Violence against women is a violation of human rights. It is one of the few phenomena which cuts across every imaginable cultural, political, socio-economic, ethnic, religious and educational boundary. However, recognising that gender equity and social development are inseparable, fighting gender-based violence has become a priority for governments and international organisations all over the world even though, for much of history, many forms of violence such as domestic violence --- which this essay focuses on --- were not only ignored but also legally condoned.
The approach has changed and now, 'the human right to a private and family life is of special importance, but cannot be tolerated to condone private conduct within families in which one partner enforces dominance by violence over the other. The key human rights principle is that violence deliberately directed against any other person is never a purely private matter'. 1
1 The Legal Regime
1.1 The basis of domestic violence legislation
Violence against women is inextricably linked to issues of gender equality and gender mainstreaming. The preamble to the 1993 UN Declaration on the Elimination of Violence against Women clearly locates the roots of gender-based violence in 'historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, recognising that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men'.
In the European Union, the Commission first started work on gender mainstreaming in the early 1990s by developing a more consistent approach following the 1995 Beijing UN Women's Conference2 which recognised 'violence against women' as a critical area of concern, acknowledged that violence against girls 'begins at the earliest stages of life and continues unabated throughout their lives', and reaffirmed commitments to the equal rights and inherent human dignity of women and men enshrined in the Charter of the United Nations and other international human rights instruments such as the 1979 Convention on the Elimination of All Forms of Discrimination against Women and the 1989 Convention on the Rights of the Child.
Further, Article 2 of the EC Treaty states that the Community shall have as its task equality between men and women and Article 13 states that without prejudice to the other provisions of the (same) Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
1.2 The definition of domestic violence
Domestic violence may be perpetrated by spouses, lineal ascendants and descendants and the lateral branch of the family up to the IV degree whether they are related by blood, marriage, fosterage or adoption, or by intimate partners or legal guardians.
Within the European Union, violence within families, right from the denigration of honour, is considered to be domestic violence and is covered under the general provisions of penal codes even if it not explicitly mentioned therein. Moreover, the laws themselves have been amended and harmonised so as to remove obstacles in tackling the issue.
For example, earlier definitions of rape exclusively spoke of extra-marital rape, and marital rape did not expressly constitute an offence (although it was possible to initiate action against it under assault laws). However, the term 'extra-marital' has now simply been deleted from the definition so as to include marital rape in the definition of rape and make it an offence in itself.
The spectrum of domestic violence (which, incidentally, has a high level of recidivism) may include psychological, physical, sexual, financial and emotional abuse which may manifest itself as physical injury, the deprivation of food, money or other resources, intimidation, humiliation and degradation, and may result in anhedonia, pain, exhaustion, isolation, alienation, depression, fear, and decreased levels of self-esteem, productivity and attentiveness. The law forbids any kind of violence (including seemingly innocuous forms of abuse such as nagging which is, just like any other form of abuse, one of the grounds of divorce in the case of violence which occurs within a marriage).
1.3 The procedure to deal with domestic violence
Domestic violence proceedings can be made speedy, and various injunctions which (depending on the country) may include Non-Molestation Orders and Occupation Orders can be obtained by victims. The Power of Arrest may be attached to an injunction if it is shown that the perpetrator has used violence or has threatened to do so and may do so again.
The legal nature of a Complaint may make those who are aware of an offence liable to be sanctioned if they do not report it to the authorities. Due to this, in practice, doctors who provide medical assistance to victims of domestic violence have a legal obligation to notify not the police but the public prosecutor's office directly (except in the UK where the police undertakes the investigation). The public prosecutor then conducts a suo moto investigation into the incident(s). The British Government, for example, explicitly says, "The NHS has a particular contribution to make in domestic violence, not only because of the impact on victims' health, but also because the NHS may be the first contact point with professionals who can recognise and intervene in the situation." Domestic violence may be concealed by victims but not by the authorities. The consent of victims is no longer essential to initiate action against perpetrators, and various advertising campaigns have been conducted to make people aware that 'the police will seek out men who abuse their partners and arrest them, even if the victim refuses to make a statement or give evidence'.3 The penalties are higher if the victim has special needs such as those of being pregnant, handicapped or disabled.
1.4 Judicial reconciliation
Taking into consideration high stress-levels, judicial reconciliation has been made available to deal with domestic violence: the perpetrator receives psychological therapy at a public hospital (for as long as councillors think is necessary) and promises not to repeat his behaviour. Penal sanctions are suspended for a period that may vary between three and four years (depending on the country). The councillors report the perpetrator's progress to the judge and if it is unsatisfactory, the judicial reconciliation will end and penal sanctions will resume as they have a retrospective effect. These provisions, however, do not apply to guardians, foster parents, and minders.
2 Measures in Support of Victims
2.1 Shelters for victims
Shelters, which provide a witness status to their guests, are set up by the State as well as other NGOs such as the Church and women's rights NGOs to protect of victims of domestic violence. There is also an option to provide them with immediate interim shelter (for 48 hours) even before a medical examination by the coroner.
The first modern women's shelter (which was established in Chiswick, England in 1971 by Erin Pizzey) developed out of an 'advice centre' for women and their children. Since then, the movement for shelters has grown and in 1986, the European Parliament's Committee on Women's Rights and Equal Opportunities recommended that one shelter should be available for every 10000 people.
2.2 Domestic violence campaigns
The Commission has been conducting programmes and funding projects to raise awareness about violence and trafficking, to prevent them and to support victims. These include Daphne (2000-2003) and Daphne II (2004-08). The financial framework for the Daphne Programme was €20 million for the first phase and €50 million for the second phase. The programmes have tried to contribute towards ensuring a high level of physical and mental protection for children, young persons and women against violence (including sexual exploitation) by preventing violence and by providing support to victims especially in order to prevent their re-exposure to violence. They have also tried to promote closer co-operation between Member States and harmonise responses to these crimes although the principle of subsidiarity requires Member States to take measures to fight violence individually.4,5
References:
1. Reproductive health and human rights: integrating medicine, ethics and law(Cook, Dickens, Fathalla, Oxford, 2003, p 390)
2. Gender mainstreaming into practice
3. Metropolitan Police Service - Domestic Violence advertising campaign
4. Gender Mainstreaming and Gender based violence and trafficking in women
5. The Daphne Programme and The Daphne Programme
This post is an extract from an essay was written for the POROS Project.
No comments:
Post a Comment