Home fires: Editorial on the types of domestic violence

 Only with education, exposure, maturity and confidence can the Indian woman take full advantage of the law and the insights it contains

Domestic violence does not only mean being beaten to a pulp. A sessions court in Maharashtra, upholding a lower court order, ruled in favour of a woman who had complained that her husband refused to consummate their marriage but conducted affairs with other men. The court ordered the respondent to pay the woman compensation and a monthly maintenance. Physical injuries are certainly part of domestic violence, but the court reportedly said that so are sexual, verbal, emotional and economic abuse. A woman married to a man unwilling to relate to her sexually but engaged in relationships with men would presumably be subjected to emotional violence, since her expectations and — in this case — her efforts to establish conjugal relations with her husband were foiled. This was a kind of sexual violence, too, through the refusal or withdrawal of sex. The woman suffered from both kinds of abuse, exacerbated by her discovery of her husband’s affairs.

At first glance, the court seems to be reiterating the forms of abuse itemised in the Protection of Women from Domestic Violence Act, 2005. What the reiteration does, however, is to underscore the slightly unusual nature of the case, thus suggesting that the kinds of abuse have a wide and varied application. The violence implicit in the situation of a woman who is not beaten up but just not treated as a wife in private could become invisible without an assertive application of the law. Economic violence by the intimate partner, for example, remains largely invisible in spite of the law. A spouse’s full control of household expenses is common enough, but just as common is a man’s pocketing of his wife’s earnings to spend on drink or gambling. Both these situations and more have become normalised by the power-relations within marriage and are, consequently, invisible. That does not make them any less violent or oppressive: acceptance of inequality on one level leads to continued violence on others. The law must be matched with awareness regarding accepted oppressions for it to be effective. The problem with protection from domestic violence is that, apart from physical abuse, it is difficult to recognise and acknowledge the other forms that the court mentioned. Only with education, exposure, maturity and confidence can the Indian woman take full advantage of the law and the insights it contains.

Source: The Telegraph, 2/01/23

Regress report: Editorial on ever-increasing rape cases in India

 Almost ten years on after the Delhi rape case, 4,28,278 cases of crimes against women were registered in 2021, almost double when compared to the 2,44,270 reported cases in 2012.

The gang rape of a woman in a Delhi bus on December 16, 2012 is seen, for many reasons, as a watershed moment in the discourse of crimes against women and relevant deterrence. A decade is perhaps an adequate time to take stock of the situation. A year after the horror, the rape law was amended — the definition of sexual assault was expanded, the quantum of punishment for rape increased, the unscientific ‘two-finger test’ discontinued, and filing police complaints made less bureaucratic — at least on paper. Almost ten years on, 4,28,278 cases of crimes against women were registered in 2021, according to the National Crime Records Bureau, almost double when compared to the 2,44,270 reported cases in 2012. These are just official figures. The ground reality could be far worse because sexual crimes often go unreported owing to shame, ostracisation, fear of perpetrators, and an expensive, long-drawn-out and often fruitless legal process. After 2012, a dedicated corpus called the Nirbhaya Fund was established, partly to get rape victims easy access to justice — 30% of this fund remains unutilised; in Maharashtra, the money was used to provide security to legislators. The conviction rate of rape cases stood at a poor 28.6% in 2021. This can be attributed to institutional warts: poor investigation, procedural flaws that weaken prosecution and so on. Combined with institutional failures is the attendant social regression: rapists being asked to marry their victims by quasi-judicial authorities is not unheard of; these days, there seems to be tacit political support for certain instances of transgression — Bilkis Bano’s tryst for justice is a case in point. The popular endorsement for instant retribution — the death penalty remains in place in India — is an outcome of larger failures.

NCRB data also throw up a more potent source of threat — the home — but the law remains non-committal. Even though 32% of all crimes against women were committed by their husbands, there is a dogged refusal to address, even recognise, marital rape. The regression on women’s safety is also evolving. India saw a 45% increase in rapes of Dalit women and girls between 2015 and 2020, many of these were punishments for ‘violating’ caste lines. An NGO working to provide legal aid to rape survivors has noted that the nature of the crime itself has changed — the rise in gang-rapes bears evidence of the transformation. Things have certainly changed in 10 years — but for the worse.

Source: The Telegraph, 21/12/22

Why attitudes towards domestic violence differ across cultures

 

The trial of Johnny Depp and Amber Heard has captivated public interest with most onlookers echoing the jury's sympathy for the former. Media coverage of the trial has been widespread which has the potential to shape public opinion surrounding domestic violence. However, the issue is often covered problematically, especially in countries where violence against women has been normalised

After over six weeks of testimony in a defamation trial, the fate of actors Johnny Depp and Amber Heard has now been decided in Depp’s favour. This high-profile trial has been parodied, discussed, and remixed since it began on April 11, largely due to the fact that it has been publicly broadcast and live-streamed on YouTube.

Although the response has been polarised, the media and general public have generally tended to side with Depp. The TikTok hashtag #teamjohnnydepp has over 77 million views and videos poking fun at Heard’s emotional testimony flood Instagram’s trending page. Concerned onlookers have noted that whether one believes Depp to be guilty of domestic violence or to be a victim of it, the coverage of the trial both highlights the issue and makes a mockery of it

Not since Americans sat transfixed to their televisions during the O J Simpson trial in 1995, has a court case been so wildly followed. While few understand the intricacies of the legal system even a novice could ascertain that the public appetite for spectacle has bordered on insensitivity and possibly harm. Domestic violence (DV) is a serious and much to common a crime in countries across the world. However, despite the international consensus seemingly being united against it, standards of blame vary largely between countries and socio-ethnic groups.

What is domestic violence (DV)?

Traditionally, DV has been associated with physical violence that occurs between husband and wife but in recent decades it is now more commonly defined to include all acts of physical, sexual, economic, and psychological violence that may be committed by a family member or an intimate partner.DV can take on many forms such as assaults, threats, stalking, neglect and/or economic deprivation. With the emerging popularity of social media, technology can also be used to threaten, blackmail, and stalk victims.

Experts largely attribute DV to a need to assert power and gain control, and manage feelings of stress and inadequacy. Lenore Walker, a sociologist who founded the Domestic Violence Institute, also points to the prevalence of cycles of abuse, wherein abusers experience four phases of emotions. First is when the tension builds up, leading to the abuse. Next is a phase of calm where the perpetrator may feel guilt leading to a third phase in which they may be kind and affectionate. Lastly, when the victim may start to feel a sense of normalcy and hope, tensions build, after which the abuse is likely to continue.

DV is one of the most underreported crimes worldwide for both men and women, with one 2011 review article finding that the majority of victims fail to report the crime. This could be because they were financially trapped in the arrangement or because they felt a sense of guilt or shame.

While women are often initiators of DV, male violence is often more damaging. According to one US Justice Department analysis of crime, more than 40 per cent of adult female hospital emergency room visits are caused by violence by a male intimate partner. Furthermore, according to a 1998 National Crime Victimization Survey in the US, women experience violent domestic offences at a five times higher rate than men.

Who is the most vulnerable?

According to the World Health Organization (WHO), one of the most common factors in DV is a sense that abuse, whether verbal or physical, is acceptable. Other factors include substance abuse, poverty, mental health problems, and dependency on the abuser.

Men who perpetrate violence are likely to believe that their victim deserves the abuse and that their inadequacy is the chief cause of it. Social learning theory posits that people who have either witnessed abuse or experienced it during childhood are more likely to initiate it.

In developed nations, the rate of DV is much higher within families with household incomes of less than $7500. This is because financial insecurity creates stress and because women who are financially vulnerable are less able to leave abusive relationships.

Laws against DV also vary from country to country and while it is largely outlawed in the developing world, the same cannot be said about developing countries. In the UAE, for example, the Supreme Court upheld a man’s right to physically discipline his wife and children as long as he doesn’t leave any physical marks behind.

Moreover, DV is more acceptable in developing nations because attitudes support the practice. According to a Unicef survey, the percentage of women aged 15-49 who think a husband is justified in hitting his wife under certain circumstances is 90 per cent in Afghanistan, 87 per cent in Mali and 80 per cent in the Central African Republic.

According to Violence against Women in Families and Relationships, “globally, wife-beating is seen as justified in some circumstances by a majority of the population in various countries, most commonly in situations of actual or suspected infidelity by wives or their ‘disobedience’ toward a husband or partner.”

In many places, the so-called “honour killings” are also approved by a large section of society with one survey finding that 33.4 per cent of teenagers in Amman, the capital of Jordan, approved of the practice. Inappropriate clothing is also considered grounds for abuse in countries like Afghanistan where over 60 per cent of women believe a man is justified in hitting his wife if she wears inappropriate clothes.

ccording to Human Rights Watch, customs such as bride price only exacerbate abuse as women are then considered the property of their husbands. Forced and child marriages also contribute to the problem.

Additionally, religion plays an important factor as well. In Responding to Domestic Violence, a group of authors argue that Judaism, Christianity, and Hinduism have all traditionally supported male-dominated households and that “socially sanctioned violence against women has been persistent since ancient times.”

Of all the major religions, none invoke as much scrutiny towards women’s rights as Islam. While some authors like Phyllis Chesler argue that Islam is connected to violence against women, others like Tahira Khan, a professor at Aga Khan University, argue that it is the cultural inferiority of women in Islamic countries that leads to abuse, not the religion itself.

Data from the National Family Health Survey (NFHS) in India showed that women (52 per cent) were also more likely than men (42 per cent) to believe that a man is justified in beating his wife. The highest acceptance for DV was in Telangana at 84 per cent while the lowest was in Sikkim, at 17 per cent.

Victim blaming is also prevalent, even in industrialised economies. One 2010 Eurobaramater poll found that 52 per cent of respondents agree with the assertion that the “provocative behaviour of women” was the leading cause of violence.

How does the media cover DV?

According to a study by the Reproductive Health Journal, mass media “reinforces existing inequalities and traditional roles and models of femininity and masculinity” with cultural products consumed by young audiences, “praise the subordinance of women to men and even sometimes justify violence.” As such, the mass media plays a key role in defining “romantic relationships,” and often perpetuates an ideal of love that supports unequal relationships.

The media has often made light of DV as well. In 2011, a Family Guy episode highlighted abusive relationships from a comedic perspective whereas, in Kasauti Zindagi Kay, an Indian soap opera, a woman who was slapped by her husband pleads with her family not to intervene on her behalf.

According to Anne O’Brien, a professor at Maynooth University, victims of DV are often depicted in a way that justifies their abuse by mainstream news shows. She notes that coverage usually questions what the woman may have done to provoke the abuse while perpetrators are left off the hook because their actions are seen as being out of character. She also argues that the international media provides a simplistic narrative of abuse and “completely erases” the identities of women.

An Oxford University report further claims that media representation of DV tends to provide “racialising and class-biased discourses about abusers and their victims that frame domestic violence as the largest product of marginalised classes.” It also claims that’s that after the 9/11 attacks, media coverage of Islamic nations has justified “progressive” Western cultures with “backwards” Eastern ones.

However, despite the failure of the media to adequately address this issue, its potential to positively influence the narrative is profound. According to the Economics of Peace and Security Journal, media exposure can be a “positive source for changing social norms.” For example, it points to one study from Tamil Nadu which found that the introduction of cable television with programmes that present “urban attitudes,” is associated with a 16 per cent decrease in women’s reported acceptance of domestic violence and an 8.8 per cent decrease in their preference for having male children.

Similarly, after the highly publicised domestic violence trial of American football star O J Simpson, the then US president Bill Clinton approved the creation of a national Domestic Violence helpline which surged to record numbers in recent weeks. However, studies also found that while the number of DV related newspaper articles increased during the prime stage of the case, and after the trial was over, numbers began to decrease once again.

The impact of the media is perhaps best observed in cases that never go to court. In 2009, when Chris Brown punched his then-girlfriend Rihanna in the face, he was largely castigated on social media, despite the incident never going to trial. Today, a person accused of DV can be “cancelled” online, their reputations eternally forged in the annals of social media.

This phenomenon was observed in 2015, when a 20-year-old swimmer from Stanford, Brock Turner, was found guilty of sexually assaulting an unconscious woman. Turner was only served with a six-month sentence, but a report from Buzzfeed publishing the victim’s statement was one of its most shared stories in the site’s history.

The outcome of the Depp Heard trial means that Heard is found guilty of defaming Depp in the eyes of the law. However, that does not excuse the vitriol and skepticism that she faced throughout the trial. Perhaps the best lesson we can learn about reporting or commenting on domestic violence cases, is that our judgement should be predicated on that of the law. No one wins when social media denigrates the alleged victim or abuser before a verdict is delivered.

Written by Mira Patel 

Source: Indian Express, 2/06/22

The importance of consent: On marital rape

 

The institution of marriage cannot be allowed to sanction force and violence

A split verdict in the Delhi High Court on the question of criminalising marital rape has reignited the controversy over legal protection for disregard of consent for sex within marriage. On Wednesday, while Justice Rajiv Shakdher, who headed the Bench, struck down as unconstitutional the exception to Section 375 of the IPC, which says that intercourse by a man with his wife aged 18 or above is not rape even if it is without her consent, Justice C. Hari Shankar rejected the plea to criminalise marital rape pointing out that any change in the law has to be carried out by the legislature since it requires consideration of social, cultural and legal aspects. With the judges differing on key points such as difficulty in getting evidence, the importance of consent, whether the state’s concerns about safeguarding the institution of marriage were valid, and if other laws against sexual violence protected married women, the issues involved may have to be ultimately adjudicated with the help of a third judge or a larger Bench of the High Court or the Supreme Court. The Union government has been opposing the removal of the marital rape exception. In 2016, it had rejected the concept of marital rape, saying it “cannot be applied to the Indian context” due to various reasons, not least because of the “mindset of society to treat marriage as a sacrament”. However, in the final hearing, the Union government did not take a stand on the issue.

Justice Shakdher’s opinion goes to the heart of the matter, inasmuch as it treats the absence of consent as the core ingredient of rape. He says what is defined as rape in law should be labelled as such, irrespective of whether it occurs within or outside marriage. He finds that the marital exception violates equality before law, as well as deprives women of the right to trigger a prosecution for non-consensual sex. Besides, it also discriminates among women based on their marital status and robs them of sexual agency and autonomy. In contrast, Justice Hari Shankar’s opinion, somewhat disconcertingly, de-emphasises the element of consent and lays much store by the importance of preserving the institution of marriage to such an extent that he holds that any legislation that keeps rape out of a marital relationship “is immune to interference”. If marriage is regarded as a partnership between equals, an exception in a 162-year-old law should have had no place. While there are other laws governing civil relationships that legitimise conjugal expectations, these cannot be seen as giving a free pass for violence within marriage, which is essentially what sex without consent is. Whether the legislative route is more appropriate in making marital rape a criminal offence is a matter of detail. What is important is that sexual violence has no place in society, and the institution of marriage is no exception.

Source: The Hindu, 13/05/22

Domestic Violence Act: The Supreme Court took a progressive turn, writes Gautam Bhatia

 

The court refrains from treating the entitlements under the DV Act as paternalistic gifts to protect the “weaker” party, but expressly frames them in the language of rights

In 2005, Parliament enacted the Protection of Women from Domestic Violence (DV) Act. The DV Act was a critically important law that recognised and codified a set of rights intended to protect women from domestic violence and domestic abuse. The Act recognised that domestic violence is triggered — and enabled — by the vast differences of power that exist within our family structures. Long-standing norms that operate to make the husband’s family home as the default matrimonial home, or create and sustain disparate earning capacities between the spouses, ensure that, in many cases, women lack the social and economic support structures that would enable them to effectively resist domestic violence, or to leave abusive relationships.

To mitigate this situation, the DV Act prescribed a set of remedies that women could avail of in situations where they were faced with domestic violence. One of these remedies is the right to residence, codified under Section 17 of the DV Act. The right to residence is based on the recognition that in a significant number of relationships, the marital household will either be under the legal control of the husband, or of his parents, and the woman will not always be in a position to return to her own family home. In such a situation, the threat — or the potential social shame — of homelessness creates a situation of “no exit” from the abusive relationship. To prevent this, the DV Act specifically provides that “every woman in a domestic relationship shall have the right to reside in the shared household”, and that she cannot be excluded or evicted from it, except through legal process.

Soon after the passage of the DV Act, in 2007, the Supreme Court (SC) provided a narrow and restrictive meaning to the right of residence. The court held it would apply only where the “shared household” either legally belonged to the husband, or where it was joint family property. In cases where — for example — the married couple was living with the husband’s parents, in a house that legally belonged to the parents, there would be no right of residence. The judgment based its interpretation on a strained reading of the phrase “shared household” under the DV Act, and by raising the spectre of the “chaos” that would ensue if every place the married couple had ever stayed in could be treated as a “shared household”, where the wife could claim residence rights.Needless to say, this interpretation defeated the very purpose of the DV Act, which was based upon a recognition of the structural vulnerabilities faced by women within the social institution of marriage. By drawing a line around the cases in which residence rights could be claimed, the court effectively deprived a large number of women, subjected to domestic violence, of the very remedy that had been designed for their protection.

However, after 13 long years, in 2020, the SC has now finally corrected its error. In Satish Chander Ahuja v Sneha Ahuja, the court acknowledged that its old reading was wrong, and the specific purpose of the DV Act — which was to protect the rights of women subjected to domestic violence, within the Indian social context — required a broad reading of “shared household” and residence rights. The SC, therefore, held that residence rights were not limited to situations where the shared household was joint family property, or belonged to the husband. As for the “chaos” that would seemingly ensue, the court pragmatically noted that only the last household in which the parties had lived together — and access to which was sought to be deprived — would count, a judgment that could be made on a case-to-case basis.The court’s judgment is important not just for its progressive outcome, but also for its reasoning: The court refrains from treating the entitlements under the DV Act as paternalistic gifts to protect the “weaker” party, but expressly frames them in the language of rights.

It is, therefore, an important step forward in making the DV Act an effective rights-legislation.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal

Source: Hindustan Times, 26/10/20

Domestic violence has not got the attention it needs

We have very few domestic abuse counsellors in India and the police who are the first port of call for a victim often do little more than warn the husband and then send the woman back to the abusive home.

On an enforced period of medical leave recently, I watched a disturbing documentary on domestic abuse in the Thames Valley area in England called Behind Closed Doors. It was worrying on many counts – the first being that seemingly loving partners can turn almost overnight into violent monsters. The second is that the victim continues in the abusive relationship till it becomes life-threatening. But the most heartening aspect is the efficiency of the official support system once a complaint is made. The police are quick to respond, often making the difference between life and death for the victim; the State provides legal support and domestic abuse counsellors talk to the victim on the nature of the violence; the victim’s home is put on priority for the police to respond; and the victim is provided a round-the-clock alarm mechanism to summon help. None of this is foolproof, but in the majority of cases, it has helped the victim rebuild her life away from the arena of abuse.

Domestic abuse is an area of women’s rights that has not got the attention it needs in India though it is one of the many problems that women face daily. Our system can in no way match that in the UK, but there are not even rudimentary systems in place for victims of domestic violence. The National Family Health Survey 4 (NFHS-4) says that every third woman in India faces some form of domestic violence, 27% of them since the age of 15. The Protection of Women from Domestic Violence Act, 2005, is a comprehensive law, but as with many other such laws, it fails in the implementation. Of all the women abused, only 14% have sought any form of help.

There are many reasons for this. One is that many women in India do not even know that there is a law to support them. Many abused women take it as normal to be beaten or emotionally abused for a variety of issues, ranging from not looking after the home well enough to failing to pander to her husband’s needs. Surprising, a sizeable number of women are supportive of domestic violence. The NFHS-4 survey found that 54.8% agree that the violence is justified, with 47.7% of women in the age group of 15-19 saying that the husband had a right to beat his wife.

Domestic violence in middle and upper class homes is often kept under wraps so that the family name is not undermined. Women who have been exposed to their mothers being abused, or who lack economic means, go to great lengths to justify staying on in abusive marriages or relationships. He is a good provider; he only gets this way when he drinks; I am also to blame are some of the excuses women give to avoid making a break.

We have very few domestic abuse counsellors in India, and the police, who are the first port of call for a victim, often do little more than warn the husband and then send the woman back to the abusive home. This has often proved dangerous in many ways. The abused woman suffers serious health problems, sleep and eating disorders, mental trauma and even suicidal impulses. In the worst case scenarios, she is killed or maimed.

One avenue to help women, especially those who live in the rural areas, is the panchayats. However, studies by the International Centre for Research on Women show that women do not approach the panchayat as an institution, but would rather go to the sarpanch in a personal capacity. But the system is rooted in a patriarchal environment that upholds male privilege and the woman is usually counselled to ‘adjust’, that terrible omnibus word that cloaks a multitude of abuses, and go back home for the sake of the family. Four-fifths of all abused women in India do not seek help from anyone except, in the odd instance, their families.

There have been so many positive legal reforms in the area of women’s rights, but they remain largely inaccessible to abused women. The Bollywood kind of abused woman who rises to seek vengeance is not the answer. This is a problem which needs specialised redressal, at least starting with domestic abuse counsellors attached to police stations. With a dynamic women and child development minster in place, we could make a start on this now.

Source: Hindustan Times, 22/07/2019