1 1 GETTING BEYOND THE LAW’S COMPLICITY IN INTIMATE VIOLENCE AGAINST WOMEN 33 Willamette L Rev 4 at 773, (Fall 1997). by Judith Armatta, J.D. I. INTRODUCTION In all societies, to a greater or lesser degree, women and girls are subjected to physical, sexual and psychological abuse that cuts across lines of income, class and culture.1 The actual extent of violence in the home may never be accurately known, but it is clear that such violence is part of the dynamics of many family situations in both the developed and the developing world. In short, the research that does exist reveals that women are murdered, physically and sexually assaulted, threatened and humiliated within their own homes by men with whom they should enjoy the greatest trust. Sadly, this is not an uncommon or unusual occurrence.2 In nearly every country in the world, the most dangerous place for women is the home.3 While men find refuge there, for millions of women it is a prison and a torture chamber. The torture is at the hands of men who claim to love them. A. Summary Overview 1Beijing Declaration and Platform for Action, para 12 (United Nations Document No. A/CONF.177/20, 17 October 1995) [hereinafter “Beijing Declaration”]. 2Miranda Davies, Women and Violence: Realities and Responses Worldwide at 4-5 (Miranda Davies, ed., Zed Books 1994) 3Lori L. Heise, Violence Against Women: The Hidden Health Burden, World Bank Discussion Papers 255, at 14 (1994); Violence Against Women in the Family, United Nations Document No. E.89.EV.5 at 17-18 (1994). In situations of war, however, women and other noncombatants are more endangered than soldiers. Noncombatants constitute 80% of casualties in wars today and women are increasingly the specific targets of aggression. Women and Armed Conflict, Advocacy Kit on the Convention on the Elimination of All Forms of Discrimination Against women, (UNIFEM/UNICEF 1995). Note also, that studies are generally lacking on nondominant communities within a country. 2 This article will address the fact that violence against women in their most intimate relationships is a worldwide phenomenon, embedded in a variety of patriarchal cultural and legal structures. Legal supports for domestic violence,4 such as a husband‟s right of physical chastisement, and legal barriers to its elimination, such as restrictive divorce laws, make the legal system complicit in male violence toward and control over women. The article will discuss reforms occurring and reforms necessary to end that complicity. Legal reforms developed within different cultural contexts, such as Brazil‟s women‟s police stations, will be examined. While they show significant variety and creativity, there is substantial borrowing and adaptation. A number of countries use both criminal and civil law remedies, as well as special provisions in family codes. A few provide an explicit constitutional right of freedom from violence in the family. The article will also examine reasons underlying certain societies‟ preferences for mediated as opposed to criminal interventions, and the growing consensus that law reform alone is necessary but insufficient to end domestic violence. Finally, the article will look at efforts on the international level to address domestic violence as a human rights violation. For some countries, this international recognition provides further avenues for legal redress. It also provides the opportunity for all countries to synthesize their approach, through legal and social mechanisms, to various types of violence against women, rather than addressing domestic violence, rape, prostitution, sexual harassment, economic discrimination, etc. separately. This requires a recognition in law that domestic violence and 4"Domestic violence” will be used throughout this article as it is defined in the Inter- American Convention on Violence Against Women, Article 2(a), quoted in State Responses to Domestic Violence at 61 (Rebecca P. Sewall et al. eds., The Institute for Women, Law & Development 1996): [P]hysical, sexual and psychological violence that occurs within the family or domestic unit or within any other interpersonal relationship, whether or not the perpetrator shares or has shared the same residence with the woman, including among others, rape, battery and sexual abuse. Domestic violence in all cultures is most commonly perpetrated by men against women. Violence Against Women in the Family 13 (United Nations Publication E.89.IV.5, 1989) [hereinafter “UN Report”]. Therefore, pronouns designating the victim as she and the perpetrator as he will be used throughout this article. 3 other forms of violence against women are gendered. Without this recognition and response, root causes will not be addressed and remedies will remain partially effective, at best. B. Substance & Incidence of Domestic Violence Women‟s stories from strikingly different cultures sound chillingly similar.5 South Africa: “My husband has always abused me. He has a drug and alcohol problem. I stayed because I am Catholic and because we have six children, until he kicked me out. He used to tie me to the bed so I couldn‟t go out. I wasn‟t allowed to answer the phone. One time, he beat me so bad, he cracked my head and broke one of my fingers. Another time, he burned me with boiling water. Once he put an electric shock through my fingers. Since my divorce four years ago, my husband harasses me all the time. He follows me. He steals mine and my children‟s clothes from the line. He comes around the house in the middle of the night. .[H]e threw a burning towel through the window of the house which burnt the curtains and started a fire. Now he is in prison for two months for damaging property.”6 Brazil: “I am 30 years old. I am a Brazilian of very poor origin. When I was 24, in 1987, in Rondonia State, Brazil, I was a victim of a murder attempt carried out by my former boyfriend, who wouldn‟t accept my desire to end our relationship. “Full of anger, he set my body on fire in front of my four--year-old son, saying that if I would not die I would look so physically injured that nobody would recognize me and no man would want me. I was a very pretty girl and I was pregnant.”7 5There are individual variations, as well, such as the practice of bride-burning (in India and Pakistan) and widow burning (Sati) (in India). These practices, even where outlawed, continue. They are considered an aspect of domestic violence because they derive from similar cultural roots, the inferiority and subordination of women. See, e.g., the Code of Manu, which forms the basis for many laws governing Hindus: “A wife‟s marital duty does not come to an end even if the husband were to sell or abandon her.” The Shuddhitattva, another legal text, provides: “If her husband is happy, she should be happy, if he is sad she should be sad, and if he is dead she should also die.” quoted in Sakuntala Narasimhan, India: From Sati to Sex- Determination Tests, in Davies, supra note 2, at 47. 6Interview, Durban, South Africa, February 3, 1995, in Violence Against Women in South Africa (Human Rights Watch November 1995). 7Testimony of Maria Celsa da Conceicao, in Testimonies of the Global Tribunal on Violations of Women’s Human Rights at the United Nations World Conference on Human Rights, Vienna, June 1993, 15 (Center for Women‟s Global Leadership, Plowshares Press 1994). [hereinafter “Vienna Tribunal”] Maria had 38 skin grafts. Her abuser was absolved 4 U.S.A.: of all guilt by the justice system. 5 “I was beaten very badly many times by my husband. This man, that I walked down the aisle with, where there was supposed to be love, violated me. I married this man, but he beat me and kicked me. He beat me bad enough to cause an abortion. He kicked babies out of my stomach and beat me without any mercy.”8 Pakistan: “My husband started accusing me of being a „loose woman.‟ He accused me of having an illicit relationship with my elder sister‟s husband, which was totally baseless. On February 24, 1984, while I was cooking food for myself, my husband, Joseph, began screaming at me. He picked up a gallon of kerosene oil, threw it on me, and lit a match. I ran here and there screaming so wildly that I could be heard outside the house. My husband and his family then tried to put the fire out, but by then my body was badly burnt.”9 Costa Rica: “Physical abuse, black eyes, constant body pain, threats with firearms, threats that he would kill my daughters and then himself so that people could see what I was capable of, locks of hair falling out after every beating, blow after blow, even when I was pregnant, after childbirth, or whatever. Psychological abuse, constant reminders of how useless I was, how crazy, how stupid, of what a bad mother I was, what a bad daughter, what a bad wife, always bad, of being a prostitute and a string of other profanities not worth repeating. .”10 Russia: “I was in the bathroom. He started banging on the dor, screaming that he would beat me nad kill me. He broke the handle on the dor. I waited about forty minutes before coming out. He was in a terrible state. He said, „I‟m going to kill you and no one will do anything to me for it.‟ I was so scared.”11 Mexico: 8Testimony of Gayla Thompson, id. at 6. 9Testimony of Perveen Martha, id. at 8. 10Tribunal in Costa Rica: Testifying for Women’s Human Rights, in The Right to Live Without Violence, 1 Women’s Health Collection 99, 101 (1996).