State Responses to Domestic Violence

position of immigrant women or their total dependence on their spouses caused by restrictive immigrant policies are not taken into consideration. 46 Another proposal by Ertürk entails to stretch State responsibility to actions of non-State actors that operate ‘below’ and ‘above’ the State. The point she makes is that at the moment States may only be held co-responsible for acts committed by private actors within the family and the community. However, there are also societal movements that greatly inluence the behaviour of groups and may compel them to act in ways that disregards women’s rights and keep women in a subjugated position. So-called identity politics movements have her greatest concern. Such movements cannot be held responsible themselves, but according to the SRVAW States should curb their inluence and thus prevent violations. 47 Non-State actors ‘above’ the State are to be found in the transnational arena. The SRVAW draws attention to the impact of social and economic policies that negatively inluence women’s human rights. 48 Trans- national corporations may have enormous power over macroeconomic decision- making and have inluenced the process of global restructuring which has favoured liberalization and privatization. These economic changes in fact reinforce existing power relations which are to the detriment of women’s enjoyment of their human rights and economic position. While it is high time that transnational corporations and other business enterprises are themselves held responsible for human rights violations, it is primarily the task of States to protect their citizens and conclude trade and investment treaties that are conditional upon human rights. If they fail to do so, they should bear the responsibility for the ensuing violations. 49

F. State Responses to Domestic Violence

There is a whole range of actions that are undertaken by States to combat DV such as protecting the victims, prosecuting and punishing the perpetrators or taking administrative or private law measures against them. It is obvious, however, that most States are focusing on protecting the victims and prosecuting the perpetrators while little is being done to prevent the occurrence of DV. 50 One of the irst measures most States have taken is criminalizing DV. This is in conformity with the suggestions of the SRVAW who urges States to investigate and prosecute cases of domestic violence and to convict and sentence the culprits. 51 The SRVAW is furthermore in favour of deining DV as a separate offence, which should not be formulated in a gender-neutral way, but must be represented as a gender- 46 UN doc. AHRC434Add. 4, 2009, Country mission report on the Netherlands, section B, Violence against immigrant, refugee and asylum-seeking women. 47 UN doc. AHRC116Add.5, 2009, para. 72. 48 UN doc. AHRC116Add.5, 2009, paras. 72-73. 49 UN doc. AHRC116Add.5, 2009, paras. 76-77. 50 For instance: UN doc. AHRC434Add. 3, Mission to Sweden, 06-02-2007, para. 46. 51 UN doc. AHRC116Add.5, 2009, para. 67. based crime. 52 This will serve the purpose of raising public awareness of the gender dimensions of DV. 53 There are certainly many advantages to criminalizing DV. First of all, it is a strong signal that DV is unwanted behaviour that is not tolerated by the authorities. Especially when DV is deined as a separate crime, the seriousness is stressed. The SRVAW sees a very important role for the judiciary and the ofice of the public prosecutor who should condemn all kinds of acts of VAW in the strongest terms. Their stance will inluence public opinion about DV. 54 Criminalization may also have a deterring effect. This is more likely when there is a zero-tolerance attitude by the prosecuting authorities entailing that every case is rigorously investigated, punishments are commensurate with the seriousness of the crime, and no mitigating arguments are accepted as justiications. In several States it is felt that arrest of the perpetrator is the best action since it will bring immediate relief to the victim. 55 In Sweden, DV falls under the heading of ‘gross violation of integrity’ since 1998. Especially when violence is perpetrated towards a person with whom the offender has or has had an intimate relationship the victim’s integrity and self- conidence will be severely damaged. That is why the crime may be punished with imprisonment between six months and six years. 56 Besides these advantages there are also some catches concerning criminalization. First of all, in many States the implementation leaves much to be desired which means that the message of disapproval does not come across and many perpetrators get away with impunity. 57 The police are often very reluctant to interfere in the domestic sphere. They underestimate the seriousness of the crime and regard it as a lovers’ tiff or a family affair and consequently, rather than taking upon themselves the role of keepers of the peace who have to deal with a criminal offence, they act like mediators trying to reconcile the couple. 58 A good example of police invol- vement may be found in Brazil, where since 1985 specialized women’s police stations have been established that deal with do- mestic violence. 59 It is obvious that the police needs to receive speciic information and training in how to deal with instances of DV. 52 UN doc. ECN.4199653, 1996, para. 129. Also, UN doc. A61112Add.1, In-depth study of all forms of vio- lence against women, Report of the Secretary-General, 06-07-2006, para. 318. Box 11 shows that by 2006, 89 States had adopted legislation addressing DV. 53 See e.g. UN doc. AHRC434Add. 4, Mission to the Netherlands, 07-02-2007, paras. 39-42 where the SRVAW disapproves of the fact that the Dutch Government has decided to deine domestic violence in a gender-neutral manner. 54 UN doc. AHRC116Add.5, 2009, para. 70. 55 UN doc. ECN.4199542, para. 128. 56 UN doc. AHRC434Add. 3, 2007, para. 47. 57 For instance, UN doc. AHRC434Add. 3, Mission to Sweden, 06-02-2007, para. 50. 58 According to the SRVAW’s visit to Indonesia in 1999, at the time the police still regarded DV as a private mat- ter and did not like to intervene in what they regarded to be a private matter. UN doc. ECN4199968Add. 3, Mission to Indonesia and East Timor, 21-01-1999, para. 35. 59 UN doc. ECN.4199747Add. 2, Mission to Brazil on the issue of domestic violence, 21-01-1997, paras. 47- 50. Also the public prosecutor may lack understanding and be too lenient in cases of abuse in the domestic sphere. 60 Furthermore, in many States the prosecutor is hampered by the fact that DV is a criminal complaint offence which means that prosecution must be stopped as soon as the victim drops her complaint. 61 In practice it is quite common that women are coerced by their partners or family to withdraw their complaint and to reconcile with their abusive husbands. 62 Courts may accept extenuating circumstances and be mild in their sentences of wife batterers. Sometimes justiication for the violence is found in the fact that the wife was ‘provocative’ by not obeying her husband or that the husband was obliged to defend his or his family’s honour. A disadvantage to criminalization that the SRVAW does not mention is that having a criminal record will stigmatize not only the perpetrator, but also his family. It may also affect the husband’s opportunities on the labour market which may have repercussions for the family income as worldwide men are the main breadwinners. This is all the more true when the perpetrator is incarcerated since his income will stop altogether. Also ining a batterer will inancially hurt his wife and children since the ine will have to be paid out of the family income. While criminalization remains ne- cessary, it is many times used as a last resort when all kinds of other measures have already been tried. This is quite understandable since most female victims of DV are not intent on ending their relationship, they just wish for the violence to stop. 63 They have married their partner because they loved him, and especially when children are involved women are very reluctant to break up the family. In many States, mediation and reconciliation are promulgated, especially by religious institutions. 64 While this may be effective and desirable, there is a huge risk that victims are more or less pressurized against their wishes to stay with an abusive partner even in cases when the violence is life threatening. Furthermore, reconcilia- tion entails that the perpetrator does not have to face any consequences for his acts and at the same time it is implied that the 60 In Austria, the police requested the public prosecutor to arrest a known wife abuser and to detain him because it was feared that he would cause serious harm to his wife as she had uttered the wish to divorce him which would have as a consequence that he would have to leave the country. When the prosecutor refused to give his consent because he felt that arrest was a disproportionate measure, the woman was stabbed to death by her husband. CEDAW Communication No. 62005, 06-08-2007. 61 In the Netherlands, excellent guidelines on DV have been drawn up for the law enforcement authorities in which a zero-tolerance approach is advocated. However, implementation leaves much to be desired since 45 of all complaints related to DV are eventually dropped which makes it impossible for the prosecutor to investigate the incident further. UN doc. AHRC434Add. 4, Mission to the Netherlands, 07-02-2007, paras. 34-35. 62 In Algeria, for example, family structure, culture and tradition are factors that discourage women from reporting or pressing charges. It is regarded as bringing dishonour to the family if a woman involves an outsider in family matters, even in cases of serious violence. UN doc. AHRC76Add. 2, Mission to Algeria, 13-02-2008, para. 51. 63 For instance in the Netherlands, about half of the battered women will return to their partners. 64 In general, this is also true for Algeria but the SRVAW discovered that the two specialized women’s shelters in that country offer vocational training programmes to women who not wish to return to their abusive husbands. UN doc. AHRC76Add. 2, Mission to Algeria, 13-02-2008, para. 60 victim also bears part of the blame. That is why authorities should make certain that the victim is in fact in favour of reconcilia- tion. Victims who have led the home because they no longer feel safe there have the option to go to shelters in many States. It is not always the State that creates and operates such emergency safe-houses. Often it is women’s NGOs that maintain the shelters, sometimes inancially supported by the State. 65 Almost everywhere the number of shelters is too small and the shelters that are available are constantly illed to capacity. 66 In countries where there are several shelters, the usual policy is to send the woman to another city for safety reasons. Normally, women can only stay a limited period in these homes while they are advised and helped to get their life back on track. 67 Preferably, there should be speciic shelters for battered women and general shelters for other homeless people. If battered women and their children have to live in general shelters, together with drug addicts, alcoholics and mentally disturbed people, this may be a traumatic experience. It goes without saying that safety is the irst precondition. Addresses of safe-houses are to be kept on a need to know basis only in order to prevent harassment by vengeful ex partners. 68 Although shelters are an absolute necessity in cases when women feel very unsafe and no longer wish to remain in the family home and have no relatives or friends to go to, it is unfortunate that the SRVAW, like so many other international organs, States and NGOs, sees the provision of shelters as the primary protection measure for victims of DV. I cannot help but feel that this idea is in itself based on gendered ideas about ownership and the right to housing. Why would the victim be obliged to leave the family home and live in inferior or inadequate housing conditions such as in shelters, while the perpetrator continues to live in comfort in the family home? 69 Also for children this is a very unfair situation. 70 They will have to leave their neighbourhood, friends and sometimes their schools and thus are yet again victimized in addition to the traumatic experience they had to suffer of seeing their father battering their mother. States would be well advised to 65 UN doc. AHRC434Add. 3, Mission to Sweden, 06-02-2007, paras. 58-60. 66 In the Netherlands, almost half of the women who seek refuge have to be turned away because the shelters are full. Only women who are Dutch nationals or who legally reside in the Netherlands have the right to admission to any of the country’s 100 women’s shelters. Women who are illegally in the country are turned away. UN doc. AHRC434Add. 4, Mission to the Netherlands, 07-02-2007, para. 36. 67 Usually the maximum period that women can stay in these safe houses is six months. 68 In the Netherlands, e.g. addresses of safe-houses are not so dificult to obtain. Many women living in such shelters are harassed by their former partners who make it very unsafe for them to leave the house. In March 2004 for example, a man succeeded in tracing his wife time and again by way of accessing internet data of their common health insurance company. When he caught her in front of the fourth shelter she had taken refuge in, he killed her in front of their three children. NRC Handelsblad, 26 March 2004. 69 Westendorp, Ingrid, ‘If home is no haven: women’s rights to adequate housing in cases of domestic violence’, pp. 136-140, and Lünnemann, Katinka, ‘The legal arrangement of eviction’, pp. 147-150, both in: Westendorp, I. Wolleswinkel, R. eds., 2005, Violence in the domestic sphere, Intersentia, Antwerpen-Oxford. 70 All over the world, in the majority of the cases where a couple is separated or divorced, the children will stay with the mother. Mothers are particularly hesitant to leave the children with a violent partner. follow Austria’s example, 71 where ifteen years ago a law was adopted that makes it possible to evict the perpetrator from the family home, even if the house is rented or owned by the batterer. 72 Such a measure may be taken for a shorter or longer period and it will be accompanied by several restraining orders forbidding the perpetrator to access the house or even the neighbourhood. Besides being fair, this legislation also has preventive effects since it clearly shows that the authorities no longer accept patriarchal values that regard the male as the head of the household and the king of the castle. Eviction orders fall under administrative law since they are issued by the mayor as a measure of public order. This is a great advantage because a lengthy court procedure can be avoided and immediate relief can be offered. Up till now, eviction orders can only be issued for a limited time period in most cases. In the States where it is at all possible, eviction of the perpetrator is usually ordered for 10 days, a period that can be extended till four weeks at the discretion of the mayor. It is not clear, however, what will happen afterwards and how the offender will react once he is allowed to return home since anger management courses or other therapies are only offered on a voluntary basis. Sometimes whole families are evicted because the couple is marked as ‘violent’ irrespective of the fact that it is only one person who uses violence. The result is that not only the interests of the offender are hurt, but also that the wife and children are victimized. 73 Private law measures are often connected to divorce procedures or are taken after the divorce has been settled and the woman is still harassed by her former partner. Restraining orders see to it that the offender is banned from the home or shelter where his ex- partner lives, the neighbourhood, or his victim’s workplace. It is also possible that he is explicitly prohibited to contact his victim andor their children in any other way. A disadvantage of such measures is that they may take a lot of time and costs a lot of money since only courts may take such measures. Furthermore, they are mostly issued when violence has already repeatedly happened. It goes without saying that 247 police surveillance of the victim’s home is not an option, which means that the 71 The Austrian Bundesgesetz zum Schutz vor Gewalt in der Familie federal law to protect the family against violence for short Gewaltschutzgesetz, got effect in 1997 and was reformed in 2000 and 2004. 72 Similar legislation can meanwhile be found in a few other States such as Argentina, Germany and Sweden. In the Netherlands temporary eviction of the perpetrator by the Mayor has been introduced in several towns and will become generally applicable. 73 In several states of the USA, inter alia Oregon, California, Colorado, Louisiana, Massachusetts and Michigan, subsidized-housing policies have been developed that provide for affordable housing to low-income groups. To be eligible for such a housing subsidy, people have to meet with certain criteria. These include that no member of the family must have a history of criminal activity, disturbing the neighbours, or destroying property. The aim is to make housing in subsidized buildings for all tenants as safe as possible. The result is, however, that if one of the family members behaves violently, the whole family may be evicted. Eviction is possible even if the tenant was not actually arrested or con- victed. In this way not only the perpetrator, but the victims of domestic violence are rendered home- less as well. Moreover, once one has been evicted it is very dificult to qualify for future housing programmes. enforcement of restraining orders leaves much to be desired. 74 Additional measures that States have taken in the context of protecting and supporting victims of DV consist of medical care, counselling, and legal advice. The latter is useful if the victim wishes to divorce her husband and needs to claim alimony, child support and housing. Counselling may be offered to the victim to help her with post- traumatic stress disorders, but it is also possible that counselling may be offered to the batterer. This may be considered as a measure to prevent DV in future since anger- management training or some other form of therapeutic treatment is aimed at changing the husband’s behaviour. Preventive measures that may sometimes be found are the training of law enforcement and judicial oficers in which they are made aware of the gender aspects of DV, and media campaigns initiated by the Government and targeted at the public at large in order to impose a sentiment of disapproval of gender-based violence. In conclusion, it can be said that many useful and innovative measures are being taken dealing with DV, however, almost all of these measures concern victims of violence and are thus taken after the harm has been done. This entails that States are concentrating on symptoms rather than on root causes. That is why in the next section ways and methods are suggested that may be deployed to eradicate the main cause of DV: the existing inequality between men and women.

G. The Way Forward