Women and girls are disproportionately affected by the measures adopted in response to the COVID-19 pandemic (see, among others, the concerns expressed by Women’s Lobby). A gender analysis is completely absent in the policies of many States, which tend to mainly focus on biomedical needs rather than addressing structural inequalities, and do not respond to what I will call the ‘gender emergency’ of the pandemic. In this comment, I will first address the ‘gender emergency’ in terms of increasing cases of gender-based violence against women as a consequence of the lockdown (focusing on violence is one of the possible perspectives to approach gender imbalances exacerbated by the reaction to the pandemic; school closures have, for example, affected women who still bear in many cases the responsibility for childcare). I will then support the application of the Council of Europe Istanbul Convention on preventing and combating violence against women and domestic violence (CoE Istanbul Convention) in times of emergency, in light of the Declaration of 20. April 2020 made by the Committee of the Parties established by this legal instrument, and I will argue in favour of the identification of “core elements” to fully realise the women’s right to be free from violence.
Domestic violence and beyond in times of pandemic
Domestic violence has dramatically increased during the lockdown. “The epidemic has had a huge impact on domestic violence,” said the founder of a Chinese association on women’s rights last March. “According to our statistics, 90% of the causes of violence are related to the COVID-19 epidemic.” In Italy, the association D.i.Re. reported that from 2. March to 5. April, 2.867 women reached out the “Centri anti-violenza” (centres that welcome and listen to women victims of gender-based violence) belonging to the network. 28 per cent of the total number of women had never called before. As highlighted in a previous post in this blog, intimate partner violence has increased as a consequence of the pandemic, owing to the woman’s isolation from family, friends, co-workers, and to the 24/7 partner’s control over all her choices (see also here, and here, for the situation in Greece and Turkey). The UN SG pointed out that ‘for many women and girls, the threat looms largest where they should be safest: in their own homes,’ and the European Parliament Committee on Women’s Rights and Gender Equality issued a statement on stopping the rise of domestic violence during lockdown, where it urged all EU Member States to provide victims with flexible tools to report abuse and violence.
In least developed countries, a study on the Ebola crisis found that the closure of schools increased girls vulnerability to physical and sexual abuses both by their peers and by older men, as girls were often are at home alone and unsupervised. In Sierra Leone, e.g., adolescent pregnancy increased by up to 65% in some communities during the Ebola crisis. Apparently, the world has not learned the lesson from previous pandemics.
Domestic violence is not the only form of gender-based violence that has intensified during this period, though. In some countries, access to sexual and reproductive health, including abortion, has become more difficult as a consequence of the lockdown. For example, Ohio and Texas started, immediately after the first coronavirus cases in the US, to declare that abortion is an elective medical procedure, and that it can be suspended in times of emergency. Other US States joined, including Mississippi, Louisiana, Oklahoma, and Alabama. These States have been known for their restrictive abortion laws. Some courts stopped the attempt to jeopardise women’s right to abortion as established by the famous US Supreme Court judgment Roe v. Wade (410 U.S. 113 (1973); see for example South Wind Women’s Center LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094, at *2 (W.D. Okla. Apr. 6, 2020), so did the District Court for the Western District of Texas, whose decision was then considered “patently erroneous” by the 5th Circuit Court of Appeals, which argued that “all constitutional rights may be reasonably restricted to combat a public health emergency” (ivi, p. 15) and that the order issued by the Governor of Texas only constituted a “temporary postponement” of non-essential medical procedures (pp. 18-19). For the Governor, an abortion in times of emergency could be legitimate only inasmuch as it is necessary to preserve the life or health of the pregnant woman. As Judge James L. Dennis contended, however, dissenting from the majority, “it is painfully obvious that a delayed abortion procedure could easily amount to a total denial of that constitutional right” and “in a time where panic and fear already consume our daily lives, the majority’s opinion inflicts further panic and fear on women in Texas by depriving them, without justification, of their constitutional rights, exposing them to the risks of continuing an unwanted pregnancy, as well as the risks of travelling to other states in search of time sensitive medical care” (p. 46). In a most recent order, of 13. April 2020, the same Court partly confirmed the temporary restrictive order issued by the District Court with regard to the decision of the Governor as applied to all abortion procedure, hence denying the enforcement of this decision against medication abortions.
The International Women’s Health Coalition (IWHC) stressed how not only access to abortion is hampered by laws and orders specifically issued for the emergencies, but that also its de facto access is limited owing to the strain on the health systems caused by the pandemic. Social distancing, limited access to hospitals and health services, along with self-declarations – such as in Italy – in which women could be forced to declare the scope of their journey, impair women’s right to sexual and reproductive health. Furthermore, as the IWHC argued, access to contraceptives has been reduced during the pandemic (in the US, e.g., young women receive contraception in college campuses). Maternal health has also become more complex, with at-home births not recommended and even prohibited in many countries. There is another further impairment that has never been stressed in the posts I read in the last few weeks. Access to in vitro fertilisation, which realises the woman’s right to sexual and reproductive health, has also often been suspended during the pandemic, because of the use of medical structures for the purpose of responding to the emergency. Even though the use of infrastructure for the emergency is clearly understandable, the limited access to reproductive and adequate maternal services – including the choice of whether and how to give birth – amount to a violation of women’s fundamental human rights.
What happens on the internet is worth of attention as well. More time at home means more time on the internet and hence revenge porn is even more widespread than before (see the action undertaken by Anonymous in Italy against the use of Telegram for revenge porn). For migrant women, the pandemic has exacerbated previous conditions of discrimination and violence. The European Network of migrant women explained that “already not having safe, sex-segregated spaces [ already subjected to ongoing sexual violence from men […] the females in the camps will also have to take the brunt of caring for the sick, mitigating the risk of infections and mediating new conflicts and male violence inevitably erupting in the midst of the crisis”.
Legal instruments in times of the pandemic: the Istanbul Convention
In this post I will not deal with restrictions to human rights as envisaged by international legal instruments, both at the international and regional level (see, among dozens of posts, here, here, and here; on the right to education, see here). I will only focus on a specific regional instrument on preventing and combating violence against women, the 2011 CoE Istanbul Convention, which, despite being adopted within the Council of Europe framework, can be ratified by non-Member States of the organisation and has the potential of becoming of universal application. The Convention, which has been ratified by 34 States at the time of writing, is applicable both in times of peace and in times of war. The Committee of the Parties to the Convention issued a Declaration last 20. April, recalling that the framework provided by the Istanbul Convention applies “at all times and takes on further significance under the ongoing public emergency caused by the outbreak of COVID-19”. This is a ground-breaking affirmation, which responds to the lack of gender-sensitiveness of the policies adopted in response to the pandemic, and to the more or less explicit suspension of certain services for women victims of gender-based violence. The preamble also refers to “multiple discrimination depending notably on their social or ethnic/national origin, such as for example women with disabilities, women in prostitution, elderly women, migrant and asylum-seeking women”, endorsing an intersectional approach, even though without practical consequences in the operative paragraphs of the Declaration. In light of Article 5 of the CoE Istanbul Convention, the Committee of the Parties highlights that States have due diligence obligations to prevent, investigate, punish and provide reparations for acts of violence covered by the Convention. These obligations do not stop in times of emergency. It also recommends exchanges and cooperation among Member States with a victim-centre and human rights approach. The Declaration finally contains a series of recommendations linked to corresponding articles of the Convention, namely Articles 6, 7, 8, 11, 12, 15, 16, 17, 19, 20-24, 49, 50, 51, 52. As for Article 6, the Declaration encourages States to include a gender perspective when implementing strategies against the pandemic. Campaigns to raise awareness of the issue of violence against women during the emergency, as well information spread through the media and webinars to train the professionals, are encouraged (Prevention). With regard to Protection, the Declaration recommends States to consider as essential all specialist support services for victims of all forms of violence, including children witnessing violence, covered by the Convention. This “might entail taking additional measures to adjust [emphasis added] the capacity of existing support structures, including shelters and telephone helplines, to emerging needs, as well as developing alternative ways to deliver services, for example by flanking helplines with chat systems and counselling platforms providing social support and psychological assistance to victims online and through technological means.” Reporting to the authorities must also be possible during the pandemic, some examples being provided by the practice of using code words at pharmacies to report intimate partner violence and/or domestic violence during lockdown. It seems that the Declaration paves the way for the definition of some “core elements”, which cannot be jeopardised even in times of emergency, of the right to be free from violence, including the obligation States have “to offer victims adequate and immediate protection from the risk of harm” (e.g. through restraining orders). Unfortunately, the Declaration has missed the opportunity to address the situation of migrant women, whose protection is enshrined in Chapter VII of the Convention. For example, during the pandemic, it could be very difficult for the victims whose residence status depends on that of the spouse or partner as recognised by internal law, in case of the dissolution of the marriage or the relationship, to obtain an autonomous residence permit (Article 59). The request for this status should be granted in times of emergency, to protect women from the risk of being left alone in a country that is not their country of origin. With regard to the non-refoulement principle, explicitly recognised by the Convention, the Declaration could have at least endorsed the statement issued by the CoE Commissioner for Human Rights, Dunja Mijatović, calling on Member States “to review the situation of rejected asylum seekers and irregular migrants in immigration detention, and to release them to the maximum extent possible”, because under human rights law, “immigration detention for the purpose of such returns can only be lawful as long as it is feasible that return can indeed take place”, and “this prospect is clearly not in sight in many cases at the moment”.
Conclusions: the still long way ahead
Despite being one of the most advanced instruments in countering gender-based violence against women, the Convention does not acknowledge in its text the women’s right to sexual and reproductive health, whose recognition at the international level has been long and full of obstacles. Article 30 of the Istanbul Convention refers to health but in terms of compensation only, establishing a mechanism to provide reparation by the State absent other sources such as the perpetrator, insurance or State-funded health and social provisions. To guarantee access to reproductive health and adequate maternal health, the jurisprudence and the quasi-jurisprudence of regional human rights courts and UN treaty bodies have been fundamental (see, in that respect, among others, Amanda Jane Mellet v. Ireland, CCPR/C/116/D/2324/2013 (2016) (Human Rights Committee); Alyne da Silva Pimentel Teixeira (deceased) v. Brazil, CEDAW/ C/49/D/17/ 2008, 25 July 2011 (CEDAW Committee); Talpis v. Italy, Appl. No. 41237/14, European Court of Human Rights, 2 March 2017; Linda Loaiza López Soto and relatives v. Venezuela, Inter-American Court of Human Rights, 26 September 2018; and, in more detail, on violence against women’s health, De Vido, forthcoming). Nonetheless, a recognition in a regional human rights and criminal law instrument such as the Istanbul Convention would have been a fundamental step forward. As much as rape and domestic violence amount to torture, inhuman or degrading treatment or punishment, so do restrictive bans on abortion or lack of access to maternal services.
From the analysis of the Convention and the Declaration by the Committee of Ministers of the Council of Europe, along with the enlightening international and regional jurisprudence and quasi jurisprudence that is not possible to explore in this short note, I contend that the obligations States must abide by to prevent and suppress violence against women and to protect the victims are not suspended during the emergency, and that some of these obligations – whose definition can start from the Declaration of the Committee of the Parties and the work done by the GREVIO Committee – represent “core elements” to fully realise the right of every woman, irrespective of her social, economic, health condition, age, place of residence, to effectively be free from violence.
Sara De Vido, Associate Professor of International Law at University Ca’ Foscari of Venice