Comparative Perspectives on Gender Violence: Lessons From Efforts Worldwide 9780199346578, 0199346577

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Comparative Perspectives on Gender Violence

Interpersonal Violence Series SERIES EDITORS

Claire Renzetti, Ph.D. Jeffrey L. Edleson, Ph.D. Parenting by Men Who Batter: New Directions for Assessment and Intervention Edited by Jeffrey L. Edleson and Oliver J. Williams Coercive Control: How Men Entrap Women in Personal Life Evan Stark Childhood Victimization: Violence, Crime, and Abuse in the Lives of Young People David Finkelhor Restorative Justice and Violence Against Women Edited by James Ptacek Familicidal Hearts: The Emotional Styles of 211 Killers Neil Websdale Violence in Context: Current Evidence on Risk, Protection, and Prevention Edited by Todd I. Herrenkohl, Eugene Aisenberg, James Herbert Williams, and Jeffrey M. Jenson Poverty, Battered Women, and Work in U.S. Public Policy Lisa D. Brush Child Victims and Restorative Justice: A Needs-Rights Model Tali Gal Battered Women’s Protective Strategies Sherry Hamby Men Who Batter Nancy Nason-Clark and Barbara Fisher-Townsend When Men Murder Women R. Emerson Dobash and Russell P. Dobash Comparative Perspectives on Gender Violence: Lessons from Efforts Worldwide Edited by Rashmi Goel and Leigh Goodmark

Comparative Perspectives on Gender Violence Lessons from Efforts Worldwide

EDITED BY RASHMI GOEL AND

LEIGH GOODMARK

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3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford New York Auckland  Cape Town  Dar es Salaam  Hong Kong  Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016

© Oxford University Press 2015 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Comparative perspectives on gender violence: lessons from efforts worldwide / edited by Rashmi Goel and Leigh Goodmark. pages cm.—(Interpersonal violence) Includes bibliographical references and index. ISBN 978–0–19–934657–8 (alk. paper) 1.  Intimate partner violence—Prevention—International cooperation.  2.  Women—Violence against—Prevention—International cooperation.  3.  Women—Crimes against—Prevention— International cooperation.  I.  Goel, Rashmi.  II.  Goodmark, Leigh, 1969 HV6626.C655 2015 362.82ʹ927—dc23 2014048240

9 8 7 6 5 4 3 2 1 Printed in the United States of America on acid-free paper

CONTENTS

Preface  vii Contributors  xi PART I  Pushing Law: Legislating Gender Violence Worldwide  1. Exporting Without License: The American Attempt to End Intimate Partner Abuse Worldwide  3 Leigh Goodmark 2. Gaps and Challenges in States’ Responses in the Quest to Eliminate Violence Against Women: A Global Perspective  15 Rashida Manjoo PART II  Developing a Legal Response  3. Operating in a Narrow Space to Effect Change: Development of a Legal System Response to Domestic Violence in China  31 Robin Runge 4. The Vital Role of Grassroots Movements in Combatting Sexual Violence and Intimate Partner Abuse in Haiti  43 Nicole Phillips 5. Violence Against Palestinian Women in the West Bank  59 Nadera Shalhoub-Kevorkian and Adrien K. Wing PART III  Tackling Specifics: The Lessons of Implementation  6. Lessons from the Local: Rurality and Responses to Intimate Partner Abuse in Sub-Saharan Africa and the United States  73 Johanna Bond and Elizabeth Bruch 7. “In the Good Times and the Bad”: Gendered Notions, Economic Inequality, Intimate Partner Violence, and Lessons from Chile to Move Beyond Judicial Reform  87 Nia Parson 8. Coaxing Culture: India’s Legislative Response to Dowry Deaths  99 Rashmi Goel

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PART IV  Still Work to Do: The Continuing Evolution of the Legal Response  9. An American in St. Patrick’s Court: Gender Violence, Gender Inequality, and the Irish Feminist Response  115 Kris McDaniel-Miccio 10. Family Law Reform and Domestic Violence: Lessons from Australia  127 Molly Dragiewicz 11. The Economics of Gender Violence in Norway: A Comparative Approach  141 Julie Goldscheid 12. Domestic Abuse: Feminism, the Government, and the Unique Case of Scotland  155 Nancy Lombard and Nel Whiting 13. Alternative U.S. Responses to Intimate Partner Violence  169 Donna Coker and Ahjané D. Macquoid Notes  183 References  187 Index  211

PREFACE RASHMI GOEL AND LEIGH GOODMARK

This book grew out of a conversation several years ago about our frustration with the uncritical exportation of U.S. law and policy on domestic violence. Both of us knew of lawyers, judges, and advocates who were traveling the world touting criminalization, protective orders, and family justice centers as the solution to intimate partner abuse. We were critical of such efforts, aware that the social science data did not support the proposition that increased criminalization deterred intimate partner abuse and concerned about the impact of hypercriminalization on low income communities of color, undocumented women, lesbian, gay, bisexual, and transgender people, and others. We wondered what would happen if, instead of exporting our (problematic) policy responses to intimate partner abuse, the United States looked for promising practices from other countries. This book is a result of those musings. When we started this project, we hoped to get a sampling of laws, policies, and projects from around the world that were making a real difference in the lives of people subjected to abuse. We were looking for strategies that did not over-rely on the criminal justice system and on state intervention. We wanted to offer alternatives to a U.S. system, particularly a criminal justice system, that is relatively well-funded but that is making no real dent in the rates of intimate partner abuse. What we found was considerably more complicated. Most countries have already adopted some form of law criminalizing intimate partner abuse, although the effectiveness of those laws is as questionable in other countries as it is in the United States. As Rashida Manjoo describes in the chapter summarizing her observations as the United Nations Special Rapporteur on Violence Against Women, many governments believe that they are “getting it right” when it comes to intimate partner abuse, but there are few evaluations substantiating those claims. Moreover, even in those places that have adopted progressive policies and embrace the notion that intimate partner abuse is a violation of human rights rather than simply a violation of the criminal law, intimate partner abuse is not decreasing in any appreciable way. Julie Goldscheid’s chapter on Norway provides an example of this dilemma; although Norway’s progressive social welfare policies ease some of the economic barriers that people subjected to abuse face in the United States, and although Norway has adopted the various human rights laws that prohibit intimate partner abuse and violence against women, advocates there still feel that norms that permit intimate partner abuse have changed

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very little. As Nancy Lombard and Nel Whiting observe about change in Scotland, the successes are fragile. Still, there are areas of promise. From sub-Saharan Africa to Ireland, advocates are engaged in grassroots anti-violence organizing, exploring the links between the law and language of human rights, health, poverty, gender stereotypes, and intimate partner abuse. In Australia, strong empirical work on violence in custody cases has contributed to laws that better protect women subjected to abuse and their children. In Scotland, a clear focus on domestic violence as a gendered phenomenon informs innovative primary and secondary prevention work. Moreover, there are cautionary tales for the United States to consider. Many of the chapters, including Nia Parson’s examination of Chile, remind us of how essential economic stability is for women subjected to abuse and how little the law has done to provide such stability. But even in the most economically devastated areas, like Haiti, activists and advocates are organizing to prevent violence against women and achieving some success—an important reminder for those in the United States who have deemed community organizing secondary to law reform. Cultural context is essential in assessing the work that has been done on intimate partner abuse around the world. Just as the United States should not uncritically export its law-focused solutions, we should not advocate for the wholesale adoption of practices and strategies from other parts of the world without some assessment of the potential for success within our own cultural milieu. Approaches that work well in small, rural areas or in less developed legal systems may not be appropriate in the United States. Nonetheless, we hope that by sharing those practices here we can spark new creative thinking to diversify and improve the United States’ response to intimate partner abuse. One facet of cultural context is the way in which the phenomenon that we describe here as intimate partner abuse is named. Various chapters use the terms domestic violence, intimate partner violence, and intimate partner abuse, and those terms have been chosen deliberately by the authors of those chapters, many of whom explain their reasons for doing so. We have chosen intimate partner abuse because we believe that it captures both the broadest range of intimate relationships (married and unmarried, gay and straight) and the broadest range of experiences of abuse (physical, emotional, psychological, sexual, economic, reproductive, and spiritual). That choice is open to debate, however, given one of the themes we address below: the overtly gendered nature of the intimate violence that both women and men experience. Several themes emerged in the writing and compilation of this volume, although we had no intention of highlighting these themes at the start. First, it became obvious that, though we cast a wide net through our choice of terminology and geographic span, the violence described in this book is distinctly and distinctively gendered. From north to south and around the globe, the authors are interested in the ways the state fosters gender-based violence or fails to prevent such violence. This focus is consistent with the recognition that gender-based violence exists on both the micro and the macro levels; women disproportionately face violence at the hands of intimate partners and at the hands of the state, and those experiences of violence intersect to reinforce women’s oppression. The inclusion of LGBT victims does not undermine this observation. On the contrary, as Nicole Phillips reveals in her chapter on Haiti, LGBT victims are often brutally abused when they are perceived as

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feminine or feminized. The problem we describe is not merely violence in the home, or violence between family members, or violence between partners—the problem is violence done to women. To pretend otherwise is to obscure the true nature and the severity of the problem. Second, even with the attention to local initiatives and grassroots movements to combat intimate partner violence, almost every author also raised the importance of international instruments in these efforts. The obligations imposed by international instruments have, in some cases, worked to bring attention to intimate partner abuse and violence against women as a human rights issue. While most would probably agree that international treaties (such as CEDAW—the Convention on the Elimination of All Forms of Discrimination Against Women) have not been adequately enforced even by signatory nations, most would probably also agree that international agreements have been useful in setting standards and moving states toward solutions—legal, political, and social. In some cases, these solutions have primarily focused on the passage of laws, particularly laws criminalizing intimate partner abuse. Efforts in education and health law, however, have also been tied to the international agreements. Certainly, the prospect of international pressure has been an effective tool for advocates pushing these reforms. But these common efforts have met with common obstacles. For instance, police reluctance or refusal to protect women from intimate partner abuse, even where such abuse is criminalized, is a problem common to most nations. This recalcitrance reflects a lack of engagement and agreement about the importance of this issue among those charged with enforcing the law. Moreover, the inaction of police reflects the wider failure of communities at large to embrace notions of women’s equality and to condemn abuse. The passage of laws, international and domestic, has not been enough to achieve fundamental change in society’s tolerance for gender violence. Change is happening, however. The third theme we found across all chapters was the emphasis on the way in which grassroots, on-the-ground endeavors pressured the state to enforce laws and to provide support for victims. As is clear from the example of advocates in China using the media to educate the public about domestic violence, pressure from the bottom up has also created change. Similarly, the work of advocates in India who use dowry harassment laws to prosecute domestic violence generally, and of advocates in Haiti who ensure victims press charges to compel court recognition of the violence, demonstrate that change from the bottom up, using the law as a vehicle for that change, can also achieve results. While the grassroots movements vary in scope and in success, throughout the world we see private citizens working together to expose and reduce intimate partner abuse and violence against women, even against staggering odds. State efforts to end abuse have been focused mostly on the passage of laws, the practical provision of services (such as shelters), and high-level pronouncements about intimate partner abuse being unacceptable. What states have failed to grapple with are the structural, economic, cultural, and social problems that create an overarching system of patriarchy and misogyny that allows for that violence. Practices that perpetuate a lower status for women are not examined. To achieve real change, these practices will have be unearthed, recognized, critically examined, and rejected. This book is a step toward that conversation.

CONTRIBUTORS

Johanna Bond Washington and Lee University School of Law Lexington, Virginia United States

Leigh Goodmark University of Maryland Francis King Carey School of Law Baltimore, Maryland United States

Elizabeth Bruch University of Washington Tacoma Interdisciplinary Arts and Sciences Tacoma, Washington United States

Nancy Lombard Glasgow Caledonian University Glasgow School for Business and Society Glasgow United Kingdom

Donna Coker University of Miami School of Law Miami, Florida United States Molly Dragiewicz School of Justice Faculty of Law Queensland University of Technology Brisbane Australia Rashmi Goel University of Denver Sturm College of Law Denver, Colorado United States Julie Goldscheid The City University of New York (CUNY) School of Law Long Island City, New York United States

Ahjané D. Macquoid University of Miami Department of Educational and Psychological Studies Miami, Florida United States Rashida Manjoo University of Cape Town Department of Public Law Cape Town, South Africa UN Special Rapporteur on Violence against Women Kris McDaniel-Miccio University of Denver Sturm College of Law Denver, Colorado United States Trinity College Dublin, Ireland

Contributors

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Nia Parson Department of Anthropology Dedman College of Humanities and Sciences Southern Methodist University Dallas, Texas United States Nicole Phillips University of California Hastings School of Law San Francisco, California United States Université de la Fondation Dr. Aristide Faculté des Sciences Juridiques et Politiques Port au Prince, Haiti Robin Runge The George Washington University Law School Washington, DC United States

Nadera Shalhoub-Kevorkian The Hebrew University of Jerusalem Institute of Criminology, Faculty of Law School of Social Work and Social Welfare Mt. Scopus, Jerusalem Israel Nel Whiting Learning and Development Coordinator Scottish Women’s Aid Edinburgh United Kingdom Adrien Wing The University of Iowa College of Law Iowa City, Iowa United States

PART I

Pushing Law Legislating Gender Violence Worldwide

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Exporting Without License The American Attempt to End Intimate Partner Abuse Worldwide L E I G H G O O D M A R K   ■

I.  I N T R O D U CT I O N

“Violence against women is not a Russian problem but an international problem,” affecting women of all religions and classes, including, the British antiviolence advocate contended, some of the women in the room. “I always switch off when foreigners speak,” responded a Russian in the audience (Hemment, 2004). Although the visitor’s talk was meant to create cohesion among the group of Russian advocates, for some it had the opposite effect; the speaker became yet another Western feminist attempting to impress her ideas about combating violence against women upon an audience with different concerns. Foundations, judges, policymakers, and others from the Global North have long been involved in programs designed to foster growth of the rule of law around the world. The rule of law approach is designed to help revive law and order in states where legal structures and systems are not well developed or have been destroyed by conflict. Rule of law projects focus largely on criminal justice reform, often through the drafting and implementation of legislation and the training of police, judges, and lawyers. In recent years, many of these programs have focused their attention on violence against women. A  number of nations in the Global North, including the United States, have been active in these efforts. The exporting of U.S. norms to address violence against women happens in a number of ways. As law professor Cyra Choudhury (2011) explains, “[T]‌h is American-born reform package is exported through international human rights channels, and at transnational meetings among transnational elites with an aim to reform ‘local,’ ‘traditional’ societies” (p. 259). Exportation also happens through other venues. In the United States, government organizations like the State Department and the Justice Department, non-profits including the American Bar Association, and localities such as San Diego, California, have been exporting values, legal norms, and programmatic structures designed to address violence against women to nations throughout the world.

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For example, Congress funded the Open World Russian Leadership Program to instruct Russian officials on the functioning of democracy and civil society (Brackett, 1999). That instruction included bringing Russian justices of the peace to Maine in the summer of 2003 to study American approaches—both governmental and non-governmental—to addressing intimate partner abuse. The State Department regularly hosts visiting delegations of professionals from various countries, bringing in academics, prosecutors, law enforcement officials, and advocates to educate them on the United States’ response to violence against women. San Diego has been exporting its Family Justice Center model for a number of years. Family Justice Centers bring together a number of agencies working on family violence issues in one physical location and are often led by prosecutors’ offices. San Diego has also sent trainers all over the world to talk about the model. Canada, England, Jordan, Mexico, and Sweden have all started Family Justice Centers, and additional centers are planned for Colombia, Congo, the Czech Republic, South Africa, Finland, Guam, and a number of other countries. Delegations of judges and advocates from the United States regularly visit other countries to help them implement U.S.-style reforms. As retired Judge Alan Wilner of the Maryland Court of Appeals explained about his trip to Argentina, “When it comes to dealing with domestic violence, Argentina is 20 to 25 years behind the United States. They’ve put systems in place to prosecute criminally, but they don’t have all the processes and structures that we do. Our goal in visiting was to help them get from where they are to where they want to be” (House of Ruth, 2011, p. 4). Organizations like Minnesota Advocates for Human Rights are invited by local advocates to document the prevalence of intimate partner abuse in foreign countries and to provide information and advice about the development of intimate partner abuse law and policy. Those organizations make “best practices” recommendations to help those countries respond to the problems they catalog—recommendations that frequently mirror U.S.  law and policy on intimate partner abuse. Despite their best intentions to provide neutral, comparative advice to nations developing intimate partner abuse law and policy, U.S. organizations seem to rely heavily on the kinds of state-focused, law-based responses to intimate partner abuse that are characteristic of the United States’ approach to the issue. As anthropologist Sally Engle Merry notes, notwithstanding differences of “cultural background, political power, and history of each country” (Merry, 2006), criminalization of intimate partner abuse, including defining intimate partner abuse as a crime, training police to arrest, promoting no-drop prosecution policies, and training judges, is often the first initiative nations are encouraged to adopt. The American Bar Association’s Rule of Law Initiative (ROLI), for example, works in more than 40 countries to promote the rule of law. The ROLI believes that promoting the rule of law is the most effective long-term solution to many of the world’s most pressing problems, including poverty, conflict, corruption, and disregard for human rights. The ROLI’s guiding principles include working collaboratively with local governments and non-governmental organizations and providing information and models not just from the United States, but from other countries as well. Women’s access to justice is one of the organization’s focus areas. The ROLI has worked with a number of countries to pass and implement legislation creating civil and criminal responses to intimate partner abuse, helping to enact such legislation in Moldova and China

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and sponsoring a coalition in Georgia that advocated for a legal response—strategies heavily relied upon in the United States as well. II. T H E PR O B L EM O F E X P O RTAT I O N

These efforts reflect a belief that the United States has developed both a useful framework for understanding violence against women and an effective system for responding to violence against women. Such efforts also highlight the desire to share these ideas with the rest of the world, in hopes of stimulating the rule of law. But this uncritical exportation of U.S. intimate partner abuse law and policy is problematic for a number of reasons. United States’ law and policy on intimate partner abuse, particularly the criminal justice response, has not been effective in decreasing intimate partner abuse, in part because the United States has struggled to enforce its own laws on intimate partner abuse. The exportation of U.S. law and policy also ignores cultural context; in fact, changes to the law may not even be possible in some places. Finally, U.S.-style reforms ignore the larger structural problems that contribute to intimate partner abuse. The exportation of U.S. law and policy must be grounded in the belief that those laws and policies have been effective—that they have worked to decrease intimate partner abuse in the United States, have made women safer from abuse, or have changed men’s behavior with regard to violence against women. As political scientist S. Laurel Weldon reminds us, responsiveness (passing laws, providing funding, and the like) is not the same as effectiveness (Weldon, 2002). This faith in the efficacy of the U.S. criminal justice response to intimate partner abuse, though, is not borne out by the social science evidence, a fact that lawyers and judges promoting American legal reforms might be surprised to learn. The adoption and exportation of mandatory arrest policies provides a striking example. Mandatory arrest policies remove police discretion to arrest in cases involving intimate partner abuse; if police have probable cause to believe that intimate partner abuse has occurred, they are required to make an arrest. Mandatory arrest was lauded as the answer to lax police response to intimate partner abuse, to the miniscule number of arrests made by police, and to a police culture (supported in some jurisdictions by official training documents) that regarded intimate partner abuse as a private rather than a criminal matter, best handled by telling the abusive partner to “take a walk around the block until he had cooled down.” By the late 1980s, the majority of states in the United States had adopted mandatory arrest policies, a movement buoyed by social science research suggesting that arrest was linked to lower recidivism rates among perpetrators of intimate partner abuse. Later research, however, failed to replicate these early studies. Mandatory arrest laws increase the number of offenders arrested for intimate partner abuse, but research has not established a link between higher arrest rates and victim safety or perpetrator accountability. Moreover, the number of successful prosecutions has not increased in mandatory arrest jurisdictions; in fact, fewer cases are prosecuted in those areas. Nonetheless, when delegations travel to the United States to learn about intimate partner abuse, they meet with police officers touting the benefits of mandatory arrest and with governmental officers and representatives of non-governmental organizations who highlight the importance of mandatory and

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pro-arrest policies, pointing to the United States’ Violence Against Women Act, which requires that states adopt such policies to receive federal funding. Activist organizations routinely encourage police and prosecutors in other countries to adopt mandatory arrest and prosecution policies despite the lack of empirical support for their effectiveness. Moreover, the United States continues to have trouble enforcing the criminal laws it has enacted. As the Civil Society briefing papers prepared for the 2011 visit of the United Nations Special Rapporteur on Violence Against Women, Rashida Manjoo, note, police still fail to respond to intimate partner abuse calls, fail to make arrests in cases involving intimate partner abuse (particularly when complaints are lodged by low income women of color), and continue to encourage informal resolution of intimate partner abuse complaints. Prosecution continues to be rare, and conviction rates for crimes involving intimate partner abuse uneven, varying across jurisdictions from 17 percent to 89 percent (Bettinger-Lopez et al., 2011). In recent years, the United States Department of Justice has investigated police departments in Puerto Rico, New Orleans, Arizona, and Montana and found that gender bias pervades police responses to violence against women. Until very recently, the United States has also failed to provide adequate remedies for its own indigenous women subjected to abuse. As law professor Matthew Fletcher notes, historically, nonIndians who committed misdemeanor intimate partner abuse offenses on Indian reservations (often against Indian women) were all but immune from prosecution because of United States Supreme Court precedent limiting tribal governments’ authority to prosecute non-Indians and because of the federal government’s failure to pursue such cases (Fletcher, 2009). Advocates hope that recent amendments to the Violence Against Women Act enabling tribal courts to hear such cases will address this problem; it is worth noting, however, that opposition to this provision of the law was one reason that the United States Congress delayed passage of the law for a significant period of time. Other countries might well deem it presumptuous for advocates from the United States to instruct them on the handling of intimate partner abuse cases involving indigenous women given these failings. But even if the United States could claim that its legal response to intimate partner abuse was absolutely effective, there would still be ample reason to be cautious about exporting that response. First, the assumption that other countries should import U.S. law and policy on intimate partner abuse fails to consider the social and cultural contexts in which those laws and policies would be implemented. In collectivist societies, for example, exposure of the abuse to anyone outside of the family or community may be anathema; maintaining the support of one’s family and community may be far more important than seeking outside assistance, which can “arouse distrust, suspicion, and even hostility” within the community (Haj-Yahia, 2011  p.  338). United States–style legal interventions would not mesh easily with such a setting. Similarly, the insistence on separating women from their abusive partners found in both U.S. criminal and civil law is at odds with the realities of women’s lives in some countries. Using arrest and prosecution or protective orders to separate a woman from her abusive partner is particularly problematic in those countries in which that separation can lead to a loss of status and social power or economic hardship. In rural areas in China, for example, a woman is tied to her husband’s family; “if she sues her husband,” explains Sally Engle Merry, “the whole family will hate her. She has often lost ties with her natal family and has no place to

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go if she leaves her husband’s family” (Merry, 2006, p. 149). Adopting U.S.-style law and policy on intimate partner abuse, with its focus on separation, could be particularly harmful for such women. The U.S. focus on combating intimate partner abuse assumes that all women see intimate partner abuse as a primary concern, overshadowing women’s other priorities, like family or economic stability. United States-style criminal justice reform necessarily means a much greater level of involvement by the state in women’s lives. But in some places, and for some women, increasing state intervention into intimate relationships is not perceived as positive. Some states are directly responsible for the victimization of women; as Cyra Choudhury (2011) notes, “In India, women’s rights activists’ unalloyed faith in state intervention and legal reform as the means to improving women’s lives is questionable given that the state itself has been the perpetrator of forced sterilization programs and other coercive regulatory policies against women” (p. 312). Understanding that history, a recent report that women in India prefer turning to a non-governmental organization when they are abused is not terribly surprising (Kumari, 2012). Luz, a Chilean woman shot by her husband, reluctantly sought the protection of the state on three occasions (ultimately, to no avail); as anthropologist Nia Parson (2010) explains, “Each time, the memories of the state violence of the dictatorship and what it had done to her networks made her fearful and hesitant. She, like some of the other women I interviewed, did not see safety in the police, but danger” (p. 73). In one study of 52 countries, less than half of those surveyed in 23 countries expressed confidence in their country’s justice system (United Nations Entity for Gender Equality and the Empowerment of Women, 2011). Criminalization and other state-related interventions could also be used to restrict women’s rights in the name of their protection. This has been the case in Bangladesh, where concerns about human trafficking led state officials to prohibit single women from traveling across state borders. In such places, it is important to consider what restraints on police power exist before further empowering law enforcement to intervene in women’s lives. In some states, the justice system is used to perpetuate societal inequities between men and women; in those places, turning to the state to safeguard women’s rights is a dubious prospect at best. Changing the law may be an uphill battle in some countries. Lebanon’s Parliament, for example, began reviewing a draft intimate partner abuse law in 2010; opponents described the proposed legislation as “a Western idea designed to dismantle the Muslim family, rather than improve women’s status in the country” (The Daily Star, Lebanon, 2011). A version of the law passed on April 1, 2014; advocates decried changes, including the removal of the crime of marital rape, which undermined the strong initial draft. Despite high rates of intimate partner abuse, exacerbated by war and economic hardship in Iraq, only Kurdistan (in March 2012) has passed legislation addressing the issue; government officials in Iraq say there is little chance even of changing laws that give men the right to “discipline” their wives, let alone laws giving women subjected to abuse affirmative rights. In Pakistan, an intimate partner abuse bill was introduced to the Sindh Assembly in 2008; as of June 2012, that bill had still not been passed. A similar bill pertaining to the Islamabad Capital Territory was also stymied in Parliament. Opponents of the bill have charged that American funding is supporting the non-governmental organizations (NGOs) advocating for the bill.

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Even when the law is finally changed, it may have been so watered down by the political process that it fails to provide adequate protection. Advocates for women in Turkey expressed this concern following the introduction of a significantly weaker than expected law on intimate partner abuse in March 2012. In Liberia, even if legal reforms were passed, it is not clear how the Liberian people would know; Liberia’s Ministry of Justice has no system for compiling or disseminating laws. Relying on legal reform to combat violence against women, where legal change is slow to come, may leave women subjected to abuse without meaningful strategies to address that abuse. Put simply, changing the law often fails to account for structural problems that contribute to both the incidence of intimate partner abuse and to women’s experiences of abuse. Intimate partner abuse is tied to several structural factors, including persistent gender inequity, a history of conflict, treatment of indigenous peoples, health care provision, and economics. In post-conflict societies, human rights advocate Ceri Hayes (2007) argues, “the historical context of the conflict, the complicity of state and non-state actors in acts of violence and displacement and the impunity of the justice system all need to be taken into account when designing responses and interventions” (p. 7). In Cambodia, for example, the legacy of the Khmer Rouge’s genocide affects women’s experiences of intimate partner abuse. Women greatly outnumber men in Cambodian society and make up the majority of the country’s labor force. Men’s unhappiness with this challenge to traditional gender roles, coupled with women’s concerns that, if they leave an abusive partner, they will not be able to find another partner, may be combining to exacerbate intimate partner abuse. Changing the law does not alter these underlying structural factors. The relationship between economics and intimate partner abuse is a complex one. In the United States and in other countries, social science research has linked intimate partner abuse and men’s unemployment, suggesting that economic reforms promoting job creation could help mitigate intimate partner abuse. Economics also color women’s experiences of abuse. On an individual level, economically unstable women are less likely to leave abusive relationships or turn to the legal system for assistance when they rely on their partners for economic support. Low-income women may also be unable to access legal remedies. Law professor Fareda Banda (2005) describes the plight of African women subjected to abuse: Given that most women live in rural areas, and most (criminal) courts are based in urban areas, the issue of access becomes an important one. The travel costs are prohibitive, as are the costs of visiting the police station to give witness statements. The medical evidence necessary to prosecute may have been destroyed by the time a woman reaches a hospital or clinic which has qualified personnel. Indeed, the medical or health facilities may not exist at all, or if they do exist, may be in a parlous state. (p. 179) Reaching the police is a near impossibility for some women; a Ugandan woman described how she could try to raise the money for fuel and hire a boat to reach the police, but even if she were able to raise the money, the boat owners would refuse her passage to the police station, siding instead with her partner. Other Ugandan women have been asked to provide the police with travel money so that they can arrest suspects. “In the end,” she explained, “you simply give up and suffer quietly”

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(United Nations Entity of Gender Equality and the Empowerment of Women, 2011, p. 53). On a macro level, economic policy narrows the options of women subjected to abuse. Although the law might be able to help higher income women, Cyra Choudhury (2011) has argued that reforms that address the “skewed economic distribution that persists in South Asia” and the “global financial policies that disproportionately impact developing countries” are necessary to help alleviate the abuse of more economically vulnerable women (p. 305). Finally, societal gender inequities necessarily affect intimate partner abuse. Where men feel free to abuse women because of their subordinate status and communities refuse to condemn their behavior, governmental institutions are freed of the responsibility to address abuse. Laws and policies are meaningless without the societal will to enforce them. Moreover, Ceri Hayes (2007) contends, “Given that power relations which subordinate women may manifest themselves in very different ways depending on the context, it is clear that a one-size-fits-all approach to tackling [violence against women] is unlikely to succeed” (p. 6). The focus on legal change, particularly criminalization, obfuscates the need to consider the structural conditions that exacerbate violence against women. But advocates recognize that addressing the structural constraints women face when leaving abusive relationships is just as important as, if not more important than, changing the law. After a series of attacks on women in the summer of 2013, the Italian government enacted a number of punitive measures to address violence against women; Italian advocates countered that existing laws were adequate, if poorly enforced, and that psychological, legal, and financial assistance for women leaving abusive relationships was far more important than stricter laws (Povoledo, 2013). As a growing number of advocates in the United States critique the U.S.’s failure to consider structural reforms to alleviate intimate partner abuse, countries should be wary of importing U.S.-style law and policy without considering these broader issues. Nonetheless, efforts to export intimate partner abuse law and policy have been quite successful. A  sizeable number of countries have already enacted Western-influenced intimate partner abuse legal reforms. One hundred twenty-five countries have outlawed intimate partner abuse; two-thirds of the world’s countries have intimate partner abuse legislation of some kind (United Nations Entity for Gender Equality and the Empowerment of Women, 2011). But legislation outlawing intimate partner abuse is just a start; even after such laws are passed, U.S. groups continue to advise local advocates on implementation and on additional changes to law and policy, particularly in the criminal justice realm. In some countries, advocates for intimate partner abuse law and policy have found that passage of such laws can have unintended consequences, as they have in the United States, where the implementation of mandatory arrest laws led to greater numbers of women subjected to abuse being arrested at the scene of intimate partner abuse incidents. In Brazil, for example, a 2006 law tripling the sentences for intimate partner abuse may have led to a decrease in filings of intimate partner abuse complaints, as those subjected to abuse question the severity of the criminal penalties and fear losing the economic and co-parenting support of their partners (Moraes, 2011). Others have found that intimate partner abuse laws—even progressive laws like Zimbabwe’s, which includes physical, sexual, emotional, verbal, psychological,

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and emotional abuse within its ambit—have not proved as effective in curbing intimate partner abuse as they had hoped (Gumbo, 2012). Similarly, despite “sound legislation” and widespread government outreach, intimate partner abuse in New Zealand remains “surprisingly high” (Fenrich & Contesse, 2009, pp. 20–21). Indeed, in some countries, law may have exacerbated the problem of intimate partner abuse. As law professors Raquel Aldana and Leticia Saucedo explain, the criminalization of intimate partner abuse in Nicaragua has been particularly harmful. Because criminalization did not address the need for rehabilitation of perpetrators, because women had no means of accessing the legal system to enforce the criminal laws, and because the criminal system failed to focus on prevention rather than punishment, they argue, “[t]‌he problem of domestic violence in Nicaragua has arguably worsened as a result of the implementation of the adversarial legal system. Though appealing to international investors because of its familiarity and assurance of movement toward modernity, the adversarial system has created havoc at the local level, due to a lack of governmental resources” (Aldana & Saucedo, 2008, pp. 1283–1284). In fact, the biggest issue facing most nations, including the United States, is the problem of enforcement. Having passed criminal and civil legislation designed to eradicate violence against women, states are finding that those laws are not producing the intended effects. Lack of resources to implement laws hampers some efforts. Despite having some of the “world’s most progressive measures in place to tackle violence against women,” women subjected to abuse in Gujarat, India are forced to wait months for government assistance (Times of India, 2013). Some have found that changing the law has not changed the attitudes and actions of those entrusted with enforcing the law. The failure of police, prosecutors, and courts in localities worldwide to take violence against women seriously undermines state efforts to address the issue. As human rights advocate Soledad Larraín (1999) writes of Latin America: Protective measures are not always ordered quickly enough because magistrates wish to hear the “other” party, or the generally temporary measures may expire, leaving victims with no protection. These problems are compounded by many victims’ ignorance of the law and the reluctance of magistrates to proceed on their own. . . . Moreover, sanctions—when they do not involve incarceration—are difficult for welfare or specialized treatment agencies to enforce because of their limited capacities. Appropriate mechanisms to monitor protective measures have not been found, nor have alternative punishments that do not involve incarceration or fines. (p. 111) Similarly, attorney Sonja Hardenbrook (2003) explains, although Cambodia has progressive family laws and gender-neutral criminal laws that should safeguard women in relationships, “crimes that occur within the context of domestic violence are not investigated or prosecuted . . . custom prevents criminal law from being applied to assaults in the home” (pp. 730–732). Some states have found that larger structural issues, like economics, access to health care, and women’s status within the society continue to hamper implementation of the law; in other countries, the institutional capacity and/or funding to enforce the laws simply does not exist.

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Impediments to enforcement create conditions that enable men to continue to abuse their partners with impunity. Nia Parson tells the story of one such woman. Luz sought help from the judicial system three times after Chile implemented laws against intimate partner abuse in 1994. Luz experienced the police as incompetent and uncaring and faced judicial officials who resisted her requests for a restraining order and tried to dissuade her from lodging complaints. Luz requested a restraining order a final time in 2001, but the order did not arrive in the mail until after her husband shot and nearly murdered her before killing himself in 2002 (Parson, 2010). Afghanistan adopted laws against intimate partner abuse in 2009. In 2013, however, Human Rights Watch reported that not only were those laws not being enforced, but as a result of the failure to enforce existing laws, women were fleeing abusive relationships—and being imprisoned and jailed for the “moral crime” of running away from home. Western feminists continue, nonetheless, to insist that legislation, especially criminal law, is essential in stopping violence against women. The failure to embrace this worldview can have devastating consequences for nations dependent upon Western organizations for foreign aid. To be eligible for grant funding from some Western governments and foundations, recipients must profess their commitment to legal reforms to address intimate partner abuse and make securing legislation an integral part of their agendas. Intimate partner abuse laws in developing nations closely resemble Western prototypes in large part because of the influence and agendas of Western donors. This myopic focus on the passage and implementation of U.S.-style state-based solutions to intimate partner abuse is problematic not only in terms of effectiveness, but also because it can prevent the development of culturally contextual and community-based strategies. In Cambodia, for example, wives desperate to maintain their social position and economic support resist using separation-based laws and policies in intimate partner abuse cases. As researcher Rebecca Surtees (2007) writes, “Agency as manifested in the West—divorce, separation, criminal charges, restraining orders—appears neither desirable, nor particularly plausible, from a legal, economic, or social perspective” (pp. 62–64). What Cambodian women need is a process that addresses the violence without terminating their relationships. The Cambodian Women’s Crisis Centre developed such a process, creating contracts between wives subjected to abuse and their partners. In exchange for the husband’s promise to end his abuse, the wife promises to return to the relationship; the contracts provide for damages should the husband fail to keep that promise, which can include “husband’s relinquishment of the family home; financial support; custody of the children; or a pledge of uncontested divorce. . . . In the event that the husband violates the CWCC agreement, the victim has a legally binding document which will be of assistance when filing a complaint for divorce in court” (Merry, 2006, p. 157). The document allows the wife to maintain her status and return home on her own terms and provides her with protection should it fail to curb the violence. Given the aversion of Western feminists to the use of mediation and other forms of conflict resolution in cases involving intimate partner abuse, it seems unlikely that projects like this one would be sanctioned by Western funders. In India, women’s cooperatives developed a system of “nari adalats” (women’s courts), bodies made up of elected representatives from across castes that dispense legal advice and settle marital disputes. The bodies lack legal authority, relying

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instead on “pressure and shaming,” using “their knowledge of local practices, customs, and social networks to gather evidence and negotiate agreements. . . . Their authority is limited, and they seem to be most successful in helping women arrange divorces and escape violent marriages, particularly among poor families” (Merry, 2006, p. 157). Studies of the nari adalats and similar programs show that they have been successful in bringing intimate partner abuse into the open and in empowering women who use them. Similarly, many Cambodian women rely on traditional dispute-resolution systems, known as somroh-somruel, to address intimate partner abuse and believe that the community pressure brought to bear through that system is more effective in enforcing decisions made through that process than law enforcement would be. But given their failure to rely on the state for enforcement, such programs are likely to be met with skepticism by Western feminists convinced of the need for a state response. Moreover, there are community-based strategies that the United States has not implemented in any meaningful way. Those strategies are unlikely, as a result, to have the support of United States funders. One such strategy is providing reparations for women subjected to abuse. Because the United States’ approach to addressing intimate partner abuse focuses primarily on safety through separation and holding men who abuse accountable through criminal punishment, other kinds of remedies, including economic remedies, are often ignored. The Civil Society briefing papers submitted to the United Nations Special Rapporteur on Violence Against Women in advance of her 2011 mission to the United States note that: reparation is one of the most underdeveloped areas of the [violence against women] due diligence standard. . . . The United States is no exception to the pattern of weak reparation schemes for victims of [violence against women]. In many ways, American conceptions of justice create additional hindrances to achieving the transformative remedies and grassroots-developed reparations that would be most helpful to victims. (McRaith et al., 2011, p. 21) Communities seeking to implement reparations programs might find themselves stymied for lack of funding and support from Western donors. The United States’ response to intimate partner abuse relies heavily on the power of the state in ways that leave little room for innovation and development of community-based strategies. As Sally Engle Merry notes, such reliance on the state is problematic in two ways: first, because non-state customs are viewed with suspicion, as harmful traditional practices that enabled violence against women to flourish, and second, because the law leaves little room for alternative conceptions of justice that rely less on state power (Merry, 2006). American exportation of state-based norms on intimate partner abuse law and policy may be reinforcing these beliefs and crowding out innovative policies and practices that could better address intimate partner abuse in community context. III. B EC O M I N G I M P O RT ER S

Given that opportunities for exporting U.S.  intimate partner abuse reforms may be waning, now seems a good time to ask whether the United States might benefit

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from beginning to study, and perhaps import, ideas about addressing intimate partner abuse from other parts of the world. Such importation should only proceed thoughtfully, critically, and with attention to our own cultural and legal context. But with a growing chorus of voices seeking alternatives to the current legal response to intimate partner abuse, with its heavy emphasis on criminalization, a logical next step is to explore other strategies and determine how we might implement them in the United States. Advocates in the United States are contemplating the future of the battered women’s movement; information from other countries could inform that conversation. One avenue that policymakers in the United States could consider is the human rights approach. The vast majority of the nations in the world (with the exception of the United States, Somalia, and a handful of other countries) have ratified the Convention to End Discrimination Against Women (CEDAW). The CEDAW, which has been called an international bill of rights for women, requires signatory nations to ensure equality between men and women in all facets of life. That duty extends to the protection of women from intimate partner abuse. States have also adopted additional human rights–based protections for women subjected to abuse, like the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence. The Convention, in addition to requiring states to provide civil and criminal remedies, stresses the importance of prevention, awareness-raising, education, training, compensation, empowerment, and economic independence for women subjected to abuse. Since adopting the CEDAW, a number of nations have passed legislation addressing violence against women. The countries that adopted legislation after ratifying the CEDAW seem to have adopted a more holistic approach to the problem of violence against women, looking beyond the dynamics of individual relationships to the structural problems that foster intimate partner abuse and make it so difficult to eradicate. The human rights approach has limitations, in part created by its insistence upon state-based responses to intimate partner abuse. Many states have turned to prosecution and punishment (rather than prevention or provision of redress) to fulfill their obligations to end violence against women. Similarly, the United Nations’ Model Framework for addressing violence against women relies heavily on criminalization, punishment, and mandatory policies. Without careful monitoring, the language of human rights and due diligence could be used to justify a state’s unwanted intrusion via prosecution into a woman’s life. Moreover, even those countries that have adopted a human rights approach have found that “legal culture and substantive and procedural barriers often prevent direct implementation” of human rights norms (Soohoo, 2014). Finally, as law professor Deborah Weissman warns, where human rights values have been developed around the norms of more powerful, formerly colonialist powers, there is a danger of recreating a “colonial present” as well as a real question as to whether such values can be meaningful in the less powerful states that were excluded from the development of those norms (Weissman, 2004, 2009). Nonetheless, the human rights approach offers the potential for a different way of understanding intimate partner abuse—committed to addressing the root causes of intimate partner abuse, to correction as well as prohibition of intimate partner abuse, and to the active participation of rights holders—people subjected to abuse.

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Some have suggested that it is hypocritical for the United States to export its law and policy on intimate partner abuse given its failure to ratify the CEDAW and other international instruments protecting women’s rights, as well as its cramped conception of the causes of intimate partner abuse. While some fear that the United States has grown resistant to the incorporation of human rights norms because they “encroach too far on state sovereignty” (Peerenboom, 2005, p. 824), communities across the United States have passed resolutions recognizing that freedom from intimate partner abuse is a basic human right and asking how governments will safeguard that right. Looking to the efforts of states operating under the human rights framework could provide those answers. Importing ideas from other countries might also help us to think about the ways in which globalization is shaping violence against women. Gender studies professor Sharmila Lodhia has argued that the narrow conceptions of “domestic” and “violence” in U.S. law prevent the United States from recognizing and redressing a variety of forms of violence against women that challenge existing understandings of what is domestic and what constitutes violence. Lodhia describes the plight of women experiencing transnational abandonment, which occurs when Indian women are married to Indian nationals, who then abandon their wives (in the United States or in India), initiate divorce and custody proceedings, fail to pay child support, and leave their wives to be emotionally and physically abused by their in-laws. Lodhia notes that this phenomenon is evidence not only of “the growing interconnectedness between the United States and India . . . but also the new configurations of violence” this relationship has engendered (Lodhia, 2010, p.  707). Lodhia argues that the growing problem of transnational abandonment provides an opportunity to rethink “domestic violence”—but that the term as embodied in U.S. law is too narrow to adequately address the problem she describes, because it fails to include abandonment as a form of abuse. She urges the United States to look to India’s Protection of Women from Domestic Violence Act, which defines abuse much more broadly and encompasses abandonment, desertion, and forced exclusion from the home. The United States could also look seriously at community-based responses to violence against women being tested in other countries. Countries are experimenting with mediation, public shaming, community courts, “peace committees,” and a number of other strategies that could inform efforts to engage communities in combating intimate partner abuse in the United States. As Tara Urs notes about traditional dispute resolution processes in Cambodia, rather than serving to shield intimate partner abuse from public scrutiny, the community-based process of somroh-somruel makes the community much more likely to be aware of both the dispute and the resolution (Urs, 2014). Investigating such practices could spark efforts to develop culturally appropriate community-based work here. The United States has been focused on exporting its ideas on the optimal legal regime for addressing violence against women for more than 20  years. We have shared our values, structures, and methods with the world. What we have not done, however, is explore the work that other nations have done to eradicate violence against women. We could learn much from the efforts around the world, regardless of whether those efforts are considered “successful” (always being careful to ask who defines success and how). This book is a first step in that direction.

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Gaps and Challenges in States’ Responses in the Quest to Eliminate Violence Against Women A Global Perspective R A S H I D A   M A N J O O   ■

I.  I N T R O D U CT I O N

Violence against women is a pervasive and widespread human rights violation that affects one in three women globally (World Health Organization, 2013). It is generally rooted in multiple and intersecting forms of discrimination and inequality, and is a reflection and reinforcement of the discrimination, inequality, subordination, and oppression to which many women are subject, in public and private spaces. Violence against women cannot be fully understood without also considering interpersonal, institutional, and structural manifestations of violence that form the reality of women’s lives in many instances. Furthermore, violence is a barrier to the realization of numerous human rights, including those linked to the effective exercise of citizenship rights. In June 2013, the United Nations Special Rapporteur on violence against women, its causes and consequences, submitted a report to the Human Rights Council on the issue of State responsibility for eliminating violence against women (Manjoo, 2013). Member States and civil society organizations provided information, particularly on the interpretation, application, and effectiveness of the measures being undertaken by States in their efforts to eliminate violence against women. Using the principle of due diligence, as articulated in General Recommendation 19 of the Convention on the Elimination of All Forms of Discrimination against Women and the Declaration on the Elimination of Violence against Women, the report provides

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an overview of the existing practices, which include interpretation and basic guiding elements in respect of State responsibility to act with due diligence. The report concludes that for a State to ascertain what constitutes effective fulfillment of its obligations, it is imperative for States to create an assessment framework which includes two categories: individual due diligence, which States owe to individual victims of violence, and systemic due diligence, which requires States to create a functioning system to eliminate violence against women. This dual assessment allows for a more comprehensive and in-depth assessment by a State of its actions or inactions to address violence against women. Furthermore, due diligence also requires States to hold accountable those who fail to protect and prevent, as well as those who perpetrate, violations of human rights of women. The following sections of this chapter include a general discussion on the historical developments related to the understanding of violence against women as a human rights issue; the developments relevant to the doctrine of State responsibility to act with due diligence; and a synopsis of the findings emanating from regional consultations that were held to gather information on this issue. I I. H I STO R I CA L D E V ELO PM EN TS O N V I O L EN C E AG A I N ST WO M EN AS   A H U M A N R I G H TS I S S U E

Prior to and during the designated United Nations Decade for Women (1975 to 1985), the issue of violence against women generally, and more specifically domestic violence, was high on the agenda of women’s rights activists. Advocacy at the Mexico and Copenhagen World Conferences on Women served as a catalyst for the 1985 General Assembly resolution on domestic violence (United Nations General Assembly, 1985). The 1985 Third World Conference on Women in Nairobi, and the 1986 expert meeting in Vienna the following year, further reinforced the global nature and concern about violence against women. In May 1991, the Economic and Social Council (ECOSOC) adopted a resolution on “Violence against women in all its forms” upon the recommendation of the Commission on the Status of Women (United Nations General Assembly, 1993). The ECOSOC recommended the development of a framework for an international instrument that would explicitly address violence against women. It also urged Member States to adopt, strengthen, and enforce legislation prohibiting violence against women and to take appropriate administrative, social, and educational measures to protect women from all forms of physical and mental violence. The explicit recognition by the United Nations of violence against women as a human rights violation occurred at the 1993 World Conference on Human Rights in Vienna. The Vienna Declaration and Programme of Action noted that “the human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights” (United Nations World Conference on Human Rights, 1993). Further, the document emphasized that the elimination of violence against women in all areas of life, public and private, was central to the attainment of women’s human rights (para. 38). Accordingly, the document outlined the steps necessary for the realization of these goals. These steps included integrating the human rights of women “into the mainstream of United Nations system-wide activity” (para. 37) through the treaty monitoring bodies, the effective use of existing

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procedures, and the creation of new procedures to “strengthen implementation of the commitment to women’s equality and the human rights of women” (para. 40). In the same year, the General Assembly adopted two seminal resolutions. One set out the Declaration on the Elimination of Violence against Women (DEVAW), as recommended by the ECOSOC. The other established the mandate of the Special Rapporteur on violence against women, its causes and consequences, as recommended by the Commission on Human Rights. III. STAT E R ES P O N S I B I L I T Y TO ACT W I T H  D U E D I L I G EN C E

Generally, due diligence is understood as including a duty of care by a State to its people to prevent and protect against human rights violations and to punish and compensate for harms done in violation of that duty. Furthermore, due diligence is used as a standard to evaluate the responsibility of the State for failures to promote and protect human rights. Farrior and Clagett argue that “over the course of the last century, States have been found responsible under a due diligence standard for inaction or inadequate action in a range of situations, including failure to provide police protection to prevent private violence, failure to investigate or to investigate adequately killings by private individuals, and failure to punish adequately or punish at all” (Farrior & Clagett, 1998). Under international human rights law, the actions of non-State actors can lead to a finding of State responsibility for violations when the State fails to exercise an expected duty of care. States have a responsibility to create and implement measures, including laws, policies, and programs, “to control, regulate, investigate and prosecute actions by non-State actors that violate the human rights of those within the territory of that State. These actions by non-State actors do not have to be attributed to the State, rather this responsibility is part of the State’s obligation to exercise due diligence to protect the rights of all persons in a State’s territory” (McCorquodale & Simons, 2007). A State may incur responsibility where there is a failure to exercise due diligence to prevent or respond to certain acts or omissions of both State and non-State actors. The last 25 years has seen developments in legal rules governing State responsibility in general and due diligence in particular regarding the obligations of States to protect individuals within their territory or jurisdiction from human rights violations.1 Due diligence is generally described as an obligation of conduct, rather than results. It encompasses an assessment not only of acts, but also of omissions, as well as the need for formal legal and policy frameworks to be effective in practice. The due diligence standard serves as a tool for rights holders to hold States accountable, providing an assessment framework for what constitutes fulfillment of a State’s obligations and for analyzing the State’s actions or omissions. The duty to act with due diligence is non-derogable and requires application of both non-discrimination and good faith principles. Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women refers to the obligation of States to pursue by all appropriate means, and without delay, a policy of eliminating discrimination against women. There is no specific provision pertaining to a State’s responsibility to act with due diligence in eliminating violence against women. In an attempt to address the defect, the

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Committee on the Elimination of Discrimination against Women issued interpretative guidelines in the form of two general recommendations. General recommendation No. 12 (1989) highlights the obligation of States to protect women from violence in the family, workplace, or any other area of social life under articles 2, 5, 11, 12, and 16 of the Convention. Interpreting within specific articles in the Convention a cumulative prohibition on gender-based violence, the Committee recommended that States include in their periodic reports information concerning legislative and other measures to protect women from violence, the existence of support services for women, and statistical data on the prevalence of all forms of violence against women. In general recommendation No. 19, para. 6 (1992), the Committee stated that “gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.” The Committee reiterated “that discrimination under the Convention is not restricted to action by or on behalf of Governments” and that “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation” (para. 9). Article 4(c) of the Declaration on the Elimination of Violence against Women asserts that States must “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether they are perpetrated by the State or by private persons.” The Committee against Torture has recognized in General Comment No. 2 that the State will be responsible when it has reasonable grounds to believe that acts of torture are being committed and it fails to exercise due diligence to prevent, investigate, prosecute, and punish the perpetrators. The mandate of the United Nations Special Rapporteur on violence against women has for two decades observed and paid attention to the responsibility of the State in general and to the principle of due diligence in particular. It examined the concept of due diligence in 1999, 2006, and again in 2013 (Coomaraswamy, 1999; Ertürk, 2006; Manjoo, 2013). All three reports explain that the due diligence standard requires a holistic view of State responsibility to address violence against women in law, policy, and practice. The standard also requires taking into consideration other principles of human rights and gender equality in meeting its obligations. The principle of non-discrimination requires States to use the same level of commitment in relation to prevention, investigation, punishment, and provision of remedies for violence against women as they do with regard to other forms of violence. A 2011 report of the mandate on violence against women highlighted the lack of State accountability for structural factors, such as sex and gender inequality and discrimination, that create environments that are conducive to acts of violence against women (Manjoo, 2011). The UN Secretary-General has endorsed the principle of State responsibility to act with due diligence in the context of violence against women (United Nations General Assembly, 2006). Furthermore, resolutions from the Human Rights Council and General Assembly have called on States to “exercise due diligence to prevent and investigate acts of violence against women and girls and punish the perpetrators.”2 In its resolution 1325 (2000), the Security Council emphasized the responsibility of States to end impunity and hold accountable those responsible for war crimes concerning sexual and other types of violence against women. At the regional level, the development of specific legally binding instruments, or provisions in other instruments, regarding violence against women,

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has strengthened the existing human rights frameworks in the African, the Inter-American, and the European human rights systems. The 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará) in article 7(b) holds that States must apply due diligence to prevent, investigate, and impose penalties for violence against women. The Council of Europe Convention on preventing and combating violence against women and domestic violence States in article 5(2) that “parties shall take the necessary legislative and other measures to exercise due diligence to prevent, investigate, punish and provide reparation for acts of violence covered by the scope of this Convention that are perpetrated by non-State actors.” The 2005 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) draws heavily on international law instruments, particularly the Declaration on the Elimination of Violence against Women and the Beijing Declaration. Article 2 addresses the elimination of all forms of discrimination through appropriate legislative, institutional, and regulatory measures. The due diligence standard is incorporated in several provisions, including in article 4, para. 2(a), which calls on States to enact and enforce laws to prohibit all forms of violence against women, including unwanted or forced sex, whether the violence takes place in private or public. Article 4, para. 2(b) broadly directs States to adopt any other measures necessary to ensure the prevention, punishment, and eradication of all forms of violence against women. The jurisprudence of both international and regional human rights monitoring bodies highlights a number of clear elements of the doctrine of State responsibility to act with due diligence. These include, but are not limited to, the promotion of the right to a life free from violence; prevention of violence against women; investigation of acts of violence; prosecution of cases of violence; punishment for perpetrators; protection for victims of violence; the provision of effective redress measures including reparations; addressing the root causes of violence; and addressing the systemic failures in redress measures. I V. OV ERV I E W O F FI N D I N G S FR O M R EG I O N A L C O N S U LTAT I O N S

The mandate on Violence against Women convened or attended five consultations in different regions. 3 These included two in the sub-Saharan Africa region (hereafter African region),4 and one each in the Middle East and North Africa region (hereafter MENA region), 5 Pacific Islands region (hereafter Pacific region), 6 and Central and South-Eastern Europe (hereafter European region).7 The objective of such consultations was to gather information from civil society actors on how State responsibility to act with due diligence was understood, interpreted, and implemented in their country contexts. The measures undertaken by governments in their attempts to address the problem of violence against women were discussed. They included legislative measures, such as the ratification of international human rights instruments, the harmonization of national legislation, or the adoption of specific legislation on violence against women; institutional and policy measures, such as the introduction of specialized mechanisms to investigate and prosecute violence against women, developing national action plans, providing support and services

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to victims, and enhancing cooperation and information-sharing between authorities and service providers; and awareness raising and capacity-building activities, including gender training for civil servants, campaigns aimed at raising awareness on violence against women, and the integration of a gender equality perspective into policies and programs. Some commonalities and differences are highlighted in the following sections. These comparisons focus on the general country context regarding women’s human rights; the manifestations of violence against women; the law, policy, and institutional context; data collection and analysis aspects; service provision in the different regions; and the fulfillment of States’ responsibility to act with due diligence in their efforts to eliminate violence against women. A.  General Country Context with Respect to Women’s Human Rights Many regions generally embrace strong patriarchal traditions and practices, and to differing degrees, women face de facto discrimination in numerous aspects of their lives. In the MENA region, for example, family laws are usually based on the provisions of religious laws. Men are considered to be the head of the household, to whom women owe a duty of obedience. Failure to obey men can result in violence, which is then justified on the basis of religion. In the European region, discrimination is reflected in stereotypes about the proper role of women in society, in practices such as victim blaming when women report violence, in the promotion of mediation of disputes in the interests of family unity, and the lack of accountability for acts of violence against women. Many States in the region continue to use a “women as victims” approach rather than an accountability and empowerment approach when dealing with the issue of violence against women. Violence against women in the Pacific Islands region occurs in the context of patriarchal societies that are experiencing a growth of societal conservatism, which is increasing the silencing of women victims of violence. Many women live in close-knit small communities, and reporting violence and pursuing legal and other remedies is particularly difficult. Victims face stigmatization as well as constant pressure from the perpetrator, his friends, or family members on both sides, either not to report or to withdraw complaints that are filed. In addition, for most women living in rural areas in the region, there are minimal government services, including police, courts, and health services. Across the African region, men are often considered the head of the household, with women being primary caretakers of children. In most States, civil, customary, and religious law regimes exist with respect to personal and family law. This often gives rise to discriminatory practices, including legalized polygamy, compulsory bride price, women being seen as the “property” of the husband, early marriage, and discriminatory inheritance and widowhood practices. B.  Manifestations of Violence Against Women Domestic violence broadly, and spousal violence specifically, was identified as the most common manifestation of violence against women in all the regions under

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discussion. Sexual violence in the family, in the context of marriage, is generally not recognized as violence, either at the State or non-State level. Female genital mutilation (FGM) and trafficking of women and girls is prevalent in some countries. Violence against women in conflict and post-conflict situations has not been sufficiently addressed within any region. In the MENA region, women who have been raped are sometimes forced by their families to marry the perpetrator, either due to legal provisions or arguments linked to family honor. In the Pacific region, concerns were raised about the growth of sex tourism and prostitution, which is driving an increase in the trafficking of women and girls. This situation is further exacerbated due to the demands of expatriate workers in the extractive and other industries. In the African region, sexual violence, including rape, sexual abuse, and incest, is a problem impacting both women and girls. Violence against women who are categorized as “witches” is also a problem in some countries in the African and Pacific regions. C.  Laws, Policies, and Institutional Responses In terms of relevant international law, all States have ratified the Convention on the Elimination of All Forms of Discrimination against Women, but the vast majority of countries have made reservations to crucial articles. Many States have also ratified regional human rights instruments, including those that are specific to women’s human rights. Most countries’ constitutions have provisions on equality between the sexes, equality before the law, and/or the outlawing of sex-based discrimination. Many States have included provisions concerning the prohibition of slavery, forced labor, and torture and inhumane treatment. Some provide for guarantees to the right to life, personal liberty, health care, education, legal services, and due process. Some States have explicit provisions guaranteeing the right to recognition and practice of religion, custom, and tradition, including customary law. In the MENA region, most constitutions provide for the supremacy of Islamic Sharia laws, particularly in family law matters. Some African States permit de jure and de facto inequality and discrimination through the exemption from equality provisions in personal status/family laws that emanate from customary and religious laws. In the majority of Pacific Island States, international law obligations must also be enacted at the domestic level to be enforceable. The failure to adopt domestic laws is the norm in the region, which results in States not meeting their international law commitments in regard to women’s human rights. National level legislation on violence against women ranges from specificity on certain forms of violence to the general application of criminal laws to violence against women. In the MENA region, the vast majority of States do not have any specific legislation protecting women from gender-based violence. In many countries, domestic violence is not a punishable offense, and where it is, prosecution is limited to crimes in which there is visible injury. Severe acts of violence, including murder, carry no punishment or extremely light sentences, when crimes are committed in the name of “honor.” Some States provide for the bringing of private suits for domestic violence, whereas others have begun to abolish discriminatory provisions in criminal statutes. Laws that criminalize sexual relations outside of marriage

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carry severe penalties, including stoning, lashes, or the death penalty. Penalties for such acts are higher for women than for men. Rape, abduction, prostitution, and sexual offenses are punishable in the penal codes of most States. In many countries, rape is not punishable if the perpetrator marries the victim. Marital rape as a specific offense is not criminalized in the MENA region. Sexual harassment is not a crime in most countries, although some reforms have been undertaken in North African countries to criminalize such acts. A few States have passed specific legislation to prohibit sex trafficking. Female genital mutilation is criminalized in a few States, but sometimes in limited circumstances, such as where it would “result in prejudice” or if it is not carried out in health institutions. Most countries in the European region have laws that specifically address domestic violence. The violation of these laws is an offense, either at a criminal or an administrative level. Although domestic violence is punishable as an offense, the sentences are often lower both in law and in practice, as compared with those imposed for comparable crimes involving people who are not involved in intimate relationships. In some instances, these laws do not cover all relationships, and thus fail to recognize non-cohabiting or same-sex relationships. In some countries, violence against women, unlike other forms of violence, requires a private prosecution. All States provide for the granting of protection orders by the courts. Penal codes in some countries set out provisions for the punishment of perpetrators for numerous manifestations of violence, including physical and sexual violence, war crimes, exploitation, trafficking, and prostitution. Many countries have specific laws and policies on human trafficking. Some States in the Pacific region have adopted laws dealing specifically with domestic violence. These laws criminalize domestic violence and provide for restraining orders and injunctions. Other States have had laws in draft form for a long time (up to five years in one instance), and have yet to pass those laws. In States without specific laws on violence against women, restraining orders can be obtained through the use of other laws. This process can be time consuming and expensive and is applicable only to certain relationships or based on the status of the relationship (for example, available only on the breakdown of a marriage). The criminal codes of all Pacific States prohibit offenses against the person, including assault and battery, bodily harm, and murder. Rape and other sexual offenses are prohibited across all States, but marital rape is not criminalized in any of these countries. Prostitution, pimping, trafficking, and other crimes “against morality” are prohibited across the region. A few States do have specific human trafficking laws. In many States, customs and traditions are expressly taken into account when determining the guilt and sentencing of perpetrators, which often leads to significant reductions in sentences. In the African region, domestic violence is increasingly covered by specific legislation, including criminal remedies and protection orders. In some instances, the nature of the relationship between the perpetrator and the victim is broadly defined, recognizing relationships other than those linked to intimate partners. Some States specifically prohibit and criminalize other forms of violence, including harmful customary practices. Other States rely on provisions of the penal code to address all forms of violence against women. Rape is prohibited across all States, with definitions ranging from broad (coercive circumstances) to narrow and outdated (requiring penile penetration of the vagina). Other sexual offenses,

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including sexual and indecent assault, attempted rape, abduction, defilement, indecent assault, and incest, are criminalized across the region. States have begun to improve criminal procedures, allowing cases to be held in camera, abolishing corroboration requirements, and preventing cross-examination on previous sexual history. Also, the human immunodeficiency virus (HIV) status of the perpetrator of sexual violence is considered an aggravating factor in some States. There is specific legislation regarding human trafficking in many States, with some States including such provisions in their penal codes. Prostitution and other forms of sexual exploitation are often prohibited in the region. In many States, sexual harassment is prohibited under employment legislation and is criminalized in some instances. Female genital mutilation is prohibited in some States, but sometimes only for girls under the age of 18. To differing degrees, policies and institutional measures in the regions under review include national strategies, national action plans, protocols, and specialist units and mechanisms. Most States in the MENA region do not have a specific national strategy or a national action plan on violence against women, gender-based violence, or gender equality. A  few States have general national plans that include a reference to domestic violence or violence against women. Some States have multidisciplinary policies on violence against women, which include protection, prevention, and education measures as well as monitoring provisions and operational plans. However, these policies are not adequately funded and remain largely unimplemented. Police practices reflect inadequate training. Married women who report violence face the risk of repudiation (divorce) by their husbands and further violence within the extended family. In cases of “honor” killings, police do not investigate the cause of the killings and instead close files as “accidental deaths.” When acts of violence do reach the courts, it is very rare for perpetrators to be convicted, and the burden of proof is often placed on victims. Most European States have national action plans and strategies to foster gender equality. However, fewer States have specific national action plans with regard to violence against women. In contexts in which there are such plans, they tend to focus on inter-sectoral approaches to domestic violence. Often insufficient funding is allocated to such plans, and monitoring and evaluation mechanisms are insufficient or non-existent. Many States also have specific programs for human trafficking, with a focus on the protection of victims. Some countries have specific institutional bodies to deal with particular manifestations of violence, primarily human trafficking, and less commonly, domestic violence. Protocols for police functioning have been adopted to try and ensure uniform standards. Many policies mandate the cooperation of different State organs responsible for addressing violence against women, but these organs do not collaborate substantively at the national or local levels. Some frontline services, such as shelters, and other institutions, such as Centers for Social Work, focus on encouraging family reconciliation; they are not equipped to deal with all forms of violence. These agencies promote mediation in situations of violence. They fail to report violence and to provide adequate safety measures, including the removal of perpetrators from the home and the provision of shelter services for women and their children. Police often fail to comply with the obligations set out in national legislation and policy. They promote mediation, do not record all complaints that they receive, make

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dual arrests, and fail to investigate crimes. There is an overall lack of accountability and minimal sanctions for State officials who breach their obligations. There is insufficient funding provided by States for services, preventive programs, financial assistance, and other resources for addressing violence against women. The financial crisis has led to an increase in cuts to funding for welfare services generally, but particularly for addressing violence against women—in a context in which funding was insufficient to start. In the Pacific region, some countries have national plans of action that broadly address women and development and/or gender equality, with many including violence against women as a subsection of the overall policy. Only one country (Kiribati) has a specific national plan on violence against women. Most of these plans are extremely broad and do not include specific interventions. There is no money provided for their implementation, and no monitoring and evaluation provisions are included. Ministries and departments that are mandated to implement these plans do not have the human and financial resources for effective implementation. Some governments are corrupt and inefficient, and their focus is often on formal compliance, rather than on developing sustainable and meaningful interventions. Regulations providing guidance to officials and service providers are minimal or mostly informal, usually with non-governmental organizations (NGOs) providing the guidance. Specialist police units, including those set up to deal with violence against women, are underfunded and are not available full time. Prosecutors rarely proceed with cases, despite no-drop policies. When such cases are prosecuted, they are primarily brought in lower courts with limited sentencing authority. Magistrates are poorly trained in both the law and on violence against women, and they often push for reconciliation in such cases. Mitigating circumstances, both based on law and custom, are used commonly and inappropriately to lower sentences for perpetrators. Protection orders are rarely granted, and magistrates and judges demonstrate patriarchal views and perpetuate victim-blaming and victim-shaming stereotypes. Access to services, legal remedies, and multi-sectoral approaches are weak. These problems are exacerbated by the geographical complexities of the countries in the region. Some States in the African region have national policies, action plans, and programs on equality, domestic violence, trafficking, HIV/AIDS, or preventing and responding to gender-based violence. The trend, however, is to focus national plans on the advancement of gender equality, with violence against women being included as one element of such plans. Ministries in many States provide training for a range of stakeholders, including those in law enforcement, the judiciary, health and education, community leaders, and women and girls. Many of these policies were developed with significant support from and in collaboration with NGOs and international organizations. There are ministries and/or departments that deal with gender or women in the majority of States. Many of the ministries are understaffed, under-resourced, and have insufficient capacity to carry out the tasks allocated to them, however. Some States have committees and national agencies that deal with violence against women, some of which include collaboration between civil society and government. Oversight mechanisms include human rights/gender commissions, ombudspersons, and women’s observatories in the region. Many suffer from a lack of funding and support from the State, and some have been politicized through appointment processes.

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D.  Data Collection and Analysis In many States, no national surveys have been conducted regarding the manifestations and prevalence of violence against women. Data collection by service providers, including the police, hospitals, court systems, and NGOs, is extremely poor. In those States where surveys have been carried out, data collection has focused on the prevalence of domestic violence. These surveys do not necessarily analyze all manifestations of violence against women, the implementation of laws and policies, the impact of interventions, the performance of the relevant public sector, the attitudes, behaviors, and views of the public on violence against women, or the social and economic costs of violence. Gender disaggregation or disaggregation of data on the basis of membership in a vulnerable group is rare. Data analysis is sometimes biased, highlighting selective statistics such as the number of cases resulting in conviction, for example, without any comparison to the number of reported cases overall. Across the Pacific region, externally funded Family Health and Safety Surveys have been undertaken in some countries. The findings highlight the high rates of family violence against women and girls in the region, as well as the attitudes, behaviors, and experiences of women, men, and young people. The surveys have provided significant momentum for activists, NGOs, and others to advocate for increased legislative and other support for victims of gender violence, particularly intimate partner violence. Other forms of violence, however, including rape, sexual harassment, and violence outside the home, are not analyzed or addressed. Many African States rely on NGOs and international agencies to provide them with data regarding the prevalence and manifestations of violence. E.  Service Provision The frontline services available in many regions, in most instances and to differing degrees, include the provision of shelter and hotline services, legal services, and psychological counseling and support. In many States, however, the primary service providers are NGOs who are largely funded by external donors. Such funding is usually project-based and does not guarantee sustainability for NGOs in the long term. Where States do support NGOs’ efforts, it is often on a much smaller financial scale, and it is sometimes perceived as money being given by the State in return for control over the activities of the NGO service providers. Insufficient resources and the lack of capacity result in the lack of access to services on a full-time basis, the lack of long-term assistance, and the lack of minimum standards related to the provision of services. The geographical challenges faced by States in the Pacific region result in many women, particularly on the outer islands, not having access to services, including the police, courts, and services provided by the State or NGOs. In the African region, some States provide one-stop service centers, toll-free helplines, and psychosocial support. These programs are often underfunded, however, and are unable to provide support on a full-time basis. F.  Assessment of Fulfillment of Obligation to Act with Due Diligence to Eliminate Violence Against Women The promotion of the right to a life free of violence broadly includes the following elements: the prevention of violence; protection from violence; the investigation,

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prosecution, conviction, and punishment for acts of violence; the addressing of causes and consequences of violence; the provision of effective remedies, both in law and practice; the addressing of widespread failures in redress measures; and the failure to hold State actors accountable for failure to protect and prevent. It is clear that States are, to differing degrees, failing to address violence against women in a holistic manner. Almost all States’ responses reflect a limited focus on legislative and policy developments, to the exclusion of a focus on implementation of such laws and policies, service provision broadly, monitoring and evaluation of responses, holding accountable those who perpetrate violence as well as those who fail to protect against and prevent violence, and complying with international and regional human rights law standards. In addition to gaps in legislation addressing all manifestations of violence against women, the existing laws on prohibiting violence are often very specific, mostly dealing with domestic violence and trafficking. These laws largely fail to address linkages between violence and other systems of oppression. Generally, legal and policy measures face implementation challenges of inadequate resources, the lack of relevant expertise, stereotypes about women that influence and shape responses, limited public awareness on redress measures in existence, and the lack of commitment in implementation efforts. Many States in the regions demonstrate strong familial and protectionist attitudes, which make it difficult for women to realize their human rights as autonomous individuals. Regarding prevention, in some countries there is limited access to services, including counseling, shelter, police, and court services. Other obstacles to prevention include geographic challenges, women’s economic dependency on perpetrators, a justice system that is not responsive to the causes and consequences of violence, and the lack of accountability of perpetrators. States in some regions condone cultural practices that discriminate against and perpetuate violence against women, both through the lack of legislation and due to a lack of enforcement of existing legislation. Numerous concerns exist regarding the role of the police in ensuring victim safety and offender accountability. Police brutality and violence, as well as widespread corruption, are the norm in some States. Despite official no-drop policies on domestic violence in some countries, not only do police fail to register complaints, they also fail to investigate reports of violence, drop cases due to a lack of evidence, encourage “reconciliation” with perpetrators, fail to exercise powers to arrest the perpetrator, and fail to assist victims regarding their safety needs. This in turn has an adverse impact on the prosecution, conviction, and sentencing of perpetrators of violence against women. Police and court officers fail to act with due diligence to investigate and prosecute acts of violence. They dismiss the victim, exercise inappropriate discretion to drop cases, or pressure the victim to drop charges. In some jurisdictions, the norm is to impose mediation processes to resolve cases of violence against women and to sentence offenders to treatment programs. Although protection orders are theoretically available across the regions, it is often difficult for victims to access them, with judges promoting mediation instead. When protection orders are granted, it is often after delays, despite the urgent need for protection. When protection orders are breached, the State fails to respond effectively and in a timely manner. If breaches are acted upon, they result in suspended

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sentences, warnings, or perpetrator programs, rather than further protection for victims. The lack of legal, therapeutic, and social services is the norm, in many contexts with insufficient State resources allocated to effectively implement laws and policies on violence against women. Foreign donor funding is largely relied on by civil society to provide relevant services. In most instances, civil society organizations carry the burden and costs of providing services to women victims of violence. Where services are provided by the State, a family welfare/protectionist approach is adopted, instead of a human rights approach. Often, State service providers are insufficiently trained and largely promote mediation and reconciliation, thereby further endangering victims. Specialist police units that are set up to deal with violence against women often only operate during working hours and staff are insufficiently trained and have access to limited resources. Furthermore, a move toward gender-neutrality has meant that specific services for women victims of violence are decreasing. In the absence of adequate data collection systems, it is unclear what influences law and policy developments in many countries. In many States women are not aware of their rights under new laws, due to insufficient educative and publicizing efforts. Transformative reparations for violence against women are rarely provided, with some States providing compensation that does not address the victim’s needs. Although there are a range of national complaint and oversight mechanisms, including ombudspersons and commissions, these are not sufficiently funded to provide advice and information or to address violations. The lack of objective and effective functioning of such mechanisms also raises concerns about their independence. V.  C O N C LU S I O N

In the last two decades there have been many positive developments in addressing violence against women. Yet there remains a long way to go toward effective efforts to address women’s human rights broadly, including the elimination of violence against women. As illustrated, promising practices are emerging. These include specific laws for different manifestations of violence against women; the adoption of policies such as national action plans; the establishment of specific institutional mechanisms to provide services in a holistic manner; and the creation of specialized mechanisms within the criminal justice system, including at the level of the police, prosecution, and the courts. These measures reflect attempts to address a pervasive human rights violation, with goals that include accountability and the minimization of re-victimization. Nonetheless, it is difficult to identify whether any of these measures effectively contribute to the elimination of violence against women. The subjective analysis by States that measures adopted in the quest to eliminate violence against women have been successful is belied by the reality of increasing prevalence rates, despite numerous positive developments. Globally, and to differing degrees, there is a lack of effective interpretation and implementation of laws, policies, and programs in a holistic and sustained manner. Theoretically, the measures adopted in the different regions should and could contribute to the elimination of violence against women,

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but the analysis of the foundations and efficacy of measures provides a bleak picture of limited success. Laws, policies, programs, and resources are crucial to effectively address violence against women and girls, but such efforts must be coupled with renewed political will and action to combat the structural and systemic challenges that are a cause and consequence of such violence. In order to prevent and eliminate violence against women and girls, violence has to be understood as an element that affects women through their life cycle, underpinned by a complex interplay of individual, family, community, economic, and social factors. The responsibility to protect women and girls from violence and discrimination is primarily a State obligation. At the national level, it is important to note that a legislative and policy approach will not bring about substantive change if it is not implemented within a holistic approach that targets the accountability deficit that continues to exist. The lack of substantive focus on the empowerment of women and the failure to address broad social transformation must also be addressed. Finally, providing transformative remedies that ultimately break the continuum of discrimination and violence against women is an essential component of real change.

PART II

Developing a Legal Response

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Operating in a Narrow Space to Effect Change Development of a Legal System Response to Domestic Violence in China R O B I N   R U N G E   ■

I.  I N T R O D U CT I O N

In the last 25 years, Chinese anti–domestic violence advocates and women’s rights scholars have advocated for Chinese law and policy to recognize domestic violence as a crime requiring punishment of perpetrators, prevention, and protection of victims.1 Domestic violence was considered—and is still considered in many parts of the country—a private family matter and a threat to community harmony rather than a criminal act. Recently, however, anti–domestic violence advocates and scholars have persuasively argued and Chinese attorneys and judges have articulated an understanding that domestic violence is a crime, and if women are not provided with protection, the violence will negatively impact the community. Significant progress has been made. In 2008, judges began to issue injunctive relief for victims of domestic violence. In 2012, anti–domestic violence legislation was included in the legislative work plan of the Standing Committee of the National People’s Congress, indicating that it is likely national legislation will be adopted by 2015. Notably, 2015 marks the 20th anniversary of the UN Conference on Women that was held in Beijing in 1995, often referenced as the beginning of the domestic violence movement in China. These achievements would have been unthinkable a few years ago and represent significant progress. Nonetheless, victims of intimate partner violence, 2 including domestic violence, face significant barriers to accessing the limited protections available to them. For many, these protections are not available at all. China is at a critical moment in its development of a national legal response to domestic violence, due in large part to significant advocacy on the part of non-governmental, grassroots organizations working in collaboration with the All China Women’s Federation, a government-affiliated national entity that provides services to women

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throughout the country. This chapter describes the recent efforts to recognize and address domestic violence in China, including the use of the media, public demonstrations, adoption of policy, training for judges and lawyers to raise awareness of the impacts and causes of domestic violence and the need for protections for victims. It is important to note that the achievements described in this chapter have been realized by a small number of advocates, lawyers, judges, and scholars who have risked, and continue to risk, their personal freedom and livelihoods and that of their families by challenging the status quo in China. Advocates, scholars, and the drafters of national domestic violence law seek to learn from the experiences in other countries and to develop their own national legal response with unique Chinese characteristics from which, in turn, advocates in the United States and elsewhere can learn. I I. U S I N G S O C I A L M ED I A W H EN DATA A R E U N R EL I A B L E O R N O N E X I ST EN T

Intimate partner violence in China is under-reported. Very few surveys on the prevalence of domestic violence in China have been conducted, and the validity of the few that have been conducted has been questioned. Nonetheless, the limited data that have been reported demonstrate that family violence is a serious problem, with rates similar to the United States and many other countries. A national survey conducted by the All China Women’s Federation in 2011 found that one in approximately every four women has experienced violence at home, including verbal and physical abuse, having their freedom restricted, and being forced to have sex. The Shenzhen Women’s Federation, a part of the All China Women’s Federation, has collected statistics in Shenzhen regarding domestic violence that demonstrate that more than 85 percent of the violence occurs in married relationships and that approximately 94 percent is committed by husbands against their wives. Given the limited accurate information about the prevalence of domestic violence, advocates and women’s rights scholars have effectively turned to print and social media to raise awareness of the experience of domestic violence victims and their unfair treatment by the current legal system. For example, there have been several high profile cases in recent years in which battered women killed their husbands. Reports of these cases in the media often include a description of the abuse that the woman experienced at the hands of her husband and her numerous efforts to seek protection from the police and elsewhere without success. Grassroots advocates and legal scholars have successfully led online petition campaigns advocating for the Supreme People’s Court to overturn trial court decisions to punish these women with death or life in prison. One recent high profile case demonstrates the success of using the media in conjunction with organized protest. Li Yan, a woman from Sichuan province, was sentenced to death in 2012 for killing her husband, Tan Yong. Li complained about years of domestic violence at the hands of Tan, including being burned with cigarettes, being locked out of her home in the winter, and having a part of one of her fingers chopped off, to the local police. The police did nothing to assist her, however. In November 2010, Li killed Tan during an altercation, hitting him with the butt of an air rifle with which he had previously threatened to kill her. After she killed him, she dismembered and hid his body. At her criminal prosecution, evidence of the

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years of prior abuse, such as medical records, pictures of her injuries, and her multiple complaints to the All China Women’s Federation and the police were presented, but the court ruled this evidence was insufficient to establish that she had experienced domestic violence at the hands of Mr. Tan. Li also asserted self-defense, but the Sichuan high court rejected this argument. Li was found guilty and sentenced to death. In January 2013, more than 100 lawyers, scholars, and non-governmental advocates wrote to the Supreme People’s Court requesting that it reconsider its decision. They argued that police and the courts did not take the domestic violence Li had suffered into consideration and that Tan’s death could have been prevented if the state had protected Li. In June 2014, the Supreme People’s Court overturned Li’s death sentence and ordered a high court in Sichuan to retry her case because of insufficient evidence. This decision is viewed as a response, at least in part, to the advocacy of lawyers, scholars, and others over the last year. These efforts are striking in part because of the risk involved in publicly challenging an action taken by the Supreme People’s Court, in this case in the form of a court decision. Moreover, through television programs and social media, publication of extensive interviews with imprisoned battered women has improved the understanding of the circumstances in which these women have lived and their lack of options because of the state’s inability to protect them. Finally, these efforts have increased awareness that women are treated much more harshly when they kill their husbands (even in these circumstances) than when men kill their wives, leading to an open discussion of the disparity and the need for legal reform to address it. Many articles have been written about these cases and this disparity in national and local Chinese and English newspapers, and there are active discussions of these issues on Weibo and WeChat, the Chinese equivalents of Twitter. Another example of the effectiveness of using media to raise awareness of victims’ legal needs is the case of Kim Lee. One of the first civil protection orders issued for a victim of domestic violence in Beijing was granted in February 2013 on behalf of an American woman, Kim Lee, against her wealthy Chinese husband in a high profile divorce case. In addition to issuing Lee a three-month protection order against her husband Li Yang, founder of the very successful “Crazy English” language program, the court acknowledged that domestic violence was a legitimate basis for divorce and ordered Mr. Li to pay Mrs. Lee 50,000 renminbi (approximately $7,000 U.S.) in compensation for the violence. Mrs. Lee’s case garnered national attention after she posted photos of her abuse on Weibo in 2011 and has significantly increased awareness of domestic violence and the challenges victims face in seeking protection in China. Mrs. Lee has been extensively interviewed. Her failed attempts to obtain medical services and protection from the state have been widely reported. Although Mrs. Lee is an American, she speaks Chinese and communicates in Chinese as well as in English, and her story has resonated with Chinese victims of domestic violence. Many Chinese women experiencing similar abuse have contacted Mrs. Lee seeking help. III. U S I N G T H E  I N T ER N AT I O N A L H U M A N R I G H TS F R A M E WO R K TO A DVA N C E PR OT ECT I O N S FO R  V I CT I M S

International human rights law has contributed to the development of a response to violence against women in China. Chinese advocates and scholars have

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employed the obligations of international human rights to establish the state’s responsibility to protect individuals from domestic violence. China, like many other countries but unlike the United States, has adopted several international treaties that require it to address violence against women. These treaties mandate the adoption of national law to address violence against women and require reporting on progress toward the goal of decreasing the incidence of violence against women. These treaties provide an international human rights framework upon which China can base its development of a legal response to domestic violence. One of these treaties is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which defines discrimination against women to include violence against women. China became a signatory and ratified CEDAW in 1980. Articles 2, 5, 11, 12, and 16 of CEDAW require state parties to act to protect women against violence of any kind occurring within the family, at the workplace, or in any other area of social life. In addition, General Recommendation No. 19 of CEDAW recognizes that gender-based violence is a form of discrimination that “seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.” CEDAW recommends that states include information on violence and measures introduced to address it in their CEDAW reports. Regular reporting by states is required to ensure the implementation of policies and laws designed to end violence against women. Advocates have attempted to use China’s adoption of CEDAW and other international human rights treaties, as well as the annual reports these treaties require, to increase protections for victims of domestic violence. They have sought to amend existing national law regarding marriage and women’s rights to that end, but these efforts have failed to improve circumstances for victims. Although there is no national Chinese law exclusively addressing intimate partner violence yet, several national laws regulate behaviors associated with intimate partner violence. Battering is considered a violation of women’s rights of the person according to the General Principles of Civil Law. 3 In addition, the Marriage Law, Women Rights & Interests Protection Law, Minor Protection Law, Disability Protection Law, and Elder Rights & Interests Protection Law explicitly prohibit domestic violence. The Criminal Law, the Criminal Procedure Law, the Civil Procedures Law, and the Public Security Law also safeguard the personal rights of family members. The Marriage Law states that family violence should be prohibited; a victim of family violence may ask local committees and public security for assistance to seek mediation and to stop the violence. The Marriage Law also states that individuals who commit family violence that is sufficiently severe as to constitute a crime under the Criminal Law shall be held criminally liable. In addition, the Marriage Law explains that if a spouse is able to prove that domestic violence is the basis for divorce, she is entitled to claim damages for the domestic violence. Although this language is clear, the law fails to define family violence or domestic violence, creating confusion among judges and lawyers and thereby allowing for lax enforcement of these provisions. Moreover, limiting these protections to the context of divorce denies protection to married victims who do not want a divorce, as well as unmarried victims, including lesbian, gay, bisexual, and transgender (LGBT) victims (who cannot marry in China).

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Addressing the need for clarity regarding the definition of family violence in the Marriage Law, China’s Supreme People’s Court issued the “Judicial Interpretation for Issues Regarding the Marriage Law of the People’s Republic of China” in December 2001. The Interpretation provided the first national-level guidance on how judges should handle marital cases involving allegations of domestic violence. The document defines family violence in Articles 3, 32, 45, and 46 of the Marriage Law as “a behavior whereby a person causes certain physical or mental injuries to his family member(s) by beating, binding, forced restriction of personal freedom or by other means.” However, even with this clarification, utilization of these provisions was rare in the courts. As a result of organized advocacy by scholars and others invoking CEDAW and the human rights framework, the Women Rights & Interests Protection Law of 1992 was amended in 2005 to prohibit domestic violence against women. The law also provides a multi-sectorial intervention model to prevent domestic violence, requiring that the police, the civil administration bureau, and the judicial administration bureau stop domestic violence and offer relief for battered women. The law allows a victim to file a claim for administrative punishment of the perpetrator. The victim may also file civil litigation with the court. The Women Rights & Interests Protection Law provides neither definitions of these terms nor enforcement mechanisms for these protections, however. Moreover, very few victims, lawyers, or judges are aware of these legal options and, therefore, victims have not utilized them often or effectively to obtain relief. In September 2008, the All China Women’s Federation, the Ministry of the Chinese People’s Congress, the Ministry of Public Security, the Ministry of Civil Affairs, the Ministry of Justice, and the Ministry of Health jointly issued an official document entitled “Several Opinions on Prevention and Prohibition from Domestic Violence.” This statement was the first national policy paper on domestic violence and describes the government’s responsibility in addressing domestic violence, the need for collaboration between and among government agencies to provide support and protection to victims of domestic violence, and each participant institution’s role in ending domestic violence. By specifically assigning roles and obligations to state entities, this policy document clearly references the international human rights framework that holds the state accountable for violence against women. A.  Provincial Legislation The first legislation to specifically address domestic violence in China was enacted in the city of Changsha in Hunan Province in 1996. This policy was followed by the first provincial level regulation on domestic violence, entitled “A Resolution Concerning the Prevention and Resolution of Domestic Violence,” issued in 2000 by the People’s Congress Standing Committee of Hunan Province. By September 2008, 20 provinces, municipalities, and autonomous regions in China had adopted legal mechanisms to combat domestic violence. In addition, by October 2008, 23 provinces, municipalities, and autonomous regions had passed enforcement plans for the national Law on the Protection of Women’s Rights and Interests, specifically addressing domestic violence. Today, all but six or seven provinces, municipalities, and autonomous regions have adopted official policy statements against domestic

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violence. These regulations and policies identify domestic violence as a violation of a woman’s human rights and affirmatively state that preventing and responding to domestic violence is a means of ensuring harmonious families and social stability. All of these regulations encourage education about and the promotion of laws on domestic violence. The majority of these policies and legislative initiatives do not contain specific rights or protections for victims of domestic violence, however, and attorneys and scholars in China report that these policies have not resulted in increased protection for victims or punishment for perpetrators. Provincial governments are enacting innovative programs to address domestic violence. In July 2013, “Jiangsu Province’s Implementation Measurement of Warning System Against Family Violence (on trial)” was issued jointly by Jiangsu Province Higher People’s Court, Jiangsu Province People’s Procuratorates, Public Security Department of Jiangsu Province, and Jiangsu Province Women’s Federation. Jiangsu is the first province to establish a warning system against family violence intended to protect family violence victims’ rights and interests and maintain family and social harmony and stability. The establishment of the warning system by the police is aimed at strengthening family violence prevention by using the administrative guidance power of the Public Security Organizations, a section of the police in China. The program’s components include:  warning and educating family violence perpetrators, providing legal support to family violence victims, and addressing perpetrators’ abusive behaviors through batterers’ education. More recently, other provinces and cities such as Ningxia and Suzhou have created warning systems. Provincial legislation is also broadening the definition of domestic violence. The Shenzhen Special Economic Zone will include economic control in its definition of domestic violence in regulations and a law entitled Anti-Domestic Violence in Shenzhen Special Economic Zone, by the end of 2014. The draft regulation defines domestic violence as a pattern of damaging behavior committed by one family member against another, including physical, mental, sexual, and economic control (which includes holding someone under house arrest). Protection extends to persons living together, intimate partners, and former spouses or partners. Drafted by scholars at Shenzhen University Law School and the Shenzhen Pengxing Anti-Domestic Violence Center, the updates to the law are influenced by data collected from victims about their experiences, which has led to a better understanding of the impact of economic control. B.  Judicial Guidelines Issued by China’s National Applied Jurisprudence Institute Create Civil Protection Order Although efforts to pass national legislation providing comprehensive protections for victims of domestic violence were underway, in March 2008, the Institute for Applied Jurisprudence of the Supreme People’s Court of China issued “The Bench Book on Marriage Cases Involving Domestic Violence” (涉及家庭暴力婚姻案件审理指南, roughly translated as “Bench Book”) for judges hearing marital cases. The Bench Book represents a significant step forward in creating an effective legal response to domestic violence in China. The Bench Book defines domestic violence more clearly and provides judges with

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detailed information about how to use existing authority to protect victims in limited circumstances. Specifically, the Bench Book describes how judges may issue civil protection orders (renshen anquan baohu ling or人身安全保护令) to victims of domestic violence. The Bench Book includes a definition of domestic violence, and it references the national Civil Procedure Law as the authority for judges to issue civil protection orders. In conjunction with issuance of the Bench Book, nine pilot courts were authorized to use the Bench Book to issue civil protection orders on behalf of victims of domestic violence in marital cases. Over the last few years, the number of provinces and courts involved in the pilot project has expanded to include at least 74. Beijing was included in the pilot project in August 2012. The Bench Book integrates the human rights framework contained in CEDAW and incorporates the definition of family violence from the Judicial Interpretation of the Chinese Marriage Law from 2001. It also defines domestic violence for the purposes of determining when civil protection orders should be issued in marital cases. The Bench Book defines domestic violence as: [b]‌ehavior, among family members, especially between husband and wife whereby one party violates the other party’s physical, sexual, emotional and other personal rights through coercion, violence, abuse, economic control and other means in order to attain the purpose of controlling the other party. The Bench Book then references international conventions, laws, and research as the basis for further defining four manifestations of domestic violence:  physical violence, sexual violence, emotional violence, and economic control. These forms of domestic violence are framed as violations of individual rights, consistent with international human rights principles. The inclusion of emotional, mental, economic, and sexual harm as forms of domestic violence in the Bench Book demonstrates a clear understanding of dynamics of domestic violence. Moreover, by not limiting the definition of domestic violence to husbands and wives, the Bench Book acknowledges that others in family-like relationships may commit and experience domestic violence. The Bench Book is not law, and it is not binding on Chinese judges. However, several high provincial courts have issued opinions including language from the Bench Book regarding issuance of civil protection orders in marital cases; these opinions are considered law and binding in those jurisdictions. Moreover, attorneys have referred to the Bench Book when representing victims of domestic violence seeking civil protection orders in marital cases. Between March 2008, when the Bench Book was issued, and October 2010, 100 protection orders were reportedly issued in China. By February 2014, it was reported that 500 orders had been issued. Shaanxi became a part of the pilot protection order project in 2010; that province has issued 35 protection orders for victims as of January 2013. Xiangzhou People’s Court in Guangdong Province has issued 92 protection orders. Given China’s total population of more than one billion people, this number is remarkably low. Access to civil protection orders in China remains mostly limited to those who are married to or recently divorced from the individual who committed the

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domestic violence, in the few jurisdictions participating in the national pilot project for the implementation of the Bench Book. According to the Bench Book, an individual may only file for a civil protection order in one of the selected jurisdictions immediately before or for a short time after filing for divorce. A  victim must file for divorce within 15 days of the civil protection order being issued. If there is no divorce filing in this time frame, the civil protection order expires. The victim may also apply for a civil protection order for up to six months after the divorce proceedings are completed. It would be dangerous and inaccurate to interpret the limited access to protection orders as a reflection of a widely held belief in China that domestic violence only occurs in marital relationships. The definition of domestic violence included in recent proposals put forward by scholars and advocates for a national anti–domestic violence law includes dating relationships. In addition, Changchun City adopted a Domestic Violence Ordinance that included access to protections for unmarried people, single parents, same-sex individuals, and others. Finally, at least one Chinese judge has issued a civil protection order in a case involving a woman who was not married to her abuser. Conversations with national leaders in the anti–domestic violence movement in China confirm an understanding that domestic violence occurs in all forms of intimate relationships in China regardless of duration, sexual orientation, or whether the individuals were ever married, lived together, or had a child in common. The Bench Book asserts that a judge should treat the victim’s statement as more credible than that of the offender. In support of this recommendation, the Bench Book states that the victim would not take the risk of appearing at court and sharing information about domestic violence unless it was the truth. The Bench Book also provides examples of evidence that may prove that a petitioner has suffered domestic violence or is facing the threat of domestic violence. Pictures of injuries, police records, witness statements, documentation from a social service organization, and documentation of the abuse, including text messages containing threats from the respondent, are all examples of evidence the victim may bring forward or the judge may seek in support of a victim’s statement. The Bench Book states that the standard of proof in considering this evidence is preponderance of the evidence. The judge is to make the decision “based on logic, reasoning and the rule of experience and avoid the evidence standards of criminal procedures.” Once the victim presents evidence of the injury and that the respondent caused the injury, the burden of proof shifts to the respondent. If the defendant denies causing the harm but is unable to provide evidence in support of his denial, the Bench Book instructs the judge to find that domestic violence has occurred and to grant the order. The Bench Book permits judges to issue orders that include a range of injunctive relief similar to those available in the United States: requiring the respondent to stay a certain distance from the victim, her home, work, or other places she frequents, and prohibiting the respondent from harassing, stalking, beating, threatening, or having any other unwelcome contact with the claimant. In addition, the judge may order the respondent to refrain from beating and threatening the family and friends of the claimant. The judge may also order that the respondent temporarily move out of the residence shared by the parties. Because the civil protection order may only be sought along with a divorce, there are several remedies that are specifically related to the divorce proceedings. For example, the judge may order that while the protection order is in effect, “either

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party shall not make decisions on joint property of great value.” The Bench Book specifically recognizes that financial considerations may play a role in the victim’s decision to seek safety. Therefore, when a judge finds it necessary, he or she may order the respondent to pay living expenses for the victim and expenses related to raising minor children in the custody of the victim while the order is in effect. Moreover, the judge may order the batterer to pay for any medical expenses, fees for therapy, or “necessary fees of the claimant for receiving medical care due to the violent behaviors of the respondent.” These specific remedies related to divorce proceedings and financial support for victims acknowledge the risk that women take coming forward to seek a divorce in China and the significant financial barriers they will face, including obtaining housing after the separation. On February 27, 2014, the Supreme People’s Court released 10 family violence “guiding cases” to provide direction to the lower courts about what constitutes evidence of family violence, who may seek protection, and who may be a perpetrator of family violence. Guiding cases are decisions issued by the court that are not based on actual cases but upon facts similar to those that the courts have seen. These guiding cases demonstrate how the court believes the lower courts should decide similar cases. Guiding cases are not precedential but are very persuasive, arguably more so than the Bench Book, because guiding cases are followed by all of the courts, not just those in the pilot project on domestic violence. Several cases provide examples of mental and emotional abuse, including intimidation and threats of violence, as well as harassment and stalking. The guiding cases also specifically recognize elder abuse and a child’s exposure to abuse as forms of family violence. In addition, the cases reaffirm the importance of the issuance of civil protection orders for family violence victims by courts, protection of the victim after she has left the relationship, and protection of children who witness domestic violence. Finally, they address the need for the court to consider the impact of family violence in criminal proceedings when a victim has had no choice but to kill the perpetrator to stop the violence. I V. T R A I N I N G S O F J U D G ES A N D L AW Y ER S O N  D O M EST I C V I O L EN C E

In 2010, the All-China Women’s Federation received 51,171 complaints from women about domestic violence by their husbands, but apparently very few sought civil protection orders. A  number of different reasons have been suggested as to why there have been so few orders issued, including judges’ lack of knowledge of domestic violence, the lack of awareness among the general public of the availability of civil protection orders, questions and concerns about enforcement of the orders, and the limited availability of orders in some parts of the country. Chinese advocates identified solutions to these challenges, including expanded training for judges, lawyers, and police on domestic violence and gender awareness and adoption of a national anti–domestic violence law that includes the civil protection order and clear enforcement structures. Chinese advocates and scholars reasoned that judges without training on domestic violence might not identify or understand domestic violence in their divorce cases and therefore do not issue as many civil protection orders as they could or should. For example, of the 21 courts in the pilot project in Shaanxi province, six courts have issued 35

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orders of protection. Twenty of those orders were issued by one court, highlighting the different levels of understanding of domestic violence among judges. A judge in another province stated that approximately two-thirds of the civil matters judges hear are marriage cases, totaling approximately 35,000 cases each year. Domestic violence is alleged in 30 percent to 50 percent of those cases, but very few protection orders are sought or issued. A judge in a third province stated that of the 30,000 divorce cases they handle each year, 500 to 600 include allegations of domestic violence. This judge believes that since domestic violence is incorporated into divorce cases rather than handled as a separate cause of action, very few cases are being identified as domestic violence cases. He also stated that in those divorce cases in which domestic violence is alleged, 30 percent of litigants request economic remedies. Another judge observed that the reason more civil protection orders have not been issued is that many victims do not provide sufficient evidence of the domestic violence and therefore judges cannot protect them, even if they believe the allegations. The Bench Book has attempted to address these issues by providing specific examples of evidence that may be persuasive and by reiterating that the standard of proof is preponderance of the evidence rather than beyond a reasonable doubt. There is concern, however, that some judges are not conducting investigations and that when they are, they lack understanding of the evidence they collect. Training judges and lawyers at the same time that national and provincial laws and policies were being adopted has been an essential piece of successful, if limited, implementation of protections for victims. Starting in 2009, the Institute of Applied Jurisprudence, the affiliate of the Supreme People’s Court that issued the Bench Book, co-sponsored a series of national interactive, multi-day domestic violence and protection order trainings for judges and lawyers from the pilot locations of the Bench Book with U.S. experts on domestic violence and the legal response to domestic violence. That these trainings coincided with the launch of the pilot project was thoughtful, intentional, and effective. The judges who attended the trainings issued the majority of the first protection orders in the country. The coupling of the detailed information about what constitutes domestic violence and how to issue protection orders with trainings in which judges learned about and practiced hearing family law cases involving domestic violence and issuing protection orders may have empowered judges to issue the orders. Since 2010, judges and attorneys in several of the pilot court jurisdictions have received training on domestic violence and how to consider evidence in marital cases involving domestic violence. Judges, advocates, lawyers, and law professors report that these trainings have had a profoundly positive impact, but that these trainings need to continue and be expanded. Some of the pilot courts in China have developed forms for victims to complete when seeking protection orders. Increasing access to protection orders might include training on how to help victims complete these forms and adopting one standard form throughout the court system. V.  R A I S I N G PU B L I C AWA R EN ES S T H R O U G H PU B L I C D EM O N ST R AT I O N S

Another reason for the low number of protection orders being issued is the limited awareness of protection orders among the general population. Judges, attorneys, and anti–domestic violence advocates have observed that the Chinese general public is

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still learning that domestic violence is a violation of the law and that there are protections available. There have been several successful public awareness campaigns protesting domestic violence, utilizing posters, post cards, and protests. During one protest on Valentine’s Day in Beijing in 2012, activists wore Western, white bridal gowns splashed with fake blood and walked down the street holding signs stating “love does not mean abuse.” Similarly, on the day of Kim Lee’s final divorce hearing in 2013, a group of activists appeared at the court wearing shirts that stated “Zero Tolerance for Domestic Violence.” They danced and sang and displayed a banner with more than 1,000 signatures of individuals supporting Lee. Anti–domestic violence organizations did not take credit for nor affiliate themselves with these demonstrations. Individuals participating stated affirmatively that they were acting alone as volunteers, not as a part of an organization, possibly because of a concern that the few non-governmental organizations involved in anti–domestic violence efforts could receive pressure to close as a result. These protests have been infrequent and involved small groups to avoid attracting state scrutiny. Although pictures of these protests have been posted on social media, leading to discussion of domestic violence, women are still reluctant to report domestic violence or to self-identify as victims. Some do not believe that domestic violence is wrong; others believe it to be a normal part of relationships. V I. D E V ELO PM EN T O F N AT I O N A L L EG I S L AT I O N

China is poised to adopt national anti–family violence legislation in 2015, the 20th anniversary of the UN Conference on Women in Beijing. Information about the drafting process and text of the legislation has been hard to access. Members of the limited anti–domestic violence civil society and academics knowledgeable about domestic violence and the law have attempted to provide information and guidance to the drafters on specific provisions they believe should be included. In April 2014, the United Nations Women office in China led a task force of UN agencies in Beijing to host an International Workshop on National Family Violence Legislation to provide guidance to the drafters of the national anti–family violence legislation. Experts from 10 countries provided information on their countries’ experiences drafting, adopting, and implementing national anti–domestic violence legislation and gave their recommendations to Chinese government leaders based upon those experiences. In addition, Chinese national experts provided their feedback on the need for national legislation to address domestic violence. These recommendations were included in a report provided to the members of the National People’s Congress drafting the law in China. It is anticipated that several key themes in the report will be included in the legislation when it is adopted, hopefully in 2015. Specifically, the legislation will provide a comprehensive definition of domestic violence, including the proof required to establish the crime and the necessary relationship between the victim and the perpetrator. Consistently, advocates and scholars have urged adopting a definition of domestic violence that includes the pattern of behavior that distinguishes domestic violence from other forms of violence. These behaviors should include physical, emotional, mental, economic, and sexual abuse as well as coercion and threats of such violence. In addition, the legislation should cover elder abuse, child abuse,

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dating abuse, abuse committed against individuals with disabilities and individuals in LGBT relationships. There is also consensus that the legislation should contain a civil protection order or similar legal tool through which the court may grant victims injunctive relief and economic remedies. National anti–domestic violence legislation that incorporates the civil protection order would provide continuous protections for victims throughout China, addressing challenges posed by the limited access to civil protection orders currently. Moreover, civil protection orders should be issued in stand-alone proceedings; a victim should not be required to seek a divorce when she seeks protection from an abusive husband. The orders should also still be available in conjunction with divorce actions. Domestic violence victim advocates and scholars are concerned about the economic needs of victims. This focus is reflected in recommendations that the law include housing options for victims, including allowing the victim to stay in her home, as well as financial support in the context of divorce or separation. Finally, international experts at the UN Workshop have recommended that the drafters include the need for a significant financial commitment from the government to fund the development of national systems, as well as the coordination and collaboration between and among governmental and non-governmental organizations to provide services to victims and perpetrators, and extensive training for everyone who comes in contact with victims. A great deal of progress has been made toward providing protections for victims of domestic violence in China in the last 10 years. The adoption of national anti–domestic violence legislation is the singular focus of advocacy efforts in China today and would reflect the success of the decades of work to raise awareness of domestic violence, as well as significantly expanding China’s efforts to address domestic violence nationwide. Advocates are awaiting 2015 to determine whether their efforts will be rewarded.

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The Vital Role of Grassroots Movements in Combatting Sexual Violence and Intimate Partner Abuse in Haiti N I C O L E P H I L L I P S   ■

I.  I N T R O D U CT I O N

Following Haiti’s devastating earthquake in 2010, a number of grassroots organizations in the country mobilized to support women and lesbian, gay, bisexual, and transgender (LGBT) individuals who have long suffered from cultural and political violence as well as the effects extreme poverty, all of which was exacerbated by the earthquake damage. Three women’s groups in particular, Fanm Viktim Leve Kanpe (FAVILEK) (Women Get Up Stand Up), Komisyon Fanm Viktim pou Viktim (KOFAVIV) (Commission of Women Victims for Women), and Kodinasyon Nasyonal Mawon Viktim Direk (KONAMAVID) (National Coordination of Direct Victims in Hiding) mobilized within days of the earthquake to demand adequate security in the face of increasing sexual assaults of women and girls living in internally displaced persons (IDP) camps. The leaders of these groups, some of whom were also living in IDP camps, organized support groups, aid distribution, security brigades, and demonstrations. Their calls for aid and security were echoed in Haitian and international media, the U.S. and European governments, the United Nations, and the Organization of American States. These groups not only played an important role in helping earthquake victims, but also raised awareness of legal changes necessary to improve the lives of Haitian women and LGBT individuals in the longer term. The organizations FAVILEK, KOFAVIV, and KONAMAVID worked with Haitian lawyers at the Bureau des Avocats Internationaux (BAI) (International Lawyers Office), a public interest law firm, to create a victim-centered legal response to sexual assault cases (both domestic and non-domestic violence cases), which

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includes victim accompaniment to hospitals, police stations, and courthouses. By bringing cases through the Haitian legal system, lawyers reinforce the existing legal framework to provide redress to victims. Women’s groups also pressured the UN and Haitian police to implement police and judicial sensitivity trainings and helped prepare legislation addressing violence against women. The mobilization of women’s groups catalyzed LGBT groups whose members also experienced increased sexual violence and hate crimes after the earthquake. The LGBT groups organized among themselves, built partnerships with Haitian and international organizations, and encouraged discussion about identifying violence and discrimination against the LGBT community as human rights violations. The combined efforts of women’s groups and lawyers are changing the legal system. Since 2010, the police have become more receptive to women’s complaints of sexual assault, and the courts are convicting record numbers of sexual assault offenders with prison sentences of 10 years to life. Moreover, support groups organized during these tragedies formed the basis of a women’s and LGBT movement that demands legal accountability and continues to thrive. I I. H OW P O L I T I CA L V I O L EN C E A N D I N S EC U R I T Y I M PACTS V I O L EN C E AG A I N ST WO M EN

Recent political violence in Haiti is inextricably linked with violence against the country’s women. It has also helped shape Haiti’s grassroots women’s movement. Members of FAVILEK identify three historical periods that made them vulnerable to attacks—the coup d’états in 1991 and 2004, and the creation of IDP camps after the 2010 earthquake. Human rights groups have documented the use of violence and sexual assault against women by Haiti’s leaders, from the notorious dictator Francois “Papa Doc” Duvalier, his son Jean-Claude “Baby Doc,” and the group of military strongmen who followed them, through the coups d’états in 1991 and 2004 against Haiti’s first democratically elected president, Jean-Bertrand Aristide. During the de facto paramilitary regimes that ruled following the coup d’états, soldiers and attachés systematically used sexual assault to terrorize women during sweeps of pro-Aristide neighborhoods. The terror was maximized using sadistic methods—repeated rapes, forcing family members to watch the rapes, forced incest, and the rape of young girls and pregnant women. There are no reports that any of these rapes resulted in punishment for the perpetrators. Women were strategically targeted as a group because they are considered the poto mitan (centerpost) of Haitian society. Humiliating, intimidating, and incapacitating this centerpost were ways of subjugating civil society. Both FAVILEK and KOFAVIV were founded by survivors of the politically motivated attacks against women during these coup d’états. Ultimately, gender violence in Haiti must be understood against this background. The periods of political violence have shaped the culture. Victims, families, and communities have become desensitized to violence against women, and judicial impunity is now the norm. (The term “victim” is used throughout this chapter because it is the term most commonly used by members of Haitian grassroots women’s groups to define themselves.)

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III. S O C I A L, EC O N O M I C A N D C U LT U R A L C O N T E X T O F S E X UA L V I O L EN C E A N D I N T I M AT E PA R T N ER  A B U S E

A.  Poverty and Its Effects Political violence and natural disasters have left Haitian women and the LGBT community vulnerable to sexual violence and intimate partner abuse. But these forms of violence are also linked to poverty, cultural stereotypes, and a lack of rights enforcement. Haitian people suffer from the worst living standards in the Western hemisphere. They are systematically deprived of basic needs—nutrition, shelter, medical care, employment, education, and access to justice. Sixty-one percent of the population lives below the international poverty line, earning less than $1.25 per day. The unemployment rate is over 60 percent. Countrywide, hunger and malnutrition are considered among the most pressing problems; 44 percent of the population suffers from malnutrition (Gallón, 2014, p. 4). These statistics rank Haiti among the poorest countries in the world by several indices. Conditions of life are generally more difficult for the seven million Haitians who live in rural areas where even fewer services are available. As a result of Haiti’s extreme poverty, economic and social security are lacking for most of the population. Poverty results in a lack of education and employment opportunities for everyone, but especially women, because they are often financially dependent on men. Women bear the brunt of poverty due to discrimination in the workplace, at home, and in society, as well as unequal distribution of childcare responsibilities—especially in the 60 percent of families headed by a single woman (Bell, 2001). Haiti has one of the highest infant and maternal mortality rates in the world and one of the lowest rates of contraception. Women’s economic dependence on men reinforces a societal stereotype that women and their “domestic” work, such as cooking, cleaning, and raising children, are inferior. Women and girls are commonly seen as sexual objects and many women believe the oppressions of violence, patriarchy, and poverty are inextricably linked. When Haitian sexual assault survivors talk about the effects of violence on their lives, they are equally likely to mention those other issues. Discrimination and violence against the LGBT community are also pervasive problems in Haiti. The International Gay and Lesbian Human Right Commission and SEROvie, an organization that supports gay, bisexual, and transsexual men, suggest that homosexuality and transgenderism remain taboo within a largely conservative Catholic Haitian society. As a result, the lives of many Haitian LGBT individuals are “characterized by secrecy, isolation, discrimination, and violence” (2011, p.  3). Discrimination is particularly difficult in poor families, where LGBT individuals living in small crowded homes lack privacy within their family and neighborhood. Discrimination renders many sexual minorities unemployable. To most people without education or a stable income, the ability to use the legal system to enforce their right to live without violence is an abstract concept. Haiti’s judicial system reflects a culture of exclusion and impunity that makes it difficult for women and children who are victims of violence to access justice. Victims and their families are often mistreated when they try to enforce their rights. They lack confidence in the justice system’s ability to provide redress. This combination of factors

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leaves impoverished victims with a sense of insecurity, vulnerability, and mistrust of the justice system and rule of law. B.  Societal Attitudes About Intimate Partner Abuse Like many countries, Haiti has a long history of patriarchy and discrimination against women in the home, in government, at work, and in the courts. Haitian society retains a strong patriarchal structure handed down from the slave era and reinforced by conservative Christianity and rural traditions. Gender discrimination in Haiti has systematically denied women the power to either prevent or address injustice against them. These interlocking oppressions leave women vulnerable to violence on both an individual and larger scale, especially in the home. Society’s tolerance of gender-based violence breeds acceptance of intimate partner abuse. Women complain that crimes are committed with the full knowledge of the community, but there is no community response. According to the women’s group Fanm Deside (Women Decisive): The habits and customs of Haitians stem from a patriarchal society, and thus society thinks that it is normal for a man to hit a woman during an argument. . . . Since it is her spouse, the woman must submit to him because society considers women to be inferior to men. And for men, a husband has the right to punish or beat his wife. (as cited in Immigration and Refugee Board of Canada, 2013).

In one study, 80  percent of men believed violence may be justified when women are rowdy, extravagant, disobedient, or have committed adultery (Organization of American States, 2008). A patriarchal and under-resourced justice system that turns away intimate partner violence complaints reinforces the culture of impunity for violent spouses. Adolescent girls account for the highest percentage of sexual assaults, but intimate partner violence (which can include sexual assault) is more prevalent in adult women. “The women get beaten up; the younger ones get raped,” according to Yolette Jeanty from the Haitian women’s non-governmental organization (NGO), Kay Fanm (Women’s Home). Kay Fanm reports that adult women comprise 80 percent of intimate partner abuse cases (as reported in d’Adesky, 2012, p. 75). Culturally, boys are considered more valuable in poor areas in Haiti. Boys are more likely to be sent to school, while girls help with domestic duties in the house. According to grassroots women’s activist Marie Sonya Dély, child abuse and spousal abuse are common in Haiti, “especially if mom doesn’t have enough money to feed everyone” (personal communication, February 15, 2014). Girls see the limited professional opportunities available to women, such as street vending, nursing, and working as secretaries for male bosses, so they grow up hoping to meet a man who will take care of them. Dély believes the state must work with grassroots women’s groups to provide girls with better access to schools. LGBT children are also vulnerable to sexual abuse. Parents often refuse to feed or pay for the schooling of an LGBT child, hoping to pressure the child out of being

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LGBT. It is common for parents to throw LGBT children out of their homes and onto the street. Without support from traditional kinship and community networks, LGBT children become vulnerable to survival sex and other forms of sexual exploitation. Patriarchy and gender stereotypes in Haiti also influence adult LGBT relationships, which often mimic stereotypical male/female dynamics. For example, gay male relationships frequently include an “active” partner and a “passive” partner. The passive partner plays a stereotypical female role. He supports the couple financially, but is considered weaker because he is more effeminate, takes care of the house, and receives penetration. The active partner often seeks multiple partners and is more likely the aggressor in cases of intimate partner abuse against his partner. Because the active partner often passes as straight, the passive partner is reliant on him for security in the community. This reliance only adds to his vulnerability in the relationship. For example, if the passive partner reports domestic violence to law enforcement, the active partner may not even admit he is gay. In some cases, this denial exposes the passive partner to further abuse by a homophobic police officer. C.  Intimate Partner Violence Is Widespread and Unreported Intimate partner violence is considered common and widespread in Haiti, but the number of victims remains unknown. Reliable statistics are difficult to collect. Available statistics do show high rates of violence against women and intimate partner abuse, although the results vary widely. Reports indicate that between 25 and 70  percent of Haitian women have been victims of violence (Haitian Ministry of Public Health and Population, 2012, p.  16; OAS, 2008, p.  20). Between 24 and 86  percent of these cases of violence against women involved intimate partner abuse, which can include insults, death threats, blackmail, manipulation, humiliation, harassment, isolation, rape, forcible confinement, murder, and paternal irresponsibility (Immigration and Refugee Board of Canada, 2013). Approximately 29 percent of married women experienced intimate partner abuse (Haitian Ministry of Public Health and Population, 2012). The LGBT organizations also anecdotally report high rates of intimate partner abuse in the LGBT community, although no studies have been carried out to gather statistics. These numbers likely represent only a fraction of the actual number of cases. One women’s organization estimated that only a quarter of intimate partner abuse cases are reported to law enforcement. Cases go largely unreported unless there is a breakdown of the household relationship or if the abuse results in physical injury or unwanted pregnancies. Most people subjected to intimate partner violence do not report the incidents to authorities for a multitude of reasons, including embarrassment and shame, the threat of ostracism from their family and community, lack of resources, potential reprisals from the aggressor and his family, and apathy and abuse from the judiciary. Frustration with the judicial system is a significant deterrent to reporting abuse. Unwilling to follow through with prosecution, judges often release suspects arrested for intimate partner violence and sexual assault, which perpetuates impunity and encourages repetition of the acts.

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D.  Domestic Relationships as a Means of Survival These overlapping pressures help us to understand why victimized women in Haiti do not report or easily escape abuse. Women use sexuality and reproduction as a means of survival. As anthropologist Catherine Maternowska contends, “Women’s power in the realm of sexuality is almost always directed toward financial gain. Every woman interviewed told me they were not in a relationship for love or sexual enjoyment. Rather, unions help women survive” (2006, p. 50). Men commonly have multiple sexual partners and father children with several women. This phenomenon exacerbates the cycle of poverty; as men engage in more sexual unions, they split scant resources across several households. The various family structures in Haiti are complex, but any of them can produce a child and provide economic support. Women look to men primarily for economic support, which makes women vulnerable to violence from their partners. Men can earn ten to a hundred times more than women, although steady paid work is scarce in Haiti. The inability to find steady work and provide for their families creates immeasurable stress for men. “Through acts of violence and rape, men are responding to the structural systems—both political and economic—that control them. Violence in its many forms is a way of reasserting the eroding male identity,” notes Maternowska (2006, p. 70). Arguments leading to violence are often spurred by conflicts over resource distribution or men accusing women of not fulfilling their domestic duties. Fanm Deside says that intimate partner violence in rural areas can be explained by “a lack of education, information and training, and especially by poverty and a lack of family planning” (as reported in Immigration and Refugee Board of Canada, 2013). I V. I N C R E AS E I N S E X UA L V I O L EN C E A F T ER T H E   E A R T H Q UA K E

The January 12, 2010 earthquake in Haiti exacerbated the existing vulnerability and disfranchisement faced by women, girls, and LGBT individuals, resulting in drastically increased rates of sexual assault, human trafficking, and intimate partner abuse. More than 1.5 million Haitians were left homeless by the earthquake, most of them living in IDP camps in and around Port-au-Prince. A combination of voluntary relocation, resettlement programs, and forced evictions has since moved most Haitians out of the camps, but almost five years after the earthquake there are still 100,000 Haitians living in camps. Internally displaced persons camps generally have unsafe and inhumane living conditions. Makeshift housing is made from tarps, corrugated metal and sticks; there are few toilets and, when it rains, homes can flood with raw sewage and mud. A 2011 survey conducted in displacement camps indicated that 69 percent of families had one or more family members, including children, go multiple days without eating in the prior week (Institute for Justice & Democracy in Haiti, Lamp for Haiti, University of San Francisco, 2011). Women and sexual minorities who lost their homes and family members in the earthquake were particularly vulnerable because they lost support, resources, and protection. Women’s and LGBT organizations reported numerous cases of women, girls, and sexual minorities trading sex for food and housing.

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According to leaders from FAVILEK and KOFAVIV, reports of sexual assaults surfaced within days after the earthquake. Reports from KOFAVIV listed 230 cases of sexual assault in 15 IDP camps in the two months following the earthquake; most of the assaults were by two or more individuals, almost always armed and at night (Institute for Justice & Democracy in Haiti, MADRE, TransAfrica Forum, Univ. of Minnesota, Univ. of Virginia, 2010, p. 4). From February through April 2010, 534 of the 2,250 arrests (23.7 percent) tracked by human rights group Réseau National de Défense des Droits Humains (National Human Rights Defense Network) were for sexual assault (as reported by d’Adesky, 2012, p. 66). High levels of violence in the camps spilled into the greater Port-au-Prince area. A study by the University of Michigan estimated that three percent of all respondents in Port-au-Prince had been sexually assaulted within two months after the earthquake. One-half of the victims were girls under the age of 18 (Kolbe et al., 2010). Kay Fanm and Solidarite Fanm Ayisyen (Solidary of Haitian Women), a women’s rights organization, reported a jump in intimate partner violence after the earthquake, from around 80 percent of their reported cases of violence against women to between 91 and 94 percent (as reported in d’Adesky, 2012, p. 63). The main causes of sexual assault in IDP camps are the lack of security and lighting at night and insecure housing. Although women’s groups reported an increase in intimate partner abuse in IDP camps due to strained economics and family relations, the groups focused on increasing security in the camps to stop sexual assaults perpetrated by strangers and acquaintances. Women’s groups living in IDP camps organized to set up volunteer security brigades in their camp. Husbands, fathers, brothers, and sons patrolled the camps at night with whistles and flashlights, and napped by day in tents under the blazing Caribbean sun. Camps with voluntary security brigades reported a sharp decrease in incidents of sexual violence. In response to concerns expressed by grassroots women’s groups, the Inter-American Commission on Human Rights (a body of the Organization of American States) in 2010 recognized the Government of Haiti’s responsibility to prevent sexual violence by non-State actors. It urged the Government to investigate sexual assault cases in displacement camps, provide lighting and security in camps, and ensure public officials responsible for responding to incidents of sexual violence received adequate training. Destruction from the earthquake and scarce resources also exacerbated the violence and intolerance against the LGBT community, especially within IDP camps. Radio stations broadcast stories and churches sermonized that the immoral behavior of homosexuals and other sinners cursed the country and caused the earthquake. In July 2010, police and community members assaulted volunteers and staff from SEROvie while they were organizing awareness-raising sessions in IDP camps about sexual orientation. Their tents were burned down and two people were hospitalized. One month later, eight men gang raped a young lesbian. As a result of this stigmatization, LGBT individuals living in IDP camps reported exercising extra caution, such as hiding their sexuality, to avoid harassment both inside and outside the camps. They also reported receiving heightened harassment from their families and communities.

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V.  G R AS S R O OTS O R G A N IZ AT I O N S A R E C H A N G I N G T H E   L EG A L SYST EM TO PR O S EC U T E A N D PU N I S H V I O L EN C E AG A I N ST WO M EN A N D S E X UA L M I N O R I T I ES

A.  Treatment of Intimate Partner Abuse Cases and Other Sexual Assault Cases by Haiti’s Exclusionary Legal System The judicial system in Haiti reinforces social, political, and economic exclusion that prevents the poor from asserting their fundamental rights. Accompanying poverty are deep fissures within Haitian society. The main divide runs between the vast majority who are poor and the very few who are wealthy. The divide is loosely correlated with other distinctions: skin color, ability to write and speak French, and level of education. Class discrimination and elitist legal training both serve to condition lawyers, judges, and prosecutors to give preferential treatment to the powerful in society, either based on class prejudice or to receive bribes, whereas they discount the testimonies and legal needs of the poor, especially women. Lack of access to education prevents major segments of Haitian society from understanding the workings of the justice system. Legal proceedings and most legal texts are written in French, whereas the majority of the population speaks Haitian Creole. Legal costs and lawyers are too expensive for the poor. The state does not provide legal assistance, and only a handful of civil society organizations offer legal assistance to victims. The Inter-American Commission on Human Rights (IACHR) noted “a noticeable and historical absence of the State—in the spheres of legislation, public policies and institutions—in addressing the issues of discrimination and violence against women [in Haiti]” (2009, para. 129). As a result, most Haitians have no access to the formal justice system. The justice system also suffers from a lack of human and financial resources, which often limits help available to victims of sexual assault, such as legal assistance, emergency shelter, or psychological counseling. Police and judges are poorly paid and receive insufficient training and resources to manage these cases. Chronic under-investment in the court system and low salaries create incentives for corruption among police and judges. Poor women and sexual minorities are particularly marginalized by the limited access to the justice system due to deep-rooted gender/sexual discrimination and the related economic disfranchisement they face. The result is that the administrators of justice at all levels of the judiciary do not consider incidents of violence against women or LGBT individuals a priority, do not take women or LGBT individuals seriously, do not properly investigate cases, and demonstrate a lack of respect for the victims and their families during investigations. Consequently, victims and their families have lost confidence in and avoid the justice system. B.  Summary of Haitian Law for Crimes Against Women and LGBTs Haitian courts apply legal codes adopted from historic French legal tradition that have generally not been updated to protect human rights. The Haitian penal code

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and code of criminal procedure date back to 1825, for example. A  coalition of Haitian women’s NGOs successfully lobbied for passage of a law in 2005 that made rape a crime punishable by 10 years to life, depending on whether the victim is less than 15 years old, the assault was a gang rape, or the victim died. The law also overturned a provision that excused a husband for criminal liability for killing his wife (and her lover) if caught in the act of adultery. Courts saw a spike in prosecution of sexual assault cases after the earthquake, thanks to the push from women’s groups. Notwithstanding these significant advances in the law, domestic violence and marital rape are still not specifically criminalized, even though such cases constitute the majority of the cases of violence against women in Haiti. Victims of intimate partner abuse can avail themselves of the 2005 rape law but, according to BAI lawyers, intimate partner abuse cases other than murder are rarely taken seriously by the police or prosecuted. Although intimate partner abuse should be prosecuted under current sexual assault and assault and battery laws, cases are not pursued because the penal code does not specifically acknowledge spousal violence, making consent and other elements more difficult to prove. By 2009, there had been only 15 documented convictions for rape since the July 2005 Decree, none of them involving intimate partners (IACHR, 2009, p. 111). The law also does not provide any legal measures to prevent imminent acts of violence, such as restraining orders. C.  Pending Legal Reforms: Proposed Penal Code Reform and Violence Against Women Bill In 2011, the Ministère a la Condition Féminine et aux Droits des Femmes (Women’s Ministry) in partnership with the OAS launched an initiative to develop a comprehensive bill on violence against women and girls (“draft VAW Bill”). The draft VAW bill has numerous provisions that would revolutionize legal remedies available to victims of intimate partner abuse. The draft VAW Bill proposes to expand the definition of violence against women to include violence “committed in the family, in the household,” provide a modern definition of rape (including a specific provision to criminalize marital rape), authorize restraining orders with child custody orders in intimate partner abuse cases, and establish a special Court of Violence Against Women. The draft VAW Bill would also protect against discrimination based on sexual orientation, criminalize stalking and sexual harassment, and legalize abortions during the first 12 weeks of pregnancy if the mother’s health is in danger. A draft penal code has also been prepared. The proposed law is less comprehensive than the draft VAW Bill, but does criminalize all forms of sexual assault regardless of the existing relationship between the aggressor and the victim. The draft code also defines consent, criminalizes sexual intercourse with minors aged 15 to 18 as statutory rape (unless the accused is less than three years older than the victim or is married to the victim), and enumerates multiple forms of aggravated sexual assault, including with use of a firearm and cases of incest. Last, the draft code criminalizes certain circumstances of discrimination and acts of violence committed against persons on the basis of their sexual orientation or gender identity. As of March 2015, neither the draft VAW Bill nor the draft penal code has been approved by Parliament. The bills’ submission to Parliament is influenced by recent unstable politics in Haiti, which have contributed to the stalling of several

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proposed laws before Parliament. Despite the delays, the draft laws remain important steps to a legal framework criminalizing intimate partner violence and achieving much needed legal remedies and social services for victims and their families. The bills reflect almost a decade of collaboration between Haitian and foreign government officials, professors, lawyers, and women’s organizations, many of whose members are themselves victims of sexual assault and intimate partner abuse. D.  The Women’s Movement as a Catalyst to Changing the Legal System The most revolutionary aspect of women’s organizations in Haiti is that they exist at all after centuries of patriarchy and brutal repression. Women’s organizations have flourished throughout the country in the last three decades, in all socioeconomic classes and geographical areas. Groups are established to promote many purposes, including commercial, credit, cultural, political, social, and human rights. Many women find membership empowering far beyond their group’s official purpose. They report that an organization behind them, with the threat of concerted action, gives them confidence and provides leverage within their families and communities. The women’s movement has, however, gone beyond simply persevering. Women’s organizations constitute one of the most dynamic sectors of Haitian civil society, with women inserting their concerns, perspectives, and selves into all areas of the struggle. Women have made substantial gains in most areas, from the home to national politics. Among the more prominent recent successes are the creation of a Ministry for Women’s Affairs and the nomination of several women ministers, including a Prime Minister. Ten out of the twenty-three current Ministers are women, a greater percentage than found in many Western governments. Poverty is the largest single obstacle to women’s community organizing. Simply surviving consumes the lives of most Haitian women, leaving almost no time or energy for organizing. Dély explained that many women’s groups do not understand their legal rights because their members are too busy “looking for food on the street” (personal communication, February 15, 2014). Poverty limits continuity and consistency within organizations, forcing groups to balance long-term struggles with short-term emergencies affecting society and their members. Within organizations, the attention of leaders and members is often diverted to family emergencies and there are few resources to make photocopies, arrange meetings, and purchase basic supplies. The agenda of women’s groups is often dictated by the flow of international resources, if any are available. Another obstacle to women’s organizing is the deep historical fault line in Haitian society. As elsewhere in the world, those who pioneered the formal feminist movement in Haiti were largely women who had the time, resources, and education to take up the struggle—the middle and upper classes. The established women’s organizations, often referred to as “NGOs,” have leadership and members who come from the middle and upper classes. They have a well-developed capacity to analyze, organize, write, advocate in the national and international media, and access funding from the Haitian government and international community. In terms of numbers of groups and total membership, however, it is local grassroots groups that do

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the bulk of women’s organizing in Haiti and represent the “voice” of most Haitian women. Grassroots groups are usually loosely organized without significant financial support, international contacts, or access to the media. Their members and leaders are generally poor and not well educated. The power dynamic of the women’s movement shifted after the earthquake. Grassroots women’s groups that already had established support networks were some of the most focused and well-organized responders from civil society after the devastating earthquake and were able to attract the attention of the international community and the Haitian government. Their progress was not without struggle, however. Leaders from these groups, many living in IDP camps, reported being excluded from participation and leadership in post-earthquake relief efforts led by the Haitian government, international community, and even Haitian women’s NGOs (Institute for Justice & Democracy in Haiti, 2010, pp. 18–19). E.  Engagement with the Legal System With the assistance of grassroots partners FAVILEK, KOFAVIV, and KONAMAVID, BAI developed the “Rape Accountability and Prevention Program” (RAPP) in 2010, which combines legal representation with community-based organizing and advocacy by grassroots groups to provide a comprehensive set of services to victims of sexual violence. Through RAPP, BAI lawyers provide legal assistance to women and children who have been victims of sexual violence, while working closely with grassroots groups to organize and build capacity to address and prevent future gender-based violence (Bookey, 2011, p. 128). RAPP shifts the emphasis of groups and victims of sexual violence from acting as human rights defenders to human rights enforcers. With the aid of a coordinator, grassroots groups are organized as a women’s network to cultivate solidarity and collective mobilization among Haitian women’s groups facing the same social and economic issues. By bringing cases through the Haitian legal system, BAI forces the justice system to respond to victims of gender-based violence. At the same time, the success and advancement of the legal cases depend heavily on the groundwork and advocacy of partner grassroots groups to identify victims and help them rehabilitate and reintegrate into society. The model moves beyond legal representation before the courts. It uses the community networks as well as solidarity of women victims to advance the judicial process while allowing communities to promote social and political change. The LGBT groups are using a similar model to assist sexual minorities who have been victims of sexual assault and hate crimes. Organizations such as Kouraj (Courage), SEROvie, and Femme en Action contre la Stigmatisation et la Discrimination Sexuelle (FACSDIS, or Women in Action against Stigmatization and Sexual Discrimination) offer “know-your-rights” training to LGBT communities and accompany victims to police stations, hospitals, and courts. Discrimination against sexual minorities in the justice system remains overpowering, but the work of LGBT groups is helping make sexual orientation discrimination more widely recognized by law enforcement, judges, and attorneys as a human rights violation, as illustrated by the draft penal code that criminalizes hate crimes based on sexual orientation.

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1.  Accompanying Victims to Police Stations

Under the RAPP model, community agents from grassroots women’s groups accompany victims of sexual violence to police stations to file complaints and demand suspects be arrested. Without this help, most women do not report their rapes to law enforcement because they fear abuse or discriminatory treatment by police officers. Repeated accompaniment also forces police officers to take the complaints seriously and investigate. Haiti’s police force lacks experience in dealing with victims and documenting crimes of sexual violence. Police officers often shame and blame the victims, sometimes asking what she wore that may have caused sexual assault or if she had previously had sexual relations with the perpetrator. Lack of manpower and resources are often used as excuses by the police for their failure to investigate the scene of a crime, and they generally do not acquire sufficient evidence to support prosecution (Jagannath, 2012, p. 36). Women also frequently receive misinformation from police officers—the police may refer the victim to the justice of the peace, for example, instead of taking her complaint directly as they are required to do. Victims in the LGBT community frequently encounter difficulties reporting sexual violence and intimate partner abuse to police. Officers will often refuse to take a complaint or will further abuse or humiliate the victim. Kouraj says it is common for a police officer to tell an LGBT victim of intimate spousal abuse that he deserved it because he is homosexual. Lesbians who are raped are afraid to tell the police that their rape was motivated by their sexual orientation for fear that the police will not take their case seriously or that they will be further abused. As a result of historically poor treatment, LGBT individuals generally only go to the police as a last resort or when accompanied by an LGBT organization. Since the earthquake, consciousness among female and LGBT victims has risen and more cases of sexual violence have been reported. As a result of the demands of women’s groups, and with the help of international funding, police have undergone sensitivity training in gender-based violence cases. Legal organizations have noticed a significant difference in the reactivity of officers who are well trained. However, KOFAVIV agents say that despite this training, it is still common for the police to demand “a favor”—a small bribe of about $15—to investigate a case or make an arrest. Police training has had some impact on the response to spousal rape, but police remain reluctant to involve themselves in domestic matters. 2.  Accompanying Victims to the Hospital

Obtaining a medical certificate represents one of the biggest obstacles to prosecuting sexual assault cases. A medical certificate is a statement from a medical provider that describes the victim’s condition and treatment, but the form and content of medical certificates can vary from one to several pages long, depending on the provider. Although medical certificates are not required by any written law to prosecute rape cases, judges and prosecutors will often not pursue a case if one has not been provided or does not provide sufficient detail (Jagannath, 2012, p. 39). Moreover, many victims cannot afford transportation to the medical facility or are unaware of facilities offering free medical services and certificates. Victims are also afraid to be examined and report their assault, especially with a male doctor. LGBT individuals are particularly discriminated against when seeking medical treatment, often being denied a medical certificate or completely refused treatment.

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Not only is the medical certificate requirement troubling because it prevents a woman from proving a rape unless her assertion is confirmed by a (typically male) professional, but the certificates themselves can be misleading. Many rapes do not leave injuries indicating the use of force, yet if the medical certificate does not document the use of force (which is often the case if the victim was not a virgin when assaulted), judges and prosecutors will dismiss the case for lack of evidence of force. In one recent case now pending before the Haitian Supreme Court, the prosecutor and appellate court relied on an inconclusive medical certificate that found no evidence of force and disregarded the victim’s detailed testimony of being bound, beaten, and raped twice (personal communication with Eve Emmanuella Bruno, August 5, 2014). Unfortunately, this over-emphasis of the medical certificate is typical. Women’s groups provide training on the importance of medical certificates to prosecuting violence cases and barriers to obtaining certificates. Community agents accompany victims of sexual assault to hospitals as soon as possible after the assault to obtain any necessary medical treatment and a certificate, thereby helping victims obtain the evidence that remains integral to successful prosecution. Lawyers and women’s groups are also successfully challenging the practice of relying on medical certificates in court by offering alternative forms of evidence to support their cases, such as testimony of medical experts. 3.  Accompanying Victims in Court

Serious backlogs and long wait times encourage corruption in the Haitian justice system. Attorneys often pay clerks or other officials to jump the line and have their cases heard before others. Victims without lawyers are left out of the behind-the-scenes maneuvering within the courthouse and cannot exert the sustained pressure on the prosecutor and investigating magistrate necessary to push their cases forward. Male judges and prosecutors do not have adequate training to address the sensitivities of the victims of violence and often try to intimidate and threaten lawyers representing victims in court. Judges might also unknowingly re-traumatize the victim at a confrontation hearing by making a victim sit next to the abuser. Judges’ insensitivity includes severe homophobia. In 2012, a husband beat his wife to death when he discovered she was a lesbian. The judge called the woman a “vagabond and a delinquent,” and declined to issue a final judgment. The husband is in custody, but could be released at any time. Under RAPP, BAI lawyers work with grassroots women’s groups to bring legal cases and represent gender-based violence survivors in court. Women’s groups refer the cases, and BAI lawyers represent the survivors as parties civiles (civil parties). The partie civile procedure, from the Napoleonic system adopted by Haiti, permits crime victims to piggyback a civil case onto a criminal prosecution. Partie-civile lawyers are permitted to participate in most aspects of the proceedings including introducing evidence and examining witnesses. The victim’s civil lawyers may represent the victim throughout the criminal proceedings, which enables them to appear at trial and most pre-trial hearings, present evidence, examine witnesses, and respond to rulings, motions, and appeals. The partie civile procedure is particularly useful in responding to the challenges and opportunities of Haiti’s justice system. A  persistent and aggressive civil lawyer can apply pressure to keep the case moving and ensure that officials perform

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adequately, as well as provide judicial officials with legal research, analysis, and assistance locating evidence. The partie civile procedure also affords the lawyer a chance to stay engaged with and educate women’s groups about the case and focus political pressure. Lawyers with BAI view their RAPP cases as impact litigation that makes the judicial system more efficient for victims, stimulates societal debate, and creates rights enforcers with transferable skills in a variety of contexts (Jagannath, Phillips, & Shah, 2012). By pressuring judicial officials to advance rape cases without bribes, and by presenting sophisticated legal arguments and evidence such as medical expert testimony, lawyers communicate the significance of these cases to judges and help modernize the system. Moreover, by working directly with the victims and grassroots women’s organizations throughout preparation of the case and trial, BAI lawyers also help break down traditional elitist barriers and provide much needed support to survivors brave enough to navigate the legal system. Observation of court proceedings also empowers women’s groups with knowledge about the justice system and their members’ cases. V I. C O N C LU S I O N

Before the significant post-earthquake work of victims’ groups, violence against women and sexual minorities was not widely reported, despite its prevalence in all sectors of Haitian society. Victims face many obstacles to reporting violence, including stigma, limited resources and information, fear of reprisals, and lack confidence in the judicial system. Although obstacles still remain, local groups have done a great deal to motivate women, girls, and LGBT individuals to speak out, get essential medical care immediately after an attack, and file a complaint with the police. Victims’ increasing awareness of their rights has created great demand for legal services. Engagement with police, judicial personnel, lawyers, and other government representatives have produced a noticeable change in attitude toward sexual violence between 2010 and 2014. Although many police officers continue to express discriminatory attitudes toward the complainants of sexual assault and intimate partner abuse, a growing number of trained officers are more willing to receive a sexual assault complaint. In addition, prosecutors are less dismissive of sexual assault today than they were immediately after the earthquake. More awareness and training for the various players in the justice system is needed, but women’s groups have created a framework for public participation in sexual assault cases and improved the treatment of women in the Haitian judicial system. As a result, more women are reporting sexual violence and these cases are making their way onto court dockets, generating a momentum that could result in profound changes to Haiti’s legal system and society. AC K N OW L ED G M EN T

The author thanks Brian Concannon for his tireless mentorship, Meena Jagannath for her invaluable scholarship, and Eve Emmanuella Bruno, Manusca Duversaint,

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Dieunel Fleury Jean, Mario Joseph, and their colleagues at the Bureau des Avocats Internationaux for their pioneering work with Haitian women, which is transforming Haiti’s justice system. Last, she thanks the awe-inspiring members of FAVILEK, KOFAVIV, and KONAMAVID for their leadership to women around the world. This chapter is dedicated in loving memory of Mary Atchinson.

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Violence Against Palestinian Women in the West Bank N A D E R A S H A L H O U B - K E V O R K I A N A N D A D R I E N K .   W I N G   ■

I.  I N T R O D U CT I O N

Palestinian women in the West Bank suffer from an intricate form of triple oppression: Israeli settler colonial violence; patriarchal ideologies, policies, and practices within an oppressive system of control; and sociolegal discrimination (Shalhoub-Kevorkian, 2012; Shalhoub-Kevorkian & Daher-Nashif, 2013).1 To understand violence against women (VAW) in the Palestinian context, all three forms of oppression and their intersections must be taken into account. In particular, the violent context of settler colonialism cannot be overstated. Historian Patrick Wolfe points out that settler colonialism is a structure, not an event. He stresses that settler colonialism is inherently eliminatory, and the primary motive underlying this desire for elimination is access to territory. Wolfe (2006) explains, “Territoriality is settler colonialism’s specific, irreducible element” (pp. 387–388). The territorial invasion aims to destroy the natives’ traces, to replace them with the settlers. Colonialists demolish before they construct new spaces and both of these processes function to erase the history, culture, and past existence of the native. Palestinian women live in this context. When VAW occurs under the Israeli settler colonial context, women are subjected to multiple forms of violence: home demolitions; restricted mobility (from neighborhood closures); physical inspections at checkpoints; difficulty accessing health centers (even resulting in women having to give birth at checkpoints); harassment; arrest; and, impaired access to work places, schools, universities, and other social supports. The Israeli army, as well as armed and unarmed Jewish settlers, regularly engage in violence against Palestinians. For instance, the Israeli settler group Tag Mehir (Price Tag) has burned trees, invaded homes, physically attacked women and children, and defaced buildings with graffiti messages like “get out” and “death to Arabs.” Where a Palestinian woman lives under settler colonialism also affects how VAW is manifested. Women in Israel, East Jerusalem, Gaza, and the West Bank have different experiences. Moreover, even within the West Bank (the focus of this chapter), women’s experiences vary depending on whether they live in Area A, ostensibly

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under Palestinian Authority (PA) control; Area B, ostensibly under partial control; or Areas C, H1, or H2 (Hebron), which are under total Israeli control. In reality, all of the areas are affected by Israeli control (Shalhoub-Kevorkian & Daher-Nashif, 2013). One cannot discount the role of intra-community violence. When VAW occurs through the Palestinian patriarchal system, it happens through various internal social forces, including the family, community, politico-religious power holders, health services, social institutions, and educational services. Especially within the context of settler colonialism, where cultural and family preservation take on a different significance, these forces can be particularly powerful. Finally, patriarchal and gender-discriminatory oppression is exercised through a plurality of local laws as well as various parallel legal systems including tribal (customary), religious, and civil systems, and contradictory and unclear bureaucracies that “tend to disregard and/or marginalize women’s entitlements, needs, and rights” (United Nations [UN] Women, 2014, p. 12). We adopt a macroperspective by exposing how structural oppression, in all these ways, is active in abused women’s experiences. First, we provide a brief statistical overview of VAW in the West Bank. Then we present the numerous adjudication systems that women must navigate to combat VAW, before we describe the various legal rules, institutions, and social services affecting VAW. Finally, acknowledging the current political climate of the settler colonial continuous regime of control, and that the moribund status of the Israel–Palestinian “peace process,” and the ineffectiveness of Palestinian institutions, we conclude with some concrete proposals to mitigate violence against Palestinian women. We also include suggestions as to how the Palestinian experience may hold lessons for the United States. We have chosen to use the term “violence against women,” as it best reflects the experiences of Palestinian women. The terms “domestic” violence or “intimate partner” violence are overly narrow, since Palestinian women are significantly affected by violence outside the home, and “intimate partner” violence does not include violence from other family members or outsiders (Clark et al., 2010; Haj-Yahia & Clark, 2013). The chapter does not discuss Palestinian women living inside Israel and occupied East Jerusalem, as they are subject to Israeli civil law and the personal status law of their religion as handled by courts inside of Israel or East Jerusalem (ShalhoubKevorkian, 1999, 2000). Nor does it discuss Gazan women; they are currently governed by a mix of Egyptian civil laws and religious and customary policies utilized by Hamas and deeply affected by the Israeli blockade and various attacks, including the 2008–2009 and 2014 bombardments (Thabet, Abu Tawahina, Serraj, & Vostanis, 2011). Gazan women endure a situation so complex that it could hardly be adequately addressed here. Finally, we do not discuss lesbian women as a specific subgroup. In spite of some societal changes in the past five to seven years, homosexuality in Palestine remains a taboo subject under civil, religious, and customary practices2; any available information is extremely limited. I I. STAT I ST I C S

Due to the severe geographic fragmentation of Palestine and limited resources, the PA cannot collect the statistics that might provide an accurate picture of VAW. The unstable and unclear machinery of the settler colonial control created parallel and

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confusing informal and sociolegal systems that control and silence women’s disclosure of abuse. Because of customary and religious norms, women either request that the internal patriarchal system intervene when needed or hide or keep silent concerning private family matters, in part due to the need to prioritize violence stemming from the militarism and dispossession of the settler colonial structure. Given the geopolitical constraints (apparent in the restriction on travel between the various parts of the West Bank), access to services is severely curtailed (United Nations Office for the Coordination of Humanitarian Affairs [OCHA], 2012), and informal customary and religious norms and practices become the only certain and accessible systems for abused women. Nevertheless, the PA has conducted several surveys concerning violence (Palestinian Central Bureau of Statistics [PCBS] 1994, 1995, 2005). A 2011 study conducted by the Palestinian Central Bureau of Statistics revealed that among 5,811 Palestinian families (3,891 in the West Bank and 1,920 in the Gaza Strip), about 37 percent of women who have been married surveyed (29.9 percent in the West Bank and 51.1 percent in Gaza) reported that they had experienced spousal violence in the last year. A majority, 58.6 percent, reported psychological violence; 55.1 percent reported economic deprivation; 54.8 percent experienced forced social isolation; 23.5 percent physical violence; and 11.8 percent were subjected to sexual violence. According to that survey, in response to the violence, 30.2 percent sought refuge with family, and 65.3 percent kept silent. Only 0.7 percent of those women who experienced violence sought refuge in one of the few shelters (PCBS 2011, pp. 12, 17). The published statistics also show that VAW has been rising in the West Bank, even taking into account the likelihood of underreporting. In 2006, 64 cases of sexual assault were reported, as compared with 85 in 2007, 339 in 2008, and 466 in 2009. The total number of reported murder attempts against women was 72 in 2009. These incidents ranged from stabbing to poisoning, intense beating, denial of treatment following exposure to violence, burning, drowning, and falling. Palestinian police statistics for the West Bank in 2009 indicate that 1,173 cases of domestic violence and violence within the family were reported that year, including physical abuse, attempted murder, threats, rape, attempted rape, and attempted suicide (Palestinian National Authority Ministry of Women’s Affairs, 2011). Murders committed in the name of “family honor” can be viewed distinctly. Based on statistics from the al-Muntada Coalition, 11 cases of femicide committed on the pretext of family honor were documented in 2009, 7 of which occurred in the West Bank (Mehwar, 2009). According to MARSAD (the Palestinian Security Sector Observatory), 13 women were killed in the West Bank under this pretext in 2012 (Al-Ghussein & Patchett, 2012). In 2013, there were 28 cases of femicide that took place under the pretext of family honor in the PA-controlled area (UN Women, 2014, p. 13). Shalhoub-Kevorkian (2005) has noted that in some instances, the public disclosure of sexual assault/abuse against a woman increases the likelihood of her murder in the name of family honor (p. 1191). III. A D J U D I CAT I O N SYST EM S

One aspect of structural oppression against abused Palestinian women is the maze of adjudication systems women must navigate for any form of assistance or protection.

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Women seeking redress from violence may have to engage several parts of a very intricate system, potentially involving the civil, religious, and military courts, and the customary dispute resolution system as well. Each of these adjudication methods has its own sets of rules. As a result, even choosing which of the systems to engage and employ is exceedingly difficult. Women cannot begin to guess which court will provide the best process or outcome. To make matters even more difficult, each of the courts can fail to follow its own regulations and rules at any time, due to larger political and spatial hardships and violence. Because there are no specialized courts or judges dedicated to working on VAW, women are forced to plot a course through one or more courts. The first level of the civil courts includes Conciliation and First Instance Courts. Conciliation Courts are used to judge civil disputes and criminal cases. Additionally, there is a Municipal Court in each Conciliation Court, which reviews violations of municipal laws. First Instance Courts have jurisdiction to hear all claims in civil cases that do not fall within the jurisdiction of the Conciliation Courts and can also hear appeals from the Conciliation Courts. In terms of criminal cases, First Instance Courts also hear more serious criminal cases (United Nations Development Programme [UNDP], 2009, p. 11). The second level of Palestinian courts are the Appellate Courts or Courts of Appeal; the third level is the High Court (Supreme Court), which is comprised of the Court of Cassation and the High Court of Justice. The Court of Cassation exercises jurisdiction over civil and criminal challenges from the Courts of Appeal and challenges to the appellate decisions of the First Instance Courts. The High Court of Justice is responsible for reviewing certain types of administrative disputes (UNDP, 2009, p. 11). A Constitutional Court, which would hear constitutional matters and have jurisdiction over the West Bank and Gaza, is planned, but does not exist yet. Religious courts handle matters of family law such as marriage, divorce, alimony payments, and child custody, as well as inheritance law. For Muslims, who make up more than 90 percent of the Palestinian population, there are Shari’a Courts; for Christians, there are Church Courts (UNDP, 2009, p. 11). Violence against women may be raised in these courts, especially in matters involving divorce or custody. There are no specialized courts or judges dedicated to working on VAW, and female victims/survivors may decide or be encouraged by family members or officials to remain silent about their cases instead of risking exposure due to the lack of confidentiality in the existing court system. It is the prosecutor’s job to deal with various crimes, including VAW. Judges consider prosecutors’ reports to be the most important pieces of evidence. Therefore, these reports seriously affect judicial outcomes and the fate of women victims (Palestinian National Authority Ministry of Women’s Affairs. (2011, p. 24). Unfortunately, prosecutors can be difficult to persuade in VAW cases. Women in shelters interviewed during the development of the Palestinian National Strategy to Combat Violence against Women 2011–2019, stated that prosecutors had humiliated and embarrassed them during the interrogation process (p. 24). In addition to the formal system, a customary (also called tribal or “clan-based”) justice system also functions throughout the West Bank. Sulha, a traditional indigenous method of conflict resolution, can also be used by elders or judges to settle disputes (Birzeit, 2006; Wing, 1993).

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Formal courts may be inaccessible to women experiencing violence. Due to the military occupation and the Israeli structure of oppression, and despite the Oslo Accords granting some authority to the Palestinian government, Israel retains extensive direct control over Palestinians living in the West Bank regarding issues it defines as “security” matters. Thus, for example, the parties may be prevented from attending hearings if Israeli authorities close off roads without notice, construct separation walls, or establish military checkpoints. The unpredictable “securitized” structural hardships can operate to deny both women and men access to both the formal and the informal justice systems, as they may be entirely absent or late for civil court or customary law hearings. This affects defendants too. For example, if the husband or son who is supposed to appear for a VAW matter runs away to an Israeli controlled area, or finds himself arrested on an Israeli “security issue,” his family may be unable to confirm his whereabouts. I V. L EG A L R U L ES A FFECT I N G V I O L EN C E

As it stands, Palestinian law is inadequate to protect women and girls from abuse. The rules that technically protect Palestinian women include formal mechanisms, such as the Palestinian Basic Law, the penal code, the executive framework (police, the judiciary, and the Ministry of Social Affairs), and informal mechanisms, such as “the family, community, and tribal systems, religious personnel and institutions, political parties, and women’s institutions” (UN Women, 2014, p. 14). The 1988 Palestinian Declaration of Independence, a nonbinding document, includes a passage involving gender equality: Governance will be based on principles of social justice, equality, and non-discrimination in public rights of men and women, on grounds of race, religion, color or sex, under the aegis of a constitution which ensures the rule of law and an independent judiciary. Article 9 of the amended Palestinian Basic Law has a binding clause statement that states: “All Palestinians are equal under the law and judiciary, without discrimination on the basis of race, sex, color, religion, political views, or disability.” Article 10 goes on to declare: “The Palestinian National Authority shall work without delay to become a party to regional and international declarations and covenants that protect human rights.” Due to the unstable political situation, the Basic Law articles have not been implemented (Palestine National Council, 1988). The patriarchal nature of existing Palestinian law denies women human rights and creates a context within which violence flourishes. Service providers from diverse professions have recounted how women and girls are not properly protected within the current Palestinian legal system (Chaban, 2011). For instance, the first paragraph of Article 11, which states that “personal freedom is a natural right, and shall be guaranteed and protected,” conflicts with some applied local laws, which deprive women of their personal freedom. This is evident in the texts of local laws such as the penal code and personal status law, which entrench women’s dependency on men. For example, women can be made to marry their rapists (Jordanian Penal Code No. 16 of 1960, Art. 308). Women must have guardians to enter into marriages (wali)

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(Jordanian Personal Status Law of 1976, Art. 9), and need the approval of the husband to work outside the home (Jordanian Personal Status Law of 1976, Art. 68). Similarly, Article 4 of the Basic Law states that Islam is the national religion and that Shari’a is a source of law. Since many religious practices are patriarchal and discriminate against women, these practices can conflict with Article 9 as well (Wing & Kassim, 2007). Although the PA has introduced some new legislation since the 1993 Oslo Accords, the bulk of laws on record still draw from the Ottoman and British Mandate eras, and the Egyptian (Gaza Strip) and Jordanian (West Bank) systems. Legislatively, East Jerusalem, annexed by Israel, falls under Israeli civil jurisdiction. In non–PA-controlled areas of the West Bank, (Area C and occasionally Area B), Israeli military law is used. Customary laws are frequently applied to disputes at the local level or within families (Chaban, 2011). The applicable penal codes are not based on the Palestinian Basic Law issued in 2003 and were not written by Palestinians or based on their needs and requests. Rather, the conflicts between the parallel legal systems, added to geopolitical and violent settler colonial structure, resulted in the reproduction of patriarchal laws throughout the West Bank. A public opinion poll on the status of Palestinian women found that 77 percent of respondents (male and female) believed that more laws must be enacted to protect women from domestic violence. The same poll also revealed that 74 percent of the Palestinian population supports an amendment to the current law that allows for murder in the name of honor (Chaban, 2011). Women do not have even the modicum of a vernacularized legal protection. Instead, the laws often treat women as responsible for crimes perpetrated against them. The notion that a woman might be made to marry her rapist is symbolic of this “blaming the victim” mentality (UN Women, 2014, p. 15). Similarly, VAW can also be linked to family honor. The constant and continuous violence, accumulation by dispossession, empowered internal patriarchal powers, and encouraged customary practices in the West Bank combine to place a high value on family honor. Patriarchal power holders claim that female purity and proper behavior are the heart of family honor. To ensure nothing disgraceful or dishonorable occurs that will shame the family in the eyes of the family or broader community, conduct ranging from talking to an unrelated male to dating, touching, and sexual behavior outside of marriage can be violations. Breaches of family honor must be avenged, often by a male family member against his own sister, cousin, wife, or mother (Shalhoub-Kevorkian, 2003, p. 587; 2005, p. 1190). Two penal codes can be invoked to assist women: the Jordanian Code of 1960, applied in the West Bank, and the penal code of 1936, applied in the Gaza Strip. Proposals to create one code were submitted to the Palestinian Legislative Council (PLC), but efforts were stymied by the political paralysis and dysfunction of the PLC, the detention of some PLC members, and the low priority afforded to protecting women and girls from violence generally; no agreement was ever reached. The 1960 Jordanian Penal Code is patriarchal and antiquated. For instance, Article 292 Paragraph 1 states that rape is defined as non-consensual penetration of a female who is not the wife of the perpetrator. The law does not recognize marital rape as a crime, and therefore does not protect wives from spousal rape. The law also does not address the rape of boys or men. As mentioned previously, women and girls who are raped are told by some of their families and community leaders to marry the

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rapist (legally approved), or an older or disabled man, or are incarcerated at home or in prison. These methods, and others like them, effectively sentence the victim to living while on death row (Shalhoub-Kevorkian, 2003, p. 581). Sexual attacks without penetration are not considered rape. Such acts merit milder punishment (Jallad, 2012, p.  8). Both Articles 292(1) and 296(1) classify unwanted sexual contact other than vaginal penetration as sexual assault, irrespective of its gravity or harm. Article 296(2) only prescribes an enhanced punishment for sexual assault when the victim is younger than age 15. The terminology used in Article 296 does provide that sexual assault is committed against persons, however, which means both men and women (Jallad, 2012, p. 8). The punishment for sexual abuse is aggravated if the victim of the assault is a child and the assault occurs within the family and is perpetrated by the person responsible for raising that child, a person having direct authority over the child, or an ascendant relative. Ascendant refers specifically to the father and grandfather, which means that the aggravated punishment for sexual crimes cannot apply to brothers and uncles. The penal codes also apply to adultery and incest crimes. Both penal codes define adultery as when two people, of whom both or one is married, have sex, and incest as two people within the same family, including legal or illegal descendants or ascendants, in-laws, or those with legal or actual authority over the victim having sex. Both crimes are considered consensual, occurring with both parties’ consent and responsibility, as opposed to rape or sexual assault. A complaint for adultery or incest can only be filed by a man; women are considered incompetent to file complaints for such crimes. Adultery is considered a mitigating circumstance in murders committed by husbands, but not those committed by wives. Jordanian Penal Code No. 16 of 1960 Article 340 states: 1) A husband who surprises his wife or a close female relative in the act of adultery with another person, and kills, injures, or harms either of them, or both, shall benefit from a mitigating excuse. 2) The perpetrator of a killing or an injury shall benefit from a mitigating excuse if he surprises a spouse, ascendant, descendant, or sibling with another person in an unlawful bed. 3 This law has been unanimously condemned by human rights and women’s rights organizations, who called for its immediate cancellation after numerous women were killed under the pretext of “honor.” In May, 2011, PA President Mahmoud Abbas signed a presidential decree that removed Article 340 from the Jordanian Penal Law applied in the West Bank, ostensibly ending the sanctioning of lenient sentences for acts of femicide. The decree does not fully address the problem of undersentencing, however. Many lenient sentences are issued not under these articles, which relate specifically to crimes of passion, but rather through Jordanian Penal Law Articles 98, 99, and 100, which give judges significant discretion to reduce sentences as they wish. Women’s status in Palestinian society is further jeopardized by the practice of polygamy. Muslim men can marry up to four wives, although polygamy is not widely practiced in the West Bank. Nonetheless, a husband may decide to marry another woman, with or without his first wife’s consent. In 2011, the head of the Palestinian

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Shari’a Supreme Council invalidated Article 28 of the Jordanian Personal Status Law, which did not require a man to inform his wife about his other marriages, stating that a “man has to inform his wife about his interest in taking another wife” (Jallad, 2012, p.  12). This decision is not binding law, however; men are able to choose whether they wish to abide by it. Moreover, the legal decision requires the man to inform his first wife about a second marriage, but does not require him to seek or obtain her permission. Nor is the husband obliged to prove that he has the economic ability to provide shelter and food for the second wife. As a result, the second wife’s arrival commonly weakens the economic security and status of the man’s first wife and their children. Another law that underscores the patriarchal nature of Palestinian society is Article 38 of the Jordanian Personal Status Law, which allows a man to divorce his wife in absentia. The male has a powerful monopoly over the future of the marital relationship. The threat that such power provides can trap women in violent relationships, lest their complaints lead to unwanted divorces. In some instances, the religious courts are more protective of women’s rights than the Palestinian law. First, the Chief Justice of the Shari’a Court has ordered that in inheritance cases, women should be informed of the value of their inheritance directly by a court official, ensuring that accurate information is given. Second, the Shari’a Court has required that current wives are informed of any further polygamous marriages, so that additional marriages cannot be hidden. Third, the Court decreed that a wife must be informed if she is being divorced at the moment that she is being divorced (WCLAC, 2011). The customary system plays an important role in the enforcement of order in Palestinian society. In some rural places, custom overrides official laws, including in situations involving violence against women. Informal mechanisms for addressing cases of VAW includes the intervention of the extended family, the tribe, or the hamula (clan). (Palestinian National Authority Ministry of Women’s Affairs, 2011, p. 24). V. I N ST I T U T I O N S

The police are a critical institution for enforcement of the laws that do exist to protect women. According to data published by the Family Protection Unit (FPU), a division of the police established in 2008 by the PA to protect women from violence, the FPU caseload was 1,755 cases from 2010 to 2011. More than 2,500 incidents were reported. Although the family violence caseload is high compared to other types of crimes, the number of cases of family violence reported to the police represents only a fraction of the actual incidents (Palestinian Civil Police Family Protection Unit Strategy [PCPFPU], 2013, p. 6). Moreover, despite the existence of the FPUs, police departments lack the appropriate infrastructure and qualified staff needed to serve abused women. For instance, by defining which family members have the right to file a complaint with the police and how police investigations are conducted, existing Palestinian laws limit police ability to offer women full protection, especially when it comes to honor crimes. In some cases, police officers who receive complaints from abused women encourage them not to press charges and to resolve the problem

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within the family instead (Amnesty International, 2005, p. 25). Furthermore, even when the police respond to women’s calls for help, travel restrictions and Israeli “security” arrangements can prevent the police from reaching or responding to women in need (UN Women, 2014, p. 9). The Women’s Access to Justice Observatory has functioned since September 2012 within the Independent Commission for Human Rights. The Observatory’s main aim is to strengthen the monitoring mechanisms regarding women’s access to justice in the Palestinian territories. The documentation system relies on interaction with the key actors in the provision of security and protection services to women—especially specialized shelters and FPUs—to produce a holistic picture of the situation of female victims of violence who attempt to access the justice system. The Observatory has found that conflicting and parallel legal systems (formal and informal), as well as the way in which internal political and police players and parties privilege some victims over others, have added to the geopolitical hardships, further jeopardizing women’s lives. V I.   S O C I A L S ERV I C ES

There are several NGOs dealing with VAW in the West Bank, including the Women’s Center for Legal Aid and Counseling (WCLAC), AMAL Coalition to Combat Violence against Women, SAWA, and the UN Women in Palestine. In the 2011 reporting period, WCLAC provided legal and social counseling to 456 women. Forty-five of these were cases that were continued from the previous reporting period, and 411 were new clients from East Jerusalem, Ramallah, Hebron, and Bethlehem. Fifty-eight of the new clients were referred to WCLAC by a previous client or were previous clients themselves. One hundred and six cases were brought from the courts, four from government bodies, and fifty from NGOs. There were also a further 382 one-time consultations for clients (Jerusalem: 131; Ramallah:  108; south of the West Bank:  143)  (WCLAC, 2012, p.  33). Given the high rates of abuse, however, these numbers are paltry. Social service provision to victims is challenging in the West Bank. The baseline study for the project Palestinian Women and Security: Why Palestinian Women and Girls Do Not Feel Secure asked Palestinian women and girls about their perceptions of the services available to them. Respondents overwhelmingly indicated that they felt unable to turn to support services for assistance. The report further found that women and girls were either unaware of the support services available to them or, if they were aware, hesitated to use them due to fear of scandal and family humiliation (Chaban, Daraghmeh, & Stettler, 2010, p. 23). With the high rate of poverty and severe constraints on mobility facing Palestinians in general and Palestinian women in particular, women turn first to family and helpers from among the close-knit community. Turning to the family and community may also embed the idea that violence is a private issue to be handled outside of the legal and legislative systems. On the other hand, family and community (including family doctors, teachers, and nurses) intervention might protect women, preserve their safety and security, and prevent the re-victimization that might occur if the women requested the help of customary or formal justice systems.

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V I I. C O N C LU S I O N: PR O P O S A L S FO R ACT I O N A N D L ES SO N S FO R T H E U N I T ED STAT ES

Violence against women in settler colonial context is intricate, and analyses of the workings of power affecting VAW in the Palestinian context invoke additional complications. As this chapter reveals, most Palestinians neither trust the legal system nor believe in its ability to address women’s needs or be attentive to women’s hardships. In one tragic case known personally by coauthor Shalhoub-Kevorkian, Abir Dandis, a young mother from Jerusalem, carrying a West Bank ID, went to six Israeli police stations asking for assistance to prevent her ex-husband (an Israeli citizen) from committing violence against her two little girls, ages 3 and 5. The girls were found dead one day after the mother’s last call for help.4 Palestinian women have not been passive in their response to the situation. Women’s agency is apparent in their constant efforts to protect their loved ones and themselves through calling for help, as Abir’s actions show, and building female support groups such as the ones found in mosques, schools, and health clinics where women meet. Agency is also apparent in their insistence on calling for assistance, addressing the various NGOs, reporting their abuse to police, and calling for informal social control agents such as doctors, teachers, and others, to help stand against violence. Without critically questioning the machinery and structure of oppression, the inscription of power over Palestinian women’s lives, bodies, and psyches will continue. Under the Israeli settler colonial regime and the Palestinian sociolegal system, VAW will remain endemic. Without addressing the political complexity and its implications on VAW and without juxtaposing it with changes to both the legal system and society more generally, Palestinian women and girls, with all their agency and modes of resistance, will remain the most disadvantaged group in an unequal social justice system. The failure to defend women and girls from fragile politicoeconomic and sociolegal systems not only violates their rights to access justice but also entrenches a gender-discriminatory structure and mores that enable the continued abuse and traumatization of present and future generations of women and their children. Until this systematic phenomenon is acknowledged, confronted, and transformed, Palestinian girls and women living in the West Bank will continue to find their access to justice denied, and the repercussions to Palestinian society will be felt for generations to come (UN Women, 2014, p. 6). The present conditions of political uncertainty, coupled with the pre-existing condition of colonial dispossession, make the likelihood of effecting the types of sweeping changes needed to eliminate VAW very slim. Nevertheless, we believe that solutions to VAW must not simply address patriarchy, but the ongoing political dispossession and economic oppression in the West Bank. Solutions must therefore be linked to all Palestinians’ fight for justice, including their fundamental rights to security, a safe home, education, economic independence, freedom of movement, and more. Special considerations must be taken involving women and girls living under areas of partial or total Israel control such as Areas C, H1, and H2, where the most

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egregious injustices and violations occur. For example, every time a call is made to the Israelis to approve someone’s access to and within Area C in a VAW case, the need to justify the request and the time and energy it takes to make it jeopardizes women’s safety, weakens Palestinians’ capacities, exposes them to Israel’s security questioning, and discloses women’s conditions to untrustworthy sources. It also empowers the internal Palestinian patriarchal system. Importantly, NGOs must engage with girls and women, not as “clients,” but rather as partners, especially since women living in different geographical areas are more aware of the geopolitical and socioeconomic hardships facing them. Staffers who are extremely sensitive, and not just technical in their approach, must be involved. Moreover, women and girls must have their own initiatives to counter violence within the family and community and should organize women in the family politically to collectively conceptualize and advocate for innovative approaches to addressing VAW. All sectors of society, government officials, and NGOs should collaborate to produce gender-sensitive trainings, including a focus on young girls’ issues, as taught by gender and human rights activists. Agencies like FPUs and the Observatory should be strengthened and helpful documents like victim impact statements designed. Abused girls and women should be able to remain in their communities and abusers should be removed instead. Public anti-violence information campaigns should teach about women’s and girls’ rights, as well as the complexity and problems embedded in all aspects of the legal and social system itself. Civil society organizations as well as government agencies must be aware of the role that the internet plays in promoting, hindering, and/or interfering with women’s and girls’ efforts and in facilitating crimes against women and girls. All of these recommendations should keep abused women at the center of any intervention. Legal reform must occur on several levels. For example, Palestinian laws should be brought into line with international standards, with careful consideration of the complex Palestinian context in order to refrain from further victimizing or blaming the victim. Additionally, the PA should monitor interventions by customary and other informal religious and community parties to ensure that their interventions facilitate, rather than hinder, women’s efforts to be free from violence (UN Women, 2014, pp. 54–55). Support from the international community in implementing these and other suggestions is crucial. The settler colonial regime and local customary and religious practices will continue to reproduce patriarchy and further empower violent masculinities in the social and the legal system. Outside help can be useful in mitigating these forces. Additionally, we believe that despite the many dissimilarities between the United States and Palestine, there is much that the U.S. system can borrow from the experience of Palestinian women. First, the settler colonial framework may be applicable to the situation of indigenous women in the United States, despite the fact that all of them are citizens. Native women suffer from outsider violence from federal and state authorities, while also dealing with patriarchal practices in their own cultures (Smith, 2012). Solutions to VAW that fail to understand this complexity will not be successful. Indigenous women themselves must be at the center of any policies and interventions.

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Second, the Palestinian experience shows how a society might deal simultaneously with extreme levels of violence from outsiders generally, whether affected by settler colonialism or not. Racism in the United States criminal justice system has been well documented (Volpp, 2000). Approaches that assume that minority women will only rely on outside authority such as the police for redress will not work (Wing, 1997). Americans concerned with VAW must be very sensitive to the dynamic of societal violence against all minority women as well as the patriarchy minority women face in their own communities. Third, this chapter has shown that the role of politics, custom, the informal system, and religion is quite prominent in the Palestinian society, constituting a resource for individuals who feel formal systems are inappropriate or unresponsive to their needs. Americans may think that these factors do not play a role in the United States. We need to realize that American minority women in particular may prefer to rely on these informal or religious sectors. Finally, the courage that Palestinian women exhibit when facing societal violence generally and VAW specifically is very inspirational. Those concerned with VAW in the United States should recommit themselves to the struggle against VAW—keeping Palestine in mind while tackling problems in America as well. AC K N OW L ED G M EN T

Professor Wing would like to thank her research assistants Eduardo Mozqueda, Sarah Sargent, and Crystal Pound for their efforts on this project.

PART III

Tackling Specifics The Lessons of Implementation

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Lessons from the Local Rurality and Responses to Intimate Partner Abuse in SubSaharan Africa and the United States J O H A N N A B O N D A N D E L I Z A B E T H   B R U C H   ■

I.   I N T R O D U CT I O N: R U R A L I T Y A N D I N T I M AT E PA R T N ER   A B U S E

Intimate partner abuse occurs around the globe, across borders of nation, ethnicity, culture, and community. Although these borders may not affect its occurrence, they do raise important issues for understanding the varying nature and scope of the abuse and for developing responses appropriate for the particular context. This chapter considers the distinctive context of intimate partner abuse in rural communities in sub-Saharan Africa1 and in the United States. It identifies the unique variables affecting work related to intimate partner abuse in rural communities and draws from innovative programs in Africa, which operate within an international human rights framework, to suggest new strategies for rural communities in the United States. In the United States, advocacy and response models for intimate partner abuse have been developed primarily for urban areas rather than rural areas (Tolman & Bennett, 1990). Although the rates of intimate partner abuse are similar across both rural and urban communities, research suggests that there are important differences that have implications for legal, policy, and social responses. The characteristics differentiating rural areas from urban areas include limited access to services, lower education and literacy rates, norms and attitudes of tolerance toward intimate partner abuse, connections to substance abuse, isolation, and poverty (Logan et al., 2001). Victims in rural areas find that isolation hides their abuse. The lack of communication and transportation infrastructure prevents their reporting related offenses or escaping their abusers and slows law enforcement response times (Hochstein & Thurman, 2006). In terms of policing, rural criminal justice agencies often face funding challenges due to low population levels, and enforcement efforts are influenced by officers’ close community ties and political involvement (Hochstein & Thurman, 2006). Other rural service providers face similar issues. Limited resources within a community may mean that service providers play multiple roles,

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which can create confusion and undermine confidentiality. In addition to resource constraints, rural culture can be resistant toward outside, non–community-based intervention (Eastman & Bunch, 2007). In both urban and rural contexts in the United States, intervention efforts have typically focused on law enforcement as a strategy to punish and deter intimate partner violence. Many of the early advocacy efforts focused on convincing police officers to take intimate partner violence seriously and, correspondingly, convincing prosecutors to prosecute offenders (Websdale & Johnson, 1997). In urban areas, the resource constraints facing police and prosecutors are typically less acute than in rural areas and police and prosecutors operate within more formalized judicial processes, although with varying degrees of efficacy. Although there are fewer resources available in rural communities, law enforcement remains a priority in addressing intimate partner violence; criminal responsibility for offenders and victim safety are prominent goals (Hochstein & Thurman, 2006). Rural communities in sub-Saharan Africa face a surprisingly similar set of issues to U.S.  rural communities in addressing intimate partner abuse—limited access to services, lower education and literacy rates, norms and attitudes of tolerance toward intimate partner abuse, connections to substance abuse, isolation, and poverty. Women in both areas suffer intimate partner abuse at high rates. In the United States, approximately 25 percent of women report being victims of intimate partner violence (Tjaden & Thoennes, 2000). Data from sub-Saharan Africa indicate that between 13 percent and 49 percent of women report being victims of intimate partner violence (Watts & Mayhew, 2004). Around the world, the incidence of intimate partner violence appears to be highest in relationships and communities in which violence is treated as a norm and in which women enjoy lower status than men in society, including in traditional rural societies (Garcia-Moreno, Jansen, Ellsberg, Heise, & Watts, 2006; Jewkes, 2002). In many parts of sub-Saharan Africa, the legal system is characterized by plural legal systems operating simultaneously. Largely a product of the colonial era, statutory law often operates alongside systems of customary or religious law (Sieder & McNeish, 2013). An increasing number of African States have enacted legislation banning intimate partner violence, explicitly criminalizing the behavior, and, in some cases, providing civil remedies (Horváth et al., 2007). Despite the existence of formal legal remedies in some areas, women in rural areas often seek redress by appealing to traditional or community leaders (Curran & Bonthuys, 2004). Traditional leaders may attempt to reconcile the couple or impose customary sanctions on the perpetrator (Cantalupo, Martin, Pak, & Shin, 2006). Within plural legal systems, the international human rights framework can be particularly helpful in establishing benchmarks against which each system of law—statutory, customary, and religious—is measured. In contrast to the United States, however, in many parts of sub-Saharan Africa the infrastructure and funding of police and prosecutorial services are not well developed. As a result, aspects of the legal system can be ineffective. Advocacy work is, therefore, more closely framed by regional and international instruments, some of which specifically contemplate the unique features of the rural environment and the particular issues facing rural victims of intimate partner abuse. For example, Article 14 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) requires States Parties to ensure that rural women are

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able to enjoy the rights enumerated in the convention (Venagas & Pruitt, 2012). In addition, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) ensures the rights of women living in rural areas, in particular in relation to health, the environment, and development. Advocacy efforts in sub-Saharan Africa are profoundly influenced by the fact that the region suffers from the highest rates of HIV/AIDS in the world (World Health Organization, 2014). It is also the only region in the world where women are disproportionately affected by the HIV epidemic. Not surprisingly, the high incidence of HIV infection has been the focus of numerous governmental, non-governmental, inter-governmental, and donor agency interventions within recent years. Because the approach to HIV has necessarily been the focus of much policy making in the region, activists have been encouraged to explore the connections between HIV/ AIDS and other social and health challenges, including intimate partner violence. In general, this has led to a more holistic approach to interventions focused on HIV/ AIDS prevention. In the context of intimate partner violence, activists have focused more directly on interventions that link intimate partner violence and risks of exposure to HIV/AIDS than have activists in many other regions, including the United States. Within this complex framework, local advocates and service providers in sub-Saharan Africa have developed innovative and effective strategies for the rural context. In some cases in sub-Saharan Africa, advocacy efforts have focused on the economic dimensions of intimate partner violence. In others, they have addressed connections to health, particularly HIV and AIDS, and traditional gender roles and practices. Although this chapter suggests that activists look transcontinentally for new, transferrable approaches, there are no easy, cross-cultural solutions. There are important social, legal, geopolitical, and historical differences in the primary focus of anti-violence strategies in the United States and in the sub-Saharan Africa region, and it is understandable that the United States and countries within sub-Saharan Africa developed divergent intervention priorities. Although some strategies may be appropriate or effective only in a particular context, however, there are many strategies that may lend themselves to cross-cultural application. It may be that the differences in context are as important as the similarities in generating transferable approaches that will enhance anti-violence efforts in the United States and build upon the experiences of activists and scholars in sub-Saharan Africa. This chapter will explore several examples of advocacy efforts in rural parts of sub-Saharan Africa that those working on issues of intimate partner abuse in rural parts of the United States might draw upon. Advocates and policymakers in the United States might benefit from examining: 1) effective use of international human rights law to promote anti-violence campaigns; 2) engagement with the connections between violence and health, including HIV/AIDS; 3) strategies to respond to the intersection of economic harm with physical violence; 4) use of anti-violence public education and media campaigns in rural, sub-Saharan areas; and 5) the impact of traditional gender roles, often grounded in cultural and religious communities. The problems that victims of intimate partner abuse face in rural parts of the United States and Africa are similar in important dimensions; advocates in the United States may find that looking abroad for new strategies creates additional and

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alternative ways of viewing and engaging with enduring issues, and ultimately may help in the campaign to reduce the incidence of intimate partner abuse in the United States. I I. I N T ER N AT I O N A L H U M A N R I G H TS L AW AS A L EG A L F R A M E WO R K

Many of the advocacy efforts to combat intimate partner abuse in sub-Saharan Africa emphasize developments in international human rights law. Local organizations within the region often utilize training and awareness-raising materials that begin with the fundamental notion that intimate partner abuse is a violation of human rights. Activists within the region have relied heavily on both international and regional instruments to improve national laws related to intimate partner abuse and to obtain relief in individual cases of intimate partner abuse. A number of crucial developments in international human rights law opened the door for this sustained and targeted campaign to recognize intimate partner abuse as a human rights violation. CEDAW, which the United Nations adopted in 1979, specifically calls for consideration of the special context of rural women, but is silent on State obligations to combat violence against women. In 1992, however, the Committee that oversees implementation of the Convention, the CEDAW Committee, issued interpretive guidance in the form of a general recommendation. The CEDAW Committee’s General Recommendation 19 equates gender-based violence with discrimination against women, and in so doing, brings systemic violence against women squarely within the purview of the Convention. In addition, the United Nations General Assembly adopted the Declaration on the Elimination of Violence Against Women in 1993. Both international instruments recognize the State’s obligation to prevent, investigate, and punish acts of gender-based violence such as intimate partner abuse, even when the perpetrator is a private actor rather than a State actor. Within the African region, there have been a number of parallel regional developments. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) was adopted by the African Commission in 2003. The Protocol includes a number of provisions related to gender-based violence and explicitly recognizes the State’s role in eradicating violence against women. In 1994, the African Commission appointed a Special Rapporteur on Women, who has been credited with raising the profile of the Protocol and increasing the number of States that have ratified the Protocol (Stefiszyn, 2008). Despite the existence of the Protocol and the Special Rapporteur on Women, however, the African Commission has received criticism for neglecting issues related to gender-based violence (Stefiszyn, 2008). In addition to these regional efforts to raise awareness of and combat all forms of violence against women, including intimate partner abuse, there are a number of noteworthy sub-regional efforts. The Southern African Development Community (SADC) is a compelling example. Formed in 1992, SADC consists of 14 member States. As Warioba and Luhanga (2008) note, “In trying to establish ‘a shared future’ for the region and become a serious player in international relations, SADC member States realized the need to unite in order to strengthen themselves economically

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and politically and to promote peace and security in the region.” In 1997, the SADC Council of Ministers adopted a Policy and Institutional Framework for Mainstreaming Gender in SADC. Also in 1997, SADC member States adopted the Declaration on Gender and Development, which calls on member States to take “urgent measures to prevent and deal with the increasing levels of violence against women.” Shortly after that, in September of 1998, member States further expanded upon the governmental role in combating violence against women within individual countries and within the region, through adoption of the Prevention and Eradication of Violence Against Women and Children (Addendum to the SADC Declaration on Gender and Development). Although the Declaration is not legally binding, the SADC Heads of State and Government adopted the SADC Protocol on Gender and Development, which imposes binding obligations on those governments that ratify the Protocol, in August 1998. The Protocol attempts to: harmonise the various international, continental, and regional gender equality instruments that SADC Member States have subscribed to such as:  the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), Beijing Declaration and its Platform for Action, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, and the Millennium Development goals (MDGs) amongst others. In addition to synthesizing existing international and regional commitments, the SADC Protocol reflects an effort to identify and remedy gaps in both substantive rights and metrics to measure successful implementation. Article 6 of the Protocol, for example, requires States Parties to “abolish the minority status of women by 2015.” By clearly and explicitly making majority status for women an expectation by 2015, the Protocol leaves little room for States Parties to speculate or disagree about the content of the treaty obligations. Activists in the SADC region have successfully used the Protocol as a tool for organizing anti-violence campaigns. The Southern Africa Gender Protocol Alliance, for example, has worked with partner organizations and local governments to conduct workshops at the village level to raise awareness of the Gender Protocol and to encourage women to challenge violations of human rights, which include the right to be free from violence. This collaboration has led to 284 village workshops in 13 SADC countries between June 2009 and June 2011. A 2010 report summarizing NGO efforts in Malawi to raise awareness of the Protocol through village-level workshops mentions gender-based violence, including domestic violence, as one of the primary concerns expressed by attendees of the workshops. GenderLinks, an NGO in the region, also describes efforts in Zambia to use the SADC Protocol to educate local and national policymakers and to encourage policymakers to develop local action plans to end gender-based violence. As these and many other advocacy efforts demonstrate, the SADC Protocol has become a critical tool for raising awareness about intimate partner abuse and other forms of gender-based violence. International and regional human rights instruments have not played the same central role in raising awareness about gender-based violence within the United States. Part of the explanation for this stems from the reluctance of the United States to adopt binding international human rights commitments. Although the United

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States is a party to the International Covenant on Civil and Political Rights, it has not ratified CEDAW. The United States is one of only seven countries that have not ratified the CEDAW Convention, along with Sudan, South Sudan, Somalia, Iran, Palau, and Tonga. Similarly, the United States has resisted calls to ratify the primary regional human rights instruments, including the American Convention on Human Rights and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belém do Pará), although it is considered to have human rights obligations arising under the American Declaration of the Rights and Duties of Man due to its membership in the Organization of American States. Given the official resistance within the United States to ratification of international human rights treaties, many of which would help to combat intimate partner abuse, it is understandable that most domestic violence advocates have focused their energy elsewhere. Nevertheless, the human rights framework offers yet another tool in the advocates’ “toolbox” for use in the fight to eradicate intimate partner abuse.2 As advocates in sub-Saharan Africa have done, anti-violence advocates in the United States might draw inspiration from and incorporate a human rights framework into their advocacy efforts. There are a number of advantages to this approach. First, the international documents that frame intimate partner abuse as a violation of women’s human rights explicitly recognize the role of the State in combatting widespread violence. Second, the international and regional human rights documents facilitate an anti-violence discourse that encourages cross-border collaboration. Finally, given the comprehensive approach to human rights, this strategy encourages a more holistic view of the individuals involved in intimate partner abuse and the wide range of factors (legal, cultural, geographical, economic, physical) that may play a role. There are, however, burgeoning efforts to use international human rights frameworks to further the anti-violence agenda within the United States. The Local Human Rights Lawyering Project, which is housed at the American University Washington College of Law, is one such example. The Local Human Rights Lawyering Project’s mission is to educate practicing lawyers in the United States about the potential of human rights advocacy in social justice lawyering. In furtherance of that mission, the Project trains U.S. legal aid lawyers to use a human rights framework to strengthen their advocacy efforts on behalf of individual clients within the United States, including clients who have been victims of intimate partner violence. Similarly, the Human Rights Clinic and the Sexuality & Gender Rights Clinic at Columbia Law School have developed a manual entitled Human Rights and Domestic Violence to provide guidance to domestic violence advocates in the United States who may have little to no training in human rights principles (2010). One case, in particular, reflects a shift toward international human rights advocacy in U.S. litigation involving intimate partner violence. Jessica Lenahan, whose three daughters were killed by her estranged husband after police in Colorado repeatedly refused to enforce a civil protection order, won a decisive victory before the Inter-American Commission on Human Rights in August 2011 (Columbia Law School, 2014). The Commission found that the United States was responsible for the human rights violations perpetrated against Lenahan and recommended specific legal and policy reforms. The decision has generated increased interest in the use of

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international human rights law in domestic cases involving intimate partner abuse. Indeed, 12 cities and counties within the United States have passed local resolutions recognizing freedom from violence as a fundamental human right. Although few in number and overtly legal in approach, these efforts to encourage the use of a human rights framework in U.S.-based advocacy are an encouraging sign that advocates are beginning to explore the potential of the human rights instruments that explicitly and implicitly condemn intimate partner abuse. Those advocates may find the efforts of their counterparts in sub-Saharan Africa particularly enlightening. III. EN G AG I N G I S S U ES O F R U R A L I T Y: C O N N ECT I O N S TO  H E A LT H A N D P OV ERT Y, A N D ST R AT EG I ES TO  R A I S E C O M M U N I T Y AWA R EN ES S A N D C O N F R O N T T R A D I T I O N A L R O L ES A N D PR ACT I C ES

An international and regional human rights framework offers substantial opportunity for assessing domestic legal frameworks and advocating for further legal development and new responses. In addition, it offers the challenge—and the opportunity—to think about the range of issues that arise in intimate partner violence for the women, men, children, and communities involved and affected. By considering the multiple important dimensions to human flourishing, and the detrimental impact of intimate partner abuse across those dimensions, a human rights approach can foster a multi-dimensional response. In sub-Saharan Africa, the prevalence of HIV/AIDS has presented a profound challenge, and advocates have responded with innovative strategies, particularly in rural communities. This section provides an overview of a more multi-dimensional approach, noting some specific examples that highlight the connections between intimate partner abuse and health, poverty, gender roles, and community. A.  The Link Between Intimate Partner Abuse and HIV Infection Scholars and activists have documented the ways in which violence within the family exposes victims to increased risk of HIV infection in sub-Saharan Africa (Andersson, Ho-Foster, Mitchell, Scheepers, & Goldstein, 2007; Watts & Mayhew, 2004). With both high rates of intra-family violence and high prevalence rates of HIV, activists in the sub-Saharan region have, for quite some time, recognized the interconnectedness of these social, legal, and medical issues and have developed strategies that reflect this understanding. United States activists might benefit from a close examination of those programs within sub-Saharan Africa that are designed to combat both intimate partner violence and HIV infection and reflect the links between the two problems. Advocates and scholars in the United States have begun to recognize the important connections between intimate partner abuse and HIV infection (Novello & Soto-Torres, 1992). Despite some progress, however, many in the United States continue to treat the problems as separate and compartmentalized. In the United States, there are more than 1.1 million people living with HIV (Center for Disease Control, 2014). Approximately 1 in 6 of those living with HIV do not know they are

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infected. There are approximately 50,000 new infections each year, with the highest rates among men who have sex with other men and within African-American communities. As Stoever (2008–2009), a scholar in the United States, laments, “Silence surrounds the connection between domestic violence and HIV/AIDS.” Stoever has identified eight types of HIV-related violence that affect victims of intimate partner abuse in the United States: “(1) partner notification; (2) use of knowledge of a partner’s HIV status to exert control; (3) interference with medical treatment; (4) inability to negotiate condom use; (5) sexual assault; (6) infidelity; (7) intentional infection with HIV; and (8) other ways survivors are at risk” (2008–2009, p. 1168). Although there are significant differences in the social and legal context, victims of intimate partner abuse in sub-Saharan Africa face many of the same types of violence that occur in the interstices between HIV infection and family violence. Funding agencies, government representatives, and non-governmental organizations (NGOs) working in sub-Saharan Africa have repeatedly recognized the links between HIV and intimate partner abuse. For example, NGOs worked with UN-Habitat’s Safer Cities Programme to foster a regional dialogue, part of which focused on gender-based violence and HIV/AIDS as “linked issues” (Raising Voices & UN Habitat, 2004). This framing of the issues reflects the organizers’ belief that “Women’s vulnerability to HIV infection is clearly related to their autonomy and status in their intimate relationships, their ability to negotiate safer sex with their partners, and the level of communication, respect and mutuality in their partnership” (2004, p. 64). In Uganda, United States and Ugandan researchers collaborated to study the links between intimate partner abuse and HIV infection (2004). That study concluded: • Women who perceive their current partner to be at higher risk of HIV infection are more susceptible to physical and sexual violence; • Although women try to protect themselves from HIV, such efforts might be negated by violence; • Women who reported experiences of physical violence in the past 12 months are more likely to have received their HIV results but less likely to have discussed their HIV status with their current male partner; • Fear of intimate partner abuse might prevent women from using voluntary counseling and testing (VCT) services and/or discussing VCT results with their partners (2004, p. 66). As a result of that research, the program has sought to “develop interventions that incorporate the issues of domestic violence . . . into HIV prevention programmes” (2004, p. 66). This initiative echoes the findings of other human rights organizations in the region. In a study examining gender-based violence and HIV in Zambia, Human Rights Watch recommends that health-related initiatives in Zambia develop protocols for addressing gender-based violence and that initiatives focused on gender incorporate strategies that emphasize “women’s right to decide when, where, and how to seek health services, including access to HIV testing and treatment programs” (Human Rights Watch, 2007, p. 6). The important intersections between gender-based violence, including intimate partner abuse, and HIV have been the focus of a great deal of advocacy within the region.

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One of the shared challenges in the sub-Saharan African region and the United States is meeting the needs of people living with HIV in rural areas. In the United States, most cases of HIV infection occur in large urban areas (Centers for Disease Control, 2013). People living with HIV in rural areas often have a difficult time finding and accessing treatment and services (National Rural Health Association, 2014). According to the National Rural Health Association, health care providers in rural areas have tried to offer access to services by providing transportation vouchers so that people living with HIV can travel to population centers to receive treatment, or through programs that take treatment “on the road” to more rural communities. Health care providers, however, continue to struggle to meet the needs of those living with HIV in rural areas of the United States. Because, in rural United States and rural sub-Saharan Africa, the HIV-related issues for family violence victims are similar, although by no means identical, activists in the United States should carefully consider the activist efforts in sub-Saharan Africa to identify crucial lessons that may be cross-culturally transferrable. B.  The Link Between Intimate Partner Abuse and Poverty Because women in rural African communities lack economic opportunities, antiviolence strategies that target women’s economic dependence are particularly important (Kim et al., 2007). For example, one anti-violence intervention in the rural Limpopo province of South Africa, the Intervention with Microfinance for AIDS and Gender Equity (IMAGE), “combined a microfinance program with participatory training on understanding HIV infection, gender norms, domestic violence, and sexuality” (2007, p. 1794). Researchers found that, after two years, the IMAGE intervention reduced the rate of physical or sexual violence by more than half. In addition, legislation in South Africa and Ghana defines intimate violence to include forms of economic harm. In the United States, recognition of the interplay between physical violence and economic harm has been more limited. In most jurisdictions in the United States, victims of violence may obtain civil relief, including some financial remedies, as part of a civil protection order. But few States recognize economic harm as a form of violence itself. Given high levels of poverty in rural areas of both the United States and in countries within sub-Saharan Africa, recognition of the intersection of physical violence and economic violence is crucial. C.  Strategies for Community Awareness Raising A number of NGOs in sub-Saharan Africa have developed strategies to raise awareness of intimate partner violence through the use of popular media, such as radio and television, and increasingly, cell phone technology. For example, since the 1990s, the Musasa Project in Zimbabwe has used a variety of public education strategies, including theatre, public meetings, and debates, to inform the public and key policymakers of and sensitize them to the issue of intimate partner abuse. Women Madzimai, a 13-part serial program that aired in a 30-minute slot during prime time, showcased survivors of violence describing their experiences. The program

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stimulated widespread controversy and public debate about the acceptability of domestic and sexual violence. The Musasa Project also uses other strategies to reach rural populations; in 1995, as part of the 16 days of action against gender violence internationally, Musasa and a partner organization commissioned a women’s theatre group to travel around the country performing plays about female homicide. These meetings were used to discuss issues relating to violence against women and to distribute information on violence and sexual abuse. Other contemporary examples abound. Programs such as Kenya’s Education Center for Women in Democracy promote women’s rights, including the right to be free from violence, through regular radio programming. The Rural Women’s Movement has trained some of its members to create their own radio programs, which are available via podcast and which empower victims to add their voices to the dialogue around gender-based violence. The Sonke Gender Justice Network in South Africa has developed a campaign that uses radio and focuses on gender, HIV, and men’s roles in promoting gender equality. In a particularly innovative advocacy endeavor, The Social City Institute for Health and Development sponsors regular “edutainment” programming on television in South Africa. The Soul City series has been credited with reaching a large number of people and creatively targeting issues related to intimate partner violence and HIV/AIDS, among others (Usdin, Christofides, Malepe, & Marker, 2000). With the now widespread use of cell phone technology, the UmNyango Project has used SMS texting technology to campaign against intimate partner violence (Fahamu, 2014). The Project chose target rural areas that had no access to the Internet, telephone land lines, or postal services. Partner organizations sent public education information related to human rights by text message. Organizers received reports from individuals within the rural areas, some of which included reports of intimate partner violence. There have also been important advocacy efforts within the region to encourage major cell phone carriers to offer free, national helplines for victims of intimate partner violence. D. The Link Between Intimate Partner Abuse and Traditional Gender Roles and Practices Rural culture in many regions in both Africa and the United States embraces traditional views of gender roles for women and men. Researchers have noted how gender, ethnicity, and age intersect with issues of rurality and rural culture in creating barriers to addressing intimate partner violence (Lichtenstein & Johnson, 2009; Websdale & Johnson, 1997). Advocates in sub-Saharan Africa have identified these traditional views as deeply implicated in intimate partner abuse and community tolerance for such abuse. As a result, they have developed strategies aimed at confronting and challenging traditional roles for women and men. For example, Stepping Stones, a non-profit advocacy program with activities in more than 20 African countries, addresses violence against women, with a focus on sexual and reproductive activities (including connections to HIV). Their methodology includes using peer-based groups as important spaces for exploring myths and perceptions related to gender and sexuality, as well as enlisting the endorsement of community leaders to help mobilize participants and ensure sustained changes.

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Similarly, the Coalition of Women Living with HIV/AIDS in Malawi has worked to engage senior traditional leaders, through a national workshop and follow-up community meetings, to foster a culture of dialogue between these community leaders and women living with HIV. In turn, traditional leaders have taken a leading role in these meetings to denounce gender-based violence and discourage practices that compromise women’s sexual and reproductive health and other human rights. Informal program evaluations have suggested some success in changing attitudes and reducing intimate partner violence among participating couples. The MAP (Men as Partners) program in South Africa has focused on engaging men to reduce gender-based violence and to promote a constructive role in sexual and reproductive health (Peacock & Levack, 2004). The central foundation of the MAP program has been the implementation of workshops that explore gender roles (although more recent work has focused on HIV/AIDS). The program works to effect change using the following strategies:  workshops aimed at changing knowledge, attitudes, and behaviour; mobilizing men to take action in their own communities; working with media to promote changes in social norms; collaborating closely with other nongovernmental organizations and grassroots community-based organizations to strengthen their ability to implement MAP programs; and advocating for increased governmental commitment to promote positive male involvement. According to preliminary program evaluations, there were sustained improvements in participant knowledge (about, for example, AIDS transmission and condom storage), participant attitudes (particularly as to gender roles), and participant practices (joint decisions about contraceptive use within a relationship) (2004). There are a range of similar examples across the region. A project to fight violence against women and girls in the African Great Lakes region, PLUVIF, takes a holistic approach to intimate partner abuse and focuses on raising awareness, particularly among men, as a strategy for societal change. As noted earlier, the Musasa Project in Zimbabwe also uses a variety of public education strategies to raise awareness and challenge traditional views. In South Africa, there has also been an innovative effort to address the intersection of traditional gender norms and the tolerance of intimate abuse with advocacy efforts related to health care. Public health nurses underwent a four-day training program to address intimate partner abuse (Kim & Motsei, 2002). There are currently about 200,000 nurses in South Africa, constituting the largest category of health personnel in both the public and private sectors. Especially in the impoverished and remote rural areas where there is an acute shortage of skilled medical personnel, the health care system continues to rely heavily on the skills of these clinically trained nurses. The health care system is a logical entry point for the identification of many intimate partner abuse survivors who, all too often, become isolated from their work or social situations. As the training progressed, the experiences and insights of the participants became personal and emotional, and toward the end, an opportunity was created for both men and women to relate their own experiences of gender-based violence. Among the female nurses, the results of a questionnaire showed that 100  percent acknowledged marital rape to be a legitimate phenomenon and, following the gender violence training, not one of the female nurses felt that it was ever justified to beat a woman—even in the case of sexual infidelity. In fact, from the perspective of the women, the training’s greatest impact was to raise awareness about their own

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oppression and to personally acknowledge (often, for the first time) their own experiences of abuse. Many described this experience of “speaking out” as being simultaneously painful, empowering, and healing. Among the male nurses, many found hearing the experiences of their female colleagues and examining their own beliefs and behaviors to be a disturbing and challenging experience, and the questionnaire reflected a number of changes in knowledge and attitudes. In regard to marital rape, the majority of men now responded that rape within marriage is indeed possible. In fact, one man admitted that seeing the film during the training had significantly challenged his prior beliefs. The most striking change noted was that, after the training, in response to an open-ended question, not one of the men responded that it was ever justified to beat a woman. As one man commented: “There is no law, or license to beat a woman whatever the circumstances might be. It’s a sign that love and respect did not exist.” Strategies for addressing intimate partner violence are most challenging in resource-poor rural areas where there is little or no access to shelter, counseling services, or the judicial system. In this context, the training of primary health care nurses may represent a critical opportunity to begin addressing gender-based violence through the health sector. Although the intersection with HIV/AIDS is especially profound in sub-Saharan Africa, public health nurses may be particularly well positioned to act as resources for rural women in the United States as well. In a survey conducted for the American Medical Association, 65 percent of respondents stated that they would disclose violence to their health care provider before others, including clergy, family, and friends (Kim & Motsei, 2002). Yet most health care professionals, including nurses, receive little professional training to intervene in cases of intimate partner abuse, and studies show that rates of detection and intervention in cases of domestic abuse have been appallingly low. Moreover, when victims of intimate partner abuse have been identified, they have often been treated insensitively by healthcare workers who minimized or ignored their abuse and who focused on physical injuries while subtly blaming women for the abuse. I V. C O N C LU S I O N

At this time, intimate partner abuse remains an urgent and too common problem around the globe. For more than a generation, there have been focused advocacy efforts in the United States on legal and social reform; that has been true in many other regions of the world as well, including many of the nations in sub-Saharan Africa. As yet, there are no easy solutions, domestically or cross-culturally. There are important social, legal, geopolitical, and historical differences between the United States and sub-Saharan Africa, and it is understandable that these regions have developed divergent intervention priorities. Although some strategies may be appropriate or effective only in a particular local context, there are many strategies that may lend themselves to cross-cultural consideration and application. Advocates in sub-Saharan Africa have taken innovative approaches, developed within a human rights framework, to address the devastating impact of HIV infection across the region and to consider the intersections of health, poverty, community, and gender stereotypes with intimate partner abuse in rural areas. Many of those challenges

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also affect rural communities in the United States, and it may be productive to look globally for lessons that can be applied locally. AC K N OW L ED G M EN T

The authors thank Jan Fox, Caitlyn Pal, Rachel Paterson, and the International Women’s Rights Project for their research assistance.

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“In the Good Times and the Bad” Gendered Notions, Economic Inequality, Intimate Partner Violence, and Lessons from Chile to Move Beyond Judicial Reform N I A   P A R S O N   ■

The family is the fundamental nucleus of society.

—Chilean Constitution: Line 2, Article 1, Chapter 1 of the Chilean Constitution of 1980

I am Catholic, and for me a religious marriage was very important because I swore in front of God a promise, so when I left my house [i.e., when she left her abusive husband], I questioned myself a lot about all of these things because sometimes I feel that I didn’t come through on my promise to God, because I swore in the good times and bad, in the adverse and favorable. I sometimes feel guilty and like a sinner because I didn’t keep my promise until the end . . . . When I got married, I took it as a promise . . . . I am a very Catholic person, and I believe that to get married . . . when you say, “in the good times and the bad,” for me that means in the good times and the bad . . . . The fact that he didn’t work and didn’t do anything I believed that, well, I wanted to marry him, I’m going to have to take the responsibility [and stay in the marriage]. That’s that. —Sara, 2003

I.   T H E I N T I M AT E A N D T H E  PU B L I C I N  C H I L E

Intimate partner violence occurs throughout the world and manifests in different ways in various contexts. Like many countries around the world, including the United States, Chile adopted its first intimate partner violence law in the 1990s. Chile is a country of almost 20 million people, located in South America on the

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thin swath of land between the Pacific Ocean and the Andes Mountain Range, spanning the pre-Arctic in the south and the Atacama Desert in the north. Chile has one of the most stable and robust economies in the region and is an interesting case study for U.S. policy makers, in part because the levels of economic inequality in Chile are more and more in-line with levels of economic inequality in the United States. Also, much like the United States, the Chilean government has been involved in myriad ways throughout its national history in legislating, monitoring, and controling spaces of intimacy based on gendered ideologies and inequalities. Chile, of course, also has its own particular political and economic history, linked to U.S. interventionism in Latin America. The legacy of the 17-year dictatorial regime led by Augusto Pinochet is interwoven with legal reform around women’s rights and social activism to return to an official democracy during the 1980s. Women’s rights organizations agitated for “Democracy in the Country and in the Home” in the waning years of the dictatorial regime. This slogan encapsulated their demands for women’s equality in interpersonal relationships and political equality, along with an end to dictatorial repression of civil rights more generally (Baldez, 2002; Gaviola, Largo, & Palestro, 1994; Kaplan, 2004). When the Chilean transition to official democracy began in 1990, the feminist movement pushed gender equity to the fore of State policy reforms. Many feminist leaders became involved in the new National Women’s Service (Servicio Nacional de la Mujer: SERNAM), the sub-ministerial government body with the mandate to ensure gender equity in government policy. Intimate partner abuse (referred to as family violence in the Chilean legal system) in particular emerged as and continues to be a key concern for the State, with the first Family Violence Law passed in 1994 and reformed in 2005. Divorce was legalized in 2004. These State-level developments dovetailed with a broader region-wide push by Latin American States to “modernize” through promotion of gender equality under the law and a global push to politicize domestic violence as a problem internationally, using the United Nations women’s rights as human rights framework (see Bunch and Carrillo 1991). Chile ratified CEDAW (the UN’s Convention on the Elimination of All Forms of Discrimination Against Women) in 1989, paradoxically during the final days of the dictatorship, and the Convention of Belem Do Para in 1996 (SERNAM, 2002, p.  5). These international conventions and the growing global attention to women’s rights as human rights, and domestic violence as a key human rights issue, have provided some of the framework for nongovernmental activism and governmental action on the problem of intimate partner abuse in Chile. The first population-level study of intimate partner violence in Chile, conducted in 1990, revealed that 60 percent of women experienced some form of intimate partner violence in their lifetimes (Larrain, 1994). Illuminating the seemingly intractable nature of this social ill, research over a decade later (SERNAM, 2002, pp. 17, 19)  shows similar statistics for Metropolitan Santiago:  50.3  percent of women reported having experienced some type of domestic violence, with 34  percent reporting physical and/or sexual violence (and by implication, psychological violence), and 16.3 percent reporting psychological violence. More recently, a Chilean Ministry of the Interior and Public Safety national survey (Ministerio del Interior y la Seguridad Publica, 2013) showed the persistence of high levels of intimate partner abuse experienced by women.

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It bears mention in this chapter that during the first decade of the 2000s, Chile’s judicial system underwent a fundamental shift from a written system to an oral system. Concomitantly, the Family Courts came into being. These changes required heavy investments in judicial system changes; however, a recent national study reveals that these legal interventions have not stemmed the tide of intimate partner abuse and, further, many who suffer intimate partner abuse are hesitant and unwilling to venture into the judicial realm. In the 2012 study, of those who reported having experienced psychological violence within the past year, only 28  percent filed a complaint with the police, and 48  percent of those who filed decided not to continue with the complaint (Ministerio del Interior y Seguridad Pública 2013, p. 23). Of those reporting psychological violence in the past year, about 12 percent said they would not file a complaint because they thought doing so would not accomplish anything or because they had previously filed a complaint and nothing had happened (Ministerio del Interior y Seguridad Pública, 2013, p. 24). Of those who reported physical violence in the past year, 36 percent filed a complaint, and 41  percent of those who filed did not continue with the complaint. For those who suffered physical violence, fear was the primary motivator for not filing a complaint, including fear that they would not be believed, because there were no witnesses. Only 12 percent of women who reported sexual violence filed a complaint, and 67 percent of the women who did file a complaint soon desisted. For sexual violence, 40  percent said they would not file a complaint because of shame (Ministerio del Interior y Seguridad Pública, 2013, p. 24). About 39 percent said they absolutely would not participate in any judicial process related to intimate partner violence (Ministerio del Interior y Seguridad Pública, 2013, p. 27). These findings suggest the need to understand why women are hesitant to make use of laws that ostensibly enable them to claim their rights as persons within the Chilean State and society. My ethnographic research in Santiago, Chile, which was conducted over two years during the period 2000 to 2009, illuminated the structural processes that maintain intimate, gender-based violence in Chile following legal reforms (see Parson 2013 for further methodological and contextual detail). Based on my ethnography, this chapter proposes three key lessons for policy makers worldwide. My argument here is fundamentally based on the recognition that it is largely juridical interventions dominate the landscape of intimate partner violence policies worldwide. The three central lessons, based on my research in Chile, are designed to help move policy beyond judicial reform and intervention in diverse contexts: 1) First, we need to understand notions of women’s and men’s roles and expectations and “the family” within local contexts. In particular, researchers need to examine the State’s assumptions about gender roles and expectations, how these assumptions translate into policy, and how women internalize and/or rework such gendered notions of the self. 2) Second, policy makers need to devote sustained attention to gendered, structural economic inequalities. For example, in the United States this would entail dedicated attention to the gendered pay gap. We also need to examine how scarce resources are devoted to only certain kinds of care for women who suffer domestic violence. In Chile, for example, I found a systemic underfunding of interventions that were outside of the purview

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of law and medicine, which negatively affected women’s access to adequate judicial interventions and to alleviation of their suffering. 3) Third, we need to examine in what ways economic violence by a woman’s intimate partner is a manifestation of broader, gendered patterns of economic inequality. I I. S H I F T I N G L AWS A N D PER S I ST EN T EC O N O M I C I N EQ UA L I T Y

The structural violence of economic disadvantage for women is not alleviated by new laws around intimate partner violence in Chile. The first Family Violence Law, passed in 1994, was a major achievement of the feminist movement. Still, several other laws severely hampered women’s abilities to effectively take control over their lives and intimate relationships. The Relationship Law was repealed in 1998. That law stated that if a woman left her home for a specified amount of time she would not be allowed to return to her home or have custody of her children. Several women mentioned that this was a deterrent to leaving an abusive partner as late as 2003. In another groundbreaking legal reform, the Civil Marriage Law was changed in 2004, most notably to allow for a legal divorce. Prior to 2004, people could only end a marriage by paying a high fee for an annulment. With the new Civil Marriage Law, women were able to apply for divorce after three years, even unilaterally. The waiting period for unilateral divorce in cases of intimate partner violence was set at one year, however. Nonetheless, many challenges to ending a marriage remain due to the costly nature of judicial system interventions, lack of knowledge about the laws, and socioeconomic class differences. Due to the costs of divorce for women, several women I interviewed still lived with their abusive partners, though they were legally separated from them. This suggests that women were hesitant to file for divorce in part because of the economic loss it would have produced for them. In 2005 a new Family Violence Law replaced the 1994 version. Many note that the new law still focused on the family and not on a gender analysis (Larrain, 2009, UN report). Several women’s narratives, detailed below, speak to the limited ability of judicial reforms to address the economic inequalities and violence women face. III. EC O N O M I C D E AT H T H R E ATS

I met Elena, a woman in her 40s with three children, in the group therapy sessions at Family Care, which she attended without fail. Elena described suffering economic and psychological abuses for the twenty years of her marriage. She explained: One thinks that these things [violence] happen only to oneself and it makes you shameful . . . . I never talked about it with anybody except my friends and when a neighbor asked me, I [said], ‘Everything’s fine. I don’t have any reason to complain.’ It’s because of the shame, because of ignorance of a lot of things and because of fears . . . fears of losing your children, your husband [who will] probably take the house too. There are a lot of things, really . . . very complicated . . . with small children . . . and without work . . . 

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Elena’s comment about her situation, that she was, “with small children . . . and without work” gives insight into her ideas about how having children and lacking paid work have been integral to maintaining her intimate entrapment. Although the State has instituted important legal reforms geared toward women’s full citizenship, women’s economic situations in general continue to be more precarious than men’s. According to the 2002 Chilean National Census, women at that time made 61 percent of men’s total wages, and 72 percent of men’s wages in salaried work (SERNAM, 2004, p. 112). About one-third of women are wage or salaried laborers (SERNAM, 2004, p. 94). The inequality is even greater for women with higher levels of education. Women with 0 to 3 years of education make 82 percent of men’s salaries and 75 percent of men’s total wages; whereas women with 13 or more years of education make 60 percent of men’s salaries and only 48 percent in terms of total wages for the same positions (SERNAM, 2004, p. 112). Many neoliberal reforms, including the privatization of the social security system, have had disproportionately negative effects on women and especially poorer women (Montecinos, 1994, 1999). The labor force tends to be heavily sex-segregated, with women in lower paying jobs that are often least benefitted by globalization of the economy (SERNAM, 2004, p. 94). However, women are responsible for doing the majority of both remunerated and unremunerated work in Chile, doing 54 percent to men’s 46 percent of the total work, which includes both “mercantile” activities and domestic, unpaid labor (SERNAM, 2004, p. 91). Women do 85 percent of unpaid labor (SERNAM, 2004, p. 92). These statistics suggest that although women are doing the majority of the labor, their situations are economically most precarious and destine many to economic dependence on a male partner. Similarly, although women gain power through marriage and children, Rojas (2001) argues that in fulfilling these roles, women often lose opportunities in generating their own economic independence in the workforce. A SERNAM (2004, p. 90) report asserts: “the social division of labor by sex and the ideology that sustains it constitute the principal gendered obstacles which women must confront in order to participate in the labor market under conditions of equality.” Elena spent many days without money to buy bread or other basic items to feed her children and herself; her abusive husband left them to go hungry until he returned after work in the evening. Meanwhile, she told me with chagrin, he maintained his own voracious cigarette habit at all costs. Elena’s husband’s control over the couple’s finances constrained how she lived on a daily basis—the minutia of everyday life became a site of violence. Banal and ordinary as it may seem, this is one source of power in the intimate arena, but this “private” sphere is intimately influenced by wider, gendered economic realities. Elena’s husband used economic violence to strip her of her power and control over her own life. Not only did he prohibit her from fulfilling her own needs, but he preyed on her role and identity as a mother by denying her the funds she needed to take care of their children’s basic needs. This loss of power through economic deprivation in her daily life was traumatic for Elena. It was a banal form of violence that produced feelings of inadequacy, poor self-esteem, frustration, depression, anxiety, and fear. Scaer (2001, p. 139) instructively conceptualizes the linkages of the banal to the traumatic when he notes, “Even being subjected to personal or financial loss through non-violent means may prove threatening to one’s future through loss of financial security and the resulting threat to one’s physical well-being.” In her testimony, Elena related that the stress of living with this violence and malignant

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neglect for over 20 years caused her to have problems related to her nerves, including a highly elevated resting heart rate. She said, “I have a lot of tachycardia,” which she attributed to her nerves. Elena had to go to the emergency room multiple times for such nerve-related problems. Elena also recounted a specific instance in which she was seriously physically ill with anemia, related to an unusually long menstrual period. She experienced weakness, and yellow and listless skin. Her friends and family noticed her malaise; however, her husband refused to pay for her to go to the doctor. He was neglectful of her health issue, although it was related to a known history of problems with her menstrual cycle. In this instance she was waiting for him to react, waiting for him to pay, and in a way, she reasoned, she was testing him to see how far he would go, to see the level of his abusiveness, as though she needed some kind of physical proof in order to be sure for herself that he was really abusive. She finally ended up having to go to the emergency room, and he was forced to pay. Elena told me: I could have told them in the hospital that it was due to lack of treatment . . . because he wouldn’t use his money for a voucher or for me to go to the doctor . . . there I should have filed a police report against him, that he didn’t want me to go and didn’t want to buy me a voucher, but I stayed quiet . . . he didn’t help me when he should have helped. Me. It’s like when a father doesn’t take his daughter to the doctor in time. Something would have had to have happened to him [for that offense]. Elena’s lack of control over her family’s finances seems to reflect the historical entrenchment of women’s inequality in relationship to the State. For the majority of its history, the Chilean State formally prevented women from claiming financial autonomy. The Chilean Civil Code of 1857 canonized women’s legal inequality, especially upon marriage. In her analysis of women’s inequality as written into the Chilean Civil Code, Htun (2003) notes that women’s status and rights were greatly diminished upon marriage: As long as they remained single, women enjoyed equal civil rights, including the right to establish business and make money, seek professional employment, travel abroad, and service as litigants or witnesses in judicial proceedings. Once married, however, a woman’s legal personhood was subordinated to her status as a wife and mother. Women’s agency was curtailed so that her husband could enjoy unquestioned authority within the family and so that the family could represent itself to the outside world with one voice (Htun, 2003, p. 60–61). The Chilean State’s laws have historically structured access to resources for men and women differently. The Chilean Civil Code outlined a: ‘set of rights that the laws coincided to husbands over the person and property of their wives’ which included the right of the husband to oblige his wife to live with him and follow him wherever he decides to establish residence [otherwise known as the Abandonment of the Home Law]; the right to manage the wife’s property; the right to prevent the wife from appearing in court or initiating

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a civil suit; and the right to prevent the wife from entering into contracts or breaking from them, from paying a debt, from accepting or rejecting a gift of inheritance, from acquiring property, or from serving as guardian or administrator (Htun, 2003, p. 61, citing Klimpel, 1962). Upon marriage, the husband also had the right to prevent the wife from working in the paid labor force (Htun, 2003, p. 74). Especially because women participate in the paid labor market much less frequently and when they do are paid less, equality under property regimes in marriage is important for women to gain full equality with men (Htun, 2003, p. 63). I V. “ W I T H O U T M E, YO U’R E C O M PL E T ELY SC R E W ED”

Ana experienced 10 years of physical, economic, and psychological violence and at the time of the interviews was separated from her abusive husband. She experienced severe and constant physical violence, in addition to economic and psychological violence. She shared her studied analysis of the economic violence she experienced: That [control over the money] gives them importance. They have the power . . . [the abuser] says, ‘Without me, you’re completely screwed. You would die, because I am the one who provides you with food’ . . . and you have to ask for money, ‘Hey, I need money for this or that.’ For Ana, her abusive husband’s threat that without him she would die indicated an important connection between the economic and psychological violence threatening her life. She explained that she felt completely dependent on him economically, and therefore was dependent on his whims. The psychological and physical violence she experienced were not separate from these economic threats to her life. Ana told me about a related exchange between them: He said, ‘Why are you going to work if you are going to have to use the money you earn to pay someone to take care of the children? It’s better that you stay here [at home] with the children.’ Ana described how her husband naturalized the idea that the money to pay for childcare would come from the money that she made, not his. This suggests that women are responsible for childcare and housekeeping, whether they generate salaries or not. It remains women’s responsibility to employ other women to fulfill their duties of childcare and housekeeping in their absence (see Gill, 1994). Ana explained to me that though her analysis changed after her interactions at Safe Space, at that time she accepted this idea of women’s duties related to childcare, when she explained her reaction to his reasoning that she would have to pay for childcare out of her money: And I said, ‘well, yes, of course, actually,’ and I stayed right there. I stayed there. On the other hand, now I work, and I pay half of my wage to a woman who takes care of the kids. And the best part, you see, is that in that time of abuse they convince one so easily, because above all I was so shy [and thought] that

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I wasn’t good for anything, so whatever idea I had about working made me terrified. I was very afraid of getting into something and not being able to handle it . . . 12 years of marriage, and 12 years that they are convincing you that you are good for nothing. They are telling you this practically every day, and they convince you. But, one can leave . . . . Ana related the grindingly “ordinary,” or in her words, “every day” nature of psychological and economic abuse, and how this grating routinization of violence and normalization of economic inequality worked to “convince” her to bear the suffering. She was convinced that the “every day” abuse against her was inevitable. She told me about the effects of economic violence on her health: In my case, he always spent money. Sometimes he came home with three new suits. [Once he came home and said] ‘Look, there was a sale and I  bought myself this’ . . . and later [I told him], ‘My tooth hurts,’ and he said, ‘I don’t have even one peso . . . next week,’ but I told him, ‘I can’t stand the tooth ache anymore.’ [he responded] ‘No.’ When I went to the dentist, they had to remove the tooth. That time I cried, to see . . . that for him there was so much money, to fix up his motorcycles, to fix up his cars, but for me to go to the dentist [there was no money]. Although Ana told me that her husband earned an ample salary, which afforded them a house and enabled him to buy an expensive car and clothing, his priorities did not include basic healthcare needs for her. This part of Ana’s experiences illuminates the pain, both physical and emotional, that this economic violence produced for her. She was forced to bear days of excruciating mouth pain, lose a tooth, and ruminate on how her husband had mistreated her, while he boasted that he bought himself new clothing. V.   EC O N O M I C V I O L EN C E A N D CAT H O L I C N OT I O N S O F  G EN D ER A N D FA M I LY

Sara, whose words introduced this chapter, was for years the sole financial provider for her household. Her husband did not work and was addicted to drugs. Although she maintained a fulltime wage-earning job, he controlled their money. In Sara’s narrative about her decisions to stay in the violent relationship and her later decision to leave it, her Catholicism stands out as defining and pivotal. It is the lens through which to view her entrapment and to appreciate the difficulties she faced in escaping the violent relationship, and, crucially, still faced, even after leaving her abuser. Sara, who was about 50 years old at the time of the interviews, was raised in a family with rigid values related to men’s and women’s gender roles. She was taught to believe that men were the main providers, and that this was their central role, whereas women were to be in charge of the household and children. She described her father as very machista and gave as an example the fact that he helped her brothers, but not her or her sisters, buy houses for their families because according to him it was their husbands who should be in charge of this. In Sara’s case, this meant that she had to obtain housing on her own, since her husband did not work at all. Sara

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suffered her husband’s physical, psychological, and economic abuse. She had to give her husband a large portion of the money she earned, which she later learned went to support his drug addiction. If she did not give him this money, he beat her. Each time she tried to talk to him about him getting a job and making his own money and money for the family, they got into a fight that ended with him beating her. She was trapped in a situation in which although she made her own money, he controlled it, with the threat of physical violence if she did not comply with his demands. As she explained this to me, her voice was shaky and she began to cry. Through the tears and with a wavering voice, she told me it was difficult to talk about, largely because it was embarrassing (da vergüenza) because people could say “how stupid” she was for having stayed in the relationship. Sara describes the feelings of entrapment and depression she experienced because of the abuse through which she lived: I knew that upon arriving at my house, he was going to get mad, so . . . I cried a lot. It’s that I could cry in the buses. I cried just to think about having to arrive at that house and confront everything that would happen, because I knew what would happen. So, from the bottom of my heart the only thing I wanted was for him to die. Because I didn’t see any other way to get away from this person . . . . She describes difficulties she had at work due to the abuse. After working for 27 years in one institution, she was fired without recompense, citing her supposed unwillingness and lack of motivation to learn new things and progress in her position. She explains that she did have desires to move forward but because of the abuse, was unable to do so. However, she felt that she could not discuss this with her boss, again, referring to her embarrassment (me daba mucha vergüenza); these feelings influenced her silence about her suffering. She describes being left with nothing, no way to provide for her family. She had been making $200,000 (about US $330) a month, and after being fired began working in her sister’s house, making $80,000 (about US $130) a month, very little to support a family of four. In this instance, it is evident that her abusive husband influenced her life not only through the direct effects of his violence but through the constraining ripple effects it had on Sara’s life. She described how these situations wore on her through the years. Even though she finally did escape the relationship, she still expressed worry about her relationship with God and the Catholic Church, which made her healing process complicated. Sara felt that by leaving her husband she had broken not only societal expectations about women’s gender roles, but had perhaps broken God’s law as well. V I. A  L I F E T I M E “ B EI N G EN S L AV ED TO  A  M A N ”

For Josefina, a 50-year-old woman who had been forcibly married to her abuser at 13 years old, a lack of adequate institutional supports, coupled with her lack of income-generating opportunities, led her to stay with her abuser. Josefina felt that she had spent her life, “Crying . . . suffering . . . being enslaved to a man.” “My intention isn’t to live,” she told me and described how she had endured, “rape, humiliation, being treated worse that a prostitute, something that can’t be repaired.” Josefina, like about two-thirds of women in Chile, worked inside her home and not for wages. To use her words, she felt “enslaved to a man” within her home—cleaning,

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ironing, shopping for groceries, cooking, raising her children, and taking care of her husband’s needs. Josefina talked on several occasions about the grinding nature of the intimate abuse she suffered and how she wanted so badly to live on her own. She explained: There is nothing in life that could give me back everything I  have suffered . . . unless someone told me, like some magic of God, ‘Josefina, here is a room for you to live.’ I think that would be the most fantastic gift in the world and to be able to work to be able to feed myself and live alone . . . and to think about myself, to think about myself, to be at peace with myself, to try to forget everything that has happened to me. Because if I am with the aggressor, I am with the person who has most hurt me. It is impossible. Whatever he says to me is like a wound that I have from here to the middle of my body. So, everything is a scratch and that wound is open until the end [of my life]. Her options for jobs were limited because she did not have any professional skills and had rarely worked outside of the home. Although she expressed interest in the possibility of being a nanny or maid, she also talked about how when offers to do those jobs came to her, she did not act upon them. She did not want to leave her own home, which she shared with her husband. She expressed her desire to have a room of her own where she could finally live in peace, but she rejected and resisted the exchange she would have had to have made to obtain that space. Josefina’s situation underlines how economic restrictions not only help to perpetuate intimate experiences of abuse but can be integral to the maintenance of those abusive situations. The limited economic options women have upon leaving a violent relationship, as in Josefina’s case, contribute to the ongoing trauma of intimate partner violence against women, in all of its forms. From a neoliberal perspective, Josefina had “failed” to provide for herself by missing the “opportunities” that arose for jobs as a low-wage, live-in, full-time maid and nanny, with barely a room of her own at 50 years old, leaving her abusive husband to inhabit the comfortable, though not lavish, home that they shared. In many women’s lives, economic violence constituted the everyday, intimate entry points of structural violence. V II. C O N C LU S I O N

At the beginning of this chapter, I  proposed three central areas that demand attention in order to address the limits of judicial interventions for intimate partner violence: articulations of gender ideologies, government policy, and women’s experiences; women’s economic inequality; and economic violence in intimate relationships. Based on these three areas, I presented an analysis of women’s narratives from my research to illustrate how economic violence at both societal and individual levels are entrenched problems that legal reforms alone are not equipped to address. Women as a collective are in precarious economic situations in Chile, both structurally and in intimate relationships. These women’s narratives show how economic intimate partner violence is to some extent naturalized

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and is a form of normalized violence, in part by discourses of women’s morality and respectability in the family (see Parson, 2012). Women, in remaining in abusive relationships, are often judging the complicated familial, societal, and economic realities that confront them, not fictionalizing the dangers and challenges they face upon trying to leave the relationship. Many perceive themselves to be unable to provide economically for themselves and their children and fear that if they split and take the children, their partners will cease to provide for their children. In this way, women’s gender roles as mothers coincide with the inequalities women face in society, especially economically. One of the important effects of women’s weaker economic situations within the society at large is that economic violence against women within the home is less visible and in a sense, more socially accepted. Economic violence is part of the “natural order” of things in which the man maintains economic power as part of his essentialized role as provider and his primacy in the “public domain.” The Chilean Government operates within a broader system of globalization, and the State itself is caught up in the dual goals of satisfying market logic and social responsibility. That is, although founded in neoliberal economic policies that take as the primary goal macroeconomic growth, the State claims at the same time to focus on goals of civil society, human rights, equality, and freedom. Josefina, Elena, Ana, and other women who suffer intimate partner abuse and seek care outside of the home are not models of the neoliberal ethic of individual self-reliance and self-efficacy. They must depend on care from the State or non-governmental agencies because of intimate economic abuses and the structural inequalities that have prevented them from being viable producers of economic income in the marketplace. Ong (2006, p. 14) has theorized: Neoliberal logic requires populations to be free, self-managing, and self-enterprising individuals in different spheres of everyday life—health, education, bureaucracy, the professions . . . . The neoliberal subject is therefore not a citizen with claims on the state but a self-enterprising citizen-subject . . . . There is a new stress on responsibility at the community level, and new requirements that individual subjects be responsible for themselves. Harvey (2007, pp. 65–66) similarly notes, “Individual success or failure are interpreted in terms of entrepreneurial virtues or personal failings rather than being attributed to any systemic property.” Women’s narratives figure institutional supports in their processes of recovery as being indispensable, further showing the gendered effects of the neoliberal focus on individual responsibility and removal of State services necessary to address intimate and State-level gender inequalities. Without such resources, women’s options were severely limited and their entrapment further entrenched. Several women said that they feared that if they filed a court case against their abusive partners, this could jeopardize the abuser’s job, thus putting the couple’s and their children’s only source of financial stability at risk. Though poverty does not necessarily kill outright, it can contribute to putting one’s life at stake, and economic deprivation can be traumatic (Scaer, 2001, p. 139). Women’s experiences of intimate partner violence and the State’s inadequate responses to them contribute to perpetuating intimate partner violence and

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truncating women’s rights as full citizens, showing the cleavages along gendered lines of what Caldeira and Holston (1999, p. 692) call “disjunctive citizenship:” the development of citizenship is never cumulative, linear, or evenly distributed for all citizens, but is always a mix of progressive and regressive elements, uneven, unbalanced and heterogeneous. This becomes clear through narratives of women’s experiences of intimate partner violence in Santiago, Chile, which “ ‘trouble’ the distinctions between public and private, visible and invisible, legitimate and illegitimate forms of violence” (Scheper-Hughes & Bourgois, 2004, p.  4). Many of the current solutions to intimate partner violence are individualized, and women who suffer intimate partner violence must activate services and resources and often lose in the process in various ways. In intimate partner violence, State and family meet to constrain women’s agency and their access to full citizenship, with emotional and political effect. AC K N OW L ED G M EN T

As always, my deepest gratitude goes to the women who experienced domestic violence whom I  interviewed and became friends with in Santiago. I  thank the two centers’ staffs, who welcomed me into their worlds as another member of their teams. I am especially grateful to Ximena Rojas Bravo. This research was funded by Wenner-Gren Foundation for Anthropological Research and Fulbright-Hays dissertation fellowships during 2002 to 2003. The writing of this chapter was supported by a National Institute for Mental Health Postdoctoral Fellowship and Southern Methodist University.

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Coaxing Culture India’s Legislative Response to Dowry Deaths R A S H M I   G O E L   ■

I.  I N T R O D U CT I O N

Woman, her daughter burnt alive by husband, in-laws for dowry (June 18, 2014): A woman and her six-year-old daughter was (sic) burnt alive allegedly by her husband and in-laws in Khananka village for not meeting their dowry demands (Press Trust of India, 2014, June 18). Two persons arrested for killing woman for dowry (June 23, 2014): A man along with his brother has been arrested while dumping the dead body of his wife here, in an alleged incident of dowry death, police said on Monday (Press Trust of India, 2014, June 23). Woman found dead under suspicious circumstances at her in-laws’ house, family alleges dowry killing (June 25, 2014): A woman was found dead under suspicious circumstances, at her in-laws’ house in Chamanganj area of the city, with her parents alleging that she was murdered for dowry. Kalim Akhtar, husband of deceased Shaheen Bano (30), said that she committed suicide by setting herself on fire on Tuesday but her parents alleged that Akhtar’s family killed Bano for dowry, the police spokesman said on Wednesday (Press Trust of India, 2014, June 25). Woman beaten to death by husband, in-laws after she failed to fulfil dowry demands (July 2, 2014): A 26-year-old woman was allegedly beaten to death by her husband and in-laws after she failed to fulfil their dowry demands, police said on Wednesday. The incident took place on Tuesday at Khatauli town in the district, they said (Press Trust of India, 2014, July 2). Man kills wife, buries body in agricultural field (July 9, 2014): A man allegedly killed his wife and buried her body in an agricultural field in a village here before ploughing the ground to avoid suspicion. The body of the woman, Pramila Devi, was found on Wednesday with police suspecting it to be a case of dowry (Press Trust of India, 2014, July 9).

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These are just some of the dowry deaths reported in the Press Trust of India in a three-week period. Unfortunately, such deaths are not rare. Sometimes women are driven to take their own lives. Sometimes they are killed by their husbands or inlaws. Women are killed by poison, strangulation, hanging, beating, and too often, by dousing them with kerosene and setting them alight. There is no typical victim; dowry-related violence happens to educated women, uneducated women, lower class women, middle class women, and professional women. It happens in villages and in big cities. It has spread like a disease across the entire subcontinent. In 2012 alone, 8,233 women died in dowry-related violence in India1 (“Dowry deaths: One woman dies every hour”, 2013). In a country of 1.2 billion, with 10 million weddings a year (Sachdev, S. 2010), this figure is less than .1 percent of all new marriages. Nonetheless, it represents a national crisis, partly because the practice implicated, dowry, is cultural. While violence against women is a global phenomenon, when it happens in nations like India, this gender violence is often labeled “cultural.” Observers comment, “India has a culture of violence against women,” or “Indian culture does not value women.” Such blanket declarations are problematic for a number of reasons. First, calling India’s gender violence “cultural” singles out the Indian population as culturally prone to violence and isolates Indian women from the experience of other women worldwide. Calling the violence cultural also conveys a complacency and inaction about the problem and ignores efforts to counter it. Furthermore, it casts even successful prevention and response efforts as less transferable to other cultures. Finally, and worst of all, because culture is an amalgam of history, religion, tradition, social perceptions, power structures, politics, and other factors, dismissing gender violence as cultural renders the problem too complicated and deep-seated to be remedied, discouraging most responses as too small and ineffectual. In other words, calling gender violence a “cultural” problem makes it not only entrenched, but intractable, undermining efforts to find a solution. And yet, branding the violence cultural is a common response. To effectively address gender violence, nations must recognize cultural factors and simultaneously move beyond labeling that violence cultural. India’s response to the crisis of dowry-related violence, although imperfect, is one such effort to combat cultural factors. I I. W H AT A R E D OW RY D E AT H S?

India experiences inordinately high rates of gender violence against females. Approximately 500,000 female fetuses are destroyed due to sex selective abortion every year (Disappearing Daughters, 2008). Female children are 75 times more likely than males to die before the age of five (Shrinivasan, 2012). National records show that 40 percent to 70 percent of Indian women experience some form of domestic or sexual violence (Babu & Kar, 2009). 2 Add to this the very real issue of under-reporting (a prevalent problem everywhere with gender violence, but likely exacerbated in India) and rates are likely much higher. The G20 declared India the worst country for a woman to live in (Bhalla, 2012). Even against this backdrop, the phenomenon of dowry deaths is significant. Despite its criminalization in 1961 via

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the Dowry Prohibition Act, dowry remains a prominent feature in Indian marriages today and a significant factor in the deaths of thousands of women each year. The Indian Penal Code defines dowry deaths as follows: 304B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death.” (Indian Penal Code, §304B) Thus, a dowry death is any unnatural death, including suicide, occurring when the woman has been harassed for dowry soon before her death. This crime is separate from the crime of murder. Despite legislative efforts and social activism over the last 40 years, the number of dowry deaths in India has been increasing (Abeyratne & Jain, 2013). In 2000, there were 6,995 dowry deaths in India (NCRB, 2000). In 2005, there were 6,787 (NCRB, 2005). In 2010, there were 8,391 dowry deaths (NCRB, 2010). In 2012, there were 8,233 deaths. One woman dies every hour in India due to dowry-related violence (“Dowry deaths: One woman dies every hour”, 2013). While some states exhibit slightly higher rates than others, officials point out that dowry deaths are occurring in every region and every class across the country. The manner of death varies, but often women are burned alive (to disguise the killing as a kitchen accident). For this reason, dowry deaths are sometimes called “bride burnings.” It is of course apt to call such killings murder, but the link to dowry as a motive makes these cases distinctive. Dowry (as opposed to bride price) is the custom of transferring wealth to or with one’s daughter when she marries. The practice of giving dowry is pervasive across India and extends across all economic strata. While originally these assets were for the bride’s personal use and security, dowry today generally includes lavish gifts for the groom and his family as well. Some grooms’ families see dowry as an opportunity to quickly increase their assets and economic status. If the groom and his family are dissatisfied with the dowry, demands for money and goods may continue even after the wedding, and the bride is harassed when those demands are not met. As such, it is widely believed that dowry is largely responsible for the commodification of women and the marital relationship and a significant factor in the lower status of women in Indian society. The practice of dowry dates back more than 2000 years. Though it varied in importance, it was widespread across Eurasia. It remains prevalent in India. Vedic accounts discuss wealth transfers intended for the bride herself. (Bhave, 2007). Some historians believe that dowry was originally the daughter’s inheritance right, an inter vivos transfer upon her wedding. Other historians believe that dowry was not tied originally to inheritance rights, but was a gift to the daughter to serve as a kind of insurance policy—things the bride could use to ensure her own comfort if anything happened to her husband or if she was denied necessaries in her marital home. In either case, this wealth was called streedhan, or woman’s wealth, and it was her exclusive property and personal asset (Gupta, 1976). Over time, the function of dowry in India has clearly changed. In her book Dowry Murder, Veena Oldenburg finds that the purpose of dowry seemed to

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evolve around the turn of the century, with colonial administrators lamenting the creeping change by 1914 (Oldenburg, 2002, p. 180). At some point dowry may have represented a sort of conjugal fund for the benefit of the married couple in setting up their new life, but now, dowry is the price of a good match—simply the price one pays to get an educated groom from a good family. In fact, dowry increases with the groom’s desirability. Potential grooms with professional educations or prestigious jobs are in high demand, and parents of potential brides are wary of losing a good match if they provide no dowry at all. Similarly, a dowry payment can be a way of compensating for an imperfect bride. If the potential bride is seen as flawed in some way (e.g., less attractive, less educated, disabled) a more substantial dowry might be required. Some even characterize dowry as compensation to the groom for taking on the burden of a non-earning family member (Samuel, 2002). Whereas formerly dowry was a voluntary gift from the bride’s parents to the bride, today dowry is often negotiated by the groom’s family. Sometimes the demand from the groom’s family is subtle and veiled, other times more direct. Dowries vary, but it is more typical to give a dowry than not, and dowries are becoming more and more exorbitant. Customarily, the bride’s parents save for years and might give a dowry many times their annual income (Samuel, 2002). Despite the 50-year-old prohibition, brides’ families still give dowry. First, there remains a tender sentimentality to assembling one’s daughter’s dowry. Starting from her earliest days, a girl’s parents will use spare income to buy and put aside a set of jewelry, fine china, or cooking utensils. The items collected for a daughter’s dowry may not be what she will actually need in her new home, but they represent a lifelong labor of love. Second, giving an opulent dowry demonstrates social status and carries a message of how much parents care about their daughter. Finally, brides’ parents believe that by giving larger dowries, they will better secure their daughters’ happy futures in their marital homes. But the dowry of parental dreams and ancient custom is a far cry from the demands of modern grooms. Dowries do include personal items for the bride (usually jewelry and clothing), but grooms and their families frequently demand a plethora of household items, electronics, major appliances, consumer goods, and even large cash payments. If a bride’s family fails to meet a dowry demand, the groom’s family may refuse to go through with the wedding. Sometimes grooms’ families continue to demand money and goods on an ongoing basis after the wedding. Dissatisfaction with dowry can easily become an excuse for harassment and abuse and lead to violence when these demands are not met (Samuel, 2002). III. I N D I A’S L EG I S L AT I V E R ES P O N S E A N D H OW I T TA K ES C U LT U R E I N TO AC C O U N T

India has responded to dowry-related violence primarily by passing legislation. Each piece of legislation attempts to account for the cultural factors that enable violence against women. These laws deal with the unequal status of women by criminalizing the practice of dowry and harshly punishing violence associated with it. Over the past 50 years, India has enacted several interconnected pieces of dowry violence legislation.

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A.  The Dowry Prohibition Act of 1961 By the 1950s, it was widely believed that dowry contributed significantly to the lower status of women. The British had already declared almost 100 years earlier that dowry was the source of female inequality and son-preference (Oldenburg, 2002). Indian legislators and activists cast dowry as a traditional good that had been corrupted by consumer culture, a view instrumental in achieving passage of the Act (Oldenburg, 2002); greed, not patriarchy, was fueling violence against women. (Lakhani, 2012). Indian legislators saw dowry as a clear invitation to abuse and decried dowry3 as the root of marital inequality. In 1961, India passed the Dowry Prohibition Act, which states: 1. If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more.4 (The Dowry Prohibition Act, 1961) 2. Definition of “dowry” any property or valuable security given or agreed to be given either directly or indirectly. (a) By one party to a marriage to the other party to the marriage, or (b) By the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before 1 [or any time after the marriage] 2 [in connection with the marriage of the said parties. . . . (The Dowry Prohibition Act, 1961) The 1961 provisions plainly acknowledge the presence of persons other than the bride and groom in the marriage agreement, clearly accounting for cultural traditions that influence the marital relationship, like arranged marriage (Dewan, 2000). Arranged marriages remain the norm in India (almost 90 percent of marriages are arranged), despite increased Westernization that prefers romantic love precede marriage (“Indians swear by arranged marriages”, 2013). Regardless of faith or social class, most Indian families believe that decisions like choosing a life partner are best made with the guidance of elders. Therefore, most young people are not averse to their parents having a hand in the selection process. Such parental involvement is a hallmark of arranged marriage, but the degree of involvement and control varies widely. In rare cases, the bride and groom do not meet at all prior to the wedding. More often, at least in urban locales, parents select potential partners for their child to consider. Usually a photo and a bio-data (a kind of matchmaking resumé) are provided. If the child approves, a meeting is arranged. Meetings usually involve parents, but the prospective couple does get some time to talk alone together. Sometimes parents insist on a decision immediately; other times the couple is permitted to meet a few times before deciding. Very rarely, a couple is permitted a very brief courtship, within strict limits, before deciding. It is rare to hear of a truly forced marriage today; parents generally seek their child’s consent before agreeing to any match. Parents consider numerous attributes when finding a good match for their child, including education, economic and social status (including caste), religion and

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religiosity, language, vegetarianism, region of the country where the family resides (both for geographic and cultural reasons), constitution of the family, and general physical attractiveness. (Mishra, 2011). When considering a potential groom, a bride’s parents also consider earning potential and type of career, whether it is a joint family system (where several generations reside in one home) and if there is enough room for another person and grandchildren in the joint family house, general disposition, ability to shoulder family responsibilities, and reputation. When considering a potential bride, a groom’s parents consider whether the bride wants to work after marriage, whether she will make a good wife and mother, whether she has domestic skills and talents, and whether she will adjust to living in a new family. The arranged marriage system serves many purposes. It both expands the pool of potential partners to unknown individuals and reduces the pool to those who are most similar. It ensures marriage for most individuals, including the introverts and wallflowers who might otherwise not find a partner. It helps to preserve social status and religious, cultural, and linguistic traditions. It reduces the likelihood of sexual indiscretions by providing a sexual partner early. Ideally, because parents have matched family styles and outlook, arranged marriage also reduces the likelihood of marital discord. Proponents of arranged marriage point to the comparatively high rate of divorce in countries like the United States that favor love marriage, versus India’s extremely low rate of 1.1 percent (Divorce Rate in India, 2012), to demonstrate the success of the arranged marriage system. They also note the rise of online dating sites and matchmaking services, which, they say, do essentially what Indian parents have been doing all along. Detractors note that dowry has also become a factor in choosing a potential bride. Grooms’ families see dowry as a way to demonstrate social status, and also as a way to significantly increase their assets. Negotiating a large dowry from the bride’s parents is a way of climbing the economic ladder and perhaps stocking the larder for the dowry of one’s own daughter. For many alliances, the dowry is a central consideration in choosing a bride. So long as money is a consideration in the arrangement, however, there is a danger that the bride will be viewed as a means to economic success rather than a life partner. It is difficult to measure exactly how much the tradition of arranged marriage contributes to dowry death. In arranged marriages, parents often allow social class and education to serve as proxies for “a good family.” Focused on status and appearances and a desire to avoid the scandal that can come with lengthy premarital courtships, some parents do not take the time to truly get to know the other family. In such cases, post-wedding dowry harassment is a rude awakening. The rate of dowry deaths in love marriages is much lower than in arranged marriages. But even dowry-related violence is unlikely to cause Indians to abandon arranged marriages, since such arrangements address numerous concerns about family traditions, boundaries, and relations between the sexes and the social classes. B.  Dowry Harassment and Cruelty: §498A Indian legislators must have believed that attacking dowry in its corrupt form would be sufficient to reduce the custom and its negative effects. But dowry did not decline.

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Instead, it became more widespread and excessive across castes, classes, and communities. When the reported number of violent incidents against women increased, dowry was often cited as a cause. In the 1980s, the Indian legislature passed two additional laws and amended the Indian penal code to fully acknowledge, and specifically criminalize, dowry-related violence. The first of these was §498A of the Indian Penal Code: Whoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. (emphasis added). (Indian Penal Code §498A) Cruelty is defined as (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or, is on account of failure by her or any person related to her to meet such demand. (Indian Penal Code §498A) (emphasis added) Section 498A confronts another cultural factor in dowry-related violence—the joint family system and the role of other household members. The joint family system entails several generations living under the same roof; parents live with their sons, their daughters-in-law, their unmarried daughters, and their sons’ children 5 (Sunderarajan, 2012). Currently, 20 percent to 30 percent of Indian families live in joint family homes (Rajadhakshya, 2012, March 12). While not all dowry deaths occur in joint family homes, many do, and in these cases, family members are unavoidably implicated, both actively and in their failure to intervene against abuse. Dowry deaths usually involve more than one actor. Some cases involve the concentration of male patriarchal power, with husbands, fathers-in-law, and brothers-in-law abusing the victim. Other females in the home sometimes exercise patriarchal power also. Some victims describe being horribly abused by their mothers-in-law—locked in a bedroom without food for days, prevented from going out, and being verbally and physically abused. One victim recounted how, when she was doused with kerosene and backed into a corner of the kitchen, it was her mother-in-law who held the match (Lichhamadevi v. State of Rajasthan, 1988). The oppression of women by other women is a complex mix of internalized patriarchy, power, and self-preservation beyond the scope of this chapter, but the joint family system creates ripe conditions for these abuses. Instead of offering additional protection for a young bride, the joint family system may permit collusion, conspiracy, and ultimately, deadly violence (Samuel, 2002). Section 498A is a monumental shift in the law. It was the first legislative acknowledgment of domestic violence as a crime. While domestic violence could previously have been prosecuted under the Indian Penal Code provisions for assault and battery, such prosecutions were extremely rare. Broad enough in scope to cover the pattern of verbal or economic abuse that so often accompanies

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dowry-related violence, §498A provides strict penalties and wide latitude for law enforcement. Furthermore, §498A recognizes the tendency of women to stay in the marital home, even in the face of extreme abuse. Abused women in Indian society have few options, and there may be no path to separation and independence for them. First, women lack funds. Most women, even educated women, are not encouraged to have careers. The majority of Indian women do not work outside the home and are not financially independent. The dowry, which might have provided security, has usually been appropriated by the in-laws. Second, women are reluctant to return to their natal homes because of the shame associated with departure and divorce. A failed marriage reflects poorly on a woman’s parents and shows that either the woman could not “adjust” (that is, she was too headstrong or independent) or that the parents did a poor job in choosing a match for their daughter. The likelihood of remarriage is low, given the lack of dating as a path to marriage in Indian society, the priority given to virgins, and the likelihood that the woman will be blamed for the end of the marriage. A positive “life after divorce” does not exist for Indian women. Women who are not married, or who do not have children, are seen as incomplete and worthy of pity (or disdain if they have chosen not to marry or have children). Parents believe it is their responsibility to ensure their daughters are married and settled. Such beliefs not only make parents more inclined to provide large dowries or succumb to dowry demands, but they also make women more reticent to inform their parents of domestic abuse or to return to their natal homes, especially after parents have already shouldered the expense of the wedding. C.  Dowry Death: §304B In 1986, India amended its penal code to include the newly defined crime of dowry death, §304B.6 Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. (Indian Penal Code, §304B) (emphasis added) Simultaneously, §174 of the Indian Criminal Procedure Code was amended, requiring police to order a postmortem whenever a case involved suicide of a woman within seven years of marriage (The Code of Criminal Procedure 1973, §174, as amended by the Criminal Law Amendment Act of 1983). The Evidence Act was also amended to take into account the general reluctance of courts to deal with these crimes, essentially restating the presumption of §304B: When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any

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demand for dowry, the Court shall presume that such person had caused the dowry death. (The Evidence Act, §113B) Section 304B pragmatically responds to the challenges of prosecution and proof in dowry death cases. For instance, physical and testimonial evidence is often very limited in dowry-related violence cases because the deaths occur in a private home and residents are complicit in the murder. Sometimes, there is not even a corpse, because it is customary to cremate or bury the dead quickly after death (Singh v. State of Haryana, 2013). The husband and in-laws exploit this custom to eliminate evidence, often before the woman’s parents can reach her marital home.7 Even where evidence exists, police are often poorly trained and biased.8 Police may not take a case seriously because they consider it a private matter and may not perform a rigorous investigation. Police are also susceptible to corruption and can be bribed so that they do not investigate thoroughly, question witnesses, or collect evidence properly (Gadkar-Wilcox, 2012). Families will pay to avoid the stigma of a charge, and when police are paid to look the other way, they often do. Section 304B should help overcome the instances of poor police work; by eliminating the need for causal proof, §304B tackles the evidentiary difficulties that have plagued dowry death prosecutions. Similarly, courts have sometimes proven a hindrance in the fight against dowry-related violence. Overly technical application of the law and lengthy delays often force women and their families to abandon their claims (Nelson, 2013). Eliminating the need for causal proof increases the likelihood of a successful prosecution even years later and reduces the opportunity for overly restrictive application of the law. Section 304, coupled with the other legislation addressing dowry-related violence, seems to give prosecutors a great deal of power. Unlike a standard murder prosecution, under §304B the prosecutor does not need to prove either that the husband or in-laws actually caused the death or to establish the perpetrator(s)’ mental state at the time of the crime. The prosecutor only needs to prove that the victim died of unnatural causes within seven years of marriage and soon after dowry harassment occurred. The husband and the husband’s family are deemed culpable under the statute, even in the absence of causal proof. This stands in marked contrast to other provisions of the IPC. In §304B, the presumption of innocence ordinarily required in criminal cases by the IPC seems to be overridden by a concern for women’s safety. The rules of evidence, the standard burden of proof, the mandate of due process—none of these is inviolable in the face of this crime. More important than any of these procedural or due process concerns, where dowry deaths are concerned, is punishing the guilty. Ultimately, however, the laws are primarily utilitarian, not feminist. By connecting the murder of women to dowry greed, the state fingers dowry as the real culprit, as opposed to an underlying subjugation of women in Indian society. Furthermore, the laws leverage the old-fashioned notion of wives being in the custody and care of their husbands and in-laws instead of promoting a vision of women as independent, capable, and deserving of respect. That said, it is this old-fashioned notion that allows the legislature to presume that if the woman died from unnatural causes while she was in the husband’s or his family’s custody, it is presumptively their fault. Despite the plain effect of the provisions, the courts have not held that

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the provisions violate due process or unfairly relieve the standard burden on the prosecution. Instead, the courts have held that once the requirements of §304B are proven, an inference as to the defendant’s culpability may reasonably be drawn (Singh v. State of Haryana, 2013). Legislative development has been painfully slow. India’s legislation moved progressively from outlawing dowry to criminalizing dowry violence to finally addressing dowry death, but each act was implemented only after previous acts failed to have any significant impact on the mounting numbers of women killed or driven to suicide in the marital home. That said, the laws do take into account the cultural factors at work and implicitly adopt the dowry death findings of women’s advocates. For instance, studies have shown that most victims are killed or commit suicide within the first few years of marriage—hence the seven year time frame. Similarly, the law’s inclusion of family members as culpable parties for the death recognizes the unique impact of the joint family system. The acts also specifically mention the wife’s natal family members as targets of the unlawful dowry demands, thus acknowledging the role of family in arranging most marriages. Even the tendency of women to bear the abuse and stay in the marital home seems to have been considered, as women are not required to have registered a case of unlawful dowry demands or dowry harassment prior to family members raising claims under IPC §498A or §304B. I V. T H E L EG I S L AT I V E  EFFECT

Since the passage of the Dowry Prohibition Act, IPC §304B, and §113 of the Indian Evidence Act (The Indian Evidence Act 1872), the number of cases or complaints lodged under §304B9 each year has actually gone up. In 1984 there were 550 registered cases, and in 1990 the rate jumped to around 4,835 (Carlson-Whitley, 1994). In 2000 there were 6,995 registered dowry deaths (NCRB, 2000). Similarly, the number of cases registered under §498A has also increased. Cases were registered against 197,762 persons under §498A in 2012, 9.4  percent more than in 2011. Recent news stories seem to convey national shock at the increase in dowry deaths, the spread of the crime from north to south, and its presence across all classes. But the increase in the number of reported cases should not be viewed as a failure. The rise in reporting rates does not necessarily reflect an increase in occurrence. More likely, the increase indicates women making use of a path that didn’t exist before. Prior to the enactment of §498A, women had no law that defined domestic violence as a crime, and coupled with police bias against interfering in private matters, few legal options for abused women existed. Section 498A provides a clear acknowledgment that domestic violence is a crime, and women are using that provision to hold their abusers accountable. Similarly, it is just as likely that victims’ families and prosecutors are choosing to proceed under §304B and the dowry arm of §498A because these represent the strongest chance of success in cases of domestic violence. Studies show that even in §498A and §304B cases, dowry is only one area of contention among many. Most often, husbands and in-laws accuse the bride of other things:  loose morals, sloppy housework, being too modern, being insufficiently educated, lacking talent at homemaking, being from a lower caste, a poor family, or a family of low social

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status, refusing sexual intercourse, being unable to conceive, not giving birth to sons, or wanting too much in the way of freedoms. One reason the number of cases remains high is that the dowry violence legislation has become an effective catchall for addressing domestic violence and domestic violence homicides generally. Dowry harassment is only one aspect of the abuse, but since it is the one that best provides legal recourse, it is the one women allege. The conviction rate remains extremely low, at 16 percent in §498A and 32 percent in §304B cases (NCRB, 2013), even with the burden of proof shifted to the accused. India faces massive challenges in terms of law enforcement. Witness testimony is difficult to obtain, and evidence management is sketchy. Police forces are corrupt and biased (Hornbeck et al., 2013). Prosecutors are overworked. Courts are so backed up that it would take an estimated 350 years to get through the backlog that currently exists (Nelson, 2013). Given these challenges, it is evident that enforcing the laws India has passed is impossibly ambitious. Nevertheless, women’s advocates and activists pushed aggressively for criminal laws on dowry death (and later on domestic violence more generally). Taking advantage of international laws like the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), activists lobbied for the state to take responsibility for alleviating women’s suffering. Activists have used, and continue to use, international and NGO funding to advertise new legal provisions and promote culture change (http://www.ngo-marg.org/). Activists recognized that although punishment is an important part of the criminal law, the law can also effectuate cultural change. Creating national legislation raises the issue of dowry-related violence to the level of state interest and public concern. Dowry deaths can no longer be a private matter or a dirty secret. Criminalization is an acknowledgment of the seriousness of the problem and the state’s responsibility to combat it. In addition, by enacting these laws, the state asserts its authority to promulgate national values. Finally, and most importantly, by removing the presumption of innocence, and deeming the husband and in-laws culpable, the law prioritizes punishment in dowry deaths over well-established principles of due process. This is Indian law tackling the culture problem head on. By connecting the murders to dowry greed, the state names dowry (and a rampant consumer culture) to be the real culprit (as opposed to societal subjugation of women). While women’s advocates in India concur with the government’s desire to eradicate deaths motivated by dowry, national protests and campaigns are more anti-dowry than anti–dowry death. The anti-dowry movement can draw an almost continuous line from pre-independence India to today, and the tie to consumer culture is still offered as the prime reason for dowry demands and dowry deaths (Samuel, 2002). Dowry demands are a clear indicator that a prospective groom and his family do not value women or respect marriage, but the absence of a dowry demand should not be taken as a guarantee that they do. A belief that simply eliminating dowry will drastically improve women’s lives ignores the nationwide prevalence of sexual harassment, sexual assault, female feticide, forced marriage and female neglect, all of which betray a deeper current of female subjugation (Hornbeck et al., 2013). Therefore, a singular focus on dowry alone is unlikely to be successful in significantly reducing domestic violence. Eliminating dowry as a cause of marital discord will not alleviate the other “causes” and will not prevent abusive men from marrying and abusing their wives for a myriad of other reasons.

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V.  B E YO N D L EG I S L AT I O N

The dowry violence legislation faces resistance, and even backlash. Several Indian men’s groups have challenged the validity of the laws, arguing that the deeming provisions of §§498A and 304B and the automatic arrests as violations of due process. On July 3, 2014, the Indian Supreme Court declared that vindictive wives who wanted merely to harass their husbands and in-laws have in fact misused §498A (Anand, 2014). The court cited the low conviction rate under §498A as evidence for the illegitimacy of such cases. The court ordered that henceforth, no arrests under §498A should be made except pursuant to a magistrate’s warrant. Instead of recognizing the corruptibility of the Indian police force, the court held that the chances for corruption in these cases required removing the ability of police to act immediately. Unfortunately, the court did not acknowledge either the high rates of dowry-related violence that led to the passage of the law in the first place or the numerous cases in which police corruption has prevented charges from being filed in such cases despite victim’s complaints (Arnesh Kumar v.  State of Bihar, 2014). Instead, the court framed the issue as one of police abusing their discretion by arresting without probable cause, and the holding as a necessary curtailment of the power of the state. Once again, the voice of a few men was allowed to overwhelm the cries of thousands of abused women.10 Even so, women’s rights activism perseveres in India. The movement itself arose as part of Mahatma Gandhi’s historic movement for Indian independence and still advocates on a wide range of issues that affect women and men. Current activist efforts around dowry death can be grouped into three categories: 1) education campaigns (to educate people on the presence and force of the law); 2) persuasive ad campaigns (to persuade people to shun dowry and reduce domestic violence); and 3) action by women and women’s groups (through protests or taking justice into their own hands). Education campaigns in India must take into account low literacy rates (particularly among women) (Gadkar-Wilcox, 2012) and limited access to television. Many women do not even know laws exist to protect them from violence, and they assume that the police cannot or will not help them. The graphic posters explaining the Dowry Prohibition Act, and §304 B and §498A are excellent examples of an education campaign that conveys information in a simple pictorial fashion and, when widely distributed, not only educates but also empowers.11 Persuasion campaigns that seek to end dowry have been limited in their effectiveness. Most still participate in the dowry game, believing that what they are giving or receiving does not count as dowry or that dowry is a necessary evil that cannot be avoided. The anti-dowry campaigns, posters, and protests seem to flare up in response to high profile cases and then die back down. Furthermore, there have always been those who do not oppose dowry, but instead only oppose the harm that can arise from it, and who argue that equal inheritance rights would solve the problem. These activists claim that opposition to dowry sometimes emanated from brothers who preferred that their sisters be disinherited rather than receive their share through dowry (Shukla, S., Interview, 2014). The connection of dowry to violence against women clearly exists, but eradicating dowry is an incomplete solution. Campaigns that focus more generally on violence against women (dowry related or otherwise) have a better chance of reducing dowry-related violence. Ads focused

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on violence against women have been present in magazines and newspapers for decades, supported by non-profits and government agencies dedicated to women’s welfare. Of course, these ads primarily reached the literate and those with higher incomes. New methods of dissemination through television, the Internet, and mobile phones have given greater reach to anti–domestic violence campaigns than ever before, however. Particularly noteworthy is the famous bell bajao (“ring the bell”) campaign (winner of several awards, including the Cannes short film category) that calls upon community members, particularly men, to intervene when they hear or see someone being abused (Bell Bajao—A campaign to stop domestic violence, 2014). Short commercials and YouTube videos feature all-male casts; the characters are ordinary people—a postman, a mechanic, a software engineer, a group of boys playing cricket in the street. By doing something as simple as ringing the doorbell of a home when they hear a woman suffering abuse inside, the community member strips away the shield of domestic privacy and lets the abuser know that someone knows and is watching. In other words, ringing the bell brings domestic violence out into the open and uses the community to end it. Campaigns like bell bajao can be effective in combatting gender violence, including cases of dowry-related violence. First, they make the crucial point that men must be engaged in the struggle to end violence against women. Second, the campaign uses characters and scenarios from all social classes, casting violence against women as a social ill that affects everyone. Third, bell bajao exploits the Indian tendency to communalism to establish a sense of community responsibility for the harm. Bell bajao has become an international movement and has contributed to a feeling of national responsibility for the condition of women. There are also women and women’s groups who take action in bolder ways. Satyarani Chadha, whose 20-year-old daughter was burned to death in her marital home over insufficient dowry in 1979, embarked on more than two decades of activism to end dowry and get justice for her daughter and others. The court eventually found Chadha’s daughter’s husband guilty in 2001, 22 years later, but he absconded and never spent a day in prison. Chadha marched, led protests, and even mobilized other victims’ families to seek justice in dowry violence cases. In 2003, at the hour of her wedding, Nisha Sharma refused to marry and instead called the police when she heard of the groom’s dowry demands. In 2007, Pooja Chauhan marched through the streets of Rajkot in only her underwear to protest the police refusal to register a case of dowry abuse and harassment against her husband and in-laws despite her many pleas (“Rajkot woman stages semi-nude protest against dowry demand”, 2007). These individuals have sparked anti-dowry protests, increased awareness, and even formed organizations dedicated to dowry-related violence cases. Groups too have found success. The now famous Gulabi Gang (the Pink Gang), so-called for the bright pink saris worn by its members, has empowered women in communities all over northern India to stand up against abusive husbands and dowry, even embracing methods that defy traditional Indian gender roles, such as wielding bamboo lathis (6- to 8-feet-long fighting sticks) for their cause. The Gulabi Gang not only receives a fair share of local media attention, it has also been the subject of a documentary film and inspired a Bollywood movie. Founded by Sampat Pal Devi, and with satellite offices in several other northern Indian towns, the Gulabi Gang now counts its members at more than 10,000 (Official Website of Sampat Pal Devi founder of the Gulabi Gang, 2014).

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The limited, yet perceptible, gains in the area of grassroots activism are a necessary adjunct to advances in the law. During the debate on the Dowry Prohibition Act in the Parliament in 1961, India’s first Prime Minister, Jawaharlal Nehru said: Legislation cannot by itself normally solve deep-rooted social problems. One has to approach them in other ways too, but legislation is necessary and essential, so that it may give that push and have that educative factor, as well as the legal sanctions behind it, which help public opinion to be given a certain shape. (Parliament Report on Dowry Prohibition Act, 1961) Law, even bold and groundbreaking law, can only achieve so much. International instruments like CEDAW can provide a strong framework for articulating goals and standards, and national domestic laws like the Dowry Prohibition Act and the Protection of Women from Domestic Violence Act (2005) must reiterate and adopt these standards as statements of national values and aspiration, but we will have to do more to achieve genuine social and cultural change. Because culture is an amalgam of numerous forces, including law, cultural change can only be wrought through numerous forces, in addition to law. Education, enforcement, and grassroots efforts on a local level are absolutely necessary to finally put an end to dowry-related violence.

PART IV

Still Work to Do The Continuing Evolution of the Legal Response

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An American in St. Patrick’s Court Gender Violence, Gender Inequality, and the Irish Feminist Response K R I S M C D A N I E L - M I C C I O   ■

I.  I N T R O D U CT I O N

Violence against women by male intimate partners is no different in Ireland than it is in the States. An Irish fist will cause the same damage to self and identity as an American fist. Such violence is gendered and at epidemic proportions. In its Statistical Report for 2012, Women’s Aid summed up the problem in Ireland: “1 in 5 women in Ireland who have been in a relationship have been abused by a current or former partner” (M O’Connor & Kelleher Associates, 1995). In 2012, there were 14,792 incidents of domestic violence disclosed to the Women’s Aid National Freephone Helpline. There were 9,912 incidents of emotional abuse, 2,859 incidents of physical abuse, and 1,554 incidents of financial abuse disclosed. In the same year, 467 incidents of sexual abuse were disclosed to Helpline support workers, including 176 rapes. The Women’s Aid National Helpline responded to 11,729 calls in 2012. In 2012, the Women’s Aid One to One Support Service provided 508 one-to-one support visits, accommodated 162 court accompaniments, and gave further telephone support to, and advocacy for, women on 1,595 occasions throughout the year. Both cultures systemically and systematically subordinate women’s bodies and rights because of an accident of birth. Indeed, the social, legal, and political problems created by the violence are exactly the same. The United States and Ireland report that male intimate violence is the leading cause of homelessness and trauma and violence to children. The difference, however, is in how each movement, each cultural iteration of feminism, formed politically to challenge gender inequality. The American battered women’s movement qua movement has not crafted a cogent ideology that addresses economic, political, social, gender, and sexual inequality. Moreover, the movement has failed to incorporate an analysis that identifies, much less deconstructs, the “isms” that constitute axis domination in the United States (Miccio, 2005). Absent an intersectional ideology or theoretical foundation, movement methodology has been narrowed to critique only one factor that contributes to women’s bodily subordination—patriarchy. This limitation

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affects how the core of the movement—its shelters—is organized, the issues it chooses to address, and the alliances it chooses to develop (Miccio, 2005). Indeed, a grassroots political movement born out of collective struggle in the 1960s has been transformed into a social services faction that delivers much-needed services but does so without either political awareness or discernment. What exists has been coopted and assimilated into the political status quo—to the detriment of authentic gender equality. The history of the Irish feminist movement has permitted a much broader vision and growth of the battered women’s movement there. This chapter examines the evolution of the battered women’s movement and shift of law and culture in Ireland. Gender asymmetry in law and gender violence in culture framed women’s positions in both Irish and American society. The notion of woman’s innate inferiority required her to live under the rule of both patriarch and Patriarchy. American and Irish laws, whether expressed in statute, common law, or constitutional law, were steeped in a deeply misogynistic culture. Thus, Blackstone’s rebuke that women’s identity was suspended, invisible, and subsumed upon marriage framed discourse and policy (Blackstone, 1979). During the first and second wave of feminism, women’s proper place was in the home, a consequence of cultural and legal sex stereotyping. Eudine Barriteau (1998) describes this system as a “network of power relations;” that is, based on a “complex system of personal and social relations through which men and women are socially constructed” (pp. 189–190). Power is derived from the acquisition of resources, whether economic, political, material, or social. Access to such resources is restricted to the public sphere, a province denied to women. The state supports and maintains such gender disparity through its power to regulate not only public, but also private relationships (Barriteau, 1998). Consequently, gender not only determines whether one may access the labor market, join the body politic, exercise self-determination, and/or enjoy bodily integrity, but also whether such behavior is sanctioned by the state. In the 20th century, Irish and American feminists addressed the exclusion of women from civil society (DuBois & Dumenil, 2011). Too often women were confined to the private sphere, a place marked by brutality. With the advent of the first and second wave of feminism in the United States and the Republic of Ireland, a grassroots movement grew that challenged state power to control women’s lives (Connolly, 1996). This chapter examines the evolution of the battered women’s movement and the shift of law and culture in Ireland. I I. D I E K I N D ER , D I E K I R C H E, D I E K U R C H E: T H E F EM I N I ST R ES P O N S E

Ireland was colonized by the British and under British rule from 1536 until the establishment of the Free State in 1922 (Smith, 1905). Throughout this period, British Protestants usurped labor, land, culture, and language (Smith, 1905). The arrival of Oliver Cromwell to Ireland in 1649 brought further displacement of Irish Catholics, who were removed from their land and relegated to either tenancy or farmland that was almost uninhabitable (Ó Siochrú, 2008). The Irish were forbidden to speak their language, to use their Irish names, or to practice their religion

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(Ó Siochrú, 2008). Catholicism was driven underground along with Republicanism; thus cross and sword formed Irish liberation movements. Rebellions occurred throughout the four centuries of occupation. Yet it was the Easter Rising of 1916 and subsequent execution of Republican leaders that triggered a grassroots uprising culminating in the establishment of the Irish Free State. Men and women were warriors in Ireland’s fight for independence. Cumann na mBan (The Irish Women’s Council) brought women into the 20th century fight against the British occupiers (Matthews, 2010). Nghinidhe na hÉireann (Daughters of Ireland), which became part of Cumann, gave many women to the fight, including Countess Constance Georgine Markievicz, a formidable leader of the Rising (Matthews, 2010). These women were suffragists, socialists, and dedicated Republicans involved in the establishment of a state that would reject class and gender inequity. Women fought side by side with their male counterparts and were captured and sentenced to death by British military courts. Indeed, in a cell in Kilmainham Gaol (Príosún Chill Mhaighneann) Countess Markievicz sat awaiting execution for her part in the Rising. Gender was not an issue in the Rising and subsequent battle for independence. Emblazoned on collective memory was the brutality of the British regime toward all Irish Catholics. Two historical moments, however, frame Irish commitment to the expulsion of the British colonialists: the famine of 1740 to 1741 and the famine of 1845 to 1852, deprivations that decimated a culture and population. Conservative estimates place the death toll at over one million Irish during the Gorta Mór, the Great Famine of 1845 (Murchadha, 2011). These deaths were a consequence of an occupation policy articulated by the British government and executed by a bureaucracy unconcerned with the fate of the indigenous population (Murchadha, 2011). Indeed, the United Kingdom knowingly pursued a policy of mass starvation in Ireland with the intent to destroy the Irish people. As human rights activists note, British conduct during its occupation of Ireland and creation of the Famine constituted genocide and would have amounted to a violation of Article II(c) of the Geneva Convention (O’Keefe, 2011). Women were not shielded from the corruption or brutality of the occupiers. Gender did not shield women from starvation, torture, or usurpation of their labor. In the mass graves that held the victims of Gorta Mór, emaciated bodies of women, men, and children lay side by side, reminding us that colonization and death are indeed the final equalizers. Consequently, historical memory helped craft the first Constitution, thereby inscribing socialist and gender parity onto the Irish Free State enabling document. Not willing to reproduce structures that had oppressed the Irish for centuries, the Republicans constituted a government charged with mediating between individual rights and collective obligation. The Saorstát Eireann (Irish Free State Constitution) guaranteed the rights of the individual but also vested in the people the right to the land, water, natural resources, mines, and minerals. The founders of the Irish Free State recognized women as integral to the development of a new Ireland. Consequently, no occupation or educational or political option was denied to women under the Saorstát Eireann. From 1922 until the late 1930s, women flourished. They filled university and graduate schools, were part of the professions, and had the vote once the Free State was established. There was, however, one area that received little attention—the

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family. The family remained under the tutelage of the patriarch, whose power was protected by the state. In both the United States and Ireland, feminists committed to extricating women from the not-so-gilded cage. The American movement was concerned with enfranchisement and reproductive justice (Gordon, 1990, 2007). The vote and access to birth control consumed the first wave of American feminism (Gordon, 1990, 2007). Male intimate violence was treated as part of the birth control agenda because violence was linked to unchecked births in families living in poverty. Intra-familial violence was presumed to be a consequence of ethnicity and class, not a corollary of gender asymmetry. If one traveled the streets of the lower east side of Manhattan in the early 20th century, one would see Italian and Eastern European immigrants packed into tenements, streets teeming with humanity and grinding poverty that whittled away hope and what hope provides. Inside tenement apartments, the violence of poverty combined with gender violence, rendering the home as unsafe as the streets. There was no respite from the ferocity that marked lives in the sweatshops, the streets, or the home. Yet the veil of familial privacy coupled with cultural amnesia shielded both victim and perpetrator from public view or collective concern. Class or wealth did not protect American women from either the vagaries of patriarchy or its violence. Middle class women were routinely subjected to sexual surgery, committed to mental institutions, or secluded behind the familial door for acts viewed inconsistent with their gender (Barker-Benfield, 1977; Ehrenreich & English, 1979, 2011). As Charlotte Perkins Gilman (1892) wrote, the descent into madness was not uncommon and not merely a literary device; it was, for many middle and upper class women, their fate for attempting to assert an identity separate from that of their husbands. Class and class privilege did not favor wives. The subjugation of women in the home was a threat common to Irish feminists as well. By the mid-third of the 20th century, Irish women’s position within civil society was perilous and uncertain. With war clouds gathering in Europe, conservativism was on the rise, resulting in the confinement of women to the private sphere. No longer would women stand shoulder to shoulder with men in the factory, academy, or the professions. Irish women’s participation in the War of Independence failed to shield them from the vagaries of misogyny. Gender equality in Ireland shifted dramatically with the institution of the de Valera1 government due to collaboration with the Church. In crafting the second Constitution, de Valera regarded separation of church and state as antithetical to traditional Irish culture. Consequently, the new Constitution would explicitly reflect Catholic values—in opposition to the views held by the architects of the Free State Constitution (Kissane, 2007). By 1937 the Church was a key political broker (Kissane, 2007). Indeed, the Church was the invisible hand that essentially penned the Second Constitution. Although the 1937 Constitution did not establish a state religion, the wall between Catholicism and civil society was dismantled. Thus, Catholic dogma and policies were not only integral to but integrated throughout the 1937 Constitution (Bunreacht Na hÉireann). Women’s participation in Irish society was legally limited to housework, childbearing, and child rearing. As John Charles McQuaid, Archbishop of Dublin and Primate of Ireland noted, “Nothing will change in law and fact that women’s natural sphere is in the home” (McQuaid, 1937). As political actor the Church exercised its influence over social teaching, moral development and civil law by reframing

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women’s role in Irish society; with the inclusion of Article 41§2.1 into the 1937 Constitution that role was immutable. Article 41 essentially nationalized the womb by constitutionally pronouncing childbearing as a public good. Under Article 41, reproduction was not a private act but a public duty. Additionally, women’s work was restricted to non-wage labor in the home, creating economic dependency upon husbands. Consequently the 1937 Constitution transformed the home into a space where the patriarch was sovereign and his power over wife and child absolute. The United States and Ireland shared a common bond in the structural relationship of familial governance and patriarchy. The power of the patriarch was controlling. A life distinct and separate from husbands was denied to wives, making economic independence a nullity. For women, then, the fundamental right to work outside the home was subordinate to the familial duties of reproduction and maintenance of the inner life of the familial unit. Marriage was the glue that set structural relationships within the family. Ireland barred married women from working outside the home until the late 1970s; if a woman was employed as a civil servant or by private employer she was required to relinquish her position upon marriage. Bars to divorce and abortion were added to the 1937 Irish Constitution by plebiscite, re-enforcing gendered conceptions of the public good and further entrenching the power of the clerics. Indeed, one could argue that Catholicism has had a rather viselike grip on both discourse and policy. Public schools were run and maintained by the Church, state courts ordered placement of abused and neglected children to homes run by the Church, and pregnant unwed girls and women were routinely sent by family and the state to Mother and Baby Homes operated by various religious orders. III. T H E F EM I N I ST R ES P O N S E I N T H E FI R ST  WAV E

Irish feminists worked not only for gender equality but also for the eradication of poverty and the elimination of income inequality. Class awareness was a direct consequence of colonization under the British, where the Irish were relegated to either a master–serf relationship, unable to control the means of production, or a penniless life where they languished and died in calamitous poverty. Irish feminists linked third party control of production with control of reproduction and women’s bodies. Unlike U.S.  feminists of the period, Irish feminists recognized the connection between the control of laborers to produce goods and the control of women’s labor to reproduce laborers. Feminists rose in opposition to sections of the Constitution that relegated women to non-wage labor within the family. The Women Graduates Association (WGA) led the charge against Art.41. The WGA organized demonstrations, hosted speakers in women’s homes, and authored pamphlets challenging sexist cultural assumptions within Article 41. In her missives, Hanna Sheehy-Skeffington, a feminist and ally to de Valera during the Civil War, accused the de Valera government of abandoning the promise of equality and liberty for all Irish citizens regardless of sex. Sheehy-Skeffington also spoke out against the Church for shaping policy that reified gender inequality. Collaborating with allies in the Dáil, 2 Sheehy-Skeffington and the WGA challenged Article 41 as setting up a constitutional conflict between the prescribed role of woman as mother

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and the constitutional protections afforded Irish citizens concerning the right to wage labor. Although not successful in stopping either the influence of the Church or the “biology is destiny provision” in the Constitution, the first wave feminists paved the way for subsequent successes by feminist activists in the mid to latter part of the 20th century. I V. T H E S EC O N D WAV E A N D T H E  ST R U G G L E FO R  B O D I LY I N T EG R I T Y

A.  The Legal and Cultural Backdrop (1969 to Present) The Irish struggle for equality has included a fight for the rights of women to be secure in their bodies. That struggle, however, has been a difficult one for feminists in the Republic. Feminists in Ireland faced a herculean task. As described by Yvonne Scannell (1998): Laws based on the premise that women’s rights were inferior to those of men survived in, and indeed even appeared on, the statute books. Despite the constitutional adulation of marriage and motherhood, the legislature preferred to keep women in the home by foul rather than fair means. Contraception was effectively illegal. The economically powerless homemaker was denied access to free legal aid. No financial aid was available as of right to unmarried mothers, deserted wives or prisoners’ wives, even when they were fulfilling their “duties” in the home. The battered wife and mother could not exclude her violent husband from the home (which was almost invariably his) except by resort to the most cumbersome procedures. If she fled the home, her husband had a right to damages from anyone who enticed her, harboured her, or committed adultery with her. (p. 72) Scannell notes that the accident of being born female restricts women to the home as wife and mother. She would be denied access to economic, political, or community resources, relying totally on the good will of her husband. In 1976, the first set of laws attempting to protect women’s bodily integrity was passed. The Family Protection Act of 1976 raised economic issues and physical vulnerability faced by women in the family. Remedies under the Act included damages, criminal prosecution, and injunctive relief for “spousal misconduct.” Unfortunately, such remedies were woefully inadequate; they did little, if anything, to abate the violence or provide economic security. Money damages were illusory for women married to men who were unemployed or underemployed, which, in the 1970s, was more the rule than the exception in Ireland. Criminal prosecution was at the behest of the Garda Síochána 33 and the State’s Prosecutor, where cultural beliefs about women’s proper place and social function aligned with both culture and law. Charges lodged against assailants were few and prosecutions even fewer. Injunctive relief was utterly useless, because the District Court, the court where victims would file for relief, did not have jurisdiction to grant such relief. Against this backdrop, cultural and legal change was at once difficult and incremental. Even with passage of the Domestic Violence Act of 1996 (DVA), familial

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inviolability and keeping the family intact had precedence over the safety of battered women and their children. Family inviolability conferred rights upon the familial unit, not upon members within the unit. Because the family was viewed as the nucleus of civil society, its disruption was treated as hostile to public order and the public good. Thus women’s bodily integrity was subordinate to maintenance of the familial unit and the relations within it. Unlike the United States, the Irish DVA not only crafted different remedies and timelines depending on the order sought, the DVA also required separate processes. Indeed, under the DVA, excluding the batterer from the home was nearly impossible. The statutory scheme provided for three types of orders: safety, barring, and protection. The safety order could require the respondent to refrain from conduct that “threatens to use violence against or molest or put [the petitioner] in fear of such violence or molestation.” Safety orders could also order the batterer to refrain from committing a crime. The protective order was temporary and could be filed ex parte. The protective order functioned much like a safety order but remained in force only until the filing of either a safety or barring order. Safety and protection orders would not exclude the batterer, however. Only the barring order could exclude and one had to separately file for this relief; if a woman needed to be protected against assaultive behavior and also wanted her batterer removed from the home, she would have to file for both types of orders. It appears that this limitation is a consequence of four key rights found in the 1937 Constitution:  the “constitutional inviolability of the home” (and family as well), the “express right under the Constitution to [one’s] good name,” and “the express Constitutional protection of familial privacy and the enjoyment of family life as between [one’s] self and . . . children.” Moreover, if the petitioner sought to bar the respondent from the home, and the parties were not married, the petitioner had to affirm that she was co-habiting with the batterer for a six-months term during a nine-month period before the filing date. While protection of home and hearth and one’s good name is important, such rights pale in relation to freedom from violence. Compromising the right to bodily integrity obviates all other rights, including inviolability of the home, reputation, and enjoyment of the “society” of one’s children. Indeed, within a hierarchy of rights, to be safe in one’s own skin is paramount. The Irish Domestic Violence Acts of 1996 to 2002 did not accomplish the goals of the battered women’s movement—protection of women’s right to bodily integrity and eradication of gender inequality in law and culture. However, rather than capitulate to the politics of convenience or affiliate with the status quo, Irish feminists in the battered women’s movement changed course and built a politic that utilized a methodology that incorporated a gender and class analysis into a human rights framework. V.   I R I S H F EM I N I ST R ES P O N S E: U N D ER STA N D I N G T H E  G EN D ER ED STAT E

A.  The Theoretical and the Practical Much has been written in both the United States and the Irish Republic on the “Gendered State” (Cantola, 2006; Connolly, 2003; Nichols, 2003). The difference

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between the two perspectives, however, is striking. First, the Irish have integrated a class analysis into all aspects of feminist organizing. Second, a human rights paradigm frames anti-violence theory and practice in Ireland. Third, the Irish State crafted an affirmative rights constitution, are signators to the Convention to Eliminate Discrimination Against Women (CEDAW), and adhere to international covenants and law. B.  Class Analysis Developing a theoretical paradigm that integrates a class analysis in both theory and practice is critical to the Irish Battered Women’s Movement (IBWM) in particular and Irish feminism in general. Economic inequality is understood as a form of violence that undermines both the rights and lives of women and its effect is as implacable as gender-motivated violence. Moreover, income disparity is treated as a corollary of social injustice, whether it is the product of public or private systems. Severe income disparities contribute to women’s vulnerability because they create dependency on a familial structure that in some cases is not only harmful but lethal. Income inequality outside the home, coupled with non-wage labor in the home, is part of the systemic devaluation of women’s labor. There are undoubtedly U.S. feminists who grasp the importance of class analysis in dismantling the gendered state. Yet, U.S. feminism has not incorporated a class analysis into either a cogent feminist or anti-violence politic. During the end of the 20th century, Irish feminist theory not only contested the notion that patriarchy was the sole cause of violence against women but that the state qua state is male (Gottfried, 2000). Feminist theory emerged that sought to alter a social contract that was premised on gender, class, and racial asymmetry because the state was constructed along these axes of domination. Consequently, anti-violence organizing in Ireland was not devoted to a single issue; rather, it spanned a political spectrum that addressed issues of gender, racial, and economic inequality (Connolly, 1996). Women’s Aid, the largest domestic violence program in the Republic, joined with reproductive justice, the anti–sex-trafficking movement, working women’s groups, and non-governmental organizations (NGOs) to alter the social/cultural and legal landscape that contributed to the perpetuation of policies that privileged maleness, wealth, and nationalism. The IBWM crafted a theory of oppression that recognized how the “isms” combined to oppress women and contribute to a cycle of violence that is at once systemic and dynamic. Thus, eradication of all forms of violence—economic, racial, gender, and homophobic dystopia—is essential to a feminist anti-violence politic. Coalition building and the integration of a politic that reflect the lives of not only battered women but of the poor and of ethnic minorities results in a nuanced approach to male intimate violence. As Patricia Williams reminds, we are the sum of our parts and should not be “partialized.” Irish feminists have recognized that to succeed, feminist theory and practice must incorporate women’s reality and not merely address physical or sexual violence perpetrated by individual men.

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C.  The Irish Constitution, Human Rights, and the Convention to Eliminate Discrimination Against Women As part of the European Union, Ireland and Irish anti-violence NGOs such as Women’s Aid accept and operate within a human rights paradigm. As signators to the Convention to Eliminate Discrimination Against Women (CEDAW), Ireland must demonstrate affirmative steps to combat discrimination against women. Moreover, because the Irish Constitution is a positive rights document, affirmative action to eradicate violence against women is a constitutional requirement. The confluence of these three factors constructs a legal landscape in Ireland that is vastly different than that in the United States. Indeed, unlike U.S. law, Irish law considers violence against women to be gender-motivated violence and therefore a form of discrimination. Within the ambit of international human rights, such violence violates myriad conventions—CEDAW, the Convention Against Torture, the Declaration on the Elimination of Violence against Women and the Vienna Declaration and Programme of Action from the 1993 World Conference on Human Rights (Coomaraswamy, 2000). This international scheme as well as the positive framework of the Irish Constitution provides the potential for meaningful protection of women’s rights and lives from male intimate violence and state failure to protect. Under international treaties, state responsibility extends to private violence. This extension is extremely important because violence perpetrated against women in the home is considered private. State responsibility attaches regardless of whether the direct harm was perpetrated by a private or public actor. If there is a connection between state failure to protect and the harm caused by spouse or significant other, the state will be held to account. The international human rights paradigm combines the inaction of the state with the actions of the individual perpetrator. Consequently, Ireland, as a member of the European Union and signator, has expanded not only protection but responsibility for acts or omissions created by public and private actors. In contrast, the U.S. Supreme Court has refused to hold the state accountable for violating the constitutional rights of victims of family violence in a troubling series of cases (Miccio, 2009). From Deshaney to Castle Rock, the U.S. Supreme Court has provided a pass for state failure to enforce laws while anchoring its position in negative rights theory, specifically arguing responsibility for constitutional torts or violations are triggered only when there is state action (Miccio, 2009). State action only occurs when a state actor has directly caused the harm suffered by the victim (Miccio, 2009). For example, failure to enforce mandatory arrest policies is not cognizable under the 14th Amendment to the U.S. Constitution (Miccio, 2010). The U.S. Supreme Court’s crabbed view of state action and Constitutional protection has reduced the 14th Amendment to an insignificant provision when it comes to protecting battered women and enforcing state accountability for gender violence (Miccio, 2010). For Ireland, the international framework not only includes domestic violence as a human rights violation but provides a foundation to hold the state accountable for what it fails to provide as well as its failure to protect. This is a significant tool in the IBWM cache that is absent from the U.S.  instrument. For instance, if the state declines prosecution in domestic violence cases or diminishes protection by

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law enforcement, that could constitute a violation of equal protection under international law. Because Ireland falls under the ambit of international law, meaningful protection can be derived from two sources. The first are the international treaties, covenants, and programmes; the second is case law interpreting such documents. Under the Vienna Programme, passed at the Vienna Conference of 1985, “the human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights.” Echoing the Universal Declaration of Human Rights, the Vienna Programme specifically declared, without reservation from any state that “gender based violence . . . and exploitation are incompatible with the dignity and worth of the human person and must be eliminated . . . and every State shall provide an effective framework of remedies.” The International Covenant of Civil and Political Rights (ICCPR) requires each state party to “ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” Furthermore, according to the ICCPR, “Where not already provided for by existing legislative or other measures, each State party . . . undertakes to take the necessary steps . . . to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.” The Convention Against Torture and CEDAW create similar state obligations. For instance, CEDAW affirms that states will “exercise due diligence to prevent . . . and develop sanctions . . . and to punish the wrongs caused to women who are subjected to violence.” Although international instruments leave open the particular manner and means by which member states may fulfill their obligation to prevent domestic violence, it would be incorrect to conclude that affirmative action by member states is not required. Indeed, decisions from human rights tribunals suggest otherwise. The IBWM used the case of X and Y v. Netherlands to raise state accountability for protection. In X and Y, a young girl was sexually assaulted by an employee of a private facility where she lived. Her father attempted to file a complaint on her behalf because the child was mentally disabled. When local police refused to take his affirmation, Mr. X filed suit on his daughter’s behalf in the European Court on Human Rights (ECHR). The ECHR found under Article 8 of the European Convention, that “there may be positive obligations inherent in an effective respect for private and family life.” The ECHR explained that “effective deterrence is indispensable” in sexual assault cases, “where fundamental values and essential aspects of private life” are at stake. The ECHR’s ruling in X and Y requires states to do more than merely provide equal protection; rather, states are obliged to provide effective deterrence against acts that violate the fundamental right to bodily integrity and personal security in private and family life. Because domestic violence falls within the proscribed behavior contemplated by the ECHR in X and Y as well as existing covenants such as CEDAW, states are required to take affirmative steps to end the violence. There is a radicalized notion of state action under CEDAW, ICCPR, and the X and Y decision by the European Court of Human Rights: the recognition that gender discrimination includes legal, social, economic, and political inequality. States then are required to do more than merely stop human rights abuses—they are required to identify and address the causes of such abuse. Within the context of domestic violence, the state’s obligation is to actively pursue solutions to intra-familial violence. Finally, language in international instruments that establish a duty to prevent

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gender inequality (domestic violence) mandate state action to provide social, economic, legal, and political equality to women survivors of male intimate violence. The Irish feminist vision to end domestic violence not only includes accountability for the violence, but the creation of jobs, affordable housing, viable health care, and a feminist voice within government and the body politic as well. In Ireland, domestic violence is now on the cultural radar screen. There is a federal office, Cosc, devoted to the eradication of gender-motivated violence in both the public and private spheres. Women’s Aid has grown into the largest grassroots NGO, while smaller programs dot the Irish landscape. The NGOs are built on a political foundation that incorporates the various iterations of economic, political, and social inequality that contribute to gender inequity and violations of bodily integrity. Ireland, as a consequence of its participation in the European Union, its Constitution, and its recognition and adherence to international law and a human rights paradigm provides the IBWM with the much-needed tools to interrogate and confront male intimate violence and state failure to protect. The question is whether the IBWM will remain a political force in the elimination of gender inequality or choose the path of least resistance taken by its American counterpart. The next chapter is yet to be written.

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Family Law Reform and Domestic Violence Lessons from Australia M O L L Y D R A G I E W I C Z   ■

I.  I N T R O D U CT I O N

Scholars, legislators, courts, and advocates have dedicated significant attention to the fields of violence and abuse, divorce, and children’s well-being. Although the scholarly literature in each area has grown dramatically over the past 40 years, these fields are poorly integrated at the levels of research, policy, and practice (Dragiewicz, 2014; Hardesty, 2002; Fineman, 1987; Graycar, 2000; Graycar, 2012; Rathus, 2014). This is perhaps especially true of the literatures relevant to divorce in the context of domestic violence. Family court staff, politicians, scholars, lawyers, and advocates make frequent, putatively research-based, references to best practices for promoting the best interest of the child following divorce. However, the family studies scholarship upon which these claims are ostensibly based virtually ignores violence against women and children. To date, there has been little social science research on the experiences of abused women or their children in family law systems. The prevalence of domestic violence is well documented in Australia. The last national study of violence against women in Australia was conducted by the Australian Bureau of Statistics in 1996. Women’s Safety Australia 1996 found that eight percent of women who were married or in a de facto relationship at the time of the study had experienced an incident of violence by their partner during the relationship; 2.6 percent of these women had experienced an incident of violence in the past 12 months. One percent reported an incident of sexual violence during the relationship. Of the women who had experienced violence from current partners, half reported that there had been more than one incident (McLennan, 1996, p. 7). Of particular interest in relation to family law are the rates of domestic violence by former partners, violence against pregnant women, and violence in the presence of children. Australian women were much more likely to report violence by former

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partners than current partners. Three point three percent of women responding to the survey reported an incident of violence from a previous partner during the past 12  months. Forty-two percent of women who had been in a previous relationship reported at least one incident of physical violence by a previous partner during that relationship, however. Ten percent reported sexual violence by a former partner (McLennan, 1996, p. 8). Many of the women’s partners used violence against them while they were pregnant. Forty-two percent of women whose partners had used violence against them and who had been pregnant during the relationship reported their partner had used violence against them while they were pregnant. For 20 percent of these women, the violence began when they became pregnant (McLennan, 1996, p. 8). Sixty-eight percent of women whose former partners had been violent to them cared for children during that relationship. Forty-six percent of these women said the children had witnessed the violence (McLennan, 1996, p. 8). These numbers indicate that domestic violence does not stop when a woman separates from the man abusing her. They also indicate that children are often affected by domestic violence. While legal changes have been made in attempts to better deal with domestic violence as well as child custody determination, there have been only limited efforts to ascertain their impact on one another. Nonetheless, it is increasingly clear that conflicting paradigms create problems for abused mothers in the family courts as they attempt to leave their abusers. For example, criminal prosecution, civil orders for protection, child protection agencies, and shelters for battered women often seek to assist women in securing safety by separating from violent partners. However, family law prioritizes children’s contact with both parents, regardless of the presence of domestic violence. As a result, Apprehended Domestic Violence Orders (ADVO- the New South Wales term for a protection or no-contact order) often contain exceptions to the no-contact direction for the exercise of child contact orders (Kaye, Stubbs, & Tolmie, 2003, pp. 7–8). This means that every time abusers violate ADVOs, they can claim they are engaging in court-ordered child contact, rendering the ADVO practically unenforceable and mandating ongoing exposure to abusers. Although a minority of family law professionals stress the seriousness of violence against women and children following divorce, many assume that father contact is the single most important factor in children’s well-being after divorce, minimize the prevalence and seriousness of abuse, and systematically discredit reports of it when they are introduced into family law processes (Dragiewicz, 2014; Hardesty, 2002; Hardesty & Chung, 2006; Hardesty & Ganong, 2006; Miller & Smolter, 2011; Parkinson, 2013; Rathus, 2014; Rhoades, 2008; Saunders, 1994). Australian scholars have led the way in efforts to study the functioning of family law systems around domestic violence. This chapter reviews recent Australian efforts to assess the outcomes of family law reforms, emphasizing implications for domestic violence cases. The exceptional Australian research base, and the legal reforms for which that research has at times been the catalyst, provide a cautionary tale for other countries contemplating family law reform. I I. D EFI N I T I O N O F D O M EST I C V I O L EN C E

I use the term “domestic violence” to refer to the type of abuse it has become popular to describe as “coercive control.” Stark has described coercive control as “a course

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of calculated malevolent conduct employed almost exclusively by men to dominate individual women by interweaving repeated physical abuse with three equally important tactics: intimidation, isolation, and control” (2007, p. 5). Domestic violence is the popular term for those focused on intimate partner violence in Australia, as reflected in the names service providers in the field apply to themselves. To fully understand the nature of domestic violence and identify the factors that contribute to it, prevent it, and enable survivors to leave safely, it is necessary to consider the multiple social and structural factors that influence women’s and men’s experiences of domestic violence in their specific historical and cultural contexts (Dobash & Dobash, 1979). The term “domestic violence” continues to evoke this essential context and the oppressive domestic roles imposed on women throughout history. The term “intimate partner” violence has often been adopted in the United States in imitation of language used in federal funding streams for research. This change in language reflects the disproportionate emphasis on treating domestic violence as if it were not a gendered phenomenon in the specific political context of the United States. Accordingly, the term intimate partner violence has been applied in well-funded positivist research that radically decontextualizes violence. Much of this research has been conducted by scholars with no expertise or apparent interest in violence against women before the call for funding. Due in part to Australia’s different mechanisms for research funding, this usage has not similarly permeated the Australian milieu and this chapter reflects that reality. III. AU ST R A L I A’S FA M I LY L AW R ES E A R C H I N F R AST U CT U R E

Australia has an exceptional body of family law research due in large part to the federal infrastructure for research on families and family law. Establishment of a federally funded institute for family research and a council to monitor the implementation of family law have contributed to the breadth and depth of research in Australia. A.  The Australian Institute of Family Studies The Australian Institute of Family Studies was established in a 1980 amendment to Part XIVA of the Family Law Act 1975. Section 114B(a) describes the primary role of the Director of the Institute: to promote, by the conduct, encouragement and co-ordination of research and other appropriate means, the identification of, and development of understanding of, the factors affecting marital and family stability in Australia, with the object of promoting the protection of the family as the natural and fundamental group unit in society. (p. 560 ComLaw Authoritative Act C2013C00639) The Australian Institute of Family Studies is an independent statutory authority that coordinates research on different aspects of families in Australia. It has conducted

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reviews of the research pertinent to child custody and coordinated evaluation of revisions to the Family Law Act. B.  The Family Law Council Another amendment to section 115 of the Family Law Act allowed the Attorney General to establish a Family Law Council: The Council shall consist of a Judge of the Family Court and such other judges, persons appointed or engaged under the Public Service Act 1999, officers of the Public Service of a State, family counsellors, family dispute resolution practitioners and other persons as the Attorney-General thinks fit. (p. 565) (3) It is the function of the Council to advise and make recommendations to the Attorney-General, either of its own motion or upon request made to it by the Attorney-General, concerning: (a) the working of this Act and other legislation relating to family law; (b) the working of legal aid in relation to family law; and (c)  any other matters relating to family law. (p.  565 ComLaw Authoritative Act C2013C00639) The Family Law Council, comprised of a judge from the federal family court and family law practitioners, was thus tasked with monitoring the functioning of family law in Australia. No other country has a parallel research or monitoring infrastructure intended to directly inform government policy and practice on family law. Indeed, most countries have no mechanism for data collection on custody arrangements or other aspects of family law, much less their impact over time. As a result, Australia’s family law research is a unique resource. Despite legal differences between countries, the underlying issues regarding the overlap of domestic violence and family law, assumptions about the best interests of the child, and implications of mandating “non-adversarial” approaches to child custody are not unique. As a result, Australia’s assessment of recent reforms offers valuable lessons for jurisdictions considering changes to family law around child custody. I V. FA M I LY L AW I N AU ST R A L I A

Like many other countries, Australia has undertaken multiple major family law reforms since the 1970s. In Australia, as in Canada (Boyd, 2003), the United Kingdom (Collier, 2009), and the United States (Behre, 2014; Fineman, 1991), reforms have resulted from the convergence of multiple interrelated and often contradictory factors. Lobbying by anti-feminist “father’s rights” groups, neoliberal calls for gender-blindness in family law, retrenchment of welfare programs, anti-violence research and advocacy, ramping up of child support collection, privatization of fact finding in family law, and the ideology of “non-adversarial” law have all shaped family law reform. Accordingly, reform can be viewed as taking place in the context of competing cultural concerns about gender politics, justice, and

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the role of law in society. Just as marriage and the family are heavily invested with cultural and political symbolism, family law is a site of contest over these and other concerns that ebb and flow in response to shifting cultural conditions. Family law in Australia is governed by The Family Law Act 1975, a federal law that addresses “most aspects of family law including divorce, property, spousal maintenance, and the law of parenting” (Parkinson, 2005, p. 508). The Family Law Act replaced The Matrimonial Causes Act 1959, which was the first major codification of federal family law in Australia. It also repealed the Matrimonial Causes Act 1965 and 1966 (Nicholson & Harrison, 2000, p.  757). The Family Law Act introduced no-fault divorce in Australia and established the Family Court of Australia, which is “a superior court of record” (Parkinson, 2005, pp. 509–510). At the same time, it allowed for the creation of state and territorial family courts which handle certain cases. Federal Magistrates Courts introduced later also handle certain family law cases. Although the Australian states and territories have responsibility for some aspects of family law, Australian child custody law is effectively similar nationwide. A.  Australian Family Law Reform and Domestic Violence Changes to the Family Law Act 1975 have been a familiar feature of the Australian legal landscape. Major changes pertinent to domestic violence and child custody occurred in 1995, 2006, and 2011, with much debate surrounding each round of reform (Kaspiew, 2012; Nicholson & Harrison, 2000). These rounds of reform sequentially introduced a “shared parenting” regime, sought to more vigorously enforce that regime when it didn’t have the results intended, and repealed and revised aspects of the previous changes based on undeniable harms to children and domestic violence survivors. 1.  1995 Family Law Act Amendments

The 1995 family law reform implemented substantial changes in the handling of family law matters in Australia. According to Rhoades and Boyd, “Their key feature was the replacement of the former custody and access division of roles with a scheme designed to encourage parents who live apart to raise their children collaboratively” (2004, p. 121). Although the default disposition in the absence of an order to the contrary was for joint custody and guardianship, most families opted to continue a caregiving division of labor roughly similar to the situation before separation, with mothers doing the majority of care. The 1995 reform was intended to alter this pattern of parenting post separation (Graycar, 2000). The 1995 reform eliminated the terms “custody” and “access” as a means to minimize recognition that most children continue to have mothers as primary caregivers and emphasize the symbolic importance of fathers post divorce. The reforms renamed access and custody, which were subsequently termed “care” (which roughly equates to physical custody) and “responsibility” (which roughly equates to legal custody) in Australia (Rathus, 2014). Graycar (2000) noted that “unlike most exercises in law reform, it did not address any particular problem or respond to some identified ‘mischief ’ that apparently flowed from the practice of children being raised predominantly by one parent” (p. 746). Instead, the reforms were based on unsubstantiated complaints and anecdotes by groups lobbying for “fathers’ rights” and alleging “bias” against

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men in family court (Graycar, 2000, 2012; Kaye & Tolmie, 1998 a & b). These lobbying groups demanded presumptive 50/50 physical custody, an associated decrease or elimination of child support liability, and a number of punitive measures meant to discourage reporting of abuse, undermine the credibility of abuse reports, and object to recognition of domestic violence as a pervasive, serious, and highly gendered social problem (Kaye & Tolmie, 1998 a & b). For example, Kaye and Tolmie documented men’s groups making these recommendations to discredit reports of abuse: • suggestions that prioritise the prevention of false allegations of child abuse over safeguards put in place for genuine victims of such abuse; • suggestions that if children decide that they don’t want access to the noncustodial parent, then there should be an assumption that they have been brainwashed by the custodial parent, whereby automatic reversal of custody should ensue; and • expressions of sympathy for men who are so distressed by their loss of access to the children they purportedly love that they murder the objects of their affection. (Kaye & Tolmie, 1998b, p. 181, internal citations omitted) Kaye & Tolmie also found these punitive recommendations from men’s groups in their study: • the suggestion that women who obstruct court ordered access should be [jailed]; • the suggestion that women who allege domestic violence and cannot produce physical injuries, photographic or medical evidence, and witnesses, should be automatically charged with false complaint; • the suggestion that the custodial parent should be required to pay tax on their child support payments; • and the suggestion that custodial parents on social security should have their pension payments reduced by a dollar for every dollar they receive in child support (Kaye & Tolmie, 1998b, pp. 189–190, internal citations omitted). In addition to these suggestions, the groups also recommended that welfare payments to single mothers should be eliminated, whereas employment support to men should be prioritized. Kaye & Tolmie note that these measures would push women to stay in unsatisfactory marriages out of financial necessity (Kaye & Tolmie, 1998b, p. 190). Despite hopes that denoting children as equally shared would “alleviate the distress of non-custodial parents, the majority of whom are fathers” (Graycar, 2000, p. 746) and appease lobbying groups, it had the opposite effect. Harrison (1999) noted that: The implementation of the reforms in mid-1996 was associated with a huge increase in activity—33,304 applications for residence [roughly equivalent to physical custody] were made in the year 1996–97, and 38,411 in the following 12-month period.

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Large increases in application numbers were also apparent in relation to access and contact (where, the law remains essentially unchanged, despite the change in terminology). Access applications totalled 14,144 in 1994–95, they amounted to 13,814 in 1995–96, and increased to 21,897 in 1996–97 and 23,958 in 1997–98. (Harrison 1999, p. 63) Child-related court orders continued to increase from 1996-1998, suggesting that “families are becoming more litigious” (Harrison, 1999, p. 63) rather than less so. The reforms had the effect of increasing the load on the family law system rather than reducing it. As of 1999, the time from filing to hearing in these cases was 70 weeks in 5 of 11 registries (Harrison, 1999, p. 63). Despite the fact that the changes in the 1995 reform were intended to appease non-custodial fathers, complaints about Australian family law around child custody and support continued throughout the 1990s and intensified into the 2000s. This led the government to consider major changes to family law and associated processes. Australia’s research program on family law was further reinforced in 2001 when the Family Law Pathways Advisory Group presented Out of the maze: Pathways to the future for families experiencing separation. This report, outlining a sweeping reorganization of the Australian family law and family services system, recommended that a comprehensive research strategy be developed recognizing the unique characteristics of Australia’s social, geographic, and constitutional environment to: 1) monitor and evaluate the future system; 2) develop a coherent national research agenda in family law and separation issues; and 3) target specific high-priority issues. (2001, p. 22) Despite the fact that no federally supported research had been published yet, Prime Minister John Howard established an inquiry into child custody arrangements in the event of family separation in 2003. “In making the announcement the Prime Minister stressed that no one legislative change or pronouncement can alter the concerns, dealing with the matter is a national responsibility, and implied that it is important to the greatest extent possible, children have the benefit of regular and meaningful contact with both their parents” (House of Representatives Standing Committee on Family and Community Affairs, 2003, pp. 1–2). This inquiry charged the House of Representatives Standing Committee on Family and Community Affairs with Inquir[ing] into, report[ing] on and mak[ing] recommendations for action: (a) given that the best interests of the child are the paramount consideration: (i) what other factors should be taken into account in deciding the respective time each parent should spend with their children post separation, in particular whether there should be a presumption that children will spend equal time with each parent and, if so, in what circumstances such a presumption could be rebutted; and (ii) in what circumstances a court should order that children of separated parents have contact with other persons, including their grandparents.

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(b) Whether the existing child support formula works fairly for both parents in relation to their care of, and contact with, their children. (2003, p. 2) The committee published Every picture tells a story: Report on the inquiry into child custody arrangements in the event of family separation in 2003. As foreshadowed by the committee’s understanding of Howard’s preference to promote co-parenting following separation, the report included numerous recommendations to further reinforce the practice. However, this report also reveals the undeniable importance of violence and abuse for family law. The first recommendation of Every picture tells a story was to impose a rebuttable presumption of “equal shared parental responsibility, as the first tier in post-separation decision making.” The second recommendation was to “create a clear presumption against shared parental responsibility with respect to cases where there is entrenched conflict, family violence, substance abuse or established child abuse, including sexual abuse” (Every picture tells a story, 2003, p. 2). The report contained numerous other recommendations. However, these two recommendations strongly influenced the 2006 Amendments to the Family Law Act and were two of the most significant points for survivors of domestic violence. The implications and implementation of these contradictory priorities are discussed in the next section. 2.  The Shared Parental Responsibility Act 2006

With a major report on the effects of the previous round of reforms due from the Australian Institute of Family Studies in 2007, the Howard government moved forward with The Shared Parental Responsibility Act in 2006 (Rhoades, 2008). This amendment to the Family Law Act imposed a variation of the Every Picture Tells A Story report’s first two recommendations as the “two pillars” guiding child custody determination in Australia. It pushed the 1995 reforms even further, introducing a rebuttable presumption of “equal shared parental responsibility” (Rhoades, 2008, p.  279). As the title indicates, this set of reforms was intended to promote substantial if not equal involvement in child care by both parents following separation, a result intended but not fully achieved by the 1995 reforms. Rhoades noted in 2008 that even the earliest research suggested that the reforms have been successful in producing an increase in substantially shared care arrangements since the legislation came into force. At the same time, however, the research indicates that a significant number of these arrangements are characterised by intense parental conflict, and that shared care of children is a key variable affecting poor emotional outcomes for children. (internal citations omitted, p. 280) The prioritization of shared responsibility and instruction for courts to consider 50/50 care as the starting point for custody determinations, and consider substantially shared care where equitable custody arrangements were clearly not in the child’s best interest, effectively marginalized the safety concerns embedded in the second pillar. The 2006 reform also included a “friendly parent” provision, requiring the court to consider each parent’s willingness to promote a close and continuing relationship between their child and the other parent as a factor in deciding custody (Graycar 2012). This exacerbated the negative unintended outcomes of

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the 2006 reforms by discouraging reporting of violence and abuse (Bagshaw et al., 2011; Graycar, 2012; Hart & Bagshaw, 2008). Rhoades notes that there was general acknowledgment that the family law reform was the cause of increasing numbers of inappropriate shared care arrangements, such as those imposed against the will of parents or children, on parents who had reported abuse, and in families in which there was ongoing conflict. However, many family studies scholars and family law practitioners did not suggest undoing the harmful legal changes that had caused the problem. Instead, they recommended that family lawyers and personnel like mediators become experts in child development and discern when substantial contact would be in the best interest of the child and when it would not, and advise the parties accordingly (Rhoades, 2008). However, evidence of the harmful unintended outcomes of the 2006 family law reform continued to mount. The release of three major research reviews and studies commissioned by the Australian Attorney General in 2010 was the catalyst for even more family law reforms, which rolled back some of the most harmful parts of The Shared Parental Responsibility Act 2006. The Australian Institute of Family Studies Evaluation of the 2006 Family Law Reforms (Kaspiew et  al., 2009); the Family Courts Violence Review (Chisholm, 2009); and the Improving Responses to Family Violence in the Family Law System report (Family Law Council, 2009), in combination with independent legal and social science research, legitimated concerns about the family law system’s capacity for dealing with domestic violence. These concerns about adequately addressing domestic violence and the 2011 reform are described in the next section. 3.  Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011

Following the 2006 Family Law Reform, independent and governmentcommissioned scholarship continued to document and reinforce the concerns raised by domestic violence scholars and anti-violence advocates. Another round of law reform followed a change of government. This reform took place during the tenure of Australia’s first female Prime Minister, Julia Gillard. The 2011 Amendments attempted to ameliorate the harms caused by the previous reforms without dislodging the idealization of shared parenting post separation. Among other changes, the Amendments stressed that “protection from harm” should be prioritized over “meaningful relationships with both parents”; expanded the definition of family violence to reflect the inclusion of multiple forms of abuse, including emotional abuse and exposing children to adult violence; increased reporting requirements for family law professionals; eliminated the “friendly parent” clause; and eliminated sections requiring “courts to make costs orders against a party found to have ‘knowingly made a false statement’ in court proceedings” (Kaspiew, 2012, p. 4). The Frequently Asked Questions sheet about this round of reform says, “The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (‘Family Violence Act’) amends the Family Law Act 1975 (Cth) (‘Family Law Act’) to provide better protection for children and families at risk of violence and abuse.” The Attorney General’s Department stressed that the 2011 reform was evidence based. The Family Violence Act was developed in response to three key reports received by the Government into the Family Law Amendment (Shared Parental Responsibility)

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Act 2006 (Cth) (“2006 Family Law Reforms”) and how the family law system deals with family violence. These reports are the: • Evaluation of the 2006 family law reforms by the Australian Institute of Family Studies • Family Courts Violence Review by the Honourable Professor Richard Chisholm AM • Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues by the Family Law Council. These reports and other research on the issues of family violence, shared care and infant development, provide a strong evidence base for reform. The reports indicate that the Family Law Act fails to adequately protect children and other family members from family violence and child abuse (Attorney General’s Department, 2011a). At the same time, nearly half of the Fact Sheet about the 2011 reform is focused on assuaging the concerns of the fathers’ rights lobby. A cautionary yellow box on the fact sheet reads, What the Family Violence Act Does Not Do The Family Violence Act does not “roll back” the 2006 shared parenting reforms. Parenting arrangements will continue to be made in a way that promotes a child’s right to have a meaningful relationship with both parents where this is safe. The Family Violence Act will not impact outcomes for separating families where there are no family violence or child abuse concerns. For those cases in which there is no risk of violence or abuse and it is in the child’s best interests, the courts will continue to apply the presumption of equal shared parental responsibility and consider equal time or, as the case requires, substantial and significant time. The family courts will not lose the ability to award costs when a party knowingly makes false statements. The family courts will retain a broad power to make costs orders. In addition, it remains a criminal offence to knowingly make a false statement during court proceedings (Attorney General’s Department, 2011b). This document demonstrates the government’s attempt to walk the line between ameliorating the harms to children and survivors of abuse and validating the complaints of disgruntled men’s groups. This balancing act was driven by an ideological and disproportionate focus on substantially shared parenting post separation, despite the fact that the men’s groups complaints had been empirically disproven. At least, in this instance, the research base was presented to reinforce the concerns about domestic violence. B.  Key Findings from the Australian Research Dozens of studies and literature reviews have been conducted and considered under the auspices of the Australian family law reform process (see for example Wilcox 2012). These studies present mixed findings on the experiences of parents and children in the family law system and reinforce the diversity of experiences of family members. However, significant findings on domestic violence and the harms to children of coerced co-parenting have perhaps gained more credence in this context than in

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other countries because of their status as official government knowledge. Key findings from the evaluations include: • Violence is common in families that come into contact with the family law system (Kaspiew et al., 2009). • The presence of violence rarely affects the division of parenting via family law processes (Kaspiew et al., 2009). • Domestic violence is often minimized in the family court system (Hart & Bagshaw, 2008). • Children in substantially shared residence arrangements fare worse than those in primary mother custody when there were safety concerns about ongoing contact (Weston et al., 2011). These findings reflect the concerns that have been articulated by violence scholars and anti-violence advocates. C.  Issues for Same-Sex Couples Part VII of The Family Law Act dealing with children includes de-facto, biological, and marriage relationships, so custody issues in same-sex relationships are not as affected by marriage as in the United States. Much of the state-supported family studies research, such as that produced by the Australian Institute of Family Studies, has been used to support pro–marriage rights campaigns. These campaigns stress that same-sex two-parent households are just as good as heterosexual nuclear families, frequently trading on the stigmatization of single mothers to align themselves with idealized family forms. To date there is no published research that specifically deals with domestic violence and family law in same sex couples in Australia. D. Indigenous Issues Despite repeated assertions of the importance of culturally appropriate handling of family law in indigenous families, the high rates of domestic violence in indigenous families, and the recommendation for national tracking of indigenous families in family law cases, there has been little research that specifically looks at the experiences of Aboriginal people or Torres Strait Islanders in the family court. No study has examined the family law implications for indigenous families experiencing domestic violence under the reforms. However, indigenous culture is one of the factors to be considered in child custody cases according to the Family Law Act 1975. These cases also raise concerns about the application of an idealized nuclear family model to all family configurations and cultures. Legal scholars have noted that the Australian family law paradigm of the nuclear family is inadequate and inappropriate for Aboriginal families that are more often extended in structure. As Ruska and Rathus argue, “This has been exacerbated over the last 15 years with reforms which have stressed the ongoing importance of both parents in the lives of their children after separation” (2010, p. 8). Indeed, the current family law on indigenous families is embedded in the Shared Parental

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Responsibility Act 2006, which primarily stresses the importance of biological fathers in children’s lives (Ruska and Rathus, 2010). To date, the research on indigenous families, domestic violence, and family law is poorly integrated. However, recognizing that the diverse kinship care systems more common in indigenous families are at least as good as nuclear heterosexual families poses an implicit threat to the foundational assumption embedded in the 2006 Act: that patriarchal nuclear families are superior. E.  Ongoing Concerns Contrary to popular lore of an “adversarial” family court context that historically granted sole custody to mothers against the express wishes of fathers, Australian law has actively promoted conciliatory processes like private orders, mediation, and alternative dispute resolution since 1975. The Family Law Act 1975 continues to articulate an ideal of the nuclear heterosexual family. For example, Section 43 articulated some foundational values enshrined in the law: a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children; c) the need to protect the rights of children and to promote their welfare; and d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children (Nicholson & Harrison, 2000, pp. 757–758). Despite many amendments to family law since 1975 (71 of them), these core values are little changed. In fact, recent reforms may be seen as redoubling the imperative to reconcile and failing that, reinforce the supremacy of paternal demands at separation or divorce. Following the implementation of no-fault divorce in Australia, divorce rates temporarily increased sharply, followed by a sharp decline and plateau (DeVaus, 2004, p.  211). Some commentators assumed that the fault-based court process itself was the cause of conflict between divorcing parties and hoped that removing the fault from divorce would make it less adversarial. However, long after the implementation of no-fault divorce and other “non-adversarial” approaches, couples continue to end up in court and a substantial minority continue to experience protracted legal conflict, suggesting that the conflict was the catalyst for the divorce rather than the opposite. Efforts to reform family law to compel 50/50 custody have multiple contributing factors. Contrary to the hegemonic narrative of children’s best interests, however, family law reforms are only incidentally related to the evidence on the needs of children. As Hart and Bagshaw (2008) argue: In order to improve court practices in cases of domestic violence, normative assumptions about all children needing to spend time with their fathers must

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be challenged. Dominant ‘truths’ about children and their needs and interests ignore contemporary research findings, inappropriately regulate the subjectivities and rights of children, and misconstrue their needs in cases where domestic violence is an issue. (p. 305) V.  C O N C LU S I O N

Discussion here has focused on recent family law reforms concerning domestic violence. As the Australian experience shows, the adoption of a formal presumption in favor of “shared parental responsibility” has been one of the most problematic aspects of family law for adult and child survivors of domestic violence. However, the existence of a growing body of applied research on the outcomes of family law reforms in domestic violence and “conflict” cases has been a key factor in repealing some of the Family Law Act’s most harmful sections. The promotion of friendly parenting and conciliation ideologies has been equally harmful. Although Australia’s unique research base has facilitated the repeal of some of the most damaging sections of the Family Law Act, informal assumptions have proved more resistant to the influence of research evidence (Rathus, 2014). The assumption that maximum contact with fathers is the preeminent factor in the best interest of the child and persistent discrediting of reports of abuse present ongoing difficulties for mothers trying to safely separate from abusers. However, research on the Family Law Amendments 2011 has already been commissioned and funded by the government. Australian legal scholars continue to monitor the implementation of family law in domestic violence cases under the most recent reforms. Regardless of the political nature of knowledge production and policy implementation, the existence of ongoing research on the implications of family law is a valuable asset that can benefit other countries. The Australian experience demonstrates the harms caused to abused mothers and children by ideologically driven fatherhood promotion campaigns. The focus on the preservation of patriarchal authority and relations rather than family members’ rights to safety is not an accident. As the Australian experience shows, family studies, domestic violence, legal, and public health scholarship on abuse can inform policy under certain political conditions. However, critical scholars must continue to challenge the ideology of familial patriarchy that provides the scaffold for domestic violence in order for substantive change to occur in the family law system. It is notable that calls for shared parenting in intact couples before separation are absent from most discussions of parenting, divorce, and family law. Substantive changes in family care responsibilities were at the core of early feminist campaigns for gender equality, but pervasively gendered divisions of household labor persist. Beyond individual families, structural changes in a range of institutions, from law to policies around family leave, child protection, child care, housing, policing, and welfare are necessary to secure the right, enshrined in human rights law, to live free from violence.

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The Economics of Gender Violence in Norway A Comparative Approach J U L I E G O L D S C H E I D   ■

I.  I N T R O D U CT I O N

Gender violence1 has both economic determinants and economic ramifications. Although domestic violence occurs across all economic classes, global data confirm that poverty increases vulnerability to abuse (World Health Organization [WHO], 2013). Gender violence also impacts the economy, imposing costs on the workplace, health care, the justice system, and social services (Bott, Morrison, & Ellsberg, 2005; Duvvury, Callan, Carney, & Raghavendra, 2013; National Center for Injury Prevention, 2003; Waters et al., 2004). At the same time, gender violence is widely seen as a form of gender discrimination and is correlated to measures of gender equality. Countries with higher measures of gender inequality have a higher prevalence of sexual violence; countries with high educational and occupational status for women are correlated with lower rates of sexual violence (Yodanis, 2004). But neither economics nor gender equality fully account for the prevalence of or the nature of abuse. Although the relationship is not necessarily linear, a combination of education, economic, and social empowerment impact women’s vulnerability to violence. This chapter looks to Norway, a country with both high gender-equality norms and a strong social safety net, for lessons that might inform United States’ law and policy reform. The two countries reflect contrasting approaches to social security, with Norway illustrating a “social democratic public service route” and the United States a “market-led” route (Walby, 2004). Norway’s widely recognized advances toward gender equality, combined with its robust social safety net, produce an array of laws and policies that is impressive to this observer from the United States. Its approach might lead one to expect that it has lower rates of abuse and ample supportive programs to assist survivors. Yet, the reality is more complex. Norway’s rates of violence approximate global averages and advocates’ concerns track those in countries

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with less widely touted economic and social commitments. At the same time, the sociopolitical context in which services are delivered and the parameters of public debate reflect the country’s deep social democratic commitments. Particularly striking is the relative absence of policy debates over issues that are salient in the United States. Health care is universally available. Debates over material resources such as housing and economic support take a different tone. At the same time, the cross-country comparison reflects common pressures associated with globalization. It confirms that social safety nets and broad commitments to gender equality are critical foundations, but that laws, programs, and public education must explicitly challenge both gender violence and multiple and intersectional forms of discrimination in order to ensure equality across lines of gender, race, immigration status, disability, and sexuality. I I. C O N T E X T:   G EN D ER V I O L EN C E I N N O RWAY

A. Prevalence Gender violence affects the lives of a large population globally. Thirty-five percent of women worldwide have experienced either physical and/or sexual intimate partner violence or non-partner sexual violence (WHO, 2013). International agencies such as the United Nations, the World Health Organization (WHO), and international scholars across disciplines have attempted to identify risk factors in service of developing prevention services and public policies. Norway has relatively low rates of violence overall.2 Approximately five percent of the population is subject to violence each year, with higher rates of violence in populations that rely on state benefits and that have low levels of education (Lorentzen, 2013; Saur, Hustad, & Heir, 2011). Nevertheless, studies conclude that approximately one in four women report having been subjected to violence by an intimate partner in their lifetimes (Neroien & Schei, 2008; Norwegian Institute for Urban and Regional Research, 2011). This suggests prevalence rates somewhat lower than global averages (35 percent), but consistent with estimates from across Europe (25.4 percent) (WHO, 2013). In terms of sexual assault, reports estimate that between 8,000 and 16,000 women in Norway are victims of rape or attempted rape every year, and many report that law enforcement fails to investigate and hold perpetrators accountable (the Forum for Women and Development [FOKUS], 2011b). Other studies have found that just over 16 percent of women and two percent of men report having been threatened with or forced to have sexual intercourse at least once after the age of 16 (Sogn, Lorentzen & Gullvag, 2008). A few studies break down prevalence by demographics and types of abuse, with results that track global trends. Women with lower educational levels, those who are unmarried, currently unemployed, and those who have no children were more likely to report abuse (Neroien & Schei, 2008). Women who live in strict gender-conservative environments, immigrant women, women in prostitution, and women with disabilities may be more vulnerable to abuse than others (Norway Ministry of Children, Equality and Social Inclusion, 2014). Advocates report that women with disabilities are five times more likely to be exposed to violence or threats of violence and discrimination than other women (FOKUS, 2011a). A recent

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study found that sexual assault within intimate partner relationships is more likely to co-occur with forms of abuse such as hair pulling, arm twisting, spanking, and biting, and violence directed at a pregnant woman’s abdomen, as well as with dominance and isolation abuse (Alsaker, Morken, Baste, Campos-Serna, & Moen, 2012). Perhaps not surprisingly, battered women residing at shelters report more physical abuse than battered women not residing at shelters, and shelter residents in Norway report similar levels of physical and psychological violence as shelter residents in other countries (Alsaker, Kristoffersen, Moen, & Baste, 2010). A  small study of women in shelters indicated that those who were unemployed reported having experienced more psychological violence than those who were employed (Alsaker, Moen, & Baste, 2009). That study also found better physical health and less bodily pain among those who were employed. Some experts point out the changing make up of shelter residents, notably, the rise of immigrant women in shelters (Jonassen, 2005). A recent analysis by Jonassen and Skogøy (2010) found that the population of immigrant women in shelters increased 70 percent from 2001 to 2011. The study found that one in three of the immigrant women in shelters had been exposed to violence by Norwegian men. In addition, more of the minority women in shelters lacked their own incomes in comparison to Norwegians, lacked support from their networks in leaving abusive relationships, and experienced ongoing stigma associated with abuse. At the same time, the authors posited that the decline in Norwegian women using shelters was attributed to a rise in economic independence, better knowledge of rights, greater acceptance of divorce, and increased expectations that Norwegian women do not remain in violent relationships. This suggests that measures to raise awareness of abuse and to promote gender equality, combined with the availability of material resources, may positively impact survivors’ ability to cope with abuse. It also underscores the importance of ensuring meaningful access to resources and services for immigrant survivors and those from other marginalized groups. B.  Legal and Policy Frameworks Norway is a constitutional monarchy with a parliamentary form of government (United Nations Human Rights Instruments, 2013). Its constitution is based on separation of powers, with an independent legislature, executive, and judiciary, although its adoption of the principle of parliamentary government means that the executive cannot govern without the confidence of the legislative assembly. Norway is divided into 19 counties and 428 municipalities; much public administration is carried out at the county and municipal levels. The legal system is based on both legislation and customary law. Norway is a party to the Agreement on the European Economic Area (EEA), but is not a member of the European Union. Norway’s constitution recognizes the rights of its indigenous people, the Sami, who have their own Parliament and the right to be consulted on matters that concern them. 1.  Intimate Partner Violence

Norway has enacted a range of laws addressing intimate partner violence. Norway ratified the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW) in 1981, and ratified CEDAW’s Optional Protocol in 2002. It signed

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the Council of Europe Convention on preventing and combating violence against women and domestic violence in 2011 and has expressed a commitment to taking the requisite steps to have it ratified. Its gender-violence–specific legislation in many ways is similar to laws addressing gender violence in the United States. 3 Legislation includes laws criminalizing intimate partner and sexual violence. As in the United States, Norway’s laws authorize issuance of restraining orders, which can lead to criminal prosecution when they are violated. A 2005 amendment in Norway authorized restraining orders (with provisions termed “bans on visits”) to include bans on persons from visiting their own home and allowed those bans to be imposed regardless of who owns the residence (Government of Norway, 2006). A 1988 law authorizes unconditional prosecution in domestic violence cases, though complaints about police under-responsiveness raise questions about implementation. The police force is assigned a central role in combating violence against women through designated domestic violence coordinators in each police district, although this may be inconsistently implemented (FOKUS, 2011b). Shelters and helplines are mandated in all communities. Programs authorize mobile violence alarms to monitor violation of bans on visits. Victims of violence may be entitled to free (or means-tested) legal representation to advance civil legal claims in conjunction with criminal proceedings or in connection with damages actions against the perpetrator (JURK:  Legal aid for women). Victims are also entitled to free legal aid to seek state compensation, provided that financial eligibility conditions are met (Norwegian Criminal Injuries Compensation Authority, 2006). Judges receive training on the harmful effects of violence and abuse on children and on the handling of child custody cases in which there is a suspicion of abuse (Government of Norway, 2006). Other programs are directed to help women who are victims of violence in prison. Notwithstanding these initiatives, a 2013 Norwegian Supreme Court decision found that Norway had violated its obligation under the European Convention on Human Rights for failing to take stronger measures to protect a survivor following a long history of abuse, including death threats and violence that “resembled torture.” Although the Court recognized the many steps the police and prosecuting authorities took, including imprisonment, it found that more should have been done given their knowledge of the abuser’s pattern of action and the intensity of the abuse. By law, immigrant women who have been granted a residence permit based on a family member’s Norwegian citizenship must be given a renewed permit on independent grounds if they are victims of abuse. This is an exception to the general rule under which those who have a residence permit based on a Norwegian spouse must wait three years before being granted an independent residence permit. Advocates express concern that authorities strictly interpret the rule and rarely grant independent visas for survivors (Mira 2014). Advocates urge abolition of the so-called “three-year rule,” and endorse other modifications that would enable undocumented survivors to leave their abuser but stay in Norway legally (FOKUS, 2011a; Ombud, 2011a). Other reforms address rape and sexual assault. Recent initiatives aim to reduce concerning rates of sexual assault, accompanied by low rates of reporting as well as low conviction rates (see CEDAW, 2012; Lorentzen, 2013). Still other efforts are directed at human trafficking, including legislation, two plans of action, and the establishment of an inter-ministerial working group.

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In 2010, Norway enacted an Act Relating to the Municipal Crisis Centres Services (Crisis Centre Act), which aims to ensure comprehensive crisis center services for those subjected to intimate partner violence in all municipalities (Gender in Norway, 2014). The Act requires shelters and shelter services to be provided on a gender-neutral basis and shifts funding responsibilities to municipalities. This has led to concerns about inadequate shelter beds for women and empty shelters designated for men, as well as critiques of shared common rooms for both men and women (CEDAW, 2012; Equality and Anti-Discrimination Ombud, 2011a). Advocates have also objected that the law could lead to inadequate and inconsistent funding for programs and services, including shelters (Equality and Anti-Discrimination Ombud, 2011a; FOKUS, 2011b). The government has implemented a number of action plans to combat violence against women, which identify programs and services aimed to improve the situation of those who are victims of intimate partner violence (Jonassen, 2013; Norwegian Ministry of Justice and Public Security, 2014). The plans describe the country’s aspiration to establish nationwide coordinated systems of support programs and resources, to encourage victims to contact support services, to strengthen treatment programs for perpetrators, and to improve services for children who witness abuse. The 2012 plan articulates a strong commitment to evaluating current approaches and contemplates making recommendations to ensure coordination and effectiveness. A  number of measures have been designed to promote inter-agency collaboration. For example, the Norwegian Crisis Centre Secretariat and the Norwegian Confederation of Trade Unions published a brochure entitled “We Care About Our Employees,” aimed at better equipping employers to support women employees who are victims of abuse. Descriptions of legal and programmatic initiatives are notable for their explicit recognition of the links between gender violence and gender discrimination (Norwegian Ministry of Justice and Public Security, 2014). Programs are directed toward challenging stereotypes as well as offering criminal justice and social service interventions. The government recognizes that gender violence is a class-based as well as gendered problem, with higher levels of abuse in less well-resourced communities (Lorentzen, 2013). Government-sponsored initiatives focus on prevention. For example, two reports authored by the Norwegian Center for Violence and Traumatic Stress Studies, the organization created to strengthen research, education, and guidance in the field of violence and trauma, review research studies and prevention programs (Saur, Hjemdal, & Heir, 2011; Saur, Hustad, & Heir, 2011). Social services are provided free of charge. Norway’s anger management programs for violent offenders are available throughout the country; its model has been adopted in other Nordic countries and in some southern European municipalities (European Commission, 2010). No referral is needed and participation in the program is voluntary. Norway’s Ministry of Justice describes the country’s challenges in terms of improving outcomes, coordination, and the availability of services for survivors (Nersnæs & Knotten, 2014). A recent white paper recommends making restorative justice approaches available to survivors. It also recommends enhancing coordination among service providers by incorporating the family justice center model from the United States.

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2.  Social Welfare

Norway maintains a welfare program dedicated to caring for its inhabitants “from cradle to grave” (Gender in Norway, 2014). The National Insurance Act provides a statewide program, in combination with the Social Care Act, which is administered by localities. Norway provides 10 categories of benefits, including old-age, survivors’ pensions, disability pensions, disability benefits, work assessment allowances, and occupational injury benefits; benefits to single parents; cash benefits in case of sickness, maternity, adoption, and unemployment; medical benefits for sickness and maternity; and funeral grants (Norwegian Ministry of Labour and Social Affairs, 2012). Benefits generally are available to residents of Norway, though some benefits vary depending on length of residency. Experts posit that one of the reasons for Norway’s relatively low rate of overall violence is the “long tradition for comparative social and economic equality and a social welfare state dedicated to generating welfare for the whole population” (Lorentzen, 2013, p. 3). Benefits are generous and cover a wide range of circumstances, particularly in comparison to those available in the United States. For example, a work assessment allowance provides paid leave to employees at their previously paid wage when sick or injured. Daily cash benefits are available to those unable to work. New mothers receive maternity benefits at the equivalent of their full salary for 42 weeks; unemployed new mothers receive cash grants. Health care benefits are provided based on individual need, regardless of ability to pay, though benefits are subject to an annual cap (Bolstad, 2000). Health care is universally available to all legal residents; undocumented immigrants can obtain emergency, acute care. Leave provisions should apply to survivors needing time off from work to address abuse; it is unclear, however, whether survivors could avail themselves of sick leave provisions to address non-medical needs, such as moving, obtaining legal assistance, or seeking counseling. Norway’s system of relatively robust benefits should ensure financial independence for legal residents, even for those in abusive relationships who rely primarily on their abusive partners for economic subsistence. Those who are undocumented lack access to all but emergency health benefits, however, and accordingly face multiple challenges (Oslo Church City Mission, 2013). Notwithstanding the backdrop of a strong social safety net, growing critiques, consistent with themes associated with globalization, surface concerns about the high levels of benefits, often articulated as concerns about “dependence” (Dahl & Lorentzen, 2003). Some attribute the articulation of these concerns to changing family patterns, structural labor market changes, and increasing immigration by non-Western immigrants (Hansen, 2009). Advocates for and against current welfare policies note declining confidence and popular distrust of the policies (Bay & Pederson, 2004). 3.  Gender Equality

Norway consistently ranks high on measures of gender equality (World Economic Forum, 2013); it ratified CEDAW in 1981, and its Optional Protocol in 2002. Its gender equality policy is based on a twofold strategy that combines gender mainstreaming with gender-specific actions. Norway’s constitution does not contain a guarantee of equality based on sex or gender. Nevertheless, its Act Relating to

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Gender Equality (the “Gender Equality Act”) affirmatively enumerates public authorities’, employers’, and other enterprises’ duty to promote gender equality, prohibits discrimination on the basis of gender (as well as ethnic origin and sexual orientation), imposes an obligation of gender mainstreaming, and incorporates CEDAW into Norway’s substantive law. The Gender Equality Act specifies levels of representation of each gender on official committees, boards, councils, and other similar entities. However, Norwegian law does not formally prohibit multiple or intersectional discrimination. An Equality and Anti-Discrimination Ombud is charged with ensuring that Norway’s law and practices are consistent with its obligations under CEDAW. The Equality and Anti-Discrimination Tribunal can issue opinions and impose coercive fines on discriminating parties. Norway has issued action plans, most recently in 2014, spelling out strategies for overcoming enduring gender inequalities (Norway Ministry of Children, Equality and Social Inclusion, 2014). Parental leave entitlements for men are six weeks of the total benefit period and will be lost if they are not used by the father. A Cash Benefit Act provides cash payments to parents who choose to care for their young children at home instead of placing them in state-supported childcare. This policy has been the subject of much debate as to whether it hinders or advances gender equality, since most of those who make use of it are women. Other legislation provides that women have a right to choose an abortion, although the right is limited to the first 12 weeks of pregnancy. As the 2014 Gender Equality Action Plan (“Equality 2014”), states, the welfare state “has been and is a precondition for gender equality,” but “gender equality” is also necessary “to develop and maintain the welfare state” (Norway Ministry of Children, Equality and Social Inclusion, 2014, linking to Equality 2014, p. 3). Notwithstanding these initiatives, challenges remain. For example, women from minority communities experience higher rates of unemployment than the general population (CEDAW, 2012). Disadvantaged groups of women are more vulnerable to discrimination in education, health, social and political participation, and employment. Gender-based discrimination against women and girls still exists in Norway notwithstanding progress, and that discrimination is particularly resilient in relation to the right to freedom from violence and in the field of employment (Equality and Anti-Discrimination Ombud, 2011a). The Ombud argues that the root causes of violence, including attitudes toward rape, need to be addressed. The lack of an explicit intersectional perspective leaves the needs of many women and girls unmet. Despite the government’s stated support for inclusion, advocates report that women from ethnic minority backgrounds and disabled women receive little practical help in finding housing and accessing other benefits and services (Equality and Anti-Discrimination Ombud, 2011a). Lesbian, gay, bisexual, and transgender individuals’ access to services, particularly health services, remain insufficiently addressed. The Equality and Anti-Discrimination Ombud posits that the widespread notion that gender equality has been “achieved” in Norway “… may lead to an ‘othering’ of de facto gender inequality in that gender inequality concerns are seen to be relevant only for immigrants, and that only women from minority groups face severe discrimination” (Equality and AntiDiscrimination Ombud, 2011b, p. 1).

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I I I. EC O N O M I C S, G EN D ER EQ UA L I T Y, A N D G EN D ER V I O L EN C E:   C O M PA R AT I V E C O N S I D ER AT I O N S

This analysis of what lessons U.S. advocates can draw from Norway must be situated in the context of globalization. Walby (2004) argues that three main models of the nation-state take different routes in the transformation of gender relations under the pressure of neoliberal globalization. These are: the social democratic public service route, the market-led route, and the regulatory route. Whereas the Nordic countries (i.e., Sweden, Norway, Finland, and Denmark) follow the public service route that emphasizes the role of public services in expanding women’s capacity to engage in paid employment, the United States attempts to resolve the issue of women’s equality through market mechanisms (i.e., the market-led route), and the EU focuses on the establishment of legislation that promotes the inclusion of women as full citizens (i.e., the regulatory route). At the same time, the gendered inequalities that fuel violence against women are rooted in structures and processes of political economy that are increasingly globalized (True, 2012). The comparison between Norway and the United States reveals the value of Norway’s social democratic commitments. Yet the persistence of gender violence suggests that economic and gender equality are foundational, but that the relationship between economics and abuse is complex and requires both explicit and nuanced legal and policy-based responses. A.  Economics and Gender Violence in an Era of Globalization Data increasingly point to material gender inequalities between men and women with respect to income, property, employment, and other similar measures as predictors of the prevalence of gender violence (True, 2012, referencing sources; Yodanis, 2004). In urging that gender violence be viewed through the lens of a feminist political economic approach, True observes that gendered divisions of labor, contemporary neoliberal globalization, war, militarism, and globalized conflict all set the stage in which gender violence is committed. Globalization, along with the erosion of state social security systems and the lack of economic security, have increased women’s poverty and consequently, vulnerability to violence. Growing critiques of neo-liberal responses to gender violence urge legislation and policy that increase resources for social services and benefits, education, employment, and housing, particularly for poor, racialized, and other women from marginalized groups (Koshan & Wiegers, 2007). Similarly, Weissman (2013), focusing on the United States, argues that structural considerations, including the role of the political economy, have been under-theorized and under-valued. She draws on analyses by Nancy Fraser and others, who posit that feminism shifted from the structural to the cultural at the same time that identity politics eclipsed political economic concerns. To be effective, structural causes must be taken into account in any effective approach to reform. A growing body of examples and studies from a range of countries confirm the connections between economic insecurity and abuse. True (2012) points to cases such as acid throwing in Pakistan to illustrate men’s increased use of violence against women to compensate for the loss of other ways to prove masculine identity, given men’s actual or perceived loss of secure employment as a result of globalization. As

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the murders and disappearances of women in Ciudad Juarez, Mexico, illustrate, the growth and liberalization of trade has increased employment opportunities for women, but has also increased women’s vulnerability to gender-based violence, as unionization and workplace regulation decreases. Global data suggest that higher educational and occupational status is associated with lower rates of sexual, though not physical, violence (Yodanis, 2004). Although domestic violence occurs across all economic classes, studies from the United States suggest that it may be more prevalent among the poor and/or unemployed and that the incidence of domestic violence is exacerbated by economic factors, particularly job instability (Benson & Fox, 2004; Maxwell & Stone, 2010). Domestic violence service providers reported rises in calls for assistance following the 2008 economic downturn; those reports complement studies finding that economic downturns may exacerbate abuse (Weissman, 2013). For survivors, economic realities often shape their choices, because the decision to leave an abuser often depends on the availability of economic support (Casey, Fata, Orloff, & Raghu, 2009). Growing legislative and policy-based responses address the economic determinants and ramifications of gender violence (Goldscheid, 2008; Widiss, 2008). Nevertheless, a close look at the relationship between economics and abuse globally reveals that the relationship is complex. While some studies suggest that employment protects women from violence, others indicate that women who experience violence are more likely to be employed (Duvvury et al., 2013). Those with both high and low degrees of education may be most protected from abuse (Jewkes, 2002). On the other hand, at least one study found that women who have more education, who earn more than their spouses, or who are the sole earners have the greatest likelihood of being subject to frequent and severe violence (Weitzman, 2014). Another study from the United States similarly found that women in households in which both males and females were employed were more than twice as likely to experience abuse as women in households in which only men held paid employment (Franklin & Menaker, 2012). These results suggest that while employment may reduce the risk of abuse, female employment also may challenge male authority and power and increase the risk of abuse, particularly in heterosexual households in which the woman holds a higher status job. This conclusion is consistent with that of Norwegian researcher Heidi Fischer Bjelland, who found that higher income or education works as a protection against violence only so long as a woman’s income and education does not exceed that of her partner (Kilden, 2014). These studies underscore the need for further research to tease out the respective roles, for example, of gender norms, masculinity, and absolute versus relative economic resources in increasing vulnerability to abuse. B.  Economics, Equality, and Abuse in Norway One might wonder how to account for the prevalence of abuse in Norway, given its strong commitments to social democratic provision of services and benefits and gender equality. A close look offers a number of explanations. For example, advocacy against gender violence is relatively new in the Norwegian struggle for gender equality, with initial efforts focused on economics and employment. Enduring

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markers of inequality, including the persistence of gender violence, underscore the need for ongoing and targeted advocacy. Even countries like Norway are subject to the pressures of globalization. Emerging critiques of safety net programs by Norwegians, and stated concerns about rising demand for services from immigrants, echo troubling global themes. Advocates voice concern about shifts away from state-based feminism toward more market-driven approaches (Equality and Anti-Discrimination Ombud, 2011a). These critiques raise questions whether Norway’s commitment to communitarian values and social democratic policies is premised on an unspoken assumption that beneficiaries would be Norwegian. Norwegian advocates, like many in the United States, emphasize the importance of ensuring comprehensive and accessible services for immigrants and others from marginalized communities. The comparison also reveals the limits of formal equality schemes and the importance of continued attention to ensure access for those on the margins. The provision of universal rights may have the effect of limiting the availability of services for those with particular vulnerabilities. For example, since social services are available for everyone, there is a dearth of social service programs designed specifically for domestic violence survivors. Formal equality’s limits are most starkly evident in the provision of equal numbers of domestic violence shelter beds for men and women, resulting in empty beds for men notwithstanding women who need shelter (CEDAW Concluding Observations, 2012). Alsaker, Kristoffersen, Moen, and Baste (2010) suggest applying a cultural perspective to explain the persistence of intimate partner violence in Norway notwithstanding high levels of gender equality and social welfare programs. In their view, enforced gendered norms of masculinity still inform interpersonal relationships, including the use of violence. They endorse multi-faceted initiatives, including training young people about intimate partner violence and instilling values of respect for all people regardless of difference, to reduce intimate partner violence and advance human rights. Even though issues remain, decreases in the number of Norwegian women who seek shelter may signal the impact of recent generations of reforms (Jonassen & Skogøy, 2010). I V. PR O M I S I N G A PPR OAC H ES A N D ST U B B O R N C H A L L EN G ES

The concerns of advocates in both Norway and the United States are remarkably similar. Issues such as funding for services, implementing new laws, and providing accessible and comprehensive services for those from marginalized groups, animate legal and policy debates in both countries. But reforms in both countries, particularly those relating to economic benefits, derive from markedly different histories and philosophies. A.  Familiar Challenges Much progress has been made in Norway over the last 30 years in shifting perception of intimate partner violence from a private to a public issue and in increasing

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state accountability for responding. Norway’s challenges in addressing intimate partner violence notwithstanding broad-based commitments to gender equality and social benefits confirm the difficulty of the task. While some of the concerns are an inherent and perhaps unavoidable part of implementing new social policy, other challenges reflect common issues, many of which are exacerbated by globalization. For example, concerns about services for immigrants thread through advocacy efforts. Although an emphasis on self-sufficiency and market-driven values appears less entrenched in Norway than elsewhere, it may nevertheless impact efforts to address gender equality generally, and gender violence more specifically (Morrow, Hankivsky, & Varcoe, 2004). As elsewhere, intersectional discrimination persists and creates barriers to true equality. For example, FOKUS (the Forum for Women and Development), on behalf of numerous NGOs, notes that the Norwegian system “gives an illusion” of having achieved more than actually has been accomplished (FOKUS, 2011b, p. 1). Reports note the increased vulnerability of and limited access for women with disabilities, women from ethnic minority groups, lesbians and transgendered women, and women with serious mental health problems and/or problems involving substance abuse (FOKUS, 2011b, International Disability Alliance [IDA], 2012). This concern echoes critiques that the United States’ approach to gender violence is insufficiently responsive to those who experience multiple forms of and intersectional discrimination (Manjoo, 2011). Advocates voice familiar and perhaps inevitable concerns about effective implementation of new laws and about ensuring adequate funding. For example, shelters are unevenly distributed throughout the country and many of them face unpredictable and inadequate budget situations (FOKUS, 2011b; Jonassen, 2005). State plans call for a range of initiatives, including training programs for health care workers and for police and staff at battered women shelters, but limited funding makes progress slow (Jonassen, 2005). There is still no regular training for professionals in the field, and only a few courses are available for those who are interested. Other experts raise familiar concerns about the criminal justice system. A coalition of NGOs notes that the criminal justice system can be a burden rather than a help for women seeking assistance, and that police often are not responsive when women seek help (FOKUS, 2011b). Researchers question whether incarcerating perpetrators truly serves to prevent violence in the long term (Saur, Hustad, & Heir, 2011). Others raise concerns about inadequate training of law enforcement officials. Advocates and service providers object that trafficked women are not treated like other Norwegian women, and that resources are expended on criminal justice responses, while resources for survivors are inadequate. B.  The Value of the Safety Net While strong commitments to economic and gender equality may not eliminate abuse, they may change the quality and nature of the challenges survivors face. As Pamela Brown details in her comparative study of poverty, public assistance, and single mothers, the United States’ system is residual, based on selective, individualistic, and positivist philosophies, whereas the Norwegian welfare system is institutional, with universal rights for public access, albeit generally limited to citizens

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(Brown, 2008). Mirroring those different models of welfare policies, Brown found that mothers in the United States struggled mostly to achieve basic needs such as food, rent, and childcare, while mothers in Norway are primarily concerned with not being able to provide their children what other “average” children have, such as leisure activities (Brown, 2008, p. 16). Norway’s safety net may affect the type of abuse experienced by those who seek shelter. Comparing the experience of Norwegian women in shelter to the shelter studies from countries with less social welfare, Alsaker, Kristoffersen, Moen, and Baste (2010) argue that the serious forms of physical and psychological violence reported by women in the Norwegian shelters may be the result of the fact that only those who experienced the most severe violence would seek help, while other women could manage because of the better social welfare systems in Norway. This suggests that a strong safety net might alleviate burdens on domestic violence shelters and improve service delivery; though it presumes that those experiencing less acute violence have adequate access to non–shelter-based support services. Norway’s baseline commitment to social benefits also may explain a difference in the types of benefits and issues on which advocates focus. For example, advocacy materials don’t raise questions about survivors’ need for medical services; this is unsurprising given national health care benefits. The general availability of housing for citizens may explain the relative lack of focus on transitional or permanent housing needs compared with the pressing need for housing for survivors in the United States. At the same time, Norwegian advocates’ concerns about housing for abused women who are unable to obtain citizenship status shine a harsh spotlight on the problems with using citizenship as a criterion for allocating shelter and other benefits. Lack of access and suitable services for disabled women, women from ethnic minorities, and lesbians and transgender women highlight the importance of providing meaningful access to survivors from all communities. Norway’s history as a social democracy, in which social services and benefits appear to be accepted as a necessary way to meet life’s challenges, no doubt must shape the context in which services are delivered. For example, in their study of violence prevention programs, Saur, Hustad, and Heir (2011) describe Norwegian society as “characterized by social cohesiveness and a high degree of cooperation among various social institutions” (p. 12). Government reports tout the critical role of the welfare state in promoting gender equality (Norway Ministry of Children, Equality and Social Inclusion 2014). This contrasts with the United States’ public assistance programs, which are framed in terms of ending dependence, preventing out-of-wedlock pregnancies, and encouraging two-parent families (42 U.S.C.  sec. 601), and that increasingly are punitive in nature (Cammett, 2014). The difference in underlying assumptions must shape both the nature of survivors’ experience and the nature of advocacy. Survivors often require financial assistance and other social services to successfully navigate abuse (see e.g., Hetling & Zhang, 2010; Renzetti & Larkin, 2011). In the United States, poor women who are battered and battered women who become poor must work to receive benefits, unless they can successfully qualify for the “Family Violence Option,” a waiver from work requirements only a minority of survivors obtain (Lindhorst, Meyers, & Casey, 2008). The system would be very different if benefits were more readily available. An approach that unapologetically

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is committed to distributive justice offers an aspirational model for U.S. advocates. It would significantly reduce the challenges associated with managing an abusive relationship, particularly for those who seek to leave an abuser and need financial assistance to do so. V.  C O N C LU S I O N

Overall, an economic approach shifts the discourse from an interpersonal issue to a structural problem in which policy change can potentially intervene. The combination of Norway’s deep commitments to gender equality and to a robust social safety net chart a landscape of laws and services to which U.S. advocates can look for inspiration. Advocates in the United States can only imagine the difference it would make if survivors could access cash benefits if they want to separate from an abusive partner but lack the means to do so, or if they didn’t have to worry about health insurance for themselves or their children. Similarly, a host of concerns would be alleviated if independent housing were more readily available. An emphasis on prevention could shift resources away from criminal justice interventions. If the cultural discourse truly communicated support rather than judgment for failing to be self-sufficient, survivors might be more willing to disclose and seek services that could afford meaningful assistance. Lessons from Norway underscore that law and policy should attend to the particularities of gender violence as well as to economic security, and to gender as well as other forms of equality. Norway’s experience reaffirms the need to intentionally address the needs and concerns of survivors from marginalized groups and to ensure access for immigrant survivors. Yet, at the same time that it serves as a reminder of the challenges of eliminating gender violence and achieving gender equality, Norway also reminds us that services and benefits could be reordered to emphasize meeting human needs and advancing dignity and equality for all. AC K N OW L ED G M EN TS

Thanks to Dean Michelle Anderson and CUNY Law School for supporting this project, to Kirsten Alsaker for reviewing and commenting on a previous version of this chapter; to Meghan Mcloughlin, Jenn Hogg, Hannah Kaplan, and Wen Liu, for enormously valuable research assistance. This project was supported (in part) by a grant from the City University of New York PSC-CUNY Research Award Program. Special thanks to Gunhild Vehusheia and JUKR, to Kristin Skjorten, Ole Kristian Hjemdal, Wenche Jonassen, Randi Saur, Yngvil Grovdal, Helga Aune, and the Norwegian Centre for Violence and Traumatic Stress Studies, to Margunn Bjornholt and Gunhild Ramm Reistad, FOKUS, and the Norwegian Association for Women’s Rights, to Mildrid Mikkelsen, Project Rosa, and Tove Smaadahl, and the Oslo Krisesenter, and to Kjersti Alsaker, and Bergen University College, for generously taking the time to meet with me and for sharing resources, expertise and insights. Many thanks to Leigh Goodmark and Rashmi Goel, for conceiving of and inviting me to contribute to this collection, and for their valuable input to this chapter.

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Domestic Abuse Feminism, the Government, and the Unique Case of Scotland N A N C Y L O M B A R D A N D N E L W H I T I N G   ■

I.  I N T R O D U CT I O N

This chapter illustrates the unique case of Scotland in working to tackle domestic abuse. Those who deal directly with and experience the issues are often best placed to recommend, initiate, and enact change proposals, whereas the government can act as a vehicle for their distribution. Unsurprisingly then, in all societies it is women that have spoken out first about violence against themselves and their children, both in the home and outside of it (Kelly, 1988). Yet often the issue of violence and what to do about it is taken and given to those in authority, who are afforded the “power of naming” (see Foucault, 1980) and consequently positioned to define the issue for others. Bacchi (1999, p. 165) argues that it is not simply the “definition” or “definer” that is of most relevance but how these labels function in contextualising the issue further in terms of the “problem representation.” Thus, we can see how the issue of power pervades not only violence and its perpetration, but also its conceptualization. In this chapter, we argue that Scotland has been unique in that women have been the driving force in defining the issue of domestic abuse but also a successful, motivating factor in challenging it politically, legally, and ideologically. This chapter outlines how Scotland came to adopt a gender-based approach to domestic abuse and the work that has been and is being undertaken to tackle the issue. It illustrates the extraordinary achievements in addressing domestic abuse but argues that these developments remain “fragile” (Mackay, 2010). It proposes that historically, major political reorganization has been a catalyst for change and that the independence referendum in September 2014 afforded another opportunity for transformative action on domestic abuse, irrespective of the outcome of the election.

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I I. SC OT L A N D, T H E  SC OT T I S H P O L I CY C O N T E X T A N D T ER M I N O LO GY

Scotland is one of four countries that make up the United Kingdom (the others are England, Wales, and Northern Ireland). It forms the northern part of the island of Great Britain, sharing a land border with England. Scotland is made up of three geographical areas: Highlands and Islands, Central Lowlands, and Southern Uplands. The majority of Scotland’s 5½ million population live in the central area around the two main cities, Glasgow and Edinburgh. In the years 2012/2013, the police in Scotland recorded 60,080 domestic incidents. Eighty percent of these involved a female victim with a male perpetrator. The police in Scotland attended a domestic incident every nine minutes and they account for 15 percent of all violent crime in Scotland. Fifty percent of incidents led to a criminal investigation and 60  percent of incidents had a repeat offender. There were 11 domestic abuse–related homicides, 313 attempted murders and serious assaults, and 248 sexual offenses recorded (Scottish Government Statistical Bulletin, 2013).1 Through the process of devolution in 1999, Scotland’s policies differ from those of the rest of the United Kingdom.2 Scotland has recognized the social problem of domestic abuse within the continuum of violence against women as a form of gender-based violence. In so doing, it explicitly acknowledges domestic abuse as an issue that disproportionately affects women and is overwhelmingly perpetrated by men, and is associated with long-held cultural assumptions about the roles of men and women in society (Gadd et al., 2002; Lombard, 2013a; McFeely et al., 2013). By locating such violence within the power structures inherent in our society, the Scottish Government adheres to a feminist definition that sees this violence as both a cause and consequence of inequality. Scotland is significant in being the only country in the United Kingdom to do this.3 In the year 2000, the Scottish government published its National Strategy to Address Domestic Abuse in Scotland, which stated: Domestic abuse (as gender based abuse) can be perpetrated by partners or expartners and can include physical abuse (assault and physical attack involving a range of behaviour), sexual abuse (acts which degrade and humiliate women and are perpetrated against their will, including rape) and mental and emotional abuse (such as threats, verbal abuse, racial abuse, withholding money and other types of controlling behaviour such as isolation from family and friends). The strategy went on to state: Domestic abuse is associated with broader gender inequality and should be understood in its historical context, whereby societies have given greater status, wealth, influence, control and power to men. It is part of a range of behaviours constituting male abuse of power, and is linked to other forms of male violence. (Scottish Executive 2000, p. 5) In this edited collection, the conventional terminology for this phenomenon is intimate partner violence. For two writers in Scotland, however, this construction

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cannot be accepted unquestioningly because “intimate partner violence” is not a widely used or understood phrase in Scotland. Definitions of violence against women are culturally, historically, and spatially specific (Hester & Westmarland, 2004), and in Scotland the phrase “domestic abuse” is used in preference to intimate partner violence. Hearn and McKie (2009) argue the definition given to an issue provides the “parameters” within which it is understood and addressed. The adoption of the term in 2000 was intended to better reflect the range of behaviors enacted by perpetrators to control their partners. It highlights that such abuse need not be physical and includes emotional, psychological, and financial tactics, all of which are used to create compliance in a partner. III. H I STO RY O F SC OT L A N D’S FEM I N I ST ST R U G G L E

The women’s movement in Scotland has been central in shaping political response to issues of gender representation and placing gender inequality squarely on the political map. Devolution from the rest of the United Kingdom in 1998 proved pivotal in changing Scotland’s political landscape (Scott, 2005). Mackay comments, In the run-up to devolution in the late 1990s, women’s activism and ideas were crucial in shaping debates about the Scottish parliament. Determined not to be excluded ‘this time round’, women from different backgrounds and organisations, including women in political parties, formed a broad coalition to campaign for ‘50:50’ equality of representation in the Scottish parliament. They also demanded greater opportunities for the voices of women in organisations and communities to be heard in politics and policy making. The elections in 1999 resulted in a gender coup that transformed the face of Scottish politics. (Mackay, 2004, p. 1, emphasis in original) Although the advent of the Scottish parliament was certainly fundamental, the activism of the women’s movement in Scotland goes back much further. Women’s Aid is acknowledged as the lead organization providing support for women and children experiencing domestic abuse. The first Women’s Aid groups were established in Glasgow and Edinburgh in 1975. Women’s Aid groups grew out of the Women’s Liberation Movement and a desire to do something practical to address the social injustices faced by women. On one level, this meant the provision of refuge, but political, social, and cultural change has always been, and continues to be, a goal (Greenan, 2004; Mackay, 2010). From the earliest days the women’s movement engaged with academics, politicians, and statutory service providers to lobby for change and ensure women’s voices informed research, policy, and practice. A significant landmark was the publication of Violence Against Wives:  A  Case Against the Patriarchy (Dobash & Dobash, 1979), a book which, for the first time, analyzed police records and highlighted the extent of domestic abuse experienced by women.4 The study found that a quarter of the violent crime the police were dealing with in the geographical areas researched was domestic. The empirical evidence provided a springboard for further campaigning around police response, prosecution, and the need for adequate housing. From this time on, change happened, but was incremental and piecemeal. Importantly, however, much of that change was

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predicated on the critique offered up by the grassroots women’s movement (Abrar, 1996; Charles, 1995). Local government reorganization in the mid-1990s provided stimulus for an effort to tackle the issue in a more strategic way (Greenan, 2004). The period saw the publication of Scotland’s first guidance on developing multi-agency partnerships to address the subject (COSLA, 1998). This, in turn, provided a foundation for greater change, which the advent of a new government offered. As Mackay argues above, greater gender representative equality within the new Scottish Parliament led to significant policy shifts and prioritization. Domestic abuse moved from the periphery to the center, as a key policy priority. A national partnership formed leading to the development of a domestic abuse strategy, within which the definition of domestic abuse outlined earlier was contained. From this, multi-agency initiatives have been coordinated and training agendas promoted within different councils in Scotland (see Rummery, 2013; Whiting, 2013). The strategy identified three approaches necessary to address domestic abuse holistically, known as the “3Ps,”5 namely “protection” (legal remedy), “provision” (effective service response to women and children experiencing domestic abuse), and “prevention” (methods to try to stop domestic abuse, occurring or to reduce reoffending). Although the strategic focus has broadened to incorporate all forms of violence against women (The Scottish Government, 2009), the rest of the chapter highlights the work being undertaken in Scotland to address domestic abuse under the 3Ps. I V. PR OT ECT I O N

Legal protection in Scotland falls under two branches: criminal and civil. In criminal law, the state takes a case against a party. A  civil case is one that is pursued by a private party against another. Both are applicable to domestic abuse. Victims may engage with the law when they are called as witnesses to give evidence in a criminal case, or they may apply to the courts for protective orders. The main protective orders available are exclusion orders, which prevent the perpetrator from living in the shared family home; interdicts, which prevent specific behaviors; and non-harassment orders. There is currently no distinct crime of domestic abuse in Scotland; rather, domestic abuse is viewed through the full spectrum of criminal offenses and might include crimes of assault, breach of the peace, or crimes against property. There have, however, been some significant post-devolution legislative advances that offer better protection to victims/survivors. The Protection from Abuse (Scotland) Act (2001) affords protection to individuals who have left abusive relationships by allowing for a power of arrest to be attached to an interdict. The Domestic Abuse (Scotland) Act 2011 makes provision in relation to harassment amounting to domestic abuse and makes it an offense to breach an interdict relating to domestic abuse, with a power of arrest attached. The Criminal Justice and Licensing (Scotland) Act 2010 provides for a new statutory offense of stalking. Conduct constituting stalking may, depending on the circumstances, be prosecuted using a number of common law and statutory offenses. The new offense of engaging in threatening or abusive behavior in the act of stalking also provides more protection for victims of domestic abuse.

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In Scotland, the decision to prosecute is made by the Procurator Fiscal, based upon whether it is in the public interest and whether there is sufficient evidence. The evidence must demonstrate “beyond all reasonable doubt” that a crime has been committed; two pieces of evidence are needed to “corroborate” the crime. The statement from the woman can be used as one piece of evidence, but because of the domestic nature of the crime it is often difficult to obtain further corroborative evidence. Political discussions around the need for corroboration continue, but a positive development arose with the appointment of a National Procurator Fiscal for Domestic Abuse in 2013, whose remit is to raise awareness of domestic abuse within the instruments of the criminal justice system, conduct a review into how such cases are handled, and encourage a collective response. Despite these changes, the prosecution of domestic abuse cases remains fraught with difficulty. There remains a mismatch between legislation and what we know about domestic abuse as a course of conduct crime that entraps victims through fear, coercion, and control (Stark, 2007). It is possible that these difficulties will only be resolved by the creation of legislation that criminalizes coercive control; however, prosecution and evidentiary challenges would remain. In the meantime, Scotland’s criminal justice system is working to create a system that makes justice for victims/survivors of domestic abuse a possibility. One of the key instruments of the criminal justice system is the police. There have been significant changes to policing in general and the police response to domestic abuse in particular. Back in 1998 Hoyle argued: Police cultural beliefs decrease the probability of perpetrators of domestic violence being arrested. This is because machismo, sexism and an emphasis on crime fighting are important traits of ‘cop culture’, with the result that crimes against women in the ‘domestic’ context are not taken seriously. (Hoyle, 1998, p. 68) The first stage in challenging this culture of machismo was the publication of Hitting Home (1997), a report that revealed the extent of domestic abuse in Scotland, including levels of repeat victimization, and also highlighted the significance of the police role in providing safety and encouraging further help seeking. Some examples of good practice were highlighted. For example, the introduction of Domestic Abuse Liaison Officers, plainclothes domestic abuse specialist police officers who provide support and advice to victims after a reported incident, was highly commended. Violence and public protection were identified by the police as priorities in the Scottish Policing Assessment (SPA) 2011-15. This represented another stage in the challenging of macho culture. The SPA recognized that understanding violence and the factors that influence violence, and challenging perpetrator attitudes and behavior, were essential if the police were to establish a more effective intervention program. In 2013, all of the police forces in Scotland joined together to form Police Scotland, headed up by Steven House (Chief Constable). House declared domestic abuse one of the three priorities for the new Scottish Police Force 2013, acknowledging the seriousness of the offense for both the general public and police officers. Domestic abuse means tackling some of the most dangerous and difficult offenders across Scotland. They will attempt to control victims by creating a

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culture of fear, perhaps starting with controlling access to money, friends and family, even clothing. We want to transfer that fear to the offender—by making it clear we will do everything within our power to target offenders and bring them to justice. Every officer in Scotland now has a responsibility to identify offenders, target their behaviour and ensure crimes are pursued through the courts. (Steven House, The Daily Record 23/12/13) Alongside this focus upon criminalizing offenders, activists and those working in the criminal justice system recognized that there was a need for offenders to be treated efficiently and effectively through the court systems. In 2003, a multi-agency group, including representatives from the women’s movement and the criminal justice system, was established by the Scottish government to consider piloting a domestic abuse court in Glasgow. An important part of making the domestic abuse court work was effective support to victims. As a result, ASSIST, an independent Domestic Abuse Advocacy Service that works alongside the police and the domestic abuse courts, was established. The role of ASSIST is to reduce victimization by assessing the risk and increasing the safety of clients at risk of harm from partners or ex-partners. The main referral route is via Police Scotland, following a call of an incident of domestic abuse; however, ASSIST also accepts self-referrals and referrals from other agencies as long as there has been a reported incident to the police (McGowan, 2014). An evaluation of the system (Reid Howie Associates, 2007) concluded the outcomes for victims were greatly enhanced through the combination of specialist advocacy, specially trained criminal justice practitioners, and reduced waiting times in getting to court. The report also noted a significantly greater number of earlier guilty pleas by the accused. Subsequently, there have been efforts in other areas of Scotland to replicate the Glasgow court, but this is by no means universal. Innovation and change such as the court in Glasgow occurs primarily due to local champions and is not replicated in areas where there is apathy or indifference to the issue of domestic abuse. Furthermore, the Glasgow court began with a six-week waiting list; now it is 24 weeks. It is inundated with cases, with resulting prolonged delays in getting into court with all the attendant problems this heaps on victims; “[i]‌t is a disgrace we are asking victims to wait this long” (McGowan, 2014). We would argue, therefore, that the success of the domestic abuse court initiative remains “fragile.” A unique aspect of the Scottish legal system is the Children’s Hearing System, which aims to combine justice and welfare for children. The protection offered to children affected by domestic abuse was enhanced through the Children’s Hearings (Scotland) Act 2011, which named domestic abuse as a ground for referral to a hearing. A Children’s Hearing is designed to be more child focused and child friendly than a court might ordinarily be, with greater opportunity for children’s voices to be heard. Initially, a child is referred to a Children’s Reporter if someone (usually from the police, education, or social services) has concerns about the child’s safety and well-being; the Reporter then decides if there is need for a Children’s Hearing. The Family Law (Scotland) Act (2006) (which amended the Children [Scotland] Act 1995) made explicit the need to protect children from abuse, with abuse including “violence, harassment, threatening conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress.” This definition is underpinned by national child protection guidelines. These guidelines state: 1) that if a non-abusive

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parent/caregiver is not safe, it is unlikely children will be safe; 2) supporting the adult victim of domestic abuse ultimately supports the child; and 3) that the impact of domestic abuse on a child should be understood as a consequence of the perpetrator choosing to use violence rather than the non-abusing parent’s/caregiver’s failure to protect (Scottish Government 2010). The guidance, in line with other Scottish Government policy documents, highlights the gendered nature of domestic abuse, recognizing that the non-abusing parent is most likely to be the mother. Despite the strong protection provided by the law for children affected by domestic abuse, there is a gap or lag between legislation and practice that centers on professionals’ lack of understanding of the dynamics of domestic abuse and interpretation of the law. This is particularly problematic where post-separation contact between a child and an abusing parent becomes an issue. Mackay (2013a) found that professionals often did not seek, and often ignored the views of the children, or worse, did not see the relevance of domestic abuse in contact cases in which a child had not been physically harmed. The research suggested that it was assumed that contact with a parent would automatically be in the child’s best interest even if (s)he has expressed a desire otherwise, and that such a desire was often blamed on the mother’s fear or vindictiveness. For example, one report considered in the study stated: There appear to be no child welfare based reasons why contact should not operate.[…]I do not feel that either of the girls are sufficiently mature to be able to evaluate their feelings objectively.[….]The girls are obviously fearful of their father, but I do suspect this is a result of the perception of their mother’s reaction rather than a genuine fear of spending time with the pursuer. (MacKay, 2013b) As with other areas of development in Scotland, there have been enormous steps forward in considering domestic abuse as a child protection issue, but there is some way to go in embedding the principles in everyday practice. V.  PR OV I S I O N

The Women’s Aid network continues as the main provider of specialist services to women and children affected by domestic abuse. The network is currently comprised of Scottish Women’s Aid, the national campaigning and lobbying organization, and 35 local Women’s Aid groups providing specialist domestic abuse services across the whole of Scotland from the Borders to Shetland. The network also includes two groups, Shakti and Hemat Gryffe, set up to work specifically with women from Black and minority ethnic communities. Their focus encompasses work on forced marriage and other forms of “honor”-based violence in addition to domestic abuse. Women’s Aid services range from crisis intervention—providing safe refuge accommodation—to supporting families as they rebuild their lives. Groups provide outreach services in the community, supporting women and children in their own home or at drop-in services at local health or community centers. Many also deliver training to professionals locally and carry out prevention work in schools. In relation to other countries in the United Kingdom and beyond, Scotland is comparatively well served by specialist services, with services more evenly distributed than elsewhere (Coy et al., 2007). Evaluation work undertaken by Scottish Women’s Aid

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to establish the impact of the network’s services highlights both the continuing need for these specialist services and their value (Scottish Women’s Aid, 2011). However, several factors mean this work is by no means secure. The sustainability of services in light of funding cuts is a major issue. Almost a third of Women’s Aid groups (30 percent) had to make cuts to their services as a result of reduced funding. This included reducing the support provided to women and children, introducing waiting lists, reducing after-hours and crisis support availability, and cutting back on the refurbishment of accommodation, activities for children, and outings for families. Services also reduced staff hours, reduced pension contributions, froze recruitment, and cut staff training budgets. As such, Women’s Aid finds itself in an anomalous position; it is recognized for its expertise by local and national partners, its support services remain in demand, but it cannot find the funding it needs to do the work required. Funding cuts are a perennial problem for the voluntary sector as a whole, but research has shown that in times of austerity it is women and women’s issues that are disproportionally affected (Fawcett Society 2012). That domestic abuse is still viewed primarily as a women’s issue and therefore not part of the mainstream is, in part, reflected in the funding versus demand conundrum. Women’s Aid has also taken the lead in identifying innovative approaches to service provision and encouraging their development in Scotland. An example of this is the Cedar initiative, which was originally developed in Canada. Scottish Women’s Aid worked in partnership with the Scottish Government and three Local Authority areas to adapt, develop, and pilot the project, which has subsequently been rolled out to other parts of Scotland. Cedar provides two therapeutic, concurrent 12-week group-work programs for children and young people who have experienced domestic abuse. The approach encourages mothers and children to work together toward recovery from their experiences of abuse. The format aims to break down the taboos and fears that prevent both mothers and children from talking about their attitudes and feelings about the abuse, especially with each other. A strength of the initiative is that it is multi-agency, with representatives from the public and voluntary sector coming together to run the sessions. It is a beacon to what can be achieved to address domestic abuse when agencies come together and there is buy-in from the top down. A key tenet of the provision element of The National Strategy to Address Domestic Abuse in Scotland was its recognition of “a need to challenge and change attitudes which perpetuate domestic abuse, which cannot be tackled effectively without education and training” (Scottish Executive, 2000, p.13). Subsequently, in March 2004 the Scottish Executive launched the National Training Strategy, acknowledging that “training is essential to enable staff to provide a good service” to those affected by domestic abuse (Scottish Executive, 2004, p. 1). The strategy aimed to ensure “that all workers who come into contact with women, children and young people who have experienced domestic abuse, and men who have used violence, have the knowledge, understanding and skills required” (Scottish Executive, 2004, p.4). An enormous amount of training was provided across the country, but the program faced many challenges (Whiting, 2013). For example, training was never mandatory and so it was provided largely to self-selecting practitioners who identified a gap in their own professional training. Furthermore, research undertaken by Hurley et al (2007, p. 2) into the impact of the program found that “according to the relevant professional bodies, skills and understanding in dealing with violence against women are not a necessary

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prerequisite to be recognized as a doctor, teacher or social worker. There was no indication from any professional body that they would wish to move to change this situation.” Thus, as in other areas of work to address domestic abuse, resistance remained significant and change in practice patchy. In other words, progress remains “fragile.” V I. PR E V EN T I O N

There are two elements to prevention: primary and secondary. Primary prevention focuses upon awareness raising and education among the wider population, especially children and young people. Secondary prevention focuses upon those who have already perpetrated or experienced violence. Prevention is one of the core elements of the Scottish Government’s Strategy to address men’s violence against women: Adopting a primary prevention approach challenges the notion that violence is inevitable and offers a vision about how things could be different. It aims to change societal attitudes, values and the structures which produce inequality. It raises fundamental questions about the way our society is currently organised, and can, as a result, be more challenging to individuals’ core beliefs. (Scottish Executive, 2003) Because domestic abuse (and violence against women in particular) is recognized as arising from gendered inequality, violence cannot be prevented until women’s position within society changes. For feminists, the prevention of violence has always been key (Kelly, 1999), but unlike protection and provision, which are determined primarily by money, prevention requires a fundamental shift in society’s thinking, what Kelly terms a “transformative equality” (ibid). For domestic abuse policies and procedures to be fully integrated into our society, a process of redistribution is required that equates equality and role change with success (Boneparth & Stoper, 1988). There have been attempts to make domestic abuse as socially unacceptable as drinking and driving. The Scottish Government has run an awareness raising campaign in conjunction with the police starting in 1995, and then each year from 1998 to the present, in various news media. One of the first campaigns to raise awareness of domestic abuse was Zero Tolerance’s drive to tackle societal attitudes in 1992. Zero Tolerance was started by two women who got together to bring about change and build alliances, including political alliances. They deliberately sought to use mainstream marketing techniques (high profile media campaigns, slick adverts, engagement with the public and politicians), adopting an approach of primary prevention to challenge attitudes, values, and structures that sustain inequality and men’s violence against women and children. It was an overtly feminist initiative setting out to challenge stereotypes of violence against women in a way that empowered women and challenged men but did so with “broad political, civic and church backing” (MacKay, 1996, p. 206). The Zero Tolerance campaign is distinctive for several reasons:  it is radical in that it seeks to challenge existing power relations and effect far reaching

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change; it is feminist in the way it links sexual violence, domestic violence and child sexual abuse as part of the ‘continuum of violence’; it names emotional and psychological abuse as forms of abuse. The campaign uses a feminist analysis of violence as a male abuse of power and it challenges men to take responsibility for their violence. In addition it specifically uses empowering images of women, rather than victim imagery. (MacKay, 1996, p. 210) The campaign was immensely powerful. It continues to be used around the United Kingdom and is a benchmark for the promotion of positive images of women who have experienced violence. In 1998, Burton et al. (1998) conducted research in secondary schools to find out about young people’s attitudes toward violence against women. Among the 14- to 21-year-olds they interviewed, one in two boys and one in three girls thought that there were some circumstances in which it would be okay to hit a woman or force her to have sex. Thirty-six percent of the young men interviewed revealed that they personally might force a woman to have sex. Such findings demonstrated that these young people hold complacent attitudes toward violence against women, and such attitudes would inform their future relationships. These findings were replicated in numerous other studies (see Burman and Cartmel 2006; Dublin Women’s Aid, 1999; McCarry, 2010). McCarry’s research (2010), looking at young people aged 15 to 18 in Glasgow secondary schools, substantiated existing research that found young people had a high tolerance of men’s violence against women and that they found ways to legitimate it. McCarry stated that the young people in her study framed domestic abuse in terms of physical actions (unless it was perpetrated by women), thereby naturalizing the associations of men, masculinity, and the perpetration of physical violence (see also Connell, 2002; Stoudt, 2006). Such research has been critical in informing the need for pragmatic policy intervention seeking to develop awareness raising and educational strategies with young people in relation to this issue. The focus, however, was upon those children deemed “old enough” to understand violence or to be in a relationship of their own. Lombard (2013b) studied the attitudes of primary school aged children (aged 11 and 12) and found that many normalized, naturalized, and justified men’s violence against women, demonstrating the need for preventive work to start at a much earlier (st)age. In response to these research findings, Zero Tolerance developed curricular materials for use in primary schools, secondary schools, and informal youth settings. These materials aim to empower young people with useful knowledge, skills, and understanding and promote positive, non-violent relationships based on equality and respect. Although evaluations have heralded small successes, again the work is patchy across Scotland. A number of initiatives working with older teenagers and university students are used in Scotland. These programs, which include Mentors in Prevention and Get Savvi, draw inspiration from U.S.  college campus bystander programs. Both programs have developed peer-delivered initiatives challenging young people to confront their own and others’ role in perpetuating and sustaining gender-based violence. Mentors in Prevention is run by the police with secondary schools; Get Savvi, by Scottish Women’s Aid, with college and university students. The Get Savvi program was developed by a partnership of organizations that included White Ribbon

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(men campaigning against violence against women) and the LGBT (lesbian, gay, bisexual, and transgender) Domestic Abuse Project, which addresses homophobia alongside sexism. This dual focus is enabled by the framing of both issues as forms of gender-based violence. Gender-based violence is here identified as a “policing mechanism” (Lang, 2002), whereby those who do not conform to gender ideals and norms are punished (through violence, abuse, mockery, or exclusion) for their perceived deviancy. Homophobic bullying and assault are understood as resulting from individuals and society’s belief that “real” men and women are straight and to be gay is to be non-compliant with society’s gender order (Connell, 2002). The recognition that gendered expectations control and inform expectations of sexuality and sexual activity has been the basis of some strong partnership work on Scotland in mainstreaming LGBT people’s experiences of domestic abuse. The health sector has also been the site of a nationwide prevention initiative. In line with other Scottish Government initiatives in this area, the gendered nature of the abuse in question is a central theme; the program’s website and literature state that the “key risk factor for experiencing abuse is being female.” Gender-based violence is understood as something that has serious health consequences and is therefore pertinent to health professionals. The initiative drew on a public health approach that, while offering opportunities to provide support to those affected, was primarily preventative in its message of the unacceptability of such abuse. The initiative introduced routine enquiry of abuse in mental health, maternity, addictions, sexual and reproductive health, accident and emergency room, and primary care settings. All service users are asked about their experience of domestic abuse, regardless of whether or not there are any signs of abuse or whether abuse is suspected. This is different than selective enquiry, which involves asking women directly about their experiences when the professional involved is concerned that domestic abuse is an issue. In order to support the work of local health boards, a team created information packs, templates, and other practical tools, developed and delivered training, and offered practical support and advice to Scottish health professionals (Henderson & Cosgrove, 2009; Whiting et al., 2011). The team worked hard to make the program pragmatic; they were aware the work would be undertaken in a time of staff shortages and competing priorities. A key message aimed at managers, human resource workers, and front line health care workers was that they did not need to be expert or “fix” those affected, but that understanding the issues would enable them to carry out their roles more effectively. It was an ambitious program and met with success. On the positive side, over 3,000 health staff throughout Scotland have been trained to undertake routine enquiry and excellent resources have been produced. The program has met with enormous enthusiasm from the violence against women sector and key champions within the health sector, but has also faced scepticism, indifference, and sometimes hostility from managers and practitioners at a local level. This negative reaction was framed variously as due to competing priorities and stretched resources, with a consequent hesitance to take on “new” work, a stated lack of understanding as to how domestic abuse is a health issue, or difficulty with the “limited” nature of the program (i.e., its gendered nature). This reaction confirms Mackay’s (2010) warning that, despite the progress in addressing domestic abuse in Scotland, the issue is not yet “fully institutionalised or routinised as a mainstream policy area.” The gains and progress made in Scotland are at once enormous and fragile.

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A.  Secondary Prevention A key element of the secondary prevention approach undertaken in Scotland is change work conducted with perpetrators of domestic abuse. As with other areas of work on domestic abuse, Scotland was a pioneer. CHANGE, founded in 1989, and the Lothian (now Edinburgh) Domestic Violence Probation Project, founded in 1990, were the first criminal justice–based men’s programs in Europe. This pioneering work continued when, in January 2004, the then Scottish Executive Justice Department sought to develop an accredited standard intervention that could work throughout Scotland. The resulting Caledonian System is an integrated program that works with both perpetrators and their partners. The men’s program, which works with men over 16 years of age who have been convicted of offenses involving domestic abuse, uses a combination of counseling approaches such as person-centred and cognitive behavioral techniques to encourage men to take responsibility for themselves, their abuse, and their relationships with their ex/partners and children, whereas the women’s program is focused on safety and support. The model is robust, holistic, and evidence driven, yet it is only addressing the tip of a very big iceberg; only a small proportion of perpetrators will ever make it onto such a program because many never come to the attention of the criminal justice system. For those who do, debate still remains about the effectiveness of such programs (Dobash et al., 2000; Gondolf, 2002). V II. C O N C LU S I O N

In September 2014, the people of Scotland decided by a majority of fifty five percent to forty five per cent that they wished to remain a devolved part of the United Kingdom rather than an independent nation. History suggests that this is a new beginning rather than an end. Previous substantial government reorganization has proved to be a springboard for significant change in relation to domestic abuse, gender equality, and gender representation. Devolution, in particular, opened up opportunities to promote a gendered analysis of domestic abuse, which had a noteworthy impact on policy and practice and which has set Scotland apart from other jurisdictions within the United Kingdom. For example, unlike in other areas, there has not been large-scale pressure on the refuge network to open up their services to men. Furthermore, prevention work undertaken in Scotland seeks to reduce the gender inequality that is seen as causing domestic abuse, whereas in Wales, for example, with its gender neutral definition and framing of domestic violence as a criminal justice issue, prevention work primarily focuses on reducing crime (Charles & Mackay, 2013). These differences can, in part, be attributed to the strength and influence of the women’s movement in Scottish political activism and civic life prior to devolution. It can also partly be explained by the active lobbying of ministers and parliamentarians, effective engagement with the Government’s legislative and policy consultation program, including giving evidence to parliamentary committees, and the strategic interventions of feminist parliamentarians and ministers who drove policy

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post devolution. As a result, Scotland has been identified as an exemplar for its approach. Writing in 2007 Coy et. al. argued that Scotland should be: recognised as a benchmark with respect to its strategic approach, its recognition that violence is the cause and consequence of women’s inequality and its commitment to enhancing capacity and diversity of provision. (Coy et al., 2007, p. 6) Yet despite this praise, and the enormous achievements and developments outlined previously, the progress remains “fragile.” The gender analysis remains contested and initiatives often do not have the impact they might, as they are driven in pockets by champions as opposed to being adopted unanimously or deeply embedded in organizational response. Scotland’s next step must be to find a way to expand the support base of its lauded approach. If history repeats itself, the independence vote and the widespread political engagement it engendered still offer that opportunity, irrespective of the outcome of the vote. Discussions led by the women’s movement in the lead up to the referendum, most notably Women For Independence (a coalition of women who supported Scottish independence) and Engender (a voluntary organization with a focus on addressing women’s inequality), focused on what an equal Scotland might look like and what needs to be done to achieve it. Inevitably, domestic abuse ran as a thread through these discussions. The enthusiasm and engagement generated by these discussions will not go away: the genie is out of the bottle. Irrespective of the outcome, these discussions, which engaged women, prompted them to ensure that their voices were heard, and encouraged them to plan for the more equal future of their country, will not be wasted. The momentum must be harnessed by the women’s movement to continue its work and ensure that Scotland, independent or not, remains a trailblazer in domestic abuse responses.

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Alternative U.S. Responses to Intimate Partner Violence D O N N A C O K E R A N D A H J A N É D .   M A C Q U O I D   ■

I.  I N T R O D U CT I O N

The dominant U.S. response to intimate partner violence (IPV) is separation-focused (Mahoney, 1991), law-focused (Goodmark, 2012), and in particular, criminal law–focused (D. Coker, 2001). Further, the response is based on the assumption that there is a universal experience of IPV, failing to recognize the ways in which structural inequalities increase risks and frame responses. As Leigh Goodmark (this volume) describes, the dominant U.S.  response to IPV is problematic—not only for the countries to which it is exported, but in the U.S. context as well. The law- and crime-centric responses that characterize U.S.  policy fail to address the structural inequalities that create and maintain IPV (Goodmark, this volume), and increase state control of people who are structurally vulnerable to state control—poor women and men, particularly women and men of color; lesbian, gay, bisexual, and transgender (LGBT) individuals; and undocumented immigrants (D. Coker, 2001). The United States’ response is “separation-focused” in that what is expected (hoped for) of victims of IPV is to permanently separate from an abusive partner. Separation is often seen as an act of individual will rather than the result of a complex interaction of social, cultural, and financial forces. Separation carries risk, most obviously the risk of increased violence (Mahoney, 1991), but also the risk of losing social supports. As scholar and activist Mimi Kim (2006) notes, for members of oppressed communities, “[l]‌eaving violent contexts may also expose [individuals] to new vulnerabilities, some of which may in the long run be less safe [than the violent homes they left], i.e., poverty, racism, exposure to deportation, religious persecution, language barriers, cultural barriers, homophobia, [and] transphobia” (p.  48). Furthermore, as described by Martha Mahoney (1991), the importance attached to separation encourages decision makers to view “failure” to separate as an indicator of a victim’s pathology, making invisible acts of resistance that do not appear to be separation (Mahoney, 1991).

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The dominant U.S. response is “crime-centered.” More than 50 percent of federal Violence Against Women Act funding (the largest single appropriation dedicated to IPV prevention and response), goes to support law enforcement–related activities—much of it to train police and prosecutors (Bettinger-Lopez et al., 2012). Many of the law reform efforts in recent years have sought to increase criminal sanctions for IPV (D. Coker, 2001) and much of the popular discourse and advocacy has been grounded in crime-control rhetoric and methods. Representative of this over-focus on the criminal justice system are mandatory policies that require police to arrest and prosecutors to prosecute, regardless of the wishes of the victim (Goodmark, 2012). Feminists who supported mandatory criminal policies did so primarily as a means to ensure that police would respond to calls for assistance (Miccio, 2005). They believed that as “insiders” they could play a moderating role within criminal justice institutions to soften the harmful effects of mandatory policies (D. Coker, 2001). Now, years after the introduction of mandatory criminal policies, the reality too often is that domestic violence legal interventions become another tool of state control of poor men and women (D. Coker, 2001; Goodmark, 2012; Roberts, 2012). Furthermore, understanding IPV primarily as a criminal justice problem focuses attention on individual moral culpability and deflects attention from the importance of state violence and state policies that create and deepen structural inequalities that help to create and maintain IPV (Gruber,2014; Roberts, 2012; Smith, 2010). Hyper-surveillance in poor, urban communities of color, coupled with racial discrimination at every level of criminal processing, creates hyper-incarceration (D. Coker, 2003). Mandatory crime policies that result in hyper-incarceration (Cooper, 2011) create the kind of neighborhood disorganization (Fagan et al., 2004; Meares, 1998)  that research demonstrates is strongly correlated with increased rates of male-on-female IPV (Benson & Fox, 2004). The result of hyper-surveillance and hyper-incarceration is that, for a significant number of women of color who reside in low-income neighborhoods, any interaction with the police can result in unwanted criminal justice attention and other forms of state control (D. Coker, 2001). Government economic policies create unstable employment; unstable male employment is tied to a twofold increase in male perpetrated IPV against female partners (Benson & Fox, 2004). The threat of child removal from mothers who experience IPV frequently follows police intervention, becoming an additional reason women of color—who are disproportionately targeted for child welfare intervention (Roberts, 2012)—do not seek formal assistance (D. Coker, 2001). Race and anti-LGBT discrimination in criminal justice enforcement, housing, employment, and education, similarly fosters the conditions of poverty and inequality that sustain IPV (Roberts, 2012). The dominant responses to IPV are frequently grounded in the assumption that there is a universal risk for and experience of battering, “regardless of race, class, or sexual orientation” (Kanuha, 1996, p.  40). This perspective erases differences in social positions and in risk for IPV (Kanuha, 1996; Richie, 2012). By lumping all abused women together, or all IPV victims together, claims for redistribution of power or resources within the group are mitigated (Kanuha, 1996). The resulting social construction of the paradigmatic victim of IPV, for whom services are designed and policies are enacted, is female, heterosexual, “innocent” (i.e., perceived as blameless for her abuse), white (Goodmark, 2012), and passive (Schneider, 2002).

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This description of dominant U.S. responses may hide, however, the many programs and activists who are laboring to provide alternative responses and responses that moderate some of the harms of the dominant approach. We describe a number of these programs and organizations (for additional overviews of U.S.  alternatives including a human rights framework, see Goodmark, 2012; Ptacek, 2010; Bettinger-Lopez, 2008). Restorative justice (RJ) and transformative justice (TJ) programs offer alternatives to punitive policies. Transformative justice offers an alternative to state-based and crime-centric responses, and both RJ and TJ provide support that is not separation-focused. Critical treatment programs raise consciousness about the interlocking nature of systems of oppression (of race/class/gender/ heterosexism) not only to bring about personal change, but also to foment collective action for social change. Bystander education programs, programs that organize men to oppose violence against women, and critical treatment programs seek to redefine masculinities in opposition to gender hierarchies. Grassroots organizing strategies are similarly directed at changing the structural inequalities that create and maintain IPV. II. R ESTO R AT I V E J U ST I C E A N D N AVA J O PE AC EM A K I N G

Restorative justice has received the greatest scholarly attention among the “alternatives” discussed in this chapter (for more comprehensive discussions of the use of RJ in cases of IPV, see Ptacek, 2005, 2010; Strang & Braithwaite, 2002). Restorative justice practices are widely used in a number of countries, particularly (but not exclusively) in cases involving youth offenders (Daly & Nancarrow, 2010). Most RJ programs are adjuncts to the criminal justice system, serving either as diversion or as methods of determining sentencing (Pennell & Kim, 2010). The RJ umbrella covers a number of different processes, but the models most often used in IPV cases are conferencing and somewhat similar indigenous justice models. While there is no single RJ ideology, a set of common beliefs form the basis for the RJ conferencing models:  1)  punitive negative shaming does little to rehabilitate offenders and seldom meets the needs of victims (Braithwaite, 2000); 2) offenders’ supporters (e.g., friends, mentors, family) have the power to encourage offenders to recognize and take responsibility for the harms they have caused; 3) the process results in increased social supports for victims and offers victims the opportunity to confront offenders directly with the harms of their conduct; 4) supporters of the victim and the offender, together with the victim, can develop an action plan that allows offenders to admit responsibility for their conduct and make amends to the victim. Proponents of using RJ in IPV cases argue that RJ allows family and friends to provide the victim with moral support and to confront the person who did harm with the consequences of his or her abuse, while offering social support for change (D. Coker, 2006). When coupled with rehabilitative measures (e.g., alcohol or drug treatment, psychosocial counseling, parenting classes), the result can be changes in the abuser’s worldview and a reduction in his use of violence and domination. Even when there are no significant changes in the behavior of the abuser, the validation for the victim that his or her “suffering is real and undeserved” can be important (D. Coker, 2006, p. 68).

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A.  Family Group Decision Making Conference in the Child Welfare Context The family group decision making conference (FGDC) program initiated by Joan Pennell addresses the frequent co-occurrence of IPV with child abuse and neglect. Child welfare authorities have frequently blamed the abused mother for her “failure” to protect a child from her violent partner’s abuse or for her “failure” to successfully leave an abusive relationship. The FGDC intervenes in these cases to provide support for abused parents as well as abused and neglected children. Family group decision making conference programs have proved successful in the United States and Canada (Pennell & Francis, 2005). Families are referred to FGDC from the government child welfare department. The purpose of the conference is to expand the “community of concern” so as to encourage the broader family to work together to protect children and adults who are abused (Pennell & Kim, 2010). Adult survivors are assisted with confidential safety planning and services before the conferencing session. If the survivor prefers not to be in the same room with the abusive parent, the abusive parent may join the meeting by phone or there may be separate meetings. Domestic violence advocates and other supporters, including therapists, may attend the meeting, providing additional support for survivors. The final plan for the child’s placement and care is shared with the group, but safety measures for the survivor are kept confidential (Pennell & Kim, 2010). At the conference, the coordinator welcomes everyone and initiates a ritual culturally appropriate for the group (e.g., a Christian prayer). The coordinator discusses the ground rules and the child welfare social worker sets out the state’s concerns and the issues that must be addressed in a plan. The professionals then leave the room for the family to determine a plan, which must be approved by the state child protection agency. Families who participate in FGDC demonstrate a reduction in indicators of child maltreatment and domestic violence (Pennell & Burford, 2002, p. 110). Pennell’s FGDC model is different from many conferencing models in its feminist orientation, the services and support afforded IPV victims both before and after the conferencing session, and the significant consultation with anti–domestic violence community organizations and service agencies in the program’s development. As James Ptacek (2010) notes, in this model the RJ intervention is “a starting point, a gateway to support, therapy, and economic resources, rather than an endpoint” (p. 283). B.  Navajo Peacemaking The Navajo Nation Domestic Abuse Protection Act specifically provides that domestic violence protection order petitioners have the option of being referred to Navajo Peacemaking (Domestic Abuse Protection Act). While Peacemaking has a superficial similarity with family group conferencing, its theoretical roots and practices are quite distinct. The Peacemaking Program was initiated by the Navajo judiciary, who wished “to find an alternative to Anglo-American judicial methods that had roots in Navajo common law, and which could pull in Diné [Navajo] wisdom, methods and custom in resolving disputes” (Navajo Courts, 2012). Cases are referred to Peacemaking from social services agencies to resolve issues regarding juvenile

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misconduct and child neglect/abuse; from criminal courts to make alternative sentencing recommendations (in IPV cases as well as others); and from self-referrals. Peacemaking is grounded in traditional Navajo stories and cosmology. The Navajo journey narrative relates the story of the twins-monster slayers, sons of Changing Woman, who killed all but seven of the naayéé’ (monsters) who plagued the people (Navajo Courts, 2012, p. 7). Naayéé’ is anything that “prevents a person from living a full life” (Navajo Courts, 2012, p. 7), including obsession, jealousy, depression, or addiction (D. Coker, 2006). The purpose of Peacemaking is to bring a person (or relations between people) from chaos to hózhh̨ ó—harmony, balance. Peacemaking sessions may include both family and community members. The authors of the Peacemaking Program’s Plan of Operations (Navajo Courts, 2012)  argue that community involvement in containing and changing IPV patterns is particularly important in the Navajo Nation, given the number of isolated rural communities and the inadequate numbers of police. This context may make Peacemaking more effective than domestic violence protection orders: “[t]‌he issuance of a restraining order, without involvement and investment of a rural and isolated community, and without police presence, may escalate violence” (Navajo Courts, 2012, p. 28). Peacemakers play an active and forceful role in the Peacemaking process. “ ‘Peacemaker’ is a loose and inaccurate translation of hózh̨ ǫ́ ǫ́ jí naat’áanii which more precisely means a combination of leader, teacher and healer” (Navajo Courts, 2012, p.  9). The Peacemaker “educates, scolds, persuades, pleads and cajoles the individual or group towards a readiness to open up, listen, share, and make decisions” (Navajo Courts, 2012, p. 9). A particularly distinctive feature of Peacemaking is that individuals may initiate Peacemaking on their own, though they cannot compel the participation of other parties (Navajo Courts, 2012, p. 37). In these self-referred cases (and perhaps in others), there is no requirement that a party admit to having engaged in the alleged violent conduct. This may allow for a more fluid understanding of “the problem” than is the case in most RJ processes, where a requirement for entry is that the alleged perpetrator admit responsibility for the abusive behavior (D. Coker, 2006). Indeed, the Peacemaking Plan of Operations notes that “Navajo common law does not label individuals ‘offender’ and ‘victim,’ or as wrongdoer and harmed party. There is the sense that all who are embroiled in hóóchx̨ o’/anáhóót’i’ [chaos] possess some qualities of causing the offense or being the victim” (Navajo Courts, p. 12). With this kind of flexibility, the orientation and skills of the Peacemaker become particularly critical to avoid victim-blaming (D. Coker, 2006). C.  An Unusual Restorative Justice Sentencing Case With the exception of Peacemaking, RJ processes are rarely used in the United States to make sentencing recommendations in IPV cases (compare with sentencing circles in Canada and elsewhere, see Goel, 2010). The following case is a rare exception, and rarer still because it is a homicide case. Conor McBride, a 19-year-old male, shot and killed his girlfriend, Ann Margaret Grosmaire (baliga, 2012). Conor turned himself into the police and admitted the killing. Informed by their deep religious faith, Ann’s parents did not want Conor to spend his life

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behind bars. Ann’s father summarized their position:  “If God forgives us, how can we not forgive Conor?” (baliga, 2012, p. 23). The couple asked sujatha baliga, director of the RJ program of The National Council on Crime and Delinquency, to assist them in finding an RJ resolution. Baliga convinced a skeptical prosecutor to involve RJ in his pre-plea conference with Conor. The parents and baliga hoped that the recommendations they reached in the RJ dialogue would guide the terms the prosecutor eventually offered Conor in a plea deal. Holding the RJ dialogue in a plea conference ensured that everything said would be privileged and therefore nothing Conor said could be used against him in a later proceeding (baliga, 2012). The conference included the Grosmaire family, the McBride family, the prosecutor, the defense lawyer, and the Grosmaires’ priest, Reverend Mike Foley. Baliga felt it was essential that Ann be “present” in the conference, so she arranged some of Ann’s belongings in the center of the room. Father Foley opened with a prayer. After baliga set out the rules, the prosecutor read aloud the charges and summaries of the police reports. Ann’s parents described Ann’s childhood, adolescence, and their hopes for a future that could now never be realized. When they finished, the group listened to Ann’s favorite hymn (baliga, 2012). Conor then recounted the details of what happened on the day of the shooting. When it came time to discuss what sentence they believed to be appropriate, both couples were clear that they did not want Conor to spend his life in prison. Differing periods of incarceration followed by mandatory community service work, anger management treatment, and domestic violence counseling were suggested. By prior agreement, the prosecutor took their recommendations under advisement and made the plea offer some days later. In the end, the prosecutor offered a 20-year plea—a sentence much in excess of what either set of parents had hoped for, but one far less than would have been the case had no RJ process occurred. The Grosmaires felt that the RJ process allowed them to reach a level of forgiveness and peace that would have been otherwise unobtainable (Tullis, 2013). Conor believed that the forgiveness granted him by the Grosmaires allowed him to “accept . . . responsibility and not be condemned” (Tullis, 2013, “In March the” section, para. 3). Baliga concludes that on the day of the RJ session, “those jail walls . . . [cracked], not from the sorrow and heartache, but from the honesty, bravery, and willingness to try something our criminal justice system rarely sees: including victims in deciding what happens to the people who did them unthinkable harm, and a chance for their wrongdoers to begin to try to repair the irreparable before the case ever reaches the courthouse doors” (baliga, 2012, p. 64). D. Post-conviction Models A number of RJ post-conviction programs address IPV cases. These programs may include face-to-face meetings between perpetrators and victims or may instead employ surrogates (see Domestic Violence Safe Dialogue, 2015). Susan Miller (2011) describes the in-prison RJ program, Victims’ Voices Heard, which facilitates face-to-face encounters between victims and perpetrators. The sessions occur only after an RJ coordinator has done a great deal of preparation work with both the offender and the victim. One survivor of her husband’s rape said of the RJ dialogue in which she participated, “[I feel] more confident, . . . more able to stand up

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for my children and myself. I discovered that I am truly much stronger than I ever was before. . . . Thanks to my [RJ] dialogue, I have closed the door on my past and can finally look toward the future with optimism… .” (Miller, 2011, p.  82). Her ex-husband (the offender) reported that he felt at peace with the knowledge that he had done something positive for his ex-wife. He also noted that he believed that many of his fellow prisoners are very angry, and while RJ “is for the victim, you have a lot of people [in prison] . . . that really, really want to be able to ask for forgiveness about their crime. We need to help the victim to heal. But offenders, we need to be healed” (Miller, 2011, p. 80). III. T R A N S FO R M AT I V E J U ST I C E /C O M M U N I T Y AC C O U N TA B I L I T Y

Transformative justice, also referred to as “community accountability,” is a set of responses that are “outside of the state” (Pennell & Kim, 2010, p. 178). The TJ umbrella of processes is focused on increasing a community’s capacity to address gender violence within the community (Toolkit, 2015; for a general discussion of TJ models see, Generation Five [2007]; Creative Interventions [Toolkit,  2015]; INCITE! [2014]). Transformative justice differs from “community education” models that teach individuals to identify IPV, but encourage them to rely on professionals—for example, police and social service providers—to intervene. Though RJ and TJ share a focus on the community’s capacity to respond to violence, the theoretical underpinnings for the two projects are significantly different. Transformative justice is grounded in a theory of the state “not simply as flawed in its ability to redress violence, but as a primary perpetrator of violence against women” (Smith, 2010, p. 261). As scholar and activist Andrea Smith (2010) argues, RJ and other reforms to the criminal justice system “likely . . . further strengthen the criminal justice apparatus, particularly in communities of color . . . . [and] take [attention] . . . away from considering grassroots, political organizing strategies that have the potential to address the root causes of violence” (p. 266). Transformative justice increases the capacity of communities to intervene effectively to prevent and respond to IPV. One example of the “capacity building” aspect of TJ is the Story Telling and Organizing Project (STOP) initiated by Creative Interventions. STOP “collected and documented community accountability stories, presenting them as alternative sources of knowledge to inform communities about what people did, how they carried out interventions, and the lessons they provided” (Kim, 2011–2012, p. 18). As Mimi Kim (2011–2012), founder of Creative Interventions notes, “[t]‌he stories of STOP reverse the dominant paradigm [of reliance on an ‘increasingly bureaucratized movement’] by privileging stories of violence intervention carried out within the spheres of home, family, friendships, work, and community” (p. 18). Transformative justice responses also include community-based models, tools, and programs to address specific instances of gender violence (INCITE!, 2014). Creative Interventions, for example, in collaboration with four other immigrant-based domestic violence and sexual assault programs, developed the Community-Based Intervention Project. The project incorporated community organizing tools, including recruiting allies, recognizing that “people may be

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mobilized to work together to end violence without necessarily sharing [Creative Interventions’] radical antiviolence politics or that of other groups working on community accountability or transformative justice” (Kim, 2011–2012, p.  22). Similar to RJ, the Community-Based Intervention Project envisioned a facilitated model. Unlike a number of therapeutic and some RJ programs, however, the facilitators need not be professionals, but rather should be “trusted individuals from [the] community . . . [who] are familiar with the parties . . . and understand the dynamics of violence in its cultural context, [but are] far enough removed from the crisis . . . to be able to provide stability and consistency over time” (Kim, 2011–2012, p.  22). To facilitate community involvement, Creative Interventions developed the Creative Interventions Toolkit:  A  Practical Guide to Stop Interpersonal Violence (Toolkit, 2015), which provides a thorough and thoughtful guide to building TJ responses. Creative Interventions and other TJ projects bring together groups of individuals, referred to by some organizations as “collectives” (Generation FIVE, 2007), to work on a particular circumstance of violence. First, the group assesses the potential risks a response poses for both the victim and members of the collective. An assessment may lead to the creation of an emergency safety plan for the survivor, for members of the collective and allies, and for the person who committed violence (Generation FIVE, 2007; Kim, 2006). A second step, “naming” or “getting clear,” occurs when participants clarify what they know about the violence, reviewing the level, risk, and danger associated with it; the resources available; what additional information is needed; and what next steps are necessary. The act of naming can make harms visible and break the silence that surrounds abuse (Generation FIVE, 2007). The TJ understanding of “accountability” includes not only the responsibility of the person who harmed another, but of the relevant communities that failed to prevent or that promoted the harm. Community members may deny that abuse occurs in their community, blame the victim for causing the abuse, or believe that other issues are bigger priorities than gender violence. But community members may also offer “multiple forms of safety: emotional safety; material resources; security of home and family; shared language, culture, history and religion; [and] sense of belonging” (Kim, 2006, p. 48). Intimate partner violence programs have too often seen communities only as obstacles to preventing and responding to IPV (Munshi, Nancherla, & Jayasinghe, 2015), rather than as possessing cultural resources that can be pushed or leveraged toward a better response. For a number of TJ projects, accountability involves reaching an agreement, the substance of which may look similar to those created in RJ programs: rehabilitative measures for the person who used violence (e.g., drug or alcohol treatment); protection measures to ensure that others are not put at risk (e.g., exclusion from particular types of work or particular venues); engaging friends, family, and co-workers of the person who used violence to monitor his or her actions and to encourage change; public apologies to the survivor; and reparations to the survivor (e.g., paying for medical or counseling bills). The plan must “recognize the humanity of everyone involved,” including the person who committed abuse (Bierria et al., 2011, p. 64). Healing extends to communities, persons who have committed abuse, and those who have been harmed.

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I V. C R I T I CA L A PPR OAC H ES TO T R E AT M EN T

“Culturally competent” programming is frequently little more than an “add-on” to a program intended for the dominant group (Almeida & Dolan-Del Vecchio, 1999, p. 654). There are, however, programs that go well beyond this cramped notion of cultural competence to incorporate a critical approach to treatment. These programs share a recognition of the oppression suffered by men of color and reimagine non-oppressive masculinities by drawing from cultural resources, frequently in opposition to Western colonizing gender norms (Carrillo & Tello, 2008). In this way, “[m]‌en of color who batter . . . [can become] . . . allies in the transformation of the toxic social conditions fueling their violence” (Aldarando & Castro-Fernandez, 2008, p.  29). (For a comprehensive review of similar programs, see Carrillo & Tello, 2008.) A.  Men Stopping Violence Men Stopping Violence (MSV) (Douglas, Nuriddin, & Perry, 2008) is both a batterer’s treatment program primarily for African-American men and a larger community project. The community project includes an internship program in which volunteers mentor young men in work against violence against women and the Because We Have Daughters program, which strengthens relationships between fathers and daughters. Men Stopping Violence’s treatment program is an intentionally race-aware program, grounded in the belief that “African-American males’ . . . brand of sexism has been shaped by racism… .” (Douglas et al., 2008, p. 7), therefore “their struggles as victims of racism . . . [and] [t]‌he oppressive nature of the criminal-legal system must be named” before they can address sexism (Douglas et al., 2008, p. 22). The treatment program is explicitly intersectional—placing racism and sexism “in the broader context of oppression, those restrictions and assaults on humanity suffered because of not only race and gender, but because of class, sexual orientation, age, education level, country of origin, language barriers, and many, many other identifiers” (Douglas et al., 2008, p. 136). B.  Cultural Context Model The Institute for Family Services Cultural Context Model (Almeida & Dolan-Delvecchio, 1999)  includes work with voluntary and court-ordered Asian Indian-American men who abuse family members or intimate partners. Similar to the work of MSV, the Cultural Context Model is founded on the belief that “it is essential to dismantle the power dynamics connected to gender in a way that does not simultaneously obscure and thereby collaborate with related systems of institutional oppression, such as racism and heterosexism” (Almeida & Dolan-Delvecchio, 1999, p. 657). Each client of the program is given a sponsor of the same sex whose job it is to “connect the client to the collective experience of his or her gender, racial, and cultural group” (Almeida & Dolan-Delvecchio, 1999, p. 669). Through discussions of

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movie clips, men in all-male “culture groups” are encouraged to think about how differences of race and class affect the choices of the women experiencing abuse who are depicted in the films. The groups also encourage men to relate their own experiences of racism and classism to the issues of gender subordination (Almeida & Dolan-Delvecchio, 1999). The program provides men who were abusive with the opportunity to make amends and acknowledge their responsibility for causing great harm to their families, reinforces survivors’ sense of dignity and moral worth, and works to transform gender norms within the men’s culture group by linking the struggle for gender equality with the struggles for racial and economic justice. The program provides support for women who experienced abuse without requiring that they choose between their cultural identity and group membership and their safety and autonomy (Almeida & Dolan-Delvecchio, 1999). V.  BYSTA N D ER ED U CAT I O N

Bystander prevention programs have become particularly important in school and college campus settings. Bystander education creates greater awareness regarding sexual and intimate partner violence and teaches bystanders to identify warning signs of potential violence and to effectively and safely intervene to prevent violence from occurring (A. Coker et al., 2011). Some bystander programs include a broader focus on changing sexist and homophobic attitudes that promote gender violence. Others are singularly focused on prevention of violence in an immediate circumstance based on the premise “that bystanders can make positive behavioral interventions regardless of their adherence to historical myths related to [sexual assault or dating violence]” (A. Coker et al, 2011, p. 15). A number of factors hinder bystander intervention (A. Coker et al., 2011). The more people who are aware of a violent or potentially violent circumstance, the less likely any one individual is to intervene. People are reluctant to intervene because they are afraid of looking foolish. They look to social cues from others to assess whether or not a situation poses a serious threat that requires intervention (A. Coker et al., 2011). The decision to intervene is also affected by the degree to which bystanders believe the victim bears some responsibility for the violence (Baynard, Moynihan, & Plate, 2007). Effective bystander education intervention addresses these reasons for non-intervention and exploits the power of peer relationships to spread a culture of intervention. Studies of the efficacy of bystander education demonstrate positive effects on participants: decreased rape myth acceptance; increased knowledge of sexual and intimate partner violence; increased self-reported bystander intervention behavior; and improvements in participant’s belief that they can intervene successfully (Banyard, Moynihan, & Plate, 2007; Cissner, 2009; A. Coker et al., 2011). A. Green Dot Green Dot, a campus-based bystander education program, proceeds in two phases (A. Coker et al., 2011; Green Dot etc., 2010). Phase One is a 50-minute motivational

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speech given to a significant percentage of a student body, faculty, and school leaders (A. Coker et al., 2011). The speech teaches students about the frequency of sexual and dating violence, introduces the idea of bystander intervention, and persuasively recruits students to engage in preventing violence. Red dots are drawn on a wipe board. They represent “choices, words, attitudes that contribute to, or tolerate violence” (Green Dot, etc. 2010). The solution to red dots is green dots. Green dots are those moments when an individual acts to prevent violence, to demonstrate his or her opposition to violence, or to support a victim of violence. The speaker tells students that there are many red dots on campus, but they can turn those dots to green. Phase Two is a training series entitled Students Educating and Empowering to Develop Safety (SEEDS). Research regarding the diffusion of knowledge demonstrates that new ideas are spread throughout well-defined communities when 15 percent of peer opinion leaders are engaged (A. Coker et al., 2011). Thus, although SEEDS is open to anyone, organizers actively recruit students who are leaders in various campus communities (A. Coker et al., 2011). Students in the SEEDS program meet in small groups. The curriculum includes an overview of violence against women, discussions of the roles of a bystander, and skill-building opportunities. Students are trained in the research on why bystanders fail to intervene. The theory is that if students understand the ways in which peer pressure and other factors lessen the likelihood they will intervene, they can overcome those factors (A. Coker et al., 2011). B.  Mentors in Violence Prevention Program Created by Northeastern University’s Center for the Study of Sport in Society, Mentors in Violence Prevention Program (MVP) is one of the most frequently implemented bystander approaches. The MVP defines “gender violence” on “a continuum of violent and controlling behaviors based on one’s gender” that includes physical violence; sex without affirmative consent; aggressive acts, intimidation, or hostility; and hate crimes committed against people for reasons of gender or sexual orientation (Cissner, 2009, p. 5). The MVP is focused on broad cultural change: “to raise awareness about all the ways men abuse women; to challenge mainstream messages relating to gendered abuse; to create an environment that nurtures dialogue between genders; to empower participants to lead concrete change in their lives and communities” (Cissner, 2009, p. 5). The Syracuse University MVP program illustrates the MVP approach (Cissner, 2009). The program included five units: gender roles; types of abuse; alcohol and consent; harassment; and homophobia (Cissner, 2009, p. 32). The program was focused on changing attitudes that support gender subordination as a means to encourage bystander intervention. For example, each section began with a mixedgender group, followed by a single-gender group, in which students were asked if they agreed, disagreed, or were unsure of their response to various statements. The following statement discussed in the section on homophobia provides an example: “It is okay to call a guy a fag or a girl a dyke if you don’t really mean it” (Cissner, 2009, p. 35). The purpose of these exercises is to “encourage students to think critically about their own beliefs and to consider the beliefs of their peers” (Cissner, 2009, p. 32).

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V I. O R G A N IZI N G

A.  Organizing Men to Oppose Violence Against Women Programs such as A Call to Men and Men Can Stop Rape organize men and boys to oppose violence against women and girls. A Call to Men believes that “preventing domestic and sexual violence is primarily the responsibility of men.” Men must “challenge the social norms that keep [men] locked in the ‘Man Box’ ”: the rules of gender conformity that require men to believe that “they should be strong, they should lead, and . . . they should be in charge” (A Call to Men,2015). Similarly, Men Can Stop Rape sponsors the Healthy Masculinity Action Project, a “national initiative designed to raise the visibility of healthy masculinity and build a new generation of male leaders across the country who model non-violent, emotionally healthy masculinity, serving as positive change-makers in society” (Men Can Stop Rape, 2011). B.  Intersectional Organizing: Women of Color, Low Wage Workers, Survivors INCITE! Women of Color Against Violence is a “nationwide network of radical feminists of color working to end violence against women, gender non-conforming, and trans people of color, and our communities” (INCITE!, 2014). INCITE! members have held several national conferences, developed working movement documents, and published two books. INCITE! chapters across the country are engaged in local organizing work and collaboration on national concerns. Recognizing that criminalization is a tool of racist oppression, INCITE! activists argue for prison abolition and for community accountability programs such as the Transformative Justice models described in the preceding pages. Local organizing movements have similarly developed all over the country. The Miami Workers Center Sisterhood of Survivors (S.O.S.) in Miami, Florida, is a grassroots membership organization composed of survivors of domestic violence, sexual assault, and domestic worker exploitation (Olivo, 2015). The S.O.S.  was formed by Marcia Olivo and Nilu Choudhury, both of whom came from backgrounds in community organizing as well as social services. They recognized that survivors had no “seat at the table” when decisions were being made about policies and services in Miami-Dade county that affected their well-being. The S.O.S. is engaged in state legislative fights and in changing the local service responses to gender violence. V II. C O N C LU S I O N

There is a growing awareness among U.S. activists and service providers of the limitations of a crime-centered approach to IPV and a growing movement to change the dominant responses. The organizations we describe in this chapter represent only a fraction of the diverse exciting work that is a part of this movement.

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AC K N OW L ED G M EN TS

The authors wish to thank Nicole Downing, Ravika Rameshwar, Emma Singer, and Robin Schard for their invaluable research assistance. Ahjane is grateful to Patrick Macquoid for his unwavering support.

NOTES

Chapter 2 1. For a full discussion see the 2013 report of the United Nations Special Rapporteur on Violence against Women A/HRC/23/49 2. See A/RES/64/137, A/RES/65/187, A/HRC/RES/14/12 3. This section does not claim to reflect the exact situation in each country in the region. The analysis is based on desk research and inputs from participants during and after the regional workshops. 4. The consultations were attended by experts from Angola, Botswana, Burundi, Cameroon, Democratic Republic of Congo, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Nigeria, Rwanda, South Africa, Swaziland, Uganda, United republic of Tanzania (including Island of Zanzibar), Zambia, and Zimbabwe. 5. This information is based on a report prepared by a consultant. The countries reviewed include Algeria, Saudi Arabia, Bahrain, Djibouti, Egypt, United Arab Emirates, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Mauritania, Oman, Palestine, Qatar, Syria, Tunisia, and Yemen. 6. The consultation was attended by experts from Fiji, Tonga, Samoa, Kiribati, Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), the Cook Islands, and Vanuatu. 7. The consultation was attended by experts from Estonia, Lithuania, Latvia, Ukraine, Moldova, Bulgaria, Slovenia, Montenegro, Croatia, Serbia, Bosnia and Herzegovina, FYR Macedonia, and Kosovo. Chapter 3 1. In this chapter I use the terms “family violence” and “domestic violence” because when they are translated, they are translated into the same words in Chinese. 2. The term “intimate partner violence” is not used in laws or policy in China to describe violence against women. The terms used roughly translate as domestic violence and family violence. 3. This is the similar to the Civil Procedure Code in the United States. Chapter 5 1. This chapter draws heavily from a document coauthored by this chapter’s coauthor Shalhoub-Kevorkian—United Nations Women (2014). Access denied: Palestinian women’s access to justice in the occupied West Bank.

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2. There is a lesbian, bisexual, transgender, intersex, questioning, and queer Palestinian women’s group in Israel known as Aswat. See http://www.aswatgroup. org/en/content/who-we-are. 3. Selected provisions of this law pertaining to women can be found at the Corpus of Laws website:  art. 340. http://corpus.learningpartnership.org/? s=article+340&Submit.x=-1088&Submit.y=-417&Submit=Go. 4. For more details, see:  http://www.haaretz.co.il/news/law/1.2028642. Retrieved September, 30, 2014.

Chapter 6 1. According to the Library of Congress, the following countries are considered to be part of sub-Saharan Africa: Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo (Brazzaville), Congo (Democratic Republic), Côte d’Ivoire, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gabon, The Gambia, Ghana, Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mauritius, Mozambique, Namibia, Niger, Nigeria, Réunion, Rwanda, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, Somalia, South Africa, Sudan, Swaziland, Tanzania, Togo, Uganda, Western Sahara, Zambia, Zimbabwe. Library of Congress (2014). 2. Other U.S.-based advocacy groups, notably those working on the elimination of the death penalty, have been more willing to use the international and regional human rights framework. See, e.g., the Death Penalty Information Center’s work, discussed at http://.deathpenaltyinfo.org. Chapter 8 1. This figure does not include suicides due to dowry-related harassment. 2. Compared with the United States, these rates are quite high. (A 2010 National Intimate Partner and Sexual Violence Survey estimated that 35.6% of U.S. women have faced intimate partner violence in their lifetime.) 3. Indian legislators sought specifically to preserve the value of dowry when it was to the bride’s benefit by converting it to streedhan, requiring that receivers of dowry assets other than the bride must transfer it to her hands within three months. 4. There are problems with this legislation, not the least of which is that both the giver and taker are penalized. As a result, many dowry-related crimes may go unreported because the bride’s parents do not want to be prosecuted themselves for giving the dowry. 5. If the home is large enough, they will all continue to live together until the parents pass away, at which point the property will pass to the sons. Such a system reinforces filial piety and promotes the growth of assets and conservation of resources. It also provides for strong family ties and helps to maintain conformity from one generation to the next. Today, some 20 percent to 30 percent of Indian families live in a joint family system. 6. This crime is separate from murder. A  prosecutor may choose to charge a dowry-related homicide under murder or under §304 B, depending upon the sufficiency of the evidence and other factors. 7. For instance, in one case the court opined “In the present case, the accused has failed to explain as to why he was in a hurry to cremate the deceased in the early

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morning of 24th January, within few hours [of death] The village of deceased’s parents was just 17­18kms far from the village of the accused but the reason as to why they were not informed about the incident on the same day and why the accused had not waited for them to come is not explained . . . . Therefore, the Trial Court rightly drew an inference that the accused­ appellants were guilty of the offence for which they were charged.” http://advocatemmmohan. wordpress.com/2013/07/19/section-106113-a113-b-of-evidence-act-498-a304-b-and-210-34-when-prosecution-proved-death-with-in-7-years-due-todowr y-harassment-the-burden-shift-on-accused-to-prove-his-innocenceelse-court/ 8. To overcome police bias, all-female police stations were opened. The hope was that women would feel much more comfortable talking to another woman about her problems, and that female officers would recognize the severity of the crime. (In fact, many female police officers counsel return and reconciliation, even in the face of violence.) 9. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home. Nearly one-fourth of those arrested under this provision in 2012 were women, that is, 47,951, which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6 percent out of the total persons arrested under the crimes committed under Indian Penal Code. (at http://dowrycasesindia.wordpress.com/)   National Crime Records Bureau, Ministry of Home Affairs for the period 2004 to 2006: Under Section 304-B IPC (Dowry death): No. of cases registered: 21,431; Under Section 498-A IPC (cruelty by husband or relatives of husband):  No. of cases registered: 179,568. 10. Sadly, when this case was decided, out of 30 sitting justices on the Supreme Court of India, only one is a woman, and she was not a party to this opinion. 11. Available at http://www.ngo-marg.org/publications/posters/

Chapter 9 1. Eamon de Valera was the first President of the Republic of Ireland. 2. The Dáil Éireann is the lower body of the Oireachtas, the Parliament. The upper body is the Seanad Éireann. The Dáil is akin to the U.S. House of Representatives and the U.K. House of Commons, whereas the Seanad is analogous to the U.S. Senate and the U.K. House of Lords. 3. Guardians of the Peace—the police in the Republic. Chapter 11 1. I use this term to refer generally to violence committed primarily against women, including intimate partner and sexual violence. Although intimate partner violence may include sexual violence, this chapter focuses on legal and policy frameworks addressing intimate partner violence. 2. This description is based on research materials available in English, complemented by conversations with Norwegian experts; consequently, original materials available only in Norwegian could not be reviewed by this author. 3. For a summary of legal and policy responses to gender violence in the United States see, for example, Sally F. Goldfarb, The Legal Response to Violence against Women

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in the United States of America:  Recent Reforms and Continuing Challenges, United Nations Office on Drugs and Crime, EGM/GPLVAW/2008/EP.06, 30 July 2008, http://www.un.org/womenwatch/daw/egm/vaw_legislation_2008/ expertpapers/EGMGPLVAW%20Paper%20(Sally%20Goldfarb).pdf; Special Rapporteur on Violence against Women, its causes and consequences, Mission to the United States of America, Hum. Rts. Council, ¶¶ 8-12, U.N. Doc. A/HRC/17/26/ Add.5.

Chapter 12 1. Official data however cannot provide a full analysis of the true extent of male violence against women, as it is both under-reported and under-recorded (Kelly 2005). Many women are prevented from seeking help (or retribution) because of the complexities of reporting men intrinsically (and powerfully) linked with their lives. As such, male violence is so “deeply embedded” in cultures that it is almost “invisible” (UNICEF, 1997: 41). Much of the violence also remains hidden or unreported because of reluctance to report for fear of being disbelieved or being doubly victimized by the criminal justice system, and also because of a lack of faith in the low rates of conviction (McMillan & Thomas, 2009). Statistics remain partial because of the process by which they are collated and the methods by which categories of violence are determined and defined. Discrepancies also arise from the use of conflicting definitions, methodologies, measurements, and contexts (Walby & Myhill, 2001). Some forms of abuse that women may experience are not labeled as “violence” by legal codes or frameworks and thus are not classified as crimes (see Kelly, 1988). 2. Devolution is a process by which government is decentralized. This meant that certain powers were devolved from the Westminster Government in London to the Scottish Government in Edinburgh. Since 1999 the Scottish Government has had responsibility for matters such as education, health, housing, and local government issues. However, certain matters are retained with Westminster such as immigration, and this means that in certain areas of violence against women work, it remains necessary to work across borders. 3. See National strategy to address domestic abuse in Scotland, 2000 and Preventing violence against women: Action across the Scottish Executive, 2001. 4. This early example of the close collaboration between academics, activists, and survivors remains an important strength of Scotland’s approach to domestic abuse and is evidenced in the Gender Based Violence Research Network, which brings together academics and practitioners to help ensure a robust evidence base on the nature of the problem and evidence-driven service responses. 5. This has since been amended to four to include “participation.”

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INDEX

Abbas, Mahmoud, 65 Aboriginal families, 137 abortion, 118, 147 abuse. See domestic abuse; sexual abuse Act Relating to Gender Equality (Norway), 146–47 Act Relating to the Municipal Crisis Centres Services (Norway), 145 adultery, 65 advocacy efforts with cell phone carriers, 82 in China, 42 to combat intimate partner violence, 76 on police officers, 74 related to health care, 83–84 in sub-Saharan Africa, 75, 78 in the United States, 78 Afghanistan, 11 African-American men, 177 African Commission, 76 Aldana, Raquel, 10 All China Women’s Federation, 31–32, 35, 39 al-Muntada Coalition, 61 Alsaker, K., 150, 152 AMAL Coalition to Combat Violence against Women, 67 American Bar Association, 4 American battered women’s movement, 115–16 American Medical Association, 83 anger management programs, 145 anti-domestic violence legislation, 31, 38 anti-dowry movement, 109–11 anti-dowry protests, 111

anti-violence advocates, 78 Appellate Courts, 62 Apprehended Domestic Violence Orders (ADVO), 128 Aristide, Jean-Bertrand, 44 arranged marriages, 103–4 ascendant relative, 65 Asian Indian-American men, 177 ASSIST, 160 Aswat, 184n2 Australia child custody determination in, 133–34 domestic violence in, 127 family law research infrastructure, 129–130 family violence and, 135–36 no-fault divorces, 131 same-sex couples in, 137 Shared Parental Responsibility Act, 134 Australian Bureau of Statistics, 127 Australian Institute of Family Studies, 129–130, 135 Bacchi, C., 155 Bagshaw, D., 138–39 baliga, sujatha, 174 Banda, Fareda, 8 Bangladesh, 7 barring order, 121 Barriteau, Eudine, 116 Baste, V., 150, 152 battered women’s movement, American, 115–16 Because We Have Daughters program, 177 bell bajao campaign, 111

21 2 Index

“The Bench Book on Marriage Cases Involving Domestic Violence,” 36–38 Bjelland, Heidi Fischer, 149 Blackstone, W., 116 “blaming the victim” mentality, 64 Boyd, S. B., 131 Brazil, 9 bride burnings. See also dowry-related violence/deaths, 101 Brown, Pamela, 151–52 bullying, homophobic, 165 Bureau des Avocats Internationaux (BAI), 43–44 Burton, S., 164 bystander education intervention, 178–79 Caldeira, T. P. R., 97–98 A Call to Men program, 180 Cambodia, 8, 10, 11, 14 Cambodian Women’s Crisis Centre, 11 Cash Benefit Act (Norway), 147 Catholicism economic violence and, 94–95 Irish, 117, 118–19 on reproduction, 118 Cedar initiative, 162 cell phone technology, 82 Chadha, Satyarani, 111 Changchun City, 38 CHANGE, 166 Chauhan, Pooja, 111 child abuse, false allegations of, 132 childcare, women’s duties related to, 93–94 child custody cases, 144 child-related court orders, 133 Children’s Hearing System, 160–61 Children’s Reporter, 160 children witnessing violence, 128 Chile Civil Code, 92–93 demographics of, 87–88 economic death threats, 90–93 economic inequalities, 89 economies of, 88 intimate partner abuse laws in, 11, 87–88 judicial reform, 89 legal reforms, 90 neoliberal economic policies, 97

ratified CEDAW, 88 transition to democracy, 88 wage inequality, 91 China barriers to accessing protections, 31 Bench Book on Marriage Cases Involving Domestic Violence, 36–38 civil protection orders, 37–39 domestic violence movement in, 31 family violence definition, 35 Guangdong Province, 37 guiding cases on family violence, 39 Hunan Province, 35 Institute for Applied Jurisprudence, 36 international human rights law and, 33–39 intimate partner abuse in, 32 Jiangsu Province, 36 judicial guidelines on domestic violence, 36–39 lesbian, gay, bisexual, and transgender (LGBT) victims, 34 national anti-family violence legislation, 41–42 provincial legislation, 35–36 ratification of Convention to End Discrimination Against Women, 34 training judges and lawyers, 39–40 unmarried victims, 34 use of social media, 32–33 Xiangzhou People’s Court, 37 Choudhury, Cyra, 3, 7, 9 Choudhury, Nilu, 180 Church Courts, 62 Civil Marriage Law (Chile), 90 civil protection orders, 37–39, 42 Civil Society, 6, 12 Clagett, B., 17 clan-based justice system, 62 class awareness, 119 classism, 178 coalition building, 122 Coalition of Women Living with HIV/ AIDS, 83 coercive control, 128–29 collectivist societies, 6 Colonial violence, 59–61, 64, 68 Columbia Law School, 78 Commission of Women Victims for

Index

Women (Komisyon Fanm Viktim pou Viktim), 43 commodification of women, 101 community accountability, 175–76 Community-Based Intervention Project, 175–76 Conciliation Courts, 62 Constitutional Court, 62 contraception, 120 Convention Against Torture, 124 Convention to End Discrimination Against Women (CEDAW) Chile’s ratification of, 88 China’s ratification of, 34 interpretive guidelines, 17–18 majority of states ratifying, 13 Norway’s ratification of, 143–44 obligation of States, 17–18 on rural women, 74–75 co-parenting, 134 Cosc, 125 Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, 13 Court of Cassation, 62 Courts of Appeal, 62 Coy, M., 167 Creative Interventions, 175–76 Creative Interventions Toolkit: A Practical Guide to Stop interpersonal Violence, 176 “Crime in India 2012 Statistics,” 185n9 criminalization of domestic violence (see domestic violence) as intervention, 7 of marital rape, 51 in Nicaragua, 10 of sexual relations outside of marriage, 21–22 criminal justice agencies (United States), 73–74 Criminal Justice and Licensing Act (Scotland), 158 criminal justice-based men’s programs, 166 criminal justice system, 27, 70, 151, 159–160, 166, 170, 175 Cromwell, Oliver, 116

21 3

cross-cultural consideration, 81, 84 cruelty, defined (Indian Penal Code), 105 cultural context defined, viii of sexual violence in Haiti, 45–48 Cultural Context Model, 177–78 culturally competent programming, 177 cultural relativism in Australia, 130–31 in Cambodia, 11 change, 112 community-based influence, 14 within the context of settler colonialism, 60 “cop culture,” 159 cross-cultural consideration, 81, 84 Cultural Context Model, 177–78 “culturally competent” programming, 177 dowry, 100 exportation of U.S. law and policy and, 5 gender violence, 100 in India, 102–5, 108 in Ireland, 116, 120 Mentors in Violence Prevention Program, 179 in Norway, 150 in Scotland, 156–57 in Sub-Saharan Africa, 75 women’s proper place, 120 Cumann na mBan (The Irish Women’s Council), 117 customary justice system, 62, 64, 74 CWCC agreement, 11 Dáil Éireann, 185n2 Dandis, Abir, 68 Daughters of Ireland, 117 Declaration on Gender and Development, 77 Declaration on the Elimination of Violence Against Women (DEVAW), 17, 76 Dély, Marie Sonya, 46, 52 “Democracy in the Country and in the Home” (slogan), 88 de Valera, Eamon, 118, 185n1 Devi, Sampat Pal, 111

214 Index

devolution, 156–57, 166–67, 186n2 Disability Protection Law (China), 34 disaggregation of data, 25 discrimination gender-based, 34, 147 in Haiti, 45, 46 intersectional, 151 of LGBT community, 53, 170 sex-based, 21 of sexual minorities, 53 disjunctive citizenship, 97–98 displacement camps, 43, 48–49 dispute-resolution systems, 12 divorce banning, 119 in Chile, 88 in China, 34 domestic violence as basis of, 34 fathers, importance of, 131 in India, 104 in Ireland, 119 no-fault, 131 parenting post-separation, 131 rates of, 104 unilateral, 90 domestic abuse. See also domestic violence gender inequality in, 156 in India, 106 legal protection from, 158–161 men’s program to address, 166 multi-agency partnerships for, 158 Navajo Nation, 172–73 peer-delivered initiatives, 164 police response to, 159 power of naming and, 155 prevention, 163–66 prosecution of cases, 159 provision for, 161–63 in Scotland, 155–167 young people’s attitudes toward, 164 Domestic Abuse Act (Scotland), 158 domestic relationships, as means of survival, 48 domestic violence. See also domestic abuse in Argentina, 4 in Australia, 127, 131–36 in China, 31, 35 defined, 14, 36–37, 128–29

forms of, 37 in Haiti, 51 HIV/AIDS and, 80 as human rights violation, 123 in India, 105–6 in indigenous families, 137 legislation against, 35 as manifestation of violence against women, 20–21 no-contact direction, 128 no-drop policies, 26 as pattern of damaging behavior, 36 prevalence of, 127, 149 as private family affair, 31 private suits for, 21 protections for, 31, 34, 38 public awareness through public demonstrations, 40–41 as punishable offense, 21 rates of, 115 in same-sex couples, 137 social media to raise awareness of, 32 training of judges and lawyers, 39–40 unconditional prosecution in, 144 Domestic Violence Act of 1996 (Ireland), 120–21 dowry anti-dowry movement, 109 anti-dowry protests, 111 defined, 101–2 demands for, 109 post-wedding harassment, 104 Dowry Prohibition Act (India), 100–101, 103–4, 112 dowry-related violence/deaths conviction rates of, 109 as crime, 106–8 defined, 100–102 in India, 100 India Penal Code, 101, 106–8 India’s response to, 102–8 joint family homes and, 105 rates of, 101, 108 reported in the Times of India, 99–100 due diligence acts of torture and, 18 assessment of fulfillment of obligation to act, 25–27 defined, 17

Index

to eliminate violence against women, 25–27 gender disaggregation, 25 service provision, 25 State responsibility for, 16–19 UN Secretary-General endorsement of, 18 Duvalier, Francois “Papa Doc,” 44 Easter Rising of 1916, 117 Economic and Social Council (ECOSOC), 16 economic dependence, 45 economic deprivation, 90–93 economic inequalities, 122 economics and abuse in Norway, 149–150 gender violence and, 148–49 intimate partner abuse and, 8–9 victims needs, 42 economic support, 48 economic violence, 91, 93–95 Education Center for Women in Democracy, 82 elder abuse, 39 Elder Rights & Interests Protection Law (China), 34 Engender, 167 Equality and Anti-Discrimination Ombud, 147 Equality and Anti-Discrimination Tribunal, 147 European Court on Human Rights (ECHR), 124 Evaluation of the 2006 Family Law Reforms report, 135 Evidence Act (India), 106–7 family courts, 89, 128, 131–32, 136–38 family group decision making conference (FGDC) program, 172 family honor, 61, 64 family inviolability, 120–21 Family Justice Center model, 4 family law 50/50 custody, 138 in Australia, 130–39 Australian research findings, 136–37 based on religious law, 20

21 5

core values in, 138 “father’s rights,” 131–32 “friendly parent” provision, 134–35 indigenous issues, 137–38 parenting post-separation, 131 reforms, 130–31 same-sex couples and, 137 Family Law Act (Australia) 1995 amendments, 131–34 2011 amendments, 135–36 family law reforms, 130–31 Family Law Act (Scotland), 160–61 Family Law Council (Australia), 130 Family Law Pathways Advisory Group, 133 family law research, 129–130 family law systems, 127 Family Protection Act (Ireland), 120 Family Protection Unit (FPU), 66–67, 69 family separation, 133–34 family violence child’s exposure to abuse as form of, 39 in Chile, 88 defined, 35 “guiding cases” in China, 39 hesitant to file complaints, 89 physical, 89 psychological, 89 warning system against, 36 Family Violence Act (Australia), 135–36 Family Violence Law (Chile), 88, 90 “Family Violence Option” (United States), 152–53 Fanm Deside (Women Decisive), 46, 48 Fanm Viktim Leve Kanpe (FAVILEK), 43, 44, 49 Farrior, S., 17 fathers false allegations of abuse, 132 importance of, post-separation, 131 “father’s rights,” 131–32 female genital mutilation (FGM), 21 femicide, 61 feminism. See also women’s movement in America, 118 in Chile, 88 Irish, 116–19 in Scotland, 157–58 structural to cultural, 148

216 Index

feminist theory, 122 filial piety, 184n5 First Instance Courts, 62 Fletcher, Matthew, 6 FOKUS (the Forum for Women and Development), 151 Foley, Mike, 174 foreign donor funding, 27 friendly parent provision, 134–35 Garda Síochána, 120 Gaza Strip, 64–65 gender asymmetry, 116 gender-based discrimination, 147 gender-based violence as breach to Convention to End Discrimination Against Women, 18 as form of discrimination, 34 health consequences of, 165 HIV/AIDS and, 80 local action plans to end, 77 as policing mechanism, 165 in United States, 77–78 Gender Based Violence Research Network, 186n4 gender bias, 6 gender disaggregation, 25 gender equality intersectional discrimination, 151 in Ireland, 118 in Norway, 146–47 in Palestine, 63 Gender Equality Act (Norway), 146–47 gender inequalities, 9, 141, 156 GenderLinks, 77 gender roles assumptions made on, 89 Catholicism and, 94–95 challenge to traditional, 8 impact of, in sub-Saharan Africa, 75 male nurses, 83 societal expectation of, 95 traditional Indian, 111 traditional views of, 82–84 women as mothers, 97 gender-sensitive training, 69 gender subordination, 178 gender violence as cultural, 100, 116

defined, 179 economic ramifications of, 141–42 economics and, 148–49 globalization and, 148–49 in Haiti, 44 in Norway, 142–47 prevalence of, 142–43 rates of, 142 Get Savvi, 164 Gillard, Julia, 135 Gilman, Charlotte Perkins, 118 Glasgow court, 160 globalization, 148–49 Global North, 3 Goodmark, Leigh, 169 Gorta Mór, 117 grassroots activism changing legal system in Haiti, 50–56 in China, 31–32 Dély on, 46 in Haiti, 43, 44, 46, 49 in India, 111–12 intimate partner violence and, 171 in Ireland, 116–17, 125 LGBT victims and, 49 MAP programs and, 83 in Scotland, 158–59 in United States, 116, 180 grassroots organizing strategies, 171 Graycar, R., 131 Green Dot, 178–79 Grosmaire, Ann Margaret, 173 Guangdong Province, 37 Gulabi Gang (the Pink Gang), 111 Haiti class discrimination, 50 coup d’états, 44 displacement camps, 43, 48–49 earthquake, 43, 48–49 gender violence in, 44 justice system, 45–46, 50 laws for crimes against women and LGBTs, 50–51 legal reforms, 51–52 legal system, 50–56 LGBT community, 46–47 Ministry for Women’s Affairs, 52 penal code, 51

Index

poverty and its effects, 45–46 societal attitudes about intimate partner abuse, 46–47 women’s movement in, 52–53 Hardenbrook, Sonja, 10 Harrison, M., 132–33 Hart, A. S., 138–39 Harvey, D., 97 Hayes, Ceri, 8, 9 health boards, 165 health care benefits, 146 Healthy Masculinity Action Project, 180 Hearn, J., 157 Heir, T., 152 Hemat Gryffe, 161 High Court of Justice, 62 HIV/AIDS gender roles and, 83 intimate partner abuse link to, 79–81 prevalence of, 79 prevention programs, 80 rates of, 75, 79–80 Holston, J., 97–98 homelessness, 115 homophobia, 55, 165, 179 homophobic bullying, 165 homosexuality, 45 “honor” killings, 23 House, Steven, 159–160 Howard, John, 133 Hoyle, C., 159 Htun, M., 92 human immunodeficiency virus (HIV), 23 Human Rights and Domestic Violence (manual), 78 Human Rights Clinic, 78 human rights violations, 76, 123–24 Human Rights Watch, 11 human trafficking, 21–23, 144 Hunan Province, 35 Hurley, N., 162 Hustad, A. E., 152 hyper-incarceration, 170 hyper-surveillance, 170 immigrant women, 144 importation of intimate partner abuse reforms, 12–14 incest, 65

217

INCITE! Women of Color Against Violence, 180 income disparity, 122, 149 India anti-dowry movement, 109 commodification of women, 101 dowry deaths (see dowry-related violence/deaths) education campaigns, 110–11 effects of legislation, 108–9 enforcement of law, 10 joint family system, 105 legislative response to dowry-related violence, 102–8 nari adalats (women’s courts), 11–12 non-governmental organizations in, 7 Penal Code, 101, 104–8 Protection of Women from Domestic Violence Act, 14 resistance to dowry violence legislation, 110 women’s rights activists in, 7 Indian (Native American) reservations, 6 indigenous families, 137–38 indigenous women, 69 Institute for Applied Jurisprudence, 40 Institute for Family Services Cultural Context Model, 177–78 Inter-American Commission on Human Rights, 49, 50, 78–79 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, 19 internally displaced persons (IDP) camps, 43, 48–49 International Covenant of Civil and Political Rights (ICCPR), 124 International Gay and Lesbian Human Right Commission, 45 international human rights law. See also laws, 17, 33–39, 75 international laws. See laws International Lawyers Office (Bureau des Avocats Internationaux), 43–44 International Workshop on National Family Violence Legislation, 41 intersectional discrimination, 151

218 Index

Intervention with Microfinance for AIDS and Gender Equity (IMAGE), 81 intimate partner abuse. See also domestic abuse; family violence advocacy and response models, 73 awareness strategies, 81 best practices recommendations, 4 criminalization of, 4 defined, 129 economic dimensions of, 75, 95–96 exportation of U.S. law and policy, 5 by former partners, 127–28 in Haiti, 46–47 HIV infection and, 79–81 human rights approach to, 13, 76 as key concern for Chile, 88 law enforcement as a strategy, 74 legal reforms, 9 in LGBT community, 47 mandatory arrest policies, 5–6 in Norway, 143–45 poverty and its effects, 81 prosecutions of, 6, 51 recidivism rates, 5 reforms, 12–14 reporting, 47 responsiveness vs. effectiveness, 5 in rural areas, 48, 73 strategies to address, 83 in sub-Saharan Africa, 74 traditional gender roles and practices, 82–84 unilateral divorce in, 90 United States law and policy, 4 in urban areas, 73 intimate partner violence communities as obstacle to preventing, 176 crime-centered response to, 170 as criminal justice problem, 170 crisis center services for, 145 cultural perspective of, 150, 177–78 male perpetrated, 170 Men Stopping Violence (MSV), 177 from private to public issue, 150–51 separation-focused, 169 structural inequalities of, 169 treatment programs, 177–78 intra-community violence, 60

intra-family violence, 79, 124 Ireland abortion, 118 British conduct during occupation of, 117 colonization of, 116–17 divorce, 118 Domestic Violence Act of 1996, 120–21 Easter Rising of 1916, 117 Family Protection Act, 120 famine, 117 feminist movement, 118, 119–120 “Gendered State,” understanding of, 121–25 Gorta Mór, 117 ratified CEDAW, 123 rebellions, 117 separation of church and state, 118 women as integral in development of, 117 Irish Battered Women’s Movement (IBWM), 122 Irish feminists, 119–120 Irish Free State Constitution, 117 Irish Women’s Council, 117 Islamic Sharia laws, 21 Israeli occupation, 59–60, 63, 67–69 Italy, 9 Jeanty, Yolette, 46 Jiangsu Province, 36 joint family system, 105 Jonassen, W., 143 Jordanian Code of 1960, 64–65 Jordanian Personal Status Law, 66 judges insensitivity toward victims, 55 training in domestic violence, 39–40 “Judicial Interpretation for Issues Regarding the Marriage Law of the People’s Republic of China,” 35 justice system, used to perpetuate societal iniquities, 7 Kaye, M., 132 Kay Fanm (Women’s Home), 46, 49 Kelly, L., 163 Kenya, 82 Kilmainham Gaol, 117

Index

Kim, Mimi, 169, 175 Kodinasyon Nasyonal Mawon Viktim Direk (KONAMAVID), 43 Komisyon Fanm Viktim pou Viktim (KOFAVIV), 43, 49 Kristoffersen, J., 150, 152 Kurdistan, 7 Larraín, Soledad, 10 law enforcement. See police force laws. See also family law in African region, 24 in Chile, 87–88 in China, 34 criminalizing sexual relations outside of marriage, 21–22 enforcement of, 10–11 family law, 20 institutional responses, 21–24 international, 21 Islamic Sharia, 21 in Pacific region, 24 prohibiting domestic violence, 34 protection orders, 26–27 religious, 20 same-sex relationships, 22 separation-based, 11 sexual harassment, 23 lawyers, training in domestic violence, 39–40 leave provisions, 146 Lee, Kim, 33, 41 legislation on violence against women. See also laws in Africa, 74 in African region, 22–23 American, 5, 9 anti-domestic violence, 31 in Australia, 128 CEDAW and, 13 in Chile, 88–91 in China, 4–5, 31, 33, 35–36, 41–42 coercive control and, 159 dowry-related, 102–9 ECOSOC and, 16 gender equality and, 147 gender-violence-specific, 144 in Ghana, 81 in Haiti, 44, 51–52

219

in India, 7, 102–9 intimate partner abuse, 9–10 intimate partner abuse and, 9, 11 in Kurdistan, 7 in Lebanon, 7 in Liberia, 8 in MENA region, 21 in Moldava, 4–5 in Norway, 144 Palestinian, 64, 69 resistance to, 110–12 in Scotland, 159 on sex trafficking, 22, 26 in South Africa, 81 in United States, 10, 144 Western feminist’s opinion on, 11 Lenahan, Jessica, 78–79 lesbian, gay, bisexual, and transgender (LGBT) community children, 46–47 in China, 34 difficulties reporting sexual violence, 54 Domestic Abuse Project, 164–65 in Haiti, 45, 49 Haitian organizations for, 53 in IDP camps, 49 in Norway, 147 protections for, 38 lesbian, gay, bisexual, and transgender (LGBT) movement, 44 LGBT Domestic Abuse Project, 164–65 Liberia, 8 Local Human Rights Lawyering Project, 78 Lodhia, Sharmila, 14 Lombard, N., 164 Lothian Domestic Violence Probation Project, 166 low-income women, 8 Luhanga, A., 76 machismo, 159 Mackay, F., 158, 161 Mahoney, Martha, 169 Malawi, 83 male nurses, 83 male perpetrated IPV, 170 Manjoo, Rashida, 6 MAP (Men as Partners) program, 83

2 2 0 Index

Maputo Protocol, 19, 75, 76 marital rape, 7, 22, 51, 64, 83 Markievicz, Constance Georgine, 117 Marriage Law (China), 34 maternity benefits, 146 Maternowska, Catherine, 48 Matrimonial Causes Act (Australia), 131 McBride, Conor, 173–74 McCarry, M., 164 McKie, L., 157 McQuaid, John Charles, 118 mediation, 23–24 medical certificate, 54–55 Men as Partners (MAP) program, 83 Men Can Stop Rape, 180 men’s program to address domestic abuse, 166 Men Stopping Violence (MSV), 177 Mentors in Prevention, 164 Mentors in Violence Prevention Program (MVP), 179 Merry, Sally Engle, 4, 6–7, 12 Miami Workers Center, 180 Miller, Susan, 174 Ministére a la Condition Féminine et aux Droits des Femmes (Women’s Ministry), 51 Ministry for Women’s Affairs (Haiti), 52 Ministry of Civil Affairs (China), 35 Ministry of Health (China), 35 Ministry of Justice (China), 35 Ministry of Public Security (China), 35 Ministry of the Chinese People’s Congress, 35 Minnesota Advocates for Human Rights, 4 minority status of women, 77 Minor Protection Law (China), 34 Moen, B. E., 150, 152 multi-agency partnerships, 158 murder committed in the name of family honor, 61 by dowry death, 101 Musasa Project, 81, 83 naayéé’ (monsters), 173 nari adalats (women’s courts), 11–12

National Coordination of Direct Victims in Hiding (Kodinasyon Nasyonal Mawon Viktim Direk), 43 National Crime Records Bureau (India), 185n9 National Insurance Act (Norway), 146 National Procurator Fiscal for Domestic Abuse, 159 National Rural Health Association, 81 National Strategy to Address Domestic Abuse in Scotland, 156, 162 National Women’s Service (Servicio Nacional de la Mujer), 88 Native American reservations, 6 Navajo Nation Domestic Abuse Protection Act, 172 Navajo peacemaking, 172–73 negative rights theory, 123 Nehru, Jawaharlal, 112 neoliberal economic policies, 97 neoliberal globalization, 148 neoliberal logic, 97 Netherlands, X and Y v., 124 Nghinidhe na hÉireann (Daughters of Ireland), 117 Nicaragua, 10 no-contact direction, 128 no-fault divorces, 131 non-custodial parents, 132–33 non-discrimination, principle of, 18 non-governmental organizations (NGOs) accompanying victims in court, 55–56 accompanying victims to hospital, 54–55 accompanying victims to police stations, 54 community awareness raising, 81–82 in Haiti, 52–53 HIV/AIDS and, 80 in India, 7 in Malawi, 77 in Palestine, 67, 68 non-State actors, 17 Northeastern University, 179 Norway economics, equality and abuse, 149–150 gender equality policy, 146–47 gender violence in, 142–47

Index

globalization pressure, 150–51 health care benefits, 146 intimate partner violence in, 143–45 leave provisions, 146 legal framework, 143–47 maternity benefits, 146 ratified CEDAW, 143–44 safety net for, 151–53 social benefits of, 146–47, 152 as social democracy, 152 social welfare, 146 “three-year rule,” 144 Norwegian Confederation of Trade Unions, 145 Norwegian Crisis Centre Secretariat, 145 Oldenburg, Veena, 101–2 Olivo, Marcia, 180 Ong, A., 97 Open World Russian Leadership Program, 4 oppression, 26 Out of the maze: Pathways to the future for families experiencing separation report, 133 Pakistan, 7 Palestinian Authority (PA) adjudication systems, 61–63 Declaration of Independence, 63 Family Protection Unit (FPU), 66–67 legal reforms, 69 legal rules affecting violence, 63–66 parallel legal systems, 64 violence against women, 59–60 women’s access to justice, 67 Palestinian Central Bureau of Statistics, 61 Palestinian National Strategy to Combat Violence against Women, 62 Palestinian patriarchal system, 60 Palestinian Women and Security: Why Palestinian Women and Girls Do Not Feel Secure project, 67 parallel legal systems, 64 parental leave entitlements, 147 parenting, post-separation pattern of, 131 Parson, Nia, 7, 11 partie civile procedure, 55–56 patriarchy

2 21

in Haiti, 47 in India, 105 in Palestine, 60 in Palestinian Basic Law, 63–66 traditions, 20 Peacemaking Plan of Operations, 173 Peacemaking Program, 172–73 Pennell, Joan, 172 People’s Congress Standing Committee of Hunan Province, 35 persuasion campaigns, 110–11 physical violence reporting, 89 Pinochet, Augusto, 88 plural legal systems, 74 PLUVIF, 83 police force corruption of, 107 difficulty of LGBT victims to report to, 54 in Haiti, 54 in Italy, 9 response to domestic abuse, 159 sensitivity training for, 54 as a strategy, 74 in Uganda, 8–9 police functioning, protocols for, 23–24 Police Scotland, 159–160 political inequality, 124–25 political instability in Chile, 88 in Ireland, 115 Palestinian, 60–61, 63, 68 political violence in Haiti, 44–45, 50 polygamy, 65–66 post-separation contact between child and abusing parent, 161 importance of fathers, 131 pattern of parenting, 131 post-wedding dowry harassment, 104 poverty in Haiti, 45–46 intimate partner abuse and, 45–46, 81 power of naming, 155 prevention government-sponsored programs, 145 obstacles to, 26 Prevention and Eradication of Violence Against Women and Children, 77

2 2 2 Index

primary prevention, 163 prostitution, 21 protection, domestic violence barriers to accessing, 31 to context of divorce, 34 for same-sex individuals, 38 for single parents, 38 for unmarried couples, 38 Protection from Abuse Act (Scotland), 158 Protection of Women from Domestic Violence Act (India), 14, 112 protection orders, 26–27 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 19, 75, 76 psychological violence, 89, 93–94 Ptacek, James, 172 public awareness campaigns, 40–41 public demonstrations on domestic violence, 40–41 public health nurses, 83–84 Public Security Organizations, 36 racism, 70, 169, 177–78 rape in African region, 22–23 defined, 65 by family members, 64–65 as manifestation of violence against women, 21 marital, 7, 22, 51, 64, 83 in Norway, 144 rates of, 142 reforms, 144 spousal, 64 “Rape Accountability and Prevention Program” (RAPP), 53–56 Rathus, Z., 137 Relationship Law (Chile), 90 religious courts, 62, 66 religious law, 20, 74 reparation, 12 reproduction, private act vs. public duty, 118 restorative justice (RJ) conferencing models, 171 family group decision making conference (FGDC) program, 172

in IPV cases, 171 and Navajo peacemaking, 172–73 post-conviction models, 174–75 in-prison, 174 sentencing case, 173–74 restraining order, 22, 144 re-victimization, 27, 67 Rhoades, H., 131, 135 rule of law, 3–4 Rule of Law Initiative (ROLI), 4–5 rural culture, 82 Rural Women’s Movement, 82 Ruska, K., 137 SafeSpace, 93 safety order, 121 same-sex individuals, protections for, 38 same-sex relationships, family law and. See also lesbian, gay, bisexual, and transgender (LGBT) community, 137 Saorstát Eireann (Irish Free State Constitution), 117 Saucedo, Leticia, 10 Saur, R., 152 SAWA, 67 Scannell, Yvonne, 120 Scotland devolution of, 156, 166, 186n2 domestic abuse as health issue in, 165 domestic abuse court, 160 Glasgow court, 160 legal protection from domestic abuse in, 158–161 multi-agency partnerships, 158 National Strategy to Address Domestic Abuse in Scotland, 156 police response to domestic abuse, 159–160 women’s movement in, 157–58 Zero Tolerance campaign, 163–64 Scottish Policing Assessment (SPA), 159 Scottish Women’s Aid, 161–62 Seanad Éireann, 185n2 secondary prevention, 163, 166 SEEDS program, 179 separation 50/50 custody, 138 child-custody arrangements in, 133–34

Index

child custody determination in, 134 in China, 6–7 co-parenting following, 134 defined, 169 family, 133–34 separation-based laws, 11, 169 SERNAM (Servicio Nacional de la Mujer), 88 SEROvie, 45 Servicio Nacional de la Mujer (SERNAM), 88 settler colonialism, 59, 68–70 “Several Opinions on Prevention and Prohibition from Domestic Violence” statement, 35 sex-based discrimination, 21 sex selective abortion, 100 sex tourism, 21 sexual abuse of LGBT children, 46–47 punishment for, 65 sexual assault defined, 65 in displacement camps, 43, 49 LGBT victims of, 53 medical certificate for, 54–55 in Norway, 142–44 prosecution of, 50–51 rates of, 142 reforms, 144 shaming victims of, 54 survivors, 45 unwanted, 65 women’s complaints of, 44 sexual exploitation, 23 sexual harassment, 23 sexuality, as means of survival, 48 Sexuality & Gender Rights Clinic, 78 sexual minorities. See also lesbian, gay, bisexual, and transgender (LGBT) community, 50 sexual violence in the family, 21 by former partners, 128 gender inequality related to, 141 Shakti, 161 shared parental responsibility, 139 Shared Parental Responsibility Act (Australia), 134, 135, 137–38

223

Shari’a Courts, 62, 66 Sharma, Nisha, 111 Sheehy-Skeffington, Hanna, 119–120 shelter residents, 143 shelters, 151, 152 Shenzhen Special Economic Zone, 36 Shenzhen Women’s Federal, 32 Sisterhood of Survivors (S.O.S.), 180 Skogøy, E., 143 Smith, Andrea, 175 Social Care Act (Norway), 146 Social City Institute for Health and Development, 82 social media campaign against intimate partner violence, 82 cell phone technology and, 82 to raise awareness of domestic violence, 32 use of, in China, 32–33 societal gender iniquities, 9 Solidarite Fanm Ayisyen (Solidary of Haitian Women), 49 somroh-somruel, 12, 14 Sonke Gender Justice Network, 82 Soul City series, 82 South Africa, 83 Southern African Development Community (SADC), 76–77 Southern African Gender Protocol Alliance, 77 spousal rape, 64 spousal violence, 20–21 stalking, 158 statutory law, 74 Stepping Stones, 82 stigmatization, 20 Stoever, J., 80 Story Telling and Organizing Project (STOP), 175 streedhan, 101 structural inequalities, 9, 89–90, 97, 169–171 structural oppression, 61–62 structural problems contributing to intimate partner abuse, 8–9 Students Educating and Empowering to Develop Safety (SEEDS), 179 subordinate women, 9

2 2 4 Index

sub-Saharan Africa, 74–75, 79, 184n1 Sulha, 62 Supreme Court (United States), 123 Supreme People’s Court (China), 33, 35, 39 Surtees, Rebecca, 11 Syracuse University, 179 territoriality, 59 Third World Conference on Women, 16 “three-year rule,” 144 Tolmie, J., 132 trafficking of women and girls, 21–23 transformative equality, 163 transformative justice (TJ) programs, 171, 175–76 transgenderism, 45 transnational abandonment, 14 True, J., 148 Turkey, 8 Uganda, 8–9, 80 UmNyango project, 82 UN-Habitat’s Safer Cities Programme, 80 unilateral divorce, 90 United Nations Decade for Women, 16 recognition of violence against women, 16 Special Rapporteur, 15–16 Women Office in China, 41 United States addressing violence against women, 3–4 CEDAW and, 78 crime-centered response to IPV, 170 Department of Justice, 6 exporting values, 3, 5–12 Family Violence Option, 152–53 feminism in, 118 gender-based violence in, 77–78 human rights norms, 13–14 importing intimate partner abuse reforms, 12–14 Indian reservations, 6 intimate partner abuse law and policy, 4 mandatory arrest policies, 5–6 public assistance programs, 152 ratification of international human rights treaties, 78

recidivism rates, 5 response to intimate partner violence, 169 restorative justice (RJ), 171–75 separation-focused response to IPV, 169 State Department, 4 Supreme Court, 123 tribal courts, 6 women’s access to justice, 4 unmarried victims, 34 UN Women in Palestine, 67 Urs, Tara, 14 Victims’ Voices Heard, 174 Vienna Declaration and Programme of Action, 16 Vienna Programme, 124 Violence Against Wives: A Case Against the Patriarchy, 157 violence against women categorized as witches, 21 courts dedicated to working on, 62 defined, 157 by former partners, 127–28 in Gaza, 60 global nature of, 16–17 historical developments on, 16–17 as human rights violation, 15–17 under Israeli settler colonial context, 59–60 manifestations of, 20–21 men opposing, 180 men’s program to address, 180 in name of family honor, 61, 64 in the Pacific Islands, 20 in the Palestinian context, 59 physical, 89 prevention of, 163 prosecutors and, 62 psychological, 89 recognition by United Nations, 16 regional efforts to combat forms of, 76 in settler colonial context, 68 State responsibility for, 15–16 stigmatization and, 20 United States addressing, 3–4 in the West Bank, 61 while pregnant, 128

Index

Violence Against Women Act (United States), 6 violent offenders, anger management programs for, 145 wage inequality, 91 Walby, S., 148 Warioba, C., 76 Weissman, D. M., 13, 148 Weldon, S. Laurel, 5 welfare, 132, 146 West Bank access to services, 61 Jordanian Code of 1960, 64–65 rise in violence against women, 61 White Ribbon, 164–65 Williams, Patricia, 122 Wilner, Alan, 4 Wolfe, Patrick, 59 women. See also feminism; women’s movement innate inferiority of, 116 minority status of, 77 as victims, 20 violence against (see violence against women) Women for Independence, 167 Women Get Up Stand Up (Fanm Viktim Leve Kanpe), 43 Women Graduates Association (WGA), 119–120 Women Madzimai, 81–82 women of color, 180 Women Rights & Interests Protection Law (China), 34, 35

225

Women’s Access to Justice Observatory, 67 Women’s Aid, 115, 122, 125, 157–58, 161–62 Women’s Aid National Freephone Helpline, 115 Women’s Aid One to One Support Service, 115 Women’s Center for Legal Aid and Counseling (WCLAC), 67 women’s dependency on men, 26, 63–64, 119 Women’s Ministry (Ministére a la Condition Féminine et aux Droits des Femmes), 51 women’s movement. See also feminism in America, 115 as catalyst to changing legal system, 52–53 future of, 13 in Haiti, 44, 52–53 in Ireland, 116, 121–22 rural, 82 in Scotland, 157–58, 166–67 women’s rights organizations, 88 women with disabilities, 142–43 X and Y v. Netherlands, 124 Xiangzhou People’s Court, 37 Yan, Li, 32 Yang, Li, 33 Yong, Tan, 32 Zero Tolerance campaign, 163–64

Zimbabwe, 9–10