Reconceptualizing domestic violence in international law.

• Author: Meyersfeld, Bonita C.
• Position: Torture: Paradigms, Practices, and Policies

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 violence as a crime in international law that is distinctive, it may be possible, in conjunction with grass-roots activists and other professional disciplines, to trigger a refashioning of the legal response both internationally and nationally.

I do not turn lightly to international law as a remedy. (9) International law imposes obligations on bound states and, through international pressure, such obligations may be enforced. The proposal that private torture constitutes a contravention of international law is rooted in the notion that international law contributes to "a whole arsenal of methods and techniques by which policy is projected and implemented." (10) The manner in which international law effects, and is affected by, domestic law is addressed by Harold Hongju Koh who maintains that the internalization of international law into domestic law is a:

process whereby an international law rule is interpreted through the interaction of transnational actors in a variety of law-declaring fora, then internalized into a nation's domestic legal system. Through this three-part process of interaction, interpretation, and internalization, international legal rules become integrated into national law and assume the status of internally binding domestic legal obligations. (11) Most international human rights law is implemented by and through domestic courts. (12) Where there is a supra-standard that criminalizes private torture, the tenets of such standard may be applied nationally through legislation and court decisions. However, if there is no enunciated universal standard regarding private torture, the development of national legal systems loses a source of law that has become most relevant in the human rights context. (13) It is for this reason that I turn to international law as a supplement to domestic law for a possible solution to private torture. (14)

In Part I of this article I consider the problem of domestic violence by focusing on the instances where domestic law is unable to protect victims and apprehend perpetrators of domestic violence. (15) This is closely connected firstly, to the incorrect legal categorization of all forms of intimate violence under the rubric of 'domestic violence.' The second reason for the deficiencies of domestic law is that the private realm within which domestic violence takes place precludes the effective intervention of the law. For several reasons women continue to operate primarily in the private realm, with the result that harm against women in this context is not easily curtailed by existing domestic legal infrastructures. Because of these factors I propose the re-conceptualization of extreme forms of domestic violence as private torture. (16) While intimate abuse falls within the ambit of domestic violence law, private torture has international characteristics and therefore requires the application of both domestic and international law. (17)

In Part II, I turn to international law as a suitable and necessary supplement to domestic law. (18) Academics and activists have compared battering to torture and other international human rights violations. (19) The concurrent development of international legal instruments and agencies focusing on women's rights over the past decade, presents a natural juncture to explore the explicit legal consequences emanating from these analogies. While it is possible to investigate the establishment of private torture as an independent human rights violation in international law, (20) for the purposes of this article I proffer the possibility of delineating private torture as an actionable offence under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "Convention against Torture"). (21) Due to the severity, the isolation, and the discrimination inherent in private torture, this form of violence against women is an international issue and one that should generate the application of the Convention against Torture. (22)

1. THE PROBLEM

   1. Language

      In understanding 'domestic violence,' it is necessary, briefly, to consider the language used to describe both the acts of violence and those who suffer from its application. One of the most progressive definitions of domestic violence appears in the South African Domestic Violence Act of 1998 ("the Act"). (23) The Act is a relatively recent and, arguably, liberal piece of domestic violence legislation and serves as a useful working instrument for the purposes of understanding the current definition of domestic violence. The Act defines domestic violence as:

      (a) physical abuse; (b) sexual abuse; (c) emotional, verbal and psychological abuse; (d) economic abuse; (e) intimidation; (f) harassment; (g) stalking; (h) damage to property; (i) entry into the complainant's residence without consent, where the parties do not share the same residence; or (j) any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause...