GENDER BIAS and the LAW: Legal Frameworks and Practice from Bosnia & Herzegovina and Beyond
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Majda Halilović, Callum Watson, Heather Huhtanen and Mylène Socquet-Juglard GENDER BIAS AND THE LAW: legal frameworks and practice from Bosnia & Herzegovina and beyond Sarajevo, 2017 GENDER BIAS AND THE LAW Lead Authors Dr. Majda Halilović, Atlantic Initiative Callum Watson, DCAF Heather Huhtanen, DCAF Mylène Socquet-Juglard, DCAF Contributing Editors Prof. dr. Ivanka Marković, University of Banja Luka Judge Mel Flanagan, Fulbright Scholar in BiH Doc. dr. Džamna Duman, University of Sarajevo Prof. dr. Haris Halilović, University of Sarajevo Prof. dr. Goran Marković, University of East Sarajevo Editorial Board The lead authors and contributing editors were joined on the editorial board by: Prof. dr. Izudin Hasanović, University of Tuzla Dr. sc. Alena Huseinbegović, Džemal Bijedić University, Mostar Doc. dr. Midhat Izmirlija, University of Sarajevo Doc. dr Radenko Jotanović, University of Banja Luka Prof. dr. Rebeka Kotlo, Džemal Bijedić University, Mostar Doc. dr. sci. Anita Petrović, University of Tuzla Ivana Stipanović, dipl.iur., Univeristy of Mostar External Reviewers Prof. dr. Jasna Bakšić-Muftić, University of Sarajevo Lynn Hecht Schafran, National Judicial Education Program, Legal Momentum, US Copyediting/Proofreading Kimberly Storr Design & DTP Sanin Pehlivanović Cite as: Halilović, Majda, Callum Watson, Heather Huhtanen and Mylène Socquet- Juglard, eds., Gender Bias and the Law: legal frameworks and practice from Bosnia & Herzegovina and beyond (Sarajevo: AI / DCAF, 2017). © Atlantic Initiative / DCAF, 2017. All Rights Reserved. ISBN: 92-9222-436-0 Contents Gender Bias and the Law 1 Excerpts from reviews 7 About the handbook and possibilities for its use 8 Contributors to the Handbook 10 Acknowledgements 11 Contributor Biographies 12 Editor Biographies 13 THEMATIC UNIT 1: WHY GENDER MATTERS 15 1.1. Introduction 16 1.2. What is gender? 18 1.3. Gender stereotypes in the legal realm 20 1.4. Conclusion 21 1.5. Exercises 22 1.6. References 24 THEMATIC UNIT 2: GENDER BIAS 25 2.1. Introduction 25 2.2. Implicit bias 26 2.3. Gender bias 29 2.4. Conclusion 31 2.5. References 32 THEMATIC UNIT 3.1: GENDER BIAS AND DOMESTIC VIOLENCE 36 3.1.1. Introduction 37 3.1.2. Domestic violence and the legal framework 28 3.1.3. Gender bias: obstructing the fair and equal administration of justice in cases of domestic violence 43 3.1.4. Gender bias and decision-making in cases of domestic violence 52 THEMATIC UNIT 3.2: THE RISKS, CAUSES, AND CONSEQUENCES OF DOMESTIC VIOLENCE 54 3.2.1. Introduction 54 3.2.2. Domestic violence: prevalence, causes, and risk factors 55 3.2.3. Domestic violence typology 61 3.2.4. Domestic violence: the dynamics of power and control 63 3.2.5. Domestic violence: consequences 66 3.2.6. Critical thinking and discussion: the impact of DV 68 3.2.7. Scenario-based problem analysis: applying the law on domestic violence 68 3.2.8. References 72 THEMATIC UNIT 4: GENDER BIAS IN CASES OF RAPE, ATTEMPTED RAPE, AND SEXUAL ASSAULT 74 4.1. Introduction 75 4.2. Legal Framework 76 4.3. Gender bias in the context of rape, attempted rape, and sexual assault cases 79 4.4. Exercise: Case Scenarios 86 4.5. Conclusion 89 4.6. References 90 THEMATIC UNIT 5: GENDER BIAS IN CASES OF DIVORCE 92 5.1. Introduction 93 5.2. Legal Framework 93 5.3. Gender bias in divorce 96 5.4. Gender bias in divorce settlements: the division of property and spousal maintenance 100 5.5. Gender bias in divorce settlements involving children: child custody and child support 107 5.6. Conclusion 116 5.7. Annex: Problem-based scenarios, child custody decisions 116 5.8. References 123 THEMATIC UNIT 6: GENDER BIAS IN CASES OF SEXUAL & GENDER-BASED HARASSMENT 126 6.1. Introduction and history 127 6.2. Legal Framework 128 6.3. Nature, scope, and effects of sexual and gender-based harassment 136 6.4. Prevalence of sexual and gender-based harassment 139 6.5. Causes of sexual and gender-based harassment 140 6.6. Gender bias, and sexual and gender-based harassment 141 6.7. Common myths surrounding sexual and gender-based harassment 143 6.8. Conclusion 145 6.9. Annex: case studies for discussion 146 6.10. References 149 THEMATIC UNIT 7: THE IMPACT OF GENDER BIAS ON ASSESSMENTS OF CREDIBILITY 152 7.1. Introduction 153 7.2. How gender bias influences perceptions of credibility 154 7.3. Gender bias and credibility in practice 157 7.4. Activity: examining credibility in a rape case 165 7.5. Conclusion 170 7.6. References 171 THEMATIC UNIT 8: GENDER BIAS IN LABOUR LAWS 173 8.1. Introduction 174 8.2. The legal basis for gender equality in the workplace 175 8.3. Examples from practice: gender bias in the workplace 179 8.4. Contemporary debates in gender and labour law 188 8.5. An example for discussion: Exemptions from gender equality legislation in the name of national security 191 8.6. Conclusion 193 8.7. References 194 THEMATIC UNIT 9: GENDER BIAS AND THE LAW ON PENSIONS 197 9.1. Introduction 197 9.2. Legal framework 198 9.3. The impact of gender bias on pensioners 201 9.4. Gender bias in judicial cases related to pensions 206 9.5. Case scenarios 208 9.6. Conclusion 210 9.7. References 211 THEMATIC UNIT 10: GENDER BIAS IN INHERITANCE AND LAND RIGHTS 214 10.1. Introduction 215 10.2. Legal framework 216 10.3. Gender bias in inheritance practices 220 10.4. Responding to gender bias in the application of inheritance law, in BiH and beyond 223 10.5. Conclusion 226 10.6. References 227 Excerpts from reviews This publication is the first comprehensive review of gender bias in criminal and civil legal practice and court rulings in the Western Balkans and makes an important contribution to the topic internationally. The Gender Bias and the Law Handbook answers the question, Why Does Gender Matter?, covering topics such as implicit and explicit gender bias, domestic violence, sexual assault, divorce, custody, witness credibility, labor law, pensions and inheritance. This resource will provide members of the judiciary, legal practitioners and professors and students of the law in Bosnia and Herzegovina with the opportunity to advance their critical thinking and legal impartiality in relation to the influence of gender bias. The influence of gender bias, whether implicit or explicit, has been well documented in societies and legal practice across the world. It is therefore the unique charge of those whose responsibility it is to uphold the rule of law to insure that all individuals are equal before the law, and accountable to the law. It was my pleasure to review this excellent resource and it is my hope that it will be widely read and used by judges, practitioners and professors alike. Lynn Hecht Schafran Director, National Judicial Education Program, US Taking into consideration that law school curriculums are not gender sensitive enough and that the gender dimension of law, as well as stereotypes in creating and applying law, should not be overlooked, this Handbook is a useful piece of literature not only for students, but also for those who apply the law. The Handbook is written using an appropriate methodology, so that thematic units have clear aims, expected results, summaries and resources for additional research, which makes the Handbook valuable in the literature for legal education. Considering the choice of thematic units, applied methodology, additional resources and, finally, the authors who participated in the devel- opment of the Handbook, it is justifiable to say that the Handbook will be used in legal education and received with interest by law students. Previous academic experience shows that law students are interested in gender equality top- ics. Besides fulfilling students’ academic and research interests, the Handbook Gender Bias and the Law has multiple uses, not only as framework that offers information, but as a resource that opens up new perspectives in studying the most sensitive aspects of law concerning sexuality and sexual identity, family and inheritance issues, achieving property rights and issues of witnessing before courts. Legal education cannot remain blind to gender differences and the influence of stereotypes in creating laws, as well as the enjoyment and protection of rights. Apart from increasing the gender awareness of students, the gender sensitivity of professors should not be forgotten as a vehicle for improving good quality legal education in Bosnia and Herzegovina. This is the key reason for the Handbook, and its use in legal education fulfils the goals for which it was written. Professor Jasna Bakšić-Muftić Faculty of Law, University of Sarajevo 7 About the handbook and possibilities for its use Although often unnoticed or ignored, gender bias is prevalent in all legal systems across the world, and Bosnia and Herzegovina (BiH) is no exception. The consequences of gender-based bias and discrimination affect everyone, from legal professionals to women and men who seek to assert their rights through the justice system. Gender bias can affect the atmosphere in courtrooms, the presentation of cases, the decisions of judges, and even whether cases come to court. By reducing and eventually eliminating these prejudices, the justice system has the potential to become more effective, democratic, and fair. The Atlantic Initiative (AI) and the Geneva Centre for the Democratic Control of Armed Forces (DCAF) have been working with judges and prosecutors from across BiH to address the topic of gender bias since 2011, within the context of the Gender and Justice Reform Project. During project activities, judges and prosecutors have highlighted the importance of ensuring that the skills they have learned in identifying and overcoming manifestations of gender bias are also passed on to the next generation of legal professionals.