Since February 2018, when the Organic Law on the Elimination of Violence against Women entered into effect in Tunisia, a question has been raised about the extent to which it would be enforced as part of a comprehensive approach to violence against women, particularly in terms of how effective its mechanisms are to ensure enforcement. The most important of these mechanisms is the creation of specialized units to investigate crimes of violence against women, with Article 23 stating: “A specialized unit to investigate crimes of violence against women shall be established in every national security and national guard area in all states, in accordance with the provisions of this law…”.
By examining the provisions of this law, the actual creation of these units, and the commencement of their work, we find that a number of obstacles and challenges need to be addressed quickly to safeguard this important gain.
The Creation of Specialized Units
Based on the data available to us as of 15 November 2018, 127 specialized units have been created by the national security and national guard forces to investigate crimes of violence against women s. This number, which seems high at first glance, hides a range of challenges faced by these units.
Absence of a Text Governing the Structure of Units
Although the law did not provide an ideal composition of the units except by stipulating that female personnel must be among their members, no ordinal text (whether an order or a decision) was issued indicating the composition of these units. The specialized units established so far were created by internal administrative texts (memorandums, regulations, or circulars) that were not published in the official Gazette. Thus, they could not be viewed to determine their compliance with the terms and principles of governance, particularly transparency and efficiency. This gives the impression that opaque and non-transparent administrative mechanisms are being carried out.
The units created vary in terms of the number of members. Some only contain one staff member while others have more than five. This disparity in the number of members within each specialized unit would have a negative impact on the work and efficiency of each unit. A unit made up of only one person means that it is unable to perform its task as required by the law.
The absence of any comprehensive legal text that regulates the composition of these units and the terms of reference of its members opens the door to non-transparency and lack of clarity of the conditions and terms of reference in the selection of members. A legal text needs to be issued and published as soon as possible to avoid this problem.
Requirement of Female Members Within the Specialized Units
Law No. 58 of 2017 stipulates that the specialized units should include female personnel. The continuous presence of female personnel will ensure the greatest degree of security and reassurance for women who are victims of violence. However, this requirement may not be currently fulfilled by all the units. While most of the units created include at least one female member, units managed by only one person include none. One female member in each specialized unit is not enough since this means that when she is not working there is no female member on-call. According to statistics, the night shift is when a high rate of violence against women takes place, especially domestic violence. It is therefore better to have at least two female members in each unit, and currently this requirement is proving difficult to fulfill for most of the units.
On the Tasks and Jurisdiction of the Specialized Units
The specialized units have a number of tasks and jurisdictions within their purview, and other tasks that they share with other stakeholders in terms of implementation. The challenges facing these units will be all the more difficult the more they share the same jurisdiction with other stakeholders and other bodies in the field of combating and eliminating violence against women.
Challenges of Hearings and Prosecution in the Absence of Specialists
Law No. 58 of 2017 sets out a series of procedures for the hearings and prosecution of sexual violence against women and children. Article 28 states that “a victim of sexual abuse may request to be heard in the presence of a psychologist or a social worker”. The presence of a psychologist or social worker is obligatory when listening to the testimony of a child who is the victim of sexual violence (Article 29). This general procedure, which takes into account the victim's condition after being sexually assaulted, is impeded by the fact that in many cases it is difficult or even impossible to have a specialist present. In several areas where some specialized units were created, there is no psychologist or social worker who can be assigned to attend the victim’s hearing.
Many hospitals and public health institutions lack psychologists, and it is difficult to provide this service in cities or villages where victims are located, making an immediate hearing of victims impossible. This results in long waiting periods by the victim with no consultation or psychological care, leaving them in a state of “shock” or psychological fragility for a longer period. The victims may be transferred far away from the unit’s location for such treatment, but this poses the problem of transferring the victims.
Audio-Visual Recording of Children's Hearings
Article 29 of the 2017 Law states that “a child who is a victim of sexual abuse shall not be heard more than once, provided that the hearing is recorded in both audio and video”. This important protective measure for children and their psychological well-being requires the availability of special equipment in each unit. Currently, this equipment is not available in all the units that have been created. These units will have no option but to resort to the technical police or to other units that have such equipment. This would leave the condition of the victim’s child unhandled until they can be heard and their hearing can be documented in audio and video. Although Article 23 explicitly prohibits hearing children more than once in sexual abuse cases, these children often give multiple testimonies due to the absence of audio-visual documentation.
Through the powers the law grants these specialized units, the following can be observed: many of these units lack resources and cannot succeed in their performance unless a range of human and material resources (psychosocial and social workers, modern equipment for documentation, equipped rooms, etc.) are provided; and these units cannot do their work unless full coordination between all the relevant stakeholders takes place, with all stakeholders having the same interpretation of the provisions of the law and the mechanisms set to deal with women and children who are victims of violence.
On Networking With Stakeholders
What distinguishes the 2017 Law is its comprehensive nature on the one hand, and its emphasis on the need for networking on the other. Protecting women and children who are victims of violence must involve the security and judicial apparatus as well as medical, psychological, social and community care. In this context, the creation of specialized units is necessary in order to prioritize the issue of violence against women within these various bodies. However, this important role requires coordination and networking with all the stakeholders, especially the judiciary, the Child Protection Delegation, and associations.
Specialized Units’ Jurisdiction in Light of the Broad Definition of Violence Against Women
Article 3 of the 2017 Law defines states that “Violence against women is based on gender discrimination.” Adopting this broad definition to deal with violence against women and accompanying children will result in the referral of all complaints in which women are victims of violence to the specialized units. This would overwhelm these units with dozens, if not hundreds, of complaints each month. This raises the question of whether these units are financially capable (in terms of staff numbers and technical and logistical equipment) of handling all these complaints and files. In our opinion this would be difficult for most units, and near impossible for those that only consist of one or two members.
Thus, pending the formation of clear jurisprudence on the concept of gender-based violence, the Ministry of Interior (which is the first line of intervention in the field of violence against women) should have a practical policy under which the criteria for assigning cases to the specialized units should be defined. The policy should also strengthen the capacities of these units to undertake their task, and that would reduce the burdens placed on other units. This further requires that other unites undergo general training on gender-based violence so that different members assigned at the judicial police are aware of the characteristics of these types of cases. This knowledge will enable them to distinguish between cases that fall within their purview and other cases that must be referred to the units specialized in investigating violent crimes against women.
On the Problems of Sheltering Women Who are Victims of Violence and the Children Accompanying Them
Article 26 of Law No. 58 of 2017 states that the specialized unit shall “transfer the victim and the children residing with her – where necessary – to safe shelters, in coordination with the competent institutions and a representative of the Child Protection Delegate”. This basic procedure for protecting and providing a safe place for women and children who are victims of violence, which fulfills an important demand by advocates of women and children's rights, is impeded by many challenges. These challenges are namely the fact that not all location have safe shelters, and in many cases, the specialized unit does not have the financial capacity to transfer the victim and/or children.
The safe shelters that mainly belong to the Ministry of Social Affairs and the Ministry of Women, Family and Children, are mostly located in the Tunis governorate head offices and some of the geographically large governorates (such as Kairouan, Medenine, and Sfax). Thus, the distance between these safe locations and the internal areas of the governorate is sometimes very far away.
There are eight shelters that belong to NGOs. Three of which are in the capital Tunis and five outside the capital. However, the capacity to accommodate and equip them does not allow them to shelter a large number of women and children. It is therefore necessary to reconsider the concentration of these shelters and their distribution. They should be distributed to areas that correlate to the rate of violence against women and children. The rate can be determined through studies conducted on violence in Tunisia, which should be updated regularly, based on the periodic reports (every six months) that the specialized units should submit to the administrative supervisory authority (Ministry of Interior), the judiciary, and the National Observatory on Violence Against Women (Article 27).
Keywords: Violence Against Women, Domestic Violence, Gender Discrimination, Tunisia