When Women's Rights Are Not Human Rights

When Women's Rights Are Not Human Rights: The Non-Performativity of Human Rights for Survivors of Domestic Abuse in the Family Courts in England Presented by: Ms. Choudhry Date: January 13, 2022 An Inadequate Legal Response - 'A Cycle Of Failure' - Research demonstrated the minimization of DA and safety of victims in contact cases in mid 1990s - Guidance issued in 2001 by the CA, Practice Directions issued in 2008, 2009, 2014 and 2018 established a framework to be followed, including fact finding hearings where DA alleged. - Research has consistently demonstrated implementation of the guidance is patchy and inconsistent, leading to unsafe decisions on contact. The 'Three Planet Model Marianne Hester. - 'Contact at all Costs Approach' - Influenced by a successful Father's Rights Movement which has used human rights narratives/parental alienation. No corresponding Mother's rights movement and/or use of human rights narratives. - Legal Aid cuts LASPO 2012 - Private nature of family law proceedings - lack of public scrutiny The Applicability Of The HRA And ECHR - Section 6 of the HRA 1989 - Courts duty to act in a manner that is compatible with ECHR rights and under Section 3 of the HRA, to interpret all legislation 'so far as is possible to do so' in a manner which is compatible with the ECHR. - ECtHR has established that DA falls within the scope of Articles 2, 3, 8 and 14 • Article 2 and 3 - State authorities need to undertake effective investigations and risk assessments in order to protect victims from DA and to strive to protect children's dignity • Articles 2 and 3 v Article 8 - the perpetrator's right to family life cannot trump the State's obligation to protect a survivor and her child's Article 2 or 3 rights in a contact case. • Article 14 a State's failure, even if unintentional, to protect women against domestic abuse will breach their rights to equal protection of the law - 'general and discriminatory judicial passivity on the issue is also capable of creating a climate that is conducive to DA' • BUT no reported cases where domestic courts referred to Articles, 2,3 and 14 in contact cases concerning domestic abuse. The Project With Women's Aid - Methodology - Quantitative and qualitative methods - 72 women in total. • An online survey - 63 women participated. • A short follow up online survey with a focus on human rights - 22 women completed this survey. - • Two focus group discussions with survivors - 9 women participated. • Individual telephone interviews with survivors - 9 women participated. 90% of survey respondents, the perpetrator of domestic abuse was a male, former intimate partner. - 67% of survey respondents had experienced physical abuse, 57% sexual abuse, 95% emotional abuse and 83% financial abuse and 89% coercive and controlling behavior. The Findings - The use of human rights • Initial survey - the right to family life raised in 49% cases; the right to be free from inhuman and degrading treatment in 9% and the right to life in 7%. • 42% of survey respondents, however, said that human rights had not been raised in their case despite the fact that the overwhelming majority of respondents had experienced DA and had reported it to the police. • S6 HRA duty - 65% of respondents said that human rights were not raised by the court, compared to only 3% per cent of cases where the court did raise human rights, however, free text answers indicated that judges in these cases raised the human rights of the children and the father to have contact; the human rights of the mothers were not raised at all. - Article 8 given higher priority over potential Article 2 and 3 claims • 'That's what he went for. Article 8. And my response to that, which my barrister didn't pick up on, was what about my right not to be abused? And the coercive control thing with children... But no, they didn't go for that, it was just accepted by the judges 'he's got a right, let's give it to him'. And I thought no he's abusing his children.' (focus group participant). • 'The judge kept reiterating to my ex that he had rights [...] My ex kept saying 'I'm not doing this anymore, I'm leaving, I can't be doing with this' and the judge kept saying to him 'you do have rights, you've got father's rights' (interview participant). - Judicial failures - keeping women safe - failure to consider Article 3; awarding direct contact in the majority of cases (despite 71% of cases involving DA), no order in only 11% of cases. - Judicial failures - discriminatory practices - allowing cross examination by the defendant; unprofessional behavior, victim blaming attitudes: - Women unable to harness their human rights more likely to focus on their children's rights, while men were more likely to advocate for their own rights. Theorizing The Findings Using Performativity - Judith Butler - A 'performative' is defined as 'that discursive practice that enacts or produces that which it names.' • Speech acts are either:  'illocutionary,' that, in saying, do what they say, and do it in the moment of that saying, or  'perlocutionary,' that produce certain effects as their consequence; by saying something, a certain effect follows. - Janet Zignon in contrast to the declaration of the inherent existence of human rights in the UNDHR (the illocutionary effect) it is the recognition of that inherence (the perlocutionary effect) that provides the grounds for human rights. • When human rights are referenced, cited and repeated in and by other documents, and actors, this results in a performative iteration that works to lend legitimacy and authority to an international system. • This, in turn, brings into being and maintains the 'truth' of the global morality of human rights. - Requires: • The state as the 'constative guarantor' in this process, evidenced in every subsequent recital of the treaty/law and addresses either the relationship between the states and individuals or states with one another and provides human rights with actual and practical effect in the world. • A dialogical relationship between the illocutionary and the perlocutionary to maintain this 'truth' once human rights are practiced in the world. This is achieved by:  The continuous reaffirmation of the existence of human rights in each utterance of this link in each document (or by each advocate) - the illocutionary effect.  The manifestation of this truth by the institutions, groups and individuals who provide services or mobilize political action in the name of human rights which achieves their 'truth' - the perlocutionary +-+-+effect. This effect is given force by certain 'felicity conditions' provided by the flow of international funding, media support and international and transnational governmental rhetoric and policy aimed at disseminating the transnational moral 'truth' of human rights. • In this way, the foundation of the global human rights system: the UDHR, was a result of a performative-constative man oeuvre which brought into being the foundational 'truth' of human rights. Performativity And The Development Of The Human Rights Of Women - Judith Butler - 'perverse reiteration' - repetition is not exact replication; signs can be misheard, misinterpreted or deployed in new ways and at new sites in ways that displace the original meaning of a word or norm, changing the way we think or act. - Karen Zivi - act of rights claiming by the women's human rights movement – • In using the authoritative discourse of human rights, the norms of liberalism are not simply reiterated but challenged, because the very norms that are cited are premised on the exclusion of those who cite the norm. • When women use the language of rights, which traditionally excluded them from the understanding of the 'human' of human rights, they are not simply suggesting their inclusion into the understanding of human but are, instead, challenging us to rethink the meaning of the human, 'exposing the conventional limitations of the human while challenging its universality,' • Rights claiming by women and other traditionally excluded groups, thus entails double-movement, not simply a citation of liberal norms but also their transformation. Achieving Performativity - The Women's Movement And International Human Rights Law - 'Women's rights are human rights' - the development of the global VAW movement and the framing of VAW as a human rights concern General Recc 19; the due diligence standard; the establishment of the UN Special Rapporteur on VAW; DEVAW; two regional Conventions on VAW; case law on due diligence in VAW from CEDAW and the ECtHR - the 'retendering of human rights.' - Rights claiming on behalf of women victims of violence thus resulted in a high level of performativity at the international and regional level, achieved by: • The transformation of human rights norms in a process of double movement. The meanings of 'human' and 'due diligence' were successfully challenged through a process of perverse reiteration in order to rethink their meaning and expose their limitations in reflecting the experiences of women victims of violence. Thus bringing into being the existence of women's human rights. • The perlocutionary recognition of the constative guarantor: international and regional human rights institutions, courts and state authorities etc. in order to ensure that these rights have had actual and practical effect in the world via the establishment of new legal norms and principles applied by the courts towards individual states. From The International To The Local - Non-Performativity Of The Human Rights Of Victims Of Domestic Abuse In The Family Courts - A high level of non-performativity of the human rights of the women that participated in the project. - Others simply felt dehumanized by the whole court process; not a person to whom rights apply. The Experience Of The Women In The Sample - The impact of human rights law was minimal or non existent. Due to: • The Courts failure to act in a manner compatible with their human rights and members of the legal profession either unwilling or unable to advise on their applicability. • Court proceedings being undertaken in a discriminatory manner and evidence of a passive climate of discrimination and bias towards the right to family life of the perpetrator Impact Of The Women's Human Rights Movement - No evidence of any 'perverse reiteration' of women's rights as human rights in the sample, the family courts simply reproduced the authorized and established discourse and norms of human rights in their unreconstructed liberal form. - The public private dichotomy was alive and well; the regulation of the 'private' sphere of family and the relationships between individuals was left within the family courts' discretion, undisturbed by human rights law. - Little or no evidence of the rethinking of human rights law and practice to include women victims of DA and to reflect the realities of these women's lives. - In direct contrast the experiences of the men in the sample was of a high level of performativity of their human rights. For most of the men each illocutionary utterance of the right to family life followed by an obvious perlocutionary effect, the award of contact. The court acting as an effective constative guarantor, constant reaffirmation of the right throughout the process and enabled by wider public discourse successfully harnessed human rights discourse via the father's rights movement (the felicity conditions). The Way Forward? - Better training for all professionals involved in the family courts re human rights law and practice - Specialist training on human rights law and the dynamics of DA for the judiciary - Women's organizations need to reclaim human rights narratives and remobilize from the perspective of women's rights as human rights