33 Willamette L Rev 4 at 773, (Fall 1997).

by Judith Armatta, J.D.



A. Summary Overview

B. Substance & Incidence of Domestic Violence

South Africa




Costa Rica



C. Causes of Domestic Violence


A. Legal Sanction for Wife Abuse

B. Legal Traps for Victims of Domestic Violence

1. Family Law

a. Marriage Laws and Customs

b. Disabilities During Marriage

c. Marital Dissolution

d. Child Custody

2. Citizenship & Asylum Laws


A. Legal Responses to Domestic Violence

1. Constitutional Law Reform

2. Criminal Law Reform & Impediments to Implementation

a. Police Response

b. Prosecutorial Response

c. Judicial Responses

3. Civil Law Remedies

a. Civil Suits

b. Family Law Injunction

c. Bind-Over

d. Stalking Protective Order

e. Protection Orders

B. Legal Reform & Beyond

1. Legal Literacy

2. The Role of International Instruments

3. Coordinated Comprehensive Multidisciplinary Approaches

4. The Limits of Legal Strategy



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.

1Beijing Declaration and Platform for Action, Para. 12 (United Nations Document No. A/CONF.177/20, 17 October 1995) [hereinafter "Beijing Declaration"].

2 Miranda 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.

A. Summary Overview

 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,4such 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.

[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.

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 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.

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):

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
"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
"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
"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
 "I was in the bathroom. He started banging on the door, screaming that he would beat me and kill me. He broke the handle on the door 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
 "He beat me a lot. He even threw me on the floor and pulled me by the hair and hit me, saying I had tricked him because he said I wasn't a virgin when we got married. I didn't know how to explain it because I was 14, and no one had told me anything. What had happened was that I started to have my period."12

While data on the extent of domestic violence is incomplete, information available to date shows a worldwide problem of serious proportions.

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 of all guilt by the justice system.

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).

11The Human Rights Watch Global Report on Women's Human Rights at 380 (Human Rights Watch 1995) [hereinafter "Global Report"].

12Mayela Garcia and Gloria Sayavedra, Mexico: Violence, Empowerment and Women's Health, in The Right to Live Without Violence, supra note 10, at 33.

13Denise Stewart, "The Global Injustice", Viz-a-Viz (Ottawa, Canadian Council on Social Development 1989) quoted in Women, Violence and Human Rights (Women's Leadership Institute Report, USA Centre for Women's Global Leadership 1991).

14Christine Bradley, Why Male Violence Against Women is a Development Issue: Reflections from Papua New Guinea, in Davies, supra note 2, at 11.

15Heise, supra note 3, at 19.

16Violence Against Women in Russia: Research, Education, and Advocacy Project, A Report for the Non-Governmental Forum of the United Nations' Fourth World Conference on the Status of Women (Russian Association of Crisis Centers for Women 1995), citing statistics from the Prosecutor General's Office, quoted in Interfax, May 1995. In 1994, the Social Security Ministry reported that 15,000 women were killed by their husbands or partners, half of all women murder victims. Rob Waters, A Hotline Movement Grows In Russia, Ms., November/December 1995.

17Janice Wood Wetzel, The World of Women: In Pursuit of Human Rights, at 161 (Macmillan 1993), cited in Julie Mertus, State Discriminatory Family Law and Customary Abuses, Women's Rights/Human Rights 140 (Julie Peters and Andrea Wolper eds., Routledge 1995).

18Violence Against Women in South Africa, supra note 6 at 49.

19Heise, supra note 3, at 19.

20Federal Bureau of Investigation, Crime in the United States 1995: Uniform Crime Reports.

21Supra note 17.

22Brooke, James, "Honor Killing of Wives is Outlawed in Brazil," New York Times, March 29, 1991, cited in Mertus, supra note 17 at 140, n. 35 at 146..

23Violence Against Women in South Africa, supra note 6 at 2.

24Vienna Tribunal, supra note 7 at 12.





29Ecuador: A Political Agenda Against Violence, in The Right to Live Without Violence, supra note 10, at 74.

C. Causes of Domestic Violence

What causes widespread abuse of women by men in intimate relationships?30 In one of the few cross-cultural studies, David Levinson found the following factors predictive of wife beating: 1. Men control the greater share of economic resources; 2. Men hold decision-making power in the family; 3. Availability of divorce is restricted for women; 4. Violent conflict resolution is valued.31

While Levinson's study was based on small-scale traditional societies, his findings support feminist theory on the causes of domestic violence in more complex societies, as summarized in the United Nations special report on Violence in the Family (hereinafter "UN Report"):

"They stress that economic, social and political factors are all interconnected, creating a structure wherein the low economic position of women is linked with their vulnerability to violence within the household.32 This, in turn, is connected to their powerlessness in relation to the State and men in general, thereby resulting in a tacit acceptance by the community of abusive conduct within the home. This acceptance becomes manifest in societal attitudes that allow husbands to view their wives as chattels and that stress the privacy and autonomy of the family." 33

Some authors consider the institution of the family itself a root cause or at least a primary replicator of women's subordinate status, which allows domestic violence to occur.34 Govind Kelkar, one of the foremost researchers in India on women's issues, states:

The family is one of the primary institutions of society that establishes the unequal social relations that sustain the subordination of women. . . . Gender hierarchy, combined with generational hierarchy, bestows differential powers on the various members of the family vis-as a-vis their ability to act as fully independent beings in relation to one another.35

The traditional patriarchal family is based on the assumption that the man should be the dominant partner in an unequal relationship and should rule over his wife and children as his possessions.36 Indeed, today in some countries, women have no independent legal identity apart from their husbands37. Still, there is general agreement that social mores and institutional structures have a significant role in identifying the target (women ) and the context (intimate relationships). As the UN Report concluded:

"In the end analysis, it is perhaps best to conclude that violence against wives is a function of the belief, fostered in all cultures, that men are superior and that the women they live with are their possessions or chattels that they can treat as they wish and as they consider appropriate."38

30Throughout the world, violence against intimates in heterosexual relationships is overwhelmingly perpetrated by men against women. Strategies for Confronting Domestic Violence: A Resource Manual 4 (United Nations Publication 92-1-130158-0, 1995) [hereinafter "Strategies"]; UN Report, supra note 4, at 13.

31David Levinson, Family Violence in Cross-Cultural Perspective 84 (Sage 1989).

32However, the UN Report also noted that "this analysis fails to explain how sociological and cultural factors that are universal, intersect with individual personal behaviour." As has been pointed out by other authors as well as Levinson, though domestic violence is widespread, it is by no means universal -- either within a society or throughout the world. See Donald G. Dutton, The Batterer: A Psychological Profile at 17 (BasicBooks 1995); Levinson, supra note 31, at 102.

33UN Report, supra note 4, at 31, citing Del Martin, Battered Wives (Glide 1976); J. Hammer, Violence and the social control of women, in Power and the State, Gl Littlejohn, ed. (Croom Helm 1977); M.D.A. Freeman, Violence against women: does the legal system provide solutions or itself constitute the problem? British J Law & Policy, No. 7, 1980, at 215; J. Scutt, Even in the Best of Homes: Violence in the Family (Penguin 1982) chap. 4; S. Jackson and P. Rushton, Victims and villains: images of women in accounts of family violence, Women's Studies International Forum, No. 5, 1982, at 7; R. E. Dobash and R. Dobash, Violence Against Wives: A Case Against the Patriarchy (Open Books 1980).

34It is for these reasons, including the sheer numbers and global extent of domestic violence, that Charlotte Bunch and Niamh Reilly's conclusion in reporting on the Vienna Tribunal for Women's Human Rights deserves serious attention: "Such human rights abuse demands an examination of the family as an institution which conceals the violation of the human rights of women and children and protects abusers from accountability." Charlotte Bunch and Niamh Reilly, Demanding Accountability: The Global Campaign and Vienna Tribunal for Women's Human Rights 27 (UNIFEM 1994) [hereinafter "Demanding Accountability"] vis-as a-vis their ability to act as fully independent beings in relation to one another.

35Freedom from Violence 90 (Margaret Schuler, ed., UNIFEM 1992).

36The basis for family is found in its etimology: family comes from the Latin famulus meaning servant or slave. Casey Miller & Kate Swift, Words and Women 8 (Anchor Books 1977).

37See Mertus, supra note 17 at 135. Women in Brazil were considered perpetual subordinates, equated with "minors, spendthrifts and backwoodsmen" until 1962. Global Report, supra note 11 at 351. In South Africa, women married by civil law were considered minors until 1993, if they had married before 1984. Violence Against Women in South Africa, supra note 6 at 28-9.

38UN Report, supra note 4, at 33.


Laws both embody and inform social mores. So it is with domestic violence that we see the law in the role of promoting and sanctioning wife abuse, acting as an impediment to reform and being a vehicle for reform. A major step toward ending domestic violence is ending the law's complicity in it.

A. Legal Sanction for Wife Abuse

Historically in Western societies and still today in others, the "duty of chastisement" was codified in law.39 By it, husbands are encouraged to physically discipline their wives, who, together with children and the mentally impaired, are not considered to have legal capacity. This rule of law was early stated in Western societies by Friar Cherubino in the 15th Century:

When you see your wife commit an offense, don't rush at her with insults and violent blows. . . . Scold her sharply, bully and terrify her. And if this still doesn't work. . . take up a stick and beat her soundly, for it is better to punish the body and correct the soul than to damage the soul and spare the body. . . . Then readily beat her, not in rage but out of charity and concern for her soul, so that the beating will redound to your merit and her good.40

This rule of ecclesiastical law was adopted into civil law as evidenced by the 1775 edition of Blackstone's Commentaries: "For he, [the husband] is to answer for her behavior, the law thought it reasonable to intrust him with the power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children"41 The Duty of Chastisement was exported to other regions of the world through colonizers and missionaries,42 where it reinforced traditional values in some cases and destroyed them in others.43

In other legal systems, such as under certain interpretations of Islamic law, husbands are expected to control and physically discipline their wives as necessary.44 Sura 4, Verse 38 provides:

"Men are the managers of the affairs of women, for God has preferred in bounty one of them over another . . . . And those you fear may be rebellious admonish; banish them to their couches, and beat them."45

As a Pakistani court held in denying a woman's application for a writ of habeas corpus, alleging cruel treatment and illegal confinement,

"This positive injunction of the Holy Koran leaves one in no manner of doubt that under certain circumstances a husband can even go to the extent of giving a beating to his wife who persists in her rebellious conduct . . . ."46

A parliamentarian in Papua New Guinea declared, "Wife beating is an accepted custom . . . we are wasting our time debating the issue."47 In Kenya, "the husband also has the right to  "discipline" his wife under customary law, which often means serious domestic violence."48 And in Nigeria, the criminal code justifies a "reasonable amount" of physical chastisement of a wife.49

The Right of Chastisement remained the law in most states of the U.S. until the end of the last century.50 Even after courts and legislatures declared it illegal and criminal, the response preferred by courts was to pull the veil on the privacy of the family and to not interfere.51 This remained unchallenged and unchanged until the 1970's.52

Even where the Duty of Chastisement has been abrogated by law, its influence is still felt in attitudes of the population at large as well as in the legal system which minimizes wife abuse, considers it a private matter or blames the victim.53 And, in most countries of the world, a wife has no legal protection from her husband's sexual assaults.54 Marriage is considered to provide a right of sexual access for the male. In Chile and Guatemala, laws exonerate men for rape if they agree to marry their victims.55 And in many countries of Latin America, wife assault is not a crime unless it results in injury sufficient to incapacitate the victim.56 Since incapacitation is defined as inability to work outside the home, a woman's injury, no matter how serious, may not give rise to a criminal incident.

Laws not only sanction wife abuse for disciplinary and other reasons. They also give husbands the legal right to kill their wives in certain circumstances, mostly for adultery. On April 15, 1990, Iraq passed a decree allowing men to kill their wives for adultery.57 Similar laws prevail in Iran and Pakistan.58 Until 1991, the honor defense to killing one's wife for suspected adultery was widely and successfully used in Brazil and other Latin American countries.59 In a 1972 Brazilian case, a man was acquitted of killing his wife based on legitimate defense of his honor.60 The couple had been married 16 years when she got a job, and began showing some independence. For that and her alleged refusal to pay her "conjugal debt," the husband killed her. The case was upheld on appeal. While the honor defense has been thrown out by the Superior Tribunal of Justice, Brazil's highest court, it continues to be successfully used in jury trials.61

39UN Report, supra note 4, at 11; see alsoViolence Against Women in South Africa, supra note 6, at 29: Customary practices within the South African homelands allowed "a man . . . the right to determine the people his wife associates with, her clothes, whether she may seek employment, even whether she may visit a doctor."

40Lorraine Dusky, Still Unequal 262 (Crown Publishers, Inc. 1996).

In other legal systems, such as under certain interpretations of Islamic law, husbands are

41J. W. Blackstone, Commentaries on the Laws of England 445 (7th ed. 1775).

42 "Customary law" in most African countries is a peculiar hybrid, based partly on the practices of the pre-colonial African societies as recorded by the colonizers, and partly on the encoding, amendment and adaptation of those recorded practices as legislated by the colonizers -- either in an attempt to eradicate "primitive" or "unchristian" practices, or in order to facilitate colonial needs such as the labor supply. It has been described as "neither customary nor law." In South Africa, as in other African countries, the official recording of  "customary law " took place largely in the context of the relationship between the (male) colonial authorities and (male) African ruling elites and perhaps had the most significant impact in the sphere of the family. Variable traditional practices later became rigid rules of  "customary law " enforced by white administrators and judicial officers in the colonial and later apartheid legal system. In some cases, customary law reflected closely pre-colonial (and even contemporary) African views on the nature of the family and marriage. In other cases, the white courts' view of African practices became accepted as the correct interpretation of the position of women in African society." Violence Against Women in South Africa, supra note 6, at 35-36.

43Id. at 35, n. 58. In parts of Africa colonized by the French, one author concludes that, before colonization,
"[T]he law seemed to view women as objects rather than persons." However, she also notes, "That view was not universal, however, for in some societies women played a key role. This was the case for certain ethnic groups in West Africa, such as the Akan on the Ivory Coast or the Lebous in Senegal." Seny Diagne, Defending Women's Rights -- Facts and Challenges in Francophone Africa, in Ours By Right: Women's Rights as Human Rights, 43, 43 (Joann Kerr ed., Zed Books, 1993) [hereinafter "Ours By Right"].

44For the position that Islam provided major advances for women, but has since been distorted see Jan Goodwin, Price of Honor, chapter 2 (Plume/Penguin, 1995); see also Marie Aimee Helie-Lucas, Women Living Under Muslim Laws, in Ours By Right, supra note 43, at 59.

45Cited in Muhammad M. Haj-Yahia, Wife Abuse in the Arab Society in Israel: Challenges for Future Change, in Future Interventions with Battered Women and Their Families 87, 87 (Jeffrey L. Edleson and Zvi C. Eisikovits eds., Sage 1996) [hereinafter "Future Interventions"]. Surah Nisa, Chapter IV, Verse 34 has also been interpreted to mean that a husband is permitted to beat his wife. See Hina Jilani, Whose Laws? Human Rights and Violence Against Women in Pakistan, in Freedom From Violence, supra note 30, at 67.

46Freedom From Violence, supra note 35, at 67, citing Pakistan Legal Decisions Booklet 129-30 (1971).

47Wife Beating (World Development Forum June 15, 1987) cited in Heise, supra note 3, at iii.

48Koki Muli,  "Help Me Balance the Load: " Gender Discrimination in Kenya, in Woman's Rights/Human Rights, supra note 17, at 78, 79.

49S. 55 (1) d of the Northern Nigerian Criminal Code, cited in UN Report, supra note 4, at 87, note 83.

50Laura L. Crites, Wife Abuse: The Judicial Record, in Women, The Courts and Equality 38 (Laura L. Crites & Winifred L. Hepperle, eds., Sage 1987).



53See, e.g., Violence Against Women in South Africa, supra note 6, at 62.

54Heise, supra note 3, at 31.

"Though [a] number of countries' laws now provide that unwanted sexual contact within marriage is unlawful, . . . criminal actions under these laws are rare, and successful prosecutions even more uncommon." Jane Connors, Government Measures to Confront Violence Against Women, in Women and Violence 182, 192 (Miranda Davies ed., Zed Books Ltd. 1994). In the U.S., approximately 20 states still have some form of exemption from criminal liability for rape of a wife or cohabitant. State-By-State Chart: Status of Marital Rape Exemption (National Center on Women and Family Law 1995).

55Heise, supra note 3, at 31, citing Ana Isabel Garcia, Mujeres Latinoamericanas en Cifras: Guatemala. (Madrid, Spain: Ministerio de Asuntos Sociales, Instituto de la Mujer 1992) and Teresa Valdez, Mujeres Latinoamericanas en Cifras: Chile, (Madrid, Spain: Ministerio de Asuntos Sociales, Instituto de la Mujer 1992).

56Heise, supra note 3, at 32, citing Tina Rosenberg, Women and the Law in Latin America: Machismo Still Prevails But Not without Challenge (Ford Foundation Report 1992). "Article 276 of the Bolivian Penal code, for example states that lesions [injuries] caused by a husband are punishable only if they incapacitate a woman for more than 30 days."

57Marie Aimee Helie-Lucas, Women Living Under Muslim Laws, in Ours By Right, supra note 43, at 55.

"No mention is made of any need to prove adultery; men received from the state the extraordinary privilege of being both judge and executioner of women in their families, without recourse to justice for the accused." According to Al-Ittehad, a Pakistani weekly journal, the decree provided, "Any Iraqi who kills, even with premeditation, his own mother, daughter, sister, aunt, niece on his cousin on the father's side, for adultery will not be brought to justice," cited in Freedom from Violence, supra note 35, at 69.

58 Concerning Iran, see Akram Mirhosseini, After the Revolution: Violations of Women's Rights in Iran, in Women's Rights/Human Rights, supra note 17, at 73; concerning Pakistan, see Heilie-Lucas id. at 58 - 59.

59Women's Rights/Human Rights, supra note 17, at 140 - 141:

"In Brazil, until 1991 wife killings were considered to be noncriminal 'honor killings'; in just one year, nearly eight hundred husbands killed their wives. Similarly, in Colombia, until 1980 a husband legally could kill his wife for committing adultery.", Women and Violence at 32 - 33. See also, Global Report, supra note 11, at 356:
[T]he honor defense characterizes the accused as having acted spontaneously in legitimate self-defense against an imminent aggression, though against his honor rather than his physical being. The notion that a man's honor can be gravely threatened by his wife's adulterous acts reflects proprietary attitudes towards women deeply rooted in Brazilian society.

(The article contains an analysis of the origins and development of Brazil's honor defense, the appliciton of the privileged homicide rule to lessen culpability for wife murder and the ineffectiveness of legal reform.)

60Global Report, supra note 11, at 356.

61Dorothy Q. Thomas, In Search of Solutions: Women's Police Stations in Brazil, in Davies, supra note 2, at 32 - 33.

B. Legal Traps for Victims of Domestic Violence

Other laws do not specifically sanction wife abuse, but rather operate to trap women in abusive relationships. Such laws include prohibitions and restrictions on divorce, father right of child custody, property distribution that favors males, discriminatory citizenship laws, laws proclaiming women perpetual minors and restrictions on women's access to the legal system. In Guatemala, for example, a husband has the statutory right to prohibit his wife from working outside the home.62 Until 1989, a husband in Ecuador could legally force his wife to live with him no matter how abusive he was.63 And in Chile, divorce for any reason is illegal.64

62Heise, supra note 3, at 30.



1. Family Law
a. Marriage Laws and Customs65

Marriage laws that act as impediments to safety for domestic violence victims include laws allowing arranged marriage, child marriage and marriage payments (dowry and brideprice). Where marriages are arranged, the contract is between families, not individuals and any dissolution of that contract necessarily involves the families.

The practice of giving marriage payments spread from Portugal and Spain to India, Africa and the Middle East, where it continues to exist.66 While marriage payments were originally intended to provide economic security for women in the event of marriage dissolution, they are now controlled by male kin.67 Their existence contributes to the concept of women as property to be bought and sold.

The payment of brideprice by the groom's family also operates to prevent a woman from escaping violence in the home. Under African customary law, for example, once the lobola or brideprice is paid "the woman and her child-bearing and earning ability is entirely owned by the husband."68 If there is a permanent separation, the lobola must be returned to the husband's family.69 This "can result in enormous pressure on the wife to stay in an abusive marriage, particularly if the bridewealth was in the form of cash or goods that are no longer available."70

Dowry contributes to the low status of women when it is considered a payment to help the husband and his family carry the burden of a wife.71 The existence of dowry has led to murders of women in India and Bangladesh as husbands and their family members use this practice to obtain material wealth. While dowry was outlawed in India in 196172 and in Bangladesh in 1980,73 the practice continues.

In July 1991, serious concern was expressed in Parliament over government statistics indicating 11,259 dowry related murders during the last few years. The official dowry murder toll has risen steadily form [sic] 2,209 in 1988 to 4,835 in 1990. In August 1990, the Minister of State for Home Affairs admitted in the Rajya Sabha (upper houses of Parliament) that despite two amendments to the Dowry Prohibition Act, there was a rise in dowry deaths.74

In many parts of the world, marriages are still arranged by families, often between very young brides and older grooms.75Where marriages are arranged, the ability to leave if one is being harmed may not be the woman's decision alone. The practice predominates in India.

Most Indian girls are married between the ages of 16 and 20, although some are married at significantly younger ages. Marriage is almost always arranged by parents or brothers. The young bride must be obedient to her elders, loyal to her husband and his family, and never discuss her marital problems with outsiders. The model wife is taught that she must be ready to sacrifice her life for the honor of her husband and his family name. Even educated and well-placed professional women submit, for instance, to wife beating, implicitly an acceptable form of control.76

Laws support and reinforce customary practices by establishing minimum age for marriage. In Iran, the legal age of marriage was reduced to 9 after the 1979 Islamic Revolution.77 In Chile, Ecuador, Panama, Paraguay, Sri Lanka, and Venezuela the minimum marriageable age is 12.78 Where wide disparities in age exist and girls do not fully consent to marriages (as guaranteed by the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages79), they enter into an arrangement of subordination to their husbands (and often his relatives). As Levinson's study found, subordination in marriage is one of four common characteristics of societies with high levels of domestic violence80. Moreover, early marriage and childbirth contributes to women's reduced educational opportunities, which in turn contributes to fewer employment options and, therefore, increases her dependency on her husband, thus significantly limiting her alternatives to a violent marriage.81 In addition, children who conceive and give birth before their bodies are fully mature have a three times higher rate of death in childbirth than 20 to 24-year olds and often suffer longterm disabilities.82

Forced marriages occur in some countries, like Chile and Guatemala, where laws exonerate a man who agrees to marry the girl he has raped.83 By doing so, he restores the girl's and her family's honor. The effect of this practice, which also occurs in parts of Mexico, is described by Graciela Freyermuth Enciso and Maria de la Luz Garcia Moya, members of the Grupo de Mujeres de San Cristobal de Las Casas: "Other  'traditions' such as kidnapping and rape often result in marriage or cohabitation. Thus, homes are founded on the basis of abuse. From such an unequal beginning, a respectful and affectionate relationship is not likely to result."84

Attempts have been made to end the practice of forced marriage and child marriage by states adopting laws raising the minimum age of marriage.85 However, customary practices remain difficult to eradicate and girls continue to be married off by their families at very young ages.86

65In general, three types of marriage and family law exist: 1) General or civil law (based on a European model such as English common law, Roman law or Roman Dutch common law); 2) Customary law, (see note 42, supra) and 3) Religious law. In some countries, parallel systems of family law exist, with civil law applying to one group and religious law applying to members of that religion. In Malaysia, for example, Muslims are governed by Islamic Family Law, while non-Muslims are governed by the general civil law. Malaysia, Islamic Family Law Acts (1985); Law Reform (Marriage and Divorce) Act 1982), cited in UN Report, supra note 4, at 66. Customary law also exists side-by-side with civil and religious law in some places. Id. at 66. For Muslims in some countries, a certain version of Islamic law has been imposed recently, which particularly burdens women. See, infra note 95.

66Julie Mertus, State Discriminatory Family Law and Customary Abuses, in Women's Rights/Human Rights, supra note 17, at 139.

67Id. In Kenya and other African countries, marriage payments are considered a way to generate income for the education of male children. Koki Muli, "Help Me Balance the Load:" Gender Discrimination in Kenya, in Women's Rights/Human Rights, supra note 17, at 79.

68Sheelagh Stewart, Working the System: Sensitizing the Police to the Plight of Women in Zimbabwe, in Freedom From Violence, supra note 35, at 157, 159.

69Marsha A. Freeman, The Human Rights of Women in the Family: Issues and Recommendations for Implementation of the Women's Convention, in Women's Rights/Human Rights, supra note 17, at 149, 158.


71Rashida Patel, Challenges Facing Women in Pakistan, in Ours By Right, supra note 43, at 32, 35.

72Sakuntala Narasimhan, India: From Sati to Sex-Determination Tests, in Davies, supra note 2, at 45.

73Julie Mertus, State Discriminatory Family Law and Customary Abuses, in Women's Rights/Human Rights, supra note 17, at 135, 140.

74Govind Kelkar, Stopping the Violence Against Women: Fifteen Years of Activism in India, in Freedom from Violence, supra note 35, at 75, 79.

75Girls Rights, in Advocacy Kit on the Convention on the Elimination of All Forms of Discrimination Against Women, (UNIFEM/UNICEF 1995) [hereinafter "CEDAW Advocacy Kit"].

76Indira Jaising, Violence Against Women: The Indian Perspective, inWomen's Rights/Human Rights, supra note 17, at 51, 52.

77Akram Mirhosseini, After the Revolution: Violations of Women's Human Rights in Iran in Women's Rights/Human Rights, supra note 17, at 72.

78Girls Rights, in CEDAW Advocacy Kit, supra note 75..

79A/RES/1763 A (XVII) (7 November 1962).

80Levinson, supra note 31, at 88.

81Girls Rights, in CEDAW Advocacy Packet, supra note 75.

82Julie Mertus, State Discriminatory Family Law and Customary Abuses, in Women's Rights/Human Rights, supra note 17, at 135, 138.

83Heise, supra note 3, at 31.

84Graciela Freyermuth Enciso and Maria de la Luz Garcia Moya, Violence Against Women: the Chiapas Case, in The Right to Live Without Violence, supra note 10, at 50, 51.

85Girls Rights, in CEDAW Advocacy Kit, supra note 75.

86Segny Diagne, Defending Women's Rights -- Facts and Challenges in Francophone Africa, in Ours By Right, supra note 43, at 43, 45. According to Segny Diagne, while current African laws all require that consent is a prerequisite to marriage, in practice parents arrange marriages for their offspring.

b. Disabilities During Marriage

In some countries, women are considered minors by virtue of marriage. In South Africa, under customary law, which still applied in the homelands prior to enactment of the new constitution, an African woman living with her husband was deemed to be a minor and her husband was her guardian.87 In many countries, by virtue of marriage, women are stripped of property rights, they cannot enter into contracts, buy or sell property or open a bank account without their husband's permission.88 In some countries, women also need their husband's permission to travel89. In Iran, if a woman refuses her husband's sexual demands, she loses the right to shelter, food and clothing.90 This dependency provides the basis for domestic violence, where husbands are responsible for their wives who require male guidance and discipline.

Women may be restricted in their movements and isolated from society by law, custom or consequence. In certain Islamic countries, women are confined to the home, for the most part, and required to wear a full or partial veil when they do go out. In 1986 in Iran, special camps were established for women not observing the dress code. 91 As a result of this law women may be whipped, fined or subjected to acts of extreme cruelty.92 Some Muslim clerics have issued edicts declaring "that a woman who does not observe the rules of seclusion does not deserve any redress or protection against violence."93 Various authors point out that chador and chardiwari (the veil and the four walls) is a Semitic tradition in the Middle East which is not practiced in Muslim areas of Africa and Asia.94 Nevertheless, they have been enshrined in the law of so-called "Islamic" states.95While the state seeks to control women's behavior for political reasons,it does so t hrough male family members, who are granted the legal right and duty to discipline their wives, sisters and daughters.96

87Violence Against Women in South Africa, supranote 6, at 31, citing Section 11(3)(b) of the Black Administration Act (No. 38 of 1927).

88Julie Mertus, State Discriminatory Family Law and Customary Abuses, in Women's Rights/Human Rights, supra note 17, at 135, 142-43.

89Marsha A. Freeman, The Human Rights of Women in the Family: Issues and Recommendations for Implementation of the Women's Convention, in Women's Rights/Human Rights, supra note 17, at 149, 156. See, discussion infra at 31.

90Akram Mirhosseini, After the Revolution: Violations of Women's Human Rights in Iran, in Women's Rights/Human Rights, supra note 17, at 72, 73.

91Id. at 75.

92Id: "But, just as commonly, women who do not adhere to the dress code are punished with acts of extreme cruelty: their feet may be put in a gunny sack full of mice and cockroaches, their faces splashed with acid or cut with razor blades."

93Hina Jilani, Whose Laws?: Human Rights and Violence Against Women in Pakistan, in Freedom From Violence, supra note 35, at 63, 70.

94Marie Aimee Helie-Lucas, Women Living Under Muslim Laws, in Ours By Right, supra note 43, at 52, 53.

95 "The legal situation of women living in Muslim countries and communities has been deteriorating

over the past two decades through the process of Islamization, i.e., the creation of  "Islamic" states. A certain version of Islam (best known in the media as "fundamentalism" is being promoted and is expanding, mainly to the detriment of women.
"Failing to set up anything specifically Islamic in their politics or economics, "Islamic" States turn to their only specificity -- making women the guardians of culture and religion and confining them to a model and a way of life which is 14 centuries old.
"Their focus on Family Codes is crucial to the deterioration of women's lives. Family Codes set the rules for aspects of life which affect women: marriage, polygamy, divorce, repudiation, custody and guardianship of children, sexual control, reproductive rights, inheritance, and testimony in court." Id. at 54.
Shariah law has been passed recently in Sudan, Pakistan and Bangladesh. It also operates in Algeria, Egypt, and for the Muslim population of India, among other countries. Id. at 55. Shariah Law, as written and interpreted by "fundamentalist" states and clerics, has been challenged by Islamic scholars as not reflecting an accurate interpretation of Islam. Id. at 57.

96See, e.g.g., Id. at 55; Hina Jilani, Whose Laws?: Human Rights and Violence Against Women in Pakistan, in Freedom From Violence, supra note 35, at 63, 69:

The Revolutionary Command Council of Iraq issued a decree in February, 1990 empowering men to take the law into their own hands when punishing women from their families for adultery. The words of the decree quoted by the press are, "Any Iraqi who kills, even with premeditation, his own mother, daughter, sister, aunt, niece or his cousin on the father's side, for adultery will not be brought to justice" (Al-Ittehad,1990).
c. Marital Dissolution

Marriage binds two people together in a relationship sanctioned and regulated by the state and, often, religious authority. It offends one's sense of morality and ethics to have the law require a woman to remain bound to someone who is hurting her. Indeed, in this way the law becomes a tool of the abuser, and the state (and religious authority) becomes complicit in the abuse. Therefore, it is essential for women's safety that here be a legal and accessible means of dissolving marital bonds. This conclusion is supported by Levinson's study, showing that one of the commonalities among societies with high rates of domestic violence is restricted divorce for women.

As a general matter, divorce is possible under customary law, though it is often a matter between families and will be discouraged, especially where brideprice must be repaid.97 Divorce may be unavailable under certain Religious codes, such as Roman Catholic Canon Law, while drastically curtailed, but available in cases of extreme cruelty, under Islamic-derived legal codes.98 Whether divorce can be obtained under civil law depends on the principles of marital dissolution adopted. Where fault for the marriage breakdown must be established, divorce is not guaranteed. However, in no-fault systems or systems that require a showing of irretrievable breakdown, divorce in domestic violence situations should be readily available.99

Where divorce is available, it is not always equally available to men and women. As Helsinki Watch Counsel Julie Mertus concludes, "[I]n many countries throughout the world, men have a unilateral right to divorce, while women's right to divorce, if it exists at all, is dependent upon the husband's consent."100 Under traditional Jewish law, for example, a woman cannot get a divorce unless her husband signs a "get", a document of divorce.101 "Under Islamic law, a man can divorce his wife unilaterally by pronouncing talaq ("I divorce thee"), whereas wives can divorce their husbands only by establishing grounds."102 In Iran, "divorce is the indisputable right of men . . ., unless there is a statement to the contrary in the marriage contract."103 In Uganda, a man can get a divorce by proving adultery only, while a woman must establish at least two grounds (e.g. adultery and cruelty).104 Similarly, in Uruguay, a woman must establish flagrant misbehavior while a man need only establish one incident of adultery to get a divorce.105

In some countries, mediation or attempts at reconciliation are required before a divorce will be granted. For example, in Palestine,

Arab women usually appeal to a religious court for a bill of divorce. The judge--who is usually a clergyman and lacks sufficient legal training--then attempts to achieve a "family peace" arrangement. This arrangement usually aims to persuade the partners to keep living together, even if wife abuse and battering is likely to continue. Both the families and relatives of the partners and some senior members of the community are usually involved in the process of negotiating family peace upon the recommendation of the religious judge. Clearly, these individuals do not always realize that battered women need support and protection, nor do they tend to assist her in her attempt to deal with the situation of violence and its implications. Rather, they often advocate traditional solutions along the lines of family honor, family reputation, and family stability and unity.106

The emphasis on mediation and reconciliation in many cultures operates as both an impediment and a danger to battered women, where they are blamed for causing the abuse, thus supporting the abuser's position.107 Where authorities promote mediation, women may be intimidated into dropping charges or foregoing legal remedies. 108

Some countries require long waiting periods after marriage before divorce is possible. "Malaysia, for example, bars divorce unless there are exceptional circumstances until the marriage has lasted two years.109 . . . Trinidad and Tobago for five years, unless there are exceptional circumstances110. . . . In England and Wales the bar is absolute and is one year."111

Even where divorce is readily available, it is not a sufficient protection from domestic violence. For one, there is no guarantee the violence will end after the marriage is dissolved. Indeed, the possessiveness that underlies a substantial amount of domestic violence may cause him to stalk, harass and physically harm her long after the marriage ends. Moreover, not all women are married to their abusers, and some that are do not want a divorce. And, lack of money for attorney and court fees is an obstacle for many women, who lack access to financial resources.

97UN Report, supra note 4, at 66.



100Julie Mertus, State Discriminatory Family Laws and Customary Abuses, in Women's Rights/Human Rights, supra note 17, at 135, 138.

101Women's Rights/Human Rights at 159.

102Women's Rights/Human Rights at 159.

103Women's Rights at 73.

104Women's rights/Human Rights at 159.

105Women's Rights/Human Rights at 159.

106Future Interventions at 95.

107Muhammad M. Haj-Yahia, Wife Abuse in the Arab Society in Israel: Challenges for Future Change, in Future Interventions, supra note 45, at 87, 91.

108In a South African case reported by Human Rights Watch, a police station commander called a woman's lawyer to say the woman wished to withdraw the interdict and dissolution proceeding. When the lawyer called her client, she learned that the station commander had visited her home while her husband was present and urged her to reconcile. She was too firghtened ot tell the commander she wished to continue with the legal action. Violence Against Women in South Africa, supra note 6, at 79.

109Law Reform (Marriage and Divorce) Act 1982, ss. 53 and 54, cited in UN Report, supra note 4, at 67.

110Matrimonial Proceedings and Property Act Cap. 45:51, cited in id.

111Matrimonial Causes Act 2973, s. 3(1), cited in id.

d. Child Custody

A significant reason battered women do not leave abusive relationships is fear of losing their children, either through legal or nonlegal means. As a method of control, men who batter often threaten to keep the children from their wives if they leave.112 This is no idle threat. In many countries, through law or practice, children are considered the property of their fathers. On divorce, they reside where their father chooses.

Under Muslim Family Law (Shari'a), for example, "Even when children live with their mother, fathers are considered the legal guardians and maintainers. Women lose custody of their children altogether when the boys are seven and girls are nine, or when boys reach puberty or girls reach a marriageable age."113 In Iran, on marriage dissolution or death of the father, the mother gets temporary custody only of daughters under seven years old and sons under two.114 Thereafter, women get custody only if no father or grandfather is living. 115 In Algeria, which has adopted a very restrictive religious family code, "Women cannot be the legal guardians of their children; they may have temporary custody of the young ones only, under the control of their ex-husbands and under very restrictive conditions."116 In the former French colonies of Africa, current practice is to give custody of children to the father or his family on divorce.117

In Costa Rica, women who leave the home to escape domestic violence may be considered to have abandoned it and their children, thus forfeiting any right to custody. Such was the case of 37 year old Marcela Jeger Contreras, who left her 13 year violent marriage and lost custody of her three young daughters. Marcela testified at the First Tribunal on Women's Human Rights Violations in Costa Rica, held November 24, 1995.118

I was blamed and punished by the removal of patria potestad [the right to make legal decisions for the child] under the rgument that I had abandoned my parental duties, but they never took into account the history of family and spousal abuse clearly evidenced in the case.119

In the United States, where father preference in law was abrogated in most states by the early 1900's,120 there is evidence that it continues to operate at a less visible level. In 90% of dissolution cases involving children, custody is decided by mutual agreement of the parties and, in the great majority of cases mothers, as primary caretakers of children, continue being primary physical custodian121. However, in contested custody cases, evidence suggests that fathers win custody in a substantial minority and possibly a majority of cases, despite the fact that mothers for the most part remain primary caretakers of children.122 As a leading Treatise on Women and the Law concludes, "Women are being discriminated against in original awards of child custody and actions to modify custody awards on the basis of being the parent with fewest economic resources, because they are single parents, because they work outside the home, and because they are battered."123 Moreover, the trend in the U.S. to award joint custody puts battered women at risk, as they may be forced into continued regular contact with their abusers who use joint custody as a means of control and harassment.124

Where custody is not obtained legally, it may be obtained through extra-legal means. Of the more than 350,000 children abducted by parents each year in the U.S., the majority are abducted by fathers.125 More than half of these abductions occur in the context of domestic violence.126

In South Africa, under customary law which was still applicable in the homelands prior to enactment of the new constitution, "the husband (or a male relative, if he dies) has extensive rights over the family, including guardianship and control of the children, if lobola (brideprice) has been paid." 127 Civil law in South Africa also considered the father guardian of the children until 1993.128

In Zimbabwe a family totem system discriminates against women and operates to deny them rights to their children on divorce in much the same way as citizenship laws do (see infra, section 2).

Upon marriage, a woman does not become part of the husband's totem, although her children do. In effect, she loses ties to her natal family because of lobola and remains an outsider in her (husband's) home for the rest of her life because of totem: her economic and social position is entirely dependent on the existence of her marriage. . . . If during the marriage the woman separates from her husband or there is a divorce, the children remain with and belong to the husband if lobola has been paid, and they are part of his totem.129

112The Effect of woman Abuse on Children: Psychological & Legal Authority, (National Center on Women & Family Law 1991).

113Julie Mertus, Discriminatory Family Law and Customary Abuses, in Women's Rights/Human Rights, supra note 17, at 135, 141. In Iran, under the Islamic Republic Canon Law, "Women get custody of children only if there is no father or grandfather living. Where a marriage is dissolved, even if the father has died, a woman may have custody only of daughters under seven years old and sons under two years old." Akram Mirhosseini, After the Revolution: Violations of Women's Rights in Iran, in Women's Rights/Human Rights, supra note 17, at 72, 73.

114Akram Mirhosseini, After the Revolution: Violations of Women's Rights in Iran, in Women's Rights/Human Rights, supra note 17, at 72, 73.


116Marie Aimee Helie-Lucas, Women Living Under Muslim Laws, in Ours by Right, supra note 43, at 52, 55.

117Seny Diagne, Defending Women's Rights -- Facts and Challenges in Francophone Africa, in Ours By Right, supra note 43, at 43, 46.

118Tribunal in Costa Rica: Testifying for Women's Human Rights, in The Right to Live Without Violence, supra note 10, at 99, 102 - 103.

119Id. at 103.

120"Until the twentieth century, fathers had a virtually absolute right to custody of their children." Child Custody, in Women and the Law s 6, 6-3 (Carol H. Lefcourt ed., Clark Boardman Callaghan 1996), citing Uviller, Fathers' Rights and Feminism: The Maternal Presumption Revisited, 1 Harv. Women's L.J. 107, 112. See also Zainaldin, The Emergence of a Modern American Family Law: Child Custody, Adoption and the Courts, 1796-1851, 73 Nw. U.L. Rev. 1038, 1052-74 (1979); Derdeyn, Child Custody Contests in Historical Perspective, 133 Am. J. Psychiatry 1369 (1976); Oster, Custody Proceeding: A Study of Vague and Indefinite Standards, J. Fam. L. 23 (1965); Censer, "Smiling Through Her Tears:" Ante-Bellum Southern Women and Divorce, 25 Am. J. Legal History 24, 43-46 (1981).

121Lenore J. Weitzman, The Divorce Revolution 216-17 (Free Press 1985).

122 Researchers estimate that of the approximately 100,000 contested custody cases each year, 40,000 fathers win custody, whether or not the mother has parental deficits and without regard to who has been the primary caretaker of the child. Lenore J. Weitzman and Ruth B. Dixon, The Economics of Divorce, 28 UCLA L. Rev. 1181 (1981). Weitzman and Dixon's study of contested custody cases in Los Angeles found that in 1977, 63% of fathers who fought for custody were successful. Id. In Dr. Phyllis Chesler's study of 60 "good enough" mothers, fathers won contested custody 70% of the time. Chesler, Phyllis, Mothers On Trial: The Battle for Children and Custody (Harcourt, Brace, Jovanovich 1991).

123Women and the Law, supra note 120, at 6-3.

124Id. at 6-8.

125Geoffrey L. Greif and Rebecca L. Hegar, When Parents Kidnap (NY: The Free Press 1992)


127Violence Against Women in South Africa, supra note 6, at 31, citing Section 11(3)(b) of the Black Administration Act (No. 38 of 1927).

128Violence Against Women in South Africa, supra note 6, at 31.

129Sheelagh Stewart, Working the System: Sensitizing the Police ot the Plight of Women in Zimbabwe, in Freedom From Violence, supra note 35, at 157, 160.

2. Citizenship & Asylum Laws

Discriminatory citizenship laws also operate to protect father right to children and to prevent women from escaping domestic violence.

"Laws that prohibit children born in wedlock from taking their mother's nationality severely restrict a woman's freedom of movement because she cannot decide to travel without considering that her children cannot travel with her on her passport. If she divorces, she cannot take her children out of the country, while her husband, who has the sole right to travel with them, can. Further where children take only their father's nationality, their mother may not have an independent right to have them live with her because the children's right of residency frequently depends on the citizenship attributed to the children."130

In Sri Lanka, for example, religious laws "may assign a woman (and her children) citizenship only on the basis of the husband's status."131

Another problem is illustrated by Gabon, where a woman must renounce her citizenship on marrying a foreign national. If she is later divorced, she cannot regain Gabonese citizenship.132 For a battered woman, the citizenship law significantly limits and can eliminate entirely her options for safety, as she may be left in a country where she has little, if any, support, unable to return to the protection of her family.

In other countries, laws severely restrict women's freedom to travel.
"In Saudi Arabia, women are not permitted to leave the country without the written permission of father or husband. . . . In Nigeria, married women cannot obtain passports without their husbands' permission. . . ."133

Combined with restrictions on divorce, restrictions on travel contribute to women's entrapment in relationships of violence.

Asylum laws generally do not grant asylum for gender-related violence, especially domestic violence. 134 However, as more states ratify CEDAW and other internaitonal human rights instruments that require states to take affirmative action to respond to violence against women, women who cannot find safety in their own country due to state inaction or inaiblity may be granted asylum in other countries. Canada was the first state to establish guidelines for granting gender-based asylum.135 The United States Immigration and Naturalization Service recently issued a memorandum, setting forth guidelines for ruling on gender-based asylum claims, making the U.S. the second state to adopt such guidelines.136

Laws designed o prevent custodial kidnapping, where they do not take domestic violence into account, can be used as tools of control by an abusive spouse. In the United States, for example, criminal laws punish interferrence with the custody rights of a parent or guardian -- including by the other parent.137 For that reason, the American Bar Association's Report to the President on the Impact of Domestic Violence on Children recommends that proof of domestic violence be a defense to custodial interference, as well as child abandonment.138

Similarly, if a child is abducted by a parent and taken to another country, the Hague convention on the Civil Aspects of International Child Abduction provides for the return of the internationally abducted child -- between signatory states.139 Without a recognition of the role domestic violence can play in parental kidnappings, however, the Hague Convention is as likely to assist a batterer in retrieving a child he has abducted in an effort to punish or control their abused mother as it is to assist her in retrieving the child.

130Marsha A. Freeman, The Human Rights of Women in the Family: Issues and Recommendations for Implementation of the Women's Convention, in Women's Rights/Human Rights, supra note 17, at 149, 157.

131Julie Mertus, State Discriminatory Family Laws and Customary Abuses, in Women's Rights/Human Rights, supra note 17, at 135, 141.


133Marsha A. Freeman, The Human Rights of Women in the Family: Issues and Recommendations for Implementation of the Women's Convention, in Women's Rights/Human Rights, supra note 17, at 149, 156. The Nigerian restriction appears to be a customary, rather than a legal practice, but nevertheless severely restricts a woman's freedom to travel.

134Leslye E. Orloff and Nancy Kelly, A Look at the Violence Against Women Act and Gender-Related Political Asylum, Violence Against Women 380, 391 (December 1995).

135Nurjehan Mawani, Women Refugee Claimants Fearing Gender-Related Persecution: The Canadian Experience, in Women on the Move 27 (Family Violence Prevention Fund 1993).

136Orloff and Kelly, supra note 134, at 391-92.

137See December 1988 survey of state laws in Selected State Legislation: A guide for Effective State Laws to Protect Children 25 (National Center for Missing & Exploited Children 2d ed. 1989).

138The Impact of domestic Violence on Children 14 (Howard Davidson ed., ABA, August 1994).

139Parental Kidnapping 37(Patricia Hoff ed., 3d ed., National Center for Missing & Exploited Children 1988).

3. Property Law Impediments

Throughout the world, women are seriously economically disadvantaged in relation to men. Women make up the great majority of the world's poor.140 Much of their work is unpaid or low wage.141 They are over represented in the marginal sectors of economies, lacking benefits and job security.142 In many countries, women still cannot own property and their husbands or male relatives have control over all resources. "Legal and cultural obstacles to owning and managing property are a major cause of women's poverty."143 Women's disadvantaged economic status seriously impedes any strategy to protect them from domestic violence.

In Zambia, statutes authorize discrimination against women in terms of wages, promotions and benefits.144 Women's rights to own land are restricted in Kenya, Swaziland, Zimbabwe and other countries.145 Inheritance laws may bar women from inheriting property.146 Credit laws, neutral on their face, may require collateral in the form of land or other property to which women are denied access.147 These laws and practices disadvantage all women. Married women are often twice jeopardized.

In Chile, most marriages are on a community property basis, where the husband has the sole right to manage the property. 148 In Sri Lanka, women governed under customary law have been denied the right to contract for property without their husbands' consent.149 And in Rwanda, "a married woman cannot enter into contracts, buy or sell property (including land), or even open a bank account without the authorization of her husband."150 In many parts of Africa, a husband can sell property without his wife's knowledge or consent, even if the family is left destitute.151 As Human Rights Watch concluded in its report on South Africa, "One of the major obstacles to a woman seeking to leave an abusive relationship is economic dependence on the man, and the lack of any available accommodation other than the shared home."152

This economic dependency leaves women in a precarious position, exacerbated if they are being abused. As Muhammad M. Haj-Yahia, lecturer at the Hebrew University of Jerusalem, explains, with regard to Palestinian Arab women:

[A] considerable percentage of Arab women are unemployed and financially dependent on their husbands. Financial support can play a crucial role in helping these women cope effectively with abuse and battering and may also provide them with an important incentive to leave a violent relationship. Moreover, such support can relieve the woman's family of the economic burden, which is often one of their main reasons for rejecting her appeals for help and protection.153

In a number of countries, divorce leaves the woman in worse economic straights. Under customary law in Africa, "all the property acquired by the spouses, except personal goods, belong to the husband who is entitled to retain all of it at the dissolution of the marriage."154 This is also true where Islamic family law prevails.155 In South Africa, the general rule of property division is one third to the woman, two thirds to the man.156 In the United States, studies have shown that women's income is substantially decreased after divorce, in contrast to men's which shows an increase.157 And in Korea, while legislative reform of the family code provides that property is to be distributed according to the contributions of the spouses, household labor is considered a "labor of love." 158

Women, who contribute the greatest amount of unpaid labor to the household, may be denied maintenance or child support on divorce. In the United States, a 1986 Census Bureau Survey found that "fewer than 15% of all women who had ever been divorced or were currently separated had obtained an agreement or court order to receive alimony."159 Indeed, statutes and case law restrict and, in some cases prohibit women's access to alimony on divorce.160 In India, Muslim women lost the right to maintenance after divorce in 1986.161 In Egypt, women lost the right to stay in the matrimonial home.162 Even where a claim for child support is possible, women may forego it because of family pressure. In Palestine, for example, "Oftentimes . . . the claim for child support is interpreted by the husband, his family, and the wife's family as a bitter complaint against the sacred family system and as a 'declaration of war.'"163

Moreover, state-funded social services are often difficult to obtain or nonexistent. According toHelsinki Watch Counsel Julie Mertus, The assumption that men are the supporters and heads of households also reinforces many state policies pertaining to entitlements and housing. In fact, few countries have changed their laws in order to eliminate sex prejudice in this area, instead requiring at a minimum that a married woman prove that she is a breadwinner before she may claim any state benefits, while not requiring a man to offer any such proof.164

And, as structural adjustment programs spread throughout the world in conjunction with efforts to globalize the economy, social services have become severely curtailed, leaving women seeking to end violent relationships with fewer and fewer options. 165

Any reform strategy must address women's disadvantaged economic status. Women's economic independence is essential if they are to achieve safety from violent relationships.

140Beijing Platform, supra note 1, at para. 47.

141Economic Rights, in CEDAW Advocacy Kit, supra note 75.

142Beijing Platform, supra note 1, at para. 160 - 64.

143Economic Rights, in CEDAW Advocacy Kit, supra note 75.

144Legal Status and Legal Reality, in CEDAW Advocacy Kit, supra note 75.


146 Id. See, Julie Mertus, Discriminatory Family Laws and Customary Abuses, in Women's Rights/Human Rights, supra note 17, at 135, 142 - 143; Marie Aimee Helie-Lucas, Women Living Under Muslim Laws, in Ours By Right, supra note 43, at 52, 55 (Algerian women have an unequal share in inheritance).

147Legal Status and Legal Reality, in CEDAW Advocacy Kit, supra note 75.

148Marsha A. Freeman, The Human Rights of Women in the Family: Issues and Recommendations for Implementation of the Women's Convention, in Women's Rights/Human Rights, supra note 17, at 149, 151.

149Julie Mertus, Discriminatory Family Laws and Customary Abuses, in Women's Rights/Human Rights, supra note 17, at 135, 142. The system of customary law is known as Tesawalamai.

150Id. at 142 - 143.

151Florence Butegwa, The Challenge of Promoting Women's Rights in African Countries, in Ours By Right, supra note 43, at 40, 40.

152Violence Against Women in South Africa, supra note 6, at 86.

153Muhammad M. Haj-Yahia, Wife Abuse in the Arab Society in Israel: Challenges for Future Change, in Future Interventions, supra note 45, at 87, 91 - 92.

154Julie Mertus, Discriminatory Family Laws and Customary Abuses, in Women's Rights/Human Rights, supra note 17, at 135, 142 - 143.

155Koki Muli, "Help Me Balance the Load:" Gender Discrimination in Kenya, in Women's Rights/Human Rights. supra note 17, at 78, 79.

156Violence Against Women in South Africa, supra note 6, at 33.

157On the average, newly divorced women experience a 30% drop in standard of living, while that of their husbands increases from 10 to 15%. These are considered conservative figures. Karen Winner, Divorced From Justice: The Abuse of Women and Children by Divorce Lawyers and Judges at xvii (Regan Books 1996), citing Family Disruption and Economic Hardship: The Short-Run Picture for Children at 70 (U.S. Bureau of the Census, March 1991); Greg J. Duncan and Saul D. Hoffman, What are the Economic Conseuqences of Divorce?, Demography, 25, No. 4 at 641 (Nov. 1988); see Sanford Bravr et al., Economic Hardship and Psychological Distress in Custodial Mothers, J. Divorce 12 [4], 19 (1989).

158Marsha A. Freeman, The Human Rights of Women in the Family, in Women's Rights/Human Rights, supra note 17, at 149, 160.

159Women and the Law, supra note 120, at 3B-3, citing Bureau of the Census, U.S. Dep't of Commerce, Child Support and Alimony: 1985, Current Population Reports, Series P-23, No. 152, at 6 (Aug. 1987).

160Texas does not allow court-ordered alimony on divorce. See Tex. Fam. Code Ann. S. 3.63 (Vernon Supp. 1989); See also, Del. Code Ann. Tit. 13, s. 1512 (Supp. 1988) (limit of 50% of length of marriage unless parties married 20 years or longer); Ind. Code Ann. S 31-1-11.5-11(e) (Burns Supp. 1988) (limit of 3 years unless spouse or child in custody of spouse is physically or mentally incapacitated); Kan. Stat. Ann. S. 60-1610(b)(2) (Supp. 1988) (limit of 121 months, subject to reinstatement).

161Marie Aimee Helie-Lucas, Women Living Under Muslim Laws, in Ours By Right, supra note 43, at 52, 55.


163Muhammad M. Haj-Yahia, Wife Abuse in the Arab Society in Israel, in Future Interventions, supra note 45, at 87, 92.

164Julie Mertus, Discriminatory Family Law and Customary Abuses, in Women's Rights/Human Rights, supra note 17, at 135, 142.

165Merle Hodge, Women, Structural Adjustment and Empowerment, in Fifty Years Is Enough: the Case Against The World Bank and the International Monetary Fund 124 (Kevin Danaher ed., South End Press 1994).

4. Access to the Legal System

Even where legal remedies do exist, women throughout the world face significant impediments to securing them. The most basic is that they are unaware of the remedies or do not understand them.166 As Margaret Schuler & Sakuntala Kadirganar-Rajasingham state in their ground-breaking book on the legal literacy movement,

Where attempts to redress the gender imbalance through legislation have occurred, women's status can remain unchanged in practice due to the inaccessibility of their rights through differential, discriminatory application of the law by the courts, or lack of understanding or misunderstanding of women's rights by women and society in general.167

The complexities of the law often require assistance from professional legal counsel. Because of women's dependent economic status, they often lack financial resources to hire legal counsel and file cases168. And, even where free or low-cost legal services are offered, they may be so under-funded as to be virtually unavailable to most women, or the husband's resources may be deemed available to her, resulting in her ineligibility.169

An additional barrier in some countries is the distance women must travel to court. In South Africa, for example, women are forced to travel long distances to obtain a protection order (interdict) because only certain courts have jurisdiction to issue them.170

In some countries, women are prohibited from testifying against their husbands in criminal cases.171 In many African countries, women are prohibited from bringing any civil action in their own behalf, and can only do so under the guardianship of a male relative.172 If they are married, the suit must be brought by their husbands.173 In a minority of states in the United States, women cannot sue their husbands because of the doctrine of interspousal tort immunity.174 This is true in other systems, as well.175 Even where the doctrine has been abrogated, such as in England and Wales, the court may stay such actions if it finds no substantial benefit will be achieved by the suit.176

Remedies themselves may be barred to certain groups of people, such as never-married couples or same sex partners.177 Or they may be limited to certain types of abuse, excluding others such as psychological or mental abuse.178

Community attitudes which reflect long-standing patriarchal values may be a significant impediment to women using the legal system for protection against violent husbands. According to Florence Butegwa, coordinator of Women in Law and Development in Africa, for example, women who take their husbands to court may be ostracized by their communities.179

Attitudes of police, prosecutors and courts also keep women from accessing the legal system, as discussed in the next section. As Human Rights Watch concluded in its 1995 Global Report on Women's Rights:

At every step of the process to obtain legal protection from domestic assault, women face barriers that prevent them from prosecuting their batterers and make a mockery of the justice system. Legislatures pass laws that exempt marital rape from criminal sanction; police refuse to arrest men who beat their wives, and in some cases even intimidate women into withdrawing complaints of spousal abuse; prosecutors fail to charge men with domestic assault; court clerks turn away women who seek restraining or protection orders; and judges accept "honor" and "heat of passion" defenses that allow wife-murder based on "legitimate provocation", usually adultery.180

Women from marginalized groups suffer a double burden. The police and legal system may have been used to oppress them and their communities, making it an unlikely source of protection from violence within their communities, especially within their families.181 Prostituted women are rarely accorded protections available to other women, though they may need it more.182 They are often viewed as criminals, immoral and deserving of anything bad that happens to them.183 Sexual assaults against them are rarely considered crimes.184

Many women who seek assistance from the legal system meet with ignorance, indifference and often outright hostility.185 These attitudes erect barriers which exclude women and protect men from any consequences to their violent behavior. This makes the legal system complicit in male abuse of women.

166Strategies , supra note 30, at 24; Florence Butegwa, The Challenge of Promoting Women's Rights in African Countries, in Ours By Right, supra note 43, at 40, 41.

167Legal Literacy: A tool for Women's Empowerment 25 (Margaret Schuler & Sakuntala Kadirgamar-Rajasingham eds., WIDBOOKS 1992).

168UN Report, supra note 4, at 71.

169Id. In South Africa, in its 1995/96 budget, the government for the first time allocated U.S.$2.85 million specifically for legal services for women. However, none of the money has been spent because no efforts have been made to make its availability known to lawyers and nongovernmental organizations that might make use of it. Violence Against Women in South Africa, supra note 6, at 88.

170Violence Against Women in South Africa, supra note 6, at 83.

171UN Report, supra note 4, at 68; Strategies, supra note 30, at 18.

172UN Report, supra note 4, at 70.


174Women and the Law, supra note 120, at 9.02 et seq.

175UN Report, supra note 4, at 70.

176Id., citing Law Reform (Husband and Wife) Act, 1962.

177See, discussion infra at 71 and note 321.

178Id. at 71.

179Florence Butegwa, The Challenge of Promoting Human Rights in African Countries, in Ours By Right, supra note 43, at 40.

180Global Report, supra note 11, at 342.

181See Rosemarie Tong, Women, Sex and the Law 171 (Rowman and Allanheld 1984).

182Seventy per cent of prostituted women in a San Francisco survey reported being raped on the job and those who had been raped had been victimized 8 to 10 times per year. Only 7% had sought help and only 4% reported to the police. Mimi H. Silbert, Sexual Assault of Prostitutes (Delancey Street Foundation 1981), cited in Sex Work at 201 (Frederique Delacoste and Priscilla Alexander eds., Cleis Press 1987).

183Kathleen Barry, The Prostitution of Sexuality at 46-7 (New York University Press 1995); Priscilla Alexander, Prostitution: A Difficult Issue for Feminists in Sex Work supra note 179 at 184, 194-202.

184Id. at 201.

185In Kenya, women who report violence of any kind are sent home to fetch their husbands. Where women attempt legal action to protect themselves against their husbands, they are likely to be deserted, losing economic support and the means of caring for their children. Koki Muli, "Help Me Balance the Load:" Gender Discrimination in Kenya," in Women's Rights/Human Rights, supra note 17, at 78, 79. In Russia, Human Rights Watch concludes that "In some instances, police themselves mistreat and harass women who report such crimes as a way to intimidate them and stop them from filing complaints." Global Report, supra note 11, at 373. See Florence Butegwa, The Challenge of Promoting Women's Rights in African Countries, in Ours By Right, supra note 43, at 40, 41. And see, Elizabeth Shrader-Cox, Developing Strategies: Efforts to End Violence Against Women in Mexico, in Freedom From Violence, supra note 35, at 175, 180-81 (with regard to Mexico).


In all societies, law reform efforts in response to domestic violence are limited by social values, among them family privacy and permissible violence for disciplinary purposes.186 It is no surprise then that family laws themselves act as impediments to women's safety. Helsinki Watch Counsel Julie Mertus concludes:

However constructed throughout the world, family laws and practices tend to perpetuate a patriarchal structure in which women are subordinated to men and in which male economic and decision-making powers are enhanced.

* * *

Men have been granted the right to make all important decisions for women, unilaterally determining when they shall marry and divorce, when and how often they shall bear children, and whether they shall be educated and permitted to work outside the home. To varying degrees, all societies employ legal measures and social practices designed to protect the superior position of men.187

Moreover, the rubric of privacy allows states to pursue policies of nonintervention in the family, as a practice which in turn supports the patriarchal structures of society.188 And when laws are enacted to provide remedies for domestic violence victims, the tradition of family privacy acts as a major impediment to implementation.

While the family can be a source of nurturance for its members and deserves protection from unnecessary state intrusions, family privacy also allows those with power to use or abuse it with impunity. "While the importance of the family as a societal structure should not be underrated, excessive faith in its nurturing capacities may lead to efforts to sustain the family unit even where members are being victimized by other family members." 189 In Palestinian society, for example,

The family is considered the most sacred system in Arab society, and wife battering is not considered grounds for breaking up the family. It is not even viewed as grounds for the wife to leave home, nor is it a basis for legally evicting or removing the abusive and violent husband from the home. Moreover, family members are expected to maintain the privacy of the family.190

186According to the UN Report, supra note 4, at 49, most societies condone and encourage the physical discipline of children and a large number allow moderate physical chastisement of wives or have done so within the last 100 years.

187Julie Mertus, State Discirminatory Family Law and Customary Abuses, in Women's Rights/Human Rights, supra note 17, at 135, 137.

188"Under the cloak of the separate sphere ideology, states maintain that they are incapable of dealing with domestic violence child brides, and other inequities in marriage." However, many state laws do impinge upon the family, but only to the extent they "serve larger political and social goals." Id. at 135.

189Davies, supra note 2, at 7.

190Muhammad Haj-Yahia, Wife Abuse in the Arab Society in Israel, in Future Interventions, supra note 45, at 87, 88.

A. Legal Responses to Domestic Violence

Countries have attempted to address domestic violence through criminal, civil and family codes, and in a few cases, constitutional reform. Legal responses arise in particular cultural, economic and political contexts. While a certain amount of borrowing has occurred, remedies have arisen from and been adapted to local conditions and thus show as much variety as they do similarity. Indeed, they must if they are to be successful, as the United Nations Report concludes,

[N]o matter what approach is adopted to the issue of wife abuse it must be appropriate to the cultural context, it cannot be introduced in isolation, and it must accommodate the fact that wife abuse is not like any other crime. It must further be appreciated that no one woman is like another and that all women have different needs, and thus any approach must be flexible.191

While this article reviews legal responses only, it is important to stress that a legal response in isolation is also doomed to failure. Domestic violence has deep cultural and historical roots. It is imbedded in attitudes as well as institutions. Indeed, as pointed out above, domestic violence can be considered a tool to enforce a patriarchal social order and an expected consequence of women's disadvantaged status in the family as well as society as a whole. Thus, any "solution" requires an integrated response that encompasses significant social change.

191UN Report, supra note 4, at 55.

1. Constitutional Law Reform

Constitutions establish broad legal principles that form the basis for all other legislative and judicial enactments. Within the last 10 years, some countries have taken affirmative measures to address domestic violence in their constitutions. Brazil became the first country to explicitly address domestic violence in its constitution in 1988. Paragraph 8, Article 226 "establishes the duty of the state to restrain domestic violence and creates mechanisms for doing so."192 A similar provision was later included in Colombia's new constitution.193 Ethiopia recently amended its constitution to prohibit laws, customs and practices that oppress women or cause them bodily or mental harm, though application to situations of domestic violence remains to be seen.194 Vietnam's constitution forbids all discrimination against women, including acts that degrade their dignity, and Uganda is considering a similar provision that prohibits degrading treatment of women and provides for equality within the family.195

Where constitutions guarantee citizens equal treatment before the law, they have been used to challenge discriminatory application of laws that limit battered women's remedies.196 According to Human Rights' Watch Global Report, the Russian constitution prohibits the biased treatment of women victims of domestic violence: "Men and women have equal rights and freedoms and equal possibilities for their implementation."197Other constitutional provisions that can be interpreted to guarantee freedom from domestic violence include: freedom from torture, inhuman or degrading treatment; gender equality; the right to dignity; freedom, and security of the person; the right to bodily integrity and the right to life, liberty and the pursuit of happiness.198

Constitutional law reforms have important symbolic as well as practical effect. As the supreme law of hte land, they declare a country's deepest values. In a world where some countries still approve of woman abuse and others minimize or deny its existence, a country's declaration that abuse of women offends its deepest values and will not be tolerated is significant. Women should also be able to use these constitutional declarations to press for legislative change and, insome cases, to seek redress for the state's failure to protect women in the family.

192 Silvia Pimentel, Special Challenges Confronting Latin American Women, in Ours By Right, supra note 43, at 27, 30.


194El Taller at [email]; telephone: (216-1) 752457 / 752057; fax: (216-1) 751570.

195State Response, supra note 4, at 67.

196See, infra at 51. Where, as in Kenya, the constitution does not prohibit sex discrimination, the constitutional silence has been used to stymie attempts to repeal laws that discriminate against women. Koki Muli, "Help Me Balance the Load:" Gender Discrimination in Kenya, in Women's rights/Human Rights, supra note 17, at 78, 78.

197Global Report, supra note 11, at 375, citing Russian Constitution Article 19.

198State Responses, supra note 4, at 67.

2. Criminal Law Reform & Impediments to Implementation

There is considerable debate over whether a criminal law response or a social welfare/ therapeutic response is most effective or socially desirable in domestic violence cases. Criticisms of the criminal law response include: wives often will not, or in some cases, cannot testify against their husbands; if a man is imprisoned, he cannot support his family; nothing much happens to an abuser even if he is convicted; there is little, if any, emphasis on offender rehabilitation; criminal sanctions have a disproportionately negative effect on men from minority or oppressed communities; and many victims don't want criminal justice involvement.199

The UN Report makes the argument for non-criminal resolutions in societies with strong community networks:

[I]n certain societies, where mediation and conciliation are part of the cultural structure, such mediation and conciliation can be as effective a sanction to the man as arrest and conviction. Thus, for example, the intervention of the "neighbourhood committee" or the "habitant group" in China or the village Court in Papua New Guinea or conciliators in African countries may be enough to show the man that his violence is unacceptable and should not be repeated. No matter what system is used, the essential factor is that the man must be shown to be responsible for his actions, and the woman must be absolved from blame.200 (emphasis added)

It must be stressed that not all social welfare/therapeutic models hold the man accountable for his actions but some, in fact, blame the woman. Such is often the case in Palestine for Arab women:

Relatives from both sides will often mediate between the partners in an attempt to reach a reconciliation. This process is usually humiliating for the wife, who is blamed for the situation and warned not to repeat her mistake in the future if her husband batters her again. Without as a doubt, this process can even be rewarding for the husband. He is not considered accountable for his violent behavior, nor is he required to participate in therapy. At the same time, he witnesses the accusations directed against his wife."201

This is an entirely different process than that envisioned by the UN Report. An example of a mediated approach that holds the perpetrator accountable may be found in certain aboriginal communities in Canada.

In Manitoba women from the Hollow Water Reserve have begun to use the tribe's "circle of healing" to address domestic violence. The community members confront the abuser, requiring him to acknowledge his crime publicly, and offer their support for healing both the victim and the perpetrator. The abuser is given a "healing contract" setting out the punishment--usually community work--and arrangements are made to protect the victim. When the contract expires, a cleansing ceremony takes place to symbolize the return of balance to the abuser, the family, and the community. At this point healing is considered complete and the crime is to be forgotten. Healing can take years.202

This form of community action may be successful because it is used in a society where domestic violence is considered wrong, backed by consequences. As Levinson concluded about societies with a low incidence of domestic violence, the first time it happens, there is swift intervention to stop it. In contrast, the Palestinian Arab example shows a society which values family unity over the safety of women members and which holds women accountable for the acts of the men who hurt them. Where this is so, the coercive power of the state may be an essential part of any effective response to domestic violence. While it can provide immediate intervention and protection, it also operates to change attitudes and values over time.

A number of countries have enacted laws that specifically criminalize domestic violence. These include the Bahamas, Barbados, Belize, Malaysia, Puerto Rico,203 Spain, Portugal and Poland,204 and, more recently, China.205 India and Bangladesh punish violence against women in the context of dowry; India also punishes sati, or widow burning,206 and certain acts of cruelty to women.207 Ecuador's law clearly states that the law's objective is to protect the physical and psychic integrity and sexual freedom of women and the members of their families.208 These are some of the few laws that recognize the gendered nature of domestic violence. In addition, many European countries are reviewing their legal frameworks for prosecuting domestic and sexual violence, with an eye to clarifying legal definitions, the responsibilities of perpetrators and the interests of victims.209

Where domestic violence is not explicitly criminalized, the conduct may still be against the law, as the UN Report points out,

"All forms of physical domestic violence and some forms of emotional abuse, such as threats of physical injury and demands for dowry, fall within the definition of criminal conduct. In most countries, therefore, except in so far as sexual crimes are concerned, a man is not entitled by reason of marriage or cohabitation to inflict violence upon his wife." 210

While a gendered law initially may offend principles of legal neutrality, there are reasons supporting it. The most basic is that the crime is gendered. Women are primarily the victims and men the perpetrators of violence against intimate partners.211 Applying gender neutral principles has led to the arrest and prosecution of victims as well as perpetrators.212 It has also resulted in prosecution of women for defending themselves, where the law does not recognize the context of their acts.213 And it has resulted in inappropriately light penalties for abusers, as each incident is judged in isolation, ignoring the pattern of ongoing terror and coercion.214

For the most part, respondents to a 94 nation survey concluded that existing laws that are used to prosecute domestic violence "are not strong enough to deter it, not commensurate with the crime, and inappropriate in comparison with penalties for other crimes of violence."215 In Swaziland as well as the United States, the majority of domestic violence is treated as a misdemeanor.216 Indeed, some laws in the U.S. require protracted disfigurement or impairment of a bodily organ before a domestic assault will be considered a felony.217

Recommendations from a survey of women's advocates in 94 countries included support for specific and gendered domestic violence legislation: "Governments should enact and implement comprhensive domestic violence legislation that specifically criminalizes and prohbitis violence against women."218

199UN Report, supra note 4, at 68.

200UN Report, supra note 4, at 73.

201Muhammad M. Haj-Yahia, Wife Abuse in the Arab Society in Israel, in Future Interventions, supra note 45, at 87, 91.

202Heise, supra note 3, at 39, citing Linking Women's Global Struggles to End Violence (MATCH International 1990).

203Id. at 32.

204Strategies, supra note 30, at 12-13.

205Changsha, China passed the country's first rules against spousal abuse and wife-beating on January 10, 1996, according to Stephanie Ho of Voice of America, Beijing, January 1997.

206UN Report, supra note 4, at 67.

207"Section 498A of the Indian Penal Code states that the husband or any of his relatives who willfully subject a woman to such abuse as is likely to drive a woman to commit suicide or cause grave injury or danger to her life, whether mental or physical, or who harasses the woman with a view to coercing her to meet any unlawful demand for dowry, is guilty of cruelty. The offense is punishable with a term of imprisonment that can extend up to three years. . . . Although conviction rates are unavailable, the existence of this provision acts as a deterrent against wife abuse and is often used to bring about a settlement between spouses." Indira Jaising , Violence Against Women: The Indian Perspective, in Women's Rights/Human Rights, supra note 17, at 51, 54.

208State Responses, supra note 4, at 72-73, citing Law Against violence Against Women and the Family, Official Registration No. 839, 11 December 1995 (in effect 12 December 1995).

209Strategies, supra note 30, at 13, citing R. Bruynooghe et al., Physical and sexual violence against women: situation in Europe 29, report commissioned by the Secretary of State for the Environment and Social Emancipation for the First conference of European Ministers on Physical and Sexual Violence against Women, held at Egmont Palace, Brussels, from 14 to 15 March 1991.

210UN Report, supra note 4, at 67.

211See, supra note 4.

212See, e.g., Susan Wilder Crane, Washington's Domestic Violence Prevention Act: Mandatory Arrest Two Years Later, The Women's Advocate, Vol. III, No. 3 (National Center on Women and Family Law May, 1987); Steven Epstein, New Connecticut Law on Domestic Violence, The Women's Advocate, Vol. III. No. 1 (National Center on Women and Family Law January, 1987).

213Barbara J. Hart, State Codes on Domestic Violence, Juvenile and Family Court J., Vol. 43, No. 4, 1992 at 75-77.

214State Responses, supranote 4, at 95.



217See, e.g. Or. Rev. Stat. 161.015 (7).

218State Responses, supra note 4, at 93.

a. Police Response

Despite the lack of legal exemption for assault on a wife, however, police throughout the world have traditionally not intervened, or have done so only to informally mediate.219 For this reason, some jurisdictions have passed laws mandating arrest in situations of domestic violence or for violation of a civil protection order.220 Arguments in support of preferential or mandatory arrest include It not only provides the woman with immediate safety, but gives her a feeling of power and gives the man an immediate message that his behaviour is unacceptable, a message that has been shown to have long-term effects on his future behaviour. Further, arrest gives the woman a period of time when her spouse is absent that will allow her to sort out her options and plan her future.221 (citations omitted)

Even where not mandatory, police powers to arrest have been clarified in many countries.222

In England, for example, the London Metropolitan Police issued a force order in June 1987 which encouraged the use of arrest in domestic violence cases. . . .In Israel, under new police guidelines there is an arrest policy in any case where there are physical signs of assault. The perpetrator is to be taken to the police station for an interview and a cooling-off period. Exceptions are allowed only with the approval of a higher authority.223

In . . . some Australian jurisdictions, new legislation clarifies police powers and extends them to the investigation of cases of domestic violence. This legislation allows police to enter premises if requested to do so by a person who apparently resides there or if the officer has reason to believe that a person on the premises is or may be under threat or attack or has recently been under threat or attack or that an attack is imminent.224

Changes in the law and policy have not always translated to changes in action. In South Africa, according to Human Rights Watch/Africa,

Police station commanders expressed outright hostility when informed of the provisions of the Prevention of Family Violence Act. Sergeant Gwamanda, a female police officer from the station at Hammarsdale, acknowledged that she had not heard about the act. After being shown a copy of the government gazette, she reportedly added that the act would "make wives be rude to their husbands and cases of divorce will be more if women know about that gazette."225
In a particularly egregious case in June 1994, the South African police brought an abusive husband to a battered women's shelter in Durbin and threatened to break in on behalf of the husband who claimed that his wife had been abducted by the Advice Desk for Abused Women.226

In Russia, Human Rights Watch reports that "[i]n some instances, police themselves mistreat and harass women who report such crimes as a way to intimidate them and stop them from filing complaints."227

With regard to South Africa, Human Rights Watch goes on to say,"A common experience is that police either fail to respond to calls for help or merely warn abusers or refer them to other agencies."228 "Even if an assault is taking place as the police arrive, no arrest or charge is made unless the woman asks for the case to go forward"229 As an example, Human Rights Watch cites the following case:

In 1992, for example, a researcher witnessed a woman being assaulted by her husband outside a police station in Cape Town. When the witness called the police they only responded on the researcher's insistence, and placed the man and the woman together in the charge room, as though they were both suspects. When the woman who had witnessed the assault offered to assist the police by being a witness in a case against the man, they said that it would not be necessary, since the woman assaulted would not be laying a complaint. Upon pressing the matter further, the officers on duty stated that if they were to charge every man who assaulted his wife they would be able to attend to nothing else, while it would "increase the crime rate." The police said they would only intervene if the battery escalated to murder.230

A similar situation is reported in the United Kingdom, where police have power to arrest for violation of a civil protection order, but nonetheless prefer not to.231 They justify their denial on an assumption that the woman will more than likely withdraw the complaint, though research suggests this assumption is inaccurate.232

"In Egypt . . . women who have been assaulted by their husbands are referred to the social worker at the police station. In Greece, Malaysia, Nigeria and Thailand, the police attempt to conciliate between the parties and dissuade victims from taking the matter to court."233

In the United States women have successfully sued police departments for failure to arrest despite a statutory duty to do so.234 Suits brought on constitutional grounds for discriminatory treatment have also been successful. 235However, some police practices remain intransigent. In Los Angeles, California, for example, Maria Navarro called police to report that her ex-husband, Raymond, was on his way to her home with a gun and had threatened to kill her. Despite the danger, dispatchers refused to send anyone and advised her to call them if and when he arrived. Maria never had the chance. A short time later, Raymond Navarro arrived and opened fire, killing Maria and 3 family members. A judge in a subsequent civil suit by Maria's family ruled that police action in treating domestic disturbances less seriously than those between strangers was justifiable because they could conclude (without evidence of any kind) that domestic disturbances are less dangerous.236

"[I]t may be hypothesized that the defendants have a rational basis for providing less emergency assistance to victims of domestic violence than to members of other classifications . . . . because domestic quarrels occur with great frequency, and the severity of the violence is far less than other emergency requests . . . . An additional rational basis for the defendants" actions may be that the 9-1-1 emergency assistance is provided for individuals who are severely injured and near death and domestic violence rarely reaches this level of injury, especially if included within this category are emergency calls made when the perpetrator is not even present at the scene."237

Police occupy a pivotal position in any criminal law strategy to address domestic violence. In most places, police are the only institution with 24-hour and comprehensive geographic accessibility. They also bring the coercive power of the state to bear on volatile and potentially lethal situations.

Various reform efforts have been made to address these problems. Training is one of the most important, and often neglected, strategies to improve police response.238 As the UN Report concludes,

In recognition of the crucial role of police in the management of family violence, police at all levels should be provided with special training to provide them with greater understanding of the dynamics of the issue and to equip them in techniques of crisis intervention.239

In Zimbabwe, the Musasa Project240 developed a participatory educational methodology that involved police in identifying problems with current practices, and recommending and taking responsibility for solutions.241 They also used police as the host agency to train prosecutors.242

One of the most innovative responses to police intransigence was the establishment of Women's Police Stations (Delegacias de Defesa Da Mulher, hereinafter "delegacias") in Brazil beginning in 1985 and subsequently adopted by other countries, including Argentina and Peru.243 In Brazil, these delegacias (now numbering 25 244), staffed by specially trained women officers and assisted by medical investigators also with training in gender-based violence, have proven successful in raising awareness of domestic violence and providing women with a place to go.245 However, they have not been successful in increasing prosecutions or convictions246 and the rate of case investigation remains low. Low numbers of case investigation have been attributed to inadequate political and economic support, low police morale and lack of training about domestic violence at the police academy.247

Other jurisdictions have trained specialized units within regular police agencies to respond to domestic violence crimes.248 An example, is the Domestic Violence Reduction Unit (hereinafter "DVRU") of the Portland, Oregon Police Department, established in July 1993.249 The DVRU provides many of the same functions that the Brazilian delegacias were designed to provide, including specialized training, support and information to victims, and specialized investigation. An assessment of the DVRU shows initial success in terms of victim satisfaction (90% positive compared to 73% for regular officers) and increased victim knowledge of resources and use of restraining orders. The study concluded that at least some of a noticeable increase in prosecution, conviction and seriousness of sentence could be attributed to the DVRU. Moreover, re-reports of domestic violence within five months by victim or offender were 14% lower than for cases without DVRU intervention.

Despite the apparent initial success of specialized units, they are not appropriate for all communities. Some police agencies are too small and lack personnel and resources to field a special domestic violence unit. Moreover, the presence of a specially trained unit may operate against domestic violence training for the entire force, which is desirable since any officer may be first on the scene of a domestic disturbance.250

Police response in other areas has been improved by providing crisis workers or social workers that accompany police on domestic violence calls, as in Canberra, Australia and certain Canadian jurisdictions.251 In New South Wales, "a Domestic Violence Programme Officer position has been introduced into the Office of the Police Commissioner with the specific mandate of monitoring the response of 74 divisions in the jurisdiction."252 And in London, Ontario, all police have access to a family consultant service that will act with police in domestic violence cases.253

219 "Studies indicate that the police practice in cases of domestic violence is to attempt to mediate or counsel the parties and achieve reconciliation rather than to fulfil a role of law enforcement." UN Report, supra note 4, at 56.

220Id. at 60. In the United States, 47 states and the District of Columbia authorize or mandate warrantless arrest for crimes involving domestic violence. In 14 states and the District of Columbia, arrest is mandatory. Hart, supra note 213, at 63.

221UN Report, supra note 4, at 60.


223Strategies, supra note 30, at 29.

224Strategies, supra note 30, at 28, citing Justices Act 1959, Tasmania, sect. 106F; Crimes Act 1900, New South Wales and Australian Capital Territory, sect. 394A.

225Violence Against Women in South Africa, supra note 6, at 78-9.

226Violence Against Women in South Africa, supra note 6, at 81.

227Global Report, supra note 11, at 373.

228Violence Against Women in South Africa, supra note 6, at 61.

229Violence Against Women in South Africa, supra note 6, at 63.

230Kathryn Ross, "Battered women: An invisible issue," in Women Rape and Violence in South Africa: Two Preliminary Studies (Cape Town: Community Law Centre, 1993), cited in at Violence Against Women in South Africa, supra note 6, at 62-63.

231UN Report, supra note 4, at 60.


233Strategies, supra note 30, at 27.

234Nearing v. Weaver, 295 Or 702 (1984); Bruno v. Codd (sub nom. McGuire), 90 Misc.2 1047, 396 N.Y.S.2d 974 (Sup. Ct. 1977), rev'd in prt, apeal dismissed in part, 64 A.D.2d 582, 407 N.Y.S.2d 165 (App.Div. 1978), aff'd, 47 N.Y.2d 582, 393 N.E.2d 976, 419 N.Y.S.2d 901 (1979).

235Scott v. Hart, No. C76-2395 (N.D. Cal., filed Oct. 28, 1976); Watson v. City of Dallas, No. CA-3-85-1572-R (N.D. Tex. 1987).

236Navarro v. County of Los Angeles, No. CV 90-3679-RMT(Kx), slip. Op. at 6-7 (D.C.C.D. Cal. May 17, 1991).

237Id. at 6-7.

238"[V]ery few countries provide specific training for police in the area of wife assault or, if they do so, this training is inadequate." UN Report, supra note 4, at 62.

239Id. at 101

240Initiated by two women -- a psychologist and a lawyer -- in 1988 to address the problem of violence against women in Zimbabwe. Sheelagh Stewart, Working the System: Sensitizing the Police to the Plight of Women in Zimbabwe, in Freedom From Violence, supra note 35, at 157, 157.

241Id. at 165- 69.

242Id. at 167.

243Strategies, supra note 30, at 31 and Dorothy Q. Thomas, In Search of Solutions: Women's Police Stations in Brazil, in Davies, supra at 32, 37.

244Global Report, supra note 11, at 348.

245Dorothy Q. Thomas, In Search of Solutions: Women's Police Stations in Brazil, in Davies, supra at 32, 37.

246"The US State Department's human rights report for 1990 noted that in the main delegacia in Sao Luis, Maranhao, of over 4,000 complaints registered by women from 1988 to 1990, only 300 were forwarded for processing by the court and only two men were convicted and sent to prison." Id. at 41, citing Country Reports on Human Rights Practices for 1990, 531 (United States Department of State February 1991).

247Dorothy Q. Thomas, In Search of Solutions: Women's Police Stations in Brazil, in Davies, supra at 32, 39.

248Specialized police units have also been established in India (Indira Jaisin, Violence Against Women: The Indian Perspective, in Women's Rights/Human Rights, supra note 17, at 51, 54) and South Africa (Violence Against Women in South Africa, supra note 6, at 83).

249Annette Jolin, Implementation and Assessment of a Community Policing Unit to Address Domestic Violence in Portland, Oregon, (Portland State University School of Urban and Public Affairs, January 1995).

250UN Report, supra note 4, at 62.

251Id. at 63; Strategies, supra note 30, at 32-33.

252UN Report, supra note 4, at 63, noting that in Greece, also, "the General Secretariat for Equality has sent a . . . letter to all police stations . . . outlining guidelines for accepting female victims of family violence.. . ."


b. Prosecutorial Response

Prosecutors often provide another hurdle for domestic violence victims looking to the criminal law for protection. A report of the Secretary General of the United Nations on domestic violence concluded, "These offices [prosecutors' offices] have not prosecuted most cases of domestic violence referred to them. Nor have they treated these cases in the same manner as cases involving violence between strangers."254

In South Africa, for example, a prosecutor interviewed by Human Rights Watch/Africa in 1995, declared, "If the complainant wants to withdraw the case we oblige, because it is a domestic setting. Sometimes, too, when I think that the abuse is not severe and it's the first time, I urge them to get back together and to drop the charges."255 "When asked what sort of abuse she considered not serious enough for charges to be brought, the prosecutor replied 'if it's a slap or a kick and it's the first time and he is sorry, then I do not encourage her to file charges.'"256

In the United States, a leading treatise on Women and the Law concludes that prosecutors often refuse to file cases for a number of reasons:

They do not believe the victim; they require higher standards of corroboration than in similar crimes between strangers; they prosecute only 'severe' cases; or they believe that counseling is the appropriate remedy. When they do prosecute, they reduce the severity of the charges more readily than in stranger-stranger cases.257

Prosecutors are often genuinely burdened with evidentiary laws that do not reflect the realities of domestic violence. In the U.S., for example, prior incidents of domestic violence may be excluded as irrelevant, cumulative or representing prior bad acts. While these evidentiary laws are useful in non-domestic violence assault cases to assure the defendant is not convicted because he has a bad character or reputation, in domestic violence cases they keep out evidence necessary to establish the seriousness of an ongoing pattern of terroristic behavior. Domestic violence is a pattern of behavior, rarely a one time incident. Evidence rules that treat an act of domestic violence in isolation often assure it will be minimized, if not dismissed.258 In addition to broadening the evidentiary standard of relevancy in domestic violence cases, proposed legal reforms have included increasing the seriousness of the crime where a pattern or practice of violence can be shown.259

In the U.S., federal lawsuits have been used successfully to force prosecutors to use their wide discretion properly in deciding whether or not to go forward in domestic violence cases.260Prosecution reforms have also included specialized units that handle domestic violence cases exclusively, such as in Mexico and the United States. 261 Advantages of special prosecution units include,

As with specialized police units, however, small communities lack the resources and personnel to support a separate specialized unit. And, training one group of prosecutors in domestic violence may result in a lack of training for all others on the erroneous assumption that their cases don't involve domestic violence because the crime was charged differently.

Prosecution reforms have also included "no-drop" policies, where going forward with the case is the responsibility of the prosecutor, not the victim.263 These policies are evident in Canada and some of the states of Australia and the United States.264 While some prosecutors use the subpoena and contempt power to insure the victim testifies,265 others have developed strategies of victimless prosecution, where the case is presented on the basis of police and medical records, and the testimony of police, doctors and witnesses. In still other jurisdictions, victims are allowed to testify behind closed doors, with the public excluded, or to provide their testimony in writing.266

The obvious draw-back to a no-drop policy that forces the victim to participate is the coercion, including jail, she experiences from the state which is supposedly trying to stop and punish similar coercion against her by her abuser. Moreover, while taking the onus of prosecution from her, it also takes away her control, thus working at odds with the philosophy of battered women's advocates who seek to increase her control over her life, which has been taken from her by her abuser.

In some countries, however, women are restricted or even prohibited by law from testifying. Some laws preclude wives from testifying against their husbands, while others provide they may testify but cannot be compelled to do so.267 There are also countries that legally regard women's testimony as less credible than men's and many more where it remains so in fact, though not in law.268

A notable response to the problems inherent in prosecution of these cases began in France in 1990, when domestic violence advocacy agencies were first allowed to become a civil party in the trial of a perpetrator.269 In other jurisdictions, such as Canberra, Australia, a less dramatic approach provides victims with their own advocates who assist them through the legal process.270

254Strategies, supra note 30, at 38, referencing "Domestic violence: report of the Secretary-General" (A/CONF.144/17) para 47.

255Violence Against Women in South Africa, supra note 6, at 64.

256Id. at 64-65.

257Women and the Law, supra note 120 at 9-15.

258See State Responses, supra note 4, at 70.

259Oregon Senate Bill 904 (1993).

260Raguz v. Chandler, No. C74-1064 (N.D. Ohio, filed Nov. 20, 1974), resulted in a consent decree that included the right of victims to seek review of a prosecutor's decision to not prosecute. Women and the Law, supra note 120, at 9-17 - 9-18.

261Strategies, supra note 30, at 39. In the United States, the model of specialized prosecution units was initiated by the San Diego City Attorney's Office in 1988. For a description of the project, see Family Violence: State-of-the-Art Court Programs 57 (National Council of Juvenile & Family Court Judges 1992).

262Strategies, supra note 30, at 39-40.

263UN Report, supra note 4, at 68.


265Women have been imprisoned in Canada and the United States for refusing to testify in the trials of their abusers. See L. Macleod, Battered But Not Beaten (Ottawa, Canadian Advisory Council on the Status of Women, 1987), and Family Violence: State-of-the Art Court Programs, supra note 261, at 57-58.

266Strategies, supra note 30, at 43.

267UN Report, supra note 4, at 68.

268Marsha A. Freeman, the Human Rights of Women in the Family, in Women's Rights/Human Rights, supra note 17, at 149, 153. See,e.g., The Preliminary Report of the Ninth Circuit Gender Bias Task Force (July 1992 Discussion Draft) at 175:

Gender affects litigants in a variety of ways. One problem is that of credibility of witnesses. The findings here parallel those of many state gender bias task forces: Women's testimony may simply be disbelieved or discounted as complaints about life rather than as providing evidence of legally cognizable harms. A second concern is that, under some legal rules, even when women's injuries are not disbelieved, they still may be trivialized, considered minor irritations to be borne rather than the stuff of legal rights. (citations omitted)

269Strategies, supra note 30, at 41.


c. Judicial Responses

Judges or magistrates can also prove to be impediments to implementation of a progressive law on domestic violence. Judicial attitudes reflecting social biases against women can affect the outcome of criminal (and civil) proceedings, since judges have control over evidence admissibility, jury instructions, conviction (in non-jury trials) and sentencing. As the UN Report concluded,

The effectiveness of any innovative legislative response is also dependent on the attitude of the judiciary. Very often legislation is open to differing interpretations and judges may be extremely reluctant to exercise a discretion in the absence of clear guidelines. Here the experience of England and Wales, where one of the first statutes providing orders to prohibit the man molesting the woman and excluding him from the home was introduced in 1976, is particularly instructive. . . . Initially, judicial response was sympathetic, but later interpretation was coloured by attitudes towards the family, the position of the woman as a mother and the property rights of the man.271

An example from Human Rights Watch/Africa's investigation in South Africa is illustrative,

[I]n a criminal case heard at Hillbrow Magistrates' Court in February 1995, a batterer who had allegedly thrown his girlfriend through a plate glass window was acquitted by the magistrate on the ground that it was "reasonably possible that she had tripped over a potplant and fallen through the window." The history of abuse in the relationship was inadmissible evidence.272

With regard to sentencing, the UN policy document, Strategies for Confronting Domestic Violence, concluded, "In general, the courts have handed down less severe sentences in cases of domestic violence than for other violent crimes."273 And the UN Report on Violence Against Women in the Family, concluded:

To many judges, the traditional punitive response of the criminal justice system appears totally inappropriate to cases of domestic crime. Both imprisonment and fines will affect not only the abuser, but the victim and her entire family. Thus, sentences imposed are usually extremely lenient, with the husband, in most cases, being absolutely or conditionally discharged or released on probation. Fines are occasionally levied, but incarceration is rare.274

The judge's statement in the South African case indicates there is more behind this leniency than concern for the victim's family. In many cases, it masks a concern for the status quo, where men have nearly unfettered authority in the family, and woman's role is severely circumscribed.275 This is evident in the words of a judge in Pakistan, on accepting provocation as a defense to murdering a wife,

It is on the record that Ms. Bashiran deceased was an unusual modern and fashionable girl, a like of which is rarely found in village community. Our belief is justified by the apparels, makeup, hairdo and use of underwear and nylon socks found on her person after her death. Therefore, this possibility cannot be excluded that the appellant got provoked as he might have suspected her of leading a wayward life and killed her on this account. Similarly, his frustrated mind must have goaded him to get rid of her as he found her a barren woman incapable of bearing a child he might have got worked up a feeling to commit this crime.276

Provocation was recently accepted by the Hawaii Supreme Court as a reason to support a civil lawsuit against a woman for deaths caused by her husband.277 Mabel Ganal was allegedly having an affair and taunting her husband about it, though she had moved into her parents' home. In a rage, and after losing his job, Orlando Ganal went to Mabel's parents' home, where he shot and killed her parents and wounded her and their son. Then he went to a residence where her lover had stayed, though he was not there at the time, blocked all outer doors, broke several windows and doused the interior with kerosene. Michael Touchette and his two children died as a result of burns and smoke inhalation. Wendy Touchette, Michael's wife and the mother of the two children, sued both Mabel and Orlando. In overturning a summary judgment order for Mabel, the Hawaii Supreme Court cited appellant's complaint favorably,

"Defendant Mabel Ganal initiated and maintained a course of conduct which involved taunting and humiliating Defendant Orlando T. Ganal, Sr. by flaunting her extra marital love affair with David Touchette . . . . Defendant Mabel Ganal's extra marital love affair with David Touchette, and her conduct of taunting and humiliating Defendant Orlando T. Ganal, Sr. with respect to that affair caused Defendant Orlando T. Ganal, Sr. to suffer severe and extreme emotional and mental distress and depression."278

Also in the United States, a heat of passion or provocation defense allowed Kenneth Peacock to plead guilty to the lesser charge of manslaughter for murdering his wife after he found her in bed with another man -- even though he shot her many hours after the discovery. On October 17, 1994, Judge Robert Cahill sentenced Peacock to 18 months in jail, stating, "I seriously wonder how many married men . . . would have the strength to walk away without inflicting some corporal punishment. I'm forced to impose a sentence . . . only because I think I must do it to make the system honest."279

In addition to continuing to accept the honor defense to wife murder despite the Supreme Court's rejection of it, Brazilian trial courts unjustifiably mitigate sentences for wife murder caused by a "violent emotion right after the unjust provocation of the victim," according to Human Rights Watch.280

The violent emotion exception however, [sic] is often misapplied to benefit defendants in wife-murder cases who have shown substantial premeditation. In addition, it is often accepted with little or no evidence of an "unjust provocation" by the victim. Thus, murderers who should have received a minimum sentence of twelve years sometimes serve as little as eighteen months.281

Courts in South Africa, however, have "recognized the psychological as well as physical suffering of women in abusive relationships, by accepting self-defense as a defense to a murder charge when a woman has killed her partner after a history of persistent battery, even though her life is in no immediate danger."282 Similarly, the majoirty of U.S. appellate decisions on self-defense by battered women hold that they "may offer evidence as to the history and pattern of physical and psychological violence inflicted upon them."283

Reform strategies have focused on training the judiciary about domestic violence and gender bias. However, some jurisdictions have established separate criminal family violence courts, such as the province of Manitoba in Canada, which deals exclusively with crimes involving spouses, children and the elderly.284 Such courts rely on the development of specialized expertise to assure domestic violence laws are properly implemented.

An intriguing development is the establishment of alternative women's courts in various regions of the world. Recently, women in Arab countries formed the Arab Permanent Court Against Violence Against Women to [P]rovide an alternative to the traditional process of justice where violence against women is merely confined to the "personal" and the "domestic" and therefore not liable for prosecution and rule of law. The aim [of the Court] is to give women who have been silenced their rightful space to speak and their right to be listened to. It also aims to bring to the public's eye the real issue of violence and crimes committed against women. . . . It is also hoped that reparation to the victims can be given.285

In establishing the Permanent Court, its founders noted that similar initiatives are being taken in other regions of the world, such as the Council of Wise Women in Asia and286 the Commission Against Violence in Asia. Though permanent, these bodies reflect the tribunals organized by grassroots women's groups over the last several years -- on the international, national and local levels.287 These tribunals provide a forum for women to tell their stories of abuse and violation, where, in most cases, established legal institutions have proven inaccessible and uninterested if not outright hostile. In addition to raising public awareness, the tribunals make recommendations to official bodies. For example, the Global Tribunal on Violations of Women's Human Rights, held in Vienna, Austria at the United Nations World Conference on Human Rights in June 1993, made a number of recommendations to the official conference that were later adopted, including "the adoption by the General Assembly of the United Nations of the Draft Declaration on the Prohibition of Violence Against Women; and the establishment of a Special Rapporteur . . . to investigate violations of women's human rights."288

271UN Report, supra note 4, at 72.

272Violence Against women in South Africa, supra note 6, at 65.

273Strategies, supra note 30, at 44, citing, Confronting Violence: A Manual for Confronting Violence 18 (Commonwealth Secretariat 1992).

274UN Report, supra note 4, at 72.

275The UN Report also concluded, "In the main, all levels of the legal system are ignorant of the dynamics of wife assault and all adhere, albeit in some cases unconsciously, to traditional values that support the family and the dominance of the male party within it. Thus, for example, commentators have suggested that judges are 'unable to break out of the traditional belief that the family is a sacrosanct unit vital for healthy society. Conciliation is a court's primary aim'." Id.

276Pakistan Legal Decisions Booklet, 1976, cited in Freedom from Violence at 70.

277Touchette v. Ganal, Civ. No. 93-2698, July, 199, slip op..

278Id. at 21.

279Global Report, supra note 11, at 342-43.

280Id. at 360, citing Penal Code of Brazil, Article 28.

281Id. at 361.

282Violence Against Women in South Africa, supra note 6, at 66, note 147. The leading case is S. V. Lavalle SCR 852 (1990).

283Hart, supra note 213, at 75; see, Holly Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals, 140 U. Penn. L. Rev. 379 (1991).

284Strategies, supra note 30, at 40.

285El Taller, B.P. 137, 1002 Tunis-Belvedere, Tunisia.


287For a partial, annotated listing of these tribunals, see Bunch and Reilly, Demanding Accountability at 124 - 127. For a compilation of testimonies presented at the Vienna Tribunal, see "Testimonies of the Global Tribunal on Violations of Women's Human Rights," supra note 7. See also, The Right to Live Without Violence, supra note 10, which reports on the Tribunal held in El Salvador in 1993. In 1996, following the Fourth World Conference on Women in Beijing and, more especially, the NGO Forum at Huairou, China, a number of tribunals were held as part of the global campaign, "16 Days of Activism Against Gender Violence," initiated by the Center for Women's Global Leadership at Rutgers University, including ones in San Jose, Costa Rica; East London, South Africa, and Oregon, U.S.A. Center for Women's Global Leadership, Rutgers University, New Brunswick, New Jersey.

288Bunch and Reilly, supra note 34, at 86.

3. Civil Law Remedies
a. Civil Suits

Civil legal remedies for domestic violence victims include civil lawsuits against the abuser or governmental entities in tort or delict, marital dissolution and separation and attendant processes, emergency stand-alone procedures for protection orders and quasi-criminal bind over procedures.

While it is possible to bring a civil lawsuit against the perpetrator in many jurisdictions, they are of limited usefulness. Civil suits must be funded by the victim. Even where an attorney takes the case on a contingent fee basis, plaintiffs must pay costs and filing fees. Since the suit seeks monetary damages, it is ineffective against perpetrators without significant financial assets and, for this reason, will not be amenable to contingent fee arrangements. Such suits are also lengthy and time consuming and can re-traumatize the victim over a substantial period of time. Moreover, in some jurisdictions, a wife cannot sue or testify against her husband or her testimony is given less weight.289 Or, as in a number of African countries, she is considered a minor and must bring suit under the guardianship of a man, such as her father or husband.290 Even in countries which allow this remedy, such as England and Wales, the court may stay the proceedings if it decides that neither party would obtain a substantial benefit from the proceedings.291 For those rare cases where civil suits are a workable and accessible remedy, they can provide injunctive relief as well as monetary compensation. Indeed, in some jurisdictions, injunctive relief may only be awarded in the context of a civil or matrimonial suit.292

289UN Report, supra note 4, at 70.


291Law Reform (Husband and Wife) Act, 1962, cited in Id. at 89.

292Id. at 70.

b. Family Law Injunction

Injunctive relief is also available in family law cases and can be used to provide a measure of protection for the victim by requiring the offender to stay away from her home, job, school, etc.

In Argentina, for example,

a Family Violence Act provides various remedies within the family law system. These include the removal of the perpetrator from the home, mandatory participation in re-education programmes, compensation to the victim and other financial provisions.293

Moreover, family law proceedings offer the best method for deciding child custody and visitation issues.

293Strategies, supra note 30, at 24.

c. Bind-Over

Some jurisdictions have used a quasi-criminal remedy available in other situations to provide some protection to battered women. Called a "bind-over" or "recognizance", the order binds an individual to keep the peace or refrain from harmful behavior to another.294 A victim must show evidence of "just cause for fear" that she will be harmed if the order doesn't issue.295 If the person bound violates the order, he must pay a specified sum of money and, in some cases, may be imprisoned.296

The advantages of this procedure are its accessibility (one need not file a lawsuit), its prompt availability, its lower standard of proof than in criminal cases and the fact that it can be made before a woman is physically hurt.297 Limitations of the procedure include 1) that no conditions can be attached, such as no contact; the order merely states that if something violent happens, punishment will follow; 2) the victim must initiate a court proceeding to enforce the order, if it is broken; 3) it may be difficult to prove the order was violated given the vague terms of "keeping the peace" or "being of good behavior"; 4) the judge's sentencing options are limited.298

294Id. at 18.


296Id.. at 19.



d. Stalking Protective Order

Orders in other jurisdictions that prevent stalking-type behavior299 share similarities with the bind-over, in that they can be issued before physical harm occurs (though emotional harm is readily apparent in the harassing behavior).300 In Oregon, U.S.A., the law allows police to issue stalking protective orders as a form of citation for criminal stalking.301The police stalking protective orders remain effective for three days, pending a court hearing.302 At the hearing, the court may issue its own stalking protective order, which may be of unlimited duration.303 While the standard of proof for granting the stalking protective order is a preponderance of the evidence,304 violations result in criminal penalties.305 Twelve additional states in the U.S. provide some type of protective order for victims of harassment.306

299A large number of stalkers are former intimate partners of their victims. Because the purposive aspect of domestic violence is to control another, the abuser becomes obsessed with maintaining control/ownership and will often escalate behavior when the victim attempts to leave. Women and the Law, supra note 120, at 9D-2, 6-7.

300Stalking behavior is now criminalized in 49 states in the U.S. Regional Seminar Series on Developing and Implementing Antistalking Codes 11 (Bureau of Justice Assistance June 1996) [hereinafter "BJA Antistalking Codes"]. Stalking laws are not limited to domestic violence situations, though they apply to certain criminal acts of some domestic violence perpetrators.

301Or. Rev. Stats. 163.730 et seq.

302Or. Rev. Stats. 163.735(1).

303Or. Rev. Stats. 163.738.

304Or. Rev. Stats. 163.738(2)(a)(B).

305Or. Rev. Stats. 163.750.

306BJA Antistalking Codes, supra note 300, at 69.

e. Protection Orders

More common is a special procedure for an interdict or protection order, independent of a lawsuit or marital proceeding, which are available for situations of domestic violence. This procedure has become widely available and can be found in Australia, Austria, the Bahamas, Hong Kong, Jamaica, New Zealand, Saint Vincent and the Grenadines, and the Turks and Caicos Islands, as well as most of the provincial jurisdictions of Canada, England, Scotland and Wales, and all states of the United States, among other countries.307While these orders vary considerably from one jurisdiction to another, the following provisions are representative:

These emergency procedures may be filed pro se and are initially awarded ex parte. In some jurisdictions, they can be secured within 24 hours and without any filing fee. They may prohibit an abuser from further harassment and intimidation, order him out of their home and to stay away from other designated places, such as her place of employment.308 In some cases, they award temporary custody of children and provide for visitation, as well as child support and maintenance. While only a civil standard of proof is required to support issuance of a protection order, its violation may be punishable as a crime for which a fine or imprisonment or both may be imposed. In some jurisdictions, police are required to arrest for violation of a protection order.309

The Bahamas has a provision requiring the abuser to pay a certain amount of money for each day of continued breach of the protection order in addition to the standard fine.310 Puerto Rico has one of the few provisions requiring the abuser to pay compensation to the victim on breach of the protection order:

[Puerto Rican law requires] the respondent to pay financial compensation from private property for damages caused by conduct constituting domestic violence. Said compensation can include, but shall not be limited to compensation for moving expenses, expenses for the repair of property, legal expenses, medical, psychiatric, psychological, counseling, guidance, lodging, housing and other similar expenses, without prejudice to other civil actions to which the petitioner is entitled.311

South Africa's Prevention of Family Violence Act allows a person who has a material interest in the matter to seek an interdict on behalf of the victim.312 If the magistrate believes she's in danger of abuse, he or she must grant an interdict, which is accompanied by a suspended warrant of arrest. If she's threatened with abuse, police will arrest her abuser on the basis of her affidavit and he will be held without bail until he sees a magistrate (within 24 hours).

Protection order statutes vary as to relationship and type of abuse covered. Ecuador is one of the more comprehensive in its availability to former cohabitants, persons who have or have had a consensual relationship and others who share the home of the perpetrator or victim, as well as married persons.313 Twelve states in the U.S.A. have statutes that cover dating relationships.314 Hawaii and Illinois also extend coverage to persons with whom abused persons seek refuge.315

Ecuador's law is progressive also in that it covers any act or omission of physical, psychological or sexual mistreatment.316 Restriction of personal freedom is considered a form of psychological abuse.317 Puerto Rico allows protection orders for "grave emotional harm" and "intimidation,"318 while Barbados allows them for harassment, which includes persistent verbal abuse, hiding of clothes or property or the watching of a house.319 Guyana's definition of psychological abuse reflects an informed understanding of domestic violence:

A constant pattern of conduct which is performed to the dishonor, discredit or scorn of the personal worth of a person, unreasonable limitation to the access and handling of common property, blackmail, constant vigilance, isolation, deprivation of access to adequate food or rest, threats of deprivation of custody of sons or daughters or destruction of objects held in esteem by the person, except those that privately belong to the respondent.320

Advantages of the protection order procedure include: its accessibility (low or no cost; self-help remedy) and its timely availability (within 24 hours in some places). Disadvantages include restrictions on coverage321 (who may apply, who may be restrained and what type of abuse is covered); time limitations on the order (it is, after all, a temporary order); lack of penalties for violation (an implementation problem); its ineffectiveness in stopping an abuser who does not honor the order. And, some jurisdictions do require high fees or representation by an attorney.322

A common problem is court reluctance to bar a man from "his" residence. Judges in England and Wales, for example, "are extremely reluctant to exclude a man from his home unless there is evidence of severe violence."323 Similarly, in South Africa, only 2 percent of interdict applications asking for eviction of a man from the marital home are granted.324

307Strategies, supra note 30, at 21 and Hart, supra note 213 at 5.

308In the United States, police and court personnel complain that battered women abuse protection orders by inviting the abuser back into the home, then calling the police if he later resumes harassing or intimidating behavior. (Numerous communications to the author) Yet, at least one author maintains this was the original purpose of protection orders: "They were developed initially as an intermediary response to meet the needs of battered women who do not want to leave their partners and homes." State Responses, supra note 4, at 84.

309Strategies, supra note 30, at 20-22. For a thorough analysis of protection order laws throughout the United States, see Hart, supra note 213, at 5-28.

310State Responses, supra note 4, at 87, citing Bahamas law sec. 32(3)(b).

311Id. at 88, citing Puerto Rico law sec. 2.1(I).

312Violence Against Women in South Africa, supra note 6, at 67-68.

313State Responses, supra note 4, at 74, citing Ecuador Law Art. 3.

314The states are Alaska, California, Maine, Massachusetts, New Hampshire, New Mexico, North Dakota, Pennsylvania, Puerto Rico (commonwealth), Rhode Island, Washington and West Virginia. Id.

315Id. at 75.

316Id. at 77, citing Ecuador law art. 2.

317Id. at 78.

318Id., citing Puerto Rico law sec 1.3(1).

319Id., citing Barbados law sec. 2.(c) & (d).

320Id. at 77, citing Guyana law sec. 2 (r).

321Unmarried couples, gay and lesbian couples are often excluded from legal remedies, such as the domestic violence protection order. South Africa's 1993 Prevention of Family Violence Act doesn't address violence by non-live-in and same sex partners. Violence Against Women in South Africa, supra note 6, at 3. "However, it is reported that in some cases -- for example, in Pretoria Central Magistrates' Court -- magistrates may be prepared to grant interdicts to gay couples, on the basis that the constitution forbids discrimination on the grounds of sexual orientation." Id. at 70.

322Strategies, supra note 30, at 22.

323Id. at 22, citing L. Smith,Domestic Violence, Office Research Study 107 (London, Her Majesty's Stationery Office, 1989) at 33 ff. See, UN Report, supra note 4, at 71.

324Violence Against Women in South Africa, supra note 6, at 72-73.

B. Legal Reform & Beyond

1. Legal Literacy

Legal reforms throughout the world have come about through women's organizing and activism.325 In country after country, as well as in the international arena, women have come together out of necessity and hope. Pain has been transformed into outrage and outrage into action for social change. Women have mobilized their communities to provide protection and services where none existed. They have organized to change laws, practices and attitudes. At the heart of these efforts lies the principle of empowerment. As women recognized the transformative power of action, that being an agent in one's own life was essential for individual and social change, women adopted an empowerment model of social service and social activism. Instead of providing fish for the hungry, they provided fishing poles and instructions on how to use them.

Legal literacy is a promising tool for legal reform and social change. In short, it is "[t]he process of acquiring critical awareness about rights and the law, the ability to assert rights, and the capacity to mobilize for change."326 Women's subordinate status, enforced by law, has kept them from active and equal participation in their societies. Women who are battered learn that any attempt at self-assertion will be met with violence, and, too often, that social institutions and laws will not protect them. Moreover, their isolation and subordination keeps them ignorant of what rights and remedies do exist. Legal literacy is a way to remedy the powerlessness of individuals, through attempting to impact social institutions. Women are taught not only what the law is, but also how they can use it and, most importantly, how they can change it to meet their needs and their reality.

In Zimbabwe, for example, the impact of their legal literacy project on women is described thus,

A woman who manages to get the police to remove her husband until the violence stops, to acquire a peace order, and to have her maintenance assured, is a woman who has learned that she can effect change. A woman who helps herself through the legal system, possibly the most "expertified," mystified, and top-down societal phenomenon known, acquires a sense that nothing else could possibly be a problem.327

The importance of empowerment, rather than the traditional practice of hiring a lawyer to take action on one's behalf, is stressed,

Our program draws a distinction between intervention to help women (no matter how sympathetic and well-intentioned), and working toward a situation where the system becomes so accessible that the women can work it themselves. The last component of our proram is intended to reinforce the idea that a legal system belongs to everybody by providing basic how-to information and tips on the way a woman can make the legal system work for her. . . . Our legal literacy work is based on the idea of empowering women by providing them with attainable legal goals which significantly affect legal outcomes.328

An Indian lawyer and activist stresses the importance of empowerment in legal literacy work:

"The role of the educator or facilitator is to actively engage the participants, contextualize the learning process within their own lives, and provide the legal and technical tools for the participants to decide if and how law can be useful in their struggles for social transformation."329

Legal literacy efforts have included training lay persons in the law, so they can work with individual women in crisis and accompany them through the legal system. An example of such a project is Peru Mujer which operates a Women and the Law program, staffed by a multidisciplinary team from law, sociology, psychology, education and social communications.330  Peru Mujer developed a 14-month paralegal training program and advertised its availability to local communities through street theater, puppet shows, informal visits and dialogue. After the training, multi-disciplinary teams continued to visit local communities three times a week to provide on-site technical assistance.

Perhaps more emblematic of the intent of legal literacy is a10-day workshop held in India on women and health and women and law. Particular issues in women's lives were identified, such as a husband's right of sexual access to his wife, and explored primarily through plays and songs. Actual cases were enacted as a basis for discussion.

On the conjugal right issue, a case was enacted where the supreme court held the man's right did not violate a woman's constitutional right to equality and liberty, which rights have no place in family matters. Women raised important issues in the discussion following:

Through the discussion of the plays, the participants concluded that the law was primarily functioning as a mechanism for protecting man's right to have an heir, a son to light his funeral pyre, to have unhindered sexual access to his wife, and to protect a husband's rights over his wife's body. The method enabled women to understand the limits of the law and to develop critical consciousness about the laws, the primary objective of a legal literacy workshop.331

Participants then went on to discuss what women's needs are and how these might be secured through law reform and social activism. As Ratna Kapur, a feminist lawyer and researcher who conducts legal literacy workships for women, concludes,

A feminist approach to legal literacy, therefore, provides knowledge about law that will be empowering to women and bring them to understand what law means in the context of their lives. Women must be allowed to reflect upon their lives, to work toward an understanding of the violations that have occurred in their lives, link these violations with broader structural causes such as class, caste or gender, and understand how these structures are supported and sustained in the law. The process develops critical consciousness about women's subordinate position in society, the role of law in reinforcing that subordination, and hopefully leads to the development of strategies for social change.332

325Lori L. Heise, Violence Against Women: Global Organizing for Change, in Future Interventions, supra note 45, at 7, 9-11.

326Legal Literacy, supra note 167, at 2.

327Freedom From Violence, supra note 35, at 164.

328Id. at 169

329Legal Literacy, supra note 167, at 97.

330Id. at 169-71.

331Id. at 107.

332Id. at 98.

2. The Role of International Instruments

Women began to work strategically at the international level in the late 1980's on the issue of violence against women. In a few short years, their efforts have changed the discourse on human rights, resulted in world and regional declarations against violence against women and led to the appointment of a Special Rapporteur on Violence Against Women in the United Nations.333 The United Nations has also commissioned and published reports on violence against women and strategies for ending it.334 Women have progressed from nearly complete exclusion in international human rights discussions to a general consensus that women's rights are human rights and violence against women is a human rights violation. At the national and local level, women are beginning to use this policy consensus and international instruments to affect local laws and practices. As Florence Butegwa states,

Another strategy is to use international human rights standards in the national fora. The standards set in international treaties and customary law can influence courts at the domestic level. Women's groups are using a country's international obligations as the minimum standard against which national laws should be meausred. Gains in this area are slow but significant.335

As a result of women's organizing at the Vienna Conference on Human Rights in 1993, the United Nations proposed and the General Assembly later adopted the Declaration on the Elimination of Violence Against Women (DEVAW). While declarations do not have to be signed and approved by individual states, they nevertheless act as a standard against which state actions can be measured. DEVAW not only defines violence against women broadly and within its cultural context, it also urges states to adopt measures to protect women and directs them to provide remedies.336 Most signifant, it defines violence in the home as a human rights violation and condemns the use of religion, custom or tradition to support violence against women and attitudes of female inferiority.

The Convention on the Elimination of Violence Against Women (CEDAW) preceded DEVAW by nearly two decades. Approved by the United Nations in 1979, it has been ratified by 157 countries. While CEDAW does not directly address violence against women, it sets out substantive measures designed to achieve legal equality of women and men. "It binds states parties to seek to modify cultural patterns of behaviour and attitudes regarding the sexes, and attempts to impose standards of equality and non-discrimination in private as well as public life."337 Moreover, the Committee which oversees CEDAW implementation has put forward 3 recommendations that specifically address states' responsibilities with regard to violence against women.338 Criticisms of CEDAW include the unusually large number of reservations339 states have made despite ratifying it and the lack of enforcement mechanisms which allow individuals to bring violations before international bodies.340

In one rare and notable case, a Botswana court held that CEDAW "has created an international regime" that can and must be applied in interpreting state constitutional provisions against claims of sex discrimination.341 "He concluded, with the majority of the Court, that the law prohibiting women from passing their citizenship to their children constituted sex discrimination under the Botswana constitution as interpreted in light of international standards."342 In another case, the UN Human Rights Committee held discriminatory a Peruvian law which allowed husbands and not wives to represent marital property in the legal system.343

Other relevant international instruments include the Convention on the Political Rights of Women,344 the Convention on the Nationality of Married Women,345 the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages,346 the International Covenant on Civil and Political Rights,347 and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.348 In countries where law courts recognize international agreements the state has made, these may be effective remedies in some cases. In countries, such as the United States, which provide that international treaties are not self-executing, specific legislation must be passed to implement the treaty. It rarely is.349

Of particular note is a regional treaty, the Inter-American Convention to Prevent, Punish and Eradicate Violence Against Women (hereinafter "Belem do Para"), approved by the Organization of American States in 1994 and ratified by 22 states as of July 1996.350 Belem do Para is the first regional human rights treaty to focus explicitly on violence against women, including domestic violence.351 Potentially, its most noteworthy provision is that allowing individuals and groups to file petitions before the Inter-American Court on Human Rights for state failures to carry out their resonsibilities under the treaty.352

While international instruments provide few concrete remedies against states that fail or refuse to protect women from violence in the home, they are important for establishing the human rights principle that women have a right to live free of gender-based violence. This is an affirmative right and states have affirmative obligations to ensure it. The Beijing Platform for Action produced by the Fourth World Conference on Women in 1995 included affirmative commitments by all governments in the world to carry out specific actions designed to end violence against women.353 Moreover, following the Convention of Belem do Para, nine Latin American countries passed laws on domestic violence.354

333Radhika Coomaraswamy of Sri Lanka was appointed the Special Rapporteur on Violence Against Women. She has authority to receive and investigate documented complaints, to intervene where urgent actin is necessary and to make annual reports to the UN Commission on Human Rights. Rhonda Copelon, Violence Against Women: The Potential and Challenge of a Human Rights Perspective, in The Right to Live Without Violence, supra note 10, at 116.

334UN Report, supra note 4; Strategies, supra note 30..

335Florence Butegwa, The Challenge of Promoting Women's Rights in African Countries, in Ours By Right, supra note 43, at 40, 41.

336Women & the Law, supra note 120, at 9C.02, 9C-16 to

337CEDAW and Women's Rights, in CEDAW Advocacy Kit, supra note 75.

338Davies, supra note 2, at 197:

Recommendation 12, made in 1989, directed state to "take appropriate steps to protect women from any form of violence within the family, at the workplace, or in any other area of social life" and report on those steps in their country reports required under the convention. In 1990 Recommendation 14 urged the eradication of female genital mutilation. . . . Recommendation 19, made in 1992, provides the most detailed guidance for states parties to follow where all forms of violence against women are concerned. Importantly, it links violence against women and gender discrimination, stating, "Violence against women is both a consequence of systematic discrimination against women in public and private life, and a means by which constraints on women's rights are reinforced. Women are vulnerable because of disablities imposed on them in economic, social, cultural, civil and political life and violence impairs the extent to which they are able to exercise de jure rights."

339Reservations allow states to sign a convention while exempting themselves from certain provisions, usually on the basis of custom, tradition or religion. Women and the Law, supra note 120, at 9C-15, note 61.

340CEDAW and Women's Rights, in CEDAW Advocacy Kit, supra note 75.

341Attorney General v. Unity Dow, Court of Appeal Civil Appeal No. 4/91 (Appeal Court of Botswana, July 1992) at 83, cited in Marsha A. Freeman, The Human Rights of Women in the Family, in Women's Rights/Human Rights, supra note 17, at 149, 163 and 164, note 8.

342Marsha A. Freeman, The Human Rights of Women in the Family, in Women's Rights/Human Rights, supra note 17, at 149, 163.

343Julie Mertus, State Discriminatory Family Law and Customary Abuses, in Women's Rights/Human Rights, supra note 17, at 135, 143, citing United Nations, Human Rights Committee, Communication No. 202/1986.

344A/RES/640 (VII), 20 December 1952, The United Nations and Human Rights, 1945-1995, at 180 - 81.

345A/RES/1040 (XI), 29 January 1957, Id. at 202-04.

346A/RES/1763 A (XVII), 7 November 1962, Id. at 210-ll.

347A/RES/2200 A(XXI), 16 December 1966, Id. at 235-44.

348A/RES/39/46, 10 December 1984, Id. at 294 - 300. Application of the International Torture Convention to situations of domestic violence is discussed in thoughtful article by Rhonda Copelon, Professor of Law at the City University of New York Law School and co-director of the Women's Human Rights Law Clinic. See, Intimate Terror: Understanding Domestic Violence as Torture, in Human Rights of Women 116-152 (Rebecca J. Cook ed., University of Pennsylvania Press 1994).

349The United States has been slow to ratify international human rights treaties, despite its rhetoric criticizing other nations human rights record. Though CEDAW was adopted by the U.N. in 1979, the U.S. Senate has not yet ratified it. Nor has the U.S. ratified the Convention on the Elimination of All Forms of Racial Discrimination or the Convention Relating to the Status of Refugees. Ilka Tanya Payan, Women's Human Rights in the United States: An Immigrant's Perspective, in Women's Rights/Human Rights, supra note 17, at 82, 82-3.

350Rhonda Copelon, Violence Against Women: The Potential and Challenges of a Human Rights Perspective, in Right to Live Without Violence, supra note 10, at 114, 118. Note: Canada, Mexico and the United States are among the minority of OAS members who have not ratified the Convention. Id. at 116.

351Global Report, supra note 11, at 347.

352Rhonda Copelon, Violence Against Women: The Potential and Challenges of a Human Rights Perspective, in Right to Live Without Violence, supra note 10, at 114, 115.

353Rhonda Copelon, Violence Against Women: The Potential and Challenges of a Human Rights Perspective, in Right to Live Without Violence, supra note 10, at 114, 117; Beijing Platform, supra note 1.

354Chile, Argentina, Panama, Uruguay, Ecuidor, Bolivia, Costa Rica, Mexico and Colombia. Rhonda Copelon, Violence Against Women: The Potential and Challenges of a Human Rights Perspective, in Right to Live Without Violence, supra note 10, at 114, 117.

3. Coordinated Comprehensive Multidisciplinary Approaches

There is growing recognition that any effective strategy to address domestic violence must involve coordination among all relevant sectors of the community355. Actors from the legal community include judges and magistrates, prosecutors, defense attorneys, legal aid attorneys, police, parole and probation officers, corrections officials, battered women's advocates, batterer education programs and legislators. Legal coordination is not enough, however, since all sectors of the community are affected by domestic violence and are able to impact it. Other actors include medical personnel, teachers, clergy, social workers, mental health professionals, media, and social service agencies, such as those providing child protection, housing, public benefits, and immigration assistance, and business.

In some jurisdictions, coordination occurs at a policy-making level,356 while in others individual cases are coordinated by a multi-disciplinary team.357 Policy-making groups have done comunity-wide needs assessments, produced protocols and guidelines for professional groups and suggested legislative reforms.358

State-sponsored coordinating or policy-making bodies have also been established. For example, Australia has set up a National Committee on Violence against Women. A number of U.S. states, such as New York, have established task forces on domestic violence to study current responses and recommend change.359 And regional governments in Belgium are establishing networks of cooperation between social service agencies and law enforcement.360

Multi-disciplinary cooperation and coordination is necessary because "domestic violence is deeply woven into the social fabric." Ultimately, the entire community must develop zero tolerance for domestic violence if we are ever to end it.

355Family Violence: Improving court Practice 6 (National Council of Juvenile and Family Court Judges 1990); Judge Leonard P. Edwards, Reducing Family Violence: The Role of the Family Violence Council, Juv. & Fam. Court J. 1, 1992.

356The Plural Committee for Victims was formed in Mexico City in 1990 to develop improved strategies to address violence against women. It is an inter-agency coordinting body and also includes legislators, journalists and academics. It promoted the creation of special units and crisis centers for victims of domestic violence. Strategies, supra note 30, at 53

357The Domestic Abuse Intervention Project in Duluth, Minnesota is an example. Id. at 52.

358See, e.g., A Collaborative Approach to domestic Violence, Oregon Protocol Handbook (Oregon Domestic Violence Council 1996).

359Strategies, supra note 30, at 54.


4. The Limits of Legal Strategy

An Argentine respondent summed up the problem with existing legal responses, which is true for many other countries as well,

Existing legislation remains insufficient, inefficacious, neutral, does not contemplate the aspect of inequality between boys and girls, doesn't provide rapid and effective mechanisms, doesn't provide support services for housing, economic assistance or other forms of assistance, doesn't take into account prevention, nor contemplate the causes of domestic violence.361

Law reform is an essential part of any strategy to end domestic violence, because laws support and promote domestic violence, as well as being major impediments to women's attempts to get free of it. The legal system both enshrines and implements cultural values -- and acts as a catalyst for changing them. Nevertheless, law reform alone is insufficient to end domestic violence, precisely because domestic violence is embedded in broader social structures. As the UN Report concluded, "[I]t is certain that no long-term measure will be successful unless there is a fundamental change in the social and economic structures that maintain the subordination of women within marriage and within wider society."362

Efforts at law reform must be part of a larger strategy that includes public education & prevention and community intervention & services for victims. However, as the literature makes clear, a still broader approach is necessary to address root causes. Levinson's cross-cultural study of 90 societies found four factors predictive of societies with high rates of domestic violence: 1. Male control of family wealth; 2. Male domestic authority; 3. Divorce restrictions for women, and 4. Violent conflict resolution throughout the culture.363 He concluded that each factor is associated with frequent domestic violence, and, when all factors are present in a society, the likelihood is strong that wife beating will occur in a majority of households.364 His results indicated that a hierarchical social order made all forms of violence, including domestic violence, more likely.365 Levinson's study also revealed 16 societies with low or no incidence of domestic violence. Commonalities among these societies were:

[H]usbands and wives share in domestic decision making, wives have some control over the fruits of family labor, wives can divorce their husbands as easily as their husbands can divorce them, marriage is monogamous, there is no premarital sex double standard, divorce is relatively infrequent, husbands and wives sleep together, men resolve disputes with other men peacefully, and intervention in wife beating incidents tends to be immediate.366

Any reform strategy can and should profit from this research. Legal reform strategies should be evaluated within this framework as well.

361State Responses, supra note 4, at 92.

362UN Report, supra note 4, at 105.

363Levinson, supra note 31.

364Id. at 88-9.

365In studying the Rundi of Burundi, he also identified a strict social hierarchy where superiors have control over the lives of inferiors, whether on the basis of age, wealth, sex, caste, etc. as predictive of wife abuse, if competition among same level inferiors is encouraged as a way to achieve upward mobility. Id. at 92-93.

366Id. at 103.


From an international perspective, domestic violence is a nearly universal phenomenon. It exists in countries with widely varying political, economic and cultural structures. The very extent of it establishes that it is not a problem of individual pathology. Indeed, domestic violence is embedded in the values, relationships, and social and institutional structures of society. Its roots are found in a hierarchical social structure of male dominance and female subordination. To end it, the dominance model must be changed.

While it will not be changed through law reform alone, legal structural change is a necessary component of change. At the very least, legal sanction of domestic violence must be ended. To end the legal system's complicity in domestic violence, it cannot lend itself to use by an abuser seeking to control and harm another. Neither can law be an impediment to women seeking safety and well-being. As a survey of women's advocates in 94 countries concluded, there is a "need for gender specific, comprehensive and systematically integrated domestic violence legislation."367

Ending legal complicity in domestic violence requires the end of a gender neutral stance. Justice must remove her blindfold and see the context that shapes people's lives. The principle of neutrality cannot make justice between groups with great disparity of power and resources -- unless it takes those into account. Gender conscious laws, informed by the burden of violence women bear, are necessary to make the law less of a tool in the hands of abusers.

The issues of family, family privacy and legally sanctioned violence must also be adressed in any legal reform strategy. Domestic violence takes root in a family structure that gives men power over women, approves violence as a disciplinary and conflict resolution method, then declares the family off-limits from state interference. While the state sould not unnecessarily interfere in personal relationships, it must do so to protect its citizens who are being harmed.

Any law reform effort must take a synthetic approach to the problem of not only domestic violence but all forms of violence against women. As Jane Connors articulates,

[M]ost legal systems have not displayed a synthetic approach to the problem [of violence against awomen]. In other words, the laws of most legal systems address the various manifestations of violence against women separately, with no suggestion that they may have a uniform or even related structural cause. This has meant that, practically speaking, laws concerning different forms of such violence are located in different legal remedies and texts. From a theoretical viewpoint, this failure to adopt a synthetic legal approach has resulted in a general failure to link the various manifestations of violence against women to subordination of and discrimination against women generally, The failure to adopt a synthetic approach in legal remedy has affected other areas, so that service provision and other strategies employed to address the problem have also developed in a fragmented way.368

This cannot be overemphasized. The fragmented approach, legal and non-legal, to addressing violence against women has practically assured that root causes will not be addressed. Domestic violence will be seen as a problem of family systems. Sexual assault is viewed in the context of individual criminal pathology. Pornography becomes an argument over free speech and censorship. Women's poverty and economic vulnerability becomes a social service and not a political issue. Ms. Connors concludes,

It is highly likely that the various forms of violence against women are linked and are based on a common cause --- the subordination of women. It is likely, therefore, that many of the measures that are now employed to address this violence are merely treating the symptom, rather than the cause of the phenomenon. Work is now required to ensure that all measures interrelate and encompass effective approaches to address the legal, social and economic injustices that women face.369

The Beijing Platform for Action, agreed to by all the world's countries at the Fourth World Conference on Women in 1995, clarifies the interrelatedness of all forms of violence and discrimination against women. It further sets out a comprehensive program for addressing the different manifestations of women's subordination. As such, it provides an important guide for any strategy designed to address domestic violence.

The international human rights community has developed to the point of setting international standards of behavior. Recently, through the Vienna Human Rights Conference and the Fourth World Conference on Women, the international community declared its consensus that violence against women is a human rights violation -- and that states have an affirmative duty to protect women form that violence.370 It has also been recognized that neither family privacy nor religious or cultural traditions can outweigh a woman's right to safety, health and well-being.371

Law reformers at the national and local level would do well to follow the leadership of the international community and declare that violence against women is a serious and widespread problem that must be addressed for the well-being and progress of the entire community.

367This was the conclusion of 146 women's rights advocates, including lawyers, academics and serivce providers from 94 countries,recently surveyed by Women, Law & Development, International concerning the current status of state responses to domestic violence and needed improvements. A comprehensive list can be found in their publication. State Responses, supra note 4, at 91.

368Jane Connors, Government Measures to Confront Violence Against Women, in Davies, supra note 2, at 182, 183-84.

369Id. at 199.

370See Rhonda Copelon, Violence Against Women: The Potential and Challenge of a Human Rights Perspective, in The Right to Live Without Violence, supra note 10, at 119-20.

371Global Report, supra note 11, at 341-48.

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