Bonita Meyersfeld, Domestic Violence, Health, and International Law

• Citation: Vol. 22 No. 1
• Publication year: 2008
• topic: Health Law

DOMESTIC VIOLENCE, HEALTH, AND INTERNATIONAL LAW

Bonita Meyersfeld^*

INTRODUCTION

Worldwide, one in three women has been beaten, coerced into unwanted sexual relations, or abused-often by a family member or acquaintance.

At the start of the 21st century, violence kills and harms as many women and girls between the ages of 15 and 44 as cancer.

The costs to countries-in increased health care expenditures, demands on courts, police and schools and losses in educational achievement and productivity-are enormous.

In the United States, the figure adds up to some $12.6 billion each year.

-United Nations Population Fund¹

Violence against women causes more death and disability among women aged fifteen to forty-four than cancer, malaria, traffic accidents, and war.²

More than half the world's women experience violence in intimate relationships. The violence is severe, debilitating, and deadly. The acts of violence are extreme and the reaction of state institutions, such as the police, courts, and legislatures, often is disproportionate. And it is a problem in every country in the world.

Why do women all over the world suffer the same type of violence at the hands of their intimate partners and endure the same feelings of helplessness and isolation when looking to the state for protection? Why does it continue, in the same form, with the same degree of pain, without respite? And if the same harm occurs over and over again, consistent through generations and uniform across borders, why then has the international community not yet developed effective means to address it?

There are two reasons. The first is the vulnerability women experience as a result of institutionalized discrimination. The second is due to a misunderstanding of how domestic violence manifests itself. Some forms of domestic violence are so severe that, if left unattended, they result in death. These are two of several factors which have escalated domestic violence into a global pandemic.

In this Article, I provide a legal analysis to substantiate the thesis that extreme and systemic forms of domestic violence are a human rights violation for which states are responsible. According to the principles of state responsibility, if a state fails to assist a vulnerable group from harm, it commits an internationally wrongful act through its repeated omission to protect.

Domestic violence is the most common form of violence perpetrated against women and one of the major international health risks for women; women suffer domestic violence and its attendant consequences of poor health more than any other group.³If such violence is universal, then so too should be the solution, at least in part. For this reason, I turn to world law as part of the legal approach to domestic violence.

While law is only one tool in an array of necessary mechanisms (such as health, economics, and politics), I propose that international law, if properly combined with these other mechanisms, can help alleviate the pain and difficulties experienced by many victims of domestic violence. International law specifically is not engineered to change people's behavior, and I do not propose that it will. The institution of international law will not stay the fist of a violent partner. However, international law is constructed to change the way states and communities respond to violent behavior, the way we react to a breach of rules, and, most importantly, the way we listen to a person's pain.

There is an important caveat. Historically, the enforcement of so-called civil and political rights (e.g., the right to vote, freedom of speech, and the right to privacy) has fared better than that of social, cultural, and economic rights (such as the right to education, housing, and health). It seems that forcing the state to abstain from invasive behavior is more successful than insisting on proactive social and economic policies. Placing violence against women under the rubric of socio-economic rights arguably places a weaker obligation on states to protect women than identifying the violence as a violation of civil and political rights. While it is true that the economic and social abjection of women perpetuates gender-based violence, it is necessary to maintain an equal emphasis on the civil, political, social, and economic components of domestic violence.

This Article: (i) demonstrates that domestic violence is a gendered problem; (ii) identifies the seriousness of domestic violence as a health epidemic and demonstrates that it is a human rights violation; (iii) argues that there is a growing norm in international law to be free from extreme and systemic forms of domestic violence; (iv) argues for a concomitant state obligation to mitigate its effects; and (v) proposes that international law is beneficial to improving state and non-state remedies to this health hazard, referencing the development of domestic violence legislation in Mexico, Nicaragua, and Sweden. I do not maintain that international law has the same force as a state's national laws.⁴Nor do I propose that international human rights law is an additional body of law with which states must comply. Rather,

I turn to international law as an institution designed to induce and guide states to remedy the deficiencies within their domestic legal systems.⁵

I. IS THIS PANDEMIC A GENDERED HEALTH PROBLEM?

Before discussing the interconnectedness of international law and domestic violence, it is necessary to explain why this discussion revolves around domestic violence against women as opposed to other victims of intimate violence.

While children, men, the elderly, the disabled, and non-human animals suffer from such harm, I have not included them within this analysis because it is the coalescence of violence and gender-discrimination that occupies this discussion.⁶I seek to explain the absence of effective legislation against domestic violence with reference to sex and gender discrimination, highlighting "the role gender plays in the etiology of domestic violence."⁷As such, I acknowledge but do not focus on the numerous other groups that suffer similar forms of abuse.⁸While I emphasize the mooring of domestic violence in "its historical roots of gender subordination and feminist activism," I do not dismiss or trivialize other forms of violence.⁹They simply fall outside the narrow purview of this discussion.

Domestic violence is neither harmless nor gender-neutral.¹⁰Intimate violence against women is not a case-by-case peculiarity. In many ways, it is a manifestation of social views, perceptions, priorities, and custom.¹¹The societal system of explicit and implicit gender discrimination in most states makes women particularly vulnerable to violence; while this vulnerability ought to trigger greater state assistance, there is a flailing legal system and, all too often, abandonment.¹²

Women suffer domestic violence and are unable to escape it, in part because of this gender-based differentiation.¹³The distinction between the public and the private sphere historically has correlated with the role differentiation between genders-the public sphere has been male-dominated and women generally are expected to operate in the private sphere.¹⁴Although gender differentiation may be denied in many legal systems today, the public/private distinction endures and informs our view of domestic violence cases after they have passed through the apparently neutral filtering process of law. In many ways, current state law regulating private affairs stems from a culture in which, for a host of reasons, the parity of male and female citizens is still to be realized.

In other words, the perception of domestic violence and the types of laws created to address it are based on a number of bad habits.¹⁵An adherence to law in its current form may constitute "our deepest political myth,"¹⁶which allows us to ignore the "'invisible' pattern of order in law,"¹⁷a pattern that facilitates a discord between legal and actual redress for many harmed women. This "pattern of order" is historically hierarchical, placing the empowered in positions to retain power and the disempowered in a correspondingly weak position.¹⁸According to Professor Kahn, when embarking on an analysis of legal doctrine, it is necessary to "examin[e] . . . the rule of law as an expression of our political culture."¹⁹

If one is not an equal member of society, whether by express law or implied habits, one is not able to utilize the instruments of that society with full equality. The existence of gender discrimination, be it latent or patent, negatively affects the ability of women to engage public assistance.²⁰There is also a state resistance to regulating private matters, which stems in part from the difficulty in penetrating the private realm, which continues to be guarded by these invisible assumptions.²¹In many societies, progressive legislation (where such exists) still meets the difficulties imposed by the division between private and public and the concomitant allocation of gendered roles to the two spheres.²²This compartmentalizing reflects a well-documented stratification that places women throughout the world in a weaker, more vulnerable position.²³

It is tempting to discount this phenomenon as a characteristic of the past, an abandoned mode of living that exited societies when inclusive and transparent governance entered. However, true equality, meaningful choice, and a sophisticated equivalency between men and women do not exist, even in the most "egalitarian" of societies. This is evidenced by a decision in Sweden on November 3, 2003, where the Stockholm appeals court acquitted four men, who were accused of gang raping a woman for five hours, on the basis that the victim's "prior sexual experiences led the men to believe that she was game for their sexual advances."²⁴

On the basis that domestic violence is gendered, I now turn to discuss whether or not it is a human rights violation.

II. IS EXTREME DOMESTIC...