Patriarchal Laws, a Changing Society and Overlooked Forms of Intimate Partner Violence: a Focus on Iran

Patriarchal Laws, a Changing Society and Overlooked Forms of Intimate Partner Violence: A Focus on Iran

Anahita Movassagh Riegler

LLB (Azad University, Tehran North Branch), LLM (Criminal Law and Criminology, Azad University, Science and Research Branch), LLM (International Business Law, University of Manchester)

This thesis is presented for the degree of

Doctor of Philosophy

of the

University of Western Australia Crime Research Centre, Faculty of Law

April 2012

Abstract As societies progress they become more supportive of gender equality and less tolerant of violence. One consequence of this shift in social attitudes is the expansion of definitions of violence to include a wider range of behaviour. However, even today the law in various countries is inconsistent in acknowledging and responding to all forms of intimate partner violence (IPV). Depending on the perspective of IPV taken the forms of violence included in the definition can vary considerably. Most studies have focused on IPV against women, and mainly the focus has been on physical, sexual, emotional and psychological forms of violence. Other forms of violence such as damage to property, economic, social, educational or intellectual, spiritual, legal or administrative, and verbal forms of violence in many cases have been overlooked. This thesis provides a comprehensive definition of IPV that can be applied to the human rights perspective of IPV.

IPV is rooted in the inequality of power between men and women. The State plays a key role in the allocation of rights and responsibilities of husbands and wives and thereby the allocation of power between men and women. In countries where patriarchal attitudes are dominant, such as in some Muslim countries, State laws provide men with more rights and place them in a superior position to women. In many cases this difference in rights has been justified on the basis of Sharia. This is also the case in Iran. Nonetheless, Iran is undergoing change with both men and women becoming supportive of gender equality, including legal equality.

This research was conducted with the purpose of investigating whether the State of Iran, through Iranian family law, tolerates or permits some forms of IPV against women and whether, as a result of the socio-cultural changes which Iran is experiencing and the growing support for gender equality both among men and women, patriarchal Iranian family law sufficiently protects either sex from IPV.

This investigation has been pursued through an examination of the results of various surveys which have examined IPV. These include the Conflict Tactics Scale (CTS), Violence Against Women (VAW), National Crime Victimisation Surveys (NCVS) and attitude surveys that have been conducted in Iran, Australia, U.S. and worldwide. The research draws on literature on culture, religion and IPV, and laws and regulations which directly or indirectly deal with IPV. i

It was found that with regard to Iran, men and women have different marital roles. Husbands are considered to be the head of the household and are obliged to provide. In return wives have to submit to their husband’s demands, including sexual demands. As a result of this unequal distribution of power many forms of IPV can be legally perpetrated against wives.

While the Iranian government regards the primary roles of women to be a mother and wife, its policies have led the society to an entirely different direction. In other words, although the Iranian government policies have aimed to maintain women in a subordinate position to that of men, these policies have ironically led women to find a more active role in society and to be more outspoken than previously experienced in Iran. There is evidence that reveals these socio-cultural changes have led both men and women in Iran to have become more supportive of gender equality, including legal equality.

The conclusion presented is that patriarchal laws in Iran relating to marriage and divorce that discriminate on the basis of gender can be used by men and women to inflict IPV. Traditional laws allow for many forms of IPV to be legally perpetrated against women by men. However, the current socio-cultural changes and the greater awareness by women of their rights have provided them with tools to fight for their rights and protect themselves from many forms of IPV. Even without conditions within the marriage contract that strengthen a woman’s position, financial rights conferred by the law are women’s strongest tool through which they can negotiate their demands and secure their rights. These financial rights can in turn be used by women to perpetrate financial abuse of men.

This thesis makes an important contribution to our understanding of how IPV is affected when the patriarchal laws no longer correspond to the social values. It shows that IPV against men occurs and tends to be overlooked in Iran despite the fact that patriarchal laws appear to provide protection to men. It is argued that the way forward is through a reinterpretation of the Quran, as promoted by some Islamic feminists, that promotes gender neutral laws in Iran.

CONTENTS

ABSTRACT I

ACKNOWLEDGEMENTS VII

1 INTRODUCTION 1

1.1 PREAMBLE 1 1.2 RESEARCH HYPOTHESIS AND QUESTIONS 4 1.3 A FOCUS ON IRAN 5 1.4 METHODS 6 1.5 THESIS ORGANISATION 7

2 CHAPTER 2 – PERSPECTIVES TOWARDS VIOLENCE AND THE DEFINITION OF IPV 9

2.1 INTRODUCTION 9 2.2 THREE USEFUL PERSPECTIVES TO VIOLENCE AGAINST WOMEN AND MEN AND THEIR APPLICATION TO IPV 10 2.2.1 CRIMINAL JUSTICE PERSPECTIVE 11 2.2.2 PUBLIC HEALTH PERSPECTIVE 11 2.2.3 HUMAN RIGHTS PERSPECTIVE 12 2.2.4 PERSPECTIVES - SIMILARITIES AND DIFFERENCES 13 2.2.5 VIOLENCE 13 2.2.5.1 Intention as a required element 16 2.2.5.2 Nature of the violent behaviour 17 2.2.5.2.1 Damage to Property 19 2.2.5.2.2 Educational or intellectual abuse 19 2.2.5.2.3 Emotional abuse 20 2.2.5.2.4 Financial or economic abuse 21 2.2.5.2.5 Legal or administrative abuse 22 2.2.5.2.6 Physical abuse 22 2.2.5.2.7 Psychological abuse 23 2.2.5.2.8 Sexual abuse 24 2.2.5.2.9 Social abuse 24 2.2.5.2.10 Spiritual abuse 25 2.2.5.2.11 Verbal abuse 25 2.2.5.2.12 Stalking 26 2.3 WHO IS AN INTIMATE PARTNER? 26 2.3.1 MARRIAGE 28 2.3.1.1 Marriage in Iran 28 2.3.1.1.1 Permanent marriage in Iran 29 2.3.1.1.2 Temporary marriage in Iran 29 2.3.2 DE FACTO RELATIONSHIPS 30 2.3.2.1 Australian law and de facto relationships 30 2.4 INTIMATE PARTNER VIOLENCE (IPV) 32 2.4.1 WHY IPV? 32 2.4.2 DEFINITION OF INTIMATE PARTNER VIOLENCE (IPV) 34 2.5 CONCLUSION 35

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3 CHAPTER 3 - MEASURING IPV 37

3.1 INTRODUCTION 37 3.2 MEASUREMENT AND EXTENT OF IPV 38 3.2.1 ADMINISTRATIVE DATA 39 3.2.1.1 Police records 39 3.2.1.1.1 United States of America 39 3.2.1.1.2 Australia 40 3.2.1.1.3 Iran 41 3.2.1.1.4 Advantages and disadvantages of police records 41 3.2.2 SURVEYS 43 3.2.2.1 Crime surveys - the context of crime 45 3.2.2.1.1 Criticisms to the NCVS 49 3.2.2.1.2 Australian Surveys 49 3.2.2.1.3 Iranian Surveys 51 3.2.2.2 The Conflict Tactics Scale (CTS) – the context of relationship conflict 51 3.2.2.2.1 Criticisms of the CTS 52 3.2.2.2.2 The CTS2 53 3.2.2.2.3 Australian surveys 55 3.2.2.2.4 Iranian surveys 56 3.2.2.3 Violence against women surveys (VAW) - the context of violence against women 56 3.2.2.3.1 Australian Surveys 58 3.2.2.3.2 Iranian Surveys 60 3.2.2.4 Attitude Surveys 60 3.2.2.4.1 Australian Surveys 61 3.2.2.4.2 Iranian Surveys 63 3.2.3 DISCUSSION - SHORTCOMINGS OF THE VARIOUS SURVEYS 65 3.2.3.1 Definitions provided for IPV and the different forms of violent behaviours 65 3.2.3.2 Women as victims and men as perpetrators of IPV 67 3.2.3.3 Heterogeneity of instruments measuring IPV 68 3.3 CONCLUSION 68

4 CHAPTER 4 - CULTURAL INFLUENCES ON IPV 70

4.1 INTRODUCTION 70 4.2 DEFINITIONS 70 4.2.1 CULTURE 71 4.2.2 GENDER AND SEX 73 4.2.2.1 Femininity and Masculinity 74 4.2.2.2 Gender roles 75 4.2.3 DISCRIMINATION AND EQUALITY 75 4.3 GENDER, GENDER INEQUALITY AND IPV 78 4.3.1 RECOGNITION OF IPV AGAINST WOMEN AND MEN 78 4.3.1.1 Recognition of IPV against women 78 4.3.1.2 Recognition of IPV against men 81 4.3.2 GENDER INEQUALITY AND IPV 82 4.3.2.1 Gender inequality and honour cultures 85 4.3.2.2 Cultural changes and its influence on men and women’s perpetration of IPV 87 4.3.2.2.1 Are men and women equally violent? 87 4.3.2.2.2 Are women becoming more violent and men less violent? 91 4.4 CULTURE AND ITS INFLUENCE ON ATTITUDES TOWARDS IPV 92 4.4.1 UNITED STATES OF AMERICA 93 iv

4.4.2 AUSTRALIA 94 4.4.3 IRAN 95 4.5 CONCLUSION 97

5 CHAPTER 5 - LAWS, LEGAL POLICIES AND IPV 99

5.1 INTRODUCTION 99 5.2 DEFINITIONS 100 5.2.1 LAW FROM A SOCIOLOGICAL PERSPECTIVE 100 5.2.2 SOCIAL MOVEMENTS 103 5.2.2.1 Social movements and the law 105 5.3 THE STRUGGLE BETWEEN EQUALITY AND SIMILARITY 108 5.3.1 SEPARATE BUT EQUAL RIGHTS 109 5.3.2 GENDER EQUALITY AND GENDER PROTECTION 112 5.3.3 GENDER EQUALITY, MARRIAGE AND SPOUSAL MAINTENANCE IN COMMON LAW JURISDICTIONS 118 5.3.3.1 Factors leading to gender equality and changes in spousal maintenance within the family 121 5.3.3.1.1 Women’s participation in the labour force 121 5.3.3.1.2 Feminist movements of the 1960s 125 5.3.3.1.3 Changes in the fault-based system of divorce and equal protection 126 5.3.3.2 Spousal maintenance today 128 5.4 THE IMPORTANCE OF THE ENFORCEMENT OF LAWS AND REGULATIONS 130 5.4.1 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND GENDER EQUALITY 130 5.4.2 GENDER NEUTRAL SPOUSAL MAINTENANCE LAWS IN PRACTICE 131 5.5 CONCLUSION 133

6 CHAPTER 6 – RELIGION AND THE ‘ISLAMISATION’ OF LAWS IN THE ISLAMIC REPUBLIC OF IRAN 136

6.1 INTRODUCTION 136 6.2 DEFINITIONS 137 6.2.1 RELIGION FROM A SOCIOLOGICAL PERSPECTIVE 137 6.2.2 ISLAM 139 6.2.3 ISLAMIC LAW 140 6.3 THE STATUS OF MEN AND WOMEN FROM A RELIGIOUS PERSPECTIVE 142 6.3.1 ISLAM AND THE STATUS OF MEN AND WOMEN 144 6.3.1.1 Pre-Islamic status of Arab men and women 145 6.3.1.2 The status of men and women as mentioned in the Quran 145 6.3.1.2.1 Gender equality in the Quran 146 6.3.1.2.2 Women’s spiritual status in the Quran 149 6.4 RELIGION-STATE RELATIONS 150 6.4.1 RELIGION-STATE AND THE LAWS IN IRAN 152 6.4.1.1 Iranian governments previous to the 1979 Islamic revolution 153 6.4.1.2 Iranian government after the 1979 Islamic revolution 156 6.4.1.2.1 Ayatollah Khomeini and the Islamisation of laws 157 6.4.1.2.1.1 The Islamisation of laws and women’s rights 158 6.4.1.2.2 Iran after Khomeini and the status of women 160 6.5 ISLAMIC HUMAN RIGHTS 164 6.5.1 IRAN AND ISLAMIC HUMAN RIGHTS 165 6.6 ISLAMIC FEMINISM 168 6.6.1 IRAN AND ISLAMIC FEMINISM 169 6.7 CONCLUSION 172 v

7 CHAPTER 7 - MARRIAGE AND DIVORCE IN THE ISLAMIC FAMILY LAW OF IRAN 174

7.1 INTRODUCTION 174 7.2 DEFINITIONS 175 7.2.1 MAHR 175 7.2.2 REJIYAH, BAIN, KHUL’, AND MUBARAT DIVORCE 176 7.3 MARRIAGE AND DIVORCE IN THE ISLAMIC FAMILY LAW OF IRAN 177 7.3.1 ISLAMIC FAMILY LAW 179 7.3.2 MARRIAGE LAWS IN IRAN AND MEN’S AND WOMEN’S RIGHTS AND OBLIGATIONS 181 7.3.2.1 Obedience (Tamkin) 182 7.3.2.2 Financial rights and obligations 184 7.3.2.2.1 Alimony 184 7.3.2.2.2 Ojrat ol mesl and Shir baha 187 7.3.2.2.3 Mahr and its different forms 188 7.3.2.2.3.1 Mahr al mosama 189 7.3.2.2.3.2 Mahr al mesl 190 7.3.2.2.3.3 Mahr al mot’a 190 7.3.2.2.3.4 Mahr al sonah 191 7.3.2.3 Conditions within the marriage contract- prenuptial agreements 192 7.3.3 DIVORCE LAWS IN IRAN AND MEN’S AND WOMEN’S RIGHTS AND OBLIGATIONS 195 7.4 CONCLUSION 198

8 CHAPTER 8 – THE EFFECTS OF SOCIO-CULTURAL CHANGES ON MARRIAGE AND DIVORCE IN IRAN 200

8.1 INTRODUCTION 200 8.2 INDICATORS OF CHANGES IN ATTITUDES AND CULTURE IN IRAN 202 8.2.1 COLLECTIVIST VERSUS INDIVIDUALISTIC - CHANGING ATTITUDES 202 8.2.2 EDUCATION 205 8.2.3 BIRTH RATES, MARRIAGE AND DIVORCE 206 8.2.3.1 Birth rates 206 8.2.3.2 Marriage and divorce 207 8.3 DISCREPANCY BETWEEN LAWS AND CULTURE IN IRAN 210 8.3.1 GOVERNMENT POLICIES AND THE EXISTING DISCREPANCY BETWEEN VALUES AND LAWS 210 8.3.2 CULTURAL CHANGES, PATRIARCHAL LAWS AND IPV 213 8.4 ISLAMIC FEMINISM AND REREADING THE SHARIA 218 8.5 CONCLUSION 222

9 CONCLUSIONS 224

9.1 INTRODUCTION 224 9.2 OVERVIEW 225 9.3 CONCLUSIONS 233 9.4 RECOMMENDATIONS 235

BIBLIOGRAPHY 237

Acknowledgements First and foremost, I would like to thank my supervisors Frank Morgan and Robyn Carroll, whose guidance and contributions made this thesis possible. I thank Frank for his expert guidance on surveys and survey methods. I would also like to thank Frank and his lovely family who helped me settle in and made me feel like I have family in Australia. I thank Robyn for her quick feedback in the past few months, when time was running short and for her wealth of knowledge in family law.

I would like to thank my brother Hooman Movassagh, whose encyclopaedic knowledge in human rights issues helped guide this thesis. I would also like to thank him and his wonderful wife Leili Monfared for continuously encouraging me when I needed encouragement.

I am massively indebted to my husband John Riegler, who always believed in me and gave me strength. By creating a calm and peaceful environment and through his wealth of knowledge in political science and his enthusiasm he has contributed to this thesis in ways I cannot begin to describe. I can only hope to be able to provide him with the same amount of support throughout the journey which we have begun.

I would like to thank my parents Homa Khodaei and Hossein Movassagh, who have always been there for me and have always been the hard rock I lean on and the soft spot I fall on in times of need.

Last but certainly not least, I am indebted to Holly Cullen who supported and enabled me in finalising this thesis.

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1 Introduction

1.1 Preamble Everyday many people, from all over the world, from all religions and cultures are made victims of violence. Although defining violence is not an easy task, the roots of violence are found to be in inequality and the unequal allocation of power (Hajjar 2004:4; Morgan A. and Chadwick H. 2009). Evidence reveals that as cultures have progressed, people have become more supportive of equality and less tolerant of violence. Previously, many violent acts would have borne no costs for their perpetrators. However, with cultural advancement many violent acts and a range of human rights abuses have been criminalised in a number of countries. Unlawful behaviours of sexual discrimination, racial discrimination, invasion of privacy and intimate partner violence are amongst these.

This thesis focuses on one aspect of behaviour that victimises members of society: intimate partner violence (IPV). Even though intimate partners have been subjected to violence since time immemorial, IPV has only been criminalised within the past few decades (Fenstermaker Berk and Loseke 1980-81). Even today the law in various countries is inconsistent in acknowledging and responding to all forms of IPV. This is partly due to a lack of consensus on what is understood to be violence (Jackman 2002; Bufacchi 2005), which itself is highly influenced by the perspective through which violence is approached (Tjaden 2005).

Depending on the perspective taken and the purpose for which violence has been defined, the definitions of violence can vary considerably. Furthermore, definitions influence the analysis of and research into violence. Adopting a human rights perspective of violence allows for the analysis of discriminatory behaviours which are tolerated by the State or are permitted through State laws. It also allows for an examination of how cultural changes have affected social responses to the existing legal discrimination in marriage and divorce.

For example, in countries where patriarchal attitudes are dominant, such as in some Muslim countries, State laws provide men with more rights and place them in a superior position to women (Hajjar 2004; Mir-Hosseini 2006). These gender discriminatory rights and obligations can lead to many violent acts which in other societies would be 1 considered illegal. The State’s failure to recognise intrafamilial forms of violence as illegal, either by criminalising them, or by enforcing laws that criminalise them leads to what Hajjar refers to as impunity (Hajjar 2004:3). Hajjar states: ‘In contexts where intrafamily violence is not prohibited by law (i.e., criminalized), perpetrators enjoy legal impunity. In contexts where it is prohibited but the laws are not enforced, perpetrators enjoy social impunity’ (Hajjar 2004:3).

In some of these Muslim countries these forms of violence are justified on the basis of Sharia. However, Islamic feminists argue that this inequality is a result of patriarchal interpretations of the Quran and cannot be attributed to Sharia (Moghadam 2002; Ahmadi 2006; Mohammadi 2007; Mir-Hosseini 2009) and that Sharia can in no way be used as a justification for violence (Hajjar 2004).

This happens to be the case in Iran today. In Iran these strong patriarchal views are reflected in the laws, including Iranian family law. Similar to the once patriarchal Common Law practice in some Western countries1 in which the head of the household was the man, this continues to be the practice in Iran today. A historical study of this aspect of the law in Western countries in this thesis reveals that acceptance of the man as the head of the household led to women being vulnerable to many forms of what today is considered as IPV. Many of these violent behaviours were legally permitted or tolerated by the State’s laws (Jacob 1988).

Against this consequence of patriarchy, with regard to Iran, Mir Hosseini argues: ‘Muslim jurists claim, and all Muslims believe, that justice and equality are intrinsic values and cardinal principles in Islam and the sharia. If this is the case, in a state that claims to be guided by the sharia, why are justice and equality not reflected in the laws that regulate gender relations and the rights of men and women? Why do Islamic jurisprudential texts—which define the terms of the sharia—treat women as second-class citizens and place them under men’s domination?’ (Mir-Hosseini 2006:629).

While the laws in Iran are patriarchal, certain policies of the Islamic Republic outlined below (notably economic and social policies), have led to an unintended shift in the

1 The term Western countries or Western societies in this thesis is used to refer to those countries in which the majority of the population have European origins and is used in contrast to

Oriental or Eastern countries and societies. 2 public’s attitudes, with more support for gender equality, including legal equality, among both men and women (Moghadam 2002). A change in traditional attitudes and mentalities towards gender discrimination is essential in order to combat IPV (Scutt 1983; Mugford 1989).

The shift in existing attitudes towards gender roles cannot simply be attributed to one or two factors. It is a product of a series of events and the sequence in which those events have occurred. Nonetheless, one could argue that economics are amongst the strongest factors shaping these new social and cultural expectations of gender. Changes in gender roles and social attitudes toward new roles in Western societies have resulted from various social, political and economic developments in the 20th century. World War II, women’s movements for equality and battered women’s movement, have all led to changes in society such as an increase in women’s education rates, growth in women’s participation in labour forces, decline in fertility rates, and changes in the mean age of marriage. Also, as a result of women’s movements, researchers and policy makers began to show interest in the issue of IPV since the 1970s (Hines, Brown et al. 2007) and greater efforts were made to protect women from such crimes (Echols 1989).

These socio-cultural changes led to a situation where the existing laws no longer corresponded to the social and cultural needs. Thus, many Western countries found the need to revise laws to reflect new expectations and social realities. Consequently, some countries passed new laws and ratified international conventions, declarations and treaties which required the equal treatment of both sexes before the law and in society, such as equal job opportunities and equal pay. The new gender roles also led to the emergence of concerns which historically would have appeared absurd, such as rape within marriage and discrimination against men. Hence, while initially men were overlooked as victims of IPV, over time they too have gained some acknowledgment as victims of such crimes. Nonetheless, there continues to be a great amount of controversy concerning intimate partner violence carried out by women (Hines, Brown et al. 2007).

Among other factors, highly attributable to State policies and to Islamic feminist movements, women’s roles in the Iranian society are also undergoing changes. Today Iranian women are more active in political and social activities (Kar 2000; Moghadam 2002; 2008; Yong 2010). The rate of women graduating from universities and 3 participating in labour forces is increasing. On the other hand, female illiteracy and fertility rates are declining.

Not only have societal attitudes towards women changed, but as a result of women contributing to the household income and raising the standard of life within households, the family’s expectations and demands have also begun to change. What’s more, as a result of their higher levels of education, many women are now financially independent (Esfandiari 2003b) with the result that they have gained greater awareness of their rights (Halper 2005), as well as the financial and intellectual power to implement those rights. An increasing number of women today are demanding equality, including legal equality (Esfandiari 2003a). The number of men who believe in gender equality and legal equality is also on the rise (Moghadam 2002). Ultimately, Iran is a society in which women have higher expectations and demands, and having proven themselves as capable within society, they have also succeeded in gradually changing societal attitudes towards themselves. Furthermore, since women have helped raise the family’s standards of life and expectations, they are also succeeding in changing the patriarchal views within the family, with women now also demanding that men too, contribute to household work. This has resulted in a decrease in the number of women who will tolerate various forms of IPV for reasons of financial dependency on their husband, or because of the barriers associated with divorce (Harrison 2006).

Against this background, this thesis researches the significance of these socio-cultural changes and the existing patriarchal laws on IPV. In doing so it examines the way that the law has allowed certain forms of IPV to be overlooked in Iran.

1.2 Research Hypothesis and Questions As stated above, IPV is rooted in inequality and the unequal allocation of power (Hajjar 2004; Morgan A. and Chadwick H. 2009). In some cases gender inequality is tolerated or permitted through the State’s discriminatory laws and policies. However, due to the socio-cultural changes taking place in Iran, women have gained a higher degree of awareness of their rights (Yong 2010; Mir-Hosseini c.1999). Women have also become more active in the public arenas. Attitudes towards traditional gender roles are experiencing change among men and women, and people are becoming more supportive of gender equality (Moghadam 2002). It is then expected for these socio-cultural changes to have an effect on the forms and nature of IPV perpetrated in Iran. 4

My hypothesis is that the State of Iran, through Iranian family law, tolerates or permits some forms of IPV against women and as a result of the socio-cultural changes which Iran is experiencing and, the growing support for gender equality both among men and women, patriarchal Iranian family law does not sufficiently protect either sex from IPV.

To test my hypothesis I will address the following questions: 1. Are there any forms of IPV which are being tolerated by the State or which are legally permitted by the Iranian family law? 2. With the socio-cultural changes that are taking place in the Iranian society is there a growing discrepancy between the social values and the values reflected in the Iranian family law? 3. If so, does the growing discrepancy between social values and the values reflected in the Iranian family law allow for the patriarchal family law to adequately protect either sex from IPV?

My thesis presents evidence of a gap between social practices/attitudes and the law in Iran. It also investigates the potential for Iranian family law to expose both men and women to forms of IPV. In order to pursue this aim I focus on the following elements: the nature of violence; gender equality and its significance to IPV; the sex of the victim and perpetrator of IPV; the relationship between the victim and perpetrator of IPV; the legal obligations imposed on men and women in marital relationships in Iran; changes in culture and society in Iran and the significance of this for the perpetration of IPV in Iran; patriarchal legislation and its inconsistency with the prevalent cultural values; and, religious influences on the laws dealing with the rights and obligations of married men and women in Iran.

1.3 A focus on Iran I have chosen Iran as the country of focus in this thesis for several reasons. First, Iran is an Islamic Republic, which means all laws and practices are placed within an Islamic context. As a Muslim country many forms of gender discriminatory laws that could result in IPV have been justified on the basis of Sharia. These gender discriminatory rights and obligations have been considered necessary for the protection of the family union. However, women in Iran have fought for gender equality and equal rights for many years. Evidence suggests that as a result of such struggles women have succeeded in obtaining more rights than they previously had. Furthermore, the socio-cultural 5 changes which Iran is experiencing have created changes in the current beliefs and attitudes. This allows me to investigate whether there is an existing gap between the laws and culture in that country and whether this discrepancy has led to unrecognised forms of IPV. As a result of these legal, religious and social factors the Islamic Republic of Iran provides an excellent setting for my study.

Second, most studies have focused on IPV against women, and again mainly the focus has been on physical, sexual, emotional and psychological forms of violence. Other forms of violence such as economic, social, educational or intellectual, spiritual, legal or administrative, and verbal forms of violence have in many cases been overlooked. This has also been the case in Iran. In Iran, a study that deals with all forms of IPV has not yet been conducted. Further, there has been no study in Iran that focuses equally on both men and women as potential victims and perpetrators of some forms of violence.

Finally, as a female Iranian lawyer, I have knowledge of the culture, laws and dominant religion of Iran that provides me with a background to the issues explored here and the ability to access the data relating to Iran which I present in my thesis. Having been admitted to the Iranian Central Bar Association and being a member of the Iranian Association of Criminology I have witnessed many cases which have pushed me to explore on an objective and scholarly basis whether there are hidden forms of IPV in Iran.

1.4 Methods This research has involved the examination of the results of various surveys which have dealt with IPV. These include the Conflict Tactics Scale (CTS), Violence Against Women (VAW), National Crime Victimisation Surveys (NCVS) and attitude surveys that have been conducted in Iran, Australia, U.S. and worldwide. I have studied literature on culture, religion and IPV. Laws and regulations which directly or indirectly deal with IPV have also been examined. I show how early surveys failed to include all forms of violence, and how with cultural advancement more behaviours have been considered as violence. I also argue that even today not all forms of violence are included in the definitions provided for IPV and how this affects the pattern of results of IPV against both men and women.

I have examined the history of laws dealing with the relationship between intimate partners mainly in the U.S. and England. I have discussed how changes in cultures, laws (which were previously patriarchal) have led to new laws that better correspond to existing realities. The Western Common law societies studied in this research are then used as a basis for analysing the current situation with regard to the existing patriarchal laws, the changes in the society and IPV in Iran. All this has been done by taking into account the different cultures, societies, religions and legal systems between Iran and the Common law countries studied.

I have collected the data through the University of Western Australia (UWA) library or its library website, and inter-library loans. The literature on Iran was obtained through Shahid Beheshti University, UNESCO Chair for Human Rights, Peace and Democracy libraries and other credible websites. I have collected national surveys through the internet and the Crime Research Centre at UWA. In Iran I have collected any national surveys which have been conducted through the Parliament Research Centre and other governmental research organisations. The World Value Survey website and the Statistical Centre of Iran (SCI) website have also been used.

1.5 Thesis Organisation In Chapter Two, I discuss public health, criminal justice and human rights perspectives and their application to intimate partner violence (IPV). I provide a definition of IPV which can be applied within a human rights perspective. The human rights perspective invites the examination of State tolerated and State sanctioned forms of IPV. In Chapter Three, I explain the methods used to measure IPV and their shortcomings. I also examine the importance of the definitions provided on the result obtained from surveys. In Chapter Four, I examine the cultural influences on IPV. I argue that cultural progression has an inverse effect on the tolerance of IPV, with more advanced cultures being less tolerant of IPV. I also provide evidence that in some Western countries men have also been recognised as victims of IPV. In Chapter Five, I study the interaction between laws, legal policies and IPV. I argue that laws and policies have to change to correspond with emerging social needs. IPV is rooted in inequality. In the case of women’s rights, laws in many Western societies have changed to promote equality between men and women. I have also discussed the important role that social movements play in modifying laws or in the recognition of the need for new laws. In Chapter Six, I provide a brief history of Iran from the 20th century onwards. This brief 7 historical study provides some comprehension of the Iranian culture, of the importance of religion in Iran and the Islamisation of laws in Iran leading to the current situation in Iran. In Chapter Seven, I examine the family law of Iran. This allows for the discussion of whether there are any forms of State tolerated or State sanctioned forms of violence in Iran. It also allows for the analysis of the areas of family law which can lead to IPV by promoting inequality between men and women. In Chapter Eight, I analyse the ongoing changes in the Iranian culture and society and discuss how these cultural and societal changes can encourage certain forms of IPV. In the Conclusion I submit that the co-existence of patriarchal laws with the societal attitudes which are moving towards more support for gender equality has led to overlooked forms of IPV in Iran.

2 Chapter 2 – Perspectives towards Violence and the Definition of IPV

2.1 Introduction A central issue in this thesis is how different theoretical, disciplinary and practical perspectives towards violence influence responses to violence at societal, legal and organisational levels. My interest is generally in the study of violence against women (VAW) and violence against men (VAM). Nonetheless, the form of violence which this thesis focuses on involves cases where the perpetrator is an intimate partner, not violence perpetrated by any other person.

Although the term violence is constantly referred to in this thesis, violence has been very difficult to define. Jackman argues: ‘Much as some scholars have bemoaned the lack of cohesion in research on violence…most scholars have proceeded without hesitation as though the conceptual tangle had been cleared. Researchers commonly refer to a phenomenon called violence that implies a clearly understood, generic class of behaviours, and yet no such concept exists’ (Jackman 2002:388).

Jackman further argues: ‘Two features have marked the sociological analysis of violence: (a) disparate clusters of research on various forms of violence that have been the object of urgent social concern, and relatedly, (b) an overwhelming focus on forms of violence that are socially deviant and motivated by wilful malice... I examine the issues that have clouded the analysis of violence: the importance of physical injuries vs. psychological, social, and material injuries; the weight placed on physical vs. verbal and written actions; the role of force vs. victim complicity in the infliction of injuries; and the emphasis on interpersonal vs. corporate agents and victims’ (Jackman 2002:387).

Bufacchi (2005) identifies two concepts of violence that he identifies as the Minimalist Conception of Violence, violence as force (Bufacchi 2005:195), defined along similar lines to the concept criticised by Jackman. The second concept is labelled the Comprehensive Conception of Violence, violence as violation, allowing for a broader concept of violence involving the violation of various kinds of rights. While there are differences in approach between Bufacchi and Jackman, both scholars agree that there is a lack of consensus on the meaning of the term violence. As Bufacchi says:

‘The ideological and methodological gulf between these two approaches is so fierce and deep- seated that one is left wondering whether there is not one, but two concepts of violence’ (Bufacchi 2005:199).

The above factors have led to the existence of inconsistent literature on violence. Also, the narrow focus on violence has prevented it from being understood as a common type of social behaviour as it is (Jackman 2002:387).

Given this background, it is clearly beyond the scope of this thesis to arrive at an authoritative definition of violence. Nevertheless, in developing my working definition of violence in the context of IPV it is very useful to consider three perspectives- i.e. criminal justice, public health and human rights perspectives. Through the study of these perspectives I will be provided with a framework which will allow me to evaluate the definitions of violence. This framework has the advantage of allowing me to move logically from the broad concepts discussed by Jackman and Bufacchi to various concrete measures of violence found commonly in the literature. These are discussed in detail in Chapter Three of the thesis.

Therefore, this analysis commences with an examination of how these perspectives influence definitions of violence. I will then define who is considered to be an intimate partner for the purposes of the current thesis and how the recognition of an intimate partner is influenced by the social, religious, legal and the political environments. Finally I will provide a definition of IPV based on the human rights perspective which best accords with the needs of this thesis.

2.2 Three useful perspectives to violence against women and men and their application to IPV Depending on the perspective adopted when defining an issue, the definition could vary considerably to include or exclude certain factors. In order to demonstrate this matter, I will study the different perspectives taken regarding the issue of violence against women and their outcome.

Tjaden (2005) has illustrated the importance of the perspective taken when defining violence against women. Based on the perspective under which the definition has been provided, different acts are included in what is to be considered as VAW. This is

10 important, considering that with regard to surveys- which as we will see in Chapter Three are one of the main sources of information on IPV- depending on the definition adopted by the survey, there would be significant differences in the rates and forms of VAW(M) and IPV illustrated by those surveys.

Tjaden (2005) explains that researchers and activists have approached the issue of violence against women from three different perspectives:

2.2.1 Criminal justice perspective

Early researchers and activists examined violence against women (including rape, IPV and incest) from a criminal justice perspective. As a result, they attempted to influence changes in the criminal code definition of crimes, either to expand their scope (as in the case of rape laws so that they would include sexual assaults perpetrated under temporary or permanent mental disability), or in a way to better echo the needs of women as victims of domestic violence, rape and incest. This perspective provides a narrow definition of violence against women and does not include acts which are harmful but legal or are tolerated or approved by governments (Tjaden 2005).

In the 1990s, as a result of the arguments of some renowned health authorities within the United States, who claimed that VAW was a primary cause of death among women, a new perspective towards VAW gradually began to take form which is the public health perspective (Tjaden 2005).

2.2.2 Public health perspective

In 1996, the World Health Organization (WHO) working group provided a definition for violence. This definition further inspired researchers and activists to approach violence from a public health perspective (Tjaden 2005). Based on the definition provided by the WHO, violence is: ‘The intentional use of physical force of power, threatened or actual, against oneself, another person, or against a group of community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, mal-development or deprivation’ (World Health Organization) .

This perspective includes acts which result in psychological harm conducted by intimate partners, as well as neglect and deprivation as forms of violence against women. This perspective also distinguishes violent behaviours based on the person who 11 perpetrated those behaviours and his relationship to the victim. The public health perspective is broader than the criminal justice perspective and takes account of acts which are non-violent and not criminal, for example, stalking (Tjaden 2005).

The definitions provided under this perspective are broader than the criminal justice perspective. Nonetheless, while, under this perspective, sexual abuse perpetrated by intimate partners and strangers has been dealt with, only cases of physical and psychological violence in which the perpetrator is an intimate partner has been taken notice of and other perpetrators have been excluded (Tjaden 2005).

2.2.3 Human rights perspective

Runkle (1976:367) by referring to Riga (1969:145) states that the basis of the definition of violence is ‘any violation of the basic human rights of the person’. These violations include but are not exclusive different forms such as ‘social, economic, moral and political’ violations.

The human rights perspective is the one taken by more recent research on violence against women. This perspective provides a definition of violence which covers more types of violence committed against women and female children than the other two perspectives. The definitions provided under this perspective include a broader spectrum of violent behaviours; as well as violent acts committed against females by intimate partners, family members, strangers and acquaintances. Furthermore, the human rights perspective also deals with violent acts perpetrated by soldiers during the war and internal conflicts as well as sexual assaults and rape committed against women by refugees in refugee camps, local police, military personnel and/or government personnel in cases where the women are in State custody (Tjaden 2005:3).

The acts included in this definition include acts which are not included in definitions provided under the other two perspectives. Apart from acts which cause physical, psychological, emotional abuse, neglect and deprivation, other acts such as trafficking women for basic labour and sexual exploitation, forced marriages, honour crimes, genital cuttings, State tolerated and State-sponsored discriminatory acts against women such as inability to divorce or to inherit property have been included under this perspective (Tjaden 2005:3).

2.2.4 Perspectives - similarities and differences

The shift from the perspectives of criminal justice, to public health and then to human rights represents an ever-broadening approach to violence. Furthermore, it is clear from the foregoing analysis that research outcomes are inextricably connected to the perspective taken. For example if we were to compare the rates of violence of one study to that provided by another study we first need to know how each study has defined violence.

Tjaden convincingly argues that the human rights perspective should be adopted by various surveillance systems with regards to VAW (M), to include cases where human rights are being violated. This perspective, as mentioned earlier, would also include discriminatory practices, laws and any form of what Tjaden refers to as State sponsored and State-tolerated discriminations (Tjaden 2005:3).

While the public health and the criminal justice perspectives are valuable, this thesis is guided by the human rights perspective with regards to VAW and VAM. This is justified on the basis that, various forms of IPV are perpetrated in many countries, including Iran, which are either tolerated or sponsored by the State. The States tolerance and sponsorship of VAW and VAM are reflected in the laws of Iran, through which the laws discriminate against sexes and do not treat men and women equally.2 Therefore, the adoption of the human rights perspective allows for a more critical analysis of the impact of laws in Iran imposing different rights and obligations on men and women, which in many cases result in IPV to legally take place.3

After providing a definition for violence, I will then identify who is considered to be an intimate partner for the purpose of this thesis.

2.2.5 Violence

In this section I will discuss the different aspects of violence which many definitions may have failed to cover, these include: the privacy of violence and that violence is no

2 More in depth analysis of discrimination and equality will be made in Chapters Four and Five of this thesis. 3 The different legal rights and obligations of men and women are dealt with in Chapters Six and

Seven of this thesis. 13 longer seen as a private matter; inequality and that violence is a result of the unequal distribution of power; intention and whether it is a required element in the perpetration of violence; examining specific definitions used by experts and official bodies, in the light of the perspectives introduced above; covering the element of constant and spasmodic; seeing to omission as a manner of perpetrating violence; discussing whether property damage can be considered as a form of violence; examining the elements of educational/intellectual, emotional, financial/economic, legal/administrative, physical, psychological, sexual, social, spiritual and verbal abuse in more detail than that carried out in the perspectives section; finally I will study stalking as a special form of abuse.

Violence is an exceedingly broad term, which could cover a wide spectrum of actions from verbal abuse to murder (Ferrante, Morgan et al. 1996). An extremely wide definition of violence would reveal that everyone has been a victim of violence at least once; consequently, such a definition would be of little value from an analytic perspective. Therefore, it is pivotal to clarify the borders of what is to be defined as violence for the purpose of this research, in order to understand the outcome of the present research and for further reference.

Hoff (2009:17) argues that today violence is ‘interpreted in psychosociocultural and feminist terms’ and is no longer seen as a private matter. Hoff continues by stating that within this framework, violence, in most cases comprises behaviours which have been learned in an environment where the dominant forms of solving conflict have been depicted through the use of violence. Also, within this environment inequality based on gender, race, sex, etc are common, and the possibility of being held accountable for perpetrating violence are trivial. Therefore, violence is normally a result of the unequal distribution of power (Morgan A. and Chadwick H. 2009).

Different definitions have been provided for violence. These definitions are mainly based on the nature of the violence that has been carried out. Depending on the purpose for which the definition has been provided, different organisations or scholars tend to include or exclude certain behaviours. Also, different factors such as culture, gender, race (Johnson and Ferraro 2000), and the intention behind an act (Skogan 1981) affect the descriptions, extent and expressions of how violence is defined (Flinck, Astedt- Kurki et al. 2008). Therefore, in some cultures or subcultures an act may be considered physical but not violent while the same act in another culture may be considered as 14 violence (Gelles and Cornell 1985b). Culture also affects the amount of tolerance for violence meaning the more progressed the culture the less tolerance there is for violent behaviours (Binder and Meeker 1992).

In order to be able to provide a comprehensive definition of violence, different definitions have to be studied, regardless of the purpose of the body or scholar providing it, and through the recognition of the limitations and strengths of each definition, a definition could be offered which is most corresponding to the current thesis. I will be evaluating the strengths and weaknesses of different definitions; therefore, it is uncomplicated to reason that each definition may touch on various issues which make a strict categorisation of these definitions unrealistic. However, an attempt has been made to loosely group the definitions, but still examine each definition on its individual merit.

Furthermore, as we will see not only is there difference of opinion in the nature of the violent act, but there is also a difference of opinion in the form of intention required in order for the act to qualify as violence. Intention is a divisive factor, with some finding intention to obtain a result from perpetrating violence (such as to harm, manipulate, control, frighten, etc.) to be a necessary element in order for violence to have occurred, and others finding intention to act to be sufficient. This meaning that, if someone intentionally conducts a violent behaviour, without intending to obtain a result from his/her behaviour (such as to cause harm, damage, control, manipulate, etc.), based on the opinion of the latter group, that person is still considered having perpetrated violence.

Before studying different definitions regarding violence, it should be stated that many studies have used the term violence and abuse interchangeably.4 This also happens to be

4 See further, Flowers, R. B. (2000). Domestic crimes, family violence and child abuse: a study of contemporary American society. Jefferson, McFarland; Lent, B. (2004). Violence as a Women's Health Issue. Oxford Textbook of Primary Medical Care: Clinical management. R. Wilson and R. Jones. Oxford, Oxford University Press. 2; Shipway, L. (2004). Domestic Violence: A Handbook for Health Professionals. New York, Routledge; and, Hoff, L. A. (2009). Violence and abuse issues: cross-cultural perspectives for health and social

services. New York, Routledge. 15 the case within the current thesis in which abuse and violence will be used interchangeably. Some researches state that violence, abuse, and battery can be used interchangeably (Hegarty, Hindmarsh et al. 2000). However, it seems that battery is a form of physical violence/abuse; therefore, limiting violence or abuse to battery, which is a form of physical abuse, does not seem accurate.

2.2.5.1 Intention as a required element Intention is an element which had not been dealt with in the perspectives examined above. However, intention is of great significance which needs to be discussed, since whether intention is required or not can strongly affect the categorisation of an act as violent or non-violent.

The Australian Bureau of Statistics (2006:5) has defined violence as: ‘Violence is any incident involving the occurrence, attempt or threat of either physical or sexual assault. Physical assault involves the use of physical force with the intent to harm or frighten. An attempt or threat to inflict physical harm is included only if a person believes it is likely to be carried out…’

In this definition, the intention to harm or frighten have been considered necessary elements in order for violence to have taken place. Runkle (1976:1055) states that an act of violence is: ‘… an act in which a person employs physical force directly against a living being for the purpose of harming him’.

In this definition, analogous to that provided by the ABS, for an act to qualify as violence, intention to inflict harm is required. What’s more, there are those who claim that for an act to be abusive the intention to control or manipulate are necessary elements (Kirkby 1994; Tilbrook 2010; U.S. Department of Justice 2011). Kirkby (1994:63), with regards to psychological and emotional abuse states that the perpetrator should have intended to destroy the victims self-esteem with a further intention of being able to control and intimidate that person.

However, the World Health Organisation (WHO) working group defined violence as: ‘The intentional use of physical force of power, threatened or actual, against oneself, another person, or against a group of community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, mal-development or deprivation’ (World Health Organization c.2010). 16

The above definition which has been influenced by a public health perspective, has only dealt with intention in the acting stage, and intending the violent result has not been required.

It is of interest to note that for the purpose of the current thesis for violence to take place the intention to perpetrate the violent behaviour is essential. However, when it comes to intention regarding the result of the violent behaviour, if the perpetrator could have reasonably envisaged that his/her violent behaviour could result in harm, intimidation, deprivation, etc., although not intending to cause such effects, then he/she would have perpetrated violence.5

2.2.5.2 Nature of the violent behaviour Regarding what could be construed as violence, different definitions have included various behaviours. Based on the definition provided by the World Health Organisation (WHO) above, violence is limited to physical violence and does not include other forms of violence such as verbal, economic, spiritual, emotional, etc where no physical force, or threats of physical violence have taken place (World Health Organization). What’s more, the form of psychological abuse envisaged in this definition is only that resulting from physical forms of violence. However, it does include acts or threats of violence against ‘oneself, another person, or a group of community’ as forms of violent behaviours which is one of the strengths of the current definition.

In the definition provided by the ABS (2006:5) above, violence was defined to include sexual as well as physical violence. Also, any attempt and threat to conduct sexual or physical violence has been regarded as violence. However, this definition is limited physical and sexual violence. Abuse should not be seen narrowly, and limited to sexual and physical violence (Pritchard 2001), but should be seen in a broader light and be expanded to cover other forms of violence, as we will see below. Needless to say that, some research show that the prevalence of non-physical forms of IPV is perpetrated over four times the rate of physical forms of IPV (Outlaw 2009).

5 This is the approach taken in the Iranian penal code with regards to murder and the intentional

infliction of harm and injury. See (1991). Islamic Penal Code of Iran. Islamic Republic of Iran. 17

Shipway (2004:2) by referring to the British Medical Association (1999) provides another definition which is: ‘Abuse and violence may be physical, emotional, psychological, financial or sexual, may be constant or spasmodic, and are experienced by individuals from every class, race religion and culture the world over’.

The above mentioned definition being influenced by a public health perspective includes a wider range of violent behaviours in comparison to that provided by the WHO and the ABS, yet it continues to exclude certain behaviours such as spiritual abuse, as well as omissions and neglect as forms of abuse. Neglect being a form of omission had been classified as physical violence by some policies. Nowadays neglect is still considered being a form of physical abuse, nevertheless, it could also be a form of emotional abuse (Elder Abuse Prevention Unit 2008; Hamidi 2008).

The definition provided by Shipway touches on a salient element which the other definitions had failed to embrace. This is the time period in which the act has been carried out that could be constant or spasmodic. Renata (2002) states that in order for violence to have taken place and in order to qualify as a victim of violence, it is not necessary for the violence to have been repeated, one single act as long as it has intentionally been conducted, suffices.

It becomes apparent that not only is there inconsistency regarding the need and form of intention required; there is also inconsistency in the forms, of violence recognised. Depending on the definition adopted by a survey the results of the survey would vary considerably. In general, it could be said that the wider the definition of violence, the greater rates of violence would be found and vice versa. This is important since, many programs and policies to control violence are based on the results obtained through surveys. Bradby (1996) argues that the solutions provided for a problem are based on the definitions provided for that problem. This shows the importance of the wording and the structure of a definition. A good definition is one which covers all aspects and would leave preferably no loopholes for those trying to exclude themselves from falling within the boundaries of the definition provided.

Therefore, in this thesis where we speak of IPV, it is not restricted to physical violence but it encompasses a series of various acts, which could be perpetrated by both current

18 and former partners. The forms of abuse, which are included within the current thesis, are defined below. It should also be noted that studying same-sex relationships are out of the scope and inquiry of the current thesis.

2.2.5.2.1 Damage to Property One form of IPV is inflicting intentional damage to property or threats of such behaviour (Department of Families, Housing et al. 2009). However, various jurisdiction, differ in what they regard as property.

As we will see below, (in the section dealing with psychological abuse) the USDJ had categorised inflicting harm to pets as a form of psychological abuse. However within Australia, under the Northern Territory Domestic and Family Violence Act (2007:s.5), harm or death to a pet animal while being a form of IPV is considered to be a form of ‘damage to property’ and not a form of psychological abuse. The Western Australian jurisdiction in the Restraining Orders Act (:s.6(1)(c)), similar to Northern Territory considers inflicting harm to the animal to be a form of damage to property.

2.2.5.2.2 Educational or intellectual abuse Educational or intellectual violence is a form of social violence in which one partner prevents the other from studying, or prevents him/her from any form of intellectual advancement (Hamidi 2008). This definition has been influenced by the human rights perspective, since the right to education is considered to be a second generation human rights.

The reason why one partner may deprive his/her partner from education or intellectual advancement could be for various reasons one of which is that the perpetrator does not want the victim to gain more knowledge and power, considering the power education brings. The power gained through education could be that the victim would be aware of his/her own rights and how to achieve those rights, including dealing with the violence that is being carried out against him/her, which could then jeopardize the perpetrators status. This power could also be a result of gaining financial independency, since by achieving higher levels of education s/he will have better job opportunities and higher income. Therefore, educational violence could also result in economic violence to take place.

2.2.5.2.3 Emotional abuse Psychological and emotional abuse are a result of other forms of abuse such as verbal abuse with the intention of destroying the other persons self- esteem and in order to control or intimidate ones partner (Kirkby 1994:63). These forms of abuse, depending on the perpetrator include elements of both, the public health and the human rights perspectives. Therefore, if the perpetrator is a stranger it would have been influenced by the human rights perspective. However, if the perpetrator is an intimate partner it would fit with both the human rights and the public health perspectives.

Some authors such as Outlaw (2009) differentiate between emotional and psychological abuse in the sense that, the intention of emotional abuse is to weaken the victims self- esteem and sense of worthiness. Emotional abuse is conducted by insulting, name calling, embarrassing publicly or accusing the victim. Neglect, as we mentioned before is a form of omission which under some policies is considered a form of physical abuse, and could result in emotional abuse. On the other hand, the purpose of psychological abuse is to convince the victim that s/he is losing her mind, so that the victim would not rely on his/her own logic and judgement. By adopting this view, emotional and psychological abuse will be dealt with separately in this thesis.

The United States Department of Justice (2011) defines emotional abuse as: ‘Undermining an individual's sense of self-worth and/or self-esteem is abusive. This may include, but is not limited to constant criticism, diminishing one's abilities, name-calling, or damaging one's relationship with his or her children’.

Therefore, for an act to qualify as emotional abuse it has to negatively affect ones emotions and to be able to cause emotional damage to that person. This emotional damage can either be done directly by being forwarded to the person who is being abused or indirectly, through influencing people who are of emotional value to the person or have an emotional impact on the abused.

Within Australia, emotional abuse and psychological abuse have been clearly identified in the legislation of some jurisdictions, e.g. Restraining Orders Act (1997:s.6(1)(d)), Family Violence Protection Act (Victoria) (2008:s.7), and Family Violence Act (Tasmania) (2004:s.9) as forms of domestic violence. An interesting issue is that in the Family Violence Protection Act (Victoria), preventing a person from making or keeping connection with culture can be considered as a form of emotional or psychological 20 abuse (2008:s.7). This is because the importance cultural practices have and preventing the exercise of these practices can in some cases cause serious emotional trauma.

The Department of Families, Housing, Community Services and Indigenous Affairs (2009:16) identifies elements of emotional abuse: ‘Broadly, these terms relate to behaviour by a person towards another person such as tormenting, intimidating or harassing the other person, for example by making repeat derogatory taunts’.

The above definition by stating by a person would have been influenced by the human rights perspective since it includes physical and psychological violence perpetrated by strangers. As we can see, considering that the above elements can also be applied to verbal abuse it becomes obvious that it is not uncommon for different forms of violence to overlap.

2.2.5.2.4 Financial or economic abuse Financial abuse is the ‘control of use and availability of money’ (Kirkby 1994:64). In this form of abuse, the abuser inflicts economic dependency on the victim. Even if the victim is earning his/her own money the abuser takes control of that money, sometimes forcing the victim to borrow or steal money in order to be able to pay for basic expenses. The abuser might do this by preventing the victim from knowing about the family income or having access to it (Outlaw 2009). This could be done in various ways. The United States Department of Justice (2011) defines economic violence as: ‘…making or attempting to make an individual financially dependent by maintaining total control over financial resources, withholding one's access to money, or forbidding one's attendance at school or employment’.

Based on the above definition economic abuse occurs where there is an intention of making ones partner financially dependent on oneself. What’s more, what we previously defined as educational or intellectual violence, based on the above definition is considered as a manner of perpetrating economic violence, due to the economic dependency which results from it. In another definition provided by the Department of Families, Housing, Community Services and Indigenous Affairs, economic abuse, as a form of IPV has been defined as: ‘‘economic abuse’ relates to conduct such as coercing a person to relinquish control over assets or income, disposing of a person’s property without his or her consent, preventing a person from accessing joint financial assets for the purpose of meeting normal household expenses, or

withholding financial support necessary for the maintenance of the person or the person’s children’ (Department of Families, Housing et al. 2009: 15).

The intention of ‘making or attempting to make an individual financially dependent’ demonstrated in the definition provided by the USDJ above, has not been considered as a requirement within this definition, although the economic abuse may ultimately result in that dependency.

In some jurisdictions within Australia, such as Victoria, Tasmania and the NT, the legislation recognises economic violence, even though the various jurisdictions deal with it differently. In some jurisdictions, in order for economic abuse to have taken place the perpetrator must have conducted the violent behaviour with the specific intention of causing harm, injury, etc., while, in others, the legislation does not require the perpetrator to have had a particular intention. Also, there is a difference among jurisdictions as to whether economic abuse can only be committed against a spouse or partner or whether it can also be committed against other family members.6

2.2.5.2.5 Legal or administrative abuse More specifically this form of abuse has been applied to the preconception which both governmental and non-governmental agencies embrace regarding IPV, in which men are the perpetrators and women are the victims. Tilbrook and colleagues argue that, some women tend to influence legal or administrative resources into believing that the male victim is actually the perpetrator7 (Tilbrook 2010).

2.2.5.2.6 Physical abuse Physical abuse ‘is the intentional use of physical force’ (Elder Abuse Prevention Unit 2008) with the aim of causing harm or fear (Australian Bureau of Statistics 2006: 5). Again, based on this definition the perpetrator is required to have an intention for conducting the violent behaviour.

6 See sections 7 and 8 of the Tasmanian Act, section 6 of the Victorian Act, section 8 of the NT Act. 7 Tilbrook states that this form of abuse should be dealt with caution since there is doubt as to whether this could be considered a separate form of abuse. However, Jackman in Jackman, M. R. (2002). "VIiolence In Social Life." Annual Review of Sociology 28(1): 38, has identified

this form of violence in concept of individual and corporate agents of violence. 22

The United States Department of Justice being influenced by the criminal justice and the public health perspectives (U.S. Department of Justice 2011) states that physical abuse includes acts such as: ‘Hitting, slapping, shoving, grabbing, pinching, biting, hair pulling, etc are types of physical abuse. This type of abuse also includes denying a partner medical care or forcing alcohol and/or drug use upon him or her’.

The violent acts provided by the United States Department of justice are not restricted to the ones mentioned in the above definition, any other act of the same or of similar nature is considered to be physical abuse.

Restraining someone is also regarded as a form of physical violence (McHugh, Livingston et al. 2005). It should be taken into account that physical violence is normally accompanied by psychological abuse. What’s more, based on the findings of the World Health Organisation (2002), which studies violence from a public health perspective, one third to over a half of victims of physical abuse are also sexually abused by their intimate partners.

2.2.5.2.7 Psychological abuse Psychological abuse is verbally abusing another person (Morgan A. and Chadwick H. 2009) with the intention to convince the victim that s/he is losing her mind, so that the victim would not rely on his/her own logic and reasoning (Outlaw 2009).

The United States Department of Justice defines elements of psychological abuse as: ‘Elements of psychological abuse include - but are not limited to - causing fear by intimidation; threatening physical harm to self, partner, children, or partner's family or friends; destruction of pets and property; and forcing isolation from family, friends, or school and/or work’ (U.S. Department of Justice 2011).

Some elements of psychological violence provided by the USDJ, such as destruction of pets or threatening physical pain to children are those which Morgan and Chadwick (2009) have categorised as physical violence. It seems that different forms of violent behaviours can very easily overlap, resulting in a single act to qualify as more than one type of violent behaviour. In support of the above claim, we can refer to Australian jurisdictions. Most Australian jurisdictions have held destruction or harm to pets to be a form of damage to property (see section, damage to property above).

2.2.5.2.8 Sexual abuse Mugford (1989:2) being influenced by the public health and the human rights perspectives states, sexual abuse involves non-consensual sexual intercourse or other acts, possibly including threats or use of a weapon. She continues by stating that ‘women endure this, perhaps believing that it is their duty to meet such demands, or fearing that their spouse will go elsewhere for satisfaction’.

Regarding adults, sexual violence is carrying out unwanted sexual contact, even within marriage (Kirkby 1994:65). This can be conducted through the use of ‘physical force, intimidation or coercion, or any attempts to do this’ (Australian Bureau of Statistics 2006: 5). Also, forcing someone to participate in any unwanted sexual act even if it is looking at pornography would be considered as sexual violence (McHugh, Livingston et al. 2005). If the victim is a child and the perpetrator an adult, the sexual act performed would be referred to as child abuse (Kirkby 1994:65).

Morgan and Chadwick define sexual abuse as: ‘Any unwanted sexual contact, including rape’ (2009:2).

The United States Department of Justice (2011) defines sexual abuse as: ‘Coercing or attempting to coerce any sexual contact or behaviour without consent. Sexual abuse includes, but is certainly not limited to, marital rape, attacks on sexual parts of the body, forcing sex after physical violence has occurred, or treating one in a sexually demeaning manner’.

The above definitions are unexclusive meaning that they do not limit sexual abuse to certain acts, and they leave room for other unwanted sexual behaviours to qualify as sexual abuse, thus, covering any loophole which may exist.

2.2.5.2.9 Social abuse Outlaw (2009) describes social abuse as an imposed isolation on the victim, where the perpetrator isolates the victims from family and friends. This could be done in various ways such as preventing them from meeting and socialising with those people, or by controlling their actions such as their phone calls sometimes by using the excuse that they believe that those friends and families are interfering with their lives (Elder Abuse Prevention Unit 2008). What’s more, the abuser might constantly require knowing where the victim is, or might insist on the victim changing residences without it being required or wanted by the victim. Social abuse is carried out by threatening, forcing or persuading the victims (Outlaw 2009). This form of abuse can also be conducted by 24 placing restrictions on ones’ partner's movements when they go out (Morgan A. and Chadwick H. 2009:2).

2.2.5.2.10 Spiritual abuse Spiritual abuse is defined as: ‘Denying or manipulating religious beliefs of practices to force victims into subordinate roles or to justify other forms of abuse’ (Morgan A. and Chadwick H. 2009:2).

Another definition provided for spiritual abuse is: ‘…using a person's religious or spiritual beliefs to manipulate, dominate or control them. It may include preventing someone from engaging in spiritual or religious practices, or ridiculing their beliefs’ (Department of Justice Canada 2001: 2).

The latter definition considers ridiculing ones beliefs to be a form of spiritual abuse, however, the perpetrator requires to have the intention to ‘manipulate, dominate or control’. Based on this definition if one of the partners ridicules the other person’s religious beliefs without the intention to control or manipulate, but merely because it opposes their own spiritual beliefs it cannot be considered as violence. It seems in that case although spiritual abuse would not have taken place, but ridiculing could result in emotional abuse.

As we can see, the wording of a definition is a very delicate topic and based on how each form of abuse it defined it can result in different types of abuse to take place.

2.2.5.2.11 Verbal abuse Verbal abuse is the use of offensive and belittling comments about being inferior, unattractive or worthless, etc. (Kirkby 1994:63). This form of abuse normally results in emotional or psychological abuse to take place.

Now that we know who an intimate partner is, and what constitutes violence, it seems appropriate to provide a definition of intimate partner violence for the purpose of the current thesis. However, before doing so I will explain why I have chosen the term IPV as opposed to spousal abuse, violence against women, and violence against men or even family violence.

2.2.5.2.12 Stalking Legal definitions provided for stalking vary among different countries and jurisdictions. Nonetheless, stalking can be defined as the ‘wilful, malicious, and repeated following and harassing of another person that threatens his or her safety’ (Meloy and Gothard 1995:258).

Stalking occurs either when someone in interested in initiating a relationship with someone else or when a relationship is coming to an end. Stalking is perpetrated by both men and women (Frieze 2005). While from this definition it may seem that stalking cannot occur after a relationship has ended, however, this is not the case and stalking can take place at any stage previous, during or after a relationship has ended (NSW Police Force 2008).

In Australia, while the penalties for stalking vary across jurisdictions all jurisdictions agree that stalking includes following another person or lingering around a person’s house, or work place or other places where the person normally stays. Most jurisdictions also include acts such as corresponding with a person be it by mail, email or telephone, keeping a close watch on a person, meddling with a person’s property or providing a person with offensive substances (Department of Families, Housing et al. 2009). It seems that stalking could be considered as a serious form of psychological abuse.

Now that violence and the elements and nature of violent behaviours have been explained, I need to clarify as to who is considered as an intimate partner for the purposes of the current thesis.

2.3 Who is an Intimate Partner? Any form of interaction between two people is considered a form of relationship, such as the relationship between friends, neighbours, colleagues and family members. What distinguishes an intimate relationship from other forms of relationship is that only certain people can be chosen as an intimate partner, and laws and culture define who can and cannot be chosen as an intimate partner. An intimate partner, depending on the definition provided can cover different forms of relationships. If interpreted broadly, the people who could be in an intimate relationship would include current or previous couples in a straight/gay/lesbian relationship, dating couples, engaged couples, couples

26 who are in a de-facto relationship and married couples including common law marriages (Rennison and Welchans 2000; Flinck, Astedt-Kurki et al. 2008).

Saltzman and colleagues conducted a survey on IPV for the Centres for Disease Control and Prevention (CDC), in which they argued that it was not necessary for partners to have had sexual involvement in order to qualify as being in an intimate relationship (Saltzman, Fanslow et al. 1999). Further studies have adopted this definition,8 and considering that this thesis will be making use of some of those studies, this thesis, in concert with those studies, espouses the same definition.

However, although sexual involvement is not a required element, nonetheless, as Fishman and colleagues have argued in order to qualify as an intimate partner, the couple should have been in an intimate relationship for over a week (Fishman, Bonomi et al. 2010).

While different laws and cultures acknowledge different forms of intimate relationships, one form of intimate relationship, which is universally recognised, is that resulting from marriage. What’s more, in some societies, being most Muslim countries such as Iran, marriage happens to be the only legally acknowledged form of an intimate relationship. However, although marriage is a universally recognised institution, the laws and cultural practices regarding marriage can vary immensely among different societies. This happens to be the case with marriage in Iran and that within most Western societies. Therefore, considering the importance of marriage to the current thesis, being the only form of intimate relationship legally acknowledged in Iran, and taking into account the differences that exist in the forms and definitions of marriage between Iran and most Western countries, the need to define this institution becomes evident.

8 See, Reid, R. J., A. E. Bonomi, et al. (2008). "Intimate Partner Violence Among Men: Prevalence, Chronicity, and Health Effects." American Journal of Preventive Medicine 34(6): 478-485; and, Fishman, P. A., A. E. Bonomi, et al. (2010). "Changes in health care costs over time following the cessation of intimate partner violence." Journal of general internal medicine 25(9): 920-

925. 27

2.3.1 Marriage Providing a single definition of marriage which is applicable to all societies, considering the different cultures, religions, laws and practices is a difficult task, and has been the subject of much intricate debate. Needless to say, the acceptance of same sex marriages in the laws of some countries has added to the existing difficulty. Through studying marriage in Iran and the existing differences of this institute with those in Western societies the reader will gain more insight into the difficulties in Iran.

2.3.1.1 Marriage in Iran The word usually used in Islam for marriage is nikah, which means sexual intercourse. In Islam marriage is considered to be a contract between a man and a woman (1928 (last amended 1985) ). Marriage in Islam symbolises a condition which results from a man and a woman entering into a specific contract, and as a result sexual intercourse between them becomes legitimate, both before the society and the eyes of God. Same sex marriage, akin to non-marital relationship has not been accepted under Islamic law. Accordingly, under the Islamic Penal Code of Iran same sex marriage is forbidden and is punishable by law, and depending on whether the couple is male or female the punishment would be death or one hundred lashes (1991:Articles 82-93).

In some Western countries, analogous to Iran, marriage can only take place between a man and a woman. The Australian Marriage Act 1961 section 5(1) defines marriage as: ‘The union of a man and a woman to the exclusion of all others, voluntarily entered into for life’ Marriage (1961:s.5).

Therefore, according to Australian law marriage can take place ‘between two adults who have given their individual consent to the marriage, which must be heterosexual and monogamous’, (Fehlberg and Behrens 2008:121). Same sex couples may have a commitment ceremony but cannot be married under Australian law (Australian Government: Attorney General's Department 2010). However, it is notable that there is currently active political debate regarding same sex marriage in Australia.9

9 See for example, Peating, S. (2012). Gay debate delayed to lift support. Sydney, The Sydney Morning Herald. 28

Apart from the fact that in Iran and most Muslim countries polygamy has been permitted for men,10 one other major issue which differentiates marriage in Iran from many other societies is that in Iran men and women can legally enter what is known as a temporary marriage.

2.3.1.1.1 Permanent marriage in Iran This form of marriage is the only form recognised in most countries. When we speak of marriage in general, we would be referring to this form of marriage. I have used the term permanent here to differentiate it from temporary marriage. Anyhow, a permanent marriage is one which is entered into for one’s lifetime and may only be ended by death, annulment or divorce.

2.3.1.1.2 Temporary marriage in Iran Temporary marriage is a concept applicable to Iran in which the majority are Shi’a Muslims (Murata Sachiko 1979). The largest denomination in Islam is Sunnis’ which is then followed by Shi’as’. Each of these denominations has several sub branches. Since the country of focus in this thesis is Iran in which the majority of the population are Ja’fari (Twelve-Imam) Shi’as’,11 we will mainly be focusing on this group of Muslims.

The Twelve-Imam Shi’as’ and Sunnis’ have significant differences when it comes to the principles of the Islamic religion otherwise known as usul al-din, however, regarding jurisprudence or the Sharia and fiqh, Ja’fari law is highly similar to that of the four Sunni schools.12 One of these differences is on their position on temporary marriage or mut’a. Both Sunni and Shi’a authorities agree that there were times in the Prophets lifetime where he permitted temporary marriage, however, the Sunnis’ believe that by the end the Prophet completely banned such a foundation, whereas, the Shi’as believe that the Prophet never banned it (Murata Sachiko 1979).

Temporary marriage has been envisaged and permitted in the Iranian family law. It has been defined as a form of marriage which has been entered into for any specific period of time (1928 (last amended 1985) :Article 1075). Some of the laws, which deal with

10 This issue will be dealt with in Chapters Six and Seven. 11 The three Shi’a schools are, Isma’ilism, Ja’fari and Zaidyyah. 12 The four Sunni schools are Hanaf'i, Hanbali, Maliki, and Shafi'i. 29 temporary marriage and the children resulting from such marriages, are different to that of permanent marriage.13

While temporary marriage is an institution which is unique to Iran and is not recognised in any other country including Western societies, de facto relationships are an establishment that have not been acknowledged in Islamic laws and in countries which implement those laws. Today, in many Western countries de facto relationships, have gained a similar legal status to marriage; however, there is no single definition to identify who is considered to be in a de facto relationship.

2.3.2 De facto relationships In order to qualify as de facto partners different countries, and even different jurisdictions have set different requirements (usually a combination of factors) (Saez 2012), which need to be met. In Islamic countries such as Iran, de facto relationships have not been recognised. As a matter of fact, being in a de facto relationship is punishable based on the Islamic Penal Code of Iran (1991Articles 82-93); hence, there are no legal remedies for those who are in such relationships.

One of the Western countries, in which the law provides highly similar protection to those who are in de facto relationships as to those who are married, is Australian law (Witzleb 2011). Since in this thesis references and comparisons will be made with Australia and Australian law, therefore, it seems appropriate to refer to the Australian law, as an example, for defining who can be considered as a de facto partner.

2.3.2.1 Australian law and de facto relationships The Family Law Act (FLA) was passed in 1975 in which family and family law was based on the relationship of marriage. It was not until 1984 that non-marital relationships were legally acknowledged in family law for the purpose of property settlements with the enactment of the De Facto Relationships Act 1984 (NSW) (Fehlberg and Behrens 2008) and are now regulated by the FLA. Today, however, less than three decades after the legal recognition of de facto relationships, the law has developed to provide those who are in these relationships with a protection highly analogous to married couples (Witzleb 2011).

13 Temporary marriage will be further examined in Chapter Seven. 30

Section 4 AA of the Family Law Act 1975 with regards to de facto relationships states: ‘(1) A person is in a de facto relationship with another person if: a) the persons are not legally married to each other; and b) the persons are not related by family (see subsection (6)); and c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Paragraph (c) has effect subject to subsection (5). Working out if persons have a relationship as a couple

(2) Those circumstances may include any or all of the following: a) the duration of the relationship; b) the nature and extent of their common residence; c) whether a sexual relationship exists; d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; e) the ownership, use and acquisition of their property; f) the degree of mutual commitment to a shared life; g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; h) the care and support of children; i) the reputation and public aspects of the relationship…

… (5) For the purposes of this Act: a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship…’ (1975).

As we can see, in Australia (being an example of many Western countries) married and same sex couples can be in de facto relationships, which is another indication of the cultural differences between most Western and Muslim countries.

In countries in which de facto relationships have been recognised, couples in these forms of relationships have certain legal rights and obligations towards one another, and towards the children resulting from such relationships. This is important to the current thesis, since one of these legal rights and obligations is financial rights and obligations, which failure to comply by, can result in economic forms of abuse. What’s more, many surveys providing data on IPV (being one of our main sources of information) are 31 inclusive of de facto relationships. Therefore, despite the fact that they are not legally accepted in Iran and under Islamic law, recognition of these forms of relationships is essential to the current study.

2.4 Intimate Partner Violence (IPV)

2.4.1 Why IPV? The term IPV has been chosen due to the neutrality of the term. It not only covers violence perpetrated by spouses but it also includes other intimate relationships where the union is unregistered. I will explain.

Historically, the term wife abuse and IPV were used interchangeably, due to the existing common belief that IPV is a crime in which men are the perpetrators and women are the victims. The definitional controversy at that time was on what acts constitute violence against wives. However, it was not until the 1970s that research was produced in which the issue of violence against husbands was raised, and the terms spouse abuse, family violence and domestic violence were used that the major debate initiated (Gelles 1985a).

Spousal abuse, as is apparent from the term, engages violence perpetrated by one spouse against the other; therefore, it does not include other forms of intimate relationships such as de facto partners or dating couples, etc. Although ultimately the focus of this thesis is on spousal abuse, since this is the only form of intimate relationship that the law recognises in Iran, nonetheless, throughout this thesis references will be made to Western countries and results obtained from surveys in those countries in which de facto and other intimate partners have also been studied. As a result, the analysis of IPV in this thesis is not bounded by the marriage relationship. This then renders the term spousal abuse, which defines a narrower group of relationships, to be an inefficient descriptor of the behaviour which I am seeking to identify.

Regarding the terms violence against men (VAM) and violence against women (VAM), these terms, although encompassing IPV, are relatively broad terms, which can also include violence perpetrated by other members of the family or the society, and is not confined to violence perpetrated by an intimate partner. For this reason, the terms VAM and VAW, through covering a broader range of perpetrators, similar to spousal abuse are not suitable descriptors of the behaviours being studied in the current thesis.

This then leaves us with the question of why this thesis uses the term IPV instead of family violence or domestic violence. Domestic violence (DV) and family violence (FV) can be used in the same meaning, which is violence perpetrated by a family member,14 including, children, parents, intimate partners, and other family members. Nevertheless, in many studies, as Stanley, Tomison & Pocock (2003) argue, domestic violence has frequently been defined as relationship violence, intimate partner violence and gender-based violence. In such instances, domestic violence15 would fail to include those forms of violence perpetrated by other family members, who are not an intimate partner. This is the case with the definition provided by Tolan and colleagues in which they state: ‘Family violence occurs in many forms; the most prominent are domestic violence, child abuse, and elder abuse’ (Tolan, Gorman-Smith et al. 2006:557).

Many studies, which have approached IPV from a public health perspective, have employed the term DV and IPV to have the same meaning, as opposed to family violence which includes violence against family members other than intimate partner (Hegarty, Hindmarsh et al. 2000; Flood and Pease 2006; VicHealth 2006).

Therefore, in order to avoid any confusion for the purpose of this research domestic violence (DV) and intimate partner violence (IPV) will be used interchangeably, as opposed to family violence, which is violence perpetrated by other family members, and not merely intimate partners.

Now that we know who is to be considered as an intimate partner and which acts and behaviours are to be considered as violence, it is time to define intimate partner violence for the purpose of the following research.

14 See, Hegarty, K., E. D. Hindmarsh, et al. (2000). "Domestic violence in Australia: definition, prevalence and nature of presentation in clinical practice " Medical Journal of Australia 173: 363-367. 15 See also, Kaplan, S. J. (2000). "Family Violence." New Directions for Mental Health Services(86): 49-62. 33

2.4.2 Definition of intimate partner violence (IPV) For the purpose of this thesis, a combination of the definitions above will be used. My intention is to provide a comprehensive definition of violence in which all forms and elements brought in the other studies are communicated within one single definition: Intimate partner violence are constant or spasmodic violent acts or omissions, which have been conducted intentionally (World Health Organization c.2010) ) - even if the perpetrator did not intend the outcome of his/her acts but that outcome was reasonably foreseeable - against ones intimate partner. IPV can take various forms these include causing damage to property, spiritual (Department of Justice Canada 2001), ‘physical, emotional, psychological, financial, sexual’ (Shipway 2004:2), intellectual, educational, (Hamidi 2008), legal, administrative (Tilbrook 2010), social or verbal (Kirkby 1994) forms of violence. Such behaviours must be ‘threatened or actual, against oneself, another person, or against a group of community that either results in or has a high likelihood of resulting in injury, death, psychological [or emotional] harm, mal- development or deprivation’ (World Health Organization c.2010). These acts or omissions can take place at any time during, or after an intimate relationship has come to an end (Benevolent Society 2009). This includes, ‘State tolerated and State sponsored’ forms of violence (Tjaden 2005:3) and is normally a result of the unequal allocation of power (Morgan A. and Chadwick H. 2009).

The above definition is influenced by the human rights perspective since it includes those forms of IPV which have been sponsored or tolerated by the States. Also, an intimate partner is someone who the victim has or used to have a relationship with for over a week regardless of whether they have been sexually involved or not. This includes heterosexual and homosexuals and includes all forms of relationships including married couples, those in a de facto relationship and separated adolescents and adults.

In such cases, the question remains what if the above acts are carried out legally? Would that mean the law is permitting abuse or would it no longer be considered as abuse since it is legal? As we will further study in Chapter Seven of this thesis the government in Iran has in many cases accepted discrimination based on gender which has been reflected in different areas of law, family law being one of those areas. In the Iranian family law, many different rights and obligations have been envisaged for men and women, many of which are discriminatory and in opposition with the human rights principle of the equality of men and women. These include discrimination in rights and obligations in different matters such as divorce, inheritance, work and financial responsibilities, etc. Adopting the human rights perspective enables us to analyse those laws and policies which result in inequality and discrimination. Since, as we mentioned

34 earlier, it is through this perspective that State sponsored and State tolerated forms of violence can be studied and criticised.

2.5 Conclusion Definitions are a product of the milieu in which they have been offered. Religious, cultural, political and legal factors influence the perspective of the body providing the definition. As a result, a definition is then provided which not only encapsulates those factors but is also inspired by the rationale of the body offering the definition. Furthermore, as these factors are mutable, we can also expect adaptations in definitions.

While the public health and the criminal justice perspectives are valuable in studying IPV; nonetheless, they have certain limitations which can exclude us from the opportunity to study those forms of IPV that are sponsored and tolerated by the States. The human rights perspective provides us with the most comprehensive definition, and it enables us to study VAW, VAM and IPV. Also, all forms of violence encompass some type of exertion of power which is a result of the unequal distribution of power (Hajjar 2004; Morgan A. and Chadwick H. 2009). Approaching violence from a human rights perspective allows us to study those cases in which this unequal distribution of power may have been tolerated by the State or a result of the State laws and policies. As Jackman argues: ‘Especially germane are the decrees, decisions, and activities of governmental agencies (such as the police, courts, prison systems, armed forces, legislative bodies, and governmental bureaucracies) that adversely affect the welfare of groups or individuals’ (Jackman 2002:399).

While adopting this approach I will also take care to avoid the criticism of some rights approaches to violence. For example, Bufacchi (2005:197) quotes Betz (1977) as saying: ‘If violence is violating a person or a person’s rights, then every social wrong is a violent one, every crime against another is a violent crime, every sin against one’s neighbour an act of violence’.

As to whom an intimate partner is, and what constitutes violence, these definitions are also highly influenced by the perspective through which these topics have been approached. As societies have progressed, and through the recognition of IPV as a social problem, the definitions provided were in some cases broadened to encompass more behaviours as violent (Gelles 1985a). What’s more, not only have definitions

35 gradually grown to include more behaviours, but overtime men have also been identified as victims of violence which has then resulted in the term wife abuse to give its place to spousal abuse, domestic violence and intimate partner violence (Gelles 1985a).

Changes in definitions and the recognition of men as victims of IPV have had significant effects on research, surveys, and data obtained from those surveys. One example of these changes is that, by including men as victims of IPV, we now observe the inclusion of men in VAW surveys as well as the development of the CTS, which we will see to in more detail in the next chapter.

3 Chapter 3 - Measuring IPV

3.1 Introduction Violence is difficult to measure for various reasons. One of the most salient features of studying violent crimes is that, it is very likely to have entailed an experience in which the victim has been reluctant to disclose the event to any other person. Hence, when these people are asked certain questions they may have to go far back to remember the details of the event. This issue may be exemplified in cases where the experience has been severely disturbing in which case the victim may have been trying to forget the incident (Posselt 2005). Therefore, many experiences may not be remembered correctly, or the dates in which they occurred may not be clearly recalled by the victim. In the case of IPV, the case is exacerbated in that women are less likely to report violence committed by partners than when it is committed by other known offenders, or strangers (Gartner and Macmillan 1995; Ferrante, Morgan et al. 1996).

What’s more, as we saw in the previous chapter, different definitions have been provided for an intimate partner and violence. When the results of various information sources are being compared to one another, these different definitions could act as another barrier in measuring violence. This is also the case with the methods by which IPV is measured.

Studying methods with which IPV is measured is fundamental to the current study, since, much of the information in this thesis is obtained through sources which have utilised such methods. Also, when analysing the results provided through the use of such methods, attentiveness to the existing shortcomings of each method is necessary. It is through these methods that we obtain knowledge of the effectiveness of the current laws and policies, and their correspondence to the existing beliefs. However, it should be noted that my intention is not to carry out a comprehensive review of all international sources of data dealing with IPV. Note that the Australian Bureau of Statistics (ABS) has published a comprehensive index to sources of data on family and domestic violence within Australia (Australian Bureau of Statistcs 2011). Below I will study the main methods by which IPV has been measured through time, and developments since the earliest years of measurement. Despite the advances, e.g. the Violence Against Women surveys across the world, the Conflict Tactics Scale 2 (CTS2) there are

37 limitations in what forms of violence are measured and the types of relationships that are covered.

In this chapter, I will first study the different methods by which IPV has been measured. I will then draw attention to the strengths and shortcomings of each of these methods, as well as their developments through time. Even though the country of focus in this thesis is Iran, comparisons will be drawn with the U.S and other Western countries. For this reason these measurement tools will be studied in the U.S., Australia and Iran. I will then draw attention to the shortcomings of these methods in general, since these shortcomings explain the lack of information on some forms of violence.

3.2 Measurement and extent of IPV As previously mentioned, one of the most important issues one faces when studying IPV and comparing research results, both within a country and internationally is the heterogeneity of the methods used to measure such behaviours (Krahé, Bieneck et al. 2005). Below are various methods by which IPV has been measured overtime. As we will see each method has its strengths and limitations.

My primary focus in this section will be on the United States of America since, besides the fact that it is the first country to have a national survey using the Conflict Tactics Scale (CTS) methodology, the most comprehensive information on crime statistics from administrative and survey data are published in that country. However, in cases where Australian and Iranian data sources are relevant those data will also be examined. 16

The focus of this section is also on instruments that have been used to estimate the prevalence or incidence of IPV for whole populations. Because of this emphasis, the section does not cover measurement instruments that have been used for clinical samples of individuals.

16 There is no exact statistics and data available on the rate and prevalence of IPV and different forms of IPV against either men or women in Iran. As we will further study in this chapter, some research and surveys have been conducted which reveal the existence of different forms of IPV both against men and women in Iran. Also, we will further see in Chapter 4 there is sound evidence of the prevalence of IPV in Iran. 38

3.2.1 Administrative data

3.2.1.1 Police records Police records are significant sources of information on IPV and remain the primary source of information on fatal violence. Historically knowledge of crimes and victims for the purpose of providing information for crime statistics came primarily from judicial reports, which then shifted to police reports, and ultimately to reports by victims (Maltz 1977:40).

3.2.1.1.1 United States of America Two separate agencies of the Department of Justice in the United States run nationwide statistical programs to measure the extent, nature and impact of crime. One of these programs is the National Crime Victimisation Survey (NCVS) which uses a survey methodology and is run by the Bureau of Justice Statistics (this will be seen to further below). Of immediate interest, however, is the Uniform Crime Reporting program otherwise known as the UCR. This program is sponsored by the Federal Bureau of Investigation (FBI). Having been developed in the 1930s the UCR investigates crimes such as major thefts and violent crimes, white collar crimes, crimes related to civil rights, public corruption, terrorism, cyber- crimes, organised crimes and counterintelligence. Each of the mentioned crime categories covers a broad range of crimes (Federal Bureau of Investigation 2010 a). The UCR collects and validates data on crimes reported to police that originate from local police agencies throughout the United States. The findings are then published in a detailed annual report (Federal Bureau of Investigation 2010 b).

In addition to crime counts and trends, the reports provided by the UCR include information on persons arrested (age, race, and sex), crimes cleared, law enforcement personnel (including the number of sworn officers killed or assaulted) and the characteristics of homicides (including age, sex, and race of victims and offenders). The UCR reports also provide information on victim-offender relationships, weapons used and circumstances surrounding the homicides (Federal Bureau of Investigation 2010 b).

Through time, law enforcement agencies have developed, and provided an increasing amount of data on crime. As a result in the 1970s the law enforcement community found the need to reassess the UCR Program, in order to provide methods in which new and developed methods of data collection could be introduced that would correspond to 39 the requirements of law enforcement. Consequently, the National Incident Based Reporting System (NIBRS) was introduced which was then approved by those participating in the national UCR conference held in 1988 (Federal Bureau of Investigation c.2012).

The NIBRS is more detailed and is an incident based reporting system, in which data on every crime which occurs and which is reported to the police is collected through agencies. NIBRS can provide information on almost any criminal justice matter which is facing law enforcement, domestic violence and spousal abuse being among those matters (Federal Bureau of Investigation c.2012). It also provides information on offenders (sex, age and race), victims (sex, age, race), and the victim-offender relationship (U.S. Department of Justice, Federal Bureau of Investigation et al. 2000). Although limited in scope, NIBRS agencies constitute about 25% of all agencies and have jurisdiction over about 16% of the U.S. population (Durose, Wolf Harlow et al. 2005:29), nonetheless, it allows for more comprehensive reporting for the jurisdictions that provide the data.

Not only does the NIBRS provide information on family violence but also by distinguishing the victim-offender relationship we obtain data on those cases of family violence which are IPV (DV). Also, by providing information on the sex of the victim and offender we also gain access to information on crimes which are violence against women (VAW) and violence against men (VAM).

3.2.1.1.2 Australia In Australia, similar to that in the United States, police statistics provide a salient source of information on crimes among which is the prevalence of violence. Since 1993, crimes, which have been reported to and recorded by the police in the different states and territories, are then compiled by the Australian Bureau of Statistics (ABS) and published annually in the Recorded Crime-Victims, Australia (Posselt 2005).

However, some states are unable to provide information about the victim-offender relationship for relevant offences. This happens to be the case for all crimes reported in Western Australia, in which data regarding the relationship of the offender to the victim is not reported. In the 2010 publication, the relationship, which the offender has with the victim, is considered at the time the offence took place. Information regarding the

40 relationship between the victim and the offender can be found in the chapter Victims of crime, states and territories of these publications (Australian Bureau of Statistics 2010 :38).

What’s more, across Australian jurisdictions there appears some discrepancy in coding former and current boyfriends and girlfriends which results in them falling under different categories in different jurisdictions. All this leads to specific problems to arise both, within different jurisdictions and for jurisdiction comparisons on assaults and sexual assaults (Australian Bureau of Statistics 2010 ). Finally, an issue that relates to all recorded crime categories is that data reported for the 2010 year represents a break in the series due to the adoption of national recording standards, and should not be compared with data from previous years (Australian Bureau of Statistics 2010 :5).

An example of the patterns revealed by the Recorded-Crime Victims, Australia publication concerns sexual assault. Based on the 2010 report, 6,436 people were victims of sexual assault in New South Wales. Eighty four percent of these victims were female. Three percent of male victims of such crimes were victimised by a partner while this rate was 15% for female victims (Australian Bureau of Statistics 2010 ).

Therefore, the police records in Australia, by providing information on the sex of the victim, enable us to assess the rate of VAW and VAM. However, as these records do not always provide data on the victim-offender relationship they may fail to be an efficient source of data on IPV (DV).

3.2.1.1.3 Iran In Iran the police data is not published.17

3.2.1.1.4 Advantages and disadvantages of police records Police and judicial reporting of crime victims and offenders as we saw have many advantages and they complemented the NCVS. Some advantages are that they are the main source of information on homicides (and different forms of homicides). What’s

17 Some information on homicide rates in Iran can be found through information provided by the United Nations, e.g. United Nations (2010). "Intentional homicide, rate per 100,000 population." Retrieved 12/08/2011, from http://data.un.org/Data.aspx?d=UNODC&f=tableCode%3A1. 41 more, the UCR program not only provides crime rates for the whole Nation but, it also provides crime rates for different regions, states, counties, and cities (National Archive of Criminal Justice Data 2010; National Archive of Criminal Justice Data 2010). The advantage of that is that it provides information on different jurisdictions within the U.S. which will provide a useful source in order to study the effect of legislation on IPV.

Other advantages of police records are that apart from being an indicator of police workload, they also cover a broader range of violent offences. They not only provide information on family violence, but by offering information on the victim-offender relationship, they are also a dependable source of information on IPV (DV). What’s more, by defining the sex of the victim and offender, they also happen to provide valuable information on VAW and VAM.

While being a valuable source of data, police records also have many disadvantages. Since many crimes do not get reported to the police, there is an absence of information on such crimes; therefore, relying solely on police records to improve crime policy would be a challenging task. There is also the possibility of crimes being misreported for political and institutional reasons. Needless to say, of those crimes which do get reported to the police not all are conveyed to the UCR (Hindelang 1974:2,5).

Hindelang (1974:2), has listed many of the criticisms forwarded to the UCR among which are that based on the crime categories provided by the FBI, very different behaviours can be placed in the same category. These categories also have different definitions within different states. The difference in definitions provided for these categories can then result in different terms to be used when reporting the same crime which can make it difficult when assimilating the data. Also, the manner in which multiple offences and multiple crimes are dealt with are very basic. This is apart from the fact that a plethora of information regarding the nature, the circumstances and the consequences resulting from the crime is not dealt with by the UCR. Therefore, lot of valuable information about the offences is lost during the compilation of information.

Furthermore, legal systems and laws have an effect on reporting crimes to police, which means the crimes reported to police are far fewer than the actual number of crimes committed (Dugan 2003). Hence, with changes in laws, policies and police conduct, 42 changes will occur in crime reporting rates (Hindelang 1974). This in return affects the reliability of data provided by Uniform Crime Reporting (UCR) (Dugan 2003).

Another disadvantage of police recorded crime is that, in many cases, the relationship of the victim and the offender has not been reported or has not been recorded. These unrecorded relationships are then categorised as stranger violence, instead of partner violence which then affects the estimates of spousal abuse (Hindelang 1974; Ferrante, Morgan et al. 1996). This is apart from the fact that UCR data bring all forms of domestic disturbances and domestic violence under domestics which further complicates whether it was a case of intimate partner violence or any other form of disturbance (Dugan 2003).

The Recorded Crime-Victims, Australia publication, like the UCR reports has its strengths and limitations. Whilst it is a valuable source of information on various victim and offence characteristics such as sex, age, location, the relationship between the victim (in some cases) and the perpetrator, it cannot provide information on crimes which are unreported. Personal crimes tend to be even more under-reported than household crimes. Victims of violent crimes and sexual violence in particular regardless of their gender or age often prefer not to report the crime especially to the police. Another limitation is that the information acquired from various jurisdictions may not be consistent because of differences in definitions and categorisation as mentioned earlier (Posselt 2005).

One way of overcoming the limitations of police data is through the use of surveys. Surveys provide us with valuable information, and in many ways compliment police data. Nonetheless, these sources of information, like any other source of data have their strengths and their shortcomings.

3.2.2 Surveys One way of thinking about the various surveys providing information on Violence Against Women (VAW) and domestic violence is that provided by Walby. Walby (1999; 2001) categorises the surveys into four categories or generations. In the first generation, are the Generic National Crime Surveys. Walby’s second generation surveys were first generation surveys with revised question wording. Importantly, this revised question wording was designed to illicit more complete information about

43 offences committed by offenders well-known to the victim. The third generation surveys are Dedicated DV Surveys and finally, the Violence Against women (VAW) surveys are the fourth generation of surveys.

What Walby refers to as the first generation of surveys includes the US National Crime Victimisation survey (NCVS) which is conducted by the US Bureau of Justice on an annual basis. The British Crime survey, which was published by the UK Home office biannually until 2001 (Walby 1999; Walby and Myhill 2001) and is now published on an annual basis (National Archive of Criminal Justice Data 2010), is also included in this category. Another first generation survey is the survey conducted by the Australian Bureau of Statistics which was referred to as Crime and Safety Survey until 2005 (Walby 1999; Walby and Myhill 2001:504) and was carried out irregularly. The Australian component of the International Crime Victimisation Survey (ICVS) (Johnson 2005), which is fielded by the Australian Institute of Criminology, also fits within this generation of surveys (this survey will be dealt with below).

The second generation consists of the revised versions of the US National Crime Victimisation Surveys (NCVS) carried out by the US Bureau of Justice (1992) and the British Crime Survey conducted by the UK Home Office (1996) (Walby 1999).

The third generation consists of dedicated DV surveys. The US National Family Violence Survey conducted in the US by Straus and Gelles in 1975 and 1985, and the National Survey of Wife Abuse conducted in 1986 by Romkens in the Netherlands are of this generation (Walby 1999).

Finally, we come to what Walby has categorised as generation four surveys, which are the Violence Against Women Surveys (VAW). The first or prototypical Violence Against Women Survey was conducted by Statistics Canada in 1993. This survey inspired other VAW surveys to be conducted in Australia, Iceland, the U.S. and Finland. These surveys are discussed later in the chapter.

While Walby’s categorisation has been useful, they have certain limitations, for instance, failure to comply with the chronological order in which those surveys appeared. For instance, Walby has introduced the CTS as the third generation of surveys. However, the CTS was introduced prior to what Walby has categorised as the 44 second generation. With the limitations in mind, from here on I will discuss those surveys without referring to Walby’s generational labels.

3.2.2.1 Crime surveys - the context of crime In this section I will be focussing on what Walby and Myhill have referred to as the second generation of surveys. The second generation surveys are crime surveys, which have been modified, to focus more on Violence Against Women. Efforts were made to ensure respondents would report more behaviours of concern to those carrying out the interviews. Some of these efforts include rephrasing the interview questions in order to take account of more comprehensive questions regarding those issues of concern (Bachman and Taylor 1994) as cited by (Walby and Myhill 2001).

Crime surveys are reliable sources of information and are independent to police organisation. These surveys provide their own lay definition of crime. Hence, while the laws may be different in various jurisdictions, through these surveys information about crimes is obtained directly from the public. Therefore, they are significant sources of reference, when making comparisons between various jurisdictions. Crime surveys are also important sources on providing information regarding reasons as to why people report, or fail to report crimes, as well as facilitating the interpretation of police statistics (Morgan and Weatherburn 2006).

Until the late 1960s, as we have previously seen, information about crimes and victims were known through the reports filed by the local police agencies as part of the FBI’s Uniform Crime Reporting (UCR) system, or through the files being studied by individual police departments (Groves and Cork 2008). However, the NCVS developed from surveys, which were commissioned in the 1960s by the President’s Commission on Law Enforcement and Administration of Justice (1967), and was further developed during the 1970s (Bachman and Taylor 1994).

Prior to 1991, the NCVS was known as the National Crime Survey (NCS) (Bachman and Taylor 1994). National crime surveys were primarily developed in the United States in 1972 to fulfil certain purposes (Rand and Rennison 2005). The intention of the National Crime Surveys was to measure criminal victimisation, including incidents that were not reported to the police and not dealt with by the courts (Walby and Myhill 2001). Crime not reported to police or not registered in the statistics of the agency that

45 were providing the data are what criminologists consider as a dark figure. Therefore, crime surveys were guaranteed to enlighten the dark figure, which then existed (Biderman and Reiss 1967).

Also, among other purposes, the NCS was to be used as a guide on how behaviours regarding reporting crimes to the police have changed overtime, in addition to measuring the public’s confidence in police competence. Furthermore, the NCS was to move the focus of the criminal justice system away from the offender and direct it towards the victims of crime and to study how the victims had been involved in the act (Rand and Rennison 2005). The NCVS has provided information in relation to crime and victimisation since 1973 (Westat 2006).

By conducting national surveys of residential addresses, the NCVS collects data on individual and household victimisation and compares men’s and women’s experiences with crime (Bachman and Taylor 1994), regardless of whether the crime was reported to police or not (Dugan 2003). This is done by choosing a large sample of people, who are 12 years or older, and inquiring as to whether they have been victims of domestic violence (Ferrante, Morgan et al. 1996). The NCVS measures crimes from the general crime victimisation perspective, therefore, participants answer with that in mind (National institute of Justice 2010).

The NCVS provides information on crimes, victims and offenders such as their sex, race, age, their relationship with each other, their marital status and ethnicity. The survey also provides information on the approximate percentage of each crime that has been reported, and information on why victims have or have not reported crimes (Bureau of Justice Statistics 2010). In 1986, several changes were made to the Crime Incident Report one of which was to better investigate the relationship between the victim and the offender (Rand and Rennison 2005).

The survey was redesigned in 1993, and new questions regarding IPV have been brought which has resulted in more information regarding IPV to be provided. Intimate partner has been defined to include spouses, ex-spouses, girlfriends and boyfriends, ex- boyfriends and ex-girlfriends, and it also includes same sex relationships (Rennison and Welchans 2000). Information regarding offenders is asked from victims of violent crimes such as rape, sexual assault, attempted rape (which includes verbal threats of 46 rape), aggravated and simple assault and robbery. Data on homicide is gathered through the UCR reports (Bureau of Justice Statistics 2010). This data reveals that 30% of homicides of females and 5% of homicides of males were committed by intimate partners. In the case of non-fatal violent victimisations as revealed by the NCVS, the data reveals that the rate per 1,000 persons aged 12 or over is 4.2 for females and 0.9 for males and this represents 21.5% of violence for females and 3.6% of violence for males. However, there has been a decline in nonfatal intimate partner violence rates for both genders since 1993 (Catalano 2007).

This survey further provides information on whether the victims have entered the criminal justice system or not and if yes what they had experienced, how the victims have protected themselves, etc. For this reason, it not only makes it the nation’s main source of data on criminal victimisation, but it also provides the victims with the greatest national opportunity in order for them to describe the impact of crime and the characteristics of violent offenders (Bureau of Justice Statistics 2010).

The NCVS enables the BJS to estimate the above mentioned crimes for the whole population, and also for groups of the population based on age, gender and various racial groups, income and marital status. Information is provided on the ‘frequency, characteristics and consequences of criminal victimisation’, from a nationwide representative sample of 76,000 homes, consisting of almost 135,300 persons (Bureau of Justice Statistics 2010). Respondents are interviewed every 6 months for a total of 7 interviews over a 3 year time period. All family members above the age of 12 are interviewed, and the first and fifth interviews are face to face while the rest are by telephone. After 3 years, the household is replaced with a new household (Westat 2006).

A number of researchers have stated that when using NCVS as the survey method, a lower estimate of rape and domestic violence is reported than other methods such as the NVAWS (Rand and Rennison 2005; Groves and Cork 2008). Also, contrary to the findings of the CTS (see below), surveys conducted using the NCVS show that women are much more likely to be a victim of partner violence than are men (Tjaden and Thoennes 2000).

Today the NCVS, is sponsored by the Bureau of Justice Statistics (BJS), and is the second largest Survey, run by the U.S. government (Dugan 2003). Each year within the United States, information is gathered, which allows the BJS to calculate the approximate risk of being a victim of certain crimes such as ‘rape, sexual assault, robbery, assault, theft, household burglary, and motor vehicle theft’. This survey also sees to property crimes, which affect victims and household members, but have not been reported to the police (Bureau of Justice Statistics 2010).

Nowadays, the NCVS measures other crimes which previously had not been addressed in the survey. Crimes such as stalking (Catalano and Baum 2009) and hate crimes, which are crimes committed due to the victims gender, religion, ethnicity, sexual orientation, race or disability (Rand and Rennison 2005). Crime victim surveys are now conducted at regular periods in the USA, Canada, the UK (Johnson and Sacco 1995) and Australia (Ferrante, Morgan et al. 1996).

The International Crime Victimisation Survey (ICVS) is another crime survey which takes place on an international level. This survey was first effective in 1989 and was conducted in Canada, USA, Switzerland, Spain, Scotland, Norway, Northern Ireland, Netherlands, Japan, Germany, France, Finland England and Wales, Belgium and Australia (we will see to Australia below). In Poland (Warsaw), Indonesia (Surabaya), city surveys were conducted. Up until today the ICVS is the most comprehensive instrument with which crime and attitudes towards crime and the criminal justice system in a ‘comparative’ international level can be studied (Van Dijk, Van Kesteren et al. 2007).

The ICVS studied two different groups of crimes, household crimes and personal crimes. Personal crimes include respondent’s personal experiences of threats and assaults including sexual threats and assault and robbery and theft (Van Dijk, Van Kesteren et al. 2007).

One of the advantages of the ICVS is that it provides a standardised approach to the definition of victimisation. Since the same questionnaires are used in different countries, the definitions will be consistent. Also, like other crime surveys, it provides information on those crimes which have not been reported to the police. What’s more, these surveys provide information on whether the victims of crimes have reported the incident to 48 police themselves or whether the police had reported the crime (Van Wilsem 2004). This provides useful information on the effect of laws and the legal system on the reporting of crimes.

3.2.2.1.1 Criticisms to the NCVS The NCVS is a comprehensive source of information since it provides data on the sex of the offender and victim, as well as the relationship between the victim and the offender. This enables us to attain data of those violent crimes which are IPV (DV) and distinguish them from other forms of family violence, as well as to gain knowledge of forms and rates of VAW and VAM. Nevertheless, unlike any other method, the NCVS has its own limitations.

In general, some criticisms about the NCVS can be summarised as follows:  Second generation crime surveys have tried to prompt victims to report violent victimisation regardless of the relationship between them and the offender. However, despite such attempts the surveys focus on crime does not sufficiently encourage participants to mention incidents of domestic violence (Ferrante, Morgan et al. 1996);  In common with all surveys, this survey asks participants to remember events which happened sometime in the past. However, reporting by respondents could be affected by issues such as forgetting the events which happened or forgetting the time period in which they happened, each of which affect the results (Ferrante, Morgan et al. 1996; National Archive of Criminal Justice Data 2010);  The violent acts dealt with by the NCVS are limited to rape, aggravated and simple assault (physical violence) and robbery. Therefore, this survey fails to deal with many of the other forms of violent acts such as economic violence, social violence, and emotional violence, as defined in Chapter Two.

3.2.2.1.2 Australian Surveys The first National Crime Survey in Australia was conducted in 1975 (Australian Bureau of Statistics 1979) as cited by (Morgan and Weatherburn 2006) and subsequently in 1983, 1993, 1998, 2002 and 2005. Today the ABS provides information on crimes and ‘people’s experiences with crime’ through the Crime Victimisation Survey. This survey was introduced in 2008-2009 and replaced the Crime and Safety Survey which was last conducted in 2005 (Australian Bureau of Statistics 2008-09). The Crime Victimisation Survey, which is published annually, complements the Recorded 49

Crime –Victims collection which is also published by the ABS (Australian Bureau of Statistics 2008).

Due to the differences in the methodology and survey questions, results obtained from the 2008-2009 Crime Victimisation Survey, and Crime Victimisation Surveys following cannot be directly compared with the results and information obtained from Crime and Safety Surveys. The Crime Victimisation Survey is carried out using the ABS Multi- Purpose Household Survey (MPHS) which is carried out annually in Australia as a complement to the ABS monthly Labour Force Survey (LFS). The 2008-09 MPHS data were collected through telephone interviews or personal interviews at selected residences. Data for 2005 were obtained from the National Crime and Safety Survey, through the mailing of paper questionnaires to LFS respondents. Two sets of questionnaires were sent to each household participating in the survey. One of these questionnaires was to be answered by each member of the household, and it was regarding his/her experience of crime. The other questionnaire was to be answered by one member of the household and enclosed questions regarding the household’s experiences of crime (Australian Bureau of Statistics 2008-09).

Among other changes between the 2008-09 and the 2005 surveys, are the changes in questions regarding assaults. In the 2008-09 survey, separate questions were asked on the subject of assault and threatened assault, while in the 2005 survey information regarding incidents of assault and threatened assault were combined (Australian Bureau of Statistics 2008-09).

The rate of victims reporting physical assault to the police based on the 2008-09 Crime Victimisation Australia Survey was 39% (Australian Bureau of Statistics 2008-09). Crime Victimisation, Australia 2008-09 does not provide national data on sexual assault, but it does provide information on physical and threatened assault. However, information on sexual assault can be obtained from the 2005 National Crime and Safety Survey and the Personal Safety Survey, also conducted in 2005 (Australian Bureau of Statistics 2005).

As we mentioned in the previous section, the International Crime Victims Survey (ICVS) is a crime survey which is conducted on an international level. The ICVS were conducted in 1989, 1992, 1996, 2000 and 2004. Australia has participated in all of those 50 cycles but the 1996. The Australian Institute of Criminology administered the Australian component of the ICVS in 2004. Seven thousand people were interviewed and information was obtained on their perceptions and attitudes towards crimes and the criminal justice system (Johnson 2005).

The participants, being 16 years and over, were selected and interviewed, through random digital dialling of private households in Australia. The information was obtained through Computer-Assisted Telephone Interviewing (CATI). The interviewers asked participants questions regarding 6 household crimes and 3 personal crimes, including assault and whether they had experienced any of those crimes within the past five years. The response rate was 53% from which 52% of those had experienced some form of crime. Household crimes were reported to have been experienced more in comparison to personal crimes. Also, those who were married reported a lower rate of personal crimes than those who were single, in a de facto relationship, separated or divorced. This was also the case when assaults/threats were analysed separately. However, there was a higher rate reported for Indigenous people and those who lived in English-only speaking households (Johnson 2005).

The ICVS and the Crime Victimisation Survey have the same advantages of the NVCS. Considering that they both provide information on the sex of the victim and the offender and their relationship with one another, they are a good source of information on studying IPV (DV).

3.2.2.1.3 Iranian Surveys There are no comparable crime surveys in Iran.

3.2.2.2 The Conflict Tactics Scale (CTS) – the context of relationship conflict Louis Coser and Ralph Diihreiidord being conflict theorists argue that people have different interests, and it is very normal for these interests to conflict in some cases. They refer to this as conflict of interest. While conflict is valuable, the method used for resolving conflict (conflict management) could be problematic. People may resort to various methods to solve the same problem; some of these methods could be resorting to violence. Therefore, conflict management is what is referred to as conflict tactics (Straus 1979; Straus 2007).

Murray Straus introduced the Conflict Tactics Scale (CTS) in the 1970s, and the focus of this instrument was on physical and psychological violence between partners. It also examined intimate partners’ use of reasoning and negotiation in order to manage conflict. The CTS presents the subjects (being male or female) with a wide range of violent acts. These acts have been categorized into minor and severe violent acts. The participants are then asked how often had they, in order to resolve a family conflict, perpetrated or been a victim of any of those acts within their households (Straus, Hamby et al. 1996). This survey does not deal with attitudes towards behaviours (Straus 2007).

According to Straus, of all households that reported violence, 27% reported only male on female violence while 24% of the households reported only female on male violence. Mutual IPV was the highest reported at a rate of 50%. Straus found that women are almost equally violent to men (Straus 1979) as cited by (Grady 2002:72).

3.2.2.2.1 Criticisms of the CTS The CTS is the most common method used to measure family violence. However, many researchers and theorists have criticised the CTS from many aspects, generally saying that it has a low threshold of violence, and therefore, came up with high estimates of IPV (Taft, Hegarty et al. 2001). Some other criticisms forwarded to the CTS are as follows:  Does not deal with context and consequences of the violent behaviour (Taft, Hegarty et al. 2001:499; Straus 2007:194);  Is limited to Conflict-Related Violence (Straus 1990b:56; Straus 2007:194);  Is restricted to certain violent behaviours (Straus 1990b:56);  Threats are regarded as violence (Straus 1990b:53; Taft, Hegarty et al. 2001:499; Straus 2007:193);  Takes no notice of who commences violence (Straus 1990b:57; Straus 2007:194);  Does not concentrate on the circumstances under which the violence was perpetrated (Straus 1990b:53);  Even though acts have been divided into minor and severe violent acts, however, the CTS still equates acts that are significantly different in seriousness (Straus 1990b:57);  Does not take notice of the fact that men tend to minimise the violence they have perpetrated and overstate those perpetrated by their partners (Straus 1990b:56); 52

 Does not include sexual violence by ex-partners (Straus 2007:194);  Does not deal with acts such as ‘sexual abuse, stalking and choking’(Straus 1999);  Not dealing with violence which occurs after separation or divorce since in this period women are more likely to be victimised (Taft, Hegarty et al. 2001:499; Straus 2007:194; National Institute of Justice 2010);  Similar to the NCVS this survey was criticised on the basis that self-reporting of incidents which happened in the past year are subject to memory errors (Taft, Hegarty et al. 2001:499).

Nonetheless, many researchers have adopted the CTS method, and some claim that the results are too numerous and consistent to ignore. Some feminist researchers, on the other hand, argue that quantitative methods are inadequate. Yllö argues that quantitative methods present a distorted view of the truth, ‘because they are widely open to the interpretation of the researcher and...because they originate from a patriarchal perspective of the world’ (Yllö 1988) as cited by (Grady 2002:78). However, Grady notes the first assertion inverts the common methodological position while the second is perhaps more persuasive (Grady 2002:78).

3.2.2.2.2 The CTS2 As a result of the criticisms forwarded to the CTS, the CTS has been revised many times and ultimately the CTS2 was adopted in which many of the criticisms forwarded towards the CTS have been addressed. In the CTS2, the questions are presented in pairs. The first question is about how often they had resorted to each of those behaviours in the period mentioned, and the second question is regarding how often their partner has resorted to those behaviours in the referent period. The changes in the format of the CTS enables this instrument to be used as a self- administered questionnaire rather than interview questions (Straus, Hamby et al. 1996;

Straus 2007).

In 2000, 39 behaviours were measured by the CTS2; these behaviours were placed into 5 categories:  ‘Negotiation (replaces the reasoning scale in the CTS);  psychological aggression;  physical assault (previously physical violence in the CTS); 53

 sexual coercion;  consequence’ (physical injury) (Straus, Hamby et al. 1996:289-290; Acierno 2000);

Sexual coercion and consequence are two scales that have been newly added and did not exist in the first version of the CTS. Some changes have also been made to the wording of the questions, for example, in the CTS2 instead of asking his/her or him/her as was used in the CTS, now the term my partner is being used. Other changes to the phrasing of the questions have also been made so that issues, which previously had to be derived from the context, are now explicitly specified. For example, now the item is threw something at my partner that could hurt, whereas previously the term that could hurt was not in the item. However, the CTS2 similar to the CTS has been worded and structured simply so that people who are not highly educated can respond to it. It can also be used for gathering information from people coming from different cultures as was the case with the CTS (Straus, Hamby et al. 1996).

The frequency of each behaviour is rated on an eight-point scale, ‘never, once, twice, 3- 5 times, 6-10 times, 11-20 times, more than 20 times, or not in the past year’ (but the behaviour has happened before) (Straus, Hamby et al. 1996:305; Acierno 2000).

As we mentioned before, in the CTS acts had been divided into minor and severe. This structure has been kept in the CTS2; however, some changes have been made which enhances the function of this scale. The CTS2 is enhanced in such a way that it deals with certain violent behaviours such as psychological abuse separately. As we saw in the CTS threats are considered as a form of physical abuse, however, it seems that with the adoption of the CTS2 they would fall under psychological abuse which seems to be more appropriate based on the definitions provided in Chapter Two of this thesis. What’s more, the minor and severe classification now also applies to sexual coercion, psychological aggression and the injury scales brought in the CTS 2 (Straus, Hamby et al. 1996).

Previously, in the CTS the questions were listed in a hierarchal order; however that has been subject to change. In the CTS2, the questions are now brought in an interspersed order. With the current changes, it is expected that the participant will think more about a question before responding (Straus, Hamby et al. 1996). 54

Even though the CTS has been modified in many ways, and many of the previous criticisms have been addressed, this does not mean that all the problems have been solved. One of the problems which still remain is that the CTS2, similar to the CTS, continues to measure in the context of conflicts. Therefore, it fails to include cases where the abuse is control- instigated, in self-defence or where the cause of the violent behaviour is unknown (Dekeseredy and Schwartz 1998). This is one issue, which most feminist scholars tend to focus on, when criticising the CTS.

3.2.2.2.3 Australian surveys Many surveys have been conducted in Australia which have made use of the CTS. One of these surveys is the International Dating Violence Study (IDVS). In 2001-2006, the International Dating Violence Study (IDVS), while making use of the CTS collected information on dating violence in 32 nations, Iran and Australia being two of those countries. The study samples for the IDVS were students at universities which were given questionnaires regarding dating violence (Straus 2001-2006).

One of the characteristics of this survey, which is of considerable importance to the current study, is that it enables us to study how socio-cultural differences influence the causes of dating-violence. Investigators in each country were familiar with the socio- cultural backgrounds of each location in which they were conducting the survey. The investigators also added one or more questions in order to cover the issues which were specific to each locality (Straus 2001-2006).

In a conference paper written by Murray Straus, the findings of the International Dating Violence Study18 physical assault and psychological aggression scales were examined in order to see the prevalence of these acts. Elsewhere in this chapter data has been presented on victimisation prevalence, however, this study has dealt with perpetration prevalence.

In Australia, the total violence perpetrated was found to be 22.7% (perpetration prevalence was 28.6% by men and 21.5% by women). Australia was among the countries in which total dating violence was among the lowest. However, when it came

18 Note that the convenience samples of university students used for this study should not be

taken to represent national rates. 55 to examining severe violence Australia was no longer in the lower end of nations. Among dating couples in Australia, the prevalence of severe violence was 9.4% (male perpetration was 11.9%, and female perpetration was 6.0%). What’s more, this study found that mutual violence was the most common pattern of violence perpetrated. Mutual violence was the pattern amongst 63.5% of violent couples (Straus 2008:2-3).

3.2.2.2.4 Iranian surveys The International Dating Violence Study was also conducted in Iran. This survey found dating violence to be higher in Iran than any other country. The prevalence of perpetrating dating violence was 41.0% (male perpetration 43.0%, female perpetration 40.0%). In the case of severe violence, the rate of perpetration was 15.3% (male perpetration 17.4%, female perpetration 8.5%). Again, when it came to mutual violence the highest rate of mutual violence was reported in Iran (92.6%) (Straus 2008:2-3).

The results of the IDVS suggest that there is a considerable amount of violence among dating partners in Iran, far higher than found in Australia and other countries. However, the use of convenience samples of university students limits the degree to which these results can be generalised to all dating violence in Iran and Australia.

3.2.2.3 Violence against women surveys (VAW) - the context of violence against women The VAW surveys originated in the Statistics Canada Violence Against Women Survey in 1993 (Johnson and Sacco 1995). Many countries have then used this methodology with some modifications. Countries such as Australia, Denmark, Finland, France, Germany, Ireland, Italy, Lithuania, Mexico, Moldova, Spain, Sweden, Switzerland, USA and the UK are among those who have used this methodology (UNECE 2009).

The purpose of the original Canadian VAW survey was to ‘provide reliable estimates of the nature and extent of violence against women perpetrated by male partners, acquaintances and strangers and to examine women's fear of violence in order to support current and future federal government activities’(Statistics Canada 1993). Through this method, women who were 18 years of age and older were interviewed (with some exceptions). Even though participation was voluntary, from all the households that were contacted 91% agreed to be interviewed (Statistics Canada 1993). Through time the VAW was expanded to include men, and men were also interviewed

56 or were sent questionnaires, and the participants were no longer limited to women (UNECE 2009).

While the first or prototypical Violence Against Women Survey was conducted by Statistics Canada in 1993, this survey later inspired other countries. The Women’s Safety Survey was conducted by the Australian Bureau of Statistics in 1996; the Violence Against Women survey in Iceland was conducted by the Ministry of Justice in Iceland in 1996; the National Violence Against Women Survey (NVAWS) was conducted through a collaboration between the US Department of Justice and the Centres for Disease Control and Prevention in 1996, and the Men’s Violence against Women survey was carried out in Finland by the Statistics Finland in 1997 (Walby 1999). We could also add the Personal Safety Survey to this generation of Surveys which was conducted in 2005 by the Australian Bureau of Statistics (developing from the original Women’s Safety Survey (WSS) in 1996). However, they were coordinating at a national level and some differences exist between the surveys conducted in each country.

By contrast, there is also another survey dedicated to violence against women perpetrated by men which is the International Violence Against Women Survey (IVAWS). The IVAWS began in 1997, and is an international comparative study, carried out with the objective to measure the extent of violence against women. By late 1999, ‘an International Project Team was formed between the European Institute for Crime Prevention and Control, affiliated with the United Nations (HEUNI), the United Nations Interregional Crime and Justice Research Institute (UNICRI) and Statistics Canada’ to carry out this survey (Nevala 2005:5). Clearly this survey is designed to produce comparable estimates of VAW across different countries.

By the end of 2001, pilot studies were commenced in Canada and were followed in 2002 by Costa Rica, Denmark, Argentina, Kazakhstan, Poland, Indonesia, Philippines, Serbia, Ukraine, Switzerland, Italy, and Australia. Changes were made to the questionnaires in mid-2002 and were ready by December that year for the surveys to be conducted. The questionnaires deal with background information, violence and the consequences of violence (Nevala 2005). This survey has also been conducted in Australia.

VAW surveys provide information on the victim-offender relationship which makes them a valuable source of information on studying IPV (DV), since it enables us to distinguish these crimes from other crimes perpetrated against women, such as family violence or violence perpetrated by strangers. Also, with the developments in these surveys, as a result of which men are now also being interviewed, we have more access to information on VAM.

3.2.2.3.1 Australian Surveys Today, information on violence against women in Australia is available through two surveys, one being the Personal Safety Survey (PSS) and the other being the Australian component of the International Violence Against Women Survey (IVAWS) which is conducted by the Australian Institute of Criminology.

In 1996, the Australian Bureau of Statistics (ABS) conducted the Women's Safety Survey (WSS) which formed the substance of the 2005 Personal Safety Survey. In the WSS, data regarding women’s safety in the community and at home was collected from approximately 6300 women who were aged 18 years and over. This survey gathered information on physical and sexual assault, stalking and harassment (Australian Bureau of Statistics 1996).

The Personal Safety Survey was conducted by the ABS in 2005 with a response rate of 72% in which about 11,900 women and 4,600 men participated. The results were published in 2006. This survey provides information on sexual and physical violence (violence here including threats and assaults) against men and women in Australia. This survey also dealt with stalking, harassment and emotional abuse (Australian Bureau of

Statistics 2006).

In the last 12 months 3.1% of women experienced physical assault (Australian Bureau of Statistics 2006:5), and 6.5% of men experienced physical assault (Australian Bureau of Statistics 2006:6). Of those women who were physically assaulted, 38% were assaulted by their male current or previous partner, while this percentage was 27% for men who had been assaulted by a current or previous (Australian Bureau of Statistics 2006:9).

When the survey explored physical violence from the age of 15 the prevalence rates were higher. Since the age of 15, twenty nine percent of women experienced physical assault and that compares with forty one percent of men who experienced physical assault (Australian Bureau of Statistics 2006:7).

Of female survey respondents, 1.3% of women had experienced sexual assault (Australian Bureau of Statistics 2006:5) in the ‘12 months prior to the survey’, while this rate for men was 0.6 percent (Australian Bureau of Statistics 2006:6). Twenty one percent of those women reported that the sexual assault was perpetrated by a previous partner (Australian Bureau of Statistics 2006:11). ABS does not break down the percentage of sexual assault perpetrated against women by a current partner.

The percentage of women who had experienced sexual assault since the age of 15 was 16.8%, which compares to 4.8% of men (Australian Bureau of Statistics 2006:19).

The other survey which provides information on violence against women in Australia is the IVAWS, which we previously mentioned. In 2002-03, a telephone survey of 6667 women who were between the ages 18- 69 was conducted, and information on their experiences of physical, psychological and sexual violence (including threats) was obtained. Also, information was provided on the relationship of the victim and the perpetrator, women’s perception and response to violent behaviour (Mouzos and Makkai 2004).

Some of the findings of this survey are:  More than one third of women reported having experienced at least one form of violence by a current (10%) or former partner (36%) throughout their lifetime (Mouzos and Makkai 2004:3);  10% of women who had experienced some form of physical or sexual violence by a current spouse and 20% of those who had experienced physical or sexual violence by a boyfriend considered the violent behaviour to be a crime (Mouzos and Makkai 2004:4);  Only 14% of women who had been victimised by an intimate partner had reported the most recent incident to police. This rate is 16% for those who had been victimised by a non-partner. What’s more, in cases where the victim knew

the offender she was less likely to report the incident to police (10%) than when the offender was a stranger (27%) (Mouzos and Makkai 2004:101-102).

As we saw, these surveys, by specifying the victim-offender relationship and the sex of the victim and the offender are another important source of information on IPV (DV). The data also show that police records do not accurately reflect the prevalence of these crimes, since these surveys show higher rates of violence than that revealed through police records.

3.2.2.3.2 Iranian Surveys There are no similar surveys conducted in Iran.

3.2.2.4 Attitude Surveys Attitude surveys are a significant source of information for many reasons. In the past police, and the magistrates were reluctant for criminal law to deal with family issues. Even today, police may find the criminal law to be too harsh to deal with some domestic disputes. Also, victims may be reluctant to cooperate. There are well documented instances in which the victims have suffered secondary victimisation as a result of the criminal justice system (United Nations Office for Drug Control and Crime Prevention 1999:9). What’s more, when dealing with domestic matters magistrates and judges also tend to show great variations in attitudes, some leading to leniency with the offender, while others are harsher in their sentencing. National surveys are a valuable source for revealing how the public thinks about cases of domestic violence and whether they deserve criminal justice sanctions or not (Renata 2002).

Another reason why these surveys are important is that, as we will further study in Chapter Four of this thesis, attitudes are entrenched in people’s culture. Even though laws have and will continue to be passed, nonetheless, ‘legislation can only be as good as its enforcement’ (Mugford 1989:6). Through legislation attitudes towards violent behaviours can be influenced and vice versa. For example, as Mugford says: ‘...the new legislation [in NSW in 1983] was designed ... also to alert enforcement agencies to the seriousness of the offence’ (Mugford 1989:6).

There is hope that, through studying attitudes towards IPV, programs could be developed to address those attitudes, and together with changes in legislation, they could have an effect on the perpetration of such behaviours (Mugford 1989). 60

Nonetheless, similar to the other surveys discussed, the manner in which these surveys are worded has a substantial effect on the results obtained (Schuman and Presser 1981).

One survey which deals with values and attitudes is the World Value Survey (WVS). This survey is conducted in different nations with the participants coming from different educational, economic, and cultural backgrounds (Grammich and Fair 2007). Therefore, they are a good source of information on cultural influences on conducting certain behaviours. They also happen to be a good source of information regarding whether the laws correspond to the social attitudes or not. This survey is dealt with in more detail in Chapter Eight, in particular 8.2.1, 8.3 and 8.4, whereas, below I focus more on Australian and Iranian surveys.

3.2.2.4.1 Australian Surveys Many surveys have been conducted within Australia which study attitudes. Among these are surveys which have studied attitudes towards violence. These surveys have either studied people’s attitudes within the same culture, or they have examined how difference of culture affects attitudes.

An early Australian survey which dealt with public attitudes with regards to domestic violence was carried out in 1987 by the Public Policy Research Centre (PPRC). Although most respondents acknowledged physical forms of violence as domestic violence and a large majority found threats of physical violence or smashing an object nears one wife to constitute domestic violence, however, other forms of violence were not as highly acknowledged to constitute DV. Under 50% of the respondents’ recognised verbal abuse as a form of DV, while this rate was 25% for economic abuse (Mugford 1989:2).

Nonetheless, 33 % of the people were of the opinion that domestic violence is a private matter that should be dealt with within the family. When asked what they would do if they saw a neighbour beat his wife, 28% said that they would ignore it. Twenty percent said that it was acceptable for a man to use physical force against his wife under certain circumstances and finally 6% thought that it was alright for the husband to use extreme force or violence (Public Policy Research Centre 1988) as cited by (Mugford 1989:4).

A year after the PPRC was carried out, the Elliot and Shanahan Research (ESR) was conducted. In this survey not only were the attitudes of victims and perpetrators of violent behaviours studied, but ‘community attitudes (including rural, Aboriginal and non-English speaking groups) and also attitudes of professionals working in the area’ were also studied (Mugford 1989: 2).

Based on the findings of this survey, physical forms of violence along with other forms of violence such as psychological, verbal, emotional, social, economic and sexual violence were acknowledged. The difference in these two studies is an indicator of how experiencing or working with victims of such behaviours affects the recognition of such violent acts. Nonetheless, based on this survey many Australians found husbands violence towards their wives to be justifiable in certain conditions. Also, it was found that 82% of the respondents found denying money to be justified in certain conditions. Furthermore, the approval rate was 58% for yelling abuse, 22% for smashing a household object and 10% pushing and shoving (Mugford 1989:4). Another national survey conducted in 1995 revealed that 7% were of the opinion that insulting ones’ spouse is not a criminal offence (Office of the Status of Women 1995).

In 1998 and 1999 the Crime Research Centre at the University of Western Australia and Donovan Research conducted a national attitude survey. In this research, the attitudes of five thousand 12 to 20 year old Australians towards domestic violence were investigated. The results showed that factors which have an influence on the acceptance of violence are socioeconomic factors (the more disadvantaged), ‘age (younger), gender (males), and indigenous status (indigenous)’. Thirty four percent of the pro-violence group compared to 20% of the anti-violence group thought that it is not an important issue when a girl hits a guy (Indermaur 2001:5).

When asked whether ‘men should take control in relationships and be [the] head of the household’ 37% of males and 12% of females participating agreed (Crime Research Centre, University of Western Australia et al. 2001:75). This is an indication of the changes which have been made through time. Whereas, previously it was a common belief, and this belief was reflected in the interpretations provided of most religious books, that the man is the head of the household and the woman has to submit to his orders. However, nowadays with the existing view among most people that men and women are equal, the above argument would challenge the existing beliefs. 62

Nonetheless, Australian research suggests that while there have been improvements, attitudes condoning or trivialising violence against women continue to persist (Taylor and Mouzos 2006).

Another attitude survey, which deals with cultural influences on attitudes towards violence against women, is a study in which 2,800 persons from Victoria participated. The main participants interviewed, were 18 years of age and older with another 800 coming from a Chinese, Vietnamese, Greek and Italian background. Those from culturally and linguistically diverse backgrounds were referred to as CALD19 (Australian Institute of Criminology 2006). I will examine this survey in Chapter Four; here it will suffice to say the results obtained through that survey revealed that culture played a very important role in people’s attitudes towards different forms of violence.

It is worth noting that in Australia the most important academic social survey is the Australian Survey of Social Attitudes (AuSSA). The AuSSA is administered by the Australian Demographic and Social Research Institute (ADSRI) at the Australian National University, and the AuSSA survey team is in charge for fielding the World Values Survey in Australia (The Australian Survey of Social Attitudes (AuSSA) 2011).

3.2.2.4.2 Iranian Surveys A number of attitude surveys have been conducted in Iran. The Socio-Economic Characteristics Survey of Iranian Households (SECSIH) is one of these surveys, which was conducted in 2002 by the Statistical Center of Iran, in collaboration with the ‘Monde Iranien research group, a consortium of four research institutions in France’. The sample size of this survey is 6,960 households, with a total of 30,715 persons. A number of 7,746 women who had ever-married were asked attitudinal questions (Kurzman 2008:304).

One of the findings of this survey was that, young educated women are 3.44 times more likely, than other respondents, to disagree with the statement that a married woman should obey her husband. This group of women showed feminist attitudes, more than twice the amount of other respondents (Kurzman 2008:311).

19 Sometimes they have also been referred to as the SCALD. 63

In fall 2003, the Iranian Family Attitudes Survey (IFAS) was conducted by the Cultural Research Bureau in Iran. In this survey 3,006 adults, being 18 years of age and over, who resided in urban areas (from 5 provinces), were sampled. The capital of each province, along with another randomly selected city from that province, was studied. Two female surveyors would then ask to interview one random member of the sampled households (Kurzman 2008:304).

Among the findings of this survey was that, 64.6% of educated young women found it to be both, the husbands and the wife’s responsibility, to contribute to the household income. What’s more, 83.3% of this group of women were also of the opinion that men should do a larger share of household work (Kurzman 2008:306-307).

In 2004, another survey was conducted about people’s knowledge and their attitudes towards the issue of violence against women in community/family settings. The results of this survey showed that most participants acknowledged physical violence as a form of violence against women. However, the younger generation and those with higher levels of education also recognised verbal and psychological forms of violence (Pourreza, Batebi et al. 2004).

Nonetheless, most participants found the community to pay more attention to men than women, and some justified violence against women by referring to religion and religious texts. An ideal wife and woman was said to be one who puts up with violence without letting anyone, including officials know about its occurrence. The large majority found domestic violence to be a private matter which should be dealt with within the home20 (Pourreza, Batebi et al. 2004).

The WVS has also been conducted in Iran.21 Even though this survey does not directly deal with IPV, information on the religious and cultural aspects have been obtained

20 Evidence would be provided in Chapters Seven and Eight which reveals a change in the above attitudes. 21 See Grammich, C. and C. C. Fair (2007). "American and Iranian Public Opinion: The Quest for Common Grounds" Journal of South Asian and Middle Eastern Studies XXX(3); and, Moaddel, M. (2008). "Religious Regimes and Prospects for Liberal Politics: Futures of Iran, Iraq, and Saudi-Arabia." World Values Research (WVR) 1(2): 35-56. 64 which are of importance to this study and we will make use of the findings of these surveys further in this thesis.22

3.2.3 Discussion - shortcomings of the various surveys The issue of IPV has become of importance to the justice system since the 1970s (Fenstermaker Berk and Loseke 1980-81). It happens to be a crime which is rarely reported to police (Dobash and Dobash 1979), this then makes it more difficult to examine, since people tend to think of it as a private issue. The existing reluctance in reporting IPV affects the results obtained from various surveys.

The data used (CTS, VAW, Crime surveys, or administrative data from police and courts), has determined the relative balance of male and female victims and perpetrators of domestic violence and the forms, prevalence and incidence of domestic violence. Each source has its own limitations and strengths (Ferrante, Morgan et al. 1996). Some criticisms, which could be made to the above surveys with regards to the current study, can be categorised into the following groups:

3.2.3.1 Definitions provided for IPV and the different forms of violent behaviours With respect to definitions of IPV the first criticism, which could be made to surveys dealing with IPV, regardless of which method they have adopted, is that they are not consistent in their definition of who is to be considered as an intimate partner. This is an extremely important factor which should be taken into consideration, since different definitions of intimate partners, will lead to very different results of crimes recorded (Saltzman 2004). While some studies include current and former partners, other surveys and research only take account of current partners (Flinck, Astedt-Kurki et al. 2008). Also, some require sexual intercourse to have taken place for someone to be considered as an intimate partner, whereas others have waived this requirement (Reid, Bonomi et al. 2008).

Second, regarding violence, there are no agreed or accepted standards for deﬁning what constitutes violence. Considering the wide range of actions which fall within this term, the results would vary immensely based on the definition provided (Ferrante, Morgan et al. 1996).

22 This will be dealt with in Chapter Eight. 65

For the purposes of the Women’s Safety Survey (Australian Bureau of Statistics 1996:5), violence was broadly defined to refer to any ‘incident involving the occurrence, attempt or threat of either physical or sexual assault’. However, it captures the actions taken in response to violence and the consequences of violence including living in fear. It also deals with a broader range of safety, stalking and harassment issues and touches on emotional abuse. What’s more, it includes a question regarding access to family money which could be a form of economic abuse. Greater levels of specificity were used to define particular types of violence such as physical assault and physical threats, sometimes in terms of specific actions. For instance, physical assault was considered to involve physical force with the intent to harm or frighten a woman. An attempt or threat to inflict harm was only included if a woman believed it could be carried out. Sexual assault included acts of a sexual nature carried out against a woman’s will through the use of physical force, coercion, or any attempts to do this. Unwanted sexual touching was excluded from sexual assault but collected and reported separately (Posselt 2005).

In the revised CTS2, even though both victimisation and perpetration between dating, cohabiting and married couples has been studied, however, the forms of violence studied are limited to physical, psychological, sexual violence and injury between partners (Straus, Hamby et al. 1996; Straus, Hamby et al. 2003).

Hence, considering that domestic violence can include a range of acts from verbally abusing ones partner to murdering ones partner, the definition provided in various surveys and the range of acts covered by those surveys has a fundamental influence on the results obtained and the measurement of violence (Ferrante, Morgan et al. 1996). What’s more, these differences in definitions may make drawing comparisons between various surveys difficult.

Our third criticism forwarded towards surveys dealing with IPV is that none of these surveys has dealt with all forms of IPV. Most surveys, such as The Personal Safety Survey (PSS) (Australian Bureau of Statistics 2006), the CTS have focused on sexual violence and physical violence (Krahé, Bieneck et al. 2005). This is while some other studies have also focused on other forms of violence, which is psychological or emotional violence (Department of Families, Housing et al. 2009; U.S. Department of Justice 2011). However, some refer to these forms of abuse as verbal abuse (Krahé, Bieneck et al. 2005), which again affects the results obtained. Hence, none of these 66 surveys include all forms of violence, e.g. physical, sexual, emotional, psychological, spiritual, social, economic, verbal, educational and intellectual, legal or administrative, stalking and crimes against property. As Pease argues what does not get counted does not count (Pease 1999).

3.2.3.2 Women as victims and men as perpetrators of IPV When we speak of IPV, regardless of which country we are from or what our culture or religion is, the first thought that enters our mind is that a woman has been abused by the hands of a man. Hence, in some cases domestic violence is only referred to as violence against women (Ferrante, Morgan et al. 1996). However, as we saw women similar to men can be perpetrators of IPV, even if not as frequently as men.

The World Health Organization published a report in 2002 entitled the World Report on Violence and Health, which acknowledges the fact that women too can be perpetrators of IPV. However, since women perpetrate violence less frequently to that of men most research revolves around women being the victims and men the perpetrators (Krug, Mercy et al. 2002; Krahé, Bieneck et al. 2005).

As we previously saw, studies using CTS show a similar rate of IPV perpetrated by men and women. This is one main reason why many feminist scholars criticise the CTS and refuse it to be used as a method to study IPV. This is due to the fact that findings from the CTS opposes the feminist theory that IPV has its roots in gender and is a form of violence in which, almost solely, men are the perpetrators and women are the victims, and is conducted as a means to control and dominate women (Coleman and Straus 1990; Straus 2004) as cited in (Straus 2007). These scholars state that large-scale surveys overlook important factors, these factors being gender and power (Dobash and Dobash 2004; Kelly and Johnson 2008).

Family violence researchers, on the other hand, find socio-demographic factors indicating structural inequality to encourage domestic violence (Anderson 1997:655). This is supported by the findings of sociologists who have conducted national surveys as a method to study the effect of various social characteristics on domestic violence. Those sociologists have found that there is a strong link between domestic violence and factors such as age, unemployment and socioeconomic status (Straus, Gelles et al. 1980;

Smith 1990; Stets 1991; Dekeseredy 1995) as cited by (Anderson 1997), and cultural support (Gelles and Straus 1988; Anderson 1997).

3.2.3.3 Heterogeneity of instruments measuring IPV Variations in the definitions provided for violence and different forms of violence, together with the fact that men are the primary suspects of being the violent partner and women being the victim, affect the phrasing of the survey questions (Posselt 2005). This in return would affect the results obtained from those surveys (Krahé, Bieneck et al. 2005).

Also, the methods utilized in measuring IPV vary in many different aspects. For example, the questions asked, how they were translated, the sample group (community sample or clinical sample group) the manner in which the questions are asked (Krahé, Bieneck et al. 2005), whether the interviews are private or not, whether the questionnaires are self-completed or not or are they telephone interviews and so forth (Posselt 2005). What’s more, prevalence studies and incidence studies tend to differ in terms of the period in which acts of IPV (both, experiencing or perpetrating) is studied (Krahé, Bieneck et al. 2005). These factors all influence the results obtained, and in some cases lead to very different results.

3.3 Conclusion Regardless of the limitation’s that each method may have when measuring IPV, they each have provided us with useful information on many different aspects of intimate partner violence and issues influencing such violent behaviours. It is necessary to understand the different surveys, as the strength of any claims made regarding IPV, may be directly or indirectly related to the strength of the evidence in the supporting surveys.

Each survey has different strengths supporting issues which are highly related to the focus of that survey. Some have focused more on crime, while others have focused on conflict or more specific issues such as violence against women. This has resulted in diverse results regarding the ratio of male to female violence. Scholars tend to favour one method over another depending on the factors they believe affect IPV.

In summary, none of the surveys have dealt with all forms of IPV mentioned in Chapter Two. Each survey includes certain violent behaviours but fails to include others. What’s

68 more, the definition provided for intimate partner and violence is not consistent within different surveys (Ferrante, Morgan et al. 1996). Most surveys have considered women as the victims and men as the perpetrators (Krug, Mercy et al. 2002; Krahé, Bieneck et al. 2005). One last issue which most surveys face is the heterogeneity of instruments which IPV is measured by (Posselt 2005). All of the above factors not only influence the results obtained by the survey but also make drawing comparisons between surveys difficult, if not impossible.

Very little information is available on the extent of IPV in Iran, while some information is available on attitudes to violence and to the full participation of women in society. However, the results of the IDVS, while resulting from convenience samples of university students, suggest that there may be high rates of partner violence in Iran compared with other countries. A detailed analysis of attitudes in Iran is provided in Chapter 8.

Finally, we saw that feminist scholars criticise the CTS, stating that the main cause of IPV is gender and control, which the CTS tends to ignore (Dobash and Dobash 2004), while family violence researchers find socio-demographic factors promoting inequality to be the cause of IPV (Anderson 1997). It then becomes important to see if gender and control are separate from socio-demographic factors promoting inequality, and how changes in socio-demographic factors affect gender roles and ultimately affect IPV.

4 Chapter 4 - Cultural Influences on IPV

4.1 Introduction Culture plays a highly significant role in many, if not every part of our life. Behaviours such as the manner in which we eat, dress, interact with others, commute, perceive and respond to different issues, responsibilities which we may have and the people who we are responsible towards are all influenced by culture. Cultures may vary among different societies and even groups of people within one society.

Cultures evolve through time, and with cultural evolution we observe changes in attitudes. One aspect of these cultural changes is that regarding IPV. Historically women have had distinct inequalities to men, many of which would result in IPV against women. This continues to be the case in many countries today. As cultures evolve these inequalities tend to lessen and not only have women been granted more rights but IPV has been recognised as a form of crime in which men can also be the victims and women the perpetrators.

In societies and cultures in which gender and sex discrimination are greater and patriarchal attitudes are dominant, higher rates of IPV tend to exist. This is the case in honour cultures in which distinct gender roles exist. Therefore, with cultures progressing towards gender equality, and with the traditional gender roles breaking down we would expect to observe changes in attitudes towards IPV.

In this chapter, first I will provide definitions of culture, gender, sex, equality and discrimination for the purpose of the current thesis. I will then study the history of the recognition of violence against men and women. After that I will study the relationship between inequality and violence. I will then study whether changes in laws and culture, promoting equality has had an influence on violence perpetrated by women. Finally, I will study how culture affects attitudes towards violence.

4.2 Definitions The focus of this chapter is on culture, gender, discrimination and equality; therefore, constant reference will be made to these terms. By defining these terms we aim to establish confidence in the readers regarding their implication.

4.2.1 Culture Defining culture is not straightforward. In fact, authors such as Kroeber and Kluckhohn in their well-known book Culture: A Critical Review of Concepts and Definitions (1952) have provided over 150 definitions of culture (Borofsky, Barth et al. 2001).

A very early definition of culture was offered by Tylor in 1889, and Moore (2008:5) quoting Bohannan and Glazer (1972) comment that his definition is relied on in the face of more cumbersome definitions.

Tylor (1958:1) defines culture as: ‘Culture or civilization, taken in its wide ethnographic sense is that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society’.

An alternative definition is provided by Bonvillain (2006:6-7) whereby culture is considered to be: ‘The learned values, beliefs, and rules of conduct shared to some extent by the members of a society that govern their behaviour with one another and their thinking about themselves and the world’.

In both of the above mentioned definitions culture is behaviours that are acquired and are shared by members of a society. As we can see by the definition provided by Bonvillain, where he says to some extent, it would seem that not all the members of a society have to have the same behaviours and values, but the majority would suffice. Bonvillain (2006) goes further and divides culture into symbolic culture and material culture. Symbolic culture meaning the ideas that people have and the way they communicate those opinions, while material culture is the material objects that people sharing a culture make or use such as clothes or utensils.

Nonetheless, it appears that the definition provided by Tylor continues to be the most comprehensive definition provided. This definition covers both symbolic culture and material culture as identified by Bonvillian (2006), as well as any other capabilities and habits which man has acquired by being a member of society.

Apart from the availability of formal defintions, Borofsky and his colleagues (2001:433) claim that culture is used in three different senses. One of these is that

71 culture is used to show increasing improvement and development through time in different aspects such as ‘beliefs, behaviours and/or artefacts’.

The second usage of culture is about behaviours and styles of life, learning and beliefs which people would like to keep. This usage is closely linked with the idea of progress. This usage ‘conveys resistance to alien or alienating life ways’ particularly Western influences and the negative effects that come with modernisation (Borofsky, Barth et al. 2001:433). However, according to social Darwinism the reason as to why Western societies are wealthier and more powerful is because they are culturally and naturally superior in comparison to other societies. Tylor seems to support the theory of social Darwinism as he has stated that the middle-class Euro-American culture has the most advanced culture and other cultures will gradually take on this culture and in other words will develop, this is referred to as cultural evolutionism (Bonvillain 2006; Ferraro 2006).

A third usage of culture (or cultures) emphasises national differences and the identity of groups of people by emphasising their ‘shared beliefs and behaviours…[which] offer them a sense of shared meaning’ (Borofsky, Barth et al. 2001:433).

One salient issue is that people’s culture changes both internally and externally. Internal changes mean that, overtime as a result of the formation of new inventions, innovations, or by reason of the gradual shift from the society’s norms, a culture within a certain society changes. Needless to say, internal changes are more common in societies which are more technologically developed (Bonvillain 2006; Ferraro 2006). As developing countries adopt new technology, we would expect changes to cultures within those societies to take form.

External changes on the other hand, are due to different cultures encountering either through colonisation, invasion, trade, borrowing objects or any other way which causes one culture to interact and be influenced and changed in some way (Bonvillain 2006; Ferraro 2006). It would seem with the globalisation of trade, advances in technology and the influences of media these external changes are insurmountable to resist.

Nevertheless, factors influencing cultural change do not affect all cultures in the same manner. Even if two societies have the same religion or governmental systems, they still may respond to issues in different manners, which through time would result in

72 different cultures to take shape. An example is provided by the approach to abortion in two countries, Ireland and Italy, both of which are predominately Catholic. In Ireland, abortion is considered a crime, while in Italy, the State pays for abortion to be carried out (Htun and Weldon. S. Laurel 2010 b). This is important considering that, as we will further see in this thesis, criminalising an act affects people’s perceptions and behaviours towards that act, and ultimately influences the culture of that country. Glendon states: ‘legal language and legal concepts...affect ordinary language and the manner in which we perceive reality’ (1987:9).

Another example is that Norway has acknowledged maternity and paternal leave since the end of the 19th century; however, this policy proved controversial in the United States and was finally passed only in 1993. This is due to the different background of class politics in those two countries (Htun and Weldon 2010a). As we can see shifts in the society’s norms do not always face the same controversies or obstacles in different countries or societies.

One topic that is a creation of culture, and which the second wave feminism in the 1970s has played an active role in drawing attention to, is the topic of gender (Bradley 2007a). While the terms gender and sex are frequently used, nonetheless, these terms need to be defined in order to avoid confusion.

4.2.2 Gender and sex People are born with a certain sex, male or female. Gender, on the other hand, describes the roles which those males or females have as a member of the community, whether this community is the family or the society in which they are living in. Therefore, gender reflects the values and attitudes and expectations that people have towards different sexes (Schultz and Lavenda 2005; Bonvillain 2006; Mikkola M 2008), and the way they perceive different sexes (Ferraro 2006). It could be said that gender (man or woman) is a cultural classification while sex (male, female) is a biological classification (Bonvillain 2006; Mikkola M 2008). Although, it is not always possible to distinguish between the roles set by culture and those determined through biological grounds (Ferraro 2006).

Gender is a collection of institutions which Young refers to as ‘basic axes of gender structures’ (Young 2005:422) as cited by Htun and Weldon (2010a:5). Htun and 73

Weldon continue by claiming that ‘gender positions men and women in unequal relations of power, often intersecting (or combining) with other institutions to uphold patterns of status hierarchy and economic inequality’. These institutions are ‘the sexual division of labour, and normative sexuality’ (Htun and Weldon 2010a:5).These ways have to be changed to enforce equality and to provide everyone with equal rights and opportunities. They then showed that changes in parental leave policies reversed the status hierarchy by encouraging men to participate in roles which were traditionally feminine (Htun and Weldon 2010a).

In some cultures gender is not limited to male and female, but also another group, which are of one sex but have the role of another gender or both genders such as the Hijras in India (Schultz and Lavenda 2005; Ferraro 2006) or the eunuchs in the Byzantine civilization. The Hijras cut off their Penis and testicles with the intention of dedicating themselves to the Mother Goddess Bahuchara Mata, while the eunuchs’ testicles are often removed or damaged before puberty. Needless to say that, if our basis for categorising different sexes is their genitals or chromosome, then there is also more than just two sexes as is the case of hermaphrodites (Schultz and Lavenda 2005).

Harriet Bradley provided a definition for gender which is: ‘Gender refers to the varied and complex arrangements between men and women, encompassing the organisation of reproduction, the sexual divisions of labour and cultural definitions of femininity and masculinity’ (1996: 205).

This definition raises a new topic which is femininity and masculinity, which requires further elaboration.

4.2.2.1 Femininity and Masculinity The terms femininity and masculinity have roots in gender which as we saw is a cultural/social product. Femininity and masculinity have also been referred to as a person’s gender identity (Burke, Stets et al. 1988). While men normally label themselves as masculine and women define themselves as feminine, nonetheless, it is possible for a person to be of a certain sex but to have a gender identity which is commonly assigned to the other sex, meaning that a female may define herself as masculine and vice versa (Stets and Burke 2000). For example, if a female is referred to as a tomboy it is expressing that she has masculine traits or referring to a man as pretty - a term usually used to describe women - expresses he has feminine traits. These 74 examples further exemplify the notion of femininity and masculinity being associated with gender, which if applied towards males is usually conducted in a derogatory manner. In the case of females this could be derogatory but in most cases, even today, it is to show power and strength in a woman and is considered as an advantage which that person has. For instance, when we say she drives like a man, it is meant to convey that she is a talented driver versus saying he drives like a woman, which is used to convey that they are a bad driver.

4.2.2.2 Gender roles It is the culture of a society that defines the roles of a certain gender. Gender roles ‘are shared expectations of behaviour’ with regard to a person’s gender (Stets and Burke 2000:1). The role anticipated by a certain culture for a gender performs a highly central part in how that gender acts within different communities, be it at home, at work, in public or elsewhere. It also, affects the way that gender views other people’s acts and doings, whether s/he finds those acts just or unjust is influenced on the culture of the society in which that person is living in. This society can be any society such as the workplace, neighbourhood or family (VicHealth 2006).

It should be noted that the definitions and distinctions provided for gender and sex have been challenged by many scholars to such a degree that some have argued that the division between sex and culture should be removed (Butler 1990). However, these arguments require in depth debates and are out of the focus of this study.

Due to the existing confusions in the gender-sex distinction, many of the sources used in this thesis use gender (man and woman) and sex (male and female) in the same sense. While acknowledging the differences between gender and sex the terms gender and sex are used in this thesis interchangeably unless stated. Further, in Iran and Iranian family law homosexuality is not acknowledged. Therefore, whenever the terms male and female (sex descriptor) are used in Iranian family law, they can be assumed to be referring as well to man and woman (gender traits).

4.2.3 Discrimination and equality Non-discrimination is one of the most pervasive principles of international human rights law. It can be found in almost every international instrument dealing with human rights, including the UN Charter, the Universal Declaration of Human Rights (UDHR), the

Covenants, and International Labour Organisation ( ILO) Conventions. Notwithstanding this importance, the content and scope of the specific provisions dealing with non- discrimination in human rights instruments varies. For this reason, the Human Rights Committee issued a General Comment on non-discrimination, in which it stated: ‘6. The Committee notes that the Covenant neither defines the term ‘discrimination’ nor indicates what constitutes discrimination. ... Similarly, article 1 of the Convention on the Elimination of All Forms of Discrimination against Women provides that ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

7. While these conventions deal only with cases of discrimination on specific grounds, the Committee believes that the term ‘discrimination’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.

8. The enjoyment of rights and freedoms on an equal footing, however, does not mean identical treatment in every instance. In this connection, the provisions of the Covenant are explicit. For example, article 6, paragraph 5, prohibits the death sentence from being imposed on persons below 18 years of age. The same paragraph prohibits that sentence from being carried out on pregnant women. Similarly, article 10, paragraph 3, requires the segregation of juvenile offenders from adults. Furthermore, article 25 guarantees certain political rights, differentiating on grounds of citizenship’ (Human Rights Committee 11/10/1989).

This principle purports to protect the equality of human beings with regard to the protection of their rights and freedoms. It must be borne in mind that the concept of equality connotes several meanings: ‘Formal or ‘juridical’ equality refers to the basic idea that individuals in like situations should be treated alike. Formal equality focuses on equal treatment based on the appearance of similarity, without regard to the broader context within which such treatment occurs. According to this approach, laws or practices with the purpose of treating individuals in similar situations differently may result in direct discrimination. Formal equality ignores the structural factors that result in certain groups falling behind the rest of society. Therefore, where the concept of formal equality is applied and differences between individuals are not taken into account, consistency of treatment often fails to ensure the broader aims of equality. 76

‘Substantive equality’ refers to the notion that individuals in different situations should be treated differently. It encompasses two distinct ideas – equality of results and equality of opportunity.

• ‘Equality of results’ requires that the result of the measure under review must be equal. It recognises that apparently identical treatment can, in practice, reinforce inequality because of past or on-going discrimination or differences in access to power or resources. Under this approach, the effects as well as the purpose of a measure must be taken into account.

• ‘Equality of opportunity’ suggests that all individuals must have an equal opportunity to gain access to the desired benefit, taking into consideration their different starting positions. Equal opportunity aims to provide equal chances but not equal results’ (INTERIGHTS 2011).

Although women have differences to men based on their biological characteristics (for instance their ability to bear children), nonetheless they should be provided formal equality. Women should also be provided with equal opportunity to men (Facio and Morgan 2009:1147-1150). Needless to say, as established by Article 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) governments, by taking into account women’s gender differences, should take measures and pass laws in ‘political, social, economic and cultural fields’ (Office of the United Nations High Commissioner for Human Rights 2007), to guarantee the full access of women to these equal opportunities (Facio and Morgan 2009:1147-1150). Therefore, as Lauerman states: ‘while the concept of equality demand that equals receive equal treatment, it also requires that those who are not similarly situated be afforded, to a degree consistent with their dissimilar positions, different treatment’ (Lauerman 1987:506).

It is worth noting that as it will be studied in the next chapter, acknowledging woman’s differences do not necessarily lead to equality, as in the case of protective laws.23

23 There are arguments on equity, equality and their differences, which are out of the scope of the current thesis. For more information on these debates see, Gelb, J. and M. L. Palley (1982). Women and Public Policies, Princeton University Press; and, Facio, A. and M. Morgan, I., ( 2009). "Equity or Equality for Women? Understanding

CEDAW’s Equality Principles." Alabama Law Review, 60(5). 77

4.3 Gender, gender inequality and IPV Drawing a strict line between attitudes towards IPV and gender roles and their influence on IPV is not possible since attitudes are greatly moulded by the existing gender roles. Nonetheless, in order to best illustrate the effect and influence of culture on the acceptance and tolerance of IPV, the issue of gender, gender inequality and IPV will be studied separately to cultural influences on attitudes towards IPV.

4.3.1 Recognition of IPV against women and men Since 1948, with the adoption of the Universal Declaration of Human Rights (United Nations Human Rights: Office of the High Commissioner for Human Rights 2012), the principle of equality between men and women has been acknowledged (Connell 2005). The Second wave feminism movement, in its fight to achieve equality between men and women, influenced social awareness of the disadvantages and oppression which women were facing (Bradley 2007a). However, the fact that IPV against women was legally recognised in the early 1970s did not mean that IPV did not occur previous to that. In fact violence against women has been taking place for many centuries and within all cultures.

4.3.1.1 Recognition of IPV against women Historically not only has violence against women not been prohibited but in some cases perpetrating violence against women by their husbands had been encouraged by law. For example, the rule of the thumb was originated by British Common Law and it legally allowed for a husband to beat his wife as long as the rod with which he was beating his wife with was as thick, or thinner than his thumb (Bachman and Coker 1995).

In the past, laws that dealt with public and family issues were left to be dealt with by the husband and father. It was based on this mentality that when the British Common Law considered the husband and wife to legally be one entity, this entity meant the husband. Therefore, the husband was free to do what he thought was right in family matters and he did not face any legal consequences (Jones 1994) as cited by (Seth-Purdie 1995-96). Furthermore, in countries such as the United States women were deprived of the right to vote because it was argued that the husband and wife were one entity and that her vote was included because she could influence the husband (Seth-Purdie 1995-96).

The authority given to men provided husbands with a lot of freedom to abuse their wives and children. This was to a point that a husband could engage in forced sex with his wife - that would legally be regarded as rape if the woman was not his wife - and not be convicted for it. The reason being that marriage was considered to be a form of contract to which consent had been given through matrimony. Therefore, the wife had entered a irrevocable agreement to sexual intercourse (Seth-Purdie 1995-96). This doctrine that rape does not exist in marriage was expressed for the first time in the 17th century by Chief Justice Sir Matthew Hale (Wiehe 1998).

Marital rape was introduced as an offence in Australian states in the 1970s, and it was only after that time that men could be charged for perpetrating marital rape. Until 1996 when Seth-Purdie conducted research in South Australia, if the offender was married to the victim, marriage could be used as a defence against rape unless there had been acts of ‘aggravated assault or gross indecency’ (S.A.Criminal Consolidation Act 1935 as amended in 1975) as cited by: (Seth-Purdie 1995-96). Nonetheless, even today in many countries or states within one country marital rape has still not been recognised.

During the 19th and 20th century many laws were passed which provided more protection to women against domestic violence. However, modern awareness to domestic violence against women began with the women’s liberation movement and the battered women’s movement. Tierney (1982:211) states: ‘The battered women unit was built on the structural foundations of feminists and groups in the social work, mental health and legal professions’.

In the 1970s, in many of the Western countries, women’s rights activists approached the issue of domestic violence from a new angle. They argued that domestic violence is an issue which should be dealt with by the criminal law. By criminalising domestic violence such acts would no longer be considered as private and would come under the public domain and provide victims of such crimes with more protection (Hajjar 2004).

The results of the activist efforts and research in the 1970s, in the United States and other Western countries showed the frequent occurrence of violence against women. These studies focused more on crimes such as incest, IPV and rape, in which men were the perpetrators and women were the victims (Tjaden 2004; Frieze 2005). In 1976 the first national survey on domestic violence in the U.S. was conducted with the purpose of calculating the approximate patterns and rates of domestic violence in that country

(Bachman and Coker 1995). The outcome of such studies was that internationally governments started treating the issue of IPV more seriously (Dutton and Nicholls 2005). What’s more, with sociologists having had now entered the field of IPV, the definition of violence had expanded to include more behaviours as violent (Gelles 1985a).24

Advocacy against violence against women ultimately resulted in the building of shelter houses for women, reforming laws which dealt with sexual assault, domestic violence, neglect (Dutton and Nicholls 2005), such as pro-arrest or mandatory-arrest policies in many countries, the use of restraining orders, and in some circumstances court- mandated treatment for male abusers. In 1974 the first shelter for women was opened, and subsequently hundreds of shelters and domestic violence programs such as legal aid were established all over the United States (Tierney 1982).

Given that many of the subjects chosen for subsequent research were selected from these groups, for example from women in shelter houses or men undergoing mandatory treatment, it was not unusual for people, including researchers, theorists and readers to conclude that IPV is a gender related issue where men are the perpetrators and women are the victims (Dutton and Nicholls 2005). This perception of IPV has influenced the law, policies, education and intervention programs, up to this day (Kelly and Johnson 2008). Therefore, most services, movements, research, etc. have focused on changing attitudes towards violence against women (Robertson and Murachver 2009).25

24 Other events which took place in the 1960s and 1970s also had an impact on the framework of gender equality (as we will further see inequality of power is considered to be the cause of IPV). In this era Britain experienced an education explosion with many people from the working class or lower middle class attending university. The number of women at universities increased dramatically. Many people of this generation then began to confront the academic and political beliefs and practices. The Marxist feminism approach believes gender relations to be a relationship based on inequality and oppression Bradley, H. (2007a). Gender. Cambridge, Polity. 25 As we will later see in Chapter Six of this thesis, feminist movements are also taking place within the Islamic world. Women are referring to history in order to include themselves in positions of power and in to participate and to achieve important roles in different areas such as politics, economics and even in the realm of religion and the achievement of religious leadership roles. Cooper, B. M. (1998). Gender and Religion in Hausaland: Variations in 80

4.3.1.2 Recognition of IPV against men Since the mid-1970s studies have been conducted which show that both men and women are victims of IPV (Grady 2002; Frieze 2005; Kelly and Johnson 2008), these studies oppose the existing view that IPV is considered a crime in which only women are the victims and men are the sole perpetrators. In 1978 Suzanne Steinmetz (1978) published an article discussing the issue of wives being violent towards their husbands. In the article she claimed that this type of violence was the most underreported type of IPV. This article was instantly attacked by feminist groups and service providers, fearing that this information would reduce social attention, and funds allocated to services and education for battered women (Kelly and Johnson 2008).

Contemporaneously to Steinmetz, Murray Straus developed the Conflict Tactics Scale (CTS). The CTS presented the subjects (being male or female) with a wide range of violent acts. The CTS, as previously mentioned in Chapter Three, had divided the acts into minor and severe violent acts and had asked the subjects how often had they, in order to resolve a family conflict, perpetrated or been a victim of any of those acts within their households. The outcome of this survey, as Straus found, was that women are almost equally violent to men (Taft, Hegarty et al. 2001; Frieze 2005; Simmons, Lehmann et al. 2005).

However, the CTS has been widely criticised since Straus’s findings, and there has been a difference of opinion on the similarity of the perpetration of violence among men and women towards their intimate partners. Some are of the opinion that men and women are both victims of IPV, and are similarly victimised; hence, instead of the term battered women the term spouse abuse or family violence should be used. This group in support of their argument provide evidence from self-reporting surveys of married, cohabiting and dating couples. On the other hand, there are those who still argue that IPV is a crime where women are the main victims and men are the main perpetrators (Tjaden and Thoennes 2000; Dobash and Dobash 2004). This group refer to results obtained from NCV Surveys, clinical and shelter sample surveys, police, hospital and court records, to support their claim (Tjaden and Thoennes 2000). This will be dealt with further below.

Islamic Practice in Niger and Nigeria. Women in Muslim Societies. H. L. Bodman and N. Tohidi. Colorado, Lynne Rienner Publishers, Inc.: 21-37. This is also the case with Iran. 81

Various theories have been provided regarding the cause of violence.26 However, discussions of these are beyond the scope of this study. Reference to such debates will only be made to the extent which is required to fulfil the purposes of this thesis. As mentioned in Chapter Two, Morgan and Chadwick (2009:1) argue all forms of violence are a result of the ‘unequal distribution of power whereby one person has control over the other’. The exertion of power by one partner over the other is in some cases permitted by the State. Hoff states that power has higher chance of being abused in societies in which the chances of being held accountable are low (Hoff 2009).

In this chapter the form of inequality that is of particular interest is gender inequality arising from culture. However, as Vandello and Cohen agree: ‘...‘culture’ is inextricably linked with the ‘structural’ and economic opportunities available to people’ (2008:668).

Therefore, in discussing gender inequality, the chapter does mention its structural and economic forms.

4.3.2 Gender inequality and IPV In societies where men and women have distinctive inequalities, violence against intimate partners by men is recognised as a cultural norm, and it is not condemned. Women in such societies tend to be more defenceless to IPV (World Health Organization 2002; VicHealth 2006). The situation is worsened as a result of the existing belief that people’s cultural practices should be respected and endured. Coomaraswamy argues that it is a result of this mentality (respect for cultural practices) that many practices such as honour killings or other forms of domestic violence have not been under national nor international inspection until recently, even though these are obvious acts that are violating international human rights law. Therefore, in many cases cultural practices such as those related to marriage (for example underage or forced marriages), have been an excuse to tolerate violence against women even though they clearly clash with international human rights law (Coomaraswamy 2005). It seems that the same statement is also applicable to violence against men.

26 For a summary of these theories refer to Gelles, R. J. (1985a). "Family Violence." Annual

Review of Sociology 11: 347-367. 82

Some feminist scholars have associated the issues of IPV to gender inequality and patriarchy (Bartlett 2000). They state that the root of domestic violence is in gender and the authority given to men, which enables men to oppress, and control women (patriarchal theory) (Anderson 1997; Fernandez 2006; Htun and Weldon 2010a). Based on the patriarchal view women are seen as less than a complete human; therefore, they do not enjoy the same status to that of men. In light of this view women are seen as objects which could be discarded, that have been created for men, to be owned as their sexual property. They can be emotionally and physically abused and can be regarded as exchangeable goods and killed (Htun and Weldon 2010a:5). Women may even be raped and, unfortunately, some women in such societies have learnt to accept this domination and to disvalue themselves (Bonvillain 2006; Fernandez 2006). This pattern has to change in order for sex equality to come into existence (Htun and Weldon 2010a).

Htun and Weldon (Htun and Weldon. S. Laurel 2010 b:209; 2010a:5) by referring to (Fraser 2001; Fraser 2007) further argue that any policies, which act as an obstacle to women maintaining an equal status to men, should be confronted. These policies include family law (many of which consider the man to be the head of the household), abortion laws (limiting women’s reproductive rights), violence against women, and gender quotas. In all those areas, women have been treated as inferior and have been deprived of the gratification of equal status, dignity and rights to that of men.

Evidence also reveals that women are at a higher risk of being a victim of IPV in communities where the following approaches and norms subsist: ‘Traditional 'macho' constructions of masculinity; Notions that men are primary wage earners and the heads of the household whereas a woman's place is in the home; Standards encouraging excessive consumption of alcohol; and Standards that facilitate peer pressure to conform to these notions of masculinity’ (Morgan A. and Chadwick H. 2009).

The concept of the man being the head of the household, which is a recognised concept in the family law of many countries, could encourage husbands to resort to violence, in order to resolve conflict, in cases where the family cannot agree on an issue. In view of the fact that the man presuming he is the head of the household, would also assume that he must have the final say in different aspects of family matters. Hence, not coming to an agreement with other family members would be a worthy enough reason to 83 encourage him to resort to violence to accomplish his role of being the head and having the final say (Seth-Purdie 1995-96). The case would be worsened if the society also condones violence. This is supported by evidence which reveals that the rate of violence is higher in societies where the existing culture condones men resorting to violence as a way of dealing with arguments, and in cultures where domestic violence is considered to be a private matter (Flood and Pease 2006). Gelles refers to this as the socio-cultural theory of violence (Gelles 1985a:361).

In many cases women’s economic dependency on their male partners due to the existing economic inequality is a reason why women stay in abusive relationships (Straus and Gelles 1990a; Seth-Purdie 1995-96; Vandello and Cohen 2008). Controlling economic resources could be used as a means of exerting and sustaining control (for those who resort to violence in order to maintain power and control). Thus, the sexual division of labour should be altered to ensure gender equality in order to uphold the economic independence of women and to guarantee women equal job opportunities and equal pay for undertaking the same job (Htun and Weldon 2010a).

As Vandello and Cohen (2008:662) have argued, pure cultural factors are inseparable from pure structural. This meaning that gender roles and gender equality (such as the economic, political, social, legal status of women in comparison to that of men) and the cultural focus on female purity is strongly linked to one another. Vandello and Cohen further illustrate that that a women’s purity restricts her opportunities outside the home and ultimately cause her to be financially dependent on the men of the household.27 This results in her being less powerful within the household as well as in the outside world. This is the premise of the social role theory in which it says: ‘Sex differences in social behaviour are the result of the division of labour into homemaker and worker outside the home, that these roles produce expectancies that lead to different patterns of behaviour in men and women’ (Archer 2006:135).

Some argue that IPV takes place when the costs are low in comparison to the rewards. This is referred to as exchange theory (Gelles 1985a:360). Therefore, the less active the social institutions and agencies are in intervening and confronting violence the more

27 Vandello and Cohen argue that ‘the maintenance of female honour rests largely on the avoidance of shameful acts’ Vandello, J. A. and D. Cohen (2008). "Culture, Gender, and Men's Intimate Partner Violence." Social and Personality Psychology Compass 2(2): 652-667. 84 likely it is that it will take place. This theory gains more importance when studying violence in countries in which these violent behaviours are tolerated or sanctioned by the State (such as Iran), since, in these instances, the perpetrator is likely to bear no significant cost for his/her actions.

Anyhow, as we have seen violence takes place when there is inequality in power among genders. One culture in which the power inequality is strongly evident is that in honour cultures.

4.3.2.1 Gender inequality and honour cultures Although all cultures give some significance to honour, honour is of a higher value in some cultures compared to others. In some cultures honour is a key factor around which most daily social practices revolve. Honour has a distinctive meaning in honour cultures such as the Mediterranean, Greek, Italian, Spanish, American South, Arab, Middle Eastern and Latin societies. Honour in such cultures apart from the common definition that honour is a virtue, is: ‘...a status, precedence, and reputation… it is based on a person’s (usually a man’s) strength and power to enforce his will on others or to command deferential treatment. In some cultures, such honour codes are formal and codified’ (Vandello and Cohen 2003:998).

Vandello and Cohen (2008) argue that, in such cultures, unlike femininity, masculinity has to be earned and proven. The way in which masculinity is earned depends on the existing culture. Growing from being a boy to being a man is something social rather than biological (Vandello and Cohen 2008). Manhood is normally earned through qualities such as being tough, superior and being able to protect themselves and their family (even if this requires the use of violence), no matter how challenging it may be, while women must refrain from conducting any shameful and dishonourable behaviour and must remain modest, faithful and pure. Women in such cultures play a major role in the family’s reputation. In such cultures, who a person is to a great degree depends on who the public and others consider the person to be. Hence, to be respected a man must control the behaviours of relatives, particularly females, as well as their own behaviour (Vandello and Cohen 2003; Vandello and Cohen 2008). This is a feature of the collectivist cultures which we will expand on further below.

Honour cultures in some ways encourage male violence, be it towards other males or against women. In such cultures honour may be used as a way to justify men’s violent 85 behaviours towards others, since being overly sensitive to any act or behaviour, which may threaten their reputation, is considered manly. Therefore, legal traditions and formal customs have formed which authorise or justify male violence. Certain gender roles have then been established in these cultures which are a product of the existing beliefs (Vandello and Cohen 2003).

What’s more, in honour cultures if violence was to be perpetrated against a man by a woman or vice versa, it would be unlikely for them to report that violence. Gender roles along with cultural structures of femininity play a pivotal role in why women stay in abusive relationships and tolerate violence. Women in such cultures should try to uphold the family’s reputation by keeping family matters private (George 1994). Needless to say, women who hold traditional gender role attitudes are less likely to report being a victim of violence than other women (Morgan A. and Chadwick H. 2009). Principal concepts of femininity give emphasis to women being patient and understanding and that they should use those values together with their love to heal men who are abusive (Walker 1987) as cited by (Seth-Purdie 1995-96).

As for men it would be unmanly for the man to report being a victim of IPV. Needless to say, men, who should be masculine and tough, may be ridiculed if found that they have been abused by a woman (George 1994) as cited by (Archer 2006). This is further accentuated if the violence, which has been perpetrated against them, has been due to them not being able to fulfil one of the roles envisaged by that culture, such as being able to provide.28

As we have seen, until a few decades ago, the issue of violence against women had not been brought to the publics’ or authorities attention. Comparable to honour cultures, in which legal traditions and formal customs were formed to justify violence against women, this has also been the case in many Western countries, and it has been a slow journey to abolish many of the ancient traditions and to pass laws which enforce equal rights. This process has led to another area of concern more recently, which is whether

28 See further, Barclay, A. (2000). Men, Masculinity and Victimisation: An evaluation of support services for male victims of family violence. Department of Criminology Unpublished

B.A.(Hons) thesis University of Melbourne. 86 the legal promotion of gender equality has had an effect on female perpetration of violence.

4.3.2.2 Cultural changes and its influence on men and women’s perpetration of IPV The topic of IPV against men has raised much controversy. What’s more, these arguments have been exaggerated with claims that, not only is there IPV against men but the rate of men being victimised is akin to that of women. Popular accounts in newspapers point to a presumed growth in a ladette culture in women, which is assumed to be a result of socio-cultural changes. This has been seen as one of the causes of women’s increased violence (Rodrigues and Vaughan June 15 2009). However, the issue of women being equally violent to men and the issue of women having become more violent as a result of cultural changes (with women having gained more equality in many Western countries) are highly contentious.

4.3.2.2.1 Are men and women equally violent? Some researchers are sceptical about the possibility of men being equally battered by their female partners and consider the issue a ‘backlash against women’s safety and feminist victories’ (Minaker and Snider 2006: 754). However, a research conducted by Robertson and Murachver in New Zealand, found that the IPV committed against men is very similar to that committed against women in terms of nature, severity, frequency and incidence (Robertson and Murachver 2007) cited by (Robertson and Murachver 2009:1482). Nonetheless, there is evidence that opposes the above findings, by providing evidence that not only is there a difference in the prevalence of IPV perpetrated by men and women but also the nature of the violence perpetrated by each seems to differ (Tomison 2000) as cited by (Morgan A. and Chadwick H. 2009).

Most surveys, including crime surveys, tend to focus only on victims or perpetrators of IPV. Studying IPV victimisation and perpetration together, through national surveys is infrequent and rare. In surveys where violence victimisation is being studied mainly women are chosen as the study sample since they are considered to be the main victims of IPV. On the other hand, when violence perpetration is being studied, since men are considered to be the main perpetrators of violence the study sample, usually only consists of men (although this does not apply to the CTS).

With regard to the prevalence of IPV, victimisation surveys appear to be the primary source of information (Morgan A. and Chadwick H. 2009). However, different statistics and research show very different results on the rates of male and female victimisation in IPV cases. While some surveys have found men and women to be equally violent (Headey B., Scott D. et al. 1999), others have provided evidence to the contrary.

In Australia, based on the results of the Personal Safety Survey (Australian Bureau of Statistics 2006) conducted in Australia, 78% of the victims of IPV who have reported being a victim of physical assault within the past 12 months were female (Morgan A. and Chadwick H. 2009:3). Also, in a research conducted in 1998-1999 in which 5000 young Australians participated, 14% of the participants had witnessed male to female unprovoked hitting forms of parental violence, and 9% had witnessed female to male perpetration of such violence (Indermaur 2001:6). This provides an alternative indicator of the rate of violence perpetrated by women and men in Australia.

In the U.S., results from the NCVS show that, in 1998 about 1 million cases of IPV were committed, 85% of which were committed against women (Tjaden and Thoennes 2000). Women were victimised at 5 times the rate of men (Rennison and Welchans 2000; Tjaden and Thoennes 2000:151). Also, the NVAW Survey shows that 20.4% of surveyed women and 7% of surveyed men were victims of IPV and had been physically assaulted by a current or former partner throughout their lifetime (Tjaden and Thoennes 2000:151). Catalano (2007:7) provides evidence that, between the years 1976-2005, within the U.S. 30.1% of female homicide victims were killed by an intimate partner, but the figure for male homicide victims was only 5.3%.29 What’s more, studies of various countries have shown that 40% to 70% of females murdered, have often been in an abusive relationship, and have ultimately been murdered by their husband or boyfriend (World Health Organization 2002).

Hines and colleagues (2007:63) on the other hand, by referring to a range of studies, state: ‘Although data from such sources as crime and hospital reports show that women are the primary victims of IPV, e.g.(Melton and Belknap 2003), population–based studies and studies

29 It should be noted that in the research conducted by Catalano, intimate partners included same sex relationships too. 88

using either community or convenience samples have consistently shown that women perpetrate as much IPV as men do e.g. (Straus and Gelles 1986; O'Leary, Barling et al. 1989; Morse 1995; Hines and Saudino 2003)’.

The above claim can be criticised on various grounds, which are basically the criticisms of the CTS methodology. Most studies, which show that women are equally violent as men, have used the CTS, which as we mentioned in Chapter Three, these surveys tend to ignore the reasons and circumstances in which the violent act has been perpetrated (Anderson 2002). For example, those who oppose claims that women are as violent as men, argue that while some statistics show the number of women and men involved in IPV to be similar, women’s intentions in carrying out these acts is entirely different to that of men.

Reasons stated for why men perpetrate violence have been, aggression, intention to intimidate their partner, verbal and physical violence perpetrated with the intention to control and dominate ones partner, or acts of impulse resulting from feelings ‘of frustration and anger, with no real expectation of achieving a set objective’. On the other hand, the reasons given for why women may resort to violence have said to be anger and frustration which is to be expected to occur in cases of ‘self defence, or in retaliation to provocation’ (Tomison 2000; James, Seddon et al. 2002) as cited by (Morgan A. and Chadwick H. 2009:11). Therefore, men tend to be the initial perpetrators of violence, whereas most women use violence for self defence and in response to a violent act being carried out against them, (Frieze 2005; Hines, Brown et al. 2007; Reid, Bonomi et al. 2008). The results provided by the NCVS, which show that almost 3 out of 4 female victims of IPV have defended themselves while being victimised support the above argument (Greenfield and Rand 1998). Statistics also show that, out of 12,901 people sentenced for spousal violence in adult courts, women were the initiators in only 976 of those cases (Statistics Canada 2006).

Studying the motivations behind violent behaviours is significant since these motivations will guide us in finding solutions and developing or changing policies and interventions in order to address these motivations (James, Seddon et al. 2002) as cited by (Morgan A. and Chadwick H. 2009). Motives for perpetrating violence gains more importance when studying those forms of violent behaviours which are permitted by the State and are State tolerated, which I will see to in Chapter Seven.

What’s more, the CTS surveys, which show almost equal rates of female and male violence, tend to exclude the consequences of the violent behaviours. While men perpetrate violence - not just physical violence - towards their female partners at a higher rate, the violence also happens to be more severe than that perpetrated women against men (Tomison 2000) as cited by (Tjaden and Thoennes 2000; Morgan A. and Chadwick H. 2009). Even in cases where women and men have reported similar rates of perpetrating IPV, women due to their physique, are still more likely to be harmed as a consequence of physical dispute than men (Straus 1990b; Taft, Hegarty et al. 2001; Anderson 2002).30 Bagshaw and Chung found other differences reported regarding men’s experience of violence to be that, men do not have a ‘constant fear from the perpetrator’ (this could be because they are physically stronger), nor did they have ‘previous experiences of violent relationships, also post-separation violence’ was experienced by men in extremely rare cases (Bagshaw and Chung 2000) as cited by (Mulroney and Chan:5).

In any case, different sources show conflicting results of male and female victimisation and perpetrations of domestic violence. This difference, among many other factors, can be attributed to the method utilised or the culture of the people in which the study has taken place. While the majority of surveys reveal higher rates of IPV perpetrated by men, it should be borne in mind that, information regarding certain forms of abuse is missing, such as the rate of male and female perpetration of economic abuse or spiritual and social abuse. Therefore, while most of the above surveys (except those using the CTS) tend to show higher levels for male perpetrated violence, this data is limited, since certain forms of violent behaviours have not been dealt with in these surveys. Considering the nature of these violent behaviours, which unlike physical forms of violence their perpetration does not require physical strength; there is a chance that they may be perpetrated by women at higher rates or similar rates to that of men. Nonetheless, solid conclusions cannot be drawn without the support of surveys and statistics to support it.

30 See for instance, Wilson, M. and M. Daley (1992). "Who kills whom in spouse killings? On the exceptional sex ratio of spousal homicides in the United States." Criminology 30: 189-215; and, Websdale, N. (1998). Rural woman battering and the justice system: An ethnography. Thousand Oaks, CA, Sage. 90

As we have seen there is no concrete data as to the ratio of female to male violence. However, as discussed earlier, the root of violence was found to be in the existing inequality. This then raises the question of whether changes in culture and the promotion of equality have led women to become more violent and men less violent.

4.3.2.2.2 Are women becoming more violent and men less violent? Archer (2006:133) argues that culture plays a pivotal role on the rate of male and female perpetration of IPV. In his study on 52 nations, he found that with the increase in gender equality and individualism more female against male IPV was perpetrated. This was found to be related to the women’s empowerment, which then raises the possibility of them perpetrating violence.

Putt from the Australian Institute of Criminology claims an apparent increase of female violence in South Australia between 2001/02 and 2007/08 may be a result of ‘changing gender identity and family dynamics’. Roberta Heather the SA Police Spokeswoman finds other reasons to be a possible explanation for this change: ‘Increased participation by females in criminal offending may mirror increased general involvement by females in all kinds of activities or employment…increase in alcohol consumption may also be a factor’ (Rodrigues and Vaughan June 15 2009).

The possible alternatives suggested by Dr Putt may not be what is referred to as the ladette culture; nonetheless, they are all indications of cultural changes, which have led to behavioural changes in women.

While police data from South Australia has shown an increase in women’s violence, U.S. data reveal that between 1993 and 1998, 22% of the violent crimes were IPV cases, only 3% of which were violence against men. The rate of IPV against women has dropped from 9.8 to 7.7 per 1000 women (a rate of 21%), while IPV rates against men in 1993 were similar to that in 1998 (1.6 in 1993 and 1.5 in 1998, out of 1000 men) 31 (Rennison and Welchans 2000). It is possible that an increase in police-recorded violence by women may be partly due to an increased propensity by police to arrest them.

31 The crimes examined were murder, rape, sexual assault, robbery, aggravated assault and simple assault. 91

Data obtained from the Bureau of Justice Statistics National Crime Victimisation Survey (NCVS) reveals that the rate for intimate partner homicide for females in 2007 was 1.07 per 100,000 female residents while the rate for their male counterparts was 0.47 per 100,000 male residents. These rates show a decline in the rates of intimate partner homicides since 1993, with a 29% decline for female victims and 36% decline for male victims (Catalano, Smith et al. September 2009:3). Also, between the years 1993-2008 the rate of IPV against women declined 53%, which was similar to the declination rate between those years for males, which was 54% (Catalano, Smith et al. September 2009:2).

Again evidence regarding the increase of women’s violence is inconsistent. However, although the data above show varying rates on the ratio of female to male violence, none of the studies referred to above deny that violence against men by their female partners exists; they only disagree on the prevalence, the intention behind, consequences and nature of such violence.

4.4 Culture and its influence on attitudes towards IPV Culture plays a very important role on how victims and offenders perceive violent behaviours (Fernandez 2006). Even though IPV occurs regardless of one’s culture and social status (Vandello and Cohen 2003), it is not possible to understand IPV without knowing how cultures affect and build ‘beliefs, expectations and norms about gender and family’ (Krahé, Bieneck et al. 2005; Vandello and Cohen 2008:652). In summary, it is culture which defines violence and responses to violence.

What is to be regarded as violence depends greatly on the social norms of where the act has been conducted (Krahé, Bieneck et al. 2005; Vandello and Cohen 2008). Culture also affects the forms, reactions towards, issues prompting, prevalence, patterns (Vandello and Cohen 2003) and the reporting of domestic violence (Fernandez 2006). In a study of immigrant and refugee women it was found that different factors such as language, religious beliefs, ‘social customary help-seeking behaviours’ and other factors which form the culture of a person, have an effect on how women respond to domestic violence (Shiu-Thornton, Senturia et al. 2005).

Basically, in examining IPV from a cultural standpoint, two perspectives towards domestic violence exist, the individualistic and the collectivist perspective. The 92 individualistic perspective is a feature of Western societies in contrast to collectivist perspective, which is a quality of Eastern societies (Iran being one of these Eastern societies). In the individualist perspective the individual envisages his/her own values and manners, while in the collectivist viewpoint the society predicts the social behaviour and what is right and wrong. In Eastern societies, relationships are very important, even if they bring more harm than good. Accordingly, in such societies the family is more important than the individual. Therefore, the way people respond to domestic violence cases and the way they perceive such cases vary greatly in these societies (Fernandez 2006).

The media and the folklores of a society all have a great effect on the development of its culture (Kurz 1992). The cultural development within a society then may change the amount of tolerance which that society shows towards a certain kind of abuse (Binder and Meeker 1992:4), or abuse in general. Since cultures vary with regard to the pace and the manner in which they develop, different cultures within the same era tend to show different reactions towards abuse (Fernandez 2006).

4.4.1 United States of America In the case of North America, many domestic violence analysts have stated that North Americans tolerate marital violence more than they do any other form of violence, although evidence to the contrary has also been provided (Feld and Felson 2008). Nevertheless, during the early 1980s a national survey was conducted in the U.S which showed that one out of every three husbands and one out of four wives, thought that it was not only okay to slap one’s spouse but that in some cases it was necessary and normal (Gelles and Straus 1988:27). The results were similar to the results of the earlier study conducted by the U.S Commission on the causes and Prevention of Violence in the 1960s (Gelles and Cornell 1985b; Kurz 1992).

Some authors such as Gelles and Straus (1985b; 1986; 1988) offer three reasons as to why there is violence in the American families today. First reason is the structure of the American families today in which serious stresses such as work, unemployment, health and financial issues exist (socio-economic factors). Such stresses ultimately erupt, and the family being as private as it is today prevents the violent behaviours from being controlled by external institutes (Kurz 1989). The second reason provided is cultural acceptance of violence as a way to solve conflict. Cultural acceptance is reflected in the

93 media, fairy tales and the myths. The third reason stated is sexism. However, generally speaking the sexism factor presumes that women’s experience with violence is different to men’s (being more injured and the violence being perpetrated against them more often etc.). Also, women are the primary victims of family violence including IPV (Kurz 1989). It seems that the above mentioned reasons could be applied to most nations.

4.4.2 Australia Attitudes towards violence against women were examined among 2,000 persons from Victoria. The main participants, all being of 18 years of age and older were randomly selected and interviewed over the phone. The other 800 participants came from a ‘Chinese, Vietnamese, Greek and Italian background’. These being selected from culturally and linguistically diverse backgrounds32 were referred to as Selected Culturally And Linguistically Diverse Backgrounds (SCALD)33 (Australian Institute of Criminology 2006).

The results showed that, 84% of the main male participants in comparison to 70% of the male SCALD sample believed that forced sex between partners was a form of domestic violence. Also, within the female participants 86% of the female main participants in comparison to 67% of the SCALD sample found forced sex among partners to be a form of domestic violence. In the main sample no one responded as don’t know to the question of whether forced sex is a form of domestic violence. However, 4% of male and 2% of female SCALD participants replied don’t know to the question (Australian Institute of Criminology 2006).

Furthermore, among the SCALD, Indigenous residents and the general population in Victoria, the general population in comparison to the SCALD group considered a broader spectrum of acts to qualify as violence against women. This group also found

32 Placing all these different cultures in one group and referring to them as CALD or SCALD appears to be dubious, since each of the cultures within that group differs to others within the same group. 33 In other research and surveys, other than the one carried out in Victoria, the Culturally And Linguistically Diverse have been referred to as CALD. This thesis will refer to all of these as

SCALD in order to avoid confusion. 94 violence against women to be more serious in comparison to the SCALD and indigenous respondents (Taylor and Mouzos 2006).

Further evidence from F/DV research shows women from SCALD backgrounds in comparison to the main sample were less likely to report being a victim of D/FV. Among other reasons, one reason for that is ‘cultural and/or religious shame’, and ‘religious beliefs about divorce’ (Bartels L. 2010:5). Shame regarding family honour, belief that a women should lower her expectations (being a feature of gender roles as I will see to below) and fear of being deported were other reasons why SCALD women were reluctant to disclose DV (Benevolent Society 2009).

Among the SCALD, participants’ religion also played a highly significant role, which not only affected the women directly due to their own religious beliefs, but also affected them indirectly through their family and their religious beliefs, which in most cases found divorce as a sinful act. One woman had said that a family member told her that he would prefer to have her husband kill her than for her to get a divorce. Among the victims’ family members there were also professionals who had seen the violence committed but due to their strong religious and cultural beliefs they still to do whatever she is told to do (Benevolent Society 2009).34

Cultural and religious issues are regarded as the primary reasons as to why IPV is not accepted. These reasons were then followed by other reasons such as IPV being against the law and it having negative effects (Langhinrichsen-Rohling 2010). This evidence shows that culture is amongst the strongest factors on how people respond to and perceive various issues.

4.4.3 Iran This thesis will provide an in depth analysis of cultural changes in Iran and their effect on attitudes towards various forms of violence in Chapter Eight. Here, it will suffice to say that in one study conducted the respondents did not completely reject violence against women and justified it in some cases on the base or religious texts or the natural superiority of men to women (Pourreza, Batebi et al. 2004). Most respondents believe

34 Culture and religion are intertwined; religious beliefs and their effects on IPV will be seen to in

more depth in Chapter Six of this thesis. 95 that an ideal wife/women is one who tolerates violence and does not report to police, courts or neighbors (Pourreza, Batebi et al. 2004). This indicates that even today, the belief that the man is the head of the house and the wife has to tolerate whatever he does still exists in many Iranian families (Hamidi 2008).

Despite these results, there is evidence which shows that culture in Iran is evolving, and has resulted in an increasing number of people, both men and women, being supportive of equality including legal equality. As a result, we now observe a change in women’s demands and expectations, with less tolerance for violence (Kar 2000; Moghadam 2002; Mir-Hosseini 2009).

Today many scholars, researchers and university students are concerned about violence against women in Iran and have been working and doing research in that area. In fact the number of students choosing violence against women as their thesis topic has been so prolific that the universities have suggested that they choose some other topic (Hamidi 2008). The quantity of scholars and students focusing on the issue of violence against women is an indicator of changes in the political and cultural arena regarding perceptions of violence against women.35

It is worth noting that in the Iranian culture IPV against men is brought to the attention of public in the form of comics through media and magazines. Considering that it is portrayed as comical for a woman to abuse her male partner, men tend to hide any abuse by their partners and in cases of physical violence and cases are usually brought to the attention of the authorities only when it consists of severe physical abuse and where the man needs medical care. (Samadirad, Rasi et al. 2008). Therefore, information on these forms of abuse is scarce.

However, this is not a problem which is being faced with only in Iran. Robertson and Murachver (2009) found that women were much more likely to laugh at the question of whether a man deserves to be hit than were men. Also, generally people seemed to be more tolerant of IPV perpetrated by women than by men since they believe that men could cause more physical damage than women, and that violence perpetrated by women is less serious. Participants also showed less empathy when the victim was a man. When asked whether men or women deserve to be hit, participants, be it man or

35 These topics will be further studied in Chapters Six and Eight of this thesis. 96 woman, were significantly more likely to say men deserve being hit as opposed to women (Robertson and Murachver 2009).

The results of a study conducted in New Zealand also showed that most people find violence against women to be viewed more severe, serious and criminal than violence against men. What’s more, people tend to blame male victims of IPV more than their female counterparts (Robertson and Murachver 2009). The fact that no survey has been conducted which focuses solely on attitudes and perceptions towards violence against men is an indication of the existing perceptions and culture that violence against men has not been seen significant enough to justify a dedicated survey.

Nonetheless, the attitudes which people hold towards IPV against men is highly significant, considering that, regardless of what laws and services exist, if officials and people’s attitude towards IPV against men does not change, the existing solutions cannot be of much help. The example below is an indicator of the importance of attitudes towards IPV against men: ‘so he went for a restraining order he walked into the court and the judge turned around and told him you’re a big boy you can take care of yourself, so basically he walked out of that and he felt like a bloody idiot’ (Waltermaurer 2005).

4.5 Conclusion Culture and IPV are very closely linked. While IPV has been occurring for many centuries, it has only gained recognition as a serious social problem in some countries in the past few decades. Historically in many Western societies men were legally permitted to perpetrate various forms of what is today considered as violence against their wives. Many of these rights stemmed from the legal and traditional arrangement which considered the husband and wife to be one entity, and that entity was the husband (Jones 1994) cited by (Seth-Purdie 1995-96). In this era, marital rape was not considered a crime and men were permitted to physically punish their wives (Bachman and Coker 1995).

During 19th and 20th century laws were passed in the Western societies discussed in this chapter, which gave women more protection against IPV (Tierney 1982). In the early 1970s as a result of various factors, many of which could be attributed to feminist activities, IPV was brought to the attention of the public and authorities as a serious

97 social problem. Feminist activists struggled for the criminalisation of IPV which took this crime out of the private sphere and made it a public problem (Hajjar 2004). Hence, as a result of the criminalisation of IPV societies became more perceptive of the issue and efforts were made to combat such behaviour (Hajjar 2004).

However, while IPV was primarily introduced as a problem which affects women, since the mid-1970s arguments developed that men are also affected by such behaviour (Grady 2002; Frieze 2005; Kelly and Johnson 2008). Consequently, research and surveys were produced that also included men as victims of IPV.

Various theories have been offered for why IPV takes place many of which find IPV to be rooted in gender inequality. In societies in which gender inequality is higher and patriarchal views are dominant, higher rates of IPV against women are perpetrated. Needless to say, in these societies many women have learned to accept this violence (Bonvillain 2006; Fernandez 2006), and violence in many cases has become a cultural norm which is also tolerated and sanctioned by the States (Coomaraswamy 2005). Most women in these societies tend to think that violence is a private matter and they refrain from reporting such behaviour (George 1994).

However, reporting crimes is valuable since our knowledge on the rate of crimes is gained through police records of reported crimes or through surveys. Therefore, refraining from reporting crimes, including IPV, would result in inefficiency of the policies and funds allocated to combat such behaviours.

As cultures evolve, people’s perceptions and attitudes also tend to change. A study of cultural influences on attitudes clearly reveals how culture affects recognition, acceptance and responses towards IPV. Parallel to these attitude changes, laws need to be modified to correspond to the current beliefs. Needless to say, that law can also act as a tool in changing attitudes, including attitudes which condone inequality.

5 Chapter 5 - Laws, Legal Policies and IPV

5.1 Introduction We saw in the previous chapter that inequality is considered the primary basis for the occurrence of IPV. In many cases, this inequality is embedded in the culture of the society in which IPV takes place (as was the position with countries of honour cultures, and patriarchal societies). Sometimes this inequality is tolerated or even sanctioned by the State in which those behaviours are being perpetrated. This happened to be the case in many Western countries and continues to be the case in most Muslim countries today.

In the past few decades, the focus on women’s rights and gender equality has resulted in changes to people’s attitudes and beliefs towards traditional gender roles, both on national and international levels. In many societies, especially Western societies, the traditional gender roles have broken down to a large degree. As this chapter will illustrate, in these societies changes have and continue to be made in order to promote and ensure sex equality in women’s’ relations with their male counterparts, both in the family domain36 and other aspects of the social network, such as the economic, political, and social arenas. Consequently, men and women in these countries now enjoy a more equal position than before.

Changes in traditional gender roles result in new demands and expectations, which then strengthens the likelihood that previous rights and new expectations within intimate relationships will clash with one another (Brown 1980). To address these conflicts, laws need to change to correspond with these new social beliefs and expectations, and many practices, which may have previously been sanctioned or tolerated by the States, are in this way forced to change. This is one of the efforts of social movements, which seek legal reforms to address the new social demands (Marshall 2003). New laws could be used as a tool to develop the movements’ objectives (Barclay, Jones et al. 2011) by further shaping the existing attitudes (Taylor and Mouzos 2006) and perceptions (Glendon 1987).

36 Many of these changes have been alterations in family law, since this is the principle law that sees to the rights and obligations of intimate partners (those intimate partner relationships that

have been recognised by the legislator). 99

However, lack of gender equality is not a problem which only women face (United Nations Human Rights: Office of the High Commissioner for Human Rights 2012), and parallel to changes in laws dealing with women rights, changes should be made to men’s rights and obligations, to ensure that equality is achieved (Aberg, Small et al. 1977).

This chapter defines law and social movements. I then briefly study how social movements and laws interact. While a detailed study of the interaction of social movements and the law is outside the scope of this thesis, attention to this issue is important considering that recognition of IPV as a major problem and as a crime, is highly attributed to the feminist movement struggles of the late 1960s. I will then study the quandaries that laws, which were created to implement equality, have faced. One important issue, which I will be dealing with, is that when laws are changed to implement equality, they cannot only be changed or adopted to expand the rights of one sex, but should be modified in other areas to ensure equality for both sexes. This matter will be dealt with through studying protective rights and changes in alimony rights and obligations, which is the inquiry of this thesis. Finally, I will argue that a law, no matter how good it may be will fail to fulfil its purpose if not enforced properly. Therefore, enforcement of the law is of critical importance to the value of law itself.

5.2 Definitions

5.2.1 Law from a sociological perspective With regard to law, similar to any other subject matter, the perspective taken affects the definition provided. For the purpose of this thesis, given that socio-cultural changes and their effects on law are being studied, law here is defined from a sociological perspective.

One definition of law from a sociological perspective is that provided by Black. Black (1979:2) defines law as a ‘governmental social control’. As Baumgartner (1999) explains, based on the definition provided by Black, we can say that the more active role the government plays in restricting wrongful behaviours the more law that will be created in that society. Therefore, any interaction between people, the legal system and law enforcement authorities will result in the need for more laws to be created. What’s

100 more, governments, which are more developed, will have created more laws to prevent misconducts.

Baron de Montesquieu and Jean-Jacques Rousseau in the 18th century had argued about the origins of laws and the social influences on the legal systems. Later in the 19th and the 20th century other famous sociologists, such as Max Weber, Karl Marx and Emile Durkheim drew attention to how social variables affect law (Baumgartner 1999). Baron de Montesquieu argues that, the origins of laws are rooted in the ‘customs, experiences, and environments’ of societies (Montesquieu 1748) as cited by (Baumgartner 1999:2). However, Karl Marx and Friedrich Engels found the roots of laws to be in the existing inequality in society and claimed that with the restoration of equality within human society laws will fade away (Baumgartner 1999).

Nonetheless, while sociologists find the origins of laws to be in different features of the society, one issue that they all agree on is that law and legal systems are creations of the society. As Laster (2001:1) puts it: ‘…law and the legal system do not stand outside the society that brings them into being. It uses law as a lens to reveal the dominant cultural values and interests of a society and observe how these are preserved, challenged and changed’.

Pedriana (2006:1723) argues that people’s understanding of social relationships, regardless of whether those relationships are clearly legal or not, are through concepts which are embedded ‘in a symbolic framework organised around legal concepts and categories’. Needless to say, ‘law may be the source of new expectations for existing relations’ (McIntyre 1994:113) as cited by (Pedriana 2006:1724).

The law is also very closely linked to the culture of the society in which it has been adopted. Mary Ann Glendon claims: ‘the law tells stories about the culture that helped to shape it and which in turn helps to shape: stories about who we are, where we came from, and where we are going’ (1987:8).

While the laws of each country reflect the culture of that country (Laster 2001), the laws themselves are inspired by the religion of the given society. Religion being one aspect of culture, is by itself influenced by different changes that occur in society such as

101 political, economic, social and cultural changes (Bonvillain 2006).37 This can create hardship in heterogeneous communities where people have different cultures and values, and the aim of the law is to resolve the existing differences (Laster 2001). Htun and Weldon (2011:3) state: ‘Legal provisions thus tend to reflect the historical, institutionalized relations between the state on the one hand and religious groups, clans and tribes and cultural communities on the other’.

As society and culture changes, laws need to evolve in order to combat new problems or address issues that may arise. These issues may have previously existed and have not been acknowledged, such as domestic violence as mentioned in the previous chapter, or they may be issues which have come into being with advances in technology such as cyber- crimes. One example of social and cultural change in the 20th century, which resulted in changes in the existing laws, was the increase in the number of women graduating from universities and the increase in the number of women entering the labour force. With more women entering the labour force women were able to achieve higher levels of economic equality to their male counterparts within the family (Costa 2000). This, along with other factors such as the women’s movement for gender equality, resulted in a decline in the birth rates in many countries, and led to a rise in the rates of divorce since women felt more financially secure and would no longer stay in a relationship due to financial dependency (Bremmer and Kesserling 2002). As a result of these social and economic events, gender roles gradually changed and alongside that, laws also changed.

Recognition of the need to change the law is not always brought to the attention of authorities in the same manner. ‘Emergency issues such as the threat of terrorism, pressure on the Government [including pressures from social movements and lobby groups] to update old laws and case law in the courts, interpreting, clarifying and re- applying established principles of statute law’ (Parliament of the United Kingdom), are among the many reasons through which the passing of new laws is brought to the attention of authorities. In the case of women and changes in gender roles, even though civil and criminal remedies against wife beating existed, it was the battered women’s movement, which drew attention to the need to pass new laws against domestic violence

37 The religious influence on laws will be studied further in Chapters Six, Seven and Eight. 102 that would make it easier for women to press charges against their abusers, since the previous laws proved to be ineffective (Tierney 1982).

Barclay and colleagues state that social movements and their role in modifying the laws has been a topic in which sociologists have shown much interest in for almost two generations now. These studies reveal that through time movements have been developed which have addressed ‘collective social, political, and economic power’ in order to change existing laws that had formerly overlooked and omitted them or their supporters and many have succeeded in doing so (Barclay, Jones et al. 2011:2).

5.2.2 Social movements Social movements are modern movements that take place as a result of modernisation. Therefore, as long as modernisation procedures continue to take place social movements will also continue their existence. However, in many cases social movements consider themselves to be ‘movements of modernisation’ (Huber 1989:365).

Freeman (1973:793) argues that it is extremely rare for a movement to be studied as a distinct social occurrence but is normally considered as collective behaviour or ‘interest group and party formation’. While the former one is spontaneous and the latter is structured, it could be said that movements have characteristics of both. As Benford and Snow point out one characteristic that distinguishes social movements is that the actors involved are active participants in the movement. This means that the actors are actively involved with the media and the State and ‘are viewed as signifying agents actively engaged in the production and maintenance of meanings for constituents, antagonists, and bystanders or observers’ (Benford and Snow 2000:613). The manner in which this is done is referred to as framing.

As Benford and Snow further illustrate the framing concept has been used abundantly when studying social movements and collective action and point to the increasing plethora of research to support their claim (Benford and Snow 2000:612). Framing is essentially the active construction and presentation of an idea.38 Further, movements

38‘… It is active in the sense that something is being done, and processual in the sense of a dynamic, evolving process. It entails agency in the sense that what is evolving is the work of social movement organizations or movement activists. And it is contentious in the sense that it 103 frame their agenda in a manner to align their arguments with the existing cultural values, in order to gain additional support, and to provide explanation of how their agenda can be integrated into the current cultural structure. This is referred to as frame alignment (Taylor and Whittier 1995).

Collective action frames have been defined as action oriented values and viewpoints which encourage and legitimise the activities and conduct of social movements and campaigns (Snow and Benford 1992) as cited by (Marshall 2003:663). They do this through procedures which they refer to as ‘frame bridging, frame amplification, frame extension, or frame transformation’39 which is redefining the normative frames to justify their agenda. As a result, collective action frames combine the previous culture and beliefs with the new challenging values (Snow, Burke et al. 1986) as cited by (Taylor and Whittier 1995:168).

Social movements often borrow and adapt frames from previous successful social movements (Benford and Snow 2000). Therefore, an influential social movement is one which creates major frames that outline the manner in which following contestants interpret and put together their arguments (Snow, Burke et al. 1986) as cited by (Taylor and Whittier 1995:168).

One feature, which all social movements share, with varying degrees, is that they create culture (Taylor and Whittier 1995), and they act as a basis for self-criticism and self- correction towards the developing society. Nonetheless, one thing which is important is that, regardless of how similar a social movement may frame itself to other successful social movements’, the fact that laws are reliant on the existing culture makes it difficult for these social movements to assume the social power which prior movements have already gained (Barclay, Jones et al. 2011).

involves the generation of interpretive frames that not only differ from existing ones but that may also challenge them. The resultant products of this framing activity are referred to as “collective action frames’ Benford, R. D. and D. A. Snow (2000). "Framing Processes and Social Movements: An Overview and Assesment." Annual Review: Sociology 26: 611-639. 39 See further, ibid. 104

Social movements may also become or promote political movements. This occurs when a social movement attempts to change a system by using processes which are inbuilt in that system. It can also happen when a social movement struggles for ‘position of power within the State and economy’ (Huber 1989:373).

Social movements play a direct role in altering the socio-ecology of the developing industrial system in order for it to respond to the needs and demands which have been put forward by the cultural and natural circumstances. For instance, if we look at the women’s movement, while they pursued their agenda by adopting notions provided by previous movements they then criticised the oppression and abuse of women by the system, as well as introducing independent views towards liberation. These general views on liberation have then been taken on by other movements (Huber 1989:369).

One of the main aims of most social movements is to address the existing laws. Social movements have in many cases pushed for and succeeded in persuading governments to modify existing laws or have resulted in the creation of new laws. While laws are often the primary cause of the existing injustice, inequality or oppression which social movements aim to address, in addressing such matters social movements tend to make use of the laws (Barclay, Jones et al. 2011:2). Pedriana (2006:1724) quotes John Brigham (1987), where he states: ‘[law] infuse[s] and inform[s] [social] movements themselves by becoming an essential part of their thought, their identity, and their social boundaries’.

Nonetheless, it should be stated that the success of a social movement does not necessarily lie in changing the laws. The true success of the movement is revealed when it succeeds in altering the status of groups which had previously been ignored by providing them with the ability to employ further power in the changes which they put forward, by changing and using the existing laws (Barclay, Jones et al. 2011:3).

5.2.2.1 Social movements and the law As Marshall argues, changes in different areas of the society such as the cultural, social, and political ideals and values impose pressure on people. One of the consequences of this pressure is that it results in disputes and ultimately calls for the presence of law. Social movements build upon this and in some cases devote efforts to make these daily issues contentious in order to seek legal reforms to amend those issues (Marshall 2003:662). 105

Disputes are subject to the beliefs, perceptions and attitudes of those involved and are, therefore, flexible (Marshall 2003:661). Law is also not static and their implications and purpose are flexible and can be subject to change. As a result, the conceptualisation of law is partly dependant on the perspective of the social movement actors’ and the power they grant to that perspective. In addition, cultural and structural changes can also generate legal changes, which could then lead to further promotion of the social movements agendas (Barclay, Jones et al. 2011:3).

Consequently, law is of great significance to social movements, to the extent that Barclay states: ‘Law provides a symbolically rich medium that social movements use to construct and to circulate meaning both within the movement and in their relations with actors outside the movement’ (Barclay, Jones et al. 2011:3).

As Pedriana concludes, one of the aims of almost all social movements, are legal goals, even if not entirely. Social movements, whether they are seeking the acknowledgment of rights which were previously denied, or whether they seek developments in rights and benefits that currently exist, or whether they challenge the government regulations dealing with social and economic matters, in doing so address the existing laws and search for change to those laws (Pedriana 2006:1722).

This was also the case in the women’s movements. In these movements the goal then was not only to debate women’s roles in different sectors of the society such as within the family and at work, but was also to try and protect and enforce these redefined cultural structures of gender which were being challenged, by including them into the State laws. These laws were then implemented through the judicial and administrative sectors of the State which then gave legal force and recognition to the demands of the movement (Pedriana 2006).

Pedriana (2006) considers law to be a cultural tool which social movements use both as a measure and an objective, in order to accomplish their goals. This is sometimes achieved by using some laws as a tool to change other laws. Therefore, actors of a social movement are required to make use of the existing social and institutional systems and procedures and to negotiate their influence through them (Barclay, Jones et al. 2011:4). However, as will be seen in this chapter, the passing of laws does not guarantee the

106 achievement of the goal of a social movement, since the enforcement of those laws may result in previously unanticipated consequences.

Regarding the State’s interaction with social movements, the State may use the law as a suppressive force which is used to control the challenges made by social movements (Barclay, Jones et al. 2011). As we will see, in this chapter, the State may also indirectly hinder or oppose social movements through neutrality on the issue or by leaving its position ambiguous when different laws or judicial decisions conflict. On the other hand, the State may in cases be an active member of the movement, and may ratify policies which help with the progressions of the movements agendas (Barclay, Jones et al. 2011), as was the case with IPV.

One of the main struggles of the women’s movements has been for the establishment of gender equality. Since as we have seen in Chapter Four, the oppression of women and the patriarchal system, which gives superiority to men, is a significant cause of why women are abused and remain in abusive relationships. The women’s liberation movement took place in the late 1960s and early 1970s and consisted of two branches. The first branch or the older branch included many organisations such as the Human Rights for Women and the lobbyist group of Women’s Equity Action League and the National Organisation for Women (NOW). The focus of this branch of the movement was on economic and legal issues. The new branch of the movement, on the other hand, was not organised; however, a significant amount of heterogeneity exists within this branch and together with old branch (Freeman 1973) they made the grounds ready for the battered women’s movement (Tierney 1982). These movements allowed IPV against women to be acknowledged as a serious offence which required State intervention, and the need to criminalise these behaviours (Hajjar 2004). As a result, States have passed laws to prevent such behaviours.

However, gender equality has not been an easy goal to achieve, since in many cases the different treatment of women has been justified on the grounds of their biological differences. One question which needs to be answered is: Can gender equality and gender difference co-exist?

107

5.3 The struggle between equality and similarity As Kay has argued, when we speak of equality from a mathematical point of view the values which we are comparing need to be the same. From a legal perspective, on the other hand, equality means that the law must treat those people that are similarly situated equally. Kay further continues by stating that similarly situated does not exactly mean the same. As a result, despite people being different, for example on grounds of sex, race, marital status and other areas, if they are similarly situated for the purposes of a law they should be equally treated by that law and should not be legally discriminated against. It is then understandable that this view (similarly situated must be dealt with similarly by the law) has been greatly supported by feminists who have been fighting for gender equality (Kay 1987a:15).

The equal treatment of men and women is envisaged by the Universal Declaration for Human Rights (UDHR), which was adopted on December 10, 1948. The UDHR recognises that men and women are different, yet, it also acknowledges that this difference should not result in them being treated differently before the law and being discriminated against. Based on the UDHR, men and women should have equal rights, opportunities and responsibilities. What’s more, the UDHR acknowledges the fact that this equality is not merely a women’s issue and applies equally to men and boys as it does to women and girls, even if experience has shown us that women are more likely to be discriminated against and to be abused (United Nations Human Rights: Office of the High Commissioner for Human Rights 2012).

Establishing equal rights is an international goal. This is clear from the UDHR, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICECSR) and the many nations that have ratified them. However, until today, the definition and scope of equality and the enforcement of the UDHR and the covenants has not been consistent in the ratifying countries. The most recognisable case is in regard to racial equality. In countries such as the United States, Australia, South Africa, to name a few, segregation and racial discrimination were still acceptable practices even after the UDHR and the International Covenants were adopted. Nonetheless, many of these States were of the opinion that although racial minorities or women were in some cases provided separate rights, they were still considered to have been treated equal to the racial majority or to men. This then led to debates on whether separate but equal rights can go together. 108

5.3.1 Separate but equal rights The women’s rights movement has experienced a similar path to the racial equality movement (Kay 1985; Pedriana 2006). Both have used many of the same frames and laws used by racial equality litigants to argue their claims for equality. It is relevant to our discussion to review these movements. For comparison, it is best if we study racial equality and once again use the United States as our example for racial equality and the unique challenges faced, since racial equality in the U.S. not only provides a clear illustration but it is also well documented.

In the U.S. Declaration of Independence, it is stated that ‘all men are created equal’. However, it has been argued that when that was written the nation’s founders did not realise that the term men may also include women or blacks (Kay 1985). Even though the Civil War resulted in Amendments to be made to the U.S. Constitution in which blacks were to enjoy equal protection before the law, nonetheless in practice blacks were treated as inferior to whites and were subjected to segregation in many spheres of life (Logan 1954; Kay 1985).

Slavery endured until after the Civil War within the United States. At the end of the Civil War, the rights granted to blacks because of the 14th Amendment were being upheld during the Reconstruction Period (Kay 1985). However, various factors led to the weaker enforcement of such laws, which ultimately resulted in the protection of these rights to quickly disappear (Kay 1985). These factors included the compromises which led to Rutherford B. Hayes becoming President (Logan 1954), the Supreme Court invalidating and narrowing federal laws, which had been enacted to safeguard the rights of former slaves, as well as public opinion (Kay 1985).

In the historic case of Plessy v. Ferguson (1896), the Supreme Court, by a vote of seven to one ruled that ‘separate but equal rights’ can exist and as long as blacks were provided equal facilities there could be separate facilities for whites. With this ruling, the courts rejected assimilation and accepted the validity of discrimination based on racial differences. We can also see the existing cultural influences on this decision. As Kay (1985; 1987a) points out, the courts believed that racial differences (stereotypes) were natural and, therefore, they were powerless to stop them. The Court further limited the scope of the 14th Amendment with other Court rulings in which it distinguished between privately perpetrated racial discrimination and State perpetrated racial 109 discrimination. It did this in several cases by ruling that private individuals could lawfully discriminate based on race and that the 14th Amendment only applied to State facilities.

To combat these polices, racial minorities, primarily the National Association for the Advancement of Coloured People (NAACP), decided on specific objectives in order to challenge the segregation laws. They pursued legal channels to try to change the existing laws to help facilitate social reform (Handler 1978) and to create changes in culture and the existing circumstances (Kay 1985). To achieve their antidiscrimination objectives, they agitated for the abolishment of any laws and obstacles which hindered their voting rights (Handler 1978; Kay 1985). Other objectives were to end all-white juries and be able to purchase and occupy residential property in any location of their choice (Kay 1985).

The result of these efforts can be seen in the racial desegregation case of Brown v. Board of Education (1953). In this case in which the plaintiffs were sponsored by the NAACP, the Supreme Court overturned the ruling of the Plessy v. Ferguson by concluding that state laws which establish separate public schools for black and white students are unconstitutional and in violation of the equal rights stated in the 14th Amendment. The Court ruled that this was the case even if the schools were equal in facilities and all other matters. The Court not only ruled that separate but equal was unequal as far as education went but also ruled that it was unequal in all other areas of the society and should be stopped as soon as possible. This case along with other antidiscrimination efforts helped pave the way to the enactment of the Civil Rights Act of 1964 (Kay 1985).

Title VII of the Civil Rights Act of 1964 forbids discrimination on the basis of race, sex, or religion (Pedriana 2006). While the Supreme Court held the U.S. Constitution could only accommodate people’s discrimination challenges if they were within the public sector, Title VII also allowed blacks to confront discrimination in the private sector (Kay 1985).

One of the early cases involving Title VII, Griggs v. Duke Power Co. (1970), was brought against the Duke power company by a group of black people. The question was whether it is a violation of Title VII the Civil Rights Act of 1964, that Duke Power Co. 110 had placed a condition which required applicants to have a high school education and to pass a general intelligence test in order to be employed or transferred. These requirements disqualified many more black people in comparison to whites, and it violated their equal opportunity right. The requirement did not appear to be of any significance to the performance of the job. In this case, the Supreme Court held that Title VII was not only to ban obvious forms of discrimination, but also those practices which appear to be fair but in practice lead to discrimination. Therefore, the conditions set down by the Duke Power Co., were found to be in violation of Title VII.

However, it came to the attention of the courts that in many cases the elimination of racial barriers was not enough to secure equality in the employment sector. The courts began to recommend affirmative action procedures and allowed racial minorities to combat racial discrimination upon the initiation of such issues by the private sector. These practices have been challenged by litigants who believed they were victims of reverse discrimination. It is important to note that in the reverse-discrimination cases which reached the Supreme Court, the litigants did not seek to be included in the racial minority group but rather wished to have the preferential treatment afforded to the minority group removed (Kay 1985). Kay (1985:61) draws on the discrimination and reverse-discrimination cases to conclude that racial discrimination is a ‘one-way model of desired access’ where a racial minority seeks access to the privileges held by the privileged racial class.

While racial equality may not yet be achieved in the United States as well as in other countries, with the change in laws we can now see that a change in the culture has emerged with regard to racial discrimination as evident in the election of Barak Obama as President of the United States. With Hillary Clinton’s advances, when running for the democratic nomination for presidency, and now being the Secretary of State, we can see that culture has also progressed with regard to sex equality. Racial and sex equality are often compared, and progressions have been made in both cases, worldwide.

However, Kay (1985) and Pedriana (2006) argue that gender equality has been harder to achieve than race equality. While men and women have biological differences, Kay (1985:41) argues that in cases where these differences between men and women are irrelevant the racial equality model should be adopted (assimilationist model), and ‘that the law should treat men and women as if they were interchangeable’. Nonetheless, she 111 further states that in cases where the irrefutable biological differences gain importance such as pregnancy, those differences should be taken into account (pluralist model) so that they would not act as an barrier to individual achievement. However, Kay argues that this different treatment should only take place when that reproductive difference is being used. This is what is referred to as substantive equality, which was examined in Chapter Four. This then leads us to the topic of protective rights which have been provided to women due to their biological differences. However, in many cases they have not provided women with protection but have limited their opportunities for advancement.

5.3.2 Gender equality and gender protection When discussing gender equality the differences between the genders and any relevant history regarding the stereotypical gender roles and their relevance to modern gender equality need to be discussed. Looking at men and women it is simple to find general characteristics (strength, height, hair growth, etc.) to distinguish between men and women. However, there is such a large spectrum of these attributes among men and women themselves that these differences are insignificant when using them for gender equality and employment issues.

Nonetheless, historically different rights and obligations have been justified on the basis of these existing biological differences of men and women. One of the few undeniable differences between the sexes is women’s ability to become pregnant and bear children (Kay 1985; Pedriana 2006). The traditional family structure was based on an efficient division of labour. In this division of labour, due to the common belief that men are stronger and women are to bear children, it was considered more appropriate for men to enter the labour forces and provide, and for women to stay at home and take care of the children (Blau and Ferber 1992). In an agriculture society children were needed to work on the farm, the more children would mean the more work would be done. That along with infant and child mortality created the need for women to spend a much larger amount of time bearing children than now (Jacob 1988).

Modern medicine has decreased infant mortality rates significantly over the past 100 years. Technological advances have made farming and other labour intensive industries to require far fewer individuals and less bodily strength. Social and cultural changes also have led to a great reduction in the number of children borne by women (this

112 includes the use of the contraceptive pill and abortion) (Jacob 1988; Blau and Ferber 1992). The justifications that previously existed to exclude women from the labour force are no longer a basis for discrimination as we will see in the following sections. In any case, there is still ongoing debate regarding how pregnancy and parental leave should affect gender equality and whether parental leave should only be for women or whether it should also apply to men. While the purpose of this thesis is not to debate pregnancy and parental leaves in particular, it will be beneficial to discuss what part women’s role as mothers and wives has played in establishing the stereotypical gender roles and how circumstances have changed.

Within the United States, as in many other Western countries, by the 1960s some of the stereotypical gender roles were beginning to break down. Women had proven during WWII and after, that they could successfully contribute to the workforce and perform the same work as men (as will be seen later in this chapter) (Lauerman 1987; Kay 1987a). Nonetheless, the society and laws continued to believe that women needed special treatment because of their gender (Olsen 1986; Pedriana 2006). Some of these measures providing special treatment were restrictive, and discriminatory against women, while others gave them special treatment above what might be provided to a man, and as we will further see, were considered to be discriminatory against men (Pedriana 2006).

As Pedriana states: ‘Transformations in the women’s movement and women’s employment policies were largely attributable to a framing contest between competing cultural constructions of gender in the workplace and in society more generally. Moreover, this framing contest—what I call “protective” versus “equal” treatment—was waged in explicitly legal terms’ (Pedriana 2006: 1719).

Based on these laws, while the rights of women were limited in some respects due to their gender they were also given special or separate rights in other respects, such as limits on the weight of the objects which they could be required to lift in a workplace environment. These policies raised issues similar to that of racial equality in the workplace in the United States as it raises the question: Are those labour laws that require different treatment of different sexes discriminatory? If a law grants women more protection over men, is that discriminatory against men?

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To answer these questions, we will look at the U.S in the late 1940s. Following the strong participation of women in the labour forces during World War II the possibility of the Equal Rights Amendment40 (ERA) being added to the Constitution appeared to be more tangible. Agitation for a national Commission in order to examine the status of women took form. However, the ERA was faced with formidable liberal opposition since many found it to be a threat to the protective laws which women had obtained through extensive struggles. In 1947, this opposition group suggested a ‘congressional Commission on the status of women’ be created, with the intention of bringing all women’s groups together to oppose the adoption of the ERA. The opposition group also made coming to an agreement with the ERA supporters’ impossible (Harrison 1980). The reason being that the opposition added a clause to the Bill to establish the Commission, which stated: ‘it is the declared policy of the United States that in law and its administration no distinctions on the basis of sex shall be made except such as are reasonably justified by differences in physical structure, biological, or social function’ (Harrison 1980: 632).

The women’s stance in this regard was different. Those who had high paying and professional jobs found protective laws to be a means to impede their growth, while those with working class jobs and very low incomes found protective laws to be essential. This dichotomy, indicated that neither the National Commission, nor the ERA would be successful in gaining the Congress’s consent (Harrison 1980).

In 1957, the establishment of this Commission received support by the National Manpower Council, which among other issues, recommended that the Secretary of Labour should appoint a Commission that would then re-examine federal and state legislation that deals with women’s employment. The Department of Labour refused this recommendation (Harrison 1980:633). A few years later, in the 1960s President Kennedy formed the Presidential Commission on the Status of Women (PCSW) (Harrison 1980; Pedriana 2006) to appease a small but demonstrative group of feminists

40 The Equal Rights Amendment was introduced in 1923 by the National Women’s Party. The ERA stated that ‘Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.’ In 1943, this Amendment was reworded to state: ‘Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex’ Harrison, C. E. (1980). "A "New Frontier" for Women: The Public

Policy of the Kennedy Administration." The Journal of American History 67(3): 630-646. 114 in the National Women’s Movement who were clamouring for equal rights (Pedriana 2006). The PCSW signified a major ‘shift in the federal policy’ (Harrison 1980: 630).

The Commission was to provide recommendations which would lead to the abolishment of sexual discrimination within public and private employment and to recommend that services be provided to make it possible for women to maintain their roles within the family as wives and mothers and at the same time to work in the labour force (Pedriana 2006).

In 1963, the PCSW presented a Report to the President called the American Women. In this Report, the PCSW wrote that protective laws were needed because the ‘differences between men and women and the dual role of women as mothers and homemakers, and of workers, are realities that distinguish their needs from the needs of men’. However, at the same time the PCSW supported equal opportunity in public and private employment, gender neutral minimum wage laws, equal pay for equal work policies, and equal access to unions and collective bargaining (PCSW 1963:27-39) as cited by (Pedriana 2006:1733-1734).

In 1964, the Civil Rights Act was passed. Title VII of this Act banned discrimination based on race, religion, or sex. This led to conflicting opinions as to what to do regarding women in the workplace (Pedriana 2006). By 1965, the PCSW led many states to pass further protective laws that were designed to limit women’s options in the workplace, so they would have time to fulfil their roles as a wife and mother. The laws were also designed to protect them from stereotypical gender characteristics of women, such as inferior physical strength. This led to limits on night work, lifting heavy objects, and maximum hours restrictions, among others as well as special facilities designed for women. The Commission rejected claims that the state laws limited women’s opportunities (PCSW 1963:22) as cited by (Pedriana 2006:1733).

Even though there were those who still believed in the protective treatment of women and many states already had laws with regard to women in the workplace, however, because of the language of Title VII it would suggest that the protective treatment of women would conflict with the equal treatment. This was not only due to the fact that women might see it as oppressive, but also the special treatment being discriminatory against men (Pedriana 2006). Supporters of these protective laws were of the opinion 115 that, regardless of the equality mentioned in the Fourteenth Amendment, due to the reasonability of these laws the Supreme Court would continue to maintain these laws. These laws were then debated in the Commission, which led to an increase in these laws for women rather than to include men –even though all members found the inclusion of men to such laws to be appealing. What’s more through lobbying and data-gathering the director of the Women’s Bureau, Peterson, used the Presidential Commission for the equal pay legislation to be passed which was signed by president Kennedy in 1963 (Harrison 1980:642-643).

Both women’s rights groups and the Equal Employment Opportunity Commission (EEOC) were unsure how to proceed with this new legislation (Kay 1985; Pedriana 2006). The EEOC decided to distance itself from this dilemma and allow it to be dealt by courts. It did this through advising those who felt they had been discriminated against to take their case to the Federal courts. Many women’s rights activists believed that Title VII of the Civil Rights Act should be given effect with more force in regard to the sex discrimination clause, since they found protective rights to be grounds for discrimination. However, after acknowledging that the government did not intend to follow their demand they proceeded through developing their own organisation known as National Organisation for Women (NOW).41 NOW found sex-specific classifications, even if they were protective, to be essentially discriminatory and argued that they should be abolished. NOW aimed to reframe (frame transformation) ‘the women’s movement from one that clung to some sex-specific legal classifications to one that rejected all such classification’ (Pedriana 2006:1742-1743).

NOW pursued these ideals in the courts and among the public population, it tempted to redefine sex discrimination through initiation or support of legal cases by arranging demonstrations against sex discrimination and representing plaintiffs in courts (NOW Papers. N.d. 1966-71:16) as cited by (Pedriana 2006:1744). It opposed stereotyping

41 ‘NOW rejected all sex-specific employment classifications and was ideologically committed to a full-blown equal treatment standard for women in the workplace. NOW’s immediate political identity centered on the destruction of gender-specific legal categories, including those that for decades had required and legitimated protective labor policies exclusively for women’. Pedriana, N. (2006). "From Protective to Equal Treatment: Legal Framing Processes and Transformation of the Women's Movement in the 1960s." American Journal of Sociology 111(6): 1718-1761. 116 gender characteristics. NOWs’ success became apparent once the Fifth Circuit reversed the ruling of the District court of Georgia. In this case, the district court of Georgia had found Georgia’s law to be reasonable and to make a ‘bona fide occupational qualification’ for placing a ‘30 pound weight lifting limit’ (1967) as cited by (Pedriana 2006:1744-1755). Eventually, by the late 1960s equal treatment was established ‘as the dominant legal rule governing sex discrimination under Title VII’ (Pedriana 2006:1746).

As a result of all these events, sex oriented protective laws are today used in very exceptional cases in the U.S. and men have been included in the scope and protection of many such laws. Many other countries have also taken the same stance. These laws are important to the discussion of IPV in this thesis because, as discussed in this section, while protective laws on the surface may appear to be protective, in reality they can limit opportunities, advancement, and create inequality between the sexes. If protective laws were to be defined and applied broadly, they would impede women’s progression in the labour force and may ultimately result in economic IPV as it forces women to be economically dependent on men, which then may result in economic control of men over their wives. Needless to say, this could then render women needing to remain in abusive relationships due to their economic dependency. Furthermore, in the ‘two way model of desired access’ many men prefer to have access to roles which were stereotypically assigned to women and through struggles have managed to gain access to these roles. Protective laws may also limit men’s opportunities as a househusband as these laws indirectly force men into the role of breadwinners, since they may limit the dual worker family we so often see today (Kay 1985:45).

With laws changing to provide equality for both men and women, such as applying protective rights to men as well as women, the issue which is of importance to this thesis, is that how have these changes affected spousal maintenance laws and practices. Historically, spousal maintenance was an amount which a husband would pay to a wife, and was, therefore, gender based. How have changes in society, and advances towards gender equality, affected this liability?

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5.3.3 Gender equality, marriage and spousal maintenance in Common law jurisdictions In Western societies marriage is usually regarded as a life partnership based on a love relationship; however, there is more to marriage than simply love. McCoy (2005-2006) states that marriage is primarily an economic establishment, rather than being a relationship which is merely based on love. By referring to Engel (1999) McCoy further argues that: ‘…some consider marriage an ‘economic partnership.’ Although the term ‘partnership’ suggests gender equality between husbands and wives, the term is misleading because partners to a marriage are typically not economically equal’ (McCoy 2005-2006: 501).

It is within the institution of marriage that the topic of spousal maintenance is discussed. However, as we have seen in Chapter Two, through time some countries have developed their laws to include other relationships such as de facto relationships (e.g. the Family Law Act 1975 Australia). In those countries financial support through spousal maintenance extends to such relationships.

Historically, in many Western countries such as England, and Australia, husbands and wives were not free to choose their roles within marriage. Marriage was established by law as a patriarchal institution in which the man was the head of the household and would represent his wife in the society since by entering into marriage the woman lost her legal identity (Lauerman 1987:493; Bailey 2001). This is referred to as the law of coverture (Bailey 2001; McCoy 2005-2006).

This was also the case in the U.S. until the 20th century. During the 20th century, all states within the U.S. had passed provisions which would better the status of women within the family and gradually restore their legal identity. Nonetheless, those statutes were often interpreted narrowly by the courts which were applying them which then gave rise to the need for further legislation to correct those mistakes (Lauerman 1987; Kay 1987a).

Within this patriarchal system, as we saw in the previous chapter, men were by tradition and by law allowed to use physical violence against their wives to discipline them (this was the case in many Common law countries (Bachman and Coker 1995) and continues to be the case in some countries today). Rape within marriage was not recognised and

118 women had to submit to the husbands’ sexual demands (Seth-Purdie 1995-96). It was not until a few decades ago that rape within marriage was acknowledged as a crime in some countries. Men were also considered the head of the households and had control over all other members of the household, their assets and belongings (Jacob 1988). Therefore, upon marriage a husband would gain control of all of his wife’s assets regardless of whether she owned those prior to her marriage or not. The wife’s rights to own real property, to sign contracts or to keep any income was then transferred to her husband (Bailey 2001; McCoy 2005-2006) and the husband could control the wife’s economic life (Bailey 2001).

Women in such systems were legally and traditionally considered as inferior to their husbands. In most societies, they were required to take their husbands name after marriage and had to live where their husbands chose (based on custom and law).42 The husbands were obligated to provide for their family, and they chose the standard of living. The husband also had the right to prevent certain visitors from the house regardless of what his wife desired (Jacob 1988).

Many forms of what is today considered as IPV were customarily and legally accepted behaviour against women due to the existing patriarchal system governing the households. These acts today can be classified as economic, social, physical, emotional and sexual forms of IPV.43

Based on these established gender roles wives were normally entitled to financial support by their husbands. A husbands obligation was to provide financial support to his wife and children as the breadwinners, which continued after their separation or divorce, with the husband having to pay spousal maintenance44 (Connell 1981; Jacob 1988;

42 Although in the California law, prior to the Family Law Act 1970, women were not legally required to take their husbands name after marriage, normally they chose to do so. Also, at that time the support primarily fell on the husband, since they were the head of the household, however, women had to assist them. See Kay, H. H. (1987b). "An Appraisal of California's No-Fault Divorce Law." California Law Review 75(1): 291-319. 43 See Chapter Two.

44 Alimony is: ‘A financial benefit paid by one spouse to the other which enables the second spouse to maintain himself or herself. While the term is widely used in the United States, it is not generally used in Australia and is not found in the (CTH) Family Law Act 1975. The 119

Ellman 1989; Bailey 2001). This was the case even if the wife was affluent before marriage; the husband was still obliged to provide for his wife, since, upon marriage, her property became her husbands’. However, the woman in return had to care for the children, provide housework and companionship services to the husband (Perry 2001) as cited by (McCoy 2005-2006).

As we saw and will study more in the upcoming sections, the laws have evolved to reflect changes due to modernisation and industrialisation and women’s movements. These laws aimed to confer full legal status on women, including married women. Nonetheless, enforcement of laws which aim to maintain and establish equality does not always provide the result expected. This could also be the case with laws preventing IPV, in which their enforcement could lead to unwanted results. This shows that the enforcement of laws is just as important as the laws themselves.

However, before I study how the enforcement of laws may lead to results not previously anticipated, I will study the history of spousal maintenance and alimony, and how these obligations have changed as a result of changes in gender roles and laws promoting gender equality. Studying these topics is important to this thesis since it will reveal how changes in gender roles requires changes in laws dealing with economic obligations of the spouses, in order for equality to be sustained and to prevent either partner from being financially abused.

Australian equivalent is ‘maintenance’’ Nygh, P. E. and P. Butt, Eds. (1997). Butterworths Australian Legal Dictionary. Sydney, Butterworths. It is also worth noting that the Uniform Marriage and Divorce Act (1970) in the U.S. has used the term ‘maintenance’ while the California Civil Code has adopted the term ‘support’. Nonetheless, Vernier and Hurlbut in Vernier, C. G. and J. B. Hurlbut (1939). "The Historical Background of Alimony Law and Its Present Statutory Structure." Law and Contemporary Problems 6(2): 197-212. argue that in cases where the wife has been ordered to pay allowance to the husband it should not be referred to as ‘alimony’ since ‘alimony is a substitute for the common law duty of support. A wife owes her husband no such duty except by statute in a few jurisdictions’. However, this is not the case today. In order to avoid confusion and to be consistent the term spousal maintenance will be used when studying Western countries in this

thesis. 120

5.3.3.1 Factors leading to gender equality and changes in spousal maintenance within the family Spousal maintenance can be historically traced back to the ‘English ecclesiastical courts’ (Ellman 1989). As we saw, in the past husbands were obligated to provide for their wives, this is attributable to the established gender roles which were then reflected in the existing laws and customs. This obligation continued even after the spouses were legally separated (divorce did not exist). Legal separation was only granted if one of the partners could prove that the other partner was at fault, for instance if they had been unfaithful. During the marriage period, the wife’s responsibilities were limited to the house and she had no independent income. Therefore, after separation, the society and law considered women to continue being reliant on their husbands for maintenance and hence, expected the husbands to continue paying maintenance to the innocent wife. As a result, women were to be provided for and financially supported even after separation45 (Kay 1987b; Ellman 1989).

However, it was only in the modern times - almost the 1950s onwards - that a series of events took place leading to changes in the existing cultural and economic beliefs (McCoy 2005-2006) which ultimately resulted in a re-evaluation of the legally influenced roles of men and women within marriage and within the family. It should be noted that while I will be mainly be dealing with the occurrence of these events within the United States, however, as Jacob has argued these events and changes have also taken place in most Western countries at about the same time as in the U.S. and are not confined to that country (Jacob 1988). Below are some of the most salient factors which in the modern history have led to and have promoted gender equality.

5.3.3.1.1 Women’s participation in the labour force One very important factor, which has led to changes in roles within the family, is the participation of women in the labour force. The rate of women’s participation in the labour force is said to be a strong indicator of women’s advancements in gaining equality, because economic dependency impedes their capacity to gain status (Blau and Ferber 1992).

45 The fault system did in some jurisdictions result in only innocent women to be paid alimony by guilty men, however this was not always the case, see Victorian Law Reform Commission (September 2003). Defences to Homicide: Options Paper. Melbourne, Victorian Law Reform

Commission: 308. 121

During the industrialisation period (late 18th century and early 19th century), some women worked as paid labour in industries such as textile mills (Jacob 1988). However, industrialisation led to an increasing number of families to move to urban areas and away from the farms. This created a stronger distinction in gender roles and economic roles since women’s participation in maintaining the farm was no longer required. Her responsibility was confined to taking care of the household (mainly white middle class women) while her husband worked and provided for the family. Consequently, until the mid- 20th century very rarely would wives remain in labour forces once the husband - who was considered to be the breadwinner - was employed and could provide for the family. During this period, strong patriarchal views existed and men had absolute dominance and were considered to be the head of the household and women were to submit to their demands (Blau and Ferber 1992).

In the mid-20th century a series of events resulted in women’s participation in the labour force to grow dramatically. This is evident in the rates provided in which it shows that in the year 1900 within the U.S. only 5.6% percent of married women worked outside the home (Jacob 1988:17). This rate then grew to 13.8% by the 1940s (Jacob 1988:18). During World War II, married women and women with children took more active roles in labour forces. The fact that many men were participating in the war left many households in need of income and many jobs available and open to women (Lauerman 1987; Blau and Ferber 1992).46

46 The rate of women’s participation in the labour force, regardless of their marital status has increased from 20% in 1900, to 58% in 1990 Blau, F. D. and M. A. Ferber (1992). The Economics of Women, Men, and Work. New Jersey, Prentice Hall. In 2010, ‘women comprised 47 percent of the total U.S. labour force’ Women's Bureau (2011). "Women in the Labor Force in 2010." Retrieved 15/02/2011, from http://www.dol.gov/wb/factsheets/Qf-laborforce-10.htm. This rate for men declined ‘from 87% in 1950 to 77% in 1990’ Blau, F. D. and M. A. Ferber (1992). The Economics of Women, Men, and Work. New Jersey, Prentice Hall. What’s more, in 2010 unemployment rates were higher for men (10.5% unemployment rate) than for women (8.6% unemployment rate) Women's Bureau (2011). "Women in the Labor Force in 2010." Retrieved 15/02/2011, from http://www.dol.gov/wb/factsheets/Qf-laborforce- 10.htm. 122

Another factor contributing to the increase in the rate of female labour was the increase in the rate of education for women, not only in primary and secondary education, but also in tertiary education. The percentage of degrees which had been awarded to women in comparison to men was 39.9% in 1930 to 52.0% in 1988 for those women graduating with a bachelor’s degree, and from 15.4% to 35.2% for PhD graduates. Other factors were the increase in life expectancy, higher demands for female labour as a result of anti-discrimination laws after the 1960s, the growing of urbanization, decline in child birth rates and increase in divorce rates (U.S. Department of Education 1990) as cited by (Blau and Ferber 1992:144). As a result of this financial security and the confusions which rose from the new gender roles within the families (men participating in household chores), also at work where many men found themselves working for or under the supervision of women were among other reasons which led to an increase in divorce rates (Jacob 1988). Divorce rates within the U.S. rose from 0.9 per 1,000 in 1910 to 2.2 in 1960 and 5.2 in 1980 (U.S. Department of Commerce 1984,1990) as cited by (Blau and Ferber 1992:265).

All of these events led to many changes within the family since women had become more financially independent and no longer found marriage as an only way to economic security (Jacob 1988; Bremmer and Kesserling 2002). This financial security had an effect on the average age of marriage, whereas, between 1970 and 1989 the proportion of single women between the ages of 20 and 24 rose from 35.8 % to 62.5%. This rate grew from 10.5% to 29.4 % for women between the ages of 25 to 29 which revealed a decline in the tendency of young women to marry. Nonetheless, within the same time span the rate of women who were 40 years or older who had never married declined from 6.2% to 5.2% (Bureau of the Census 1989) as cited by (Blau and Ferber 1992:260).

In Australia, the marriage rate for women between the ages of 20 and 24 in 1988 was 70.6% which has declined to 31.7% in 2007 while evidence shows a considerable increase in the rate of marriage for women between the ages 25 and 34 in the same years (Australian Bureau of Statistics 2007).

Throughout this period, women’s participation in the household economy within the U.S. underwent a gradual change. While in 1960 only 40% of women contributed cash earnings to the households economy in 1980 this rate had increased to over 60% 123

(Bianchi and Spain 1986) as cited by (Jacob 1988:19). Women’s contribution to the family income resulted in the economic growth of the families. Between 1969 and 1985 the average income of those families in which the wife was employed increased by 42% for whites and by 67% among blacks (Blau and Ferber 1992:267).

Within Australia, similarly to the U.S., from 1950 to 1980 women’s participation in labour force increased dramatically. Whereas, in 1950 the ratio of women to men in the labour force was 28.8 to 100 (this was 39.1 to 100 for the U.S. and 37.1 to 100 for the U.K.), which increased to 59.9 to 100 in 1980 (this was 67.7 to 100 for the U.S. and 60.4 to 100 for the U.K.)47. This ratio for women over the age of 15 rose to 64.5 to 100 (this was 73.3 to 100 for the U.S. and 67.0 to 100 for the U.K.) between the years 1985 to 1988 (Blau and Ferber 1992:301-302).

It is also notable that, before World War II, women’s award rate within Australia was 54% of that of men which rose to 60% in the 1960s. This rate again increased to 77% by 1976. This difference was due to the discriminatory Australian wage structure which existed prior to 1969. In 1969, the equal pay for equal work was implemented. This excluded, for the most part, female occupations, and did little to assist pay equality between men and women. To overcome this issue, the federal tribunal in 1972 ruled that the notion of equal pay for equal work should be extended to include equal pay for work of equal value which would then include female employees in occupations which are mainly engaged by women (Blau and Ferber 1992:315). By May 1991 the female wage had risen to risen 84.5% of the male wage (Australian Bureau of Statistcs 1991).

Therefore, women’s participation in labour forces, which is also highly owed to feminist movements for equality, was among the many forces which led women to gain more equality to men. The feminist movements of the 1960s, which focused on equal rights for women and sex equality (Connell 1981; Jacob 1988), and the ruling of the Orr v. Orr case (which I will discuss below) (1979; Connell 1981) have also led to women to gain a more equal status to men in other ways. This equality has ultimately

47 ‘Data are for the economically active population aged 10 years and over relative to the total population (no age restriction)’ Blau, F. D. and M. A. Ferber (1992). The Economics of Women, Men, and Work. New Jersey, Prentice Hall. 124 influenced the modern spousal maintenance and divorce laws with regard to the division of property (Connell 1981; Ellman 1989; McCoy 2005-2006).

5.3.3.1.2 Feminist movements of the 1960s As discussed earlier in this chapter the National Organisation for Women (NOW) was developed through the President’s Conference on the Status of Women, during the Kennedy administration. The NOW and the governmental organisations then focused on women’s issues within the labour force which resulted in laws to prevent unlawful sexual discrimination and wage discrimination. Another effort of ‘the feminist movement was their campaign for Equal Rights Amendment’. The aim of this Amendment, which stated that women and men are equals in the social, political and economic arenas, was to ban the unequal treatment of women. Although it was not ratified it managed to draw attention to the existing discriminations against women indifferent areas of law including family law, criminal law, labour law and property rights (Jacob 1988:22) (this will be dealt with in the section below).

Feminist movements also focussed on the prevention of violence and as a result many shelters and help lines were established.48 Among other issues, feminist movements challenged the existing laws and legal system and managed to gain considerable success in this area. They also challenged the manner in which law enforcement officials dealt with cases of wife abuse (Jacob 1988).

Feminists struggled for equality within society and within the family for many years. Today marriage is seen by commentators, law and law enforcement officials as a form of partnership between co-equals (Connell 1981; Jacob 1988). This equality brought down the pre-existing gender roles and provided women with the freedom of choosing their residence and their job (Jacob 1988) (if they chose to work) and lifted the traditional social and economic and physical dominance and control which men exercised over their partners, which was customarily and legally accepted.

One extremely important factor, which feminists supported and promoted, was for women to consider themselves accountable and in charge of their financial security and not to be financially reliant and dependant on their husbands. However, they

48 See Chapter Four. 125 acknowledged the fact that the labour market had to change to allow women to be financially independent. It was a result of this perspective that, in the 1960s and 1970s most feminists, did not oppose to the newly established transitional spousal maintenance laws49 (Jacob 1988).

5.3.3.1.3 Changes in the fault-based system of divorce and equal protection Historically divorce was granted only in cases where the other spouse had conducted an act which was legally recognised as a marital offence. If the wife was not at fault, after divorce the husband had to continue to pay spousal maintenance and child support and the wife would continue to take care of the children (Lauerman 1987; Kay 1987b).

In 1969, the no-fault divorce system was for the first time adopted in the U.S by the state of California, replacing the fault-based system (Kay 1987a; Jacob 1988). The California Family Law Act of 1969, ‘later became the model for a national shift from fault to no-fault divorce’ (Kay 1987a:5). Based on the new law either one of the spouses can apply for the dissolution of the marriage by claiming that they have differences within the marriage which are irreparable, and they could do this without the other spouses consent (Lauerman 1987; Kay 1987a; Kay 1987b). The no-fault system was strengthened once it was adopted by the first Uniform Marriage and Divorce Act (UMDA), in 1970. The no-fault divorce system is now available in all the states of the U.S., with some differences (Kay 1987a).50

Following the no-fault divorce law, discussions took place for a period of ten years as to whether an Equal Rights Amendment (ERA) should be ratified to the U.S Constitution (as discussed in the previous section). The ERA and the no-fault divorce system appeared to be in harmony with one another, since they both sought equal treatment for both sexes (Kay 1987a). Even though the aim of no-fault divorce was not to provide

49 Prior to transitional spousal maintenance laws being passed, spousal maintenance was provided by the husband even after divorce and continued until the wife was remarried. Transitional spousal maintenance meant one that continued for a period of time until the woman could find a job to provide for herself. 50 In England, the no-fault divorce system was adopted in 1971 Ellman, I. M. (1989). "The Theory of Alimony." California Law Review 77(1): 1-81, and was introduced in Australia in the 1976 Family Law Act (FLA) Fehlberg, B. and J. Behrens (2008). Australian Family Law: The Contemporary Context. Melbourne, Oxford University Press. 126 gender equality but to change the fault based system of divorce (Lauerman 1987; Kay 1987a); nevertheless, it has led to changes in gender roles and shifts towards gender equality (Kay 1987a; Kay 1987b).

Before no-fault divorce was introduced, it was only the wife who was entitled to receive maintenance after a couple had divorced. With fault removed as a basis for granting divorce, financial needs were no longer a reason to stay in an unsuccessful marriage, since women could no longer rely on their innocence to gain access to a higher sum of spousal maintenance or property upon divorce. This is also the case with the husband, who under the no-fault divorce system could no longer rely on his innocence to refrain from paying maintenance to his errant wife (Lauerman 1987:499-500).

Issues regarding legal equality were raised contemporaneously to the no-fault divorce system. Women’s unilateral right to spousal maintenance was challenged by ‘courts and legislatures’ due to the ‘modern movement for legal equality between the sexes’. As a result, this unilateral right to maintenance was considered to be unconstitutional and to be against the Equal Protection Clause since it discriminated on the basis of sex (Lauerman 1987:498).51 The 1970 UMDA and later the 1973 UMDA both eliminated marital fault and focused on economic factors and factual situations as a base to award spousal maintenance (Kay 1987a:11).

However, states that had adopted the no-fault divorce system had different stances on how and to what limit they were to change the laws which dealt with the financial issues arising out of divorce (Kay 1987a). While there were debates on whether the property should be divided equally or an equitable division calculated in some other way, these debates are beyond the inquiry of this thesis.52

51 However, the laws of some states within the U.S. continue to consider the man to be responsible for providing for his wife and children, therefore, placing the husband and wife in unequal economic positions Lauerman, N. J. (1987). "A Step Toward Enhancing Equality, Choice, and Opportunity to Develop in Marriage and at Divorce." University of Cincinnati Law Review 56: 493-519. 52 See further, Kay, H. H. (1987a). "Equality and Difference: A Perspective on No-Fault Divorce and its Aftermath." 127

5.3.3.2 Spousal maintenance today The duty of a man to provide his wife spousal maintenance, was established and recognised in the common law and was provided for in most countries (Vernier and Hurlbut 1939; Lauerman 1987; Kay 1987a; Jacob 1988; McCoy 2005-2006). It was also acknowledged that this duty has to be continued after separation or divorce which then seemed logical since women did not have an independent source of income (Connell 1981; Kay 1987a; McCoy 2005-2006).

As a result of the efforts for gender equality, women’s status changed to a great extent. Today women do not give up their legal rights when they enter marriage but remain equal to men. Consequently, women have equal rights and obligations to men (Connell 1981). This equality and the changes in gender roles also applies to male gender roles (Aberg, Small et al. 1977) such as spousal maintenance.

Within the United States, because the gender-based spousal maintenance laws were in conflict with the Equal Protection Clause, most states enacted ‘sex neutral provisions for spousal maintenance’ (Lauerman 1987:498). Another issue, which greatly reflected the changes in gender roles in that country, was the Orr v. Orr case (1979). In this case, the Supreme Court ruled that gender asymmetry in spousal maintenance contravened the equal protection of law stated in the 14th Amendment to the U.S. Constitution, and was therefore, considered being unconstitutional and resulting in sexual discrimination. As a result, men are now also eligible to receive alimony from their wives.

The fact that men are now being eligible to receive spousal maintenance has resulted in traditional gender roles being broken down and men are no longer considered to be the breadwinners (after and during marriage), and women to be the homemakers. Wives today may choose to be the breadwinners and husbands may choose to be househusbands, and this is recognised by law. Also, today based on the law when deciding on division or distribution of property the courts should consider each case separately and should not base its decision on sex-based stereotypes suppositions (Lauerman 1987). This is also the case when dealing with cases of child support (Kay 1987a).

Furthermore, many states in the U.S. now have transitional spousal maintenance, which is maintenance that is granted for a period of time, until the spouse receiving 128 maintenance can support him/herself, as well as permanent spousal maintenance (Lauerman 1987; Kay 1987a). Transitional maintenance forces women (who for the majority of the spousal maintenance recipients) to educate themselves and to develop their roles and capacity in the labour force, and to not merely rely on men for support (Lauerman 1987). Therefore, many feminists encourage transitional maintenance. They argue that women’s dependency on men renders the law to consider them as incapable individuals who are not able to take care of themselves (Jacob 1988).

In Australia, section 72 of the Family Law Act 1975 provides: ‘(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether: (a) By reason of having the care and control of a child of the marriage who has not attained the age of 18 years; (b) By reason of age or physical or mental incapacity for appropriate gainful employment; or (c) For any other adequate reason…’ (1975).

The obligation created by this section to provide maintenance during the marriage is imposed on both spouses, where there is a need on the part of one and the capacity to pay on the part of the other. This obligation is also imposed on couples both after the marriage or de facto relationship has ended or where the spouses have separated (Behrens and Smyth 1999; Fehlberg and Behrens 2008).

This is also the case in many other Western countries such as England and the United States. Today in these countries spousal maintenance, both during and after marriage, previously only the husbands’ duty, is a gender neutral liability. However, after divorce or separation, women continue to form the majority of applicants for spousal maintenance (Ellman 1989; Fehlberg and Behrens 2008).

Nonetheless, it is notable that, no matter how gender neutral a law may be, if not enforced, or in the case of international covenants, if not implemented within the State laws, those laws and regulations will be of no value. This shows that the enforcement of law and the attitude of law enforcement authorities are of parallel importance to the law itself.

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5.4 The importance of the enforcement of laws and regulations Once a law has been passed an issue of parallel importance is its enforcement. The enforcement of a law can be viewed from different aspects such as: Is the law being enforced? Is the new law in conflict with any other law that is being enforced concurrently? Is the law fulfilling the objectives for which it has initially been passed? Is its enforcement facing any unforseen difficulties? Are the law enforcement agents acting in a manner which best accomplishes the objectives of the law?

In practice, many laws fail to achieve all their objectives. In some cases this is a result of the law or regulation itself, which in practice does not provide the anticipated protection; however, in some cases it is attributable to the behaviour of the law enforcement authorities. Below are examples in which the law or regulations have in some cases failed to achieve their purpose either because of weak enforcement, the lack of implementation, or due to the existing attitudes of the law enforcement officials. It is notable that these issues will only be dealt with in context of laws which are relevant to this thesis.

5.4.1 The Universal Declaration of Human Rights and gender equality The UDHR was adopted in 1948 by the General Assembly of the United Nations (United Nations Human Rights: Office of the High Commissioner for Human Rights 2012). Even though many countries have in one way or another declared their support for the UDHR, many of the principles enshrined in the Declaration have not been fully implemented in many States. Being a resolution of the General Assembly of the United Nations, the Declaration is not obligatory for States per se, although it is agreed that much of its content has ripened into customary international law (Simma, Mosler et al. 1995; Harris 1998:226-242).

Following the UDHR, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into force 1976. These two Covenants, which are binding on the ratifying States, set forth numerous rights that are to be accorded on a basis of non- discrimination, which inter alia, includes discrimination based on sex.53 It is notable, the interpretation of equality had led to it being considered as equal rights for women,

53 See Art. 2(1) ICCPR and Arts. 2 and 3 of the ICESCR. 130 the idea that men are also within this equation has only recently come into view (Connell 2005). However, even with these internationally binding Covenants, some of the same issues previously mentioned concerning the implementation and enforcement of rights still exist.54

We have seen that one focus of feminist movements has been to raise the issue of domestic violence and legal discrimination in the 1960s and 1970s (years after the Declaration had been created) in order to put pressure on the governments to pass new laws that would put an end to such behaviours and discriminations. This is an example that a law or regulation, if not supported by required action, does not necessarily promote change. It is in view of this fact that the human rights obligations of States are now considered to include the obligation to respect, protect and fulfil (United Nations Human Rights c.2012). In turn, the obligation to fulfil contains obligations to facilitate, provide and promote. The obligation to respect requires States to refrain from interfering directly or indirectly with the enjoyment of a right. The obligation to protect requires States to take measures that prevent third parties from interfering with human rights guarantees. Finally, the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realisation of a given human right (International Human Rights Instruments 2008).

While the above was an example of the weak implementation and enforcement of the law by the States which has been an obstacle towards achieving the purpose of the law or principle, below is an example in which the attitude and manner of the law enforcement authorities prevents the law from fulfilling its objective.

5.4.2 Gender neutral spousal maintenance laws in practice It has been argued that gender neutral spousal maintenance laws along with the no-fault divorce laws have worked to women’s detriment. Weitzman states that even though women legally do have equal rights to labour in the U.S., in practice they earn less and

54 See in general the reports issued by NGOs such as Amnesty International and Human Rights Watch, and the various reports, decisions, and resolutions by the United Nations Charter based and treaty based bodies such as the Human Rights Council and the various treaty monitoring

mechanisms. 131 bear the majority of the responsibilities of the household and childcare. This then renders them to continue to be economically dependent on their husbands (Weitzman 1985) as cited by (Lauerman 1987; Kay 1987a; Ellman 1989). What’s more, Weitzman claims that as a result of the existing attitudes, gender equality, which was initially sought, has not always been obtained. In many cases either the women have not been granted spousal maintenance or have been granted short-term support instead of permanent maintenance, regardless of their low income. This then results in men’s financial status to improve after divorce, while women’s standard of living status declines (Weitzman 1985) as cited by (Lauerman 1987:502).

Weitzman, further argues that the spousal support law in practice is not achieving the reformers’ purpose, and that women are being treated unfairly. This is not only the case with judicial decisions on spousal maintenance, but judicial decisions regarding the division of property which may also place women in a financially undesirable position. Weitzman argues the equal or equitable division of property, does not include certain properties such as professional diplomas to be divided. In many cases one spouse, usually the wife, has sacrificed their own advancements for the other spouse to obtain those diplomas. Needless to say, most husbands work in the labour force, and many wives take the role of homemakers. Therefore, the time women could have spent gaining job experience, they have spent working at home. As a result, after divorce because of lack of experience the chances of them entering the labour force decreases. What’s more, to divide the property, the court in many cases orders that the house in which the women and her children are living to be immediately sold (although there is a provision which allows for the delay of the sale), so the money can be divided. This not only puts financial stress on the wife, who now has to look for a new house (which in most cases by the time she finds one the prices may have gone up), but also puts psychological and social pressure on her by having to move to a new neighbourhood. Not to mention, the impact it has on the children (Weitzman 1985:78-84) as cited by (Lauerman 1987-505).

Therefore, while the purpose of gender neutral and fault neutral laws is to provide equality, they are not resulting in the purpose intended. After separating from their partners, women usually would have to support and maintain themselves. However, with a decrease in their income, even their freedom of choice would not be equal to men whose economic status has increased after divorce (Lauerman 1987:507). 132

There have also been similar arguments on behalf of men regarding the existence of discrimination in spousal maintenance decisions made by the courts, due to the existing attitudes (Aberg, Small et al. 1977) and assumptions that men are financially in a better position to their wives55 (Hayman 1976) as cited by (Aberg, Small et al. 1977). Also, as mentioned earlier, in most Western countries men can agree with their spouses to take the role of househusbands, which then places them in a similar position to women mentioned above, after divorce (regarding job opportunities and experience).

Nonetheless, these outcomes in individual cases have not been the mandate of the law but result from the discretion conferred on the judges (Kay 1987a). These arguments indicate that enforcement of law and the manner in which law enforcement officials exercise their powers are as important as the law itself. Lauerman states that attitudes need to change, and the judiciary needs to be educated for the equality to be established (Lauerman 1987).

Needless to say, while the gender neutral laws should continue to exist, the couples may by entering prenuptial agreements, agree to ‘reject the equality model with its economic self-sufficiency component’, and therefore provide further protection to the homemaker spouse (Lauerman 1987:519).

5.5 Conclusion The relationship between law and society is complex and has been the subject of extensive analysis. The brief study of this relationship in this chapter, illustrates how changes in one aspect of the society provokes changes in other areas. While these social changes are unremitting, different obstacles and challenges are encountered depending on the circumstances.

Social movements play an active part in changing this milieu to correspond to the new demands that have emerged. In doing so, social movements use frames to present their

55 Decisions made by the courts are dependent on how they justify ‘need’. These decisions vary based on the judge dealing with the case, since judges are permitted to exercise judicial discretion see e.g., Neal v. Neal (1977), 116 Ariz. 590, 592, 570 P.2d 758; Mori v. Mori (1979); 124 Ariz. 193, 195-96, 603 P.2d, 85, 87-88 In re Marriage of MaNaughton, (1983) 145 Cal. App. 3d 845, 852, 194 Cal. Rptr. 176, 179. 133 agenda in order to garner support and gain traction in moving their agenda forward. One way in which social movements act is that they frame those disputes to appear more controversial in order to seek legal reform to address those contoversies (Snow, Burke et al. 1986) as cited by (Taylor and Whittier 1995).

This was one of the aims of the women’s movements, which endeavoured to challenge traditional cultural structures of gender, and in doing so to promote gender neutral State laws (Kay 1985; Pedriana 2006). While in many cases biological differences had been used as an excuse to justify the existing discrimination against women, through the efforts of women’s movements, today within the U.S., and many other Western societies, stereotyping based on gender is no longer a justification for discriminatory behaviour, and is considered unlawful (Kay 1985). Needless to say, the protective rights which were primarily passed to provide protection for women and at first appeared attractive to women’s activists, were later found to create an obstacle for women’s advancement. This is apart from the fact that they were also considered to be in opposition with Title Vll, since they discriminated against men (Pedriana 2006).

Other than feminist movements, additional social factors have influenced women’s progress towards gender equality. Amongst these are the increase in women’s education, decline in birth rates, and increase in labour force participation. The no-fault divorce system which was introduced and contemporaneous to that other debates regarding legal equality of men and women were raised which also promoted gender equality (Lauerman 1987).

As a result, spousal maintenance is no longer an obligation merely imposed on the husband, but now to a great extent promotes equality between men and women, and is provided to the spouse in need of maintenance (be it the wife or the husband). Moreover, spousal maintenance now includes transitional maintenance as well as temporary maintenance (Lauerman 1987; Kay 1987a). Many feminists, support and encourage transitional maintenance laws and find women’s reliance on men for financial support to create an obstacle to their progression, and for women to be seen by law as incompetent (Jacob 1988). They support the notion that women should empower themselves in different ways (e.g. education and paid labour) as to not rely on men for security (Lauerman 1987).

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Finally, while laws are important in establishing gender equality of parallel importance is their implementation and enforcement. Therefore, adopting laws without enforcing them, or even their weak enforcement, would cause the law to be ineffective. Therefore, while governments should adopt gender neutral laws and ratify international conventions promoting gender equality, they must also make the ground ready for their full enforcement.

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6 Chapter 6 – Religion and the ‘Islamisation’ of Laws in the Islamic Republic of Iran

6.1 Introduction The main area of law which deals with intimate partners’ rights and obligations towards one another is family law. Family law is a subject in which religious principles and codified cultural traditions need to be addressed. However, in doing so the State- religion relations needs to be studied (Htun and Weldon 2010a:4). Charrad (1992:2) states: ‘State formation affects the position of women in society in several ways. In particular, the state mediates gender relations through the law….in its attempts to foster or inhibit social change, to maintain existing arrangements or to promote greater equality for women in the family and the society at large. Insofar as it regulates marriage, divorce, individual rights and responsibilities and the transmission of property through inheritance, family law is a prime example of state policy affecting women’.

While religion plays an important role in most societies, religion gains more significance in societies, such as Iran, in which religion and politics are not separated. A study of the history of Iran allows us to gain awareness to the role which religion has played in that country. Through the study of history we are also able to gain some comprehension of the Iranian customs and traditions, which would then strengthen our ability to understand and critique the situation.

Needless to say, a brief study of the history of Iran will also reveal the effect Islamisation has had on women’s roles and ultimately on their rights. While the Islamisation of laws has led to women to be discriminated against even more than before, Islamic feminists do not attribute Islam as the reason for the existing gender discrimination, but find other reasons to be the cause. Another factor which has hampered gender equality in Muslim countries is the challenges faced with the implementation of human rights.

I am focusing on Iran in this thesis; accordingly I will study Islam which is the dominant religion in Iran with the majority of Iranians being Shia Muslim. I will examine how gender and gender roles are perceived in Islam and whether one gender is considered superior to the other or not. I will then study how religion and States interact and how this interaction has affected Islamic influences in law and women’s rights, both 136 before and after the Islamic revolution. After that, I will examine the human rights movement and the obstacles and challenges which its implementation encounters in Islamic States such as Iran. Finally, I will study the role of Islamic feminists and will provide a brief overview of their efforts in Iran. A more in depth study of the family law in Iran will be carried out in the next chapter. It should be noted that religious laws, customs and practices are only studied to the extent which is required for the purposes of this thesis.

6.2 Definitions

6.2.1 Religion from a sociological perspective Religious beliefs and their influence on social behaviour was an interest of social scientists in the 19th century. Through time religion lost its importance in social behaviour studies and only within the past two decades has social scientific interests in this area been reawakened (Stark, Kent et al. 1982). However, regardless of the attention which social scientists have awarded to religion, history reveals that religious beliefs have always greatly influenced culture and traditions of any given society (Stark, Kent et al. 1982). Even though religion has always played a very important role in human societies, yet, it has been very difficult to provide a definition of religion which can be applied to all societies (Schultz and Lavenda 2005).

After reviewing various definitions and perceptions towards religion it became evident that the sociological perspective would best respond to the needs of the current thesis. The reason for that is that this thesis explores the effect of religion on law, which itself is influenced by social and cultural changes. This means that, social and cultural changes affect the interpretations provided for religious texts, which then result in the same religious text generating different laws in various societies.

From a sociological point of view no matter how religion is defined, it remains a social phenomenon that continues to be in a mutual connection with other social phenomena (Johnstone 1988:1). While some scholars such as Max Weber have refrained from providing a definition for religion (Morris 1987: 69) others have provided various definitions and based on their expertise have looked at the meaning of religion from different angles. Nonetheless, similar to any other subject matter, perceptions towards religion are highly dependent on the definitions provided for religion.

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Durkheim views religion as something social, meaning that religion consists of shared beliefs and shared practices in relation to sacred things, and argues that the sacred is a creation of society, and that it is society that decides what object or place is to be considered as sacred (Durkheim 1968) as cited by (Moore 2008:57).

Based on this perspective (religion as a social phenomenon), Johnstone (1988: 13) defines religion as: ‘a system of beliefs and practices by which a group of people interprets and responds to what they feel sacred, and, usually, supernatural as well’.

As Johnstone argues the above definition is comprised of various elements. One of these elements is what Durkheim, has referred to as sacred, which we saw to above. Another element is that religion is a group phenomenon (Johnstone 1988:7). Johnstone (1988: 8-9) further explains that a group must have six characteristics in order to qualify as a group these are:  ‘A group is composed of two or more people (members) who have established certain patterns of interaction;  Group members share certain common goals;  A group is guided by shared norms;  Every group member has a role (division of labour);  A group functions collectively in accordance with a status system;  Group members feel and express a sense of identification with the group’.

One of the features of religion as a group phenomenon is that each member of the group has a role which he or she is meant to fulfil. Different roles are given to different followers of the religion based on the belief that some are more capable of fulfilling certain tasks than others. Therefore, if in any case one of the members should take on a new role some other person must perform that role that is now vacant (Johnstone 1988). What’s more, through time new matters emerge which need to be addressed. This is applicable to any group including a religious group. It is the responsibility of a religious group to employ constant measures to resolve new issues which may arise as a result of its interpretations and the execution of its aims, roles and customs (Johnstone 1988). Johnstone (1988:55-68) states another issue of concern is when the number of people in a religious group increase to a point where they cannot interact with each other in person. This results in various issues which are: 138

 Decrease in consensus regarding goals and norms of the religion;  Decrease in consensus results in an increase in deviance from the norms;  Increase in the ratio of formal norms to informal norms;  As the structure of the group becomes more complex roles tend to become more specialised and they increase in number;  With increase in number of roles the need for coordinators increase. This results in the coordinators gaining higher authority and elevates the risk of power abuse;

Therefore, it would be logical to conclude that in societies in which the government is religious (a religious group), and the number of people in the government is large (personal interaction becomes impossible), the problems identified above may surface.

A third element as Johnson argues is that religion encompasses a set of beliefs. These beliefs are created and used by the group to explain the sacred and supernatural events. The holy books of each religion present the foundations for establishing the beliefs of that group. These beliefs in most cases are not limited to those stated in the holy books, but the interpretations provided for that religion also add to these beliefs. Beliefs may consist of attitudes and opinions (individual beliefs), and norms, regarding accepted behaviour, perspectives and how to interpret issues (group beliefs) (Johnstone 1988:11).

Finally, other elements of religion are that it includes certain practices (such as fasting in the month of Ramadan for Muslims), and prescribes certain behaviours and morals (for example, being forgiving in Christianity and Islam) (Johnstone 1988:12-13).

Since our country of study is Iran in which the dominant religion is Islam, it then becomes necessary to provide a definition for Islam.

6.2.2 Islam The meaning of the word Islam is to ‘enter into peace’. The follower of this religion is called Muslim which means ‘one who makes his peace with God and man’ (Maulana 1936:2). Islam was introduced to mankind through the prophet Muhammad (Williams 1961). The Quran is the holy book of Muslims which was written purely in the Quraish dialect, and contains laws which deal with different aspects of human life (Maulana 1936).

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It is notable that peoples understanding of the Quran is different based on their knowledge of Arab customs and ones intellect and ones knowledge of the Arabic language. The Quran in verse 3:6 states that there are two forms of verses in the Quran decisive and allegorical. Decisive verses are concerned with the basis of religion and almost all Arabs should be able to understand them. Allegorical, on the other hand, are difficult to understand and not many can understand them. Also, people’s circumstances tend to affect their understanding of Quran verses. Hence, people’s understandings of the same Quran verses might be very different and interpreted accordingly. Due to this fact the prophet introduced ijtihad which involves creative interpretation (Engineer 2005).56

6.2.3 Islamic Law If a law from one society was to be implemented in other societies it would have to be modified in a way to correspond to the culture and needs of each one of those societies. For example, in the case of Common law, it originated in England and then spread from that country to many other countries. It was then adapted in order to function within those new societies. The same process is also applicable to Islamic law (Mallat and Connors 1991).

Islamic laws consist of two main elements: Sharia57 and Fiqh. The literal meaning for Sharia is ‘the path or the road leading to water’ while the literal meaning of Fiqh is ‘understanding’ (Mir-Hosseini 2009:25). Although the Sharia is the law set down by God and is universal, Fiqh is the Muslim jurists’ efforts to interpret and apply this universal law (Tamadonfar 2001) by trying to extract legal rules from the Quran and Sunnah. Sunnah is the prophets practices, and these practices have been reflected in Hadith58 (Mir-Hosseini 2009).

Sharia has primary and secondary sources. The primary sources are the Quran and Sunnah. These are agreed upon by all Muslims. However depending on the denomination and the traditions they follow there is differing opinions regarding the

56 We will see to ijtihad further in Chapter Seven. 57 Sharia can also be written as Shari’ah or Sharia. 58 Muhammad’s sayings or documentation of the practices of Muhammad 140 secondary sources. Generally the secondary sources are Hadith, Ijma59, Qiyas60, Ijtihad61, Ravayat62, Istishan63, Istislah64, Istishab65, and Urf66, (this is where customs and culture come in and influence the laws and practices). While the Shi’is believe in Ravayh67 as a secondary source, the Sunnis do not accept such a source68 (Tamadonfar 2001).

Muslim’s believe that the Sharia is holy, universal and eternal; fiqh on the other hand is ‘human, mundane, temporal and local’ and tends to be patriarchal. Unfortunately fiqh and Sharia are frequently incorrectly equated and it is the division and difference between these two that allows Muslims to fight for gender justice within the Islamic structure (Mir-Hosseini 2009:25).

Changes in technology, social life and other aspects of life result in changes in human affairs. Therefore, the sacred texts need to be reinterpreted to respond to these changes. This is the underlying principle of ijtihad in Islam, meaning that the Islamic jurist’s must find solutions to new issues which may come to being (Mir-Hosseini 2009).

In the Shia denomination unlike the Sunnis, Quranic verses can be interpreted by using aql which is the use of logic by judicial authorities, in interpreting Quranic law. This gives the interpretation of such laws a great deal of flexibility. Laws can then be interpreted to respond to the time and circumstances in which they must be applied to, while still staying within the Islamic principles (Ramazani 1980) as cited by (Zolan 1987).

59 consensus 60 analogy 61 Independent judgment and interpretation of the shari’ah 62 Imams’ sayings 63 Juristic preference 64 Public good 65 Continuance of performing what has been done before 66 customs 67 What the Imams have said 68 Shiism and Sunnism are the two largest denominations in Islam. 141

However the ability to interpret Quranic verses has allowed patriarchal views to find their way within the Islamic jurisprudence (Al-Hibri and El Habti 2006) and Islamic laws. This interpretability feature has resulted in the family law of various countries to differ in certain areas even though the source of all these laws is the Quran.69 As a result women enjoy a more equal status to men in some Muslim countries than in others and have enjoyed more or less of an equal status at different eras within the same country. Nonetheless, it is due to the flexible nature of the Islamic laws that the issue of their reinterpretation has been raised.70

Some are of the opinion that the root of violence against women has been cultivated in religion and family laws which are based on religion are patriarchal in nature (Htun and Laurel 2011). Others, on the other hand, find patriarchal interpretations of Islam, rather than Islam itself, to be the root of gender discrimination in Muslim countries. Therefore, they regard the solution as being to reinterpret Islam in order to sustain gender equality (Moghadam 2002; Mohammadi 2007; Mir-Hosseini 2009). The inquiry in this thesis then is the need to study how Islam perceives of men and women and of their social, political and spiritual status, in order to see if a reinterpretation of Islam could lead to gender equality.

6.3 The status of men and women from a religious perspective From the early days women would work alongside men in different areas of social life. Men would go hunting and women would be fruit picking or gathering edible roots or plants near their residence, so that they could nurse the children at the same time (Johnstone 1988). With the developments that followed in societies from hunting, to the formation of horticultural societies in which seed planting and harvest was discovered, to the invention of agriculture and finally the establishment of industrialisation both men’s and women’s roles changed. This resulted in women to find increasing financial dependence on men (in some eras more than others) (Johnstone 1988).

Later, as a result of the textile industry and women’s participation in teaching primary education (Freeman 1975) as cited by (Johnstone 1988) women’s involvement in labour

69 See further, Moghadam, V. (2002). "Islamic Feminism and its discontents: Notes on a debate."

Journal of Women in Culture and Society 27(4). 70 This will be dealt with in this chapter and in Chapter Eight. 142 force grew. However, due to gender discrimination, women were being exploited in many ways, for example lower pay for equal jobs. Fortunately, changes resulted from efforts made by feminist movements (Johnstone 1988) and their struggle for gender equality and equal opportunities, which we examined in the previous chapter.

From a religious perspective women’s status has also undergone various changes throughout history. As Harwood illustrates, thirty thousand years ago people created goddesses and it was not until over 20 thousand years later that a god was created. The reason for that is that the Cro-Magnon humans thought the woman was superior to man due to the fact that it is the woman who reproduces and ensures survival, which is what gods do; therefore, they concluded that gods should be female (Harwood 1985). Archaeological evidence show that these female goddesses then played a very important role in many ancient societies and cultures such as Egypt, China, Australia, Japan, Rome, Africa, various Eskimo tribes, Palestine, Near East, Babylon, Indian subcontinent (Johnstone 1988).

Women’s superiority continued until men discovered that they too played a role in procreation and that they were not only created to pleasure women. This discovery took place at different times in different places, so no actual period for this discovery has been provided. Consequently, for centuries, until the Male Revolution in 3500 BCE women enjoyed the ruling-caste status which men enjoy today (Harwood 1985).

After the discovery, men cultivated with the myth that God created a perfect world which was then made imperfect by women. This is similar to the Greek god mythology which states that Prometheus gave fire to man and as a punishment Zeus gave Pandora - who was the first woman - to him to be his wife as a form of punishment. Pandora was given a sealed box by Zeus and was told not to open the box. However, she opened the box and from that box came all forms of evil and disease, and since then men are being punished for the crime committed by a woman (Harwood 1985).

Today the mentality that women are inferior to men can be seen in many religious practices and interpretations of religious texts. This has resulted in many religions to assign women subordinate roles in comparison to men. It is a result of this mentality

143 that women in many religions are unable to take religious leadership roles71 (Johnstone 1988).

6.3.1 Islam and the status of men and women There is a difference of opinion as to whether in the Quran women have been considered inferior to men, or equal to them. However, one thing that everyone would agree on is that with the coming of Islam women’s status changed drastically.

71 In Iran the Supreme Leader otherwise known as vali-e-faghih, is the highest ranking official. The Supreme Leader has to be a man and women cannot be chosen as the Supreme Leader. The Supreme Leader enjoys many powers within the State. These powers as stated by Article 110 of the Iranian Constitutional Law are as follows: ‘1. After consulting with the State Expediency Council., the Supreme Leader defines the general policies of the Islamic Republic of Iran 2. Supervises the proper execution of the general policies of the regime. 3. Issues decrees for national referenda. 4. Supreme command of the armed forces. 5. Declares war and peace, and mobilisation of the armed forces. 6. Appoints, dismisses, and accepts of the resignation of: a. The jurists of the Guardian Council. b. The Head of the Judiciary. c. The Head of the radio and television network of the Islamic Republic of Iran. d. The Chief of the joint staff. e. The Commander in Chief of the Islamic Revolution Guards. f. The Commanders in Chief of the armed forces and the law enforcement forces. 7. Resolves existing differences between the three powers of the State and regulates their relations. 8. Resolves existing problems which are irresolvable by conventional means, through the State Expediency Council. 9. Signs the President’s appointment orders after the President has been elected by the people. Before elections during the first term, the Guardian Council, and the Supreme Leader must confirm the competence of candidates for the Presidency, in respect of the qualifications specified in the Constitution. 10. After the Supreme Court finds the President guilty of violating his constitutional duties, or following a vote of no confidence by the Islamic Parliament of Iran on the basis of Article 89 the Supreme Leader dismisses the President by taking into account the country’s interest. 11. Upon the proposal of the Head of the Judiciary the Leader can pardon or reduce the sentences of convicts within the framework of Islamic principles.... (1979 amended in1989). The Constitutional Law of the Islamic Republic of Iran. The Constitutional Law of the Islamic

Republic of Iran. Islamic Republic of Iran. 144

6.3.1.1 Pre-Islamic status of Arab men and women The pre-Islamic era is known as the Jahilliyah in which the social structure was tribal. The literal meaning of Jahilliyah is ignorance (Engineer 2005). The reason for naming this era as the Jahilliyah era is because people’s culture and practices were considered to be barbaric and ignorant (Williams 1961).

In this era daughters were buried alive due to the economic burden they would cause and the humiliation they would bring about if captured by an enemy tribe. Sons were better to have since they would protect and fight for their tribe in cases of inter-tribal wars. Men could marry as many wives and could divorce them without having to pay them any money in anyway and marriage was in no way considered binding on men (Engineer 1992; Jawad 1998; Engineer 2005). What’s more, widows of one’s father were inherited by their sons, which is an indicator of the fact that in that era women were considered as objects or sex objects rather than human beings and were completely dominated by men (Jawad 1998). The fact that men in this period would force their women, particularly their slave girls to conduct acts of prostitution is further proof of women being treated in an inhumane manner and regarded as worthless (Jawad 1998).

It was in this environment that Islam was introduced through the Prophet Muhammad. Muhammad introduced new rules and regulations which were aimed to replace exiting practices. One of the main issues which had to be challenged and changed was the existing attitudes towards women and the existing culture.

6.3.1.2 The status of men and women as mentioned in the Quran As we saw, women were suppressed in the pre-Islam Arab societies, in which patriarchal attitudes were dominant. Women’s suppression was considered by the existing culture to be a natural law. Efforts, even religious scriptures, to alter women’s status were restrained due to the existing culture and would be interpreted in a way to correspond to the subsisting culture and customs (Engineer 1992).

It was in this atmosphere that Islam was introduced (Al-Hibri and El Habti 2006). One of the most important contributions of Islam to women was that female infanticide which was a common practice in the Arabian Peninsula was prohibited. Men were ordered to treat their, wives, aunts, sisters, daughters and other women with the same respect and equal to the way they treat the male members of the family. Furthermore,

145 men were told to treat women with more gentleness, as is appropriate for a female, considering her biological delicacy (Jawad 1998). However, Ahmed (1992) states that this does not necessarily mean that Islam has improved the status of women in all areas. Islam also changed the property status of women. Previously women were regarded as property and possessions but they had no right to possess property independently from their husband or fathers and brothers. With the coming of Islam women were given the right to possess property independently, inherit, enter contracts and participate in other areas of business, the right to marry the person they like and also to end a marriage when they find it unsuccessful. Islam’s promotion of women’s independence is emphasised by the fact that a woman is entitled to keep her family name after marriage and need not take the family name of her husband (Jawad 1998).

6.3.1.2.1 Gender equality in the Quran In the Quran it is stated that both, men and women have been created from one living entity (Engineer 1992) or single soul (Jawad 1998; Riphenburg 1998) or what is known a nafs and are therefore equal (Engineer 1992). This differs from the Jewish and Christian belief, in which their holy books provide that God created Adam from dust and Eve from Adams rib (Riphenburg 1998). Verse 4:1 of the Quran states: ‘O mankind! Reverence your Guardian-Lord, Who created you from a single person, created of like nature, his mate, and from them twain scattered like seeds countless men and women; reverence Allah through Whom ye demand your mutual (rights) and (reverence) the wombs (that bore you): for Allah watches over you’ (Yusuf Ali 1975: 100).

According to some, such as Riphenburg (1998) the Quran states that it was Adam and not Eve who allowed the devil to seduce them into eating the forbidden fruit of heaven. However, it seems that while the Quran clarifies that Eve was not responsible for Adam’s mistake in eating the forbidden fruit of heaven (Bodman 1998), it states that this was a mistake which both had made: O Adam! Dwell thou and thou wife in the Garden and enjoy (its good things) as ye wish: but approach not this tree or ye run into harm and transgression. Then began Satan to whisper suggestions to them, bringing openly before their minds all their shame that was hidden from them (before): he said ‘your Lord only forbade you this tree lest ye should become angels or such beings as live forever’. And he swore to them both that he was their sincere adviser. So by deceit he brought about their fall: when they tasted of the tree, their shame became manifest to them, and they began to sew together the leaves of the Garden over their bodies. And their Lord called unto them: ‘did I not forbid you that tree and tell you that Satan was avowed enemy unto you?’ (Yusuf Ali 1975: 200).

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Again in the Quran it has been stated that the children bani of Adam are honoured, and this has been said meaning both men and women are honoured without any preference to either sex (Engineer 1992). According to verse 3:195 of the Quran: ‘And their Lord hath accepted of them, and answered them: ‘never will I suffer to be lost the work of any of you be he male or female: Ye are members of one another…’ (Yusuf Ali 1975:98).

In many verses of the Quran (i.e. 39: 9, 58: 9, 20: 113), both men and women have been commanded and encouraged to educate and to increase their knowledge, which shows the equal rights of women to education (Jawad 1998).

Regarding family roles the Quran states that women have the same rights with regards to their husbands, as husbands have towards their wives. The Quran in verse 2:186 resembles men and women to one another’s attire so they have the same role towards one another. This is said to show the equal rights of men and women, or better said husbands and wives over each other (Engineer 1992).

Nonetheless, Bodman (1998) states the fact that there are verses in the Quran, which set down different rules, or in some cases more strict rules for one gender in comparison to the other, is due to their biological differences (i.e. 4:34, 24:30-31). Equality not meaning the same has been controversial. We dealt with the effect of biological differences on laws before in Chapter Five and will deal with it more in the following sections of the current chapter.

However, there are verses in the Quran which seem to favour men over women in some ways such as verse 2:228 which says: ‘…And they (meaning women) shall have rights similar to the rights against them, according to what is equitable: But men have a degree (of advantage) over them. And Allah is exalted in power’ (Yusuf Ali 1975:46).

This seems to contradict other verses which state that men and women are equal. Some religious scholars have provided reasons to state that the above verse is not contradictory. For example, Engineer (2005) states that the above verse might seem contradictory but it is in fact showing a social reality which could actually be to the women’s benefit. She continues by saying that the words ‘Allah is exalted in power’ at the end of the verse means that God has the power to give women and men equal status 147 but he was also wise enough to know that in the social circumstances then it was better to give men a minor superiority over women in order to maintain the balance in society, which would ultimately benefit the women.

Also, according to verse 4:34 of the holy Quran: ‘Men are the protectors and maintainers of women, because Allah given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in (the husbands) absence what Allah would have them guard. As to those women on whose part ye fear disloyalty and ill conduct, admonish them (first) (next), refuse to share their beds (and last) beat them (lightly); But if they return to obedience, seek not against them means (of annoyance) For Allah is Most High, Great (above you all)’ (Yusuf Ali 1975:106).

This verse has been translated and interpreted differently. Some have interpreted this to say that since men have power over women they are permitted to beat their women if required. Other interpretations state that men are maintainers meaning they should protect and take care of women, especially that in those times men provided for the house (Riphenburg 1998; Engineer 2005) and other expenses. Some feminist scholars argue that this could be interpreted to mean men are to support women in times of child birth and nursing, and that with regards to financial support men and women should support each other (Badran 2006). They then explain the concept of aaliya and how it exemplifies mutual support/protection of men and women72 (Badran 2006). This is stated in verse 9:71 of the Quran: ‘The believers, male and female, are protectors of one another’ (Yusuf Ali 1975).

Egalitarian scholars refer to Sunnah, which is the ‘prophetic practice’ and is then reflected in Hadith73, and argue that since Muhammad never hit any of his wives, this verse should be reinterpreted to restrict a husband from hitting his wife. Addressing the controversies of whether the sunnah is exemplary or exceptional (Chaudhry 2011) is beyond the scope of this thesis.

Verse 9:72 of the Quran is a further indicator of the equality of men and women:

72 The provision of financial support will be dealt with in more detail in Chapters Seven and Eight. 73 Muhammad’s sayings or documentation of the practices of Muhammad 148

‘The Believers, men and women, are protectors one of another: they enjoin what is just, and forbid what is evil: they observe regular prayers, practise regular charity, and obey Allah and His Apostle. On them will Allah pour His mercy: for Allah is Exalted in power, Wise’ (Yusuf Ali 1975:261).

Anyhow, the question remains of whether Islam has actually enhanced the status of women or not, by providing them with a more equal status to men. Ahmed (1992) points out the fact that in the jahelliyah period Khadija, Muhammad’s first wife, was 15 years older than him and she was a successful businesswoman who had employed Muhammad to take care of her caravan. Later on she proposed to Muhammad who accepted the proposal. She was Muhammad’s only wife till the day she died. Therefore, considering Khadija’s status, which shows that before Islam she exercised equal rights to men, could be proof that Islam may have not provided women with more rights, but in many ways it may have restricted the autonomy and participation of women. However, Jawad (1998) states that Khadija was an exception and we cannot draw a general conclusion from her social status. Jawad refers to the writings of Stowasser (1983) and Reuben Levy (1931) to support her argument.

However, Bodman (1998) is of the opinion that even though Islam guarantees equality, after Islam women did not attain the equality which was intended through the Quranic verses. Bodman finds this to be due to the existing culture and customs that would not allow changes on a scale which was intended. Therefore culture and customs must be changed to allow the execution of gender equality.

6.3.1.2.2 Women’s spiritual status in the Quran The Quran not only considers women’s social status equal to that of men but also their spiritual status is equal to men. Verse 33: 35 of the Quran states: ‘For Muslim men and women, for believing men and women; for devout men and women; for true men and women; for men and women who are patient and constant, for men and women who humble themselves; for men and women who give in charity; for men and women who fast; for men and women who guard their chastity; for men and women who engage much in Allah’s praise - for them has Allah prepared forgiveness and great reward’ (Yusuf Ali 1975:601-602).

Again, according to the Quran 16: 97: ‘whoever works righteousness, man or woman, and his faith, verily to him will we give a new life, a life that is good and pure, and we will bestow on such their reward according to the best of their actions’ (Yusuf Ali 1975:375-376).

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Many other verses in the Quran such as 9:71, 9:72, 57:10, have pointed to punishments and rewards foreseen for various acts in which men and women will be treated and rewarded equally for committing the same acts.

Therefore, as we will further see Islamic feminists argue that based on the Quranic verses men and women have been created equal; nonetheless, in practice men enjoy a superior position in comparison to women. One main reason for this superiority is how these verses have been interpreted and therefore, need to be reinterpreted to guarantee equal rights for women (Moghadam 2002; Ahmadi 2006; Mohammadi 2007; Mir- Hosseini 2009).

These patriarchal interpretations of the Quran have also been reflected in the family laws of most Muslim countries such as Iran. As Htun and Weldon (2010a) argue family laws, apart from reflecting religious principles also reflect the cultural traditions that have been codified. Therefore, before discussing Iranian family law in specific, which will be dealt with in Chapter Seven of this thesis, I first need to address religion-State relations and the current status in Iran.

6.4 Religion-State relations Since the 1980s religious actors and movements have received an increasing political attention. In many developed and developing countries worldwide, religious debates continue to be raised during political matters (Razavi and Jenichen 2010:833). This is understandable considering religion and politics are related in many ways. They are both social establishments which in some cases overlap, for example in their norms and the people they engage (Johnstone 1988).

In Western countries until the 19th and 20th centuries many aspects of the social life were determined by the church. When the State overtook the church’s authority many religious rules were introduced in the States’ philosophy of governance. This was not done in the same manner and during the same time period in all countries. Needless to say, in some countries such as England the church was integrated in the construction of the State itself (Htun and Weldon 2010a).

Today we can still see the influences of religion on politics in different areas, such as voting activities, with regards to the religion they are affiliated with, and their choice of 150 the political party. Religion also plays an important role in debates about legislation of ethical issues such as birth control or consumption of alcoholic beverages (Johnstone 1988).

One topic which has been the centre of much debate, as a result of modern politics concerns State regulation of family and gender relations (Htun 2003). Previously such issues were dealt with through religious or tribal authorities and the States’ role in regulating such matters has been subject to dispute. This does not include, gender policies that had not been dealt with in religious texts or those which were a result of modern life which religious traditions and practices failed to foresee (Htun and Weldon 2010a; Htun and Laurel 2011).

However, although religion directly or indirectly influences the laws of most countries, religion plays a stronger role in some States than others. Johnstone (1988:122) has provided a diagram that indicates the many ways in which the Church (being the symbol of religion) and State (politics) can be related:

‘I______I______I______I______I______I______I’ Pure Modified Partial Total Partial Modified Totalitarianism Theocracy Theocracy Separation Separation Separation Totalitarianism

At one end of this diagram is pure theocracy, meaning that leaders in such societies rule purely based on God’s will and under his name and a State as a separate body is non- existent in such systems. At the other end is a totalitarianism in which religion is either banned or is managed as an enforcement arm or as a tool by the State (Johnstone 1988:121-122).

In the modified theocracy system the State is a separate entity which enforces religion. The State gains its authority through religion and monitors people’s behaviours (who tend to move away from social norms) accordingly (Johnstone 1988:121).

In the total separation system, State and religion do not overlap in any way. However this system is impossible to attain. On the other hand, the partial separation is sociologically the most reasonable option considering that politics and religion are both social establishments. What’s more, politics and religion overlap in many different areas

151 such as the people they involve and their functions. However, this system can vary greatly and lean towards either totalitarianism or pure theocracy (Johnstone 1988:122).

In Islam, society and politics are parts of a combined belief system that do not belong to different realms. Therefore, the concept that of Islam being a civilisation would mean that one of the products of Islam is that it legislates (Tamney 1974:218). This belief system has been affected by different cultural and historical experiences, which ultimately leads to, as Tamadonfar (2001:218) puts it ‘distinct legal and judicial philosophies and practices’.

Scholars have different opinions on how many of the Quran verses deal with purely legal topics (Quraishi 2005). Some say that only eight verses deal with purely legal topics (Coulson 1964) while some say that the real number of verses dealing with strictly legal topics is almost five hundred (Quraishi 2005). However, one thing all Islamic societies share in common whether they have a monarchic or a republican form of government is that considering the modern-day issues, it is impossible to rule entirely based on Islamic laws and customs (Tamadonfar 2001). Therefore, Islamic governments have no choice but to incorporate aspects of Western laws into their legal codes. Iran is a country where the legal system is based on Civil law and has been largely influenced by French law.

6.4.1 Religion-State and the laws in Iran Considering that in Iran the government is based on Islamic principles, religion plays an important role in people’s everyday life. Hence, there are strong ties between religion and the State in Iran. The education system, media and even advertisements have been somehow influenced by the principles on which the government rules. Mehrangiz Kar a prominent activist in the women’s movement in Iran states that the regime in the Islamic Republic of Iran is a totalitarian regime in which religion is used as a guise and justification for the government to intrude into people’s lives (Kar 2003).

The legal system in Iran is a Civil law system which is established on the French law and Islamic jurisprudence (Epstein, O'Connor et al. 1986). However, priority is given to Sharia law meaning that where there is a law regarding a certain issue in religious texts that law should be applied. However, in areas where religion has been quiet then the Civil law (French model) will be implemented.

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Nonetheless, studying any subject without knowing something of the history of the subject would limit our understanding and not allow us to draw fair and just conclusions. Before studying the current social, cultural, religious, political status within Iran, we first need to have some knowledge of the relevant history of that country and have some understanding as to what has led it to its present state. A study of the history of Persia (now Iran) from early days would give us a better cultural understanding of the Persian/Iranian people. I will begin an overview of the history of Iran from the 20th century onwards as it has the most relevance to the topics we are discussing. The reason for choosing this period as our focal point is that this period is long enough to provide us with some understanding of the existing culture in Iran. Also, the first parliament was created in early 20th century, which then passed the first Constitution; therefore, studying Iran in the 20th century allows us to gain recognition of the legal system as it is today.

6.4.1.1 Iranian governments previous to the 1979 Islamic revolution In the early 20th century Mozaffar od-Din Shah of the Qajar dynasty elected a national assembly Majlis which first assembled in 1906, and as a result the first Constitution of Iran was passed, derived from the Belgian Constitution and remained in force till 1979 (Axworthy 2010). Many refer to this date as the modern history of Iran (U.S. Department of State 2011).

The Constitution clearly stated that ‘the shah’s sovereignty is derived from the people, as a power given to him in trust, not as a right bestowed directly by God’ (Axworthy 2010:204) and further articles claim the independence of the judiciary (Amuzegar 1991). Furthermore, based on this Constitution Shi’ism was announced to be the State religion and Sharia laws were acknowledged. A committee comprised of 5 of the senior ulema were then to examine a law which was passed by the Majlis to ensure it does not contradict ‘its spiritual legitimacy’ (Axworthy 2010:204).

The Majlis (parliamentary) elections encouraged political societies to take form. These political societies which in many cases influenced parliamentary debates, represented different groups of the society such as religious, regional, ethnic and even women groups (Axworthy 2010).

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Since the 1906 Constitution was based on two completely different doctrines one being democratic and Western the other being Islamic and authoritarian, for it to have been able to be implemented would have required for a secular State which assured the execution of the State religion (Amuzegar 1991). Nonetheless, the rights of all religious minorities were acknowledged and the Jewish and Armenian people had a margin in the parliament. Article 8 of that Constitution states that all people enjoy equal rights before the law. Seeing the direction the Constitution was leading, resulted in its opposition by some religious authorities such as Shaykh Fazlollah Nuri who believed that Muslims should not be treated equally to other religious groups before the law and that the constitutionalists were introducing Western traditions and practices (Axworthy 2010). A series of events occurred - which is beyond the scope of the current study - that ultimately led to Reza Khan gaining control of the Qajar government in 1921, but it was not until 1925 that he was able to overthrow the Qajar dynasty. Initially Reza Khan intended to create a republic government, his model being the Turkish Republic of Ataturk and had planned ‘for State-directed industrialisation and economic development’ (Axworthy 2010: 222). This plan failed, therefore he then announced himself shah, meaning king, and the Pahlavi dynasty began its existence (Axworthy 2010; U.S. Department of State 2011).

In 1935, Reza shah renamed the country and chose the name Iran to emphasise the Aryan roots of Persia, he also enforced policies to modernise and to secularise Iran. In this period we observe various socioeconomic modifications and the secularisation of education and the judiciary as well as developments in women’s rights (Axworthy 2010), such as providing access to education at all levels to women as well as access to employment. However, some of these changes to women’s rights were not favoured by all women. An example is when, in 1935, it was made illegal to wear the chador or veil (Vatandoust 1985; Shawcross 1989). Consequently, many religious women refrained from leaving their house in fear that they might be forcibly unveiled (Vatandoust 1985). Various factors, including the occupation of the western parts of Iran by the Soviet Union and the United Kingdom troops, ultimately compelled Reza shah to renounce his thrown in 1941. His son Mohammad Reza Pahlavi took over the throne (U.S. Department of State 2011).

In 1961, Iran experienced many reforms in social, economic and administrative arenas which were identified as the White Revolution (Axworthy 2010; U.S. Department of 154

State 2011). While the White Revolution led to immense economic growth and modernisation, democracy and civil rights retreated. This was due to the autocratic method by which the shah had chosen to rule. Also the violent methods applied by the SAVAK (the shah’s internal security and intelligence service) gradually distanced the people and the ‘Shia clergy’ from the government (U.S. Department of State 2011).

Regarding women’s rights in 1963, the shah issued a decree which allowed women to vote and ‘to run for and hold public office’ (Vatandoust 1985:107). Also, in 1967 the shah passed the Family Protection Law (FPL), which was later amended in 1975, and was one of the most important achievements of that period. This law lessened the implementation of many Sharia laws and provided women with a greater amount of civil rights in various areas of family life such as marriage, divorce, employment, polygamy and child custody (Nashat 1984) as cited by (Zolan 1987).

Previous to the FPL a man could divorce his wife anytime he wanted. Under the FPL he faced certain restrictions in divorcing his wife. Furthermore, women were also provided the right to obtain a divorce. Regarding children, while previously the custody of a child was automatically given to the man, power was granted to the courts to decide on which parent is more appropriate to gain custody (Touba 1985) as cited by (Zolan 1987). The FPL also restricted men’s’ rights in marrying another wife and permitted it only in cases where the first wife permitted that second marriage. What’s more, even though obtaining this permission was mandatory for men, however, it did not mean that they could remarry unless it was further permitted by a judge. The judge would then only allow remarriage if certain conditions were existent, for instance if the first wife was sterile (Ramazani 1980) as cited by: (Zolan 1987). One very important issue is that this law also entitled men to receive maintenance from their wives (Htun and Laurel 2011).

History shows us Reza shah and his son both attempted to modernise Iran. They considered secularisation to be the way to achieve this goal. One of the most important ways of achieving this goal was through the secularisation of the judicial system (Amuzegar 1991). Nonetheless, whether secularisation and modernisation are actually related is itself a controversial issue.

However, many events in the shah era led to the people’s dissatisfaction with the government. Even though Iran was economically booming due to the shahs’ policies, a 155 huge gap between the different classes had been created within the country. The shah was also extremely influenced by the West (first the U.S. then Britain) and had passed laws which gave the U.S. people and the U.S. military certain rights. These rights were greatly opposed by many of the Iranians and the clergy (this opposition was accentuated by the large amount of loans given to that country). This is while, as we mentioned before, Iranian peoples civil rights were being disregarded by the shah (Axworthy 2010).

Hundreds of thousands of Americans were visiting Iran and thousand were living in Iran and lived completely separate lives, enjoying separate compounds, separate shopping centres and schools (the same applied to British expatriates). What’s more, in the 1970s a policy referred to as ‘keep Iran out’ was being implemented in the expatriate’s schools, in which nothing about Iran was to be taught. In the 1960s, an American hospital located in Tehran required more staff and employed a number of Iranian nurses. However, they were not permitted to speak in Farsi even to one another and also were forced to eat in the janitor’s room because the staff canteen was to be exclusively used for Americans. Also, American and Iranian patients were treated very differently (Axworthy 2010).

All the above issues coupled with other matters resulted in chaos which gradually turned the people against the shah and formed into a revolution against the shah in 1978. In 1979, the Shah ‘fled’ Iran and went to Egypt, and passed away a year later, while in exile in that country. In Iran the Islamic Republic was formed with Ayatollah Ruhollah Khomeini as the leader (U.S. Department of State 2011).

6.4.1.2 Iranian government after the 1979 Islamic revolution As a result of his political activities, Ayatollah Ruhollah Khomeini had been exiled to France by the previous shah. On February 1, 1979, Khomeini returned to Iran and asserted his position as the Supreme Leader of the new government, the Islamic Republic of Iran (IRI). The IRI is an Islamic republic which represents Islamic values and principles and has replaced the pre-existing monarchy (Zolan 1987; U.S. Department of State 2011).

The rulers of the Khomeini government established fundamental social and political changes upon arrival. These changes were a result of a ‘revolutionary coalition’

156 between different groups including ‘political groups (leftists, nationalists and Islamists) and social forces (women, men of the middle class, the intelligentsia, the working class, and the urban poor)’ (Moghadam 2002:1137).

During the 1980s, communist and Muslim leftists were removed from their jobs, arrested, imprisoned, tortured and in some cases even killed which all led to them having to flee from Iran and reside in other countries. This led to the formation of various expatriate groups such as ‘Iranian communists, monarchists, liberals, Muslim socialists, and feminists’ in other countries such as the United States or Europe and the previous socialist bloc countries (Moghadam 2002:1137). Among these were feminists, some of who began their political activities from those countries and indirectly played a strong role in creating change in different areas of the current Iranian society, continued until today (Moghadam 2002).

As we have seen, during the pre-revolutionary government many efforts had been made towards the Westernisation of Iran. However, with the establishment of the IRI, many of the changes made in the shah era were reversed. Furthermore, the IRI introduced the Islamisation of laws which affected other political and social areas of that country; these have been the subject of great scholarly controversy.

6.4.1.2.1 Ayatollah Khomeini and the Islamisation of laws The Islamisation of laws meant that the Sharia, which is the traditional Islamic law, was to be re-established (Zolan 1987). The Islamic Republic Constitutional law was passed in 1979 and followed a direction completely opposite to that taken by the previous shah regime. Based on the preamble of this Constitution: ‘The Constitutional law of the Islamic Republic of Iran is an indicator of the cultural, social, political, economic institutes of the Iranian society which are to be in accordance with the Islamic principles…’ (1979 amended in1989).

It continues by declaring that: ‘The fundamental characteristic of this Revolution, which distinguishes it from other movements that have taken place in Iran during the past century is its ideological and Islamic nature…’ (1979 amended in1989).

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Further Articles of the Constitution accentuate the fact that secularisation has no place in the IRI, and that religion and the government are parts of the same body and are inseparable. Based on Article 4: ‘All civil, penal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic principles…’ (1979 amended in1989).

Article 4 further states that it is the responsibility if the Guardian council to make sure that all laws comply with the Islamic principles, which is further indication of the strong religious influences in every aspect of people’s lives (1979 amended in1989). As a result, with the Islamisation of laws every aspect of people’s life should be in accordance with Islam. This was implemented by returning to the strict execution of Sharia laws. This has its disadvantages as we will see below.

6.4.1.2.1.1 The Islamisation of laws and women’s rights The IRI introduced new laws which brought with it new gender roles for women, encouraging traditional Shiite values. However, as Zolan argues returning to Sharia law does not require for women’s position to have to change negatively, as it did (Zolan 1987). While there are no Articles in the Iranian Constitution which ban women from holding top governmental positions or leadership posts, however, as we will see by enforcing the traditional gender roles and reintroduction of Sharia laws, women were once again deprived of many rights and privileges which they had managed to gain (Moghadam 2002).

The IRI emphasised the family roles which women have and the manner in which they must dress, that is to wear the hejab74 (which very soon became compulsory) (Moghadam 2002). Women were also encouraged to be good mothers and wives, since this was now considered to be their primary role (1979 amended in1989). The view of the Islamic leaders in the IRI was that as a result of the differences between men (who are physically and mentally stronger and rational) and women (who are physically attractive and emotional) and in order to obey God’s commands as reflected in the Sharia, labour is to be gender-based. What’s more, as a result of these differences, one of which is that men are considered to be more rational in comparison to women, they

74 the Islamic head cover 158 should be the head of the household, and to make the household decisions (Nashat 1984) as cited by (Zolan 1987).

This revolution ultimately resulted in the support for male domination and extreme gender inequality. The results of the new policies were clearly reflected in the 1986 national census of housing and population which showed a growth in fertility rates and a decline in the employment and literacy rate of women75 (Moghadam 2002).

Therefore, as a result of the IRI women’s rights were reduced to a great extent. Their legal and social status changed dramatically and many rights which were given to them in the pre-revolutionary government were taken away. They were banned from many occupations and areas of study. The FPL passed by the shah government, which provided women with many rights, was abolished. Along with that many of the women’s rights were removed (Moghadam 2002), such as child custody and other rights regarding divorce, and the age of marriage was reduced to 9 (with the father permitting it) (Zolan 1987; Mohammadi 2007). Obtaining the fathers or brothers or husbands permission was deemed necessary for women to be able to work, travel or even leave the house (Mohammadi 2007). As a result, the strict implementation of Sharia laws led to many forms of State tolerated and State-sponsored discrimination to take place.

Day care centres were shut down since it was considered to be a mother’s duty to take care of her child and women were able to retire with full benefits if they had worked a certain number of years (Nashat 1984) as cited by (Zolan 1987). This number was almost half the age at which men could retire with while enjoying full benefits. All this can be understood to be so that women could see to their primary role which was to be a mother and a wife.

Khomeini also made major changes to the education system. In 1980 the universities were closed and not reopened again until sometime later. Co-education was banned at schools and the books and their teachings changed to teach the new generation about women’s roles (being a wife and a mother) and the manner in which they must dress. Also, women who were married were no longer permitted to enter high school,

75 See further Chapter 8, section 8.2.3. 159 regardless of how young they might have been when they married (Zolan 1987; Mohammadi 2007).

When Khomeini was in Paris he had claimed that women should enjoy an equal position to men in social, political and economic arenas, and furthermore that women should take pleasure in having absolute freedom of choice (Ferdows 1982) as cited by (Zolan 1987:184). Women who were motivated by these promises fought for, and made great contributions to the success of the Islamic revolution, since many were satisfied that the changes introduced by the shah were insincere and were nothing more than an ‘imitation of corrupt Western influences’ (Nashat 1984) as cited by (Zolan 1987:184). Unsurprisingly, the change of position by Khomeini came as a shock to many women who initially found Khomeini’s government to be the answer to their calls for equality (Zolan 1987; Ramazani 1993; Kar 2000; Mohammadi 2007). As a result, the Islamisation of laws was not faced with much public support.

This lack of support was due to two main reasons one of which was Khomeini’s failure to deliver what was promised on equality. Another reason some people were unsupportive of the Islamisation, as Moghadam states, was that during the 1980s there was a large number of modern middle and working class in Iran who were highly educated. These groups had been influenced by the ‘modernisation and economic development’ of the shah era during which women’s roles had changed. The changes in women’s roles had resulted in a change in the society’s expectations, perceptions and desires. This rendered them opposed to the changes introduced through Islamisation. Many Islamists had also been influenced by the shah era and modernisation (Moghadam 2002). All this ultimately led, as Mir-Hosseini states, to ‘an indigenous, locally produced, feminist consciousness’ (Mir-Hosseini 1996a:162).

6.4.1.2.2 Iran after Khomeini and the status of women During the 1990s, after the death of Khomeini and in the time of the presidency of Ali Akbar Hashemi Rafsanjani, various factors led to changes in women’s roles and gender relations and women were provided more rights and freedom. One of the products of the Rafsanjani government was the introduction of a ‘program for economic liberalisation, integration into the global economy and the (re)establishment of capitalist society’ (Moghadam 2002: 1138)

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Contraceptives which had been banned in the Khomeini period became legal and their use was encouraged. Due to activist Islamic women’s campaigns the obstacles previously placed on womens educational and employment accomplishments were eliminated. In 1992 a set of employment policies were adopted by the High Council of the Cultural Revolution which supported women into entering the labour force while addressing their needs (still stating the significance of family roles which these women have and still regarding certain occupations as Islamically inappropriate). In the 1990s, the government position on women and their admittance to legal professions was subject to change. Women in Khomeini’s period were banned from working as judges and discouraged from practicing as lawyers. However, as a result of changes in government policies, by April 1993 there were 185 women registered as lawyers in Iran (out of 2.661). Also, since 1992 women were permitted to be employed as legal consultants in certain civil courts. In 1997 almost 20 women were employed by the judiciary as court counselors, investigation judges, and deputies/assistant judges (Moghadam 2002: 1140).

In subsequent years other changes were made and laws were moderated which again provided women with more rights than they previously had, such as the establishment of certain units which are linked to special family law courts and whose duty is to provide family aid and guidance. In addition laws regarding child custody changed and mothers, under certain circumstances, were given the right to demand the custody of their child after divorce (Kar 2000). Another important change is that the age of criminal responsibilty for girls was raised to 13 years (even though not 18, but still an improvement) instead of nine, and mahrie (to be examined in the next chapter) is now subject to inflation. Also, girls are now considered eligible to receive grants in order to study abroad (Monshipouri 2004).

In summary, since the 1990s women’s status changed again and by 1994 almost 31% of the employees in public sectors were women, out of which almost 34% were university graduates (Moghadam 2002:1140). This number had increased to 63% in 2006 (Campbell 2006). What’s more, in 1996 women accounted for 38% of the civil servants (Moghadam 2002:1140) which reveals the fact that women are becoming more and more active in labour forces within that society.

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As Moghadam argues, one important measure taken by the government with regard to women’s rights was passing the Bill in 1992 which guaranteed ‘equal payment of new year bonuses for male and female civil servants’. Women were also encouraged by the Rafsanjani’s government to enter medical science fields and by 1992, women comprised 25% of the quota in these disciplines (Moghadam 2002: 1140).

Women’s increased participation in politics has also been noticeable. While in the first IRI parliament in 1980 four women were members of the parliament (two of whom later became Islamic feminists), in the 1995 parliament this number increased to nine (Moghadam 2002) and to eleven in the sixth parliament in 2000 (Bradley 2007b). Some of these female members of parliament (MP’s), having feminist attitudes and mentalitites, have in various instances spoken on behalf of women, not with an Islamic attitude but more from an outlook of a global feminism. As an example Maryam Behrouzi asserted that social change is not necessarily evil and that in some cases the existing culture and traditions should be refined. Behrouzi further states, for instance in the case of Iran, patriarchy, attitudes which discredit women, and anti women attitudes, all of which have been carried out in the name of Islam, must be abandoned and the existing culture and traditions must be reformed (Moghadam 2002).

Also in the 1990s many offices were instituted within the ministries which deal with women’s affairs and various organisations and government agencies were established which also deal with women issues (Moghadam 2002). In the late 1990s a social movement was formed involving mainly students, intellectuals, journalists, Islamic feminists and women seeking to reform the IRI (Moghadam 2002; Mohammadi 2007) and to fight for women’s human rights as well as their constitutional and civil rights (which has been the goal of the women movements in Iran since the early 20th century) (Mohammadi 2007). The election of Mohammad Khatami, as the president in the 1997 elections and the election of many reformists in the 2000 parliamentary elections can be attributed to this movement (Moghadam 2002).

In the time of President Khatami for the first time since the shah era women were appointed top governmental positions and along with reformist female MPs of the 2000 parliamentary elections, they worked towards reforming womens status. President

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Khatami elected Massoumeh Ebtekar76 as vice president in charge of environmental affairs. President Khatami’s Culture Minister, Ayatollah Mohajerani then chose Ms Azam Nouri as deputy culture minister for legal and parliamentary affairs. Abdollah Nouri the Interior Minister designated Zahra Shojai - a women’s right acitivst, a lecturer and a member of the interior ministry’s Women’s Commission - as Iran’s first ever to be director-general for women’s affairs (Moghadam 2002:1141). Also, by 2004 another 16 women had been appointed as advisors to ministers (Kar 2000).

As Kar states these changes are all indicators that women have gained more power and have been able to influence and convince religious leaders to legitimise women’s involvement in political and in social practices. Gender discrminatory attitudes still exist and governs the legislative spheres which results in women being ‘treated as second class citizens’ (Kar 2000). The situation is even worse for those women who oppose the governing principles of the State. The status of this group of women is comparable to the status of black women in the United States (Mohammadi 2007). However, as we can see public attitudes and perceptions are changing towards women and towards their capabilities, which has led to their election in different structures of the society (Kar 2000).

In 2005, Mahmoud Ahmadenejad, a ‘populist hardliner’ was elected as president. His re-election in 2009 caused extreme political turmoil in Iran and resulted in aggressive anti-government demonstrations (BBC News: Middle East 2010). During Ahmadinejad’s presidency, many events have taken place which have gained international attention. Among those which most are relevant to the current thesis are the one million signature campaign and the Family Protection Bill.

In June 2006, a demonstration to raise awareness on gender discrimination took place in Tehran, which was faced with the violent response of authorities. As a result, many of the demonstrators were arrested. Following this demonstartion in August 2006 a campiagn was commenced with the aim to colect 1 million signatures to terminate

76 Massoumeh Ebtekar has graduated from the United States and apart from being a lecturer she also happens to be an editor of the journal Farzaneh which is a women’s studies journal, see, Moghadam, V. (2002). "Islamic Feminism and its discontents: Notes on a debate." Journal of Women in Culture and Society 27(4). 163 discrimination against women. While, a few of the activists were arrested and the government made attempts to stop this movement (including blocking this movement’s website), nonetheless, activists continued with their agenda. By February 2007, 30000 women had signed the petition. In the following years many women’s rights activists (some of whom are men) have been arrested as a result of their struggles to establish gender equality, nontheless, these movements and efforts have not ceased to exist (Human Rights First c.2012).

Again, during Ahmadinejads presidency, the Family Protection Bill was introduced to the parliament in 2008 which has raised much controversy. If passed, it would be a great step backwards for women’s achievements since men would then be permitted to take up to three more wives without requiring to inform or gain the approval of their first wife. Among other problems which this may cause, since many women rely entirely on their husbands income, the husbands free reign in remarriage could create financial distress for the first wife. However, due to the strong opposition from women’s groups this Bill has not yet been passed (Amnesty International 2011).

While women’s rights are being violated as a result of the State laws, the implementation of human rights in Iran and many Muslim countries is also faced with certain obstacles. In the case of Iran, following the Islamic revolution through the subjection of human rights norms to Islamic Sharia, the significance and the impact of those norms have been undermined.

6.5 Islamic human rights The situation of human rights in Islamic States poses an interesting and yet challenging conundrum. On the one hand, the possibility for the co-existence of the two differing value systems of Islam and human rights has provided an opportunity for difficult and intriguing intellectual musings;77 on the other hand, the practical implications of the existence of such dichotomous systems has deeply affected the human rights record of

77 See for instance the works of such scholars as: Abdullahi An Naim, Leonard Binder, Katerina Delacoura, Ann Elisabeth Mayer, Asma Barlas, Ahmed E. Souaiaia, Norani Othman, Amina Wadud, Wilfrid R. Clement and Saad S. Khan. There is also a wealth of literature on the subject in Farsi and Arabic. For a brief but stimulating account of the intricate issues involved, see: Freeman, M. (2004). "The Problem of Secularism in Human Rights Theory." Human

Rights Quarterly 26(2): 375-400 164 many Islamic countries.78 Needless to say, the numerous reports issued by international governmental and non-governmental organisations on human rights violations in Islamic countries is, to a certain extent, the result of this dichotomy. This is also the case in Iran, in which the implementation of human rights is faced with certain challenges.

6.5.1 Iran and Islamic human rights The practical implications and difficulties of implementing human rights in Islamic States may not be readily apparent. In fact, all Islamic States have undertaken human rights obligations to varying degrees. The Islamic Republic of Iran, for example, is a party to several universal human rights instruments79 and is one of the original members of the UN. Iran was involved in the drafting process and adoption of the Universal Declaration of Human Rights as a member of the Commission on Human Rights at the time. Furthermore, it was an active member in the drafting process of, and is a signatory to the Statute of the International Criminal Court.

Hence, on its face, Iran has been quite active in promoting the international human rights movement and has accepted an array of human rights obligations. However, it must be borne in mind that Iran underwent a major political restructuring in 1979 and that much of Iran’s advances in the field of human rights were due to the modernisation efforts prior to the Islamic revolution of that year. The relevance and impact of the normative undertakings of post-revolutionary Iran have been undermined by the

78 Apart from the relevant UN and NGO websites, some of the laws and regulations of the

Islamic Republic of Iran and international documents concerning the situation of human rights in Iran have been compiled and are accessible at: Iran Human Rights Documentation Center (2011a). Iran Human Rights Documentation Center. New Haven, Iran Human Rights Documentation Center. For a historical listing and documentation of the various UN Special Rapporteurs on Iran, see: Iran Human Rights Documentation Center (2011b). A History of United Nations Special Representatives and Rapporteurs in Iran. New Haven, Iran Human Rights Documentation

Center. 79 These include: the International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; International Convention on the Elimination of All Forms of Racial Discrimination; Convention on the Rights of the Child and its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography; and the Convention on the Rights of Persons with Disabilities. 165 subjection of human rights norms to Sharia.80 This is a common practice among many Islamic States whereby the accession to human rights treaties is accompanied by general reservations to the effect that their undertaking is to be understood within the confines of Sharia.81 Furthermore, the pre-revolutionary human rights undertakings of Iran (notably the ICCPR and the ICESCR), which were ratified without reservations, have also been affected by the over-arching constitutional requirement of conformity to Sharia.

The inevitable result has been a widespread and systemic review of all laws, regulations and practices in favour of a conservative reading of Islam82 as determined by the Clerical Members of the Guardian Council.83 This has led to the implementation of

80 For instance, in acceding to the Convention on the Rights of the Child, Iran entered the following reservation upon signature: "The Islamic Republic of Iran is making reservation to the articles and provisions which may be contrary to the Islamic Sharia, and preserves the right to make such particular declaration, upon its ratification". Upon ratification of the said Convention, Iran entered the following reservation: "The Government of the Islamic Republic of Iran reserves the right not to apply any provisions or articles of the Convention that are incompatible with Islamic Laws and the international legislation in effect." See: United Nations Treaty Collection (2012). United Nations Treaty Collection. In fact, according to article 4 of the Iranian Constitution: ‘All civil, penal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations, and the wise persons of the Guardian Council are judges in this matter’. This guiding principle is applied to Iran’s international obligations as well.

81 See for instance the reservations made to CEDAW by states such as Bahrain, Bangladesh, Brunei, Egypt, Iraq, Kuwait, Libya, Malaysia, Maldives, Mauritania, Morocco, Oman, Qatar,

Saudi Arabia, and the United Arab Emirates: ibid. 82 See for instance UN Commission on Human Rights and (2006). Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences,Yakin Ertürk : addendum : Mission to the Islamic Republic of Iran (29 January to 6 February 2005), UN Commission on Human Rights. E/CN.4/2006/61/Add.3 83 According to article 91 of the Iranian Constitution: ‘With a view to safeguard the Islamic ordinances and the Constitution, in order to examine the compatibility of the legislation passed by the Islamic Consultative Assembly with Islam, a council to be known as the Guardian Council is to be constituted with the following composition: 1. six religious men [viz. Clerics], conscious of the present needs and the issues of the day, to be selected by the Leader, and 166 various Islamic dictates as law, which in many areas has resulted in legislation that is discriminatory or is otherwise incompatible with Iran’s human rights obligations such that the newly appointed Special Rapporteur on Iran, Mr. Shaheed, has cautiously declared that: ‘In some cases, elements of Iran’s penal code and legal practices amount to contravention of those international laws it acceded to’.84

Most notably, these involve discrimination against religious, sexual, ethnic and linguistic minorities, as well as a denial of numerous civil and political rights of citizens in general.85 This is of such importance and magnitude that it has led the Human Rights Committee to declare that: ‘The Committee notes with concern that reference is made in the State party’s system to certain religious tenets as primary norms’ (Human Rights Committee 17 October - 4 November 2011para:5).

The priority given to Islamic values over international human rights norms may indeed stem from a genuine belief that religious piety and obligation takes precedence to any other consideration or it may merely be a political tactic aimed at maintaining an authoritarian rule over a given society. In either case, one cannot disregard the deep political, cultural, and religious implications of attempting to re-align Islamic societies with modern human rights standards. The inevitable conclusion to be drawn is that the various human rights violations and challenges in Islamic States are directly attributable to a systemic application of Islamic Sharia in preference to human right norms. This is due to a deep rooted belief by such States and a majority of Muslims, that all laws posited by human beings (including human rights) are to be accorded a secondary value in relation to the dictates of God and his prophet as set forth in Sharia.

2. six jurists, specializing in different areas of law, to be elected by the Islamic Consultative

Assembly from among the Muslim jurists nominated by the Head of the Judicial Power’.

85 See for example, the UN Human Rights Council (2011). Interim report of the Secretary- General on the situation of human rights in Iran, UN Human Rights Council. A/HRC/16/75. The advance edition of the Human Rights Committee Concluding Observations on Iran also contains various concerns. See: Human Rights Committee (2011). Consideration of reports submitted by States parties under article 40 of the Covenant Geneva, Human Rights Committee. 167

This conclusion is supported by a perusal of the Cairo Declaration on Human Rights in Islam86, believed by some to be the Islamic response to the Universal Declaration of Human Rights. The content of the Declaration are markedly different from those of the UDHR87 and Articles 24 and 25 provide respectively that ‘all the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari'ah’ and that ‘the Islamic Shari'ah is the only source of reference for the explanation or clarification of any of the Articles of this Declaration’, leaving no room for doubt as to the priority of Islamic values to international human rights norms in Islamic States, including the Islamic Republic of Iran.

Although the Islamic Sharia has been regarded as the only source of reference for explanation and clarification of the UDHR, nonetheless, the Quran has not been interpreted nor has the Sharia law been implemented consistently in all Islamic States. In different eras and different States, interpretations of the same religious transcript have led to variations in Sharia laws. This is the argument which Islamic feminists have raised and call upon a reinterpretation of the Quran.

6.6 Islamic feminism Looking back, feminist discussions within Muslim countries and societies has been expressed through secular, Islamic modernist, democratic, human rights and most recently through Islamic feminism88 dialogues (Badran 2001:49). Studying feminism and Islamic feminism in depth and in detail is beyond the scope of this thesis. I will provide an overview examination of Islamic feminism to provide a framework for the issues dealt with in this thesis.

Islamic feminism is an inter-Islamic phenomenon that generated their movement in many different parts of the world since almost two decades ago with the purpose of

86 Cairo Declaration on Human Rights in Islam, Aug. 5, 1990, U.N. GAOR, World Conf. on Hum. Rts., 4th Sess., Agenda Item 5, U.N. Doc. A/CONF.157/PC/62/Add.18 (1993). 87 See: Waligor, Joseph, “Cairo Declaration on Human Rights in Islam”, in: Lewis, James R. and

Skutsch, Carl, The Human Rights Encyclopedia, Sharpe Reference, 2001, vol. 2, pp. 635-636 88 The term ‘Islamic Feminism’ was first used in the 1990s by ‘expatriate Iranian feminists’ see: Freeman, M. (2004). "The Problem of Secularism in Human Rights Theory." Human Rights

Quarterly 26(2): 375-400. 168 enforcing social justice and gender equality. Therefore there is no East and West distinction of Islamic feminism (Badran 2006).

Basically those who have developed Islamic feminist arguments have approached the issue of religion in two different ways. One group are those who believe religion is not a political device which can be used to impose social control (‘in particular of women’) and the second group are those who believe otherwise (Winter 2001) as cited by (Badran 2001:49).

Badran (2001) distinguishes between Islam the religion and Islamism which she refers to as the political Islam. She continues by stating that in political Islam while some support an Islamic State to be instituted others believe that an Islamic society or community should be established within a secular State. Since the 1990s there have also been those who try to gain personal freedom in order to articulate their religious identity in the manner which they consider right, and in order to do so they act politically (Badran 2001; Badran 2006).

Even though most Islamist movements are patriarchal and have been oppressive with regard to women, nonetheless, some Islamic feminists have started approaching the issue from a new angle and that is that they do not agree with gender matters in Islam but they find the solution as not to discard Islam but maybe discard Islamism (Badran 2001). However, there are those who have found a way to move within the Islamist boundaries. Gole states that this is the post-Islamist stage where Islamism is diverting from its original commitment to deal with political and revolutionary issues and is moving towards social and cultural life (Gole 1996) as cited by (Badran 2001).

6.6.1 Iran and Islamic feminism With the Islamisation of laws and policies in Iran after the 1979 revolution Iranian women lost many of their social and political rights and privileges, yet that did not discourage them to fight in order to get back what they had lost. Among these women who fought for rights were secular women that challenged the clergy and their efforts to marginalise women (Ahmadi 2006).

Unfortunately the work by these secular women was not successful. One reason among others for their failure was that within the IRI framework, fundamentalists had complete

169 control over specific State institutions which led to the work of this group to be blocked. For that reason the need for a force from inside to create changes was recognised by Iranian Muslim women (Ahmadi 2006).

Badran states that in Iran, Islamic feminists have carried out their activities since the post-Khomeini era. In this period many Muslim women and some clergies (men), have based their arguments on the Quran, as the constitution of the IRI. This group have requested for the implementation of those rights of women which they found to be violated or disregarded in the name of Islam and have put their arguments forward through the newspaper Zanan (meaning women) (Badran 2006). They have been fighting for women’s rights in different areas such as labour, forced dress codes (opposing the obligation of wearing the hijab), human rights, domestic violence, spousal violence, circumcision etc. They do this by condemning patriarchy and ‘authoritarian religious and cultural regimes’ and present their views of an perfect world, while engaging in dialogues with other groups (Mohammadi 2007:6). In doing so, Islamic feminists have had to challenge four different institutes which are the ‘family, community, civil society and polity’ (Mohammadi 2007:5).

Research has defined Islamic feminism in Iran to be: ‘a reform movement that permitted dialogue between religious and secular feminists while also opening the door to new possibilities for gender equality and women’s involvement in religious doctrine and practice’ (Moghadam 2006:4).

Mohammadi argues: ‘What makes Iranian feminism different from other feminisms in the region or Western countries are the dominance of a religious state and the Iranian women campaign against Islamic discriminations inflicted on women’ (Mohammadi 2007:6).

Iran began a new trend in Islamic feminism since the 1990s by suggesting that the Quran should be reinterpreted to enforce the ‘non-gender egalitarian and misogynist constructions of Islam’ (Ahmadi 2006; Moghadam 2006; Mir-Hosseini 2009). They argue for the reinterpretation of the Quran and other sacred texts from a feminist perspective with regard to gender issues and in doing so women refer to their own experiences (Ahmadi 2006). Islamic feminists employ classical Islamic methods for this

170 reinterpretation of the Quranic verses such as ijtihad89 (a method which they state can also be used by women), and secular social science (Badran 2001:50; Ahmadi 2006; Moghadam 2006). Other methods of history, anthropology etc. are also used to reinterpret the Quran (Badran 2001).

They refer to the Quran which states that all human90 are equal and claim that gender equality is part of this equality of human beings and this equality should be implemented in all aspects of our daily life and within the State and civil institutions (Badran 2006). As a result, in many countries including Iran Islamic feminists have challenged Islamic family laws (Moghadam 2006) in which the different treatment of men and women is palpable.

Islamic feminists are also aware of gender differences. Nonetheless, they argue that acknowledgment of gender differences and biological differences does not oppose the notion of equality in any way and that neither gender is to be considered as superior. Islamic feminist interpreters assert that the concept of khalifa as stated by the Quran, meaning ‘the trusteeship of God on earth’ has been given to all human beings equally regardless of gender, race or any other matter (Badran 2006).

Now, after 25 years of the establishment of the IRI we are observing the reinterpretations of the holy scripts within Iran. Some scholars consider this shift to be so major that no other place in the Muslim world has experienced such change (Ahmadi 2006). Even though in Iran women and men still fail to enjoy equal rights and many discriminatory laws continue to exist (Ahmadi 2006), however, as a result of these feminists activities women’s roles are changing in different arenas.91

89 Independent reasoning and interpretation of the Sharia 90 insan 91 In recent years Muslim women’s roles with regards to religious leadership roles has also experienced change in different parts of the world. During the mid-90s a woman at the Claremont mosque in Cape Town was the first woman ever to give the pre-khutba talk. Since then women in the United States and Canada have performed as Imams in the Friday services Badran, M. (2006). "Islamic Feminism Revisited." 171

6.7 Conclusion A brief study of the history of Iran from the 20th century onwards, reveals that religion has continuously played a significant part in the laws and society of this country. The historical study also shows that the status of women has been akin to a roller coaster, with women succeeding in gaining more rights and freedom at times and losing them at other times.

During the shah era, the government’s policies were towards modernising Iran, as a result of which the FPL provided women with many more rights, placing them in a more similar position to men. However, after the 1979 revolution, Islamisation of laws was one of the priorities of the IRI. The Islamisation of laws was a backwards step towards women’s achievements with regard to gender equality.

The IRI found domesticity and motherhood to be women’s main roles. Laws were passed and policies were implemented to enforce these traditional roles of women. However, during Rafsanjani’s government women were once again encouraged to participate in labour forces and many of the obstacles regarding education fields and labour participation which had been placed for women during Khomeini’s government, were lifted. This led women to become more active in the public domain and in politics (Moghadam 2002). Further, during the 1990s a social movement was formed which among others included feminists. One of the main agenda items of this movement was to fight for the promotion of women’s constitutional, civil and human rights. This movement played a significant part in Khatami being elected in the 1997 elections (Moghadam 2002; Mohammadi 2007).

Khatami, for the first time since the succession of the IRI, appointed women in top governmental positions, some of whom were reformist female MP’s who further struggled to improve the status of women (Moghadam 2002). During Ahmadinejad’s government while the State’s policies such as the Family Protection Bill (Amnesty International 2011), and the suppression of the one million signature movement (Human Rights First c.2012) were policies unfavourable to women’s rights, nonetheless, women’s movement’s and Islamic feminists have continued to be active in pursuing their goals.

172

In summary, the Islamisation of laws which was introduced with the IRI, resulted in a systemic review of all laws, regulations and practices in favour of a conservative reading of Islam. This ultimately led to legislation that is discriminatory or is otherwise incompatible with Iran’s human rights obligations. However, considering that the Quran promotes gender equality, Zolan argues that with the Islamisation of laws women’s stance should not have been affected negatively like it did (Zolan 1987). Islamic feminists argue that it is not Islam that discriminates against women but the patriarchal interpretations of Islam. They then state that a reinterpretation of the Quran is necessary to enforce the gender equality intended by the Quran (Zolan 1987; Moghadam 2002; Mir-Hosseini 2009).

173

7 Chapter 7 - Marriage and Divorce in the Islamic Family Law of Iran

7.1 Introduction When Islam was introduced in the Arabian Peninsula (in 610 A.D.) patriarchy was widespread. Within this environment Islam was revealed with the purpose of creating change (Al-Hibri and El Habti 2006) in the existing culture and practices and succeeded to a certain degree. Islam forbade infanticide and provided women with the right to education, work, inheritance (to some degree), and the right to own and sell property. Islam provided women with economic protection by allowing them to demand financial support from the closest male member of the family (Al-Hibri and El Habti 2006). The head of the household, a husband, has to provide for his wife and children and to protect them (Katouzian 1996). This protection did not come free of cost and in return for this protection wives must submit to many of the husbands demands and to be obedient towards him. As Al-Hibri and El Habti point out, in many Muslim countries a husband has the right to control his wife’s associations and socialising as well as her right to employment (Al-Hibri and El Habti 2006).

In Iran, similar to most countries the rights and obligations which wives and husbands have towards one another are stipulated in the family law. However, the exercise of some of these rights and obligations in Iran can result in IPV to legally take place. Many of these State’s tolerated and State sponsored forms of IPV are comparable to those which were historically practiced in the Western Common law countries studied in Chapters Four and Five.

As we will see, one way for women in Iran to protect themselves from some forms of IPV is through the use of mahr which women can use to negotiate for their needs to be met. Another way is through the insertion of conditions within the marriage contract which limits the husband from exercising some of his legal rights. However, neither of these measures provides women with complete protection from IPV.

In this chapter I begin by providing definitions of mahr and rejiyah and bain forms of divorce. I then examine the family law of Iran and the rights and obligations which men and women have in marriage and divorce. Finally, I will analyse the conditions included

174 in the marriage contract as a way for men and women to modify the rules that apply upon marriage and divorce.

7.2 Definitions

7.2.1 Mahr Mahr can also be called mahrie, sedagh, sedaghieh, kabin, gharz (Zamani Darmazari 2005) nehleh, farizeh, ajr, sadagheh, oghr, aligheh, alaegh, heba, tavl, dastpeyman and roogoshayan (Pouladi 2004). However, the common name is mahr, mahrie or sedagh. No legal definition has been provided for mahr. The Civil Code and the law books have merely explained its applications and the subject matter. The reason why a legal definition has not been provided for mahr, is that the word mahr is so famous among Muslims that the need to provide a definition has not been found necessary92 (Erfani 2008).

Dr Katouzian (1996:115) has defined mahr as: ‘mahr is something of monetary value which the man is obliged to give to the woman upon marriage. The obligation to provide mahr is a legal obligation and is not a contract, therefore the parties silence towards the issue of mahr or agreement on no mahr for the wife, does not exempt the husband from his duty of providing mahr’.

According to Article 1078 of the Iranian Civil Code: ‘Anything that is of monetary value and can be owned can be chosen as mahr’ (1928 (last amended 1985) ).

Mahr is both a legal and religious obligation, which is forced upon the husband after marriage (Zamani Darmazari 2005). The couple can agree upon the amount (and the

92 There is a wealth of information on mahr in Farsi see for e.g.: Emami, S. H. (1993). Civil Law. Tehran, Islameyeh Bookshop; Safai, S. H. and A. Emami (1995a). Family Law: Marriage and Divorce. Tehran, Tehran University; Pouladi, E. (2004). Dowry (Mahr) and it's adjustment: Calculation of dowry based on the rate of the day of payment. Tehran, Dadgostar; Zamani Darmazari, M. R. (2005). A Practical Guide to Dowry Collection. Tehran, Behnami; and,

Erfani, T. (2008). Mahrieh in Jurisprudence. Tehran, Javdaneh. 175 form of mahr either when they are being wed or any time after that (Zamani Darmazari 2005). Article 1079 of the Civil Code states:

‘Mahr should be specified between the couples in a way so that there wouldn’t be any ignorance towards it’ (1928 (last amended 1985) ).

Therefore, anything which is of monetary value, can be owned by the wife (1928 (last amended 1985) Article 1078), can be sold or exchanged, and the husband is able to surrender to the wife can be chosen as mahr, as long as it has been clearly defined and identified (Emami 1993; Katouzian 1996; Erfani 2008). While the term mahr has been defined here in general terms, it will be studied in more detail in further sections, where it is more relevant.

7.2.2 Rejiyah, bain, khul’, and mubarat divorce In Iran there are two forms of divorce rejiyah93 (revocable) and bain (irrevocable). A rejiyah divorce is a form of divorce in which the husband may return to the marriage ruju within the eddeh94 period. Upon the husband’s renouncement of his will to divorce and his return to the marriage in the rejiyah divorce, the divorce would then be void. The wife’s consent is not required for this ruju (1928 (last amended 1985) Article 1148). Eddeh is a waiting period in which after the termination of a marriage, women cannot remarry. This period is three menstrual cycles or three months (if the wife has gone through menopause). However, this waiting period in a temporary marriage, in cases where the wife is not pregnant is 2 menstrual cycles, or 45 days (if the wife has gone through menopause). In both permanent and temporary forms of marriage, if the wife is pregnant this waiting period is until the wife has delivered (1928 (last amended 1985) Articles 1150-1153).

According to the Civil Code of the Islamic Republic of Iran: ‘A bain (irrevocable) divorce takes place in the following instances: 1. When the marriage has not been consummated; 2. When the wife has reached menopause; 3. In khul’ or mubarat divorce, as long as the wife has not asked for the consideration to be returned;

93 Also known as raji. 94 Also known as idda. 176

4. After a third successive divorce, regardless of whether this has been due to the husbands renouncement of his will to divorce or has been a result of a new marriage between the couple’ (1928 (last amended 1985) Article 1145).

A khul’ divorce is a divorce in which due to the extreme dislike which the wife feels towards her husband she offers him an amount of her mahr or any other monetary consideration, in order to attain a divorce (1928 (last amended 1985) Article 1146). If the husband does not consent to this divorce, then upon the wife providing valid reasons, the court may grant her divorce on her husbands’ behalf (Mir-Hosseini 2002). If the extreme dislike is mutual among the husband and wife the divorce is referred to as mubarat (1928 (last amended 1985) Article 1147).

Although discrimination against women exists all over the world what makes the case of Iran and other similar Muslim countries interesting as Roudi points out, is that these gender discriminations have been codified and are reflected in the laws and within the legal system (Roudi 2009). Some areas which these discriminations are apparent and are of importance to the current study are in marriage, divorce and the rights and obligations resulting from such institutions.

In order to fully comprehend the environment in which the rights and obligations have been placed the law of marriage and divorce within the Islamic Republic of Iran needs to be set out.

7.3 Marriage and divorce in the Islamic family law of Iran As Htun and Weldon argue, family law helps shape social identities. Family law defines the legal rights and obligations and the power relations between men and women. These status differences then influence men’s and women’s opportunities both within the private and the public domain. Therefore, family law ‘is one of the central institutions of gender’ (Htun and Laurel 2011:2). Studying family law also enables us to understand how States deal with gender issues, including women’s rights and ultimately IPV (Hajjar 2004).

Htun and Weldon state that traditionally family law was consisted of rules governed by traditional authorities. Until today this practice is in effect in many divisions of the population of various countries in which family issues are not dealt with by the State

177 law but are referred to the traditional authorities who then apply the religious and cultural customs of the given society (Htun and Laurel 2011:6).

With changes in culture and society95 and advances in technology, new issues emerge which require the attention of family law. As a result family law is continuously changing in order to correspond to constant social changes. During the 20th century the family law of many countries worldwide were reformed to support sex equality by eliminating religion and patriarchy. Feminist movements along with other reformers have played a very important role towards the modification of family law and the introduction of policies to prevent VAW in many countries. When VAW became a human rights issue it further encouraged local feminist efforts. These movements have managed to uphold and promote change even in very adverse circumstances (Htun and Laurel 2011).

On the other hand, governments in some countries remained resistant to change. Many of the Middle Eastern countries are among this group. In these countries family law is highly influenced by religion. In countries where family law is inspired by religion and in countries where State and religion have not been separated,96 family law often opposes women’s rights. The family law of many countries including the classic Islamic law supported (and still to a great extent support) the concept that men are the head of the family and therefore encouraged patriarchy (Htun and Laurel 2011).

Nonetheless, this does not mean that egalitarian family laws are necessarily protective of women’s rights. Htun and Weldon argue:

95 Historically sexual relations out of marriage were taboo. However, Fehlberg and Behrens state as a result of social and cultural changes today the family law in many Western countries sees to issues of domestic violence or intimate partner relations which take place out of marriage Fehlberg, B. and J. Behrens (2008). Australian Family Law: The Contemporary Context. Melbourne, Oxford University Press. Therefore, today those in intimate relations out of marriage have not only been acknowledged by the legislator but in many countries enjoy the same rights as those who are married. This shows the strong role that socio-cultural factors play. It also reveals that laws need to be

modified to respond to the new social needs. 96 See Chapter Six. 178

‘Though egalitarian family law tends to correlate with greater State control (as opposed to religious control), this does not imply the State is always good for women’s rights. States with democratic polities, free civil societies, and autonomous feminist organisations are preferable to authoritarian States whose interest in women’s rights is driven by other goals or mere convenience. What’s more, State codifications of family law were often as discriminatory as those of a more explicitly religious nature. The Swiss Civil Code and the Turkish Code that copied it - adopted in 1907 and 1926 respectively - were both secular and sexist. Women’s legal status in those countries differed little from the Shariah laws codified around the same time in Egypt.

Nor is religion always bad for equality. Religious perspectives on women’s rights vary depending on who is talking on behalf of religion. Is it a small group of old men? Or does the religion and culture honour spaces for reflective deliberation by all participants about its traditions? The correlation between religious control and discriminatory law is more a function of organisational hierarchies and sexism within the religion than innate doctrines or traditions. The interpretation of religious doctrine depends on who is at the helm’ (Htun and Laurel 2011:8).

Anyhow, even though some Muslim countries have been moving towards egalitarian family laws in the past few decades, Iranian and Indonesian laws have become more restrictive as a result of the Compilation of Islamic Laws in Indonesia (Htun and Laurel 2011) and the Islamic Revolution in Iran (Zolan 1987; Amuzegar 1991; Moghadam 2002; Mir-Hosseini 2009; Axworthy 2010; Htun and Laurel 2011).

7.3.1 Islamic family law The first Islamic family law was the Ottoman Law of Family Rights (1917) which established civil marriage and required marriage to be consensual. It also provided women more rights of divorce (Kandiyoti 1991) as cited by (Htun and Laurel 2011). Many Muslim countries were later inspired by this law and began to codify the family law issues (which until then were dealt with through religious authorities), and in many countries reforms were made to women’s rights of divorce. Also, many countries placed age restrictions and registration requirements on marriage (Htun and Laurel 2011).

Islamic family law, as Mir- Hosseini argues is a product of ‘political, economic, social and cultural forces’ (Mir-Hosseini 2009:28) and is ‘the product of socio-cultural assumptions and juristic reasoning about the nature of relations between men and women’ and are therefore manmade (Mir-Hosseini 2009:24). Due to different social and

179 economic and cultural circumstances the Islamic texts are interpreted differently which then result in varying laws in different countries (Hajjar 2004).

Mir-Hosseini states that there are two groups of legal rulings or ahkam. One of these groups deals with spiritual acts ibadat and there is a limit as to how much the jurists can interpret and change these rulings. The other group deals with contracts, transactions and human relations mu’amalat. This area is open to the jurist’s interpretation and rationalisation. Considering that societies change and evolve there is a constant need for the reinterpretation of this group of laws (Mir-Hosseini 2009).

Family law is an area in which jurists’ interpretations play a very important role. Considering the cultural, political and social changes which are taking place in many of the Muslim countries, Iran being one, it would seem that a reinterpretation of Islamic family law is both possible and required not only to provide equal rights and obligations for women in various aspects of their family life, but also for men regarding in order to correspond to the changes in gender roles.97

As we have seen in Chapter Six, in 1967 the FPA was passed in Iran and was further revised in 1975. This law provided equal rights for women with regards to divorce, child custody, raised the age of marriage and limited the husband’s freedom in divorce (Amuzegar 1991; Halper 2005; Bahramitash and Kazemipour 2006; Htun and Laurel 2011). With the Islamic revolution in 1979 family law in Iran became more restrictive since it returned to Sharia law. As a result many of women’s achievements during the shah era, which were reflected in the FPA, were reversed (Moghadam 2002).

The Constitution of the Islamic Republic of Iran promises to protect the sacredness of the family. However, Mir-Hosseini argues that by returning to Sharia law and the rights which are given to men through the Islamic family law, such as polygamy or his unlimited rights to divorce, the sanctity of the family is in no way protected (Mir- Hosseini 1996a) as cited by (Moghadam 2002: 1145).

The Constitution has also promised equal rights. Nonetheless with the current legal arrangements which promote roles of motherhood and domesticity for women (Mir-

97 This will be seen to in more depth in Chapter Eight. 180

Hosseini 2009) and the head of the household for men, equality seems to have no place in the current laws of Iran. In the 1990s women were once again granted more rights such as more employment opportunities, equal pay, more rights to divorce and alimony (Moghadam 2002), the ability to insert certain conditions within the marriage contract and other rights. However, these legal changes do not mean that today men and women enjoy equal rights, and the current family law has also failed to deliver the equality promised by the Constitution, as we will study below.

7.3.2 Marriage laws in Iran and men’s and women’s rights and obligations Classic Muslim jurists were unanimous regarding the purposes of marriage which were: ‘the gratification of sexual needs, procreation, and the preservation of morality’ (Mir- Hosseini 2009:31). Any matters which provided or pursued these purposes were duties to which each spouse was compelled to abide by and the jurists have categorised these matters as the laws of matrimony (Mir-Hosseini 2009).

In Islam, and correspondingly in Iran marriage98 (temporary or permanent) is a contract which can take place only between a man and a woman. This contract entails both financial and non-financial rights and obligations (Emami 1993; Katouzian 1996). Marriage is formed by ijab an offer made by a woman makes and ghabool acceptance by the man (Emami 1993; Katouzian 1996; Mir-Hosseini 2009) (Halper 2005).

As a contract, the parties to marriage are required to have the general qualifications of those who want to sign a contract (with minor differences) meaning they have to be mature, have intention (not to have been forced) and to be sane (1928 (last amended 1985) Article 1064). However one issue which is of great concern is that based on Article 1041 of the Civil Code (1928 (last amended 1985) ) maturity age has been considered 13 for girls and 15 for boys and even before that if their legal guardian finds it to be in their benefit and the court agrees they may be wed. A further issue is that they may be wed to a person who is over 18 and there are no legal restrictions in this regard. Forced marriage can result in emotional, psychological (Hajjar 2004) and sexual forms of abuse.

Even though it has been stated in the Civil Code of the Islamic Republic of Iran that the wife and husband are obliged to treat each other with respect, some of the existing laws

98 See Chapter Two for definitions on permanent and temporary marriage. 181 provide certain rights or obligations to the parties of the marriage contract that contradict this stipulation (Mir-Hosseini 2009). Upon marriage the wife ‘comes under the husband’s isma- which can be translated as authority, protection and control’ (Mir- Hosseini 2009:31). The man is considered to be the head of the household (1928 (last amended 1985) Article 1105) (this is due to interpretations of 4:34 of the Quran). As a result different roles are envisaged for husbands and wives. The role of head of the household is not only a right but a responsibility bestowed on men, therefore the couple cannot contract out of this responsibility other than in cases which the law has permitted (Katouzian 1996). With being the head comes various rights and obligations for both husbands and wives:

7.3.2.1 Obedience (Tamkin) The wife has an obligation to obey her husband as the head of the household. Katouzian states that this obedience operates at two different levels, general obedience or tamkin e aam and specific obedience or tamkin e khaas. General obedience is to respect and respond to the expectations which the husband has of his wife as is customarily and legally accepted. The social status of the wife and husband should be considered in order to see if these expectations are reasonable (Katouzian 1996).

Upon marriage a husband can control his wife’s movements. This includes any religious acts which she intends to participate in and exceeds those which are obligatory, her right to work, to leave the house (Mir-Hosseini 2002; Mir-Hosseini 2009) and to travel abroad. A husband can require his wife not to socialise with certain people who he considers inappropriate (Katouzian 1996) and the wife is obliged to obey. In many countries the control which the husband legally exerts over his wife would be considered as spiritual, economic, social and emotional forms of abuse.99

Article 1117 of the Civil Code allows a husband to ‘prevent his wife from occupations or technical work which he finds to be incompatible with the best interests of the family or against the dignity of either spouse’ (1928 (last amended 1985) ). Therefore, if he considers the job to be an impediment to her role as a wife or mother he can prohibit her from that job. This then creates further financial dependency on the husband and as we have seen, financial dependency allows for further restrictions and control over the wife.

99 See Chapter Two. 182

As we have seen in Chapter Two, a definition provided for economic violence was that by the United States Department of Justice (2011) which defines economic violence as: ‘…making or attempting to make an individual financially dependent by maintaining total control over financial resources, withholding one's access to money, or forbidding one's attendance at school or employment’.

Based on the above definition, the husband’s right to prevent his wife from employment can be regarded as a form of economic abuse.

Specific obedience on the other hand refers to the wife’s’ obligation to submit to her husband’s sexual demands unless she has a legitimate excuse mane mashro (1928 (last amended 1985) Article 1108; Katouzian 1996). Marital rape is not acknowledged within this system. By signing the marriage contract the wife has agreed to sexual intercourse and unless there is a physical or a legal barrier she must submit to her husband’s sexual demands even if she is emotionally not willing to do so. In many modern systems as we previously saw and as Hajjar rightly indicates this could involve marital rape100 (Hajjar 2004) in other countries. However in Iran not only is marital rape not legally recognised but the wife’s disobedience, including resistance towards sexual intercourse within marriage can result in the husband legally withholding his financial obligation of paying support and alimony until the wife submits to his demands (1928 (last amended 1985) Article 1108). Hajjar argues: ‘Marital rape is another form of domestic violence for which justification on the basis of shari'a can be found. because sexual access is deemed elemental to the marriage contract. Under shari'a, there is no harm-and thus no crime-in acts of sex between people who are married. Thus, marital rape is literally "uncriminalizable" under dominant interpretations of shari'a. For example, Sura 2, Verse 223, provides a Qur'anic basis for men's unabridged sexual access to their wives. This verse stipulates that "your wives are ploughing fields for you; go to your field when and as you like." Although other Qur'anic verses and hadith instruct men not to force themselves sexually upon their wives, this tends to be undermined by the principle of female obedience... (Hajjar 2004:11).

Apart from being a form of IPV (Hajjar 2004) which is sexual violence this is also a form of emotional and psychological abuse.

100 See Chapter Two. 183

Obedience, which is based on Tohid, the one-ness of God, is meant for only God and no human should expect such obedience (Badran 2006; Htun and Weldon. S. Laurel 2010 b). To expect women to be obedient towards their men would render the women as ‘second- class’ khalifa, which is the trusteeship of God to humankind regardless of their gender, sex, race (Htun and Weldon. S. Laurel 2010 b). As a result, a wife’s obligation to be obedient towards her husband makes husbands seem like virtual Gods (Badran 2006).

7.3.2.2 Financial rights and obligations We saw that the right to be obeyed (obedience) by one’s wife is a right which a man gains through marriage. In return for this obedience the wife has the right to alimony101 (Mir-Hosseini 2009). However, this is only a right which a wife gains if she has entered a permanent marriage102 (1928 (last amended 1985) Article 1106). In a temporary marriage a wife is only entitled to alimony if it has been agreed upon (Ramazani 1993). However, a husband’s financial obligations are not limited to alimony, as we will further see.

7.3.2.2.1 Alimony Article 1106 of the Civil Code considers it to be the husband’s responsibility, within a permanent marriage, to pay his wife alimony. If a husband does not fulfil this responsibility he can be penalised under the Iranian Criminal and the Civil Codes. This is the case even if the wife has the same or greater income than the husband, since a wife is not responsible for paying alimony to her husband (Safai and Emami 1995a)

Article 1107 of the Civil Code describes the wife’s alimony: ‘A wife’s alimony consists of house, clothes, food and furniture, medical and sanitary expenses that are compatible with the woman’s status, also a maid in cases where the wife is used to having a maid or requires one due to sickness’ (1928 (last amended 1985) ).

Alimony includes but is not restricted to the items mentioned in this quote; any other normal expenses which a wife may have will also be included in the alimony (Safai and

101 Since the majority of the sources on Iran have used the term alimony as opposed to spousal support or maintenance, this term will be used with regard to Iran. This will also further distinguish Iran from Western societies in which the term spousal maintenance has been used in this thesis. 102 See Chapter Two for definition. 184

Emami 1995a). This has been stated in one of the rulings of the Supreme Court, in which it was ruled that if a woman is accustomed to having a maid or to spending a lot of money (more than average) on household expenses or food, her husband is required to provide that amount for her in order to satisfy her needs (Kamangar 1954).

Therefore, alimony includes all expenses which a wife may have by taking into consideration her physical and emotional needs, her upbringing, standard of living and the environment in which she lives in. Hence, the wife’s status should be taken into account when deciding on the amount of alimony (1928 (last amended 1985) Article 1107). Nonetheless, Katouzian argues that since the husband and wife are establishing a family together both their status should be taken into consideration when deciding on the amount of alimony to be paid (Katouzian 1996).

Katouzian argues that the alimony which the husband gives to his wife becomes her belonging. Therefore, if he buys her gold or clothes they continue to be her possessions even if they happen to divorce. Women also have the right to use their own money; this includes money which they had before marriage and the money they earned after they were wed, in any way they desire. They also retain any rights they have to their property and these rights are not transferred to the husband (Katouzian 1996).

After marriage the wife must reside in the house which the husband has chosen, unless they have agreed otherwise (1928 (last amended 1985) Article 1114; Emami 1993; Safai and Emami 1995a; Katouzian 1996). The husband cannot abuse his right of choosing the residence and must choose a house which complies with his wife’s status (Katouzian 1996). However, according to Article 1115: ‘If the husband and wife living in the same house entails the risk of bodily injury or financial damage or injury to the wife’s dignity, [for instance the husband is a drug dealer which could damage the wife’s reputation if they were to live in the same house] the wife may choose a separate residence to that of her husband. If the wife is able to prove she is at risk, she not only need not return to the house, but for the period of time that she has been permitted by the court to live in the separate dwelling, the court will order the husband to pay her alimony’ (1928 (last amended 1985) Article 1115).

Based on Article 1111 of the Civil Code if the husband does not pay alimony the wife can take her case to court. Once proven, the court will then calculate the alimony due and make the husband pay the due amount (1928 (last amended 1985) ). If the husband, having the money, refrains from paying his wife’s alimony in cases where she has the

185 right to be paid (obedience, and permanent marriage) based on article 105 of the Islamic Penal Code of Iran the court can sentence him to up to 74 lashes (1991). Also, if the husband refuses to pay alimony or when the husband cannot afford alimony, the court upon the wife’s request will order the couple to divorce (1928 (last amended 1985) Article 1129). This continues to be the case even if his wife is affluent (Safai and Emami 1995a).

Alimony is considered to be a debt owed to the wife. Therefore, a wife can ask not only for the payment of the previous alimonies which the husband has failed to pay but also for the future alimony (in cases where the husband faces bankruptcy). The husband will then be required to pay (1928 (last amended 1985) Articles 1111,1206).

One important aspect of the wife’s alimony is that if the husband dies or becomes bankrupt his wife’s alimony would take precedent over all his other debts (Katouzian 1996). However, a woman will only receive alimony for the period of time that she is married to her husband. Once they are divorced or the marriage is annulled, for any reason she will only receive alimony if she is pregnant with her husband’s child. Also in cases where the divorce is rejiyah, and the rejiyah divorce has not been a result of the wife’s disobedience noshooz the wife is entitled to alimony. Even in these situations, only during the period in which the woman cannot remarry eddeh or idda is she entitled to alimony (1928 (last amended 1985) Article 1109). In a bain divorce the wife is no longer entitled to alimony.

In certain cases men are also obliged to pay alimony to their blood relatives. 103 However unlike the alimony which should be paid to the wife, a man is only responsible to pay alimony to his relatives in cases where the relatives are underprivileged and the man has money to offer (1928 (last amended 1985) Articles 1197, 1198). When calculating a wife’s alimony the husband’s wealth will not be taken into consideration, whereas the relative’s alimony will be calculated with relevance to the husband’s wealth (Emami 1993; Katouzian 1996). He will be responsible for paying only to the limit where it does not cause him any hardship (1928 (last amended 1985) Article 1198).

103 See further in Farsi Emami, S. H. (1993). Civil Law. Tehran, Islameyeh Bookshop; and, Safai, S. H. and A. Emami (1995b). Family Law: Parent, Parentage and its Effects. Tehran,

Tehran University. 186

If a man is unable to pay alimony to both, his wife and his relatives (blood relatives), his wife’s alimony is to be paid first (1928 (last amended 1985) Article 1203). A wife is also able to claim her unpaid alimony (any previous alimony that has not been paid) by taking her case to court while the relatives can only claim their current alimony (1928 (last amended 1985) Article 1206).

Apart from alimony a husband has other financial obligations towards his wife, which he is obliged to fulfil upon the wife’s request.

7.3.2.2.2 Ojrat ol mesl and Shir baha

As a result of Iranian women campaign for ojrat ol-mesl which is wages to be paid to the wife for carrying out housework, in 1992 a law was passed and ojrat ol mesl was established. Islamist women’s argument were that women who conduct housework are entitled ‘to the fruit of their labour on the grounds that Islam is against exploitation, but that for centuries women have been denied this basic right’. They then argued that all women work at their husband’s houses therefore they are entitled to compensation for their labour and provided Quranic verses to support their argument (Hoodfar 1999).

Although the Islamic parliament and conservative religious leaders were initially opposed to the bill since they found it to be ‘an unconventional interpretation of Islamic law’, however without evidence for it being un-Islamic, the bill was finally passed. This has provided wife’s with a tool to negotiate the terms of their marriage and divorce with their husband’s (Hoodfar 1999). Hoodfar further states:

‘Nonetheless to most women, it is the symbolic and ideological value of this law that is significant. It stresses to society and to women themselves that their labour should not be taken for granted. More importantly, it demonstrates that there are many possible and unconventional interpretations of Islamic texts that have not yet been explored’ (Hoodfar 1999).

As a result, today since housework is not considered a wife’s duty a wife may ask for a wage in return for carrying out any work within the house ojrat ol mesl (Al-Hibri and El Habti 2006; Mir-Hosseini 2009) and a husband cannot refrain from paying alimony if his wife does not do any housework (Dezhkhah 2007). In addition, a husband cannot divorce his wife before paying her for her labour which she has carried out within the house during their marriage period (Hoodfar 1999).

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In evaluating the ojrat ol mesl the court will take into consideration the years the couple have spent together, the work she has done at her husband’s house and the ex- husband’s income (Safai and Emami 1995a; Halper 2005). A review of 79 rulings of the court in Ahwaz revealed that in 2007, in 62 cases the court had set an amount to be paid by the husband in return for the wife’s work within the house (Dezhkhah 2007).

Based on Article 1176 of the Civil Code of the Islamic Republic of Iran: ‘A mother is not obliged to breast feed her child, unless her child’s nutrition is solely dependent on the mother’s milk’ (1928 (last amended 1985) ).

Since the mother is not obligated to breast feed her child she can ask for money in return if she does choose to breast feed her child (Mir-Hosseini 2002). Upon the wife’s request the husband is then obliged to pay. This is referred to as shir baha. In this case if the child has any belongings, the mother will be paid from those belongings, otherwise the father would have to pay the mother from his own money. If the father does not have enough money to pay the mother then the father’s father or grandfather would have to pay the mother (1928 (last amended 1985) Article 1199). In cases where the father’s father or grandfather are also unable to pay the mother, the mother either has to breast feed the child for no payment or would have to make other arrangements for the child to be fed. Where the mother is obliged to breast feed her child the question of whether she can still ask for compensation or not remains. From what has been gathered from the Islamic clergies and the Civil Code, it could be said that the mother can still ask for compensation and she should be paid if possible (Safai and Emami 1995b).

As mentioned earlier, a wife who has entered a temporary marriage is only entitled to alimony if this has been agreed upon or her right to alimony has been the basis on which marriage has taken place (1928 (last amended 1985) Article1113). However, in order for a temporary marriage to be valid, the husband must provide the wife with mahr, and any agreement against that, renders the marriage void (1928 (last amended 1985) Article 1095).

7.3.2.2.3 Mahr and its different forms As explained earlier, mahr is a monetary obligation bestowed on a man which he agrees to pay to a woman upon marriage. As soon as the couple are wed the wife can ask for the mahr anytime she decides, however she can only own half of the amount of the

188 mahr. In order for her to own the whole amount the marriage must have been consummated (1928 (last amended 1985) Articles 1082,1092).

The amount and form of mahr can either be chosen by both parties to the marriage or it can be agreed that either the man or the woman or a third person choose the mahr. In such cases if it has been agreed that the man or a third person is to choose the mahr they can choose the mahr any amount they decide. On the other hand, if the woman is to choose the mahr she is not permitted to choose more than mahr al mesl (defined below) or its equivalent (1928 (last amended 1985) Articles 1089,1090).

It is possible for the couple to agree that the mahr (is to) be paid in whole on a certain date or they can arrange for it to be paid in instalments (1928 (last amended 1985) Article 1083). In cases where the husband has given more than half the mahr to the wife before they have consummated the marriage if the husband then divorces her his wife is obliged to return any amount she has received which exceeds half the mahr (1928 (last amended 1985) Article 1092)

Article 1085 of the Civil Code states: ‘In cases where the mahr can be claimed and received at once, the wife can refrain from conducting any responsibilities which she may have [we discussed these responsibilities under obedience] towards her husband until she receives her mahr, this will not interfere with her right of receiving alimony’ (1928 (last amended 1985) ).

This right only exists if the wife has not already voluntarily conducted some of the responsibilities that she may have. If she has already commenced performing her duties as a wife then she can no longer refer to the Article 1085 and to refrain from her duties. Either way, even if the wife refrains from her responsibilities after having voluntarily conducted some she can still claim her mahr at any time (1928 (last amended 1985) Article 1086). Depending on the way mahr is chosen there are different forms of mahr:

7.3.2.2.3.1 Mahr al mosama

This form of mahr is the one that the couple agree upon the amount of mahr or they choose a third person to specify the amount of mahr. The mahr is agreed upon either at the time of the wedding or after that. There is no limit to how much the mahr should be, but it should be something of monetary value which could be owned by the wife and could be given by the husband (Pouladi 2004). This mahr can be money or a valuable item such as a car, house, etc. It can also be the interests obtained from a certain 189 property for example, the rent of a house or land. The mahr can even be a work which the husband can carry out and has financial benefits for the wife such as teaching music or English to the wife. Mahr can be in the form of a right. For instance, if the husband has certain rights in something he can transfer those rights to his wife, or if someone owes him money he can transfer that right to his wife and she will be the one to whom the money is owed (Zamani Darmazari 2005).

7.3.2.2.3.2 Mahr al mesl Mahr al mesl is given to a wife in cases where the couple have not agreed on the mahr at the time of the wedding and a third party has not been nominated to choose the mahr (Erfani 2008) and after the wedding when the couple have consummated the marriage (1928 (last amended 1985) Article 1093). Also, in cases where one of the conditions of the wedding has been that the wife does not receive any mahr, or the mahr has not been mentioned during or previous to the wedding (Zamani Darmazari 2005), mahr al mesl is applicable. This is also the case when the agreed mahr is invalid due to it not having any monetary value or it has not been specified in way to erode all ignorance towards it then the wife would be given mahr al mesl (1928 (last amended 1985) Article 1100). Another ground for which the wife will be given mahr al mesl is: ‘In cases where the woman is not aware that the marriage has been void and submits to sexual intercourse then she will be given the mahr al mesl’ (1928 (last amended 1985) Article 1099).

According to Article 1091 of the Iranian Civil Code: ‘when deciding on the amount of the mahr al mesl the woman’s situation regarding her family honour and her other characteristics and status in comparison to her relatives and close ones and also the norm of her neighbourhood and family should be taken into consideration’ (1928 (last amended 1985) ).

7.3.2.2.3.3 Mahr al mot’a

According to Articles 1093 and 1094 Civil Code if the mahr has not been mentioned in the wedding documents and the husband decides to divorce his wife after marriage but before they have agreed on the mahr and before they have consummated the marriage then the wife is eligible for mahr al mot’a. In deciding on the amount of mahr al mot’a the husbands’ wealth will be taken into consideration (1928 (last amended 1985) ). However, under certain circumstances the wife will not be given the mahr al mot’a. For example, when one of the couple dies or when the wife asks for a divorce or when the wife has annulled the marriage (Erfani 2008).

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7.3.2.2.3.4 Mahr al sonah

This is the mahr which the prophet Mohammad chose for his wife Fatimah. This amount is equivalent to 500 dirham’s today (Zamani Darmazari 2005).

Considering the Iranian divorce laws, which we will see to below, mahr can provide women with a form of protection towards the husband’s unlimited rights to divorce. Mahr would also act as a barrier to men exercising polygamy. Also for those women who do not have an independent source of income mahr can provide them with some form of financial security.

The issues that rise out of the financial rights and obligation of couples within marriage are the topic of in depth discussions which I will see to in the next chapter. Here it will suffice to say that mahr does not always accomplish its main goal which is to provide women with security and to strengthen marriage, by acting as a barrier to divorce. In many cases women would use their mahr as a negotiation tool to obtain a divorce (khul’ divorces) (Mir-Hosseini c.1999). Therefore, as Ramazani states, in many cases women do not get any of their mahr upon divorce. However, the situation has improved since the shah era, with 50% of women in Shiraz forfeiting their mahr in 1976, which then declined to 38.7% in 1981 (Ramazani 1980).

While mahr does not guarantee women’s financial security upon divorce, with high amounts of mahr being considered a form of social prestige (Erfani 2008) it also places men in a financial disadvantage once the marriage faces tension. The number of men being imprisoned for failure to pay mahr was 2000 people in 2010 which by June 2011 had risen to 3,117 (55% increase). One reason for that is that women are choosing large amounts of money as their mahr, such as gold coins equal to the number of the year in which they were born, or they are choosing illogical mahrs which the husband is unable to pay (Alborz Professional News Site 2011). These problems have caused many to fear marriage (Yong 2010).

While mahr provides women with some amount of protection, nonetheless, as we will see below, Iranian women can better protect their rights by stipulating their own conditions within the marriage contract Shoroote Zemn Aghd, to supplement State laws. 191

7.3.2.3 Conditions within the marriage contract- prenuptial agreements Under Islamic law parties to a marriage contract can agree on certain conditions to be written within the contract (1928 (last amended 1985) Article 1119) in order to change the effects of that contract. This is referred to as shoroote zemn aghd or conditions within the marriage contract. Even though these conditions can be stipulated separate to the marriage contract or within the marriage contract, nonetheless, they are referred to as conditions within the marriage contract due to the fact that some have to be stated within that contract in order to be enforceable (Katouzian 1996).

There are limits as to the conditions that can be inserted within a marriage contract (Katouzian 1996). This means that there are terms and conditions that are void. Void conditions are those which are incompatible with the nature of the marriage contract (1928 (last amended 1985) Article 1119). For instance, in a temporary marriage the husband is only obliged to pay alimony if the parties have explicitly agreed to it (1928 (last amended 1985) Article 1113). However, in a permanent marriage the couple cannot agree for the husband not to pay alimony (Katouzian 1996).

Generally the conditions within the marriage contract can be categorised into two groups: 1. Conditions which are correct and enforceable; 2. Conditions which are void. Conditions that are void can be further divided into two groups: a. Void conditions which render the entire marriage contract void b. Conditions which are void but do not render the marriage contract void (Emami 1993; Dezhkhah 2007).

For a condition within a marriage contract to be correct and enforceable it should have certain specifications which are: ‘The condition should be possible to do, it should encompass a logical profit and should entail some form of benefit, it should be legal and it should not be contrary to the requirements of the contract’ (Dezhkhah 2007:2).

Failing to comply with the first three conditions (be possible to do, encompass a logical profit and to entail some form of benefit) results in the condition being void but it does not affect the contract, and the contract continues to be enforceable; however failure to comply with the last two conditions (be legal and not be contrary to the requirements of the contract) results in the marriage contract to be nullified (Emami 1993; Dezhkhah 2007).

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Among conditions which are correct and enforceable are those suggested by the Iranian Judiciary, for women to include into their marriage contract in order to best protect their rights. These conditions as stated in Aftab News are:  The right to education to the extent which the wife considers required and in any place which the circumstances may lead to;  The right to work in any occupation the wife wishes and in any place which the circumstances may lead to;  The right to exit the country whenever the wife desires without any further permission required by the husband and this permission should be irrevocable. What’s more, the destination, period and conditions of this trip should be left to the wife’s discretion;  Equal division of property (moveable and immoveable) which has been obtained during the marriage, after the marriage has come to an end. This applies regardless of who has filed for the divorce (be it the wife or the husband);104  Complete irrevocable delegation to be given by the husband to the wife in order to obtain any form of divorce by the wife at anytime she desires, whether by receiving mahr or not. The wife should also stipulate that she could delegate this right to a third party so that the third party could obtain a divorce on her behalf (Aftab News 2006).

If the wife can prove to the court that the continuation of the marriage would cause hardship and detrimental conditions (including abusive behaviour), the court would force the husband to divorce his wife, or if forcing the husband is not possible the court would issue the divorce (1928 (last amended 1985) Article 1130). Nonetheless, in order to best protect herself the wife can insert conditions stating that if the husband

104 Marriage contracts in Iran are pre-printed forms which are available at the marriage and divorce registry offices. In the current marriage contracts this condition has been stipulated. However, for the wife to be entitled to half of the property under the current clause the wife should not have been the one filing for divorce, she should have carried out her obligations as a wife and she should not have conducted an unethical behaviour which would have led to the divorce. What’s more, it is left to the courts discretion to judge whether these conditions have existed or not. By inserting a condition as stated above the wife can better protect her rights and enjoy a more equal status to that of the husband Aftab News (2006). Six Conditions Within

the Marriage Contract for Women, Aftab News. 193 perpetrates certain forms of abuse, or that if the husband is abusive in general in a manner which renders married life intolerable, after proving her case in court, she would have the right to obtain a divorce (1928 (last amended 1985) Article 1119).

Many of these conditions which could be stipulated within the marriage contract have now been incorporated within the pre-printed marriage contracts. In this way women have gained awareness of their rights. Considering that the laws in Iran are in many ways discriminatory against women, these conditions provide women with the chance to protect many of their rights and protect themselves from various forms of abusive behaviour which may occur as a result of marriage. In summary, women can secure a more equal status to men in marriage and divorce through the use of these conditions.

The conditions are enforceable once both parties sign the contract in which they are included. As we will further see in the next chapter, in light of the changes which have occurred and continue to take place in the Iranian culture and in people’s attitudes it is not a surprise that the number of women inserting such conditions, and the number of men signing and agreeing to these conditions is on the rise.

Through these conditions women can secure their rights to education and employment,105 while continuing sole right of their finances. The money which women earn is their money and they can spend it in any way they desire. They have no legal obligation to contribute to the household income and maintain their right to alimony. Men on the other hand, must continue paying alimony, regardless.

However, given the limits as to what conditions are accepted by the judiciary and what conditions are void, although these conditions provide more protection for women, they do not ensure equality between husbands and wives. Also, different jurists have varying opinions on what conditions are considered to be against the basis and aims of marriage and what conditions are not (Katouzian 1996). This then allows for individual interpretations and opinions to find way in the existing laws.

105 Katouzian is of the opinion that the couple cannot agree on the wife’s freedom to employment if the career is against the interest of the family, Katouzian, N. (1996). Elementary Studies of

Iranian Civil Law: Family. Tehran, Nashr e Yalda. 194

7.3.3 Divorce laws in Iran and men’s and women’s rights and obligations In Iran divorce relates permanent marriage. In contrast only to temporary marriage comes to an end either by the completion of the marriage period, through the husband waiving the remainder of the period or through its annulment (1928 (last amended 1985) Article 1120).

In a permanent marriage, a man has unilateral rights to divorce which he can exercise whenever he chooses. This means that the husband does not need any grounds or his wife’s consent in order to divorce his wife. Mir-Hosseini states: ‘In its legal structure, talaq [divorce] is an act of iqa as opposed to marriage, which is an act of aqd. The difference between the two is that aqd is a type of legal act that requires the consent of two parties, its formula containing offer and acceptance; while iqa is a unilateral act which acquires legal effect through the declaration of only one party; in the case of talaq the husband’ (Mir-Hosseini c.1999:5).

The wife on the other hand can ask the court to grant her divorce if certain conditions exist (Ramazani 1993). Based on Articles 1029,1119, 1129 and 1130 these conditions are: when the husband has been absent for four complete years and there is no knowledge as to his whereabouts; when the husband cannot or would not pay maintenance; in cases where she can prove that living with her husband creates intolerable difficulty and distress for her osr o haraj; in cases where the husband acts against the agreed conditions within the marriage contract in which case the wife would have legal delegation on his behalf to get divorced 106 (1928 (last amended 1985) ). The wife also has the right to khul’ divorce as we studied above.

However, it seems that since the husband has to apply to the court for the grant of a divorce, either way the courts’ permission is required otherwise the divorce is void (Katouzian 1996). The intolerable difficulty stated above is inclusive of (but not limited to) the absence of the husband, addiction, imprisonment and his association with unsavoury people (1928 (last amended 1985) Article 1130).

106 In cases where the husband is impotent, insane or lacks a condition which had been stated in the marriage contract the wife has legal recourse to annulment (not divorce) Emami, S. H. (1993). Civil Law. Tehran, Islameyeh Bookshop; and, Katouzian, N. (1996). Elementary Studies of Iranian Civil Law: Family. Tehran, Nashr e Yalda. 195

After divorce a wife has a legal right to claim compensation for everything she has done during her marriage which was not part of her marital duties or otherwise known as ojrat ol mesl which was studied above. Once it has been proven to the court that the wife carried out certain household chores due to her husband’s request, the court will then, based on the existing documents and the use of experts in the matter evaluate the amount that should be paid to the wife (Safai and Emami 1995a).

Also, the high amount of mahr, which the wife can demand at any time (Emami 1993; Katouzian 1996; Pouladi 2004) and in most cases is an amount which the husband cannot instantly pay, is a barrier to the husband’s free rein in divorce and polygamy. This mahr and the wife’s unlimited right to it (once it has been agreed upon) then provides her with a means of control, with which she can use to dissuade her husband from remarrying or divorcing her or can be used as a means of persuasion with which she can persuade her husband to divorce her (as we saw in the case of khul’) (Mir- Hosseini 2002). Women’s awareness to this issue has led to an increase in the amounts of mahr (Yong 2010). What’s more, in 1997 a law was passed which stated that the amount of mahr is to be indexed to inflation. These financial obligations imposed on men create further discouragement for men to proceed with their unrestricted rights to divorce 107 (Pouladi 2004).

Upon divorce the mother has priority in custody of her children, until the age of seven108 (1928 (last amended 1985) Article 1169). The couple cannot agree against the

107‘Now every divorcing couple are required to go through a process of arbitration. If the arbiters, one chosen by each side, fail to reconcile them, the court allows the man to effect a divorce - which has to be of raji type, only after he has paid his wife all her dues: dower mahr waiting period (idda) maintenance and ujrat al-mithl (domestic wages). The registration of a raji divorce is also made contingent upon the production of another certificate confirming that the wife spent her idda period ... in the marital home and was provided for by the husband’ Mir-Hosseini, Z. (c.1999). "Divorce and Women's Options: Law and Practice in Iran." Farzaneh 7(3). 108 This age was two years for boys; however, in 2003 the Expediency Council raised this age to seven for boys, so that mothers have custody of both their sons and daughters until the age of seven. This raise in the age of boys from two to seven was initially opposed by the Guardian Council, stating that this change was against Islamic law. Nonetheless, through the strong support of the Expediency Council ‘the top arbitration body headed by influential former President Akbar Hashemi Rafsanjani’, this law was passed. Today mothers have custody over 196 custodial rights of the mother (which she has until the age of seven) (Katouzian 1996). However, after the child reaches the age of seven if the father desires, the custody would be transferred to him. Women can negotiate to obtain the custody of their children by relinquishing all or part of their mahr. Also, it could be inserted as a condition within the marriage contract that upon divorce the custody of the children would be with the mother (Katouzian 2000). In any case, even during the period in which the child is under the mothers’ custody child support is to be paid by the father. If the father dies or if he is incapable of paying support and the child does not have any paternal grandfathers then the mother is responsible for paying (1928 (last amended 1985) Article 1199).

Although child custody is not the focus of the current thesis nonetheless it is a very important factor and could act as a great barrier to women leaving an abusive relationship. Child custody is an area which many women have been struggling to reform for many years. Even in cases where the custody is granted to the mother due to the fathers’ addiction to alcohol or drugs, the mother will still lose custody upon remarriage (1928 (last amended 1985) Article 1170; Ramazani 1993). Many social workers, psychologists and even clerical leaders are stating that this law needs to be changed in order to correspond with the existing conditions (Ramazani 1993:418). Kar states: ‘The most effective violence against women is the threat to take the children away and because for women, with the motherly nature, having to endure being away from their children is the worst problem and violence, in many cases they give in. They refrain from discussing their problems with their family let alone the courts’ (Esfandiari 2003a).

Historically, various elements of law and society in Iran, such as the dominant patriarchal attitudes and the existing cultural norms have resulted in women’s human rights being denied (Monshipouri 2004). As we have seen in this chapter these attitudes are reflected today in the laws of Iran under the name of Islam. Mehrangiz Kar (2000) argues that mentalities which regard individualism, equality and freedom as means to defy Islamic family law and Muslim Ummah are mentalities which use Islam as an

both their sons and daughters until the age of seven. This is a significant step towards the protection of women’s rights Khaleej Times (Reuters) (2003). Iranian women win improved child custody rights, Al-Jazeerah. 197 excuse to undermine women’s human rights and therefore these mentalities are the worst adversary of such rights.

It is notable that gender inequality was also (and continues to be) reflected in the Islamic Penal Code of Iran, in which , girls were considered to be of full criminal responsibility once they turned 9 while this age was 15 years for boys (Kar 2000). A woman’s testimony is worth half of that of a man’s testimony; this is also the case with the blood money which is given to the family upon the murder or homicide of a person (a women’s blood money is half of that of a man’s). Under family law women’s share of inheritance is less than their male counterparts,109 and they have fewer rights to divorce. However, here I will only be focusing on those Articles of family law where the rights of men and women are not the same and this difference could lead to intimate partner violence.

In practice, as Mir-Hosseini states, marriage is much more egalitarian than as provided for by law. The unlimited rights of men to divorce and polygamy are under scrutiny and are controlled by the extended family and also through the social disgrace regarding such matters (Mir-Hosseini 2002) which then limits the men’s freedom in divorce. With the changes that are taking place in the Iranian society and culture, it can only be expected that the gap between law and practice to grow.110 This requires that the laws be modified to correspond with the social expectations.

7.4 Conclusion Based on the family law of Iran, husbands and wives do not have similar and equal rights to one another. The husband is bestowed the irrevocable duty of being the head of the household (1928 (last amended 1985) Article 1105). As a result of this arrangement

109 Under Sharia law women’s share of inheritance is less than their male counterparts. This discriminatory law has been justified on the basis that men have to provide maintenance for their spouse, relatives (in some cases) and children. This is while women have no financial obligations. Therefore, men are more justified to inheritance than are women. This issue is of great significance especially in modern days where in many cases women are the sole breadwinner. However, the topic of inheritance is an extremely vast topic that requires in-depth discussions of inheritance laws and Sharia law, which are beyond the scope of the current thesis. 110 This will be examined in the next chapter. 198 husbands have to provide for their wives. The husband can also control his wife’s movements. Wives in return have to obey the husband’s demands (tamkin e aam), including his sexual demands (tamkin e khaas) (Katouzian 1996). These different rights and obligations which are a result of patriarchal interpretations of Islam allow many forms of IPV to be legally carried against women. These include social, spiritual, economic, emotional, psychological and sexual forms of IPV.

On the other hand, wives can ask for money for any household chores which they carry out within the house. They can ask for money in order to breast feed their child. They can also ask for their mahr anytime they desire, and as long as they have obeyed their husband they can demand alimony (Mir-Hosseini 2002), regardless of whether they have independent income or not.

Wives can then use these financial obligations bestowed on their husbands as a means to minimise the risk of being subject to the above forms of abuse. Wives can use all of these financial rights to control men’s unlimited rights to divorce and polygamy. What’s more as Mir-Hosseini argues these financial rights can be used to negotiate the terms of their marriage and to reach a new balance after the marriage is faced with tension (Mir- Hosseini 2002). This is aside from the ability to insert conditions within the marriage contract which provides women with a means to secure these rights. However, with the limits imposed on these conditions they do not provide security in every aspect.

This chapter had set out the different rights and obligations which husbands and wives have towards one another. Inequality of rights and obligations can lead to various forms of IPV taking place against wives. In the next chapter I will look at ways in which this inequality along with socio-cultural changes can allow new forms of abuse to surface.

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8 Chapter 8 – The Effects of Socio-Cultural Changes on Marriage and Divorce in Iran

8.1 Introduction The current situation in Iran with regard to women’s roles and attitude change towards gender equality is in many ways analogous to that in the Western Countries during the late 1960s and early 1970s.111 While the society and culture in Iran is moving towards gender equality the laws remain patriarchal and traditional.112 The change in culture in Iran is evident from the results of attitude surveys113 and statistics which show an increase in divorce rates, decrease in birth rates, increase in women’s participation in labour forces and increase in education participation. Attitude surveys also reveal that an increasing number of men and women are becoming supportive of gender equality. However, many of the laws that are derived from Sharia remain patriarchal and hierarchal and place men and women in unequal positions. Men continue to have a legal role as the head of the household which then requires women to be obedient towards them. As a result, there is a growing gap between the family law (being traditional and patriarchal) and existing societal attitudes (being supportive of gender equality including legal equality) in Iran.

Fehlberg and Behrens state that there is evidence that laws affect and change people’s perceptions and attitudes. Nonetheless, for a law to work it needs to respond to existing attitudes (Fehlberg and Behrens 2008). Eekelaar argues when the existing laws are too inconsistent with social beliefs of right and wrong, they tend to be ignored (Eekelaar 2000) as cited by (Fehlberg and Behrens 2008). This is also the case in Iran with many finding ways to circumvent the existing laws (Mir-Hosseini c.1999) as a way to achieve gender equality.

With regard to States ability to reform laws and to combat IPV Hajjar argues: ‘The prospect of prohibiting and punishing domestic violence depends, foremost, on the state's willingness and capacity to reform criminal and family laws. But the possibility of state-

111 See Chapters Four and Five. 112 See Chapter Seven. 113 See Chapter Three for more information on surveys. 200

sponsored reforms is strongly affected by social beliefs and ideologies about gender and family relations’ (Hajjar 2004:9).

Current beliefs and ideologies in Iran supporting gender equality calls for the State to reform criminal and family laws as a way to combat IPV. However, if the State itself does not recognise certain forms of abuse as IPV, it fails to take steps to fulfil its responsibility to protect people from violence (Hajjar 2004:5). This is also the case when religion is used to justify the unequal and in some cases abusive behaviours between men and women. Hajjar (2004:7) states: ‘Domestic violence is strongly-and directly-related to inequality between men and women. But the contested legitimacy of gender equality impedes or complicates efforts to deal with domestic violence as a social problem in many parts of the world. There is strong and pervasive opposition to the notion that men and women should be equal in the context of the family. The corollary is the belief that domestic relationships are legitimately (i.e., naturally and/or divinely) hierarchical. In Muslim societies, this belief is both derived from and reinforced by shari'a, which tends to be interpreted to give men power over women family members. Thus, gender inequality is acknowledged and justified in religious terms on the grounds that God made men and women "essentially" different; that these differences contribute to different familial roles, rights and duties, which are complimentary; and that this complimentarity is crucial to the cohesion and stability of the family and society’.

Hajjar (2004:4) further argues that while in Muslim societies Sharia is essential ‘for understanding family relations, it does not constitute an explanatory device for the problem of domestic violence’. She states that, violence can be understood through examining ‘the relationship between religious law and State power as it bears on the permissibility or prohibition of violence within the family and the rights of women’.

This chapter proceeds to examine the following matters: the indicators of change in culture in Iran. How these changes in attitudes and culture in Iran have resulted in a discrepancy between the current values and laws. After that I will discuss how this discrepancy between laws and culture are attributable to the policies laid by the IRI. Then I will examine how the existing inconsistency between law and culture has affected marriage and divorce in Iran, and how it leads to IPV. Finally, I will study whether a reinterpretation of Sharia to enforce equality is possible.

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8.2 Indicators of changes in attitudes and culture in Iran We saw in Chapters Four and Five of this thesis the range of factors that have led to changes in women’s roles in the society. Similar changes are taking place in some Muslim countries, with Iran being one of those countries. In Iran, social practices and attitudes are gradually moving towards gender equality. The increase in support for gender equality can be seen in different areas such as the economic roles women play and their participation in political matters, which have resulted in changes to people’s values, demands and expectations. These changes are observable in marriage and divorce trends, and behaviours.

One of these cultural changes is moving from a collectivist society to an individualistic society.114 Moaddel (2008:41) states that ‘the recognition of the individual is a principle feature of modernity’ which reveals the cultural advancement. He has then studied attitudes in Iran to see whether there has been a shift towards different forms of individuality in that country.

8.2.1 Collectivist versus individualistic - changing attitudes In Chapter Four, one feature of Western cultures that was identified is that people within those societies tend to be individualistic while Eastern cultures are collectivist. Each of these cultures encompasses different values, norms and behaviours, one of which is that in a collectivist culture the opinion of others is of great importance and in these cultures relationships are very important, even if they bring more harm than good (Fernandez 2006). This phenomenon affects the way a person behaves. It also affects their expectations of institutions such as marriage, divorce which then influences their perception of and attitudes to IPV.

While going from a collectivist society to an individualistic society can reveal the cultural advancement of that society, Moaddel (2008) claims that changes in values can also be associated with an opposition towards the principles of the State authoritarianism and States policies.

Moaddel (2008:41) states:

114 See Chapter Four. 202

‘Individualism has political, economic, and social dimensions. In politics, it means equality of all political voices, or favorable attitudes toward democracy and gender equality. Economic individualism supports the value of hard work and belief in the work-reward nexus, promotes private ownership of businesses, and stresses individual responsibility over governmental responsibility in providing for personal well-being. Social individualism assumes individual choice predominates in social matters, such as decisions around marriage and child-rearing’.

In his study of attitudes in Iran, Moaddel makes use of two values surveys which were carried out in Iran in the years 2000 and 2005. Both of these surveys used a ‘nationally representative sample’ the first representing 2,532 adults (from all provinces excluding Sistan and Baluchestan and Kurdistan) and the latter representing 2,667 adults (from all provinces) within Iran. Moaddel through examining value surveys, examined attitudes in Iran in order to see whether there has been a shift towards different forms of individualism in Iran (Moaddel 2008:40-41).

He found that while in the year 2000, 53% of people favoured independence as a favourable quality in children this rate rose to 64% in 2005. Also, in 2000 forty one percent of Iranians found obedience to be a favourable quality in children which then declined to 32% in 2005. In both years 71% found religion to be a favourable quality in children, all of which are indicators that the society is moving towards individual autonomy (Moaddel 2008:42).

Another indicator of the trend toward individual autonomy in Iran is the changing attitudes towards marriage. While in 2000, 21% of the respondents found parental approval to be the basis of marriage; this rate had declined to 24% in 2005. Love on the other hand was found to be the basis of marriage among 49% of the respondents in 2000 which increased to 54% in 2005 and if we add those who found having similar goals, ideas and faith, all of which are traits of individual autonomy, to this group then this rate would be 69% for the year 2005 (Moaddel 2008:43).

When asked whether men make better political leaders, 28% of the respondents in 2000 answered yes while this rate declined to 22% in 2005. Also, regarding whether university education is more important for boys than for girls the rate of those who responded yes to this question went from 19% in 2000 to 13% in 2005 (Moaddel 2008:46). Even though in both instances the rate of people who agreed to such

203 statements were low in 2000, by further declining in 2005 it shows that the attitude of people within that society is moving towards gender equality.

One very important indicator of cultural change was that when asked whether a wife must always obey her husband while only 24% of the respondents answered yes to this question in 2000 this rate further declined to 17% in 2005.115 The response varied by age and education with the younger and more educated respondents disagreeing at a higher rate than other respondents (Moaddel 2008:46).116

In another study conducted by Fair and Grammich (2007) the values of U.S. people was compared to Iranians. Grammich and Fair analysed the data provided by the 1999-2004 WVS (mentioned above). They found that when asked when jobs are scarce men should have more right to a job than women 71% (of both men and women) in Iran responded yes to this issue. Again younger age groups and the more educated were less likely to agree with this statement than older and less educated groups (Grammich and Fair 2007:16). The reason for that could be the existing law which find the man to be responsible for the maintenance of his family and who is to be the initial breadwinner. This would also explain the 13% (above), who believed that education was more important for boys than for girls, since many relate higher education with higher pay. Nonetheless, without evidence to support this claim no concrete conclusions can be drawn.

However, the laws regarding spousal support seem to be in contradiction with the existing attitudes considering that 68% of the respondents believe that a husband and wife should both contribute to income (67% of American respondents agreed with this statement) (Grammich and Fair 2007:18).

115 The economic individualism focuses on governmental responsibility versus individual responsibility which is out of the focus of the thesis. 116 See further Moaddel, M. and T. Azdarmaki (2002). "The Worldviews of Islamic Publics: The

cases of Egypt, Iran and Jordan." Comparative Sociology, 1(3-4): 299-319. 204

8.2.2 Education The Islamic Republic made primary school education compulsory. One result of this is that the rate of girls who were enrolled in primary schools in Iran rose from 52% in 1970 to 91% in 2002 (Bahramitash and Kazemipour 2006:118).

Today the number of women attending university in Iran is higher than the number of men, with 70% of Azad University graduates (Harrison 2006) and 60% of all university students being female (Esfandiari 2003b; Bahramitash and Kazemipour 2006:119). Considering the consequences education bears and the liberty it provides women, the increase in women’s participation in tertiary studies (Esfandiari 2003b; Roudi 2009) has begun to startle the authorities (Harrison 2006). This has led some conservatives to push for changes to limit women’s admission to universities or to certain courses (Esfandiari 2003b).

The change in the ratio of men and women attending university has also resulted in considerable change within the traditional male-dominated culture (Harrison 2006). Many women use university education as a reason to delay marriage and to gain more freedom (Esfandiari 2003b). Dr. Said Peyvandi, a social science professor based in Paris, states: ‘The remarkable educational progress of Iranian girls in the last decade should be considered a social phenomenon, because its implications for social relations, the labour market, and the status of women in society and in the family are very, very important in determining the future of Iran’ (Esfandiari 2003b).

Based on the current trend it appears that it will not be long before men will be househusbands and women be working in the labour force as primary income earners (Harrison 2006). We can already see change occurring, with an increasing number of women becoming more active in the labour force as well as the increase in female specialists and their participation in more professions. It is now common to see women in positions of authority giving orders to their subordinates (some being men) in different public and private sectors (Esfandiari 2003b). One negative effect of this change is that many women who prefer to have husbands with the same education levels as themselves face a problem now that the number of women with tertiary studies has increased in comparison to men (Harrison 2006).

205

Due to the current laws in Iran in which men can limit their wives participation in the labour force as women are required to gain their husband’s permission to work, many career minded women are becoming less enthusiastic about entering into marriage. Less and less women are willing to leave their jobs for marriage. This increasing group of women believe they are the ones who can bring change in different areas of social and political life. They believe that not only women’s attitudes but men’s attitudes are changing with them being more actively engaged in household work (Harrison 2006). This is while only two decades ago men would find it unmanly to participate in household chores (Grammich and Fair 2007).

8.2.3 Birth rates, marriage and divorce Changes in education have led to changes in other areas of Iranian society such as a rise in the age of marriage, higher demands for women within the family and the society (Esfandiari 2003b), decline in birth rates and increase in divorce rates. As a result of women deciding to pursue tertiary studies the average age of first marriage in Iran, both in urban and rural areas has risen to 23.4 years with more rural women remaining single. This age was almost 18.4 years in 1966 and almost 19.5 years in 1976 (Bahramitash and Kazemipour 2006:115). This is interesting considering that the legal age of marriage was lowered after the Islamic revolution. What’s more, the age difference between couples within marriage has also decreased from 4.4 years in 1976 to 2.8 years in 2002 (Bahramitash and Kazemipour 2006:118).117 Decreasing the age gap between men and women was promoted as part of the modernisation program introduced in the shah era. The purpose of this program was to increase the minimum age of marriage for girls (Bahramitash and Kazemipour 2006:118).

8.2.3.1 Birth rates As a result of the family planning policies after the revolution, the overall birth rate in Iran has declined from 6.6 births per woman in the mid-1970s to 1.9 births per woman in 2006. In 1977 the rate was 4.5 births per woman in urban areas which then declined to 1.8 births per woman in 2006. For women in rural areas the birth rate was 8.1 births per woman in 1977 which then declined to 2.1 births per woman in 2006 (Roudi 2009).

117 This should be dealt with caution considering that many marriages in rural areas go unregistered , see Moaddel, M. (2008). "Religious Regimes and Prospects for Liberal Politics:

Futures of Iran, Iraq, and Saudi-Arabia." World Values Research (WVR) 1(2): 35-56. 206

The population growth in 2006 was 1.6% while this rate was 3.9% in 1976 (Iran Statistical Centre 2006). This decline in fertility and birth rates can also be attributed to the increase in women’s education with most educated women wanting fewer children. Also the importance of education within families and the higher standards of living make having more children hard to maintain (Roudi-Fahimi and Moghadam 2003). Child mortality rates have also declined which also results in fewer pregnancies (Bahramitash and Kazemipour 2006).

8.2.3.2 Marriage and divorce The number of divorces has tripled in Iran since 2000 and by 2010 one out of every 3.76 marriages ended in divorce. A registry office in an affluent and Westernised area of Tehran reported in May 2010 that year they recorded 70 divorces and only 3 marriages while another registry office in the same neighbourhood registered 60 divorces and only 1 marriage. Various reasons have been stated for this increase such as unemployment and rapid urbanisation, Western effects (stated by conservatives), high dowries, fear of financial support considering the unemployment rate and the high costs of living, changes in women’s attitudes towards the traditional roles and changing attitudes towards divorce (Yong 2010). Also as Yong (2010) states: ‘While the change in divorce rates is remarkable, even more surprising is the major force behind it: the increasing willingness of Iranian women to manipulate the Iranian legal system to escape unwanted marriages’.

Saeid Madani a member of the Iranian Sociological Association who finds the economic independence to be the most significant reason for increase in divorce rates states: ‘This economic freedom has had an effect on the behaviour of women in the home…in the past if a housewife left her home, she would go hungry; now there is a degree of possibility of finding a job and earning an income’ (Yong 2010).

Azardokht Mofidi a psychiatrist and author, finds reasons other than mere economics to be the cause of this change. She believes women’s attitudes have changed and their current expectations have led them to demand equality within their relationships and to oppose the existing traditions and adversity within marriage (Yong 2010).118

118 This is also evident from the high rate of women demanding that their husbands participate in household chores, see Chapter Three. 207

Another factor that has led to an increase in divorce rates is that the social stigma associated with divorce has considerably diminished. Yong (2010) relates a story that highlights this change. Nazanin, is an almost 50 year old woman who has been divorced twice. Once about 30 years ago and the second time had been about 14 years ago. She states that after her first divorce she and her family hid the fact that she had been divorced from neighbours and friends. She even continued to wear her wedding ring to make people believe that she was still married. After her second divorce she states that even though her parents were devastated, her friends were more accommodating. She says since then she has noticed a considerable change in social attitudes towards divorce. She argues: ‘Now, it has become so normal that society has become neutral...Our generation has completely lost its sensitivity to divorce. It’s so common that you can see it in your own family. You just accept it’ (Yong 2010).

As we can see, the cultural barrier which Hajjar believes to be a formidable barrier to women leaving an abusive relationship (Hajjar 2004) is being lifted. The high divorce rates in Iran are evidence of this claim.

With regard to polygamy the 1967 (Aghajanian 1997) and 1975 Family Protection Act (Bahramitash and Kazemipour 2006) stated that for a husband to remarry he has to attain the permission of his first wife, otherwise his wife may obtain a divorce. Even though this law was abolished with the Islamic revolution, there was no considerable increase in the practice of polygamy119 (Aghajanian 1997). Therefore, it seems that attitudes towards polygamy have remained the same. Exercising polygamy has never been common in Iran.120 In 1956 ten out of 1000 men had two wives (Momeni 1975) as cited by (Aghajanian 1997:21). This rate for 1994, based on data from the Statistical

119 In 1986 a 12 Article law was passed regarding divorce and marriage (which we mentioned in the section of conditions within a marriage contract) that restores the same provision of the FPA. It also provides women the ability to obtain a divorce in cases where the husband does not care for his wives equally and fairly Ramazani, N. (1993). "Women in Iran: The Revolutionary Ebb and Flow." Middle East Journal 47(3): 409-428. 120 There is no data on the extent which temporary marriage is being exercised, see Aghajanian, A. (1997). Family and Family Change in Iran. Diversity in Families: A Global Perspective. C. B. Henon and T. H. Brubaker. New York, Wadworth: 17–25. Grammich, C. and C. C. Fair (2007). "American and Iranian Public Opinion: The Quest for Common Grounds " Journal of South Asian and Middle Eastern Studies XXX(3). 208

Research Centre, was 8.5 men for each 1000 married men in Iran (Iran Statistical Centre 1997) as cited by (Aghajanian 1997:22). The low rates of polygamy are partially due to economic reasons (Aghajanian 1997), and partially due to the social shame associated with polygamy (Mir-Hosseini 2002). The rise in the number of single women is further indication that polygamy is not an acceptable practice in Iran and therefore is not that widely exercised (Bahramitash and Kazemipour 2006).

As Aghajanian (1997:28) states: ‘It seems that slowly but consistently changes in roles of women are emerging and women are combining familial roles with economic roles. Women are delaying marriage and getting more education. Delay in marriage and more education are associated with non-household roles’.

One issue which is of great significance is that attitudes towards traditional roles are changing both among men and women and is not merely a cultural change which women are experiencing (Harrison 2006; Grammich and Fair 2007; Moaddel 2008). In support of this claim apart from the evidence provided earlier in this chapter a survey was conducted in 1996 found that 95% of girls and 65% of boys at high school level support married women to work out of the house (Aghajanian, Tashakkori et al. 1996) as cited by (Aghajanian 1997:28). Considering the trend in Iran it is expected that this rate will continue to rise.121

Therefore, as we can see attitudes towards gender roles are changing in Iran with higher rates of support for gender equality among younger members of the society and the higher educated. Considering that 60% of the Iranian population is under the age of 30 (Roudi 2009) and considering the increase in the rate of education it would be expected that the number of people sharing these attitudes will continue to grow. As we mentioned earlier in this chapter and in Chapter Four the main cause of IPV is inequality (Hajjar 2004; Morgan A. and Chadwick H. 2009). Therefore, with changes in attitudes towards equality one would expect changes in rates and forms of IPV.

121 Although there is a vast difference in the rate of education to the rate of employment, however, this is not a problem which only women face. The problem of unemployment has affected all people regardless of gender within that country. For further information on women’s participation in labour forces see, Etemad Moghadam, F. (2009). "Undercounting Women's Work in Iran." Iranian Studies 42(1). 209

As a result of the changing culture there appears to be a growing gap between peoples values and the existing laws in Iran. What makes the existing discrepancy between peoples values and laws in Iran interesting is that the existing dichotomy is both the creation and result of the government policies since the formation of the IRI. The institutions of marriage and divorce in Iran have been absorbed in the existing discrepancy between laws and values. As we will further see, this discrepancy becomes more apparant with the emergence of conflict within the marriage.

8.3 Discrepancy between laws and culture in Iran As we mentioned earlier in this chapter laws are most effective if they correspond with the existing beliefs and attitudes. Various factors such as the increase in the use of conditions within the marriage contract, the decrease in marriage rates and increase in consensual divorce are all indicators that the current laws which are patriarchal do not respond to the current beliefs.

The natural result of these changes in attitudes will be that people will oppose laws or policies that are in contradiction with gender equality. This could explain the results of the World Value Surveys in which 89% of Iranians considered themselves to be religious, yet only 27% of them reported that they attended religious services at least once a week (the higher educated the less religious service attendance was found) (Grammich and Fair 2007:19). Moaddel argues the reason could be that they find religious attendance to be related to support for the government and its policies (Moaddel 2008). As we will further discuss, considering that many find ways to circumvent the existing laws and policies, Moaddels argument appears permissible.

8.3.1 Government policies and the existing discrepancy between values and laws

The power that education holds is incontestable. With education comes knowledge and awareness, which stimulate independence and power. One the many privileges which independence and power provides is awareness of right and wrong as well as the tools to analyse and argue about those issues.

Women’s rising education rates could be regarded as the Islamic Republics’ greatest contribution to women. As we saw in Chapter Six, by separating girls and boys at schools and by making the schools Islamic, many traditional families felt safe about 210 sending their daughters to school (Esfandiari 2003b). As a result, women became more aware of their rights, demanded more respect, became active in the public arenas and played stronger roles in political activities. This continues to be the case among traditional families today, who continue to feel safe about sending their daughters to school as a result of the sexual segregation at schools.

The government in Iran also acknowledges the valuable role of women in the society and political activities such as voting encourages them to participate in such activities. As Halper states: ‘Thus, despite adopting a variety of retrograde gender policies, the post-revolutionary government also encouraged women to be politically active and in return was required to respond to the demands that women’s activism produced’ (Halper 2005:92).

Furthermore, after the Islamic revolution in 1979 the Islamic government dismantled the family program in Iran, as it was considered to be a Western creation. Nonetheless, after 10 years the government found the rapid growth in population and fertility rate acting as an obstacle to economic growth and the security of that country. Consequently the government created a family planning program believed to be the most successful in the world (Roudi 2009). Following the revolution the government encouraged women to leave their jobs and stay at home and set various policies to accomplish this goal. These policies included closing down day care centres and new laws under which women could retire with full benefits while having worked fewer years than was required for men. However, a few years later the same government passed new laws which encouraged women to join the labour force, and guaranteed them equal pay and equal jobs to that of men. The government also encouraged women to pursue tertiary studies, and fields which only a few years before the government had prohibited women from studying, were once again opened up to them (Moghadam 2002).

Therefore, while the Iranian government regards the primary roles of women to be a mother and wife, its policies have led the society to an entirely different direction with women finding a more active role in society than Iran has experienced before. The important roles women play in society and in politics were further extended, through the political campaigns during the presidential elections, when in 2009 women’s rights activists brought their demands to the attention of the authorities (Roudi 2009). All of

211 this has resulted in the gradual change of the existing attitudes (Harrison 2006) since the succession of the IRI.

As a result of these changes, which are also evident among the religious people, Iran is now facing a dilemma. While the Iranian legal system is rooted in ‘the period of traditionalism, the economic, social and cultural attributes of society’ are changing, leaving the legal system incapable of responding to the current needs (Kar 2000:1). As a result of these cultural and societal changes, today a typical Iranian woman plays a vital role in different areas of the society such as the economic, cultural, political and social spheres (Kar 2000). Today a growing number of men who are concerned about women’s issues and are working to enhance gender equality (Esfandiari 2003a). The number of men fighting alongside women for gender equality, including legal equality is also increasing.122

The 2003 Nobel Peace Prize was awarded to Ms Shirin Ebadi, who apart from being a human rights advocate is also an Iranian lawyer and university Professor (Monshipouri 2004). This is indicative of women’s strong activities and reforms within Iran. Kar argues that while the world views Iran as a country which opposes gender equality - with the laws and their implementation re-enforcing this view - what they fail to see is the substantial opportunities which women have in influencing the political procedures which characterise their role (Kar 2000).

Even though the shah government was in favour of modernisation and changed the laws to promote women’s rights, it was not until the Islamic revolution that women gained awareness of their rights (Halper 2005). As a result of the Islamic governments’ policies women now have the tools to fight for those rights. Kar (2000) argues: ‘In many ways, the Iranian revolution has brought to the fore the discrepancy between reality and mental perceptions. But in no other respect has the inconsistency been more apparent than in the private and social lives of women’.

122 See further, Human Rights Watch, Iran: Allow Women's March for Equality, 7 March 2011, available at: http://www.unhcr.org/refworld/docid/4d75d3af1a.html [accessed 19 January 2012]. 212

One area where this inconsistency is highly apparent is in the practice of marriage and divorce. The current discrepancy between current beliefs and the law not only affects women negatively but men also. I will further discuss this below.

8.3.2 Cultural changes, patriarchal laws and IPV

The family law of the Islamic Republic of Iran is religion based and patriarchal. It provides men with many more rights than it does women. This appears to render the idea that men within that society may also be victims of IPV improbable. If we claim that men can also be victims of IPV within this society, then their legal rights come to surface. This includes their unilateral right to divorce and their legal rights to control their wives movements, all of which can lead to many forms of IPV against women.123 This could lead us to believe that men do not need protection against IPV. However, similar to other systems there are loopholes within the current rights and obligations of spouses towards one another. With the changing attitudes and the awareness raised in women about their marital and social rights, and with the laws remaining the same, men have become more susceptible to economic forms of abuse. I will explain.

As Mir-Hosseini has explained: ‘Today in Iran two distinct conceptions, or models, of marriage coexist. The first is marriage as defined and regulated by legal codes, based on dominant opinion within the Shi'a school of Islamic law, and the second is marriage as lived and experienced by ordinary people, shaped by customary relations, socio-economic constraints and the personalities of those involved. These two models are neither mutually exclusive nor necessarily in conflict, although at times they can be identified as two distinct and opposed forces’ (Mir-Hosseini c.1999:2).

Mir-Hosseini argues when they marry, couples ‘find ways of accommodating or circumventing the legal requirements’ (Mir-Hosseini 2002:138). However, once the marriage faces strain, then the legal rights and obligations gain importance. The way these legal rights and obligations are then dealt with is mainly in a case by case manner, highly dependent on the character and the socioeconomic status of the couple involved (Mir-Hosseini 2002; Mir-Hosseini c.1999).

Mir-Hosseini states by the time a case is taken to court, the couple either really want to obtain a divorce or are trying to find a new solution and stability. In both cases there is

123 See Chapter Seven. 213 conflict and tension between the couple with each person trying to win this conflict. This is where both, the social realities and the legal concepts of marriage gain more importance. While the rights and obligations of the couple and ownership are unequal based on laws, in practice and based on the existing attitudes and beliefs the case is different (Mir-Hosseini c.1999).

We saw in Chapter Seven that the law bestows the obligation to provide for the family upon the husband, and this cannot be excluded by a term of the marriage contract, since the wife’s right to receive alimony is one of the core purposes of that contract. This legal obligation of men renders women susceptible to many forms of IPV, because they have to obey their husbands.124 However, Hajjar (2004:3) claims: ‘One of the strongest predictors of domestic violence is the restriction on women’s ability to leave the family setting’.

As a result, the more economically independent they are and the fewer stigmas associated with divorce, the more empowered women become during and at the end of a marriage. Mir-Hosseini states that women’s awareness of their legal rights and obligations has in some cases enabled them to avoid and undermine their obligation to tamkin while maintaining their right to alimony and divorce (Mir-Hosseini 2002). Furthermore, we have seen above the rising divorce rates in general, coupled with consensual divorces in particular are strong indicators that many women no longer stay in marriages for economic reasons, nor will they tolerate inequality.

One main reason for the changes in women’s demands and expectations within the family and society, as surveys and statistics exhibit, is that more and more women are entering the labour force which then provides them with independent income. Women are no longer limited to being housewives and are demanding more rights as well as the ability to exercise their rights (Yong 2010). The high numbers of divorces in which the courts have ruled (due to the wife's request) for the husband to pay the wife for the housework which she has carried out during the marriage (Dezhkhah 2007), reveal that women have become more aware of, and exercise their rights to a much greater degree than they previously did. As evidence obtained through surveys show, men’s attitudes are also changing with greater support for gender equality (Esfandiari 2003a; Moaddel

124 See further Chapter Seven. 214

2008). The changes in attitudes along with the rise in the demands of women in marriage and divorce come into effect through applying conditions within the marriage contract.

We have also seen in Chapter Seven that upon marriage women in Iran retain all rights to their premarital property and they can continue to independently own property. While wives have the right to work (unless the husband finds it to be in the family’s best interest that she refrains from her job), and to obtain income and enter contracts, they have no obligation to spend any of their income towards their family’s expenses. By inserting relevant conditions within the marriage contract wives can secure their rights to education and employment. Husbands on the other hand must continue to pay alimony regardless of the rights conferred on their wives, since the obligation to pay alimony cannot be excluded by a term of the marriage contract (Katouzian 1996).

Even though surveys reveal that 68% of the respondents believe that both partners should contribute to the family income (Grammich and Fair 2007), this still remains optional for women and mandatory for men. This explains the high rate for respondents agreeing with the fact that when jobs are scarce men have priority over women mentioned earlier in this chapter.125 The wife may choose not to work or to give up her contribution to the household income whenever she desires while the husband, even if he has left his job to manage the children and to take care of household chores while his wife acts as the breadwinner, must continue with his duty and provide alimony. The wife can also demand her mahr at any time she wishes (Katouzian 1996). With the current economy, and the rate of unemployment and high expenses (Yong 2010) placing the burden completely on the husband regardless of the wife’s financial status seems unfair. This is amplified by the fact that a well-off wife can place her husband in prison if she can prove that he is unable to pay mahr, and can have him lashed if he fails to pay alimony.126

What’s more, cultural changes and their co-existence with gender discriminatory divorce laws have led women to use mahr in order to guarantee their rights to divorce.

125 See Moaddel, M. (2008). "Religious Regimes and Prospects for Liberal Politics: Futures of

Iran, Iraq, and Saudi-Arabia." World Values Research (WVR) 1(2): 35-56. 126 See Chapter Seven. 215

Women are now aware that by relinquishing their right to mahr they may use that as an incentive for the husband to grant them divorce.127 This is apparent by the fact that over 50% of the divorces registered every year in Tehran are khul’ type 128 (Mir-Hosseini c.1999). Women can also use their mahr or rights to alimony to negotiate custodial rights (Mir-Hosseini 2002). As a result, in recent years we have been observing a large increase in the amount of mahrs (Yong 2010), as well as an increase in non- conventional forms of mahrs which in many cases are difficult for a husband to deliver (Alborz Professional News Site 2011).

The rising number of men in prison due to their inability to pay mahr (Alborz Professional News Site 2008)129 while revealing the fact that women are practicing their rights more frequently also indicate that the current laws (even with applying the conditions within marriage and its limitations) do not correspond with the social realities. If women fail to insert conditions within the marriage contract in order to secure their rights, their only tool with which they can negotiate marriage and divorce terms with their husbands will be their financial rights. As a result, Mir Hosseini argues that the wife might attempt to make up for the husbands legal power and to establish a new balance based on her financial entitlements. In response men either resort to violence or abandon the marriage, which again women respond to through placing higher financial demands (Mir-Hosseini c.1999).

The result is the same factors which gave husbands power in marriage (being the breadwinners who require obedience by the wife) can now be used against them. A husband incapable of paying his wife will have little power over his wife. As a result, he would need to negotiate the terms of the marriage or divorce with his wife. The manner

127 This was briefly discussed in Chapter Seven. 128 See Chapter Seven for the definition of different types of divorces. 129 The current mahrs, as we previously mentioned are normally very high amounts, since not only has it become a way of showing wealth and status for women, but women have now come to learn of the advantages it provides them since its considered to be a negotiation tool. See further Yong, W. (2010). Iran's Divorce Rate Stirs Fears of Society in Crisis, The New York Times; and, Mir-Hosseini, Z. (2002). Tamkin: Stories from a Family Court in Iran. Everyday life in the Muslim Middle East. D. L. Bowen and E. A. Early. Bloomington, Indiana, Indiana University Press: 136-151. 216 in which this negotiation takes place depends on the options available to the wife and on the ‘socio-economic context in which the marriage is embedded’ 130(Mir-Hosseini c.1999:8).

These financial obligations bestowed on men coupled with the cultural changes and women’s awareness can allow men to be economically abused. There are many cases taken to court in which the husband has been a victim of economic abuse131 as a result of the existing expectations and obligations. 132 In one of these cases, a husband was unable to provide for his wife and daughter in a way which the wife's social status required (although providing the necessities). He then left to Japan for work in order to earn more money. While working in Japan, he would keep one fifth of his salary for his necessary expenses and would send the rest for his wife and daughter. After 3 years, he received a letter from his wife requesting a divorce (since he had given the right to divorce to his wife through the conditions within the marriage contract). He returned to Iran to find that she had received an absentia divorce and had left to Europe, taking all the money and their daughter with her (Jaam e Jam 2003) as cited by (Hedaiat Nia 2004:60).

The severity of this case and similar cases would have become more apparent if the husband had also given unlimited rights to employment to his wife (since he would have had to continue providing for her while she had sole rights to her income), and equal division of the property (moveable and immoveable) obtained during the marriage.

The wife in the case described here managed to secure her rights to divorce and to travel abroad (freedom of movement) without the need for further authorisation being granted by the husband. Although freedom of movement and freedom of divorce are rights which every person should have, by legally allocating different responsibilities to each

130 See Chapter Seven. 131 See Chapter Two for definition. 132 See further, Hedaiat Nia, F. (2004). Violence in Family: an analysis of family events. Tehran, Vosoogh; and, Mir-Hosseini, Z. (2002). Tamkin: Stories from a Family Court in Iran. Everyday life in the Muslim Middle East. D. L. Bowen and E. A. Early. Bloomington, Indiana, Indiana University

Press: 136-151. 217 partner and providing them with unequal rights the grounds for perpetrating violence is being prepared. For example, if the husband was not legally obliged to be the sole breadwinner and that to the extent which the wife requires, and if this was an obligation bestowed on both couples, this case and many other similar cases may have never come into being. What’s more, in this case and other similar cases the wife retains her right to mahr and ojrat ol mesl and until the issue of mahr has not been settled the husband can be prevented from leaving the country.

The substantial costs which divorce places on men, such as the high amounts of mahr, compensation for her housework, any due alimony (if the wife has been obedient), division of property (if the couples have agreed to such a condition) can serve to discourage many men to file for divorce. Therefore, a husband who is a victim of social, verbal or other forms of abuse as a result of his wife's behaviour may, by choosing to continue with his married life, attempt to prevent the costs of divorce.

Hence, the current patriarchal laws not only can lead to violence against wives, but can also promote violence against husbands. This issue is exemplified with the awareness that has been raised among women. Needless to say, financial means being the main tool for which women can resort to in order to secure their rights, in times of conflict this right can be legally abused and can lead to economic forms of IPV.

Cultural realities and patriarchal laws in practice, and the problems arising from their concurrent existence, doubled with Islamic feminist debates on the reinterpretation of the Islamic family call upon the need for a reinterpretation of the patriarchal laws in Iran. Gender neutral laws should be promoted to enforce gender equality. Through gender neutral laws IPV can also be discouraged.

8.4 Islamic feminism and rereading the Sharia We saw earlier that some States, Iran being one of them, are resistant to acknowledging certain forms of violence as IPV. The situation is exacerbated with the State believing that inequality, which is the root of IPV (Hajjar 2004; Morgan A. and Chadwick H. 2009), is justified on religious grounds. This view is based on the belief that difference is necessary for the family and society to function, therefore, God has created men and women unequal and their patriarchal interpretations of Sharia reinforce this belief (Hajjar 2004). These patriarchal interpretations have led to many forms of IPV to be

218 perpetrated against women. However, as Hajjar argues, Sharia can in no way be used as an excuse to justify violence (Hajjar 2004). She further states: ‘Although Islamic rules have been reinterpreted, modified, or simply treated as inapplicable when dealing with changing circumstances in such issues as slavery and modem commercial practices, no such flexibility has been shown with regard to women's rights. For women, the trend of interpretation has worked almost exclusively in the opposite direction’ (Abdel Halim 1994:28) as cited by (Hajjar 2004:16).

Hajjar further argues: ‘In exercising their sovereign prerogative, Muslim governments have sought to present themselves as defenders of Islam by building a firewall around shari'a. On the international level, despite the controversy that this provoked, it epitomizes the capacity of states to speak and act in the name of their societies’ (Hajjar 2004:18).

With the socio-cultural changes in Iran and the establishment of human rights organisations to uphold international human rights in general, not just women's rights, people have become more aware of human right violations (Hajjar 2004). As mentioned in Chapter Six, all this has led some Islamic feminists to find the solution in the reinterpretation of the Sharia.

The State’s ability to carry out reforms is highly influenced by social values and beliefs about ‘gender and family relations’ (Hajjar 2004:9). Hajjar states: ‘...Shari'a functions both as specific legal rules and as a general religio-cultural framework for Islamic norms and values. Therefore, efforts to implement law reforms to enhance the rights and protection of women within the family are bound up in contestations over the role and the jurisprudence of religious law, and social acceptance of reforms is contingent on their perceived compatibility with religious beliefs’ (Hajjar 2004:4).

As we have seen in the case of Iran the society is not only ready to accept these legal changes (much of which is owed to the State’s own policies), but the people who are finding ways to circumvent the current laws, are in a way demanding legal reforms. With the changes in the culture and attitudes the need for this reinterpretation has gained more importance. Whether a rereading of the Sharia is possible or not Mir-Hosseini (1996b:285-286) states: ‘feminist’ re-reading of the shari’a is possible-even becomes inevitable-when Islam is no longer part of the oppositional discourse in national politics. This is so because once the custodians of the shari’a are in power, they have to deal with the contradictory aims set by their own agenda and discourse, which are to uphold the family and restore women to their ‘true and high’ status in Islam, and at the same time to uphold men’s shari’a prerogatives. The resulting tension- which

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is an inherent element in the practice of shari’a itself, but is intensified by its identification with a modern state-opens room for novel interpretations of the shari’a rules on a scale that has no precedent in the history of Islamic law’.

The Quran was introduced in the 7th century in Arabia in the time where the culture was extremely patriarchal. Patriarchal mentality made the society resistant to the concept of gender equality introduced by the Quran (Grammich and Fair 2007). Considering that today that cultural barrier has been removed in many societies, Islamic feminists are attempting to gain the gender equality that is derived from the equality of mankind stated in the Quran.

Islamic feminists argue that barriers created in the way of religious thinking and freedom of expression then result in obstacles in understanding and applying the principles of human rights (Kar 2000). Therefore, religious thinking should be encouraged and people should have the freedom to express their opinions and through that we can expect a change in the current Sate-tolerated forms of violence.

Moaddel and Azdarmaki argue that for gender equality to be promoted policies need to be changed and fundamental changes be made to the society. Policy changes need to respond to the reforms suggested by the international organisations, feminist movements and leftist parties. Policies need to address the historical patterns of how the State-society interacts with regards to the roles which cultural groups, the State and religion play. Economic institutions also need to be challenged (Moaddel and Azdarmaki 2002).

However, all the above can be done without having to divert from the Sharia. The reinterpretation of Sharia law, in the twentieth centuryin many Muslim countries, is proof that the Sharia could be reinterpreted (Htun and Laurel 2011) to enforce gender equality. 133 Even if we look at the family law in Iran and the journey it has taken we can see that it has been revised many times and has repeatedly extended and limited women’s rights to divorce and their legal age of marriage. Another example is that of the Moroccan family law. Htun and Weldon claim:

133 See further, Mir-Hosseini, Z. (2009). Towards Gender Equality: Muslim Family Laws and the Shari’ah. Wanted: Equality and Justice in the Muslim Family. Z. Anwar. Kuala Lumpur, Musawah; An Initiative of Sisters of Islam. 220

‘Conditions surrounding Morocco’s transformation of its family code in 2004 reveal the combination of factors conducive to reform in non‐transitioning polities: feminist mobilization, state allies, and a window of opportunity that undermines religious opposition’ (Htun and Laurel 2011:44).

As a result of demonstrations, lobbying, a petition holding one millions signatures and public awareness slight modifications to the Moroccan Family Code was made in 1993 (Charrad and Presser 2001) as cited by (Htun and Laurel 2011).

In the same year the Moroccan government, while stating that Islam justifies discrimination against women, ratified the CEDAW with reservations. In 1997, an alliance of Moroccan NGOs provided the committee with a Report. In that Report they criticised the government’s claims regarding the justification of discrimination in Islam and also provided specific proposals for modification. This Report by the feminist organisations resulted in the government to be held liable (Association Démocratique des Femmes du Maroc. 2003; Women's Learning Partnership 2006) as cited by (Htun and Laurel 2011).

In 2003, the government and NGOs entered a series of discussions regarding the CEDAW. These debates resulted in the commission to provide the King of Morocco with a proposal for reforms. This proposal was justified by the King ‘with reference to the Sharia and framed the reforms as part of the process of State building’ (Htun and Laurel 2011:45).

Eventually, in 2004 a new family Code Moudawana was adopted by the Parliament, with the new law corresponding to the principles of gender equity (Htun and Laurel 2011). In this revised Moroccan Moudawana134, dual headship has legally been recognised (Badran 2006).

Although dual headship is not a recognised concept in the current laws of Iran, nonetheless, the results from the WVS show appreciable change in attitudes with more people being supportive of gender equality and equal roles. Badran argues that Islamic feminist interpreters of the Quran who focus on gender issues are aware of ‘changing

134 This is also the case with the new Indonesian Family Law in which derived from Sharia and in which dual headship has been recognised. 221 social and economic realities’ while referring to the Quran for help. As a result mutual spousal support is gaining increased support in the middle and lower classes of Muslim societies (which happen to be the majority). The revised Moroccan Mudawwana (both Sharia based) provides support for this claim (Badran 2006).

8.5 Conclusion Changes have occurred in the Iranian society and culture which have led women to gain more awareness of their rights (Moghadam 2002; Roudi-Fahimi and Moghadam 2003). This awareness is highly attributed to women’s rise in education rates which have then led women to have higher demands and expectations (Esfandiari 2003b) and to demand more equality to men (Yong 2010).

However, the current patriarchal laws compounded with the limitations imposed through the conditions which can be inserted within the marriage contract (Katouzian 1996) render the laws unresponsive to the current cultural and social need for gender equality. When the marriage is faced with tension the discrepancy between laws and beliefs surfaces (Mir-Hosseini c.1999). The existing gap can then result in many forms of IPV to take place both against men and women within a legal framework.

This existing gap between laws and social beliefs gains more importance considering that women have learned to use the legal system to gain access to their rights (Yong 2010; Mir-Hosseini c.1999). They have also become more financially independent; therefore, they no longer tolerate violence or remain in a marriage due to financial dependency. All of this has resulted in higher rates of divorce (Esfandiari 2003b). However, the current laws on alimony and financial obligations of men along with the awareness raised in women can result in the financial abuse of men. This is an inevitable by-product of financial means being women’s main tool in securing their evident rights, in cases where they fail to insert conditions within the marriage contract or due to the limits imposed on such conditions.

As we have seen in Chapter Seven, in order to provide women with a more equal legal status to that of men in marriage and divorce a couple can insert conditions within the marriage contract. With men’s attitudes changing alongside women (Harrison 2006; Grammich and Fair 2007; Moaddel 2008), it is not unusual to expect that the number of men agreeing to these conditions is increasing. Also, women are now aware that they

222 can use their mahr as a negotiation tool to negotiate the terms of their marriage and divorce and to maintain more equal rights to that of men (Mir-Hosseini 2002; Mir- Hosseini c.1999). As a result, we now observe an increase in the amounts of mahr (Yong 2010). This is apart from women’s right to ojrat ol mesl.

These financial obligations of men can act as a barrier to men divorcing their wives. They may tolerate many forms of IPV in fear of the financial costs of obtaining divorce. Mir-Hosseini states that women sometimes place extra financial pressure on their husband’s when the marriage is faced with tension which the husband may respond to through other forms of violence (Mir-Hosseini c.1999).

The social realities and the problems arising from the discriminatory laws are significant factors which have led Islamic feminists to call upon a reinterpretation of the Sharia. They argue that with the current conditions being a result of the ‘contradictory aims set by’ the State, this interpretation is inevitable (Mir-Hosseini 1996b:285-286). This interpretation does not mean that religious States have to, in any way, divert from the Sharia. Therefore, laws can be reinterpreted to uphold equality while staying faithful to the Sharia, as is the case of the Morrocan Moudawana (Htun and Laurel 2011).

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9 Conclusions

9.1 Introduction This thesis has shown that the definition of IPV is highly influenced by the perspective of the body providing the definition. Evidence reveals that as cultures have progressed more behaviour has been considered as violence and men have been identified as victims of such behaviour. This cultural evolution is reflected in the surveys dealing with IPV. In early surveys many forms of IPV were overlooked which over time have been acknowledged.

While cultural progression influences the definitions of violence it also affects the tolerance of violence (Binder and Meeker 1992). The question is what happens when the culture of a society has progressed with men and women becoming less tolerant of violence while the State refuses to acknowledge and prohibit some interfamilial forms of violence?

In commencing this research my hypothesis was that the State of Iran, through Iranian family law, tolerates or permits some forms of IPV against women and as a result of the socio-cultural changes which Iran is experiencing and the growing support for gender equality both among men and women, patriarchal Iranian family law does not sufficiently protect either sex from IPV.

To test my hypothesis I have addressed the following questions: 1. Are there any forms of IPV which are being tolerated by the State or which are legally permitted by the Iranian family law? 2. With the socio-cultural changes that are taking place in the Iranian society is there a growing discrepancy between the social values and the values reflected in the Iranian family law? 3. If so, does the growing discrepancy between social values and the values reflected in the Iranian family law allow for the patriarchal family law to adequately protect either sex from IPV?

To answer these questions the following path was taken: First I explored the meaning of IPV used in the thesis. Then by studying the existing literature, research, administrative data and surveys I examined the changes in culture, society and the acknowledgment of

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IPV in some Western countries since the 20th century. I studied the history of Iran from the 20th century onwards and the current Iranian family law. After that I discussed the cultural and social changes which Iran is experiencing and how these changes have affected IPV against both men and women.

What follows is an overview of the research and arguments presented in this thesis and the conclusions reached.

9.2 Overview In Chapter Two, after discussing the difficulties associated with defining violence, I have explained that IPV in this thesis has been approached from a human rights perspective as opposed to the public health and the criminal justice perspectives. Violent behaviours from the human rights perspective are inclusive of physical, psychological, and emotional abuse, neglect and deprivation. Violence perpetrated by intimate partners and State tolerated and State sanctioned discriminations are also included under this perspective (Tjaden 2005). Therefore, by approaching violence from this perspective we were able to provide a comprehensive definition of IPV which allowed us to study VAW, VAM and IPV.

The term IPV was chosen for the purpose of the current thesis since, unlike family violence, IPV does not include violence against other family members and is limited to those who are in an intimate relationship. On the other hand, IPV is not as narrow as spousal abuse, which only includes those who are married. Employing the term IPV then allowed me to make use of those studies which had included intimate partners in non-marital relationships.

I provided evidence that violence is a result of the unequal allocation of power (Hajjar 2004; Morgan A. and Chadwick H. 2009). For the purpose of the thesis intention was a required element in perpetrating the behaviour which could lead to violence. However, even if the perpetrator did not intend the violent outcome but could have envisaged that his/her behaviour could lead to harm or injury it was considered as violence. Violence was inclusive of acts or omissions which could be constant or spasmodic (World Health Organization c.2010). This chapter later examined in more detail the elements of damage to property, educational/intellectual, emotional, financial/economic,

225 legal/administrative, physical, psychological, sexual, social, spiritual and verbal abuse and stalking was seen as a special form of abuse.

Finally I argued that over time definitions of IPV have gradually grown to include more behaviour. Also, gradually men have also been identified as victims of violence (Gelles 1985a).

In Chapter Three, I argued that the behaviours included in the definition of violence and IPV are significant since they highly influence the results obtained from surveys measuring IPV. The results of these surveys direct policies and programs in order to combat IPV. Surveys also provide us with information on the effectiveness of the existing laws and policies. I demonstrated the strengths and limitations of each survey, and its perspective on IPV.

I showed how surveys over time came to include more forms of violent behaviours. These developments and other factors influenced survey results and made comparing surveys difficult or impossible. These factors include the inconsistent definitions of violence (Ferrante, Morgan et al. 1996), intimate partner (Saltzman 2004) and the variation in forms of IPV included in the survey; the heterogeneity of instruments by which IPV is measured (Posselt 2005); the dominant mentality that women are the victims and men are the perpetrators of IPV (Krug, Mercy et al. 2002; Krahé, Bieneck et al. 2005). It is also notable that none of these surveys include all forms of IPV identified in Chapter Two.

Finally, I examined the criticisms of some feminist scholars of the CTS. This was on the grounds that the main cause of IPV is gender and control, which the CTS tends to ignore (Dobash and Dobash 2004). I contrasted this critique with that of family violence researchers who argue that socio-demographic factors promoting inequality cause IPV (Anderson 1997). This then raised the question of whether gender, control and socio- demographic structural factors promoting IPV are separate factors or not.

In Chapter Four, I examined the relation between culture and IPV. I found that gender, control and socio-demographic structural factors encouraging IPV are correlated.

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Surveys reveal that changes in culture and gender roles result in changes in the occurrence and acceptance of IPV. IPV has been present for many centuries. In some Western societies violence against wives was in some cases permitted by law (Bachman and Coker 1995). This was due to the fact that men were considered to be the head of the household and part of being the head was his right to discipline his wife and children, including physical forms of discipline (Bachman and Coker 1995). During 19th and 20th century laws were passed in those Western societies studied, which gave women more protection against IPV (Tierney 1982). However, it was not until the 1970s that feminist movements, led the way to the recognition of IPV as the serious social problem as understood today. One significant effort made by feminist activists, as Hajjar points out, was their struggle for the criminalisation of IPV and the removal of such violence from the private sphere to become a public concern and a social problem (Hajjar 2004).

Since the mid-1970s arguments developed that men are also victims of IPV (Grady 2002; Frieze 2005; Kelly and Johnson 2008). While the concept of men being victims of IPV was and continues to be faced with much scepticism, nonetheless research and surveys were able to provide evidence that men should also be considered as victims of IPV.

As mentioned in Chapter Two IPV was found to be a result of inequality in power (Hajjar 2004; Morgan A. and Chadwick H. 2009). This helps explain the higher rates of IPV in patriarchal societies and honour cultures in which men have been granted much more power (Bonvillain 2006; Fernandez 2006). The problem is aggravated in these societies by the acceptance of such violence by many women. Furthermore, in many cases violence has become a cultural norm which is tolerated and permitted by the State (Coomaraswamy 2005). Hence, as Vandello and Cohen (2008:662) have argued, pure cultural factors are inseparable from pure structural. This means that gender roles, gender equality and the cultural focus on female purity are strongly linked to one another.

As societies and cultures progress there is more pressure and support of gender equality, attitudes and responses towards IPV also change. Parallel to these attitude changes, laws need to be modified to reflect current beliefs. Therefore, as Htun and Weldon argue

227 family law, gender quotas, reproductive rights and violence against women should be addressed to abolish inequality (Htun and Weldon 2010a).

In Chapter Five the relationship between law, society and culture was studied. As societies undergo change in one aspect changes in other aspects are provoked or stimulated. Based on the milieu in which these changes have occured societies are faced wth different obstacles. One of the major roles of social movements is to change the current environment to correspond to the newly emerging demands. In doing so social movements use frames to present their agenda and garner support (Snow, Burke et al. 1986) as cited by (Taylor and Whittier 1995). Social movements use laws as a means to take forward their agenda. In many cases changing or passing new laws is part of the social movements agenda. Therefore, laws are used as both a means and a goal by social movements (Pedriana 2006). This has been the case in the women’s movements (Kay 1985; Pedriana 2006).

Historically, women’s biological differences were used as an excuse to justify the existing discrimination against them. This continues to be the case in some countries even today. However, women’s movements challenged the traditional cultural structures of gender, and promoted gender neutral State laws (Pedriana 2006).

As a result of legal changes today in many Western societies, stereotyping based on gender is considered discriminatory and is illegal (Pedriana 2006). Also, protective rights, which at first appeared appealing to women’s activists were later found to create an obstacle for women’s advancement. In the U.S. they were also considered to be in opposition with Title Vll of Civil Rights Act of 1964, since they discriminated against men who were not orginally protected by these laws (Kay 1985). As a result, today protective rights include both men and women (Pedriana 2006).

While feminist movements played a significant part in promoting gender equality, other social factors also played a substantial role in achieving this equality. The increase in women’s education, decline in birth rates, and increase in labour force participation contributed to women attaining a more equal status to men through breaking down the traditional gender roles.

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The no-fault divorce system, first introduced in California in 1969, has played a significant role in the establishment of gender equality. Contemporaneously to the no- fault divorce system issues regarding legal equality were raised. As a result, women’s unilateral right to maintenance was considered to be unconstitutional and to be against the Equal Protection Clause since it discriminated based on sex (Lauerman 1987:498). Changes in the law have reflected changes in attitudes to gender equality. Moreover, spousal maintenance now includes transitional maintenance (Lauerman 1987; Kay 1987a) which was supported by many feminists (Jacob 1988). Through transitional maintenance women could empower themselves in different ways, such as through education and paid labour and not rely on men for security (Lauerman 1987; Jacob 1988). This form of maintenance rejects a legal view that sees women as incapable individuals who need men to support them (Jacob 1988).

However, of parallel importance to the laws themselves are the enforcement and implementation of laws. Gender neutral laws need to be passed in conjunction with policies to enforce the implementation and the proper exercise of those laws.

Chapter Six outlines a history of Iran from the 20th century onwards. While religion has always played a pivotal role in Iran, it gained more significance after the Islamic revolution in 1979. With the IRI the Islamisation of laws was introduced and resulted in a systemic review of all laws, regulations and practices. The review favoured a conservative reading of Islam as determined by the Clerical Members of the Guardian Council. This ultimately led to the implementation of various Islamic dictates as law and has resulted in legislation that is discriminatory or is otherwise incompatible with Iran’s human rights obligations.

During the shah era, the FPL had provided women with more rights, placing them in a more equal position to men. The IRI’s Islamisation of laws reversed much of what women had achieved through the FPL and reinforced the traditional Shi’ite gender roles. These roles for women are considered to be domesticity and motherhood (Moghadam 2002).

During Khomeini’s government women were banned from studying various fields and working in certain jobs, such as legal careers. Day care centres were closed down since a mother was considered to be responsible for taking care of her child. These policies 229 were in contradiction of the promises which Khomeini had made before the succession of the IRI, which was for men and women to enjoy an equal position. As a result patriarchy became institutionalised. However, Rafsanjani’s government once again encouraged women to participate broadly in the labour force and many of the obstacles regarding education fields and labour participation which had been placed for women were lifted. As a result, women became more active in the public domain and in politics (Moghadam 2002).

Later in the 1990s for the first time since the succession of the IRI, Khatami’s government appointed women to top governmental positions, some of whom were reformist female MP’s who further struggled to improve the status of women (Moghadam 2002). Finally, some of Ahmadinejad’s government’s policies were unfavourable to women, such as the Family Protection Bill (Amnesty International 2011), and the suppression of the one million signature movement (Human Rights First c.2012). However, women’s activists continue to pursue their agenda.

Islamisation has led to legislation which is discriminatory or in many ways irreconcilable with human rights. Zolan argues that the Islamisation of laws should not have negatively affected the position of women as it did (Zolan 1987). This forms the basis of the arguments of Islamic feminists that Islam and Quran themselves do not discriminate against women and that the existing discrimination is attributable rather to patriarchal interpretations of Islam. Furthermore, they argue that the Quran should be reinterpreted to reinforce the gender equality promised by the Quran (Zolan 1987; Moghadam 2002; Mir-Hosseini 2009). The Islamisation of Iranian laws and these feminist arguments are set out in this Chapter.

In Chapter Seven, I examined the rights and obligations of men and women in the family law of Iran. Upon marriage husbands have been granted the duty of being the head of the household (1928 (last amended 1985) :Article 1105). Being the head of the household encompasses the right to control their wives movements. As the head of the household men also have the obligation to provide for their wives. Wives have been granted the right to alimony, mahr and ojrat ol mesl for any work they carry out in their marital home (regardless of whether they have independent income or not). A wife can ask for compensation for breast feeding their child. However, the main obligations bestowed on wives are of obedience, both general and sexual obedience (Katouzian 230

1996). Furthermore, by not being obedient nushuz, wives lose their right to alimony nafaqa (Mir-Hosseini 2002). These differences in rights and obligations between men and women can lead to many forms of what is considered to be IPV against women in some other countries. Yet, as Hajjar rightly points out, these forms of IPV fail to be acknowledged in some Islamic States (Hajjar 2004), including Iran.

Men and women also have different rights to divorce. While husbands have unilateral rights to divorce, women can ask for a divorce only if certain circumstances exist. One way around this limit on women’s right to divorce is through khul’ divorce (Mir- Hosseini 2002). Women can also use their rights to ojrat ol mesl, mahr or other financial rights to negotiate the terms of their marriage or to secure their right to divorce. Women can also secure their rights by inserting conditions within the marriage contract. However, due to the limits imposed on these conditions they cannot fully protect men or women from IPV. For example, as pointed out by Katouzian, women cannot agree not to have sexual intercourse, while men cannot agree not to pay alimony, since both of these conditions are considered to be against the nature of the marriage contract (Katouzian 1996).

In Chapter Eight, I examined the pivotal role that States play in the prevention of domestic violence through modifying criminal and family laws. At the same time, a State’s resistance to acknowledging various forms of domestic violence as unlawful can impede the prohibition and prevention of violence (Aghajanian 1997; Hajjar 2004). This is also the case when a State tolerates or even in some cases promotes discrimination and inequality.

This thesis has presented evidence that during the 20th century feminist efforts, along with multiple social, political and economic changes, have strongly affected the traditional gender roles and ultimately attitudes to IPV in Iran. These changes are in many ways analogous to that experienced by the Western societies studied in Chapters Four and Five. The increase in women’s education, decline in birth rates and increase in labour force participation have contributed to women attaining a more equal status to men in society through breaking down the traditional gender roles. These changes have rendered women more aware of their rights (Moghadam 2002; Roudi-Fahimi and Moghadam 2003).

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As a result of these social and cultural changes, women’s expectations are changing and they now have higher demands (Esfandiari 2003b) and less tolerance for inequality (Yong 2010). The stigma linked to divorce is fading and an increasing number of women are becoming financially independent (Yong 2010). Therefore barriers towards women leaving an abusive relationship are being removed. All of this has led to an increase in divorce rates.

Women have become increasingly aware of how to take advantage of the law and the legal system to secure and assert their rights (Yong 2010; Mir-Hosseini c.1999). This awareness has led to an increase in the amounts of mahr (Yong 2010) and an increasing tendency to insert conditions within the marriage contract. Through the use of these mechanisms, women have learned that they can gain a more equal status to men in marriage and upon divorce. With men’s attitudes also changing to support greater equality, including legal equality (Harrison 2006; Grammich and Fair 2007; Moaddel 2008), it is not surprising to observe an increase in the number of men agreeing to these contractual conditions.

These developments all lend support to Mir-Hosseini’s argument that men and women have found ways to circumvent the laws when entering into marriage because these laws are no longer responsive to their current needs (Mir-Hosseini c.1999). Some women have even circumvented their obligation of obedience while maintaining their rights to alimony (Mir-Hosseini 2002). However, when the marriage faces trouble the discrepancy between laws and beliefs gains importance and can promote the perpetration of IPV, since financial means are women’s only legal tool to enforce their rights, and can be used to apply financial pressure on men (Mir-Hosseini c.1999). On the other hand men may respond to this abuse by resorting to other forms of violence (Mir-Hosseini c.1999).

Although the conferral of different and unequal rights and obligations of men and women has been justified on the basis of Sharia, it is argued that Sharia cannot be used as an excuse to justify violence (Hajjar 2004). Islamic feminists call for a reinterpretation of the Sharia and argue that the current dichotomy between laws and mentalities in Iran is the creation of the State itself (Mir-Hosseini 1996b). Islamic feminists also argue that reinterpretation does not denote that there is need to divert from the Sharia. An example is the Morrocan Moudawana which has been reinterpreted 232 by staying faithful to Sharia and at the same time promoting equality (Htun and Laurel 2011). One way of promoting gender equality in the Morrocan Moudawana has been through the recognition of dual headship (Badran 2006).

The findings from the research presented in this thesis lead to a number of conclusions which are now presented as answers to the research questions posed in the Introduction.

9.3 Conclusions 1. Are there any forms of IPV which are being tolerated by the State or which are legally permitted by the Iranian family law?

The family law of Iran which sets out the rights and obligations of husbands and wives currently encourages and promotes gender inequality. The primary role of women is to be a wife and mother while the men are the head of the household and the breadwinner. These unequal rights and obligations, derived from patriarchal interpretations of the Sharia, have been justified on the basis that they are divinely ordained and are required for the stability of the family and society.

The unequal allocation of power is the main cause of IPV. Based on the current Iranian family law which considers men as the head of the household, the law allows men to control their wives’ social life, employment rights, and spiritual practices. Wives must obtain permission from their husbands to be able to travel abroad. Women have no protection from rape within marriage because forced sex between a wife and a husband is not an offense. These situations can lead to social, spiritual, economic, sexual, educational or intellectual, psychological and emotional forms of violence. The potential for IPV against women is exacerbated when custody of children is given to the husband upon divorce. This may force women to remain in abusive relations. Furthermore, custody rights given to men can be used as a threat towards women, and thereby lead to further emotional and psychological forms of abuse. Therefore, in the current Iranian family law, as a result of the unequal rights which husbands and wives have towards one another many forms of IPV against women are justified, permitted or tolerated by the State.

2. With the socio-cultural changes that are taking place in the Iranian society is there a growing discrepancy between the social values and the values reflected in the Iranian family law? 233

The evidence presented in this thesis reveals that the socio-cultural changes have led to a gap between social values and the current family law. As a result when entering marriage, both men and women find ways to circumvent the existing laws in order to reflect their own values. Data reveals that the changes in attitudes towards more support for gender equality are highest among the younger generation and the more educated. Considering the growth in education rates and the large young population in Iran it is then expected for this discrepancy between family laws and culture will grow.

3. If so, does the growing discrepancy between social values and the values reflected in the Iranian family law allow for the patriarchal family law to adequately protect either sex from IPV?

The current laws which provide husbands with power and control over their wives movements allow for many forms of IPV to be legally perpetrated by husbands against wives.

While the right to control one’s wife has been provided to husbands, the irrevocable right to financial support has been provided to wives. Wives are also entitled to mahr and ojrat ol mesl and the right to compensation for breast feeding their child. With the awareness raised in women due to socio-cultural changes, an increasing number of women have become perceptive that these unequal financial rights can be used as a tool with which they can protect their rights within marriage and divorce. Some women have learned to use the legal system to maintain their economic rights while refraining from their legal obligation to obedience.

The social stigma that was associated to divorce has diminished women are less afraid to exercise their financial rights because it may result in divorce. Also, as a result of socio-cultural changes many women have gained economic independence and they no longer rely on their husbands for financial support. This has led the financial and social barriers for women to exercise their rights to be lifted.

While this awareness and the socio-cultural changes have had the advantage of some women being able to better protect their rights, the existing inequality, together with the awareness raised in women can lead to the economic abuse of men. This issue is intensified when in the absence of conditions within a marriage contract these financial means are women’s sole legal tool for securing their rights. Needless to say, with the

234 great financial burden which divorce can place on men, this financial burden can act as a barrier to men obtaining divorce, even if they are in an abusive relationship.

9.4 Recommendations Consistent with the advocacy arguments of Islamic feminists I argue that a reinterpretation of the way Sharia is translated into Iranian law is called for, since the Quran in no way encourages violence. With the awareness raised in Iranian society regarding human rights violations and the increasing demands for equality and legal equality for women, Sharia can no longer be used as an excuse to justify discrimination and violence.

While historically the patriarchal interpretation of Sharia has led to State tolerated and sponsored forms of IPV against women, this is no longer acceptable today given the evidence of socio-cultural changes and the awareness of gender equality presented in this thesis. It has been demonstrated that this patriarchal interpretation of Quran can lead to IPV against men, which is also unacceptable. By reinterpreting the Sharia and passing gender neutral laws we can better protect both men and women from IPV. As a result of gender neutral laws the husband would no longer be obliged to be the sole breadwinner and the wife would no longer need to obey him as part of his right as head of the family. Women would then need to empower themselves within society and the labour force and would not be dependent on their husbands. This empowerment would not only provide protection for women from various forms of IPV but self-reliance would also lead to greater financial security. As discussed in Chapters Seven and Eight the current financial obligations of men does not guarantee women’s financial security in any event. In many cases women can lose all or some of their mahr through divorce negotiations. Furthermore, they may also lose their right to alimony for being disobedient. Finally, if the husband does not agree to the conditions within the marriage contract, they may lose many other social and economic rights. Even if they do receive their mahr and their alimony in full, these financial sources may run out after divorce and without the personal resources to provide for themselves they would need to rely on another man for support. This is important considering that financial dependency can act as a barrier to leaving an abusive relationship.

Gender neutral laws are also beneficial for men, since without having the obligation to be the sole breadwinner, men have greater freedom to choose their roles within the

235 family. Significantly, men would be better protected from IPV in general and economic forms of abuse in particular. This is due to the fact that financial obligations would no longer work as a barrier towards men leaving an abusive relationship, nor will they be so susceptible to economic forms of abuse once the marriage faces tension.

However, women should be provided with equal opportunity to men. As established by Article 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), governments should take measures and pass laws on social, economic, political and cultural aspects of society to guarantee full access of women to equal opportunity (Facio and Morgan 2009:1147-1150). It is through empowering women and providing them with the same rights, opportunities and obligations as men, including financial rights and obligations, that we can better protect both men and women from IPV. As Kay (1985; 1987a) has argued, difference in rights and obligations should only be enforced where this difference is inevitable due to biological differences, such as pregnancy and maternity leave, and only during the reproduction stage. Once these differences are no longer relevant, in this case after the period of maternity leave, gender neutral laws should be applied.

Therefore, the first step towards empowering women and eradicating IPV is to pass gender neutral laws. Through gender neutral laws we not only allow women to grow as equal members of society but also enable men to choose their role within the family by not being forced into the role of the breadwinner. I conclude therefore, that both men and women in Iran would benefit from the reinterpretation of the current patriarchal family laws and the enforcement of gender neutral laws.

236

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