Reconceptualizing domestic violence in international law.

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Torture: Paradigms, Practices, and Policies

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Reconceptualizing domestic violence in international law.

INTRODUCTION

And yet I fear you, for you're fatal then When your eyes roll so. Why I should fear I know not, Since guiltiness I know not, but yet I feel I fear. (1)

This is the fact. Every day, throughout the world, women are subjected to extreme acts of physical violence, which take place within the beguiling safety of domesticity. The violence is severe, painful, humiliating, and debilitating. And it is common. It is a phenomenon that stretches across borders, nationalities, cultures, and race. A binding characteristic of communities throughout the world, almost without exception, is the battering of women by men. (2)

In this article I review the problem of domestic violence and propose a new approach, through international law, towards finding a solution. An emerging principle in international human rights law is that violence against women is a human rights violation. In the wake of this fledgling jurisprudence, it is possible to identify two specific manifestations of criminalized gender-based harm: namely, mass rape as a war crime or crime against humanity and female genital mutilation as a human rights violation. (3) These crimes jettisoned violence against women into the international legal discourse, paving the way for the criminalization of other forms of harm. (4) I propose that there is a third category of violence against women that should also receive international attention simply because it is one of the most basic and fundamental rights of women that is being violated. This is the right to be safe from extreme forms of domestic violence, or what I call private torture.

Most States recognize the phenomenon of domestic violence. Many countries have taken social and structural steps to alleviate the distress experienced by women. However, legally, progress has been limited. While legislation may be enacted in a variety of countries to address domestic violence, the implementation of such legislation is peculiarly ineffective and the predominant mode of redress continues to emanate from sociologists, psychologists, and activists. (5) A real solution continues to elude the law, lawmakers, and legal practitioners.

One of the main causes of the rift between the law against domestic violence and the implementation of such law, is the intimacy of the relationship between the aggressor and the abused. (6) However, an additional explanation for this schism is that the law cannot address something that has been inaccurately conceptualized.

'Domestic violence' is a term that applies to a miscellany of harm but by using a single, undifferentiated term of 'domestic violence,' current legislation fails to grasp the melange of harm produced by battering. (7) If domestic violence is properly defined to reflect the divergence of harm committed against women, it may become easier to identify effective, appropriate, and direct tools to minimize this phenomenon.

Currently, falling within the one composite term of 'domestic violence' are acts as diverse as shoving, pushing, or verbal denigration ("category one") on the one hand, and battering, breaking bones, burning, raping, and torturing ("category two") on the other. While all these forms of harm do constitute intimate violence, there is an apparent distinction between them: intuitively we need to separate shoving-slapping-shouting from the more physically extreme battering-breaking-raping. This separation is not to attribute a lesser status to category one, but rather to carve out a more extreme physical form of violence so that each category has the appropriate mechanism to combat its occurrence. It is category two, extreme acts of domestic violence, which I seek to address as 'private torture.' It is this category of violence that, notwithstanding its extremity and widespread occurrence, continues rampant, literally throughout the world. And it is this category that I propose be addressed by international law as an international human rights violation.

The semantics of definition, however, are not the sole objective of this article. The value of re-conceptualizing extreme forms of domestic violence is the revelation that private torture is as acute and harmful as official torture. Consequently, private torture is not only a national issue: it has universal dimensions since it is internationalized by various qualitative components. The misconception of domestic violence as a purely national issue is part of the failure of most countries to address effectively the quandary of violence against women. Due to the social, financial, and political inequalities between men and women, women predominantly occupy the private realm where violence tends to be perceived as less objectionable and more commonplace than other crimes. The result is that legal infrastructures, designed to distinguish between public and private law (and life), are unable to assist many battered women. (8) Through an appropriate conceptualization of extreme forms of domestic ...

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