Veronica P. Fynn

Stigmatization and Sexual & Gender-Based Violence: An African/Liberian Perspective on Public Health Law

Introduction & Background

“A 9-month pregnant woman had been raped. One woman refused to be raped. They couldn’t overpower her, so the soldiers just took a knife and slashed her vagina…Every one of these women had been raped or violated. We were in tears, listening…we had no idea that these women would come with these stories.”¹

The cryptic nature of stigma begs for similarities with the chameleon – physically present but yet at the same time illusory and deceptive because it has the ability to not only absorb identity of the environment but also persist psychologically even as systematic structures wax and wane. Emanating out of such surreptitious characteristics are its staggering tentacles – a concept Bruce Link and Jo Phelan² call “modified labelling theory” and what I refer to as “formation markers” – labelling, othering, prejudice, discrimination, racism, and stereotyping. Base on subliminal acts (in most cases) and invalidation myths (i.e., not substantiated by evidence), these “formation markers” maintain a climate of fear, danger, inequality, exclusion, injustice and poor health (including deaths) – even though there are not many studies to establish such direct links between stigmatization and mortality rates. With respect to public health, the use of epidemiology/statistical data is important. It helps bring some reality to the issue at stake with regard to developing suitable and effective intervention programs (e.g., law and policies) as well as mapping social determinants of stigma for the purpose of conducting comprehensive research.

According to Daniela Estrada,³ sub-Sahara Africa (a continent stigmatized for being the hub of HIV/AIDS, violent conflicts, hideous human rights violations etc)⁴ has the highest maternal mortality rates (MMR)⁵ with at least 920 deaths per 100,000 live births compare to developed countries (8 per 100,000). With respect to infant mortality (i.e., death occurring within the first 28 days of life), half of the 9.2 million deaths worldwide occurs in sub-Saharan Africa.⁶ With this piece of information, it is evidently obvious why reduction of global reproductive health disparities with focus on Africa is necessary starting with the concept of stigmas associated with women and girls survivors of sexual violence in conflict areas of Africa.

No doubt that stigma and its associated strings of “othering” e.g., stereotyping and discrimination etc exist in every culture. But where does it originate? References from Goeffman⁷ (1986) and the online Encyclopaedia⁸ points to the Greeks as inventor of the word stigma – i.e., bodily signs designed to expose something unusual and bad about the moral status of the signifier. With precision, the term stigma can be used to refer to an attribute that is deeply discrediting⁹ by the alleged “normal.” Analysis of this definition accomplishes the need for the morally upright (i.e. the so-called “normal”) to identify and expose the immoral signifier (i.e., the “abnormal”). This implies that the unfairness and pain of having to carry a stigma will never be presented to the “normals” that is the “normals” will not have to admit to themselves how limited their tactfulness and tolerance is and that they can remain relatively “uncontaminated” by intimate contact with the stigmatized, relatively unthreatened in their identity beliefs.¹⁰

Every society establishes boundaries between those considered “insiders” and those who carry with them a “stigma”  or label, often of disapproval.¹¹ Who determines the state of “normalcy” and “abnormality” attracts (consciously or unconsciously) the propagation of inequality, injustice, and discrimination (to name a few). This eventually leads to subsequent societal relations between stigmatization and the concepts of power, control, privilege, authority and patriarchal dominance as seen within the rule of law. Venturing on the fringes of critical sociological and psychological implores in-depth inquiry of what is actually “normal” versus “abnormal,” keeping in mind that the existence of global diversity means cultural relativism.¹²

Goffman¹³agrees that the very existence this diverse society establishes the means of categorizing persons. So, how is the process of categorizing possible? Goffman¹⁴ suggests that, the stigmatized, having received unpleasant labelling, may react one of two ways – that is s/he may attempt to correct what s/he sees as the objective basis of his/her failing or simply accept the “abnormal” label with the goal of reducing the tension in order to make it easier to withdraw covert attention from the stigma.¹⁵ Society then plays a unique role of re-enforcing the stigma so that the stigmatized gravitates toward the “self-fulfilling prophecy” of the spectrum. Nevertheless, in the context of war, where women and girls contract say HIV/AIDS or become pregnant by way of sexual violation, there is almost no way of “fixing” such “abnormal” moral outcomes except may be through implementation of public health research, principles and law. Albeit, the inherent challenges associated with war (i.e., breakdown of societal infrastructure and persistence of lawlessness and chaos) – to say the least – are the main reasons why such “avenue of hope” may still not be possible.

Stigmatization is a challenge for humanity. A person who is stigmatized is “a person whose social identity or membership in some social category calls into question his/her full humanity –  the person is devalued, spoiled, or flawed in the eyes of the others.”¹⁶ It involves dehumanization, threat, aversion, and sometimes depersonalization of others in stereotypic caricatures. Therefore, stigmatization is not only personally, interpersonally, and socially costly but also difficult to research. Apart from the landmark international conference on “Stigma and Global health: Developing a Research Agenda”¹⁷ which focused on stigma as it relates to public health;¹⁸ research and publication in this area are extremely difficult to find. Why is this so? Link and Phelan¹⁹ argues that, the stigma concept has been criticized as been too vaguely defined, individually focused and that stigmatized processes can affect multiple domains of people’s lives such as earnings, housing, health and life in general.

In light of the above, to what extent can the law and research (e.g., public and reproductive health laws) be used to address stigmatization associated with sexual and gender-based violence (SGBV) in war-affected Africa? Thus the aim of this paper is to investigate the extent to which stigmas and its “formation markers” in war-torn countries of Africa affect the implementation of health research as well as enforcement of laws and policies to protect survivors of SGBV. The paper will identify possible risks and/threats associated with acknowledging survivors of SGBV whilst simultaneously devising legal strategies reform laws and policies in this regard. With extreme lack of resource materials on stigma especially in rural communities of Liberia, this paper adopts a multi-disciplinary approach, borrowing from epidemiology, psychology, medicine etc; in attempt to discuss the complexities of stigma in terms of SGBV in conflict ridden communities in Africa. To compensate for the immense lack of resource on stigma in rural Liberia, the paper utilizes perspectives from various African countries, to examine the prevalence of sexual violence; its consequences, as well as, the significance using medico-legal theories (if at all possible) to address the concept of stigma. Further analysis of public and reproductive health implications on stigma with discussions of centering on feminist, human rights and legal perspectives will follow. The paper will conclude with suggestions and recommendations that could be used to move the agenda or stigma, law and public health forward. Before presenting data on the prevalence of SGBV and related stigmas in Africa, consider the following key definitions.

Key Definitions

Stigma (as already alluded to above) has traditionally been defined as a sign/mark that designates the bearer as defective²⁰ or a type of social control that do not distinguish between a person and his/her deviant behaviour;²¹ whereas  stereotyping have historically been viewed as unjustified because they reflect faulty overgeneralization, factual incorrectness, inordinate rigidity, an inappropriate pattern of attribution, or a rationalization for a prejudiced attitude or discriminatory behaviour.²² Stereotypes²³ or stigmas based on blemishes of individual character (e.g., sex-roles)²⁴ are involved in stigmatization to the extent that the response of perceivers is not simply a negative one, but also that a specific set of characteristics is assumed to exist among people sharing the same stigma.²⁵ Stereotype, ²⁶ in its elementary form, is conceived as a knowledge structure that represents a hypothetical contingency between two variables: social groups and their behavioural attributes.²⁷ It is worth emphasizing that stigma is a social construct – a reflection of culture itself, not a property of individuals.²⁸ Irrespective of whether it is a visible mark or an invisible stain, stigma acquires its meaning through the emotion it generates within the person bearing it and the feeling and behaviour toward him of those affirming it.²⁹ Major types of stigma are physical (e.g., pregnancy), conduct (e.g., visiting diseased clinic) and tribal (e.g., Kpelle vs. Americo-Liberian).³⁰ According to Ainlay et al, physical and tribal stigmas (unlike conduct related ones) are granted a measure of acceptance because they are not considered to be personally responsible for their failing or deviance.³¹ As such, they may tend to elicit favourable rather than unfavourable reactions from others.³² Also, perpetrators of stigma are varied and wide, including police, magistrates, social workers, or even the law. Intentional stigma may take a variety of forms ranging from snubs or adverse comments to legal sanctions.³³

Discrimination, prejudice and othering are three other key concepts associated with stigmatization. The distinction between stereotype and prejudice parallels the distinction usually made between beliefs or opinions and attitudes. Stereotypes are beliefs or opinions about the attributes of a social group or its members, whereas prejudice is usually conceptualized as a negative intergroup attitude. An attitude is a tendency to evaluate an entity with some degree of favour or disfavour. A prejudice is an attitude toward members of some out-groups in which the evaluative tendencies are pre dominantly negative.³⁴ While the existence of negative opinions and mutual dislikes between different social groups may be deplorable, stereotypes and prejudice become a social problem mainly when they result in hostile and discriminatory behaviour towards members of an out-group. Thus, discrimination is defined as any behaviour which denies “individuals or groups of people equality of treatment which they may wish to have.”³⁵ Othering is the social, linguistic and psychological mechanism that distinguishes ‘us’ from ‘them’, the normal from the deviant.³⁶ Othering marks and names the other, providing a definition of their otherness, which in turn creates social distance, and marginalises, dis-empowers and excludes. Some have argued that othering serves a psychological purpose, where an ‘exclusionary urge’ satisfies a need to keep psycho- and socio-spatial proximity ‘clean’ from deviant, dirty or threatening others, and maintain moral normality.³⁷ Social identity theory posits that people are aware of, recognise and evaluate others in terms of adherence or belonging to social groups. This is dependent on naming the other to form ideas of group membership; defining otherness to identify some people as an in-group and others as out-group; and marking the other so that the out-group members are less favoured when compared to the in-group.³⁸ Othering is a key part of the production of stigma. Othering, marginalisation, stigma and inequality are inter-related concepts, with a shared component of rewards from being ‘normal’ or like ‘us’; and costs for being different, deviant or like ‘them’, For public health issues these abstract concepts are seen at work in how people respond to health threats.³⁹ Othering can be a coping mechanism to manage threats to your wellbeing; keeping secrets and non-disclosure are ways of avoiding health threats and being ‘othered’. Noteworthy – deviance is a designation, a way of characterizing behaviour by applying rules to particular people and labelling them as outsiders. The ideas of spoiled identity direct our attention to the devaluation phenomenon itself as the core ingredient common to all deviance situations. Labelling is largely a matter of some persons or group imposing their rules on others.⁴⁰

Understanding the meanings of law and public health is essential to exploring their relationship with respect to the concept of stigma. Law and public health are both professional disciplines as well as complex social phenomena. Goodman et al⁴¹ describes law as a rule, structure, norms that is enforceable by the power of the state or that society uses to govern itself, resolve disputes, and construct the relationship between members of that society. Public health, he asserts, is what society does collectively to assure the conditions for people to be healthy. This definition emphasizes the active nature of public health. When put together, we can say that public health law is what society does collectively within the confines of rules, structure and norms to assure the conditions for people to be healthy.⁴² However, public health law should not be confused with medical jurisprudence (concerned only in legal aspects of the application of medical and surgical knowledge to individuals), argues Fiedler and Wather.⁴³ That is, public health is not a branch of medicine, but a science in which, preventive medicine is an important contributor. Therefore, public health law is a branch of jurisprudence which shares conceptual terrain with the field of law and medicine, or health care law, but is a distinct discipline.⁴⁴ Klaus and Wather⁴⁵ believe that a systematic understanding of public health law requires a careful examination of what “public” is. In their opinion, a public entity acts on behalf of the people and gains its legitimacy through a political process. In this regard, public health law should be seen broadly as the authority and responsibility of government to assure the conditions for population health which transcends the importance of how we think about government politics and policy.⁴⁶ With this in mind, let’s explore public/reproductive health implications of stigma.

Public & Reproductive Health (law) Implications of Stigma

Violence against women and its resulting effect on women’s reproductive health is a major public health concern.⁴⁷ The field of reproductive health includes examples of almost every type of public health law. According to Anderson & Wilcox,⁴⁸ reproductive health is not a single health exposure or outcome but rather an entire biologic system. An understanding of reproductive health law requires recognition that both law and medicine have shaped this area.⁴⁹ Activities such as sexual behaviour, childbearing, and birth control are viewed in most societies as having moral, legal, and cultural implications beyond their health effects, leading to laws intended to control these behaviours.⁵⁰ For example abortion and birth control are subject to state criminal laws that limit access to these services. Somehow nuanced within the socio-legal implications of reproductive health and public health are attitudes and behaviours constructed by cultural background which feed into the process of social othering – discrimination, prejudice, stereotyping and stigmatizing. Thus the influence of the law on how social branding and labelling (stigmatizing) of female reproductive health concerns, more often than not affect women’s (and society’s) ability to promote public health law.

The law or its lack thereof, has the propensity to fuel long term fuelling of stereotypes and stigmatization. In war-affected societies where survivors (usually women and children) are stigmatized as being immoral when violated by rapist; the law is required to be more comprehensive and sensitive to “mini-motivators” of such inequalities.  For example, in South Africa,⁵¹ a new law (2007) makes it harder for survivors of rape to get post-exposure prophylaxis ((PEP) – a 28 day course of Anti-retro viral (ARV) in order to reduce further risk of HIV infection. With this new law, (unlike before) only few designated clinics are mandated to provide PEP with prior charges and paper work in two separate locations.⁵² Another example can be seen with Malawian penal code (sections 149 and 150) which prohibits abortion. It states any person who administers abortion shall be liable to imprisonment for 14 years and that any woman who solicits abortion is liable to seven years imprisonment.⁵³ For a country whose 30 percent of maternal mortality are due to “backstreet” (illegal or unsafe⁵⁴) abortion,⁵⁵ continuation of such laws not only endangers’ women’s health but also justified the formation of stigmatization: prejudice, discrimination, and stereotyping.⁵⁶

Mitchell Weiss and Jayashree Ramakrishna⁵⁷ believe that the prevalence of stigma associated with diseases, disorders and other “abnormal” social behaviours merit on-going public health intervention. She suggests six major research interventions that could help narrow the broadening focus of stigma. These are: 1) document the burden of stigma for serious health problems; 2) compare stigma for different health problems and in different settings; 3) identify determinants of stigma and its effect on health policy and on illness experience and behaviour; 4) evaluate changes in stigma over time, and in response to interventions and social change; 5) improve knowledge about the nature and risk of target health problems, so that laws and health policy minimise stigma; and 6) develop clear, simple, and unambiguous messages about complicated health problems and stigma. These interventions when followed correctly with focus on local community, UNAIDS⁵⁸ recommends that, they have the potential of reducing stigma by: improving quality of life for women and girls survivors of SGBV; mobilizing community leaders to foster respect and compassion for others; empowering women and girls; and raising awareness through media and other sources. To inculcate the above recommendations mandates a measurement of the length and breathe of the problem, in this case, incidence and prevalence rates of SGBV.

Incidence and Prevalence Rates of Sexual and Gender-based Violence

The key role of public health agencies are to support and to conduct research to quantify the presence and impact of diseases, conditions, or behaviours of public health importance; to identify risk factors that can be used to target appropriate diagnostic, therapeutic, or (more likely) preventive interventions; and to develop and evaluate innovative strategies to reduce associated societal impact of these conditions.⁵⁹ The goal of public health then is primarily to benefit populations, but of course involvement of individuals in this process necessitates protection (or rights) of participants,⁶⁰ hence the relevance of the law. How might public health goals be achieved in war-affected countries of Africa?

Consider, Sierra Leones’ public health system, which is perceived to be extremely weak mainly due to the civil war. In 1999 only 34 per cent of the population had access to safe drinking water and only 11 per cent had adequate sanitation.⁶¹ The gap between poor and rich is staggering. Though Sierra Leone has significant mineral resources, including diamonds, its people are some of the poorest in the world.⁶² Violence and political instability in Sierra Leone have been part of the wider regional problem in West Africa resulting in mass displacement, as well as, destruction of more than 3000 communities.⁶³ To contextualize the above public health impact of conflict in Sierra Leone, study done by Physician for Human Rights⁶⁴ showed that of the 991 household randomly surveyed for sexual violence 89 per cent reported being raped; 37 per cent were forced to undress/strip; 33 per were gang raped; 15 per cent were forced into sex slavery; 9 per cent were forced into marriage; 4 per cent had foreign objects inserted into the genital or anus openings and 23 per cent of all women and girls who experienced sexual violence reported being pregnant at the time of attack.

It is clearly evident that sexual violence is common in armed conflicts but yet under-reported.⁶⁵ It is likely that the historical lack of documentation about rape and sexual violence as a deliberate strategy in conflict has been due to the subordinate position of women and girls face in societies and the social stigma associated with rape⁶⁶ and other forms of sexual violence. A participant in Chen Reis’⁶⁷ research on Sexual Violence in Sierra Leone had this to say, “[t]hey undressed five of us, laid us down, used us in front of my family and took us away with them….when I escaped I couldn’t walk – the pain. I was bleeding from my vagina…since I got back I have been so sick. I never used to get sick like this…I would like to go back to school but I can’t concentrate anymore. I can’t do anything.” This participant’s experience confirms the “revolving cycle” of SGBV, first survivors are deeply wounded (physically) and then second the traumatic impact leaves them with complex feelings of guilt, apathy and rejection. On top of these, are accompanying social stigmas, where women are considered “spoils of war,” “unclean,” or “unfit for marriage” because she has been violated (virginized) through rape.

Without trivializing or  taking away concentration of women and girls’ heart-rending experiences, let me interject here that,  stigmatization with respect to SGBV is not only women’s concerns. Although this research paper emphasizes on women and girls for obvious reasons, male survivals of sexual violence do have some similarities (physically, medically and psychologically). Literature review on SGBV in conflict zones conducted by Populations Councils⁶⁸ observes that male survivors tend to be more reluctant to access counselling and rarely seek legal redress due to perceived and actual stigma related to abuse. However, the Gender Violence Recovery Centre in Nairobi Women’s Hospital confirms that presentation of male survivors (85 per cent 15 and under) has increased steadily over the last four years.⁶⁹

Causes, Impacts and Consequences of Sigma related to SGBV

Sexual violence can have serious physical and mental health consequences.⁷⁰ But what is gender-based violence in the first place? It includes acts of violence that can be display physically, psychologically or sexually against a person specifically because of his/her gender. It is one of the most widespread human rights abuses and public health problems globally with demoralizing ineffaceable consequences for survivors.  Yet at the same time, “its broader social effects compromise the social development of children…family, social fabric of affected communities, and the well-being of society as a whole.”⁷¹ For instance, Liberia’s pre-war population of 2.5million suffered over 200,000 casualties (mainly civilians), 750,000 international refugees, 1.2 million internally displaced persons (IDPs), torture, cannibalism⁷² and murder and excruciating cases of rape (estimated 3 out of 4 women),⁷³– the latter have received very little or no research attention.⁷⁴

The act of rape (for example) and its socio-legal impact epitomize the disparity seen in the existing gender system. Rape has been described as “the ultimate sexist act”. In rape, the emotions of aggression, hatred, contempt, and the desire to break or violate personality, take a form consummately appropriate to sexual politics. The prospects of being rape presents to women a constant reminder of the extent to which they are devalued and objectified deprived of personal autonomy. When a woman is raped, she is treated as nothing but objects. Schur⁷⁵ argues that rape (nothing more or less than a conscious process of intimidation by which all men keeps all women in a state of fear) provides perhaps the best example of a serious male offense against women which is widely deplored but which is in practice not severely condemned or punished. Subsequently, the criminal justice system has been quite ineffectual in its response to rape and other sexual violence in war-affected communities in Africa. Its processes have stigmatized women and girls as responsible for being raped rather than to respond directly and strongly to the violation itself. Thus women who are raped experience not only pain, fear, violation, and outrage – but also shame.⁷⁶

To actualize the causes and consequences of stigma related to SGBV, consider the following research findings. A cross-sectional study⁷⁷ of 762 women in Wakiso District, Uganda reveals that adolescent mothers encountered more violence from parents, rejection from partners and stigmatization from the community compared with adult mothers. Such challenges do not only deter adolescent mothers from seeking appropriate health services but can subsequently affect both mother and child’s health in the long term. Although there are more than 2 million girls and women living with fistula (a condition resulting from prolonged and obstructed labour when the head of the baby cannot pass through the birth canal; known to affect poor and marginalized girls mostly in Africa) stigma and shame are said to be responsible for under-reporting and well as refusal of women and girls to seek health services.⁷⁸ Research findings from 32 studies in 27 countries discovered that most commonly reported reasons women give for having abortion⁷⁹ are: 1) to postpone or stop childbearing; 2) socio-economic concerns (disruption of education, employment, lack of support from father, poverty etc); and 3) relationship problems with partners/husband.⁸⁰ There was no mention of stereotype or stigma anywhere in this paper even though it is implicit within the reasons are the underlying prejudice, discrimination, othering etc society places on pregnant women and girls who are, for example, raped, still in school, teenagers, living with parents etc. Avoiding or speaking on the parameters of stigma is dangerous as it serves as roadblocks against dealing with the reality of the problem associated with SGBV.

Female genital mutilation (the medically unnecessary modification of female genitals) is another form of violence against women in most of Africa labelled as “barbaric and abhorrent”  can result in extensive physical, emotional, mental and sexual trauma.⁸¹ Regardless, its negative impact both  physically and medically, and even though the procedures are performed on relatively young girls due to almost no fault of their own, they run the risk of facing life-time social ostracizing if they do not submit to being cut as uncircumcised girls and women in these cultures are stigmatized and avoided from being married. Harmful practices like these takes away young girls’ autonomous rights to privacy and control of their bodies.

Legal and Theoretical Concepts of Stigma, Stereotype and Discrimination

Historically, because women are considered property along with the slaves, animals, and fields, husbands were considered absolute masters and wives had few, if any, rights.⁸² Throughout history, women were considered not only to be chattel but also to be morally inferior or evil and, therefore, in need of correction.⁸³ By the time the laws changed, these forms of violence against women were so entrenched in the culture that it made very little difference. Eventually, this resulted in making women less powerful and less in control of acts of sexual violence against them.⁸⁴ Because of this powerlessness, women fell under the jurisdiction of men who were given legal permission to use physical force against them as they saw fit. While laws have changed slowly to reflect more human attitudes, violence against women was not considered an appropriate topic for psychological research until the last 1970s.

Also, Frank and Rothblum⁸⁵ argue that historical formulations of sex roles have relied on two major assumptions. The first is that there exists collection of behaviours, characteristics, attitudes or competencies that are associated strongly with one’s biological gender. Thus knowing only the sex of a person, it would be possible to predict, with some accuracy, how that individual would act, fell, think, or approach certain situations.⁸⁶ Second assumption underlying traditional models of sex-role orientation is that an individual should exhibit these attributes that are associated with her or his gender in order to be ideally adjusted.⁸⁷ From this perspective, appropriate sex-role orientation traditionally has been denied in terms of the “match” between one’s gender and those characteristic=s that are correlated with being a male or a female. To the degree that this match is present, the person would be considered sex typed.

It is against this backdrop that I present major international and regional instruments that have been developed over the years to address the existing injustice and inequality women and girls face with respect to their reproductive and sexual health. Due to limited time and space, I will not conduct further legal analysis of these instruments but will discussion their general relevance and applicability with respect to protecting women and girls from stigma associated with SGBV.

Article 27 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (the Fourth Geneva Convention) states that women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault without prejudice to the provision relating to their health, age and sex. Within the grand scheme, rape can be technically classified as torture as defined by article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention) “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/[her]…information or a confession, punishing him/[her] for an act he/[she]…has committed…” Article 5(IV) of Convention on the Elimination of All Forms of Violence Against Women (CEDAW) states that all women have “the right to public health, medical care, social security and social services.” Article 6(1) of the International Covenant on Civic and Political Rights (ICCPR) states that, “every human being has the inherent right to life.” Article 10(3) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) acknowledges the fact that, “Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination…” Article 19(1) of the UN Convention on the Rights of the Child (CRC) admonishes states party to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse…” Article 7(1) of the Rome Statute confirms that “crime against humanity” includes “…torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity…”

On regional level, Article 1 of the African Women Protocol defines violence against women as “all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peace time and during situations of armed conflicts or of war.” Whereas the African Children’s Charter reaffirms that every African child has the right to primary health care promotion and education (Article 1(h)) as well as having the right to enjoy the best attainable state of physical, mental and spiritual health (article 14(1)).

Discussion

Feminist & Gender Perspective

The relationship between stigma and social power i.e., women and girl’s vulnerability to stigmatization rest on their general social subordination and their relatively poor power position.⁸⁸ At the same time when women are effectively stigmatized, Schur⁸⁹ asserts, that reinforces their overall subordination and makes it more difficult for them to achieve desired goals. This is part of what labelling analysts mean in reference to how stigmatization can become “self-propelling” or “snowballing” in its impact.⁹⁰ The second relation is that of social control. Some people control others by defining the latter’s behaviour as deviant. Many current definition of deviance and ways in which they are used function to keep women under control, or in their ‘place’, regardless of whether anyone has consciously intended that effect.⁹¹ Social stigmatization must be recognized as a key mechanism that backs up and “enforces” many of the restrictions and limitations placed on women relying on the battlefield of social interaction where the daily war between sexes is fought.⁹² It is here that women are constantly reminded where their ‘place’ is and that they are put back in their place, should they venture out.”⁹³ Between pervasive stigmatizing, on the one hand, and the low status acquisition on the other, women are liable to “lose either way.”⁹⁴

Irrespective of the aforementioned, to what extent are we justified for viewing femaleness as a devalued or deviant status, one that – as law puts it – carries a stigma in and of itself?⁹⁵ Schur⁹⁶ (1984) list four major grounds for accepting the notion that womanhood is, on balance, a devalued status: 1) well documented pronounced sex inequality within our socio-economic system; 2) widespread categorical perception and objectification tendencies of sex inequalities; 3) pervasive devaluation of women in “cultural symbolism”; and 4) women’s relation to definitions of deviance. The treatment of women as “special” that this implies itself a denial of their ordinary and full humanity. On the contrary, women caught up in conflict (for example) face stigmatization associated with their sexual and reproductive health in diverse ways: socioeconomically, psychologically, and health-wise. All of these affect their ability to resist stigmatization or to avoid some of its negative impact. In spite of these challenges, can legal intervention off any possibility of hope?

Julie Goldscheid⁹⁷ argues that if legal interventions are to effect change toward prevention and eradication of sexual violence, they must first address the root causes since in fact research done by feminist legal theorists argues that perpetuation of sex-based inequality is a reflection of engrained stereotyping, discrimination and stigmatization. Such engrained disparities seek both the use of feminist legal theories and encompass the mainstreaming of gender perspectives in all national laws and policies. Kristine Palitza,⁹⁸ quoting Bafana Khumalo, observes the complete lack of gender issues within the platform of political parties in South Africa (for instance): ‘[n] ot a single political party has made gender equality part of their manifesto, let alone focus on how they might involved men and boys in achieving this.” Palitza⁹⁹ further argues that equity in numbers (i.e., between men and women) is not synonymous to efficient power sharing. She asserts that gender “equality must become national priority”¹⁰⁰ whereby women and men not only understand the importance of participating but are also given the necessary tools and infrastructure to ensure that effective changes are being made.

Legal Approach

Violence against women (e.g., rape, wife battering, sex slavery etc) have been evident throughout the law as well as the culture.  Sexual assault and wife beating have been so well entrenched in the mores of our paternalistic society that current stereotypes of women still reflect the belief that women occasionally deserve such violence, may actually want it or need it, and are left relatively unharmed psychologically in its aftermath.¹⁰¹ Because of the stigma that have prevailed against disclosing, discussing, or studying rape and domestic violence, there has been little information available to question or counter the existing stereotypes until very recently.¹⁰²

Therefore, women’s experience of sexual violence and the socio-legal and medical process of addressing the problem is vulnerable to the “whole nine yards” of stigmatizing –  othering, prejudice, stereotyping, and discrimination. First, consider the due process of law in the case of addressing rape. Even though the Fourth Geneva Convention (article 27) prohibits against rape, women are often obliged to seek anonymity in order to shield their identity when testifying in court for fear of being “disgrace within their communities” in addition to protecting themselves from being attack again by their rapists.¹⁰³ Second, using legal approaches to address stigma associated with SGBV in conflict ridden communities pose challenges at all levels especially when the very institutions and individuals entrusted to protect lives are perpetuators of such sexual crimes. For instance, Save the Children May 9, 2009 report¹⁰⁴ accused aid workers (including UN personnel) in Liberia of sexually abusing vulnerable war victims in exchanged for food. For a war-torn country, such as Liberia,¹⁰⁵ where social infrastructure is completely broken down, in addition to absence of laws to protect women (Liberia, in its existence of almost 170 years recently passed its first rape law in 2006), one would doubt whether restoring any form of justice to these women is just a “figment of imagination.” Putting laws into action is one thing but dealing with a society that has stereotyped and stigmatized women’s rights so much so that laws required to protect women are either non-existent or ignored partly due to  patriarchy; is a monolith that women activists and others have fought against for centuries.

Thirdly, in other cases where the law simply does not recognize certain acts or behaviour to be criminal or violation it may be challenging to even begin addressing the issue. For example, a qualitative study carried out in Northern Uganda on Health Services for Survivors of Gender-Based Violence¹⁰⁶ found that prevalence of intimate partner violence was as high as 80 per cent in some conflict areas; however, Ugandan law does not recognize marital rape as a crime. Despite the aforementioned, all is not lost yet. Probably, identification of how the law affects formation of stigma might offer some hope.  Scott Burris¹⁰⁷ proposes three areas where law affects the operation of stigma in society. They are, 1) law can be a means of preventing or remedying the enactment of stigma as violence, discrimination, or other hard; 2) it can be a medium through which stigma is created, enforced, or disputed; and 3) it can play a role in structuring individual resistance to stigma. Probably, adopting a human rights-based perspective in this regard might provide alternative avenues for effective change.

The paper from which this section is excerpted is available in entirety in PDF file format: click to download

¹ Margaret Harris Cheng. “Reviving health care in Liberia” (2009) 373 The Lancet 9671 at 1239 to 1240

² Bruce G. Link & Jo C. Phelan. “Stigma and its public health implications” (2006) 376 The Lancet at 528 to 529

³ Daniela Estrada, “Health-Latam: Too Many Women and Children Dying” IPS News (January 26, 2009) online: <http://ipsnews.net/news.asp?idnews=45432>

⁴ A. Strebel, M. Crawford, T. Shefer, A. Cloete, N. Henda, M. Kaufman, L Simbayi, K. Magome, & S. Kalichman. “Social constructions of gender roles, gender-based violence and HIV/AIDS in two communities of the Western Cape, South Africa (2006) 3 Journal of Social Aspects 3 at 516 to 528)

⁵ Khalid S. Khan, Daniel Wojdyla, Lale Say, A. Metin Gulmezoglu, & Paul F. A. Van Look. “WHO analysis of causes of maternal death: a systematic review” (2006) 367 The Lancet at 1066 to 1074

⁶ Zahira Kharsany, “Development – Africa: Better Education Improves Health of Mothers and Children” IPS News (January 26, 2006) online: <http://ipsnews.net/news.asp?idnews=45430>

⁷ Erving Goffman, Stigma Notes on the Management of Spoilt Identity (New York: Simon & Shuster, Inc., 1986) at 1

⁸ Encyclopaedia online: http://www.encyclopedia.com/doc/1O27-stigma.html

⁹ ibid at 3

¹⁰ ibid at 121

¹¹ Gerhard Falk, Stigma: How We Treat Outsiders (New York: Prometheus Books, 2001) at 11 to 13

¹² Cultural relativism is a sociological principle which states that individual’s belief should be based on his/her unique background – refer to Elene Mountis below.

¹³ Goffman supra at 2

¹⁴ ibid at 9

¹⁵ ibid at 102

¹⁶ John F. Dovidio, Brenda Major, & Jennifer Crocker “Stigma: Introduction and Overview” in Todd F. Heatherton, Robert E. Kleck, Michelle R. Hebl, Jay G. Hull, The Social Psychology of Stigma (New York: The Guilford Press, 2000) at 1

¹⁷ Kathleen M. Michels, Karen J. Hofman, Gerald T. Keusch, & Sharon H. Hrynkow. “Stigma and global health: looking forward” (2006) 367 The Lance 9509t at 538 to 539

¹⁸ Gerald T. Keusch, Joan Wilentz & Arthur Kleinman. “Stigma and global health: developing a research agenda” (2006) 367 The Lancet 9509 at 525 to 527

¹⁹ Bruce G. Link & Jo C. Phelan. “Conceptualizing Stigma” (2001) 27 Annual Review of Sociology at 363 to 385

²⁰ Monica Biernat & John F. Dovidio, “Stigma and Stereotypes” in Todd F. Heatherton, Robert E. Kleck, Michelle R. Hebl, Jay G. Hull, The Social Psychology of Stigma (New York: The Guilford Press, 2000) at 88

²¹ Anton J. M. Dijker & Willem Koomen, Stigmatization, Tolerance and Repair: An Integrative Psychological Analysis of Responses to Deviance (Cambridge: Cambridge University Press, 2007) at 6

²² Biernat & Dovidio supra

²³ Perry R. Hinton, Stereotypes, Cognition and Culture (Hove: Psychology Press, 2000)

²⁴ Violet Franks & Esther D. Rothblum, The Stereotyping of Women: Its Effects on Mental Health (New York: Springer Publishing Company, 1983) at 4 to 6

²⁵ Biernat & Dovidio supra

²⁶ Wolfgang Strobe & Chester A. Insko, “Stereotype, Prejudice, and Discrimination: Changing Conceptions in Theory and Research” in Daniel Bar-Tal, Carl F. Graumann, Arie W. Kruglanski, & Wolfgang Stroebe, Stereotyping and Prejudice: Changing Conceptions (New York: Springer-Verlag, 1989) at 3 to 5

²⁷ Klaus Fiedler & Eva Walter, Stereotyping as Inductive Hypothesis Testing (Hove: Psychology Press, 2004) at 17

²⁸ Stephen C. Ainlay, Gaylene Becker, & Lerita M. Coleman, The Dilemma of Difference: A Multidisciplinary View of Stigma (New York: Plenum Press, 1986) at 4

²⁹ ibid at 1

³⁰ In Liberia the Kpelle tribe is stigmatized as being “stupid” by the so-called free slaves returnee (Americo-Liberians)

³¹ Dijker & Koomen supra at 1

³² Ainlay et al supra at 4 to 6

³³ ibid at 10

³⁴ Strobe & Chester supra at 8

³⁵ Strobe & Chester supra at 10

³⁶ Ann Taket, Beth R. Crisp, Annemarie Nevill, Greer Lamaro, Melissa Grahma and Sarah Barter-Godfrey, Theorising Social Exclusion (London: Routledge, 2009) at 166 to 167

³⁷ ibid

³⁸ ibid

³⁹ ibid

⁴⁰ Schur supra at 5

⁴¹ Richard A. Goodman, Mark A. Rothstein, Richard E. Hoffman, Wilfredo Lopez, Gene W. Matthews, Law in Public Health Practice (Oxford: Oxford University Press, 2003) at xxvi

⁴² ibid

⁴³ Fiedler & Wather supra at 3 to 5

⁴⁴ ibid

⁴⁵ ibid at 327

⁴⁶ ibid

⁴⁷ Lori L. Heise, “Violence against women: a neglected public health issue in less developed countries” (1994) 39 Social Science & Medicine 9 at 1165 to 1179

⁴⁸ Bebe J. Anderson and Lynne S. Wilcox Reproductive Health in  Richard A. Goodman, Mark A. Rothstein, Richard E. Hoffman, Wilfredo Lopez, Gene W. Matthews, Law in Public Health Practice (Oxford: Oxford University Press, 2003)at 348 to 349

⁴⁹ ibid

⁵⁰ ibid

⁵¹ Jane Harries, Phyllis Orner, Mosotho Gabriel & Ellen Mitchell. “Delays in seeking an abortion until the second trimester: a qualitative study in South Africa” (2007) 4 Reproductive Health 7

⁵² Mercedes Sayagues, “AIDS – South Africa: Balancing Individual Rights Against Public Health” IPS News (January 13, 2009) online: <http://ipsnews.net/africa/nota.asp?idnews=45191>

⁵³ Pilirana Semu-Banda Lilongwe, “Health – Malawi: Women’s Group Sues Govt Over Abortion Rights” IPS News (April 30, 2009) online: <http://ipsnews.net/africa/nota.asp?idnews=46671>

⁵⁴ David A. Grimes, Janie Benson, Susheela Singh, Mariana Romero; et al “Unsafe abortion: the preventable pandemic” (2006) 368 The Lancet 9550 at 1908 to 1919

⁵⁵ Stanley K. Henshaw, Susheela Singh, & Taylor Haas. “The incidence of abortion worldwide” (1999) 25 International Family Planning Perspectives at S30 to S38

⁵⁶ Lilongwe, supra

⁵⁷ Mitchell G. Weiss & Jayashree Ramakrishna. “Stigma interventions and research for international health” (2006) 367 Lancet at 536 to 538

⁵⁸ Peter Aggleton, Kate Wood, Anne Malcolm, Richard Parker, HIV – Related Stigma, Discrimination and Human Rights Violations (Geneva: UNAIDS, 2005)

⁵⁹ Nanette R. Elster, Richard E. Hoffman & John R. Livengood, “Public Health Research and Health Information” in Richard A. Goodman, Mark A. Rothstein, Richard E. Hoffman, Wilfredo Lopez, Gene W. Matthews, Law in Public Health Practice (Oxford: Oxford University Press, 2003) at  160 to 161

⁶⁰ ibid

⁶¹Chen Reis, “Documenting sexual violence among internally displaced women in Sierra Leone” in Chris Beyrer & H. F. Pizer, Public Health & Human Rights: Evidence-Based Approaches (Baltimore: The John Hopkins University Press, 2007) at 180 to 181

⁶² ibid

⁶³ ibid

⁶⁴ Physicians for Human Rights, War Related Sexual Violence in Sierra Leone: A Population-Based Assessment (Cambridge: PHR, 2002)

⁶⁵ Population Council supra at 15

⁶⁶ Integrated Regional Information Networks, “Liberia: The New War is Rape” IRIN News (November 19, 2009) online: <http://www.irinnews.org/report.aspx?ReportId=87122>

⁶⁷ Chen Reis supra at 182 to 183

⁶⁸ ibid at 27

⁶⁹ Population Council, Sexual and Gender Based Violence in Africa: Literature Review (Nairobi: Population Council, 2008) at 14 to 15

⁷⁰ Reis supra at 191

⁷¹ Eniko Horvath, Monwasbisi Zukani, Desmond Eppel, Monica Kays, Abdoul Konare, Yeora S. Park, Ekaterina Y. Pischalnikova, Nathaniel Stankard & Tally Zingher. Gender-Based Violence Laws in Sub-Saharan Africa (New York: New York City Bar, 2007) at 1

⁷² Paul Richards. “Witches, cannibals and war in Liberia” (2001) 42 Journal of African History at 167

⁷³ Anonymous. “Liberia: three out of four raped” (2007) 44 Africa Research Bulletin 3 at 17016B to 17016B

⁷⁴ Kenneth L. Cain. “The rape of Dinah: human rights, civil war in Liberia, and evil triumphant” (1999) 21 Human Rights Quarterly 2 at 265 to 307

⁷⁵ Edwin M. Schur, Labelling Women Deviant: Gender, Stigma, and Social Control (New York: Random House, 1984) at 145

⁷⁶ ibid at 147

⁷⁷ Lynn Atuyambe, Florence Mirembe, Nazarius M. Tumwesigye, Johansson Annika, Edward K. Kirumira, & Elisabeth Faxelid. “Adolescent and adult first time mothers’ health seeking practices during pregnancy and early motherhood in Wakiso district, central Uganda” (2008) 5 Reproductive health 13 at 1742 to 1755

⁷⁸ Maggie Bangser. “Obstetric fistula and stigma” (2006) 367 The Lancet 9509 at 535 to 536

⁷⁹ Gilda Sedgh, Stanley K. Henshaw, Susheela Singh, Akininola Bankole & Joanna Drescher. “Legal abortion worldwide: incidence and recent trends” (2007) 33 International Family Planning Perspectives 3 at 106 to 116

⁸⁰ Akinrinola Bankole, Susheela Singh & Taylor Haas. “Reasons why women have induced abortions: evidence from 27 countries” (1988) 24 International Family Planning Perspectives 3 at 117 to 152

⁸¹ Donald G. Barstow. “Female genital mutilation: the penultimate gender abuse” (1999) 23 Child Abuse & Neglect 5 at 501 to 510

⁸² Franks & Rothblum supra at 234 to 238

⁸³ ibid

⁸⁴ ibid

⁸⁵ ibid at 12

⁸⁶ ibid

⁸⁷ ibid

⁸⁸ Schur supra at 8

⁸⁹ ibid

⁹⁰ ibid

⁹¹ ibid

⁹² ibid

⁹³ ibid at 11

⁹⁴ ibid at 12

⁹⁵ ibid at 34

⁹⁶ ibid at 34 to 38

⁹⁷ Julie Goldscheid. “Part II of the fifth annual women and the law conference: the global impact of feminist legal theory” (2006) 28 Thomas Jefferson Law Review 423 at 355 to 492

⁹⁸ Kristin Palitza, “Activists Ask Government to Integrate Men and Boys in Gender Policies” IPS News (April 27, 2009) online: <http://ipsnews.net/africa/nota.asp?idnews=46615>

⁹⁹ Palitza supra

¹⁰⁰ ibid

¹⁰¹ Franks & Rothblum at 230

¹⁰² ibid

¹⁰³ Amanda Beltz. “Persecuting rape in international criminal tribunals: the need to balance victim’s rights with the due process rights of the accused” (2008) 23 St. John’s Journal of Legal Commentary 1 at 167 to 208

¹⁰⁴ Anonymous. “Liberia: sex abuse investigation” (2006) 43 Africa Research Bulletin 5 at 16655C to 16656B

¹⁰⁵ A Monitor. “Liberia: safe house for survivors” (2008) 45 African Research Bulletin: Political, Social and Cultural Series” at 1761B to 1761B

¹⁰⁶ Mirkka Henttonen, Charlotte Watts, Bayard Roberts, Felix Kaducu & Matthias Borchert. “Health services for survivors of gender-based violence in Northern Uganda: A qualitative study”

(2008) 16 Reproductive Health Matters 31 at 122 to 131

¹⁰⁷ Scott Burris. “Stigma and the Law” (2007) 367 The Lancet 9509 at 529 to 531