Domestic Violence Reconceptualized

Dec 15, 2015 | Issue 5 - October 2016, Issue 5 Commentary

By Belinda Cooper

 

For a long time, domestic violence, like many of the human rights violations women suffer, was invisible to the publicly-oriented framework of human rights, with its emphasis on violations of rights by states. But much has changed in recent years. Today, gendered violence is an accepted part of international human rights discourse, and domestic violence, though committed by non-governmental actors in the private sphere, is recognized as a rights violation that generates government obligations. While this violation has been variously defined, one of the most potent ways of addressing domestic violence has been its reconceptualization as a form of torture under the international Convention Against Torture (CAT). It is not always easy, however, to establish these changes at the level of domestic law.

Traditional conceptions of human rights left little room for the abuses experienced by women. Human rights began, after all, as a way of protecting citizens against government intrusions; and these occurred most often in the public sphere, where men were, and often still are, the primary actors. In contrast, the harms suffered by women, traditionally confined to the private sphere of home and family, tend to be inflicted not by states but by people with power in the private realm—husbands, fathers, sons, partners. Yet the main human rights treaties and laws, directed at the behavior of governments, had nothing to say about these acts by private individuals. The law asked governments to refrain from violating rights in the public sphere, not to intervene to protect them in the private sphere. This left the primary harms suffered by half of humankind outside the protections offered by human rights, and they were frequently ignored, minimized, or condoned.

But in recent decades, a change has emerged in the interpretation of government obligations that is particularly important for women’s rights. In interpretive documents and the decisions of human rights adjudicators, the duties of states have gradually been expanded. Their obligation is no longer merely to respect rights by not interfering with them, but also to protect rights against violations by third parties—private groups and individuals–by taking active measures to prevent, investigate and punish abuses (known in the jargon of rights as “due diligence”). Thus a government can now shirk its obligations through inaction as well as action: failure to prevent third-party violations has become a violation in itself.

This interpretation means, on the one hand, that governments must prevent private actors from violating human rights in the public sphere—from discriminating against minorities and women in non-governmental institutions, for example. But it also means they are expected to keep private actors from committing abuses in the private sphere. Governments now share accountability when they fail to prevent acts that violate women’s rights, such as domestic violence and marital rape, perpetrated against them in the home by family members. This expands both the pool of rights violators and the scope of government responsibility.

Another aspect of the change, however, goes to the rights themselves. The invisibility of women’s rights violations resulted not only because they took place in the private sphere without the participation of government, but also because the abuses themselves were not considered to be human rights violations at all. Rape could not, by definition, take place in marriage, so marital rape did not exist. Violence that took place within an intimate relationship was, to the law, not the same as criminal violence outside the home. It is within this context of redefining rights that domestic violence is being reconceptualized as torture—a violation considered so heinous that the norm against it is among the most fundamental and inviolable in the human rights canon.

The Convention Against Torture defines torture as “severe pain or suffering, whether physical or mental,” inflicted intentionally, for an open-ended list of purposes, one of which is discrimination. Commentators, including the UN’s Special Rapporteur on Torture, have pointed out the strong similarities between descriptions of the “public” abuse that we normally view as torture and the “private” torture inflicted in the worst forms of domestic violence. Both are systematic, severe, and isolating and involve the exercise of physical and mental control over the victim. These characteristics distinguish domestic violence from assaults and other less systematic forms of bodily harm. Domestic violence also involves discrimination, as it is directed mainly at women and emerges from systems of male dominance. Thus reconceptualized, domestic violence is not an entirely different form of harm inflicted upon women, but a familiar violation experienced in a different context–the private sphere—and perpetrated by private actors.

In keeping with the more traditional view of human rights, CAT requires a nexus to government actors; to be torture, suffering must be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” But the Committee Against Torture, charged with interpreting the CAT, has found that this language also encompasses a state’s inaction in preventing private violations, including domestic violence. Failure to exercise due diligence to prevent torture, in the guise of domestic violence, is tantamount to acquiescence.

International and regional human rights courts and mechanisms have largely recognized these changes in the approach to domestic violence. But states have not rushed to embrace the increased level of accountability they entail. The United States, in particular, follows the more traditional path of forbidding only government violations of rights. The US Constitution limits actions by national and state governments, but does not reach private acts.

This has quite concrete impact on cases of domestic violence. The recent case of Jessica Lenahan (Gonzales), which reached the Supreme Court and then the Inter-American Commission on Human Rights, starkly illustrates the discrepancy between international and US interpretations of human rights and government responsibility. Lenahan’s three children were abducted and killed by her husband, while local police in Castle Rock, Colorado, failed to enforce a restraining order against him despite her repeated requests. In 2005, the Supreme Court found that the restraining order created no obligation towards Lenahan; the government was not Constitutionally liable to her for not enforcing it. Discrimination, violence and loss of life, in this interpretation, are not human rights violations if not committed by the government, and government has no responsibility to protect against third-party actions.

In 2010, the Inter-American Commission came to the opposite conclusion, citing the requirement of due diligence to protect against domestic violence by private actors. In its emphatic view, the government’s inaction had indeed violated Lenahan’s and her children’s rights to life and to freedom from discrimination. The US government, in its opinion, had taken insufficient steps to protect Lenahan and others from domestic violence, to investigate after the fact, and to provide compensation. To date, its findings and recommendations have not been taken up by the US government.

Expanding government liability for protecting against and compensating for domestic abuse, as well as reframing the worst types of domestic abuse as a violation of the fundamental norm against torture, have helped to establish the seriousness of domestic violence as a violation of human rights. But the discrepancy of interpretations in the Lenahan case well illustrates both the strides made internationally in this regard and the hurdles still faced in entrenching this conceptualization in domestic law, which remains the first line of defense for human rights.


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