75th session of the UN General Assembly Virtual High-Level Side Event“Death penalty and gender dimension – Exploring disadvantage and systemic barriers affecting death sentences”

Keynote by Michelle Bachelet, UN High Commissioner for Human Rights

24 September 2020

Excellencies,
Colleagues and friends,

Thank you for this opportunity to address the death penalty and its gender dimensions.

The United Nations opposes the use of the death penalty, everywhere and in all circumstances. The trend towards abolition continues – as was recently highlighted in the Secretary-General report on the question of the death penalty, presented earlier this week to the Human Rights Council in Geneva. Some 170 States, with a variety of legal systems, traditions, cultures and religions, have either abolished the death penalty in law, or do not carry out executions in practice.

Regardless, discussions around capital punishment often neglect the specific barriers and disadvantages faced by women in this context. As the Secretary-General has observed, women face disproportionate and discriminatory application of the death penalty. Women suffer these impacts in multiple and intersecting ways. I hope today’s discussion can deepen our understanding of how this occurs, so that we can move to address and remedy.

Equality of all before the law, and equal protection of the law without discrimination, require that the death penalty not be imposed in a discriminatory manner. This position has been asserted by international human rights mechanisms, notably the Human Rights Committee and the Committee on the Elimination of Discrimination Against Women. Clearly, States should repeal any criminal provisions that result in the discriminatory and disproportionate application of the death penalty to women.

Women face gender discrimination in the application of the death penalty – for example, regarding conduct for which men do not face execution, or may not even be prosecuted. Research shows that women are judged not only on the basis of their crime, but because they are perceived to have betrayed traditional gender roles.

Frequently, women have been disproportionately sentenced to death for the crime of murder, often of spouses or close family members. In addition, women disproportionately face capital charges for conduct not meeting the minimum threshold of “most serious crimes” or which should not be criminalised, as is the case in charges for adultery and consensual same-sex conduct. When carried out, these death sentences amount to arbitrary deprivation of life.

There are other concerning examples of the gender dimensions of the death penalty – in the context of domestic and sexual violence; for migrant women; women facing drug-related charges; as well as poor or economically vulnerable women.

In cases involving domestic abuse, women may suffer from gender-based oppression on multiple levels, as the Special Rapporteur on extrajudicial, summary or arbitrary executions has reported. It is still exceedingly rare for domestic violence and sexual violence to be treated as mitigating factors in capital sentencing. Even in countries with discretionary capital sentencing, courts often ignore or discount the significance of gender-based violence. The imposition of the death penalty on a victim who was exercising self-defence constitutes an arbitrary killing. This is particularly important for women charged with murder in contexts where they have been survivors of domestic and sexual violence.

Migrant women facing the death penalty abroad are disproportionately affected and face multiple obstacles in effectively challenging charges against them, including unfamiliarity with laws and procedures; denial of consular access; and inadequate or low-quality legal representation and translation facilities. Indeed, foreign nationals are often unable to access effective legal representation, as legal aid services are often inadequate. They are therefore frequently less able in practice to exercise their right to equal protection before the law. They may also face bias by judges, prosecutors, police officers and investigators, which can materially influence the process and verdict against them. In the capital context, there is clearly an increased risk of receiving the death sentence.

Poverty and limited practical access to legal aid are a major issue for all people who challenge charges that could result in the death penalty. As a result, the death penalty is a punishment most often applied to the poor.

In the case of drug-related offences, women – who often become involved in the illicit drug trade due to socio-economic vulnerability – are disproportionately impacted. Research also indicates that female offenders convicted of drug trafficking in some countries have a significantly lower chance than men of having their cases reviewed and overruled; this suggests possible gender bias in capital appeals. UN human rights mechanisms have been very clear that drug-related offences do not amount to “most serious crimes”, for which the death penalty can be used. Yet at least 35 States maintain the death penalty for drug-related offences in their legislation.

I urge States to remove the death penalty for drug-related offences. States should also consider protective – rather than punitive – measures towards women who are coerced into the illicit drug trade and other drug crimes.

Gender discrimination in the application of the death penalty can cause wider harms.   Children and family members of individuals sentenced to death or executed suffer extreme psychological distress, economic hardship, and social stigmatization.

Excellencies

Examining the gendered ways in which the death penalty is applied is also important to understanding other discriminatory applications of the death penalty. Our staff consistently report that death rows are disproportionately populated by the poor and economically vulnerable; members of ethnic minorities; people with psychosocial or intellectual disabilities; foreign nationals; indigenous persons; and other marginalised members of society. In 2019, a high-level panel at the Human Rights Council concluded that it was "nearly impossible to apply the death penalty without discrimination and so, to avoid irreversible miscarriages of justice and arbitrary killing, it should not be applied”. Today, I echo this call.

I urge all States that have not yet abolished the death penalty to ensure that this most severe and irreversible of punishments is not applied on the basis of discriminatory laws, or as a result of discriminatory or arbitrary application of the law.

I encourage all stakeholders to continue to highlight the discriminatory and disproportionate application of the death penalty to women.

And I encourage all States represented here today to join and work together towards the international trend towards abolition.

Thank you.