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FORWARD to INTRODUCTION.Pmd FEDERATED STATES OF MICRONESIA CEDAW Legislative Compliance Review 50 2 LEGISLATIVE COMPLIANCE OF THE FEDERATED STATES OF MICRONESIA 2.1 Introduction enough to completely remove the obligations created under any of the indicators for Article 5 and 16 and This Chapter examines and assesses the legislative therefore the legislative compliance of the FSM and compliance of the Federated States of Micronesia its four states has been measured on these indicators. (FSM) with CEDAW. FSM consists of a national Therefore, in sum, the FSM and its four states have government and four states: Chuuk, Kosrae, Pohnpei each been measured against 111 indicators. and Yap. FSM ratified CEDAW on 1 September 2004, obliging it to work towards the modification of its It should also be noted that, through the national constitution and legislation to accord with the constitution of the FSM, which is the basis for all provisions of CEDAW. However, it is recognised that legal authority, the power to legislate is divided FSM is at the beginning of its compliance process between the FSM parliament and the state and that legislative compliance will be achieved parliaments. Whilst the FSM has express power over through gradual and incremental change. areas such as tax, trade and national crimes, it may also establish systems of social security and public This review’s assessment of FSM’s legislative welfare concurrently with the states. This review compliance with CEDAW is based on the indicators has measured FSM against both the indicators which identified in Chapter One and should be read in concern its express powers to legislate and against conjunction with the commentary on each indicator the indicators that relate to its power to implement included in that Chapter. However, the indicators systems of social security and public welfare. against which the FSM and its four states are Although the FSM is not obligated to legislate in the measured against have been reduced by two to areas of social security and public welfare which account for the reservations the FSM has placed on includes many of the areas covered by CEDAW, the CEDAW. Reservations have been entered against authors take the view that the national government, Article 11(1)(d) which requires the enactment of which has a direct obligation to implement CEDAW, comparable worth legislation (pay equity), Article should lead and encourage the four states towards 11(2)(b), requiring the adoption of maternity leave compliance with CEDAW. with pay or with comparable social benefits, and Articles 2(f), 5, and 16 which relate to the succession In sum, FSM has achieved full compliance with 26 of of certain well-established traditional titles, and to 111 indicators, partial compliance with 18 indicators marital customs that divide tasks or decision- and no compliance in relation to the remaining 69 making in purely voluntary or consensual private indicators. Yap has achieved full compliance with conduct. This review has not measured FSM and the 29 of 111 indicators, partial compliance with 16 four states’ compliance with indicators [11.7] which indicators and no compliance in relation to the deals with pay equity and [11.11] which relates to remaining 68 indicators. Kosrae has achieved full maternity leave, as they are expressly excluded by compliance with 33 of 111 indicators, partial the reservations. Compliance information on these compliance with 18 indicators and no compliance in indicators has however been included in the tables relation to the remaining 62 indicators. Chuuk has for general interest. The last reservation relating to achieved full compliance with 30 of 111 indicators, traditional titles and marital customs is not specific partial compliance with 21 indicators and no 51 LEGISLATIVE COMPLIANCE OF THE FEDERATED STATES OF MICRONESIA compliance in relation to the remaining 62 protection to include indirect discrimination indicators. Pohnpei has achieved full compliance (enabling challenge to a rule that appears to with 36 of 111 indicators, partial compliance with apply to a group of people in the same way but 17 indicators and no compliance in relation to the in practice places on particular members of that remaining 60 indicators. The next section provides group a burden not faced by the majority). a brief synopsis of the findings of the review. Although the FSM, Chuuk and Pohnpei also Following the synopsis is five sets of tables (one set provide protection from discrimination on the for the FSM and each of the four states) each related ground of social status (which could include to an article of CEDAW, and each containing the marital status) there is no protection for women relevant indicators, the level of compliance achieved from discrimination on the grounds of sexual (i.e. yes, no or partial compliance), the relevant orientation, HIV status and disability. The FSM legislation and finally where required, a brief Constitution also provides protection against commentary explaining how the legislation does discrimination on the ground of gender in the or does not meet the indicator. equal enjoyment of any service, goods, facilities or advantages by any public institution or any It should be noted that the legislative reviews of the private organisation that provides services to FSM, Chuuk, Kosrae, Pohnpei and Yap were the public. A criminal penalty of 5 years and an conducted using all materials available at the time, express right to bring civil action ensures and that although every effort was made to obtain discrimination in these contexts is seriously the most recent and up-to-date legal material, it is regarded and in compliance with CEDAW. possible that there will be errors or omissions. 2. Articles 2 and 3 together mandate the 2.2 Synopsis of Findings establishment by legislation of national bodies and machinery to monitor the implementation 1. Article 1 defines discrimination and Article 2 of law and policy to foster the advancement of requires States Parties to guarantee a range of women. Neither FSM nor any of the states have fundamental rights and freedoms in their instituted such a mechanism. However, constitutions including substantive equality although not established with enabling and freedom from discrimination on the legislation (which leaves it vulnerable during grounds of sex, marital status, sexual orientation, HIV status and disability. The times of political or economic upheaval) FSM constitutions of the FSM and the states has established a National Gender Office located guarantee the rights and freedoms of all in the Department of Health Education and citizens in most of the areas required by Social Affairs. CEDAW. However, whilst they uniformly 3. Article 2 condemns discrimination against guarantee men and women the equal protection women in all its forms and obligates States of the law they do not guarantee equal benefits or outcomes as required by CEDAW. FSM and Parties to eliminate discrimination against all states except Kosrae, have anti- women without delay. General discrimination clauses through which Recommendation 19, which concerns violence individuals who have experienced sex against women, makes explicit that the discrimination can seek remedies. None, definition of discrimination includes gender however, extend their anti-discrimination violence and recommends that ‘sanctions, 52 LEGISLATIVE COMPLIANCE OF THE FEDERATED STATES OF MICRONESIA penalties and compensation’ be introduced in common law rule which perpetuates the myth relation to gender based violence. Sexual assault that a victim’s previous sexual relationship with is a form of gender violence as it is either the accused or others makes it more likely overwhelmingly perpetrated against girls and she consented. All the states, except Pohnpei, women, and therefore must be prevented and have legislated against the use of evidence of remedied, as far as possible, through legislative the victim’s prior sexual conduct with persons means. FSM has not legislated in the area of other than the accused, although evidence of sexual assault and is non-compliant with sexual conduct with the accused can still be CEDAW. The four states have legislated and admitted if it is offered to prove consent. have identical (non-compliant) legislation consisting of two categories of sexual assault 6. Corroboration (independent evidence such as offences. The first category is sexual assault by that of a witness that connects the accused penetration with 2 penalties depending on person with the crime) is a common law rule whether serious injury was inflicted, imposing that requires a judge to advise the jury that it is a 10 year sentence with and 5 years without dangerous to convict the accused on serious injury. Although penetration is widely uncorroborated evidence. None of the states defined the sentences are low implying that have legislated against the necessity for sexual assault is not a serious offence. In corroboration in sexual offence prosecutions. particular, a 5 year sentence for a rape that does 7. Proof of resistance is a common law rule which not cause serious injury is an inadequate requires victims to establish that they punishment and deterrent. Regardless of the physically resisted the perpetrator otherwise level of injury, rape is a violation of personal consent may be inferred. It is discriminatory integrity which should be severely punished. because physical resistance may be an The second category is sexual contact with girls unrealistic expectation of a victim against a under 13, and in the case of Pohnpei 15, with strong or armed perpetrator and does not take the (non-compliant) result that it is lawful to into account that fear and power imbalances have sexual contact with girls (and women) 13 may immobilise the victim. None of the states (or 15) and over. have legislated against the requirement for proof 4. Further, in Pohnpei, an offender cannot be of resistance by the victim. Further, in all states charged in relation to sexual assault and sexual except Pohnpei there is a defence in ‘sexual abuse if the complainant cohabits with the contact’ prosecutions for the accused to claim offender in an ongoing voluntary sexual that he did not know the girl was under 13.
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