An essay on domestic violence against women
Counsel and the judge must do what they can to ensure that the jury does not proceed on outdated gender role models. New South Wales was the first Australian jurisdiction to criminalise stalking in , following California two years earlier. Other states soon followed, and Britain and New Zealand in Subsequent legislation emphasised the significance of domestic violence.
These measures were designed to increase prosecution rates, and make the justice system more accessible and efficient. The evaluative report notes overall satisfaction with the pilot program, but no changes in the rates of assault or the reporting of prosecutions. It is well established that a significant factor inhibiting the effective application of the criminal justice system is the degree of under-reporting of violence against women.
The ABS study indicated that two-thirds of women did not report assaults to the police. Some social groups, including some Indigenous and ethnic communities, engage in such retaliation. The dominant European culture in Australia has developed — admittedly only over recent decades — policies aimed at ensuring substantive equality between men and women, including in personal and family relations.
The legal system increasingly reflects these values in substantive law and procedures. Nevertheless, there are communities in Australia with a cultural background quite inconsistent with many aspects of this majority position. The way violence and the fear of violence is directed to women raises significant human rights issues. Only in recent years has this been recognised. A number of submissions to the National Human Rights Consultation, for example, identified violence against women as a human rights issue. The recommendations did not specifically refer to the position of women in this respect, although the recommendation that a Human Rights Act protect the right to liberty and security of persons may encompass an individual right to be protected from violence.
This is an acceptable, but flawed, international model. It is flawed because of the need to obtain agreement from many nations, including those whose cultures permit conduct towards women that we would regard as discriminatory. The range of nations, particularly in Africa and the Islamic world, with customary and social practices that were problematic because of gender bias meant that the drafting process led to major compromises. Much Australian commentary on the subject uses CEDAW as a benchmark, including in domestic violence, so its inadequacies need to be understood.
CEDAW makes no reference to violence: even to acute forms of violence, such as honour killings.
Domestic Violence And Violence Against Women
This was not an accident. Many nations would have objected. If it had been included, the convention may never have come into force. CEDAW is subject to more extensive reservations than any other international human rights instrument. A particularly egregious example is the reservation of Bangladesh, and similar reservations by Egypt and Libya, to Article II, which was designed to eradicate discrimination by new laws and policies, changing existing discriminatory laws and providing sanctions for discrimination where appropriate.
General Recommendation No.
This, the committee declared, extends to any such violence which impairs other human rights, such as the right to life; the right not to be subject to cruel, inhuman or degrading treatment or punishment; the right to liberty and security of the person; and the right to equality in the family. Violent conduct of this character is often gender-specific, but it varies from one nation or culture to another. Such conduct can be discriminatory but — save in the case of honour killings, the right to life — there is little evidence of systematically different treatment.
It is the deficiencies in the convention that have resulted in the attempt to stretch the concept of discrimination beyond its natural borders.
CEDAW is not an adequate international standard. Everyone has a right to be free from violence or the threat of violence.
Despite this early recognition, the idea of personal security as an individual right has been lost. It is, perhaps, the least developed of any of the human rights protected by international covenants. It is, however, the only source for the recognition of a right to be protected from violence that does not involve death, torture or cruel and unusual punishment. Throughout Europe, and therefore in England, the idea that the state may acquire through its treaty commitments an obligation to protect individuals from violence has been expressly rejected.
The position is somewhat different under the human rights provisions in South Africa and Canada. The human rights literature emphasises the responsibility of states to take three kinds of action with respect to human rights protected by treaties or customary international law. These are duties to fulfil rights by taking positive actions, to respect and protect rights from infringement by states and others. There is considerable variation in the way these are defined in domestic laws.
An internationally derived obligation to protect citizens from violence is not well established, beyond the clear categories of life, torture or cruel and unusual punishment. The most likely source of the development of a right not to be subject to violence is the recognition of the right to security in numerous international instruments. This is reflected in the human rights legislation adopted in the Australian Capital Territory and Victoria, and was proposed by the National Human Rights Consultation.
Such instruments do not expressly identify the qualifications that are necessarily implied in such an absolute statement. For example, a state has many reasons to deploy violence, particularly in the exercise of legitimate police functions.
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More significant, in the context of the human rights debate, is the tension that has always existed between liberty and security in political philosophy. In critical respects, the tension between the power of the state as the protector of public security, on the one hand, and as the potential source of persecution, on the other, underpins liberal-democratic political philosophy and determines much of the content of the rule of law. Traditionally a contrast is drawn between liberty as an individual right and security as a public or collective interest.
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As the security of the person is regarded as an individual right, there is a conflict between rights, rather than a conflict between a right and an interest. Human rights advocates are very comfortable concluding that a right prevails over an interest, but there is no generally accepted mechanism for dealing with a conflict between rights.
If security is also a matter of rights, then rights are at stake on both sides of the equation The business of conflicts of rights is a terribly difficult area — with which moral philosophers are only just beginning to grapple. There is a distinct reluctance among human rights scholars to recognise the right to personal security as any kind of individual right.
It appears that recognition of a right to personal security may be seen to threaten the fullest recognition of other rights that may come into conflict with it. Fear is of particular significance to all forms of violence against women, particularly domestic violence. This concept has all but disappeared from contemporary human rights discourse. This absence is regrettable, because often the most significant impact on personal freedom comes from fear, rather than direct interference.
No social system, including any governmental system, can operate by reliance on physical restraint or direct interference alone — there are limits on resources even to those who wish to interfere with the freedom of others. The most effective, indeed the most common, form of interference with freedom arises from self-imposed restraint because of the threat of adverse consequences. The restraint on behaviour is greater, indeed almost always much greater, than it would be on the basis of a calculation of the probability of those consequences actually occurring. Actual interference is not the only way in which human rights can be abrogated.
The well-known chilling effect of constraints on the exercise of freedom of expression can be replicated in virtually every other human rights context.
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This does not mean that freedom from fear is itself a form of freestanding right. Rather, it is a critical dimension of other rights. There is a long list of internationally recognised human rights that, in my opinion, have a fear dimension. In order to have this liberty, it is requisite the government be so constituted, as one man need not be afraid of another. These ideas were very influential, including on the common law. All legal systems have well-established laws designed to protect persons from physical violence.
Legal prohibition of threats of violence, and other forms of fear-inducing conduct which intimidate individuals, is not so clearly established. There is a patchwork of criminal offences relating to intimidation, harassment, blackmail, threats and other such conduct. Yet there is no systematic approach to these matters in any field of discourse, including threats of violence against women. The recognition of the dimension of fear in personal security is of particular significance for women. Numerous surveys have concluded that, although men are more likely to be victims of violent crime than women, women have a greater fear of crime.
In part this is because women are more liable to sexual assaults, assaults with a terror beyond physical injury. Even in the context of intimate relations, violence and the threat of violence is overwhelmingly gender-specific, reflecting traditional patriarchal domination not yet extirpated. That sense of vulnerability recognises the high exposure to risk, the comparative lack of control in part for physical reasons and the perceived seriousness of the sexual dimension of violence.