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DECRIMINALIZATION OF DOMESTIC VIOLENCE IN

Authored by: Shaili Shah*

* 3rd Year BLS LLB Student, Pravin Gandhi College of Law

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Russia decriminalized non-aggravated battery during July of 2016 and it was made an administrative offense being punishable by a fine or detention. However, incessant battery and battery-committed offences against close relatives or family members remained punishable under the Criminal Code. Russia amended the Criminal Code once again in February 2017 and eliminated the provision with respect to assaulting close relatives on non-aggravated battery. As a result, violence perpetrated against family members has further been made an administrative offense when committed for the first time. Only persistent instances of battery would now be prosecuted as criminal offenses and thus, punishable by criminal law.

DOMESTIC VIOLENCE

Domestic violence is a pattern of abusive behavior in a personal relationship used by one to maintain and establish dominance or control over the other. It has been prevalent since the beginning of time, as it is natural for an individual to want to manifest power and a sense of authority over another. Domestic Violence can be classified into various forms and degrees of abuse such as physical, emotional, psychological, sexual, economical, and verbal. The intensity of each abuse could vary from subtle, coercive forms to violent, brutal abuse including acid- throwing, beating, choking, , and so on. It leads to the victim enduring severe psychological traumas and unable to lead a normal, dignified life.

The victims of domestic violence could be women, children, the elderly or anyone in a position of insubordination. Domestic violence is one of the most underreported crimes globally. Due to social stigmas and victim blaming, several crucial cases are neglected. In quite a few cases, domestic violence is assumed to be justified by the victim or the society in general. When domestic violence is afflicted with children, it is seen as the parents’ right in order to discipline 1 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 6 ISSUE 7

ISSN 2455-4782 the child and corporal punishment is seen as an effective tool to mold the child. Moreover, the abusers believe that the abuse inflicted is justified and entitled and accept it as a way of life. This leads to the vicious cycle of abuse where such violence may be condoned. This cycle does not end because when acts of violence are committed along with an increase in friction, they are usually followed by a placid atmosphere and reconciliation. This gives the victim a sense of an infrequent act, which is dismissed as just another harmless, inconsequent fight.

INTRODUCTION

In February 2017, Russian President ratified a law decriminalizing any violence that does not lead to any such alarming injury, defined as that requiring a visit to the hospital. Beatings and acts that left scratches, bruises, or bleeding but did not cause broken bones or a concussion were not to be reported or further investigated. With an overwhelming statistic, it is proved that upto 75% of women are victims of assault in their families and when it is a matter of spousal violence, their share reaches about a 91%. Domestic Violence takes place in approximately every one out of ten Russian families. 70% of a surveyed report have experienced or are experiencing Domestic Violence: 80% are women, with children and elderly people. More than 35% of victims did not go to the police for assistance, on the pretext of shame, fear and mistrust. This data is presented by an expert analytical study conducted by St. Petersburg State University as ordered by .1

AN OVERVIEW

In September 2019, Galina Karelova, Vice-Speaker of Russia’s Federation Council, insinuated reviewing a law banning domestic violence, on the pretext of the fact that “existing legislation does not provide protection from family violence.”

1Research: about 75% of victims of domestic violence are women, TACC (Oct. 21, 2019), https://tass.ru/obschestvo/7025013

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This was not the first attempt to introduce a similar bill in Russia. In 1993, a draft was assembled by a fraction of the Women of Russia political party. After a year, the bill appeared but it was vehemently criticised. It was then sent in for a redraft and was rewritten about 40 times. The final version of the draft was so different from the initial draft that its original editors didn’t recognise it. After much deliberation, the last draft was tabled and so were the hopes of making a difference.

Between 2012 and 2016, there was another sanctioned attempt at the domestic violence legislation. The civil society members led a coordination groups that drafted a legislation which purported the introduction of restraining orders, which would ban abusers from any sort of close contact with their victims, build shelter homes and refuges for victims and further facilitate judicial and psychological help for any experience that they had undergone. This bill, however, was rejected.

In 2017, the statute on battery was repealed from the Russian Criminal Code, and administrative penalties for domestic violence were introduced instead. The following year, Human Rights Watch acknowledged that the decriminalisation had undermined guarantees of protection from violence and further complicated the prosecution of abusers. The latest attempt to pass a law against domestic violence came in September 2019. It was carried out by a group of activists: lawyer Maria Davtyan- director of the ‘No to Violence’ Centre, Anna Rivina and Alyona Popova- founder of ‘Project W’, a women’s mutual aid network. The bill was actively advocated by MP Oksana Pushkina. On 29 November 2019, Russia’s Federation Council published a draft on the prevention of domestic violence, however its co-authors reported that it differed considerably from the original version. The co-authors from the Russian civil society then concluded that the final draft law was futile in its present form and christened it “the result of pandering to radical conservative groups”.2

LEGAL IMPLICATIONS

The bill had several legal defects, which would make its ratification unacceptable. It contradicts the extensively recognized legal principles of justice, rationality, and equality. It contravenes the

2Draft Law on Prevention of Domestic Violence, Council of the Federation (Nov. 29, 2019),http://council.gov.ru/services/discussions/themes/110611/ 3 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 6 ISSUE 7

ISSN 2455-4782 constitutional requirement of legal certainty, which creates "the possibility of unlimited discretion in the process of law enforcement and inevitably leads to arbitrariness, which means - to a violation of the principles of equality and the rule of law."

When applied practically, the law will grossly violate the rights of citizens and Russian families protected under the Russian Federation Constitution, the norms of Russian Law, such as:

• The exercise of freedom and rights of one person shall not infringe the freedom and rights of others;3

• The State must protect the human dignity of a citizen;4

• The right to inviolability of life, personal and family secrets;5

• The right to protect information about the private life of citizens (and families);6

• The right to housing, including the right not to be subjected to arbitrary deprivation of home;7

• The right to the constitutional presumption of innocence;8 and

• The right to constitutional protection of the family, motherhood and fatherhood, including the constitutional presumption of the good faith of parents.9

Failure to appropriately protect the victims of domestic violence and safeguard access to justice transgresses Russia’s international human rights obligations. Russia has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)10, which disallows violence inflicted upon women, whether in public or in private, and denotes such violence as a form of discrimination. In a 2015 review of Russia, the CEDAW committee noted “the high

3Article 17(3) of the Constitution of the Russian Federation 4Article 21 of the Constitution of the Russian Federation 5Article 23(1) of the Constitution of the Russian Federation 6Article 24(1) of the Constitution of the Russian Federation 7Article 40(1) of the Constitution of the Russian Federation 8Article 49(1) of the Constitution of the Russian Federation 9Art. 38(1) and (2) of the Constitution of the Russian Federation in connection with Article 2 and 17 of the Constitution of the Russian Federation (in their binding interpretation by the Constitutional Court of the Russian Federation) 10UNTC, Treaties.un.org, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 8&chapter=4&lang=en 4 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 6 ISSUE 7

ISSN 2455-4782 prevalence of violence against women” and cast aspersions on the absence of legislation to prevent and sufficiently address the violence against women, especially domestic violence. Russia has severely failed to comply with its obligations towards the CEDAW. It has insufficiently addressed the ubiquitous acts of domestic violence, ineffectively failed to investigate, prosecute and punish those acts of violence which stem from intimate family ties and shown an outright disregard for the adequate assistance and protection required by the victims.

The corollary of decriminalizing domestic violence is simply impractical – that an administrative offence does not reflect a criminal record, that the requirements to investigate are limited – the message it sends across is quite clear: domestic violence is merely an infraction that does not carry the stigma of criminality. A very common cliché integrated in the Russian culture: “if he beats, it means he loves her.” To substantiate it, this mindset is present in a country where upto 40% of serious violent crimes are committed within the family; two thirds of homicides are attributable to domestic motives, and 14,000 women die at the hands of their partner or other relatives each year.11

LOVE CAN DEFEAT ANY CONFLICT: RUSSIAN ORTHODOX CHURCH

Along with these legal contraventions, the draft law contains various conceptual defects that make it incompatible with the traditional Russian spiritual norms and moral values. In fact, it has a prominent anti-family orientation, diminishing the freedoms and rights of people who have chosen a family oriented life, the birth and upbringing of children in parity with others. The provisions of the bill contradict the foundations of Russian family law, as well as the Concept of the demographic policy of the Russian Federation for the period up to 202512 and the Concept of family policy in the Russian Federation for the period up to 202513, which indicate the need to

11Violence against Women in the Russian Federation, ANNA National Centre for the Prevention of Violence, https://www2.ohchr.org/english/bodies/cedaw/docs/ngos/ANNANCPV_RussianFederation46.pdf

12 Approved By the Decree of the President of the Russian Federation of October 9, 2007 No. 1351 13 Approved By the Order of the Government of the Russian Federation dated August 25, 2014 No. 1618-r 5 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 6 ISSUE 7

ISSN 2455-4782 strengthen the family, preserve traditional family values, increase parental authority in the family and society.14

However, the Russian Orthodox Church made its sentiments public in December 2019, when the Patriarchal Commission on the Family and Protection of Motherhood and Childhood insisted a boycott on the draft bill. “It has an obvious anti-family orientation, reducing the rights and freedoms of people who have chosen a familial way of life and birth and the raising of children,” the statement read. “By unjustly overburdening families and parents, the draft law effectively introduces ‘punishment for family life’.” Patriarch Kirill emphasized that the family is “the holy space of people loving each other, and everything must be done to maintain this love, to prevent any violence and the use of force in general, so that the life of the spouses is joyful, peaceful, happy, so that in this atmosphere children were brought up. But it’s very dangerous when strangers and other forces invade this closed, intimate family space, and God knows that this invasion can bring real benefits or harm to people who live side by side and who preserve Therefore, categorically opposing any violence in the family, considering it a great sin, as well as a crime, we are forced to raise our voice to protect the family space from any outside invasion, under any pretext,”. But in order to not go to these extremes, everyone who marries, according to Patriarch Kirill, should understand that “love is not only flowers and the joy of the period of acquaintance or the first years of married life, love is first. It is the turn of the victim, when one spouse gives himself to another spouse, when there is nothing that would be a pity to give, when people are ready to give their health, to give their blood for each other - this is true love.” “And such love cannot be invaded from the outside under any guise, because love in itself is capable of incinerating any conflict and any problem in family relations,” the Patriarch emphasized.15

Moreover, Senator Yelena Mizulina futilely attempted to put a stop to the 2016 amendments and said publicly that she believes women “don’t take offense when they see a man beat his wife” and that “a man beating his wife is less offensive than when a woman humiliates a man.” Mizulina

14Shvabauer A.V, Legal Opinion on the Bill “On the prevention of Domestic Violence in the Russian Federation”, OUZS (Dec. 12, 2019),https://ouzs.ru/news/yuridicheskoe-zaklyuchenie-na-zakonoproekt-o-profilaktike-semeyno- bytovogo-nasiliya-v-rossiyskoy-fed/ 15Patriarch Kirill criticizes the draft law on domestic violence, Interfax-Religion (Dec. 04, 2019),http://www.interfax- religion.ru/?act=news&div=73880 6 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 6 ISSUE 7

ISSN 2455-4782 further said that Russian law should support family traditions that are “built on the authority of the parents’ power,” and that parents should absolutely be allowed to hit their children.16

REFUSAL TO REGISTER COMPLAINTS, FAILURE TO TAKE STEPS AND PREJUDICE AGAINST FEMALE VICTIMS

In the course of monitoring, evidence for substantial women’s rights violation was obtained by the government officials. The law enforcement officials often treat victims of domestic violence with open antagonism and blatantly refuse to register or investigate their complaints of domestic violence, instead directing victims who wish to prosecute into the flagrantly unfair and tremendously burdensome process of private prosecution, for which the victim must gather all the necessary evidence and bear all costs. It was acknowledged that in the absence of State controlled systemic approach, the response to violence inflicted upon women directly depends on the authority’s individual attitudes, stereotypes and opinions. This leads to the ignorance of recognizing that a problem is conventionally prevalent and needs to be tackled. The Russian Culture plays a vital role in fostering the perspectives of the government officials. The institutionalized patriarchy of the Russian Culture materializes in the form of dismissal of violent acts simply as a family feud and a personal matter. The normalization of abusive acts, especially victim blaming, coupled with the distrust in the government officials, prevents victims from coming forward and reporting the acts of domestic violence.

SEVERAL CASES WERE FOUND WHERE THE POLICE REFUSED TO REGISTER VICTIMS’ COMPLAINTS

“Testimony of Larisa who came for assistance to the "Yekaterina" crisis Centre in Yekaterinburg:

For 11 years she had cohabited with the father of her child. After the birth of their son, her partner became more aggressive. During her second pregnancy, he beat her up so severely, that

16Elena Mizulina: “Even when a man beats his wife, there’s still no such resentment as if to humiliate a man”, TVAIN (Sept. 28, 2016), https://tvrain.ru/teleshow/here_and_now/mizulina-417940/?utm_campaign=teleshow- here_and_now&utm_source=fb&utm_medium=2016-09-28 7 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 6 ISSUE 7

ISSN 2455-4782 at 6 months she had a miscarriage. She forgave him again. The partner often told her about his family: his father had beaten his mother and he therefore had hated his father all his life. Recently Larisa's partner took to drinking. When drunk, he often abused his wife in front of the child. Once, when drunk, he slapped her in the face and started strangling her, saying that he would kill her if she said a word. This happened in full view of their son who was 8 and a half years old. The woman went to the police but her local policeman suggested that she should make peace with her husband, did not take any statements from her or from the abuser and refused to instigate criminal proceedings.”17

This is one of the many testimonies that depict toxic misogyny is rampant and sways the perceptions of the law enforcement officials. Due to the lack of regulating these offenses, law enforcement officers take the liberty to project their personal stereotypes and prejudices unto the female victims, which further leads to contempt towards the law enforcement body.

Russian law does not take into consideration the fundamental aspects of domestic violence that primarily aggravate the seriousness of the offense, rendering it more pernicious than an isolated assault. For example, it does not take the narrative that more than often the victim is economically dependent on the perpetrator, they live together, and the abuse is usually unwavering and continues over a long period of time. It becomes even more difficult when there is a child involved, the victim is constantly battling the pangs of conscience with the hope to keep a family together while bearing the brunt of incessant emotional and physical abuse.

Despite awareness campaigns and two decades of discussion, and sustained efforts by activists and women’s rights organizations, Russia does not have a national domestic violence law, while domestic violence is not a standalone offense in either the administrative or criminal code. The lack of it being a standalone offense reinforces an impression, held largely, that Russian officials do not take domestic violence as a significant or consequential crime which has public rather than sheer private ramifications. Furthermore, Russian law does not stipulate protection orders, which could help keep women safe from repetitive violence by their partners. In a society where your screams are muffled simply because you are conventionally positioned weak, speaks volumes of

17Violence against Women in the Russian Federation, ANNA National Centre for the Prevention of Violence, https://www2.ohchr.org/english/bodies/cedaw/docs/ngos/ANNANCPV_RussianFederation46.pdf

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ISSN 2455-4782 the regard for human life. A country that takes pride in its long-reigning family conventions has reduced women to sheer objects with the utmost disrespect for their life and dignity. Government officials are supposed to be the guardians of every citizen’s freedom and rights but they have prominently advocated the institutional patriarchy, which is evident from the lack of dearth measures and security. Decriminalization of Domestic Violence is a sheer submission to the systemic misogyny and a gross violation of human rights that must not be stomached.

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