for the purpose of harassment; cyber harassment; cyber incitement to violence or hatred. The new rules also strengthen victims’ access to justice and encourage Member States to implement a one-stop-shop mechanism, which means that all support and protection services should be located in one place. Victims should be able to claim compensation during criminal proceedings. The proposal also calls for appropriate and specialized protection and support measures to be taken, for example through free helplines and rape crisis centers. It also provides for specific support for groups with specific needs or groups at risk, including women fleeing armed conflict.

The key elements  of the proposed new rules:

1. Criminalization of rape, female genital mutilation and cyber violence 

The Commission proposes that the following acts be criminalized as crimes in all EU member states: (i) rape defined on the basis of lack of consent; (ii) female genital mutilation; (iii) cyber stalking for the purpose of harassment; (iv) non-consensual sharing of intimate images; (v) cyber bullying and (vi) cyber incitement to hatred or violence.

The proposal complements the Digital Services Act by making it operational by defining illegal online content related to cyber violence. It will also enable swift legal proceedings to quickly remove relevant online content. 

2. Safe reporting and risk assessment procedures 

The proposal addresses the under-reporting of cases of violence against women, an issue still unresolved. It introduces new ways of reporting violence that are gender sensitive, safer, simpler and more accessible – including online – and are child-friendly. Confidentiality regimes will no longer be a barrier to reporting imminent risks of serious bodily harm by professionals such as health workers or psychiatrists. Authorities would also be required to carry out individual risk assessments when the victim first contacts them to assess the risk posed by the offender. On this basis,

3. Respecting the privacy of victims in legal proceedings

The commission proposes that evidence or questions about victims’ private lives, especially their sexual history, can only be used when strictly necessary. Victims would have the right to seek full compensation from perpetrators for damages, including the costs of medical care, support services, loss of income, as well as physical and psychological harm. They should also be able to obtain compensation during criminal proceedings.

4. Victim support through rape hotlines and emergency drop-in centers 

In order to respond to the very specific needs of victims of sexual violence, the Commission proposes that Member States provide specific services, including rape emergency reception centers. Victims facing an increased risk of violence, including women fleeing armed conflict, should receive specific support from Member States. The national helpline for victims of violence against women and domestic violence should be available 24/7, all year round and free of charge. When the victim is a child, the support provided by the authorities should be age-appropriate, taking into account the best interests of the child. Victims of cyber violence will also be entitled to adequate support, including advice on how to seek legal assistance and how to remove online content. In cases of sexual harassment at work, external counseling services should be made available to victims and employers.

Violence against women and domestic violence is widespread across the EU and is estimated to affect 1 in 3 women in the EU. One in two women has been a victim of sexual harassment. One in 20 women say they have been raped. Online violence is also on the rise, particularly targeting women in public life, such as those involved in journalism and politics. 1 in 2 young women have experienced gender-based cyber violence. Women also face violence in the workplace: around a third of women in the EU who have experienced sexual harassment have been victims of sexual harassment at work.

The United Nations High Commissioner for Refugees (UNHCR) defines sexual and gender-based violence as “the type of violence directed against a person for reasons having to do with a person’s gender or sex” (UNHCR, 2003, p. 10). This includes domestic violence, rape, sexual abuse and sexual harassment, bullying at school and in the workplace, human trafficking and forced prostitution. Women, men, boys and girls can be equally affected; statistically and in terms of the variety of forms of violence to which they are subjected, women and girls are the group most affected by sexual or gender-based violence.                      

In 1993, the United Nations General Assembly adopted the “Declaration on the Elimination of Violence against Women”, which defined the concept of “violence against women”.

According to the United Nations Declaration, “violence against women” means “any form of gender-based violence that results in actual or potential mental, sexual or psychological harm, including threats, coercion or arbitrary restrictions of freedom, whether occurring in public or in private”.   

The statement highlights groups of women who are more vulnerable to violence, namely minority women, refugee or migrant women, women living in rural or remote communities, poor women, women in institutions or in detention, women with disabilities, older women or women in situations of armed conflict.

Under the Istanbul Convention, states are called upon to take action to prevent violence against women by eradicating prejudices, customs, traditions and other practices which are based on the idea of women’s inferiority or on stereotyped roles for women and men respectively:

·       Raise awareness of violence against women.

·       Education on gender equality, non-stereotyped gender roles, mutual respect, non-violent conflict resolution in interpersonal relationships, gender-based violence against women and the right to personal integrity, adapted to the evolving capacity of students, in the formal curriculum and at all levels of education.

·       Training of professionals dealing with victims or perpetrators of all acts of violence against women.

·       Preventive intervention and treatment programs aimed at teaching perpetrators of domestic violence to adopt non-violent behavior in interpersonal relationships in order to prevent further violence and change violent behavior patterns.

·       Involvement of the private sector and the media in the development and implementation of policies and in the setting of guidelines and self-regulatory standards to prevent violence against women and increase respect for their dignity.

In Romania, the prevention of gender-based violence is mainly the responsibility of the following institutions: the General Inspectorate for Immigration, the General Inspectorate of the Romanian Police, the general directorates for social assistance and child protection, the public social assistance services, the probation services, the National Agency against Trafficking in Human Beings, the Ministry of Labor and Social Justice, the Ministry of the Interior, the Ministry of National Education and the Ministry of Health at central level also have direct responsibilities for the prevention of gender-based violence.

The General Inspectorate for Immigration is obliged to implement information activities aimed at preventing gender-based violence. According to the Regulation on the internal order of the regional centers for procedures and accommodation of asylum seekers of 25.08.2016 published in the Official Gazette of Romania on 02.09.2016, article 60, the employees of the centers inform the persons accommodated in the centers about what sexual or gender-based violence is, as well as about the consequences of occurrence of such acts. The regulation also makes it compulsory to inform asylum seekers accommodated in the Regional Centers for Procedures and Accommodation (CRCPSA) of the prohibition to commit acts of violence against other foreigners accommodated there, as well as against any other persons.   

Another institution is the General Directorate for Social Assistance and Child Protection (DGASPC) which has the following responsibilities in the field of preventing and combating domestic violence, according to “Decision No. 797/2017 of 8 November 2017 approving the framework regulations for the organization and functioning of public social assistance services and the indicative staff structure”:

·       provides the necessary measures for the implementation of activities to prevent and combat domestic violence and for the provision of services for victims of domestic violence and domestic abusers;

·       monitors the measures necessary for the implementation of activities to prevent and combat domestic violence and for the provision of services for victims of domestic violence and domestic abusers;

·       develops partnerships and collaborates with non-governmental organizations and other representatives of civil society in order to provide and diversify services to prevent and combat domestic violence;

·       to provide a basis for and propose to the county council and the local council of the Bucharest municipal district respectively the establishment, financing and co-financing of public institutions providing services aimed at preventing and combating domestic violence;

·       support and develop an information and counselling system accessible to victims of domestic violence in order to exercise all the rights provided for by the laws in force;

·       monitors cases of domestic violence in the administrative-territorial unit in which it operates;

·       identifies situations of risk for the parties involved in domestic violence situations and refers the parties to specialized services/mediation;

·       it compiles at county level, respectively at the level of the districts of Bucharest, the database on cases of domestic violence and reports these data quarterly to the National Agency for Equal Opportunities between Women and Men.

For some types of gender-based violence the roles in terms of identification, assistance and protection are very clearly defined. In others, however, identification depends on the level of preparedness and proactivity of institutions and professionals who understand the impact of gender-based violence on individuals and respect for their rights.          

According to Romanian legislation, the identification of migrant victims of violence in regional accommodation centers and procedures for asylum seekers is mainly the responsibility of the General Inspectorate for Immigration, the General Inspectorate of the Romanian Police, the National Agency against Trafficking in Human Beings, the National Agency for Equal Opportunities for Women and Men, and health institutions, general directorates for social assistance and child protection, local public authorities through public social assistance services and community medical assistants, schools, social assistants from other public and private structures, regional integration centers, any natural or legal person working/interacting with children or employees of public or private institutions, adult or minor victims themselves.

Asylum seekers in Romania face a number of difficulties, especially outside the capital, where the problems are even worse than in Bucharest.

Many asylum seekers who speak rare languages have informed EMF that there are no interpreters for them outside Bucharest. This affects their access to social, legal and medical assistance.

Asylum procedures are very complex legal processes that cannot be followed without expert assistance. The free legal aid provided by the Bar and NGOs through UNHCR funding is not sufficient to cover the basic needs of asylum seekers in Romania. In addition, specialized lawyers are not available in other locations outside Bucharest.

In assessing the credibility of an asylum claim, decision-makers do not always take into account the latest developments in the asylum seeker’s country of origin, which can lead to incorrect decisions.

Women asylum seekers feel particularly exposed during the asylum procedure. There is an acute shortage of female interpreters for rare languages, and government officials are not well trained to conduct gender-sensitive interviews nor to identify gender persecution.

People granted protection in Romania face ignorance. When refugees approach government assistance offices, they are often confronted with officials who rarely work with refugees and therefore do not know what type of assistance they qualify for.

Refugees face a similar situation when looking for work, especially outside the capital. Employers are reluctant to hire refugees because they do not understand their status or what their skills and qualifications are.

In recent years, the political debate in Romania has argued that immigration takes jobs away from local people, lowers wages and puts pressure on public services, and has focused on how aid benefits received by asylum seekers are higher than the incomes of some local workers. In addition, views on the cultural and social effects of immigration are becoming increasingly negative because of the perceived differences that people of other religions bring. Overall, these changing public attitudes explain the rise in nationalist sentiments among the population.

Gender-based discrimination is often enforced through law as well as through social practices. A woman’s claim to refugee status cannot be based solely on the fact that she is subject to a national policy or law to which she objects.

The claimant will need to establish that:

1. the policy or law is inherently persecutory; or

2. the policy or law is used as a means of persecution for one of the Convention reasons; or

3. the policy or law, although having legitimate goals, is administered through persecutory means; or

4. the penalty for non-compliance with the policy or law is disproportionately severe.

The role of women in the biological and social reproduction of group identity places them in a position of particular vulnerability during war, civil war, and civil unrest. This vulnerability and the political significance of gender during periods of war and civil unrest must be specifically recognized. Women may be direct participants as fighters or they may perform supportive roles such as intelligence gathering, providing food, and nursing the wounded. This may place them at risk of persecution for a Convention reason. Many women may be targeted for persecution because of their race, nationality, clan membership, or association. In addition, women may be targeted because, as women, they have a particular symbolic status.

Women are particularly vulnerable to persecution by sexual violence as a weapon of war. As Crawley has noted:

[W]omen are specifically targeted for violence because of the symbolism of gender roles. The violation of women’s bodies acts as a symbol of the violation of the country (or equally a given political, ethnic or national group) . . . During war, women’s bodies become highly symbolic and the physical territory for a broader political struggle in which sexual violence including rape is used as a military strategy to humiliate and demoralize an opponent; women’s bodies become the battleground for ‘pay backs’, they symbolize the dominance of one group over another . . . It is important to recognize that sexual violence and rape may be an actual weapon or a strategy of war itself, rather than just an expression or consequence. In the context of armed conflict or civil war, the rape of women is also about gaining control over other men and the group (national, ethnic, political) of which they are a part.

Refugee law was formulated to serve as a back-up to the protection one expects from the State of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable. Where the risk of persecution stems from actions of a State agent or non-State agent that can and will be effectively suppressed by the national government, there is no need for this surrogate international protection. As a result many countries take into account whether the claimant can avail him or herself of a safe place in the country of origin.

This is sometimes called the internal protection, internal relocation, or internal flight alternative. The protection analysis requires an objective and forward-looking assessment of the situation in the part or parts of the country proposed as alternative or safe locations. Before refugee status can be denied on the grounds that the refugee claimant has an internal protection alternative available allowing him or her to relocate, it must be possible to say that he or she can genuinely access domestic protection which is meaningful. Four minimum conditions must be satisfied. First, the proposed site of internal protection must be safely and practicably accessible. Secondly, the proposed site of internal protection must eliminate the well-founded fear of persecution, that is, the place in question must be one in which the refugee claimant is not at risk of persecution for a Convention reason. Thirdly, in the proposed site of internal protection the individual must not be exposed to a risk of other forms of Convention or non-Convention-related serious harm, even if not rising to the level of persecution. Fourthly, meaningful domestic protection implies not just the absence of risk of harm, it requires also the provision of basic norms of civil, political, and socio-economic rights.

The first condition means that a woman cannot be required to put her or her children’s personal safety at risk. It also means that, where it is a requirement of the society in the country of origin that she travel in the company of a male relative but no such relative is available, the proposed site is not practicably accessible. Where the woman is responsible for the care of children, the proposed site of internal protection must be safely and practicably accessible by the group. The second condition is largely self-explanatory. It is the third and fourth conditions which have particular application to refugee claims by women. In many societies women do not enjoy equal rights or equal access to rights. It may be that women cannot access accommodation and other fundamental necessities or cannot do so unless accompanied by a husband or a male relative. In many flight situations this may not be possible. Equally, women on their own, particularly if accompanied by children, may suffer discrimination in all aspects of life due to custom, religion, or socially constructed roles. These features can be exacerbated by the rupturing of the social fabric which often accompanies armed conflict, civil unrest, or persecution.

The ability of women to access for themselves and their families basic civil, political, and socio-economic rights is of the first importance. They must be able to provide the family with enough to eat, to maintain the household, to take care of the children and, in many cases, to support their spouse or partner. It must also be remembered that in some circumstances women face particular problems as their difficulties can stem not only from their religion, race, ethnicity, or other minority status, but also because of their sex or gender. The denial of refugee status on the basis that an internal protection alternative exists in the country of origin cannot be premised on the implicit assumption that a woman must tolerate the denial of her basic human rights.

Gender is a social relation that enters into and partially constitutes all other social relations and identities. Women’s experiences of persecution and the asylum determination process will also be shaped by differences in race, class, sexuality, age, marital status, sexual history and so on. Looking at gender, as opposed to sex, allows for an approach that can take into account specificity, diversity and heterogeneity.                                                                                                                                                                                                       Gender-related persecution refers to the experiences of women who are persecuted because they are women, i.e. because of their identity and status as women. Gender-specific persecution refers to forms of serious harm that are specific to women. However, the reasons for such persecution and the form it takes may overlap.                                                                                                                              Persecution through sexual violence must be strongly condemned, as it not only constitutes a serious violation of human rights and, when committed in the context of armed conflict, but is also a particularly serious affront to human dignity.

Persecution = serious harm + lack of state protection

Determining whether a person faces a risk of persecution requires identification of the serious harm they face in their country of origin and an assessment of the state’s ability and willingness to respond effectively to that risk. This can be expressed by the formula: persecution = serious harm + failure of state protection.                                                                                                                         Women often experience persecution differently from men. In particular, they may be persecuted through sexual violence or other gender-specific or gender-related persecution. Such violence should be interpreted broadly and can be defined as any act of gender-related violence that results or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.

Violence against women should be understood as, but not limited to:

•      physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, extramarital violence and violence related to exploitation;
•     physical, sexual and psychological violence occurring in the general community, including rape, sexual abuse, sexual harassment and intimidation in the workplace, educational institutions and other settings, trafficking in women and forced prostitution;
•        physical, sexual and psychological violence committed or condoned by the state, wherever it occurs.

Discrimination amounting to persecution

In many societies there are, to a greater or lesser extent, differences in the treatment of different groups. People who are treated less favorably as a result of these differences are not necessarily victims of persecution. Discrimination in itself is not sufficient to establish a case for refugee status. A distinction must be made between human rights violations and persecution. Not every violation of an asylum seeker’s human rights constitutes persecution. Only in certain circumstances will discrimination amount to persecution. This will be the case if the discriminatory measures lead to consequences of a substantially prejudicial nature for the person concerned.          However, discrimination can affect individuals to varying degrees and the impact of discriminatory measures on women must be recognized and given due weight. Different acts of discrimination, through their cumulative effect, can deny human dignity in essential ways and should be properly recognized as persecution under the 1951 Convention.                                                                                            Significant for gender-related claims is also an analysis of forms of discrimination on the part of the State in not extending protection to individuals against certain types of harm. If the State, as a matter of policy or practice, does not grant certain rights or protection against serious abuses, then discrimination in extending protection that results in serious harm inflicted with impunity could constitute persecution.

Persecution because of one’s sexual orientation

Asylum claims based on different sexual orientation contain a gender element. An applicant’s sexuality or sexual practices may be relevant to an asylum claim if they have been subject to persecution (including discrimination) because of their sexuality or sexual practices. In many such cases, the applicant has refused to adhere to socially or culturally defined roles or behavioral expectations attributed to their sex. The most common claims involve people of homosexual, transgender or transvestite orientation who have faced extreme public hostility, violence, abuse or serious or cumulative discrimination.                                                                                                  Where homosexuality is illegal in a particular society, imposing severe criminal penalties for homosexual behavior could amount to persecution, as with the refusal of women to wear the veil in some societies. Even where homosexual practices are not criminalized, a complainant could still establish a valid claim if the state condones or tolerates discriminatory practices or harms committed against him or her, or if the state is unable to effectively protect the complainant from such harms.

Failure of State Protection

While persecution can be defined as a sustained or systemic violation of fundamental human rights that demonstrates a lack of protection by the state, the refugee definition does not require the state itself to be the agent of harm. Persecution by “private” or non-state agents of persecution also falls within the definition. The failure of the state to protect the individual from persecution constitutes a failure of local protection.

There are four situations in which a failure of state protection can be said to exist:

1.              persecution committed by the state in question;
2.              persecution accepted by the state concerned;
3.               persecution tolerated by the state concerned;
4.           persecution that is not tolerated or tolerated by the state concerned, but still present because the state either refuses or is unable to provide adequate protection.

State complicity in persecution is not a precondition for a valid asylum claim.