Conceptualizing private violence against sexual minorities as gendered violence: an international and comparative law perspective.

• Author: Wilets, James D.
• Position: Conceptualizing Violence: Present and Future Developments in International Law

1. INTRODUCTION

   To the extent that violence against women and sexual minorities(1) is predicated upon assumptions of a polar construction of gender,(2) in which nonconformity with gender role expectations is enforced through violent and non-violent means, it is possible to speak of violence against both groups as rooted in a system of male dominance.(3) Understanding the commonality of the gendered nature of violence against the two groups can assist in formulating a response under international and national law to violence against both women and sexual minorities that reflects the common gendered societal assumptions and mechanisms which foster such violence. Indeed, this Article's central thesis is that oppression based on sexual minority status is, to a great extent, gender oppression.

   Moreover, to the extent that violence against both groups reflects societal assumptions regarding appropriate gender roles, violence against both groups is frequently committed by societal actors other than the state as narrowly defined. In 1993, Dorothy Thomas and Michele Beasley published an article in the Albany Law Review.(4) That article was published in connection with the Symposium on Reconceptualizing Violence Against Women by Intimate Partners: Critical Issues, held in March 1995 in Albany, New York. In that article, Thomas and Beasley made the important observation that "[a]lthough international law is gender neutral in theory, in practice it interacts with gender-biased domestic laws and social structures that relegate women and men to separate spheres of existence: private and public."(5) Their article examined in considerable depth the sources of the international community's reluctance to recognize domestic violence as an appropriate subject of regulation by international law,(6) as well as recent changes that have occurred in the international community's approach to this issue.(7)

   This Article will continue this discussion of the limits and potential of international law in addressing gendered violence by focusing on the similarities and differences between violence based on gender and violence based on sexual minority status, with a particular focus on gendered violence in the private sphere.

   Part II of this Article will define the scope of the problem, demonstrating that "private" violence against women and violence against sexual minorities share at least two characteristics: both phenomena are global in scope and horrific in their consiquences. The distinction between the private and public spheres in international and national law, and the different implications for men and women of this distinction, will also be discussed in the context of gendered violence.

   Part III of this Article will develop the thesis that sexual minorities are "gender outlaws," subject to systematic private societal violence for similar reasons that women are subject to such violence. This part of the Article will briefly summarize the anthropological and historical evidence which indicates that individuals who engage in same-gender sexual relations, or adopt transgendered identities, have generally only been penalized for doing so when their activities have violated norms of male supremacy.

   Part IV of this Article will then discuss a central limitation of international law in addressing private gendered violence: international law's deference to national law and cultural norms. This discussion will focus on the extent to which national legal norms (as an expression of cultural norms) protect, or fail to protect, the bodily integrity of women and sexual minorities. This examination entails a discussion of the right to privacy under both national and international law, since that right can provide a limitation on the ability of the state to violate the bodily integrity of women and sexual minorities for the purpose of imposing societal gender norms. It also, however, entails a discussion of the historically gendered role of the right to privacy as a guarantor of male supremacy in the "private" world of the family. In this sense, privacy is, at best, a two-edged sword for women, even as it provides substantial protection for men and male sexual minorities. This section of the Article will also discuss the extent to which national norms of equal protection provide women and sexual minorities the equal protection of the laws against violence perpetrated on them by private societal actors.

   Finally, in Part V, this Article will discuss the ways in which international law has made some progress in recognizing the rights of sexual minorities and women to be free from violence motivated by their gender or gender non-conformity.

2. DEFINING THE PROBLEM: PRIVATE VIOLENCE AGAINST WOMEN AND SEXUAL MINORITIES

   When examining human rights abuses against women and sexual minorities from a global perspective, it is important to recognize that violations against the bodily integrity of both groups frequently occur outside the reach of the legal system.(8) To the extent legal systems only address violations of bodily integrity occurring outside the home--in the "public sphere"--they fail to provide protection against the numerous abuses which occur within the home--in the "private sphere."(9)

   For example, in many countries, domestic violence has only recently been recognized as a crime. In other countries, it is considered to be outside the state's jurisdiction. As human rights lawyer Julie Mertus notes, "in most regions of the world, including many states in the United States, husbands are free to rape their wives without fear of legal reprisal."(10) Mertus further documents that "[i]n Brazil, until 1991 wife killings were considered to be non-criminal `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."(11) In Egypt, a husband who kills his wife to defend his "honor" may receive a maximum sentence of three years in prison.(12) The penalty for a wife who kills her husband under similar circumstances is prison and hard labor for three years to life.(13)

   This national recognition of a private/public distinction is reflected in international law as well. As noted by Thomas and Beasley:

   International human rights law evolved in order to

   protect . . . individual rights from limitations that might be

   imposed on them by states. States are bound by international

   law to respect the individual rights of each and every person

   and are thus accountable for abuses of those rights. The aim

   of the human rights movement is to enforce states'

   obligations in this regard by denouncing violations of their

   duties under international law. The exclusive focus on the

   behavior of states confines the operation of international

   human rights law entirely within the public sphere.(14)

   The public/private distinction in both domestic and international law has important implications for analyzing human rights abuses against lesbians and women generally. In many cultures, the principal instrument of societal control over women is the family.(15) To the extent women lack legal status outside of their role within the family, they do not enjoy the legal protections accorded to men. Thus, a lesbian may be beaten or killed by a family member for her orientation/identity, yet this domestic violence may not be the concern of law enforcement officials. This contrasts with the status of male sexual minorities in many societies where they enjoy an independent legal status vis-a-vis the state. Therefore, achieving basic civil and political rights relating to an individual's relationship to the state, such as the right to privacy, is more likely to have an immediate, practical effect on the civil rights of gay men. The right to privacy involves a zone of sovereignty that the state may not reach.(16) The right to privacy may offer less protection for women, for whom the state is not as frequently the primary instrument of control. As Donna Sullivan notes, "[b]ecause the family is the site of many of the most egregious violations of women's physical and mental integrity, any blanket deference to the institution of the family or privacy rights within the family has disastrous consequences for women."(17) Nevertheless, states have traditionally been very willing to discard the private/public distinction in order to punish sexual minorities for violating gender norms. Thus, while a man's beating of his wife has been traditionally considered a private, "domestic" concern, same-gender private sexual activity between two consenting adults has been considered within the legitimate scope of the state's concern.(18) In both eases, an actor representing the interests of male supremacy(19) enforces gender norm expectations. The private/public distinction enables men to enforce these norms against members of their household. Conversely, when violations of gender norms are committed by individuals outside of the male dominated heterosexual household paradigm, such as sexual minorities, piercing the public/private distinction enables the state to intervene and perform the role of the husband or father.

   Under international law, the distinction between the private and public sphere is even more pronounced, since the traditional concern of international law has been the conduct of states, not individuals. As a result, the "sovereignty" of the family is also more pronounced under international law than under national law, since national laws establish and regulate the family. Thus, international human rights law has traditionally not recognized gender specific forms of abuse such as rape, sexual abuse, infanticide,(20) genital mutilation,(21) bride-burning,(22) forced marriage,(23) domestic violence, forced sterilization,(24) or forced abortion.(25)

   Unfortunately, the private/public distinction is not the only impediment to recognizing the fundamental human rights of...