THE CULTURAL AND social bases for violence against women have been a focus of public attention for at least four decades. Women’s refuges were among the earliest manifestations of the feminist revival that commenced about that time, in the late 1960s. There is no doubt there has been progress, but there is also no doubt that much remains to be done.
According to the best figures available, derived from the Australian Bureau of Statistics’ Personal Safety Survey in 2005, one in three women experience at least one incident of physical violence and about one in five women experience sexual violence during their lifetime. Some women are more at risk than others. It is well established that Indigenous women are more likely than other women to be the victims of all kinds of violence, including domestic violence, sexual assaults and homicides. An Aboriginal woman is ten times more likely to die from assault than a non-Aboriginal woman, and thirty-five times more likely to be hospitalised for injuries caused by violence.
The Australian Law Reform Commission last reported on domestic violence in 1984. The establishment in 2008 of the National Council to Reduce Violence Against Women and Their Children created a new focus for co-ordinated action. The Australian Government adopted the council’s proposal for a National Plan of Action to Reduce Violence, and the Australian and New South Wales Law Reform Commissions are each currently conducting an inquiry into family violence as part of the response.
These developments reflect the continuing emphasis on the elimination of acts of violence against women by legal measures, including the operation of the criminal justice system.
GENDER ISSUES AFFECT many aspects of the criminal justice system. A good example of the complexity involved is the continuing debate about provocation as a defence to murder. Historically it was an excuse for men who kill women, an excuse which juries often accepted on the basis that men were expected to react with aggression to slights to their sexual prowess. This boys-will-be-boys approach is no longer acceptable.
The same legal principles have been applied to women who kill their abusive partner after a long period of domestic violence. I am not suggesting moral equivalence between the two, but it is hard to change the law in one respect without impinging on the other. The most difficult issue for a judge is to determine when it is permissible to leave provocation to the jury, which represents community values and prejudices. Counsel and the judge must do what they can to ensure that the jury does not proceed on outdated gender role models.
New South Wales was the first Australian jurisdiction to criminalise stalking in 1993, following California two years earlier. Other states soon followed, and Britain and New Zealand in 1997. Subsequent legislation emphasised the significance of domestic violence. New South Wales has also developed a Domestic Violence Intervention Court Model, piloted in 2005. Among its main features are domestic violence evidence kits for police; a victims’ advocate service; a specific Local Court Practice Note; a perpetrator program, which the offender can be required to attend; and regular meetings and information sharing between the police, victims’ advocates, and the departments of Corrective Services and Community Affairs.
These measures were designed to increase prosecution rates, and make the justice system more accessible and efficient. The 2008 evaluative report notes overall satisfaction with the pilot program, but no changes in the rates of assault or the reporting of prosecutions.
It is well established that a significant factor inhibiting the effective application of the criminal justice system is the degree of under-reporting of violence against women. The 2005 ABS study indicated that two-thirds of women did not report assaults to the police. One of the reasons is fear of retaliatory violence by the perpetrator and/or his relatives and friends, and other forms of retaliation enforced by close communities, ranging from discrimination and ostracism to retaliatory rape and honour crimes. Some social groups, including some Indigenous and ethnic communities, engage in such retaliation.
The dominant European culture in Australia has developed – admittedly only over recent decades – policies aimed at ensuring substantive equality between men and women, including in personal and family relations. The legal system increasingly reflects these values in substantive law and procedures. Nevertheless, there are communities in Australia with a cultural background quite inconsistent with many aspects of this majority position.
The way violence and the fear of violence is directed to women raises significant human rights issues. Only in recent years has this been recognised. A number of submissions to the National Human Rights Consultation, for example, identified violence against women as a human rights issue. The recommendations did not specifically refer to the position of women in this respect, although the recommendation that a Human Rights Act protect the right to liberty and security of persons may encompass an individual right to be protected from violence.
The human rights instrument directed expressly to the position of women is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) of 1979. This is an acceptable, but flawed, international model. It is flawed because of the need to obtain agreement from many nations, including those whose cultures permit conduct towards women that we would regard as discriminatory. The range of nations, particularly in Africa and the Islamic world, with customary and social practices that were problematic because of gender bias meant that the drafting process led to major compromises. The 1999 Optional Protocol to CEDAW provides for complaints directly to the CEDAW Committee after domestic remedies have been exhausted, making the complaints process comparable with other international treaties. In December 2008 Australia acceded to this and a joint statement by the Attorney-General and the Minister for the Status of Women said the protocol would ‘send a strong message that Australia is serious about promoting gender equality and that we are prepared to be judged by international human rights standards’.
Much Australian commentary on the subject uses CEDAW as a benchmark, including in domestic violence, so its inadequacies need to be understood. By comparison, the Convention on the Elimination of All Forms of Racial Discrimination – on which CEDAW was based – is specific and aspirational. CEDAW makes no reference to violence: even to acute forms of violence, such as honour killings. This was not an accident. Many nations would have objected. If it had been included, the convention may never have come into force.
CEDAW is subject to more extensive reservations than any other international human rights instrument. A particularly egregious example is the reservation of Bangladesh, and similar reservations by Egypt and Libya, to Article II, which was designed to eradicate discrimination by new laws and policies, changing existing discriminatory laws and providing sanctions for discrimination where appropriate. The reservation states simply: ‘The Government...of Bangladesh does not consider as binding upon itself the provisions of Articles II...as they conflict with Sharia Law based on the Holy Q’uran and Sunna.’ CEDAW does not contain an effective mechanism for preventing incompatible reservations.
Despite these deficiencies, significant effort has been directed to expanding CEDAW’s reach through interpretation by the CEDAW Committee. General Recommendation No. 19 of 1992 stated that ‘gender-based violence’ constitutes ‘discrimination’ within the meaning of Article I. This, the committee declared, extends to any such violence which impairs other human rights, such as the right to life; the right not to be subject to cruel, inhuman or degrading treatment or punishment; the right to liberty and security of the person; and the right to equality in the family.
Violent conduct of this character is often gender-specific, but it varies from one nation or culture to another. Despite the committee’s attempt to extend its jurisdiction by interpretation, it is by no means clear that it can apply to each of the human rights protected by other international covenants. Such conduct can be discriminatory but – save in the case of honour killings, the right to life – there is little evidence of systematically different treatment.
It is the deficiencies in the convention that have resulted in the attempt to stretch the concept of discrimination beyond its natural borders. CEDAW is not an adequate international standard. It seems inappropriate that violence against women is only regarded as a human rights issue insofar as it is ‘discriminatory’. Everyone has a right to be free from violence or the threat of violence.
THE RECOGNITION OF a right to ‘security’, often expressed in combination with a right to ‘liberty’, can be traced back to the French Declaration of the Rights of Man and of the Citizen of 1789. It is reflected in most contemporary human rights instruments since Article III of the Universal Declaration, which protects a person’s right to life, liberty and security.
Despite this early recognition, the idea of personal security as an individual right has been lost. It is, perhaps, the least developed of any of the human rights protected by international covenants. It is, however, the only source for the recognition of a right to be protected from violence that does not involve death, torture or cruel and unusual punishment.
Under the European Convention the right to personal security has been denuded of any operation independent of the protection of ‘liberty’. Throughout Europe, and therefore in England, the idea that the state may acquire through its treaty commitments an obligation to protect individuals from violence has been expressly rejected. The position is somewhat different under the human rights provisions in South Africa and Canada.
The human rights literature emphasises the responsibility of states to take three kinds of action with respect to human rights protected by treaties or customary international law. These are duties to fulfil rights by taking positive actions, to respect and protect rights from infringement by states and others. There is considerable variation in the way these are defined in domestic laws.
An internationally derived obligation to protect citizens from violence is not well established, beyond the clear categories of life, torture or cruel and unusual punishment. The most likely source of the development of a right not to be subject to violence is the recognition of the right to security in numerous international instruments. This is reflected in the human rights legislation adopted in the Australian Capital Territory and Victoria, and was proposed by the National Human Rights Consultation.
Such instruments do not expressly identify the qualifications that are necessarily implied in such an absolute statement. For example, a state has many reasons to deploy violence, particularly in the exercise of legitimate police functions.
More significant, in the context of the human rights debate, is the tension that has always existed between liberty and security in political philosophy. In critical respects, the tension between the power of the state as the protector of public security, on the one hand, and as the potential source of persecution, on the other, underpins liberal-democratic political philosophy and determines much of the content of the rule of law.
Traditionally a contrast is drawn between liberty as an individual right and security as a public or collective interest. As the security of the person is regarded as an individual right, there is a conflict between rights, rather than a conflict between a right and an interest. Human rights advocates are very comfortable concluding that a right prevails over an interest, but there is no generally accepted mechanism for dealing with a conflict between rights. As Jeremy Waldron has put it: ‘Rights versus rights is a different ball game from rights versus social utility. If security is also a matter of rights, then rights are at stake on both sides of the equation...The business of conflicts of rights is a terribly difficult area – with which moral philosophers are only just beginning to grapple.’
There is a distinct reluctance among human rights scholars to recognise the right to personal security as any kind of individual right. It appears that recognition of a right to personal security may be seen to threaten the fullest recognition of other rights that may come into conflict with it.
HUMAN RIGHTS DEBATES have not given fear, particularly fear of violence, adequate attention. Fear is of particular significance to all forms of violence against women, particularly domestic violence.
The Universal Declaration of Human Rights of 1948 identifies four freedoms derived from the rhetoric of Franklin D. Roosevelt. One of these was ‘freedom from fear’. This concept has all but disappeared from contemporary human rights discourse. I call it ‘the forgotten freedom’.
This absence is regrettable, because often the most significant impact on personal freedom comes from fear, rather than direct interference. No social system, including any governmental system, can operate by reliance on physical restraint or direct interference alone – there are limits on resources even to those who wish to interfere with the freedom of others.
The most effective, indeed the most common, form of interference with freedom arises from self-imposed restraint because of the threat of adverse consequences. The restraint on behaviour is greater, indeed almost always much greater, than it would be on the basis of a calculation of the probability of those consequences actually occurring.
Actual interference is not the only way in which human rights can be abrogated. The well-known chilling effect of constraints on the exercise of freedom of expression can be replicated in virtually every other human rights context.
This does not mean that freedom from fear is itself a form of freestanding right. Rather, it is a critical dimension of other rights. There is a long list of internationally recognised human rights that, in my opinion, have a fear dimension.
The significance of freedom from fear has long been recognised in political philosophy, in particular by Montesquieu in his classic work The Spirit of the Laws. In Book XI, the very chapter where Montesquieu made his most influential contribution – the significance of the separation of legislative, executive and judicial power – he stated, by way of an introductory paragraph: ‘The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted, as one man need not be afraid of another.’
Montesquieu’s clear link between liberty and tranquillity is reminiscent of Cicero’s aphorism ‘Peace is liberty in tranquillity.’ Montesquieu also referred to the significance of tranquillity in terms of the language of ‘security’. These ideas were very influential, including on the common law. The English judge Sir William Blackstone identified three principal rights, which he described as the ‘rights of all mankind’ – namely, personal security, personal liberty and private property. Blackstone’s idea of ‘personal security’ is equivalent to Montesquieu’s ‘tranquillity of spirit’: ‘The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.’ He included both actual and threatened violence within the right to personal security.
All legal systems have well-established laws designed to protect persons from physical violence. Legal prohibition of threats of violence, and other forms of fear-inducing conduct which intimidate individuals, is not so clearly established. There is a patchwork of criminal offences relating to intimidation, harassment, blackmail, threats and other such conduct. Yet there is no systematic approach to these matters in any field of discourse, including threats of violence against women.
The recognition of the dimension of fear in personal security is of particular significance for women. Numerous surveys have concluded that, although men are more likely to be victims of violent crime than women, women have a greater fear of crime. In part this is because women are more liable to sexual assaults, assaults with a terror beyond physical injury.
This is recognition of women’s sense of vulnerability – including, most significantly, vulnerability to domestic violence. Domestic violence has correctly been characterised as a form of ‘social entrapment’ which extends to social isolation, fear and coercion, indifference of institutions, and structural inequalities of gender, class and race aggravating men’s coercive control.
Even in the context of intimate relations, violence and the threat of violence is overwhelmingly gender-specific, reflecting traditional patriarchal domination not yet extirpated. That sense of vulnerability recognises the high exposure to risk, the comparative lack of control (in part for physical reasons) and the perceived seriousness of the sexual dimension of violence. Women clearly have a heightened awareness of risks to personal safety of other family members or close friends – sometimes called a form of ‘altruistic fear’. For all these reasons, the fear dimension of threats to personal security is not gender-neutral.
The law cannot protect citizens from all subjective fears. The relevant test must have a high degree of objectivity. There is, for instance, a developed doctrine of a ‘well-founded fear of persecution’ in refugee law.
The fear dimension raises human rights considerations. As one author who argues forcefully for the recognition of domestic violence as a human rights issue put it: ‘Domestic violence violates the principle that lies at the heart of [the] moral vision [of human rights]: the inherent dignity and worth of all members of the human family, the humane right to freedom from fear and want and the equal rights of men and women.’ Others have emphasised the significance of recent human rights jurisprudence in responding to freedom from fear in the context of women’s rights, and concluded: ‘Freedom from fear may be the most important goal for the new millennium.’
The significance of fear was recognised in the Declaration on the Elimination of Violence Against Womenadopted by the General Assembly of the United Nations in 1994, by defining ‘violence against women’ to encompass threats of gender-based violence and coercion. Australia’s accession to the Optional Protocol means that matters of this character can now be considered by way of complaint by Australians to the Committee for CEDAW, as has long been the case with respect to the Human Rights Committee under the International Covenant on Civil and Political Rights.
THE MOST IMPORTANT mechanism directed to the dimension of fear is a system that exists in numerous jurisdictions and that in New South Wales we call Apprehended Violence Orders. As I noted in one judgment: ‘The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking, intimidation and harassment. AVOs constitute the primary means in this state of asserting the fundamental right to freedom from fear.’
The principal objective of AVOs was clearly enunciated by the then Premier, Neville Wran QC MP, when introducing the original legislation in 1982. ‘I believe,’ he said, ‘that this law reform will provide effective and immediate relief for those women who spend their lives worrying when the next battering will be.’
Although not limited to violence against women, or indeed to domestic violence, AVOs have played an important role in giving some measure of comfort to women threatened with domestic violence. They are not always effective, but research suggests that AVOs have had a significant effect in reducing both acts and threats of violence.
In its review of the AVO scheme, the New South Wales Law Reform Commission referred to the difficulty of creating penalties for cases of genuine criminality without encompassing behaviour that causes irrational fear. The commission identified as a difficult question the issue of whether or not the victim needs to have experienced fear – and if so, of what? No doubt the current Law Reform Commission inquiries will revisit such matters.
SEXISM IN THE European cultural tradition has in the past decades been targeted on a broad front, including with respect to violence against women. There are, however, important racial, ethnic and religious minorities in Australia who come from nations with sexist traditions. Violence against women is significantly greater in some social groups, whether based on cultural tradition or not. This dimension of the issue may well involve conflicts between values that are difficult to resolve.
Over the criminalisation of physical violence the majority culture is not able to compromise, although difficult questions arise about enforcement and sentencing. It is hard to know where to draw the line in legislation, and in the enforcement of laws based on the approach of the majority culture, where the policies underlying these laws conflict with other policies that recognise respect for minority cultures. This has become most acute in relation to the Indigenous community, most clearly in the Northern Territory Intervention, triggered by revelations of physical abuse of women and children, mainly girls.
I take heart from the observations of Mick Dodson when the issue first rose to prominence: ‘We have no cultural traditions based on humiliation, degradation and violation...Most of the violence, if not all, that our brittle communities are experiencing today are not part of Aboriginal tradition or culture.’
Throughout Europe significant issues have arisen, particularly involving Islamic and South Asian communities, regarding honour crimes and forced marriages. We have sizeable communities from the Middle East and South Asia in Australia, and are unlikely to avoid similar issues.
One of the principal ways that forced marriages and honour crimes, including killings, have arisen in the European legal system has been in the context of immigration law – particularly regarding refugee and asylum claims. That has also been the case in Australia.
There is now an extensive literature on crimes of honour, not only focusing on Islamic communities. Extensive research has been conducted in Jordan, Palestine, Lebanon, Pakistan, Egypt and Iraq, and similar crimes of honour occur, or a legitimate defence of honour has been recognised, in Italy and various jurisdictions of Latin America.
Although men can be victims of honour crimes, the idea of honour in this context is based on a historical legacy of women as the property of their male relatives. I first came across the matter in Australia in a case before the New South Wales Court of Criminal Appeal. A man had attempted to engage a person to murder his niece. The young woman had entered into an unhappy and clearly forced marriage in Jordan. She formed a relationship with a man of whom the family did not approve, left her family home and moved to a refuge, taking out an AVO against her father, mother and husband.
The accused and his family were Jordanian. They were Orthodox Christians – worth emphasising, as the issues that arise in this context are cultural, not religious, and the man with whom she had a relationship was in fact Muslim. The uncle contacted a private investigation firm, enquiring how much it would cost to have her killed.
The sentencing task posed acute questions about the extent to which the cultural disgrace experienced by the family should be considered. The proposed victim gave evidence in support of her uncle, raising considerations of restorative justice in a context where restoring relationships within the family was entitled to some weight. Motive is always a matter of significance in sentencing, as is the requirement of personal deterrence in a situation that is unlikely to recur. The requirement of general deterrence, though, points in the other direction.
These are difficult issues, and they call for judgment based on experience. That experience must also be informed by the broader social context, including the emphasis now given to preventing violence against women.
Forced marriages have received considerable attention throughout Europe. That a marriage can only be entered into with ‘free and full consent’ is recognised as a human right under international covenants. The practice of forced marriages, particularly of young women from Pakistan, India and Bangladesh, has become a significant concern in the United Kingdom. In 2001, the British Government created a Forced Marriage Unit to seek to prevent such marriages, on the basis that they constitute an abuse of human rights. In 2008 more than sixteen thousand incidents of suspected forced marriages were reported to the unit.
In 2007 the UK passed the Forced Marriage (Civil Protection) Act and empowered family courts to make a Forced Marriage Protection Order. This included orders to prevent a forced marriage from occurring – relinquish passports; stop intimidation and violence; reveal the whereabouts of a person; and prevent someone being taken abroad. Orders can be made ex parte in emergency situations; orders for arrest where violence is threatened or used can be issued, and failure to obey them is a criminal offence.
In Australia, the Marriage Act 1961 imposes civil penalties for persons marrying without a partner’s consent or when the partner is underage. It is not a criminal offence to obtain consent through duress or other force, although other provisions of the criminal law could well be applicable in such situations. It is an offence to traffic an underage person overseas for the purposes of a forced marriage.
Such matters have come before Australian courts. In one case, a young Sicilian girl was abducted and kept by force in Italy. The dishonour to her family was such that her father would, by custom, have been obliged to kill her if she did not marry her kidnapper. The Australian judge annulled the Italian marriage on the ground of duress.
There is a fundamental conflict between a human rights approach to these matters and the tolerance of cultural traditions, based on an assumption of equality between cultures. The human rights approach is founded on an assertion that, in certain defined respects, the values of one culture – because they are internationally recognised – are superior to those of another culture, and entitled to overriding effect. There is no way of avoiding the dilemma arising from this conflict of values. We see it most acutely in Indigenous issues.
The recognition that certain rights are fundamental plays an important role in establishing the basis for resolving the issues when they arise before the courts. This occurs in the migration context, particularly protection visas and family law decision-making processes, ranging from issues of consent through to questions of custody; and in the criminal justice context, including provocation, based on cultural or religious factors, to downgrade a charge of murder to manslaughter and the weight given to such considerations in sentencing discretion.
The defence of provocation has been used in cases of honour killings in Britain. Some years ago, in Australia, a trial judge left provocation to the jury in a case where the accused, a Turkish Muslim, killed his daughter in a confrontation over an alleged sexual relationship with her boyfriend. The jury appeared to accept the defence.
The New South Wales law of provocation distinguishes between the gravity and effect of the conduct, and the response of the accused by a loss of self-control. It has been held that the cultural background is relevant to the first but not to the second. In any event, in most honour killings there is evidence of deliberation and planning that is inconsistent with the loss of self-control.
Some have argued that failure to accept the internalised cultural response, which leads to a loss of self-control, is contrary to the principle of equality before the law. In the past this issue has arisen in the context of Aboriginal defendants. Such considerations have not been accepted as satisfying the loss of self-control aspect of the test of provocation. There is tension between gender bias and considerations of cultural respect in determining what the overriding value of equality before the law requires in a particular case. It is a very real challenge to balance the objective of cultural equality and diversity with the protection of women from gender-based violence.
The difficulties involved have been highlighted in the continuing debate about violence in Aboriginal communities and the extraordinary measures taken in response to it in recent years. One author who reviewed the range of reports on this matter concluded: ‘Typical Western responses to family violence like women’s refuges, criminal justice responses and programmes of the therapeutic nature have mostly been culturally inappropriate and ineffective. These approaches are largely based on Western models of intervention that have sought to separate the victim from the perpetrator, which in the process has led to the division of Indigenous families. Whilst this option may grant some reprieve from the immediate danger of assault, Indigenous family groups do not see separation as a viable long-term option given that we have almost universally been subjected to forced removal since colonisation. Nor do we see the solution solely in terms of criminalising violence and institutionalising the offender to protect the victim...Many women fear that they could face increasing levels of violence from their partner when they are released from custody.’
Similar issues could arise with a number of ethnic and religious groups. Human rights norms are, to a substantial degree, based on assumptions about individual autonomy – the full implications of which are not universally accepted, including by women of these social groups. The demands of filial piety and the need for social inclusion are not simply imposed; they are often internalised and accepted. Many women will find it hard to resolve the conflict between their desire for personal freedom and the fulfilment of their deeply felt social and family obligations.
There can be no compromise with acts of violence. Yet the enforcement of laws designed to minimise violence raises a range of complex issues, about which the debate will continue – especially when addressing the tension between individual rights and social pressures.