Violence against women constraints the enjoyment of women’s human rights everywhere. It is a manifestation of power and control and a tool to maintain gender inequalities, disrupting the health, survival, freedom of women around the world. A 2013 analysis conducted by World Health Organization (WHO) , indicates that ‘30 percent of women worldwide have experience either physical and or sexual intimate partner violence or non-partner sexual violence in their lifetime. The prevalence estimates of intimate partner violence range from 23.2% in high income countries and 24.6% in the WHO Western Pacific region to 37% in the WHO Eastern Mediterranean region, and 37.7% in the WHO South-East Asia region. Globally as many as 38 percent of all murders of women are committed by intimate partners. Statistics in Sri Lanka shows that, 17% of ever-married women aged 15-49 have suffered from domestic violence from their intimate partner and 2% of ever-married women who suffered from domestic violence, experiences in any form of domestic violence daily. Intimate partner violence are mostly perpetrated by men against women.
Violence against women assumes a totally different dimension in the case of domestic violence. Domestic violence has been historically considered to fall within the private domain, and outside state authority. Therefore, it took a long period with a great deal of hesitation to enter into people’s homes to understand and intervene in situations of domestic violence. It took a number of women’s deaths in dreadful circumstances, and persistent lobbying by early feminists for a long period of time for legislators to accept that domestic violence does indeed exist, and that there is a serious need to have legislative protection for women.
Wife beating, for instance, has been seen throughout history in varying cultures. As stated by Lord Denning in Davies v Johnson in UK ‘…by the common law a husband was allowed to beat his wife so long as he did it with a stick no bigger than his thumb’ clearly indicate the male dominance over the women. Anglo-American law also allowed a husband to be ‘master’ of the household and subject his wife to corporal punishment or chastisement so long as he did not inflict permanent injury upon her. Even when the right to beat one’s family members was repudiated by the authorities, men who assaulted their wives were often granted formal and informal immunity from prosecution so as to preserve family harmony and privacy. Catharine MacKinnon in 1979 first introduced dominance theory (or radical feminism) which focuses on this imbalance power relation between men and women provided reason for domestic violence as ‘the inequalities women experience as sex discrimination in the economic, political, and familial arenas result from patterns of male domination’.
Today a clear understanding of domestic violence can be derived from the Convention on the Elimination of the all forms of Violations Against Women (CEDAW) and General Recommendation 19, which explicitly states that it prohibits gender-based violence. General Recommendation 19 addresses violence against women including sexual harassment and emphasizes that discrimination under the CEDAW is not restricted to action by or on behalf of governments. Feminist movements around the world have had a great success in domestic violence lawmaking agenda. This was reiterated by Radhika Coomaraswamy, the first U.N. Special Rapporteur on violence against women, by stating that the violence against women movement is ‘perhaps the greatest success story of international mobilization around a specific human rights issue leading to the articulation of international norms and standards and the formulation of international programmes and policies.”
The multiple faces of domestic violence are sometimes obscured in the name of culture and custom. Although domestic violence is globally prevalent problem, it has special significance in Asia and crimes against women in the name of family honour or notion of male honour crimes, such as dowry deaths highly prevail in India and Bangladesh. Dominant social and cultural norms in Sri Lanka tend to privilege the family unit over a woman’s right to bodily integrity. Indeed, such violence is often seen as a normal part of married life or as a temporary disruption in an otherwise peaceful household. This discourse about violence, is part of a broader discourse around the family where, a good wife is one who listens to and obeys her husband, remains silent in his presence, avoids socialising outside the family and attends to household chores and child care. Violence is to be endured silently and not be disclosed to the public.
The development of legal provisions to combat domestic violence in Sri Lanka can be seen in the Women’s Charter of 1993 and the Prevention of Domestic Violence Act of 2005. When Sri Lanka’s Parliament unanimously passed The Prevention of Domestic Violence Act (PDVA) almost 15 years ago, following a six-year advocacy process by a coalition of women’s NGOs, it was generally recognised as a key milestone in women’s engagement with the law. Prior to its enactment the only “legal’ remedy available for a survivor was to make a police complaint, which was rarely taken seriously.
The Act did not create a new offence, but it did provide for the issue of Protection Orders by a Magistrate’s Court against perpetrators of ‘domestic violence’. Domestic violence is defined in the Act as acts of physical violence, which constitute offences against the body already recognized under the Penal Code, as well as emotional abuse – defined as a pattern of cruel, inhuman, degrading or humiliating conduct of a serious nature directed towards an aggrieved person.
Over the years, there is a stagnation in reporting Domestic Violence in Sri Lanka (as indicated in the table below). Most of the reporting only happens when medical assistance in sought due to a grave physical injury, as a result of domestic violence. However, it should be noted that these numbers do not reflect the ground realities, where the number of unreported incidents in much higher.
Sri Lanka, realizing the loopholes in the legislation and the intrinsic weaknesses in the law enforcement has commenced a process to access the existing legal provisions, and propose new amendments to the Domestic Violence Act which would serve the requirements of a modern society. A committee has been appointed and a set of recommendations have been proposed. Regardless of the pressing need for updated legal provisions, a sluggish approach has been followed by the stakeholder agencies in incorporating such recommendations into domestic law.
Around the world, protection orders have proven to be some of the most important tools for protecting women and children from domestic violence. Many new laws in Asia have developed different protective orders to safeguard women and children. These orders include ex parte restraining orders. Ex parte temporary restraining orders can include a preliminary injunction against further violence and/or prevent the abuser/defendant from disturbing the victim/plaintiff’s use of property, including the common home and orders to vacate.
The PDVA allows ‘any person’ who suffers or is likely to suffer domestic violence to seek a protection order from a Magistrate’s Court. The court is empowered to summarily issue an Interim Protection Order valid for 14 days. A Protection Order (PO), valid for 12 months can then be sought on the basis of evidence presented before the court. These orders can bar the aggressor from committing further acts of violence as well as make a number of other prohibitions including entering or occupying a shared residence or a specified part of it; entering the aggrieved person’s residence, workplace, school, or place of shelter, prohibits prevention of the aggrieved person from entering or remaining in the shared residence; prohibits or lays down conditions with regard to contacting children; prohibits preventing use or access to shared resources; prohibits contact or attempt to contact aggrieved person; prohibits acts of violence against ‘Other Persons’ (relative, friend, social worker or medical officer) assisting the aggrieved person; prevents following the person or engaging in conduct detrimental to the safety, health or wellbeing of the aggrieved or Other Person; prevents selling, transferring, alienating or encumbering the matrimonial home thereby placing the aggrieved person in a destitute position.
In Indian law also provides for a protection order prohibiting the respondent from committing any act of domestic violence, aiding or abetting the commission of acts of domestic violence, entering the place of employment of the aggrieved person or any other place frequented by the aggrieved person, attempting to communicate in any form whatsoever, alienating any assets, operating bank lockers or bank accounts used or held or enjoyed jointly by the aggrieved person and the respondent or singly by the respondent any property held jointly or separately by them.
The protection order also includes a residence order directing the respondent from removing himself from the shared household, restraining the respondent or any of his relatives from entering the shared household, and restraining the respondent from alienating the shared household. In P. Babu Venkatesh and Others v. Rani, for instance, the magistrate granted a residence order and permitted the police to break open the lock of the shared household. The husband contended that the house was not a shared household as it was owned by his mother and not by him and therefore the residence could not be passed in favor of the wife. The High Court of Madras dismissed the husband’s contention on the basis that the husband had transferred the rights to his mother with the sole purpose of dispossessing the rights of his wife. This is a good example of recent judicial intervention to uplift the position of women by eliminating the subordination nature of women.
A key feature of the Indian domestic violence law is Protection officers serve as key stakeholders in the implementation of the law which cannot seen in the Sri Lankan Act. Pre-litigation, the protection officers assist the aggrieved person, and post-litigation the protection officers carry out the orders of the court and thus assist both the courts and aggrieved persons.
Section 23, defines domestic violence as follows; ‘“domestic violence” means (a) an act which constitutes an offence specified in Schedule I (or) (b) any emotional abuse, (either of which is) committed or caused by a relevant person within the environment of the home or outside and arising out of the personal relationship between the aggrieved person and the relevant person’. This is a very narrow interpretation comparing with the Indian Act and which needed to early attention of the law makers in Sri Lanka.
In both the Indian and Bangladeshi laws, economic abuse covers customary practices including the demand for dowry. The law provides concrete mechanisms through which victims and other family members, including children, can be protected. For instance, the law allots the victim a share of the abuser’s property and salary, medical damages, and further allows her to remain in the family household. Sri Lanka should introduce such laws to in the family.
Domestic violence has long been a phenomenon which occurred behind closed doors and women suffered silently and impacts every aspect of a woman’s life and affects her role as a citizen.
Even when cases are filed, there is an implementation gap. For the 1% of women who have the courage to take their attackers to court, where they are confronted with the fact that familial ideology continues to operate and manifest, even in court proceedings. In protection order proceedings, familial ideology manifests itself in different ways; the trivializing and minimizing violence, the dismissal of violence as a private matter to be dealt within the family unit and not a matter to be resolved through a court of law, or as a matter to be endured for the sake of children and the family. It is also manifested in notions relating to the exceptionalism of domestic violence, and the liability of women to make false claims and therefore requiring some form of corroboration.
Because of the feminist’s movement of using of international human rights conventions as lawmaking tools, domestic violence is now considered a human rights violation by many countries in Asia. Specialized police stations and special law enforcement mechanisms have been created and a multi-disciplinary approach to domestic violence now requires both governments and nongovernmental organizations to work in partnership. The unfortunate reality however is that civil society remains disengaged in the enforcement of the law. As a result, although women’s groups actively participate in legal reform and the monitoring of the legislative process, there remains a gap between laws on the book and law in action and feminists are marginalized from monitoring the implementation of the law. In order to fulfill the potential of the law, rights must be claimed and rights violations redressed through implementation of laws. The lack of the enforcement of laws is a flaw that affects the effectiveness of domestic violence laws in Asia.
Within the family, men, as “heads of the household,” control women. Domestic violence is domination in an extreme form. This dominance is tolerated, since the criminal justice system imposes lenient sentences on people who perpetrate violence against women. Dominance theorists have demonstrated the ways that laws, most of which have been drafted by men, assist in reinforcing male domination. For instance, in most states, a rape victim must prove she did not consent, even where violence occurs.
According to Dominance theory, men are privileged and women are subordinated, and this male privileging receives support from most social institutions as well as a complex system of cultural beliefs. Law is complicit with other social institutions in constructing women as sex objects and inferior, dependent beings. Dominance theorists cite the lack of legal controls on inadequate responses to violence against women as examples of the ways laws contribute to the oppression of women. Therefore, the penal provisions in the Act appear to be drafted so as to minimize harm and protect the social image of an abuser. This seems to substantiate the feminist argument that patriarchal values underlie legal provisions.
In the Sri Lankan context, while the Prevention of Domestic Violence Act must be hailed for introducing legal recognition regarding domestic violence and for the introduction of protection orders, has many shortcomings commencing with the inadequate definition of domestic violence.
Although criminal sanctions are an important tool and reflect the notion that violence is considered a crime and not just a private offense, a human rights based approach that focuses on interventions, prevention, and reparation will be better than criminalization. The laws examined above attempt to combine those approaches on paper. Global domestic violence norms have now been vernacularized by many Asian countries. The time is now right to translate those values into practice.