Hands Off
Domestic violence has become a national social problem
By Hana Ibrahim
Originally published in the Sunday Observer, June 24, 2001
Sometimes there is no blood. In a pithy phrase that's both saturated with connotations and bereft of anything conspicuously palpable, Ameena Hussein's trail blazing inventory of domestic violence in Sri Lanka draws one's attention to an unpalatable fact about life behind closed doors. Saturated with meaning because, anyone who has experienced the agony of homefront dissension knows domestic violence isn't always as overt as a bloody nose or a broken limb. And bereft of anything tangible because, the absence of visible injury, more often than not and to many, means the issue can be brushed under the carpet and relegated to the private sphere, ergo back burner.
Neither interpretation however help to sugarcoat the reality of domestic violence. It does exist. It is rampant and repulsive. And it is not going to quietly go away if you ignore it long enough.
According to various official and unofficial statistics, domestic violence has increased to assume the proportion of an important national social problem. Assault by husbands has risen from 32 per cent in 1990 to unspecified ominous levels in the 21st century. Sexual violence against women has also increased with rape figuring as a daily event in several parts of the country.
These figures are further augmented by newspaper reports. In 1999, 121 incidents of murder were reported as having been committed within the home, with husbands allegedly responsible for 65 per cent of the deaths. Within the same time frame, 291 incidents of crime against women in the private sphere (homes) also received newspaper coverage.Statistics notwithstanding, domestic violence is viewed with a degree of ambivalence by the judicial mechanism. And not unlike the conflicting interpretation of 'Sometimes there's no blood', the law making body accepts that domestic violence does exist, but find that the law itself doesn't have any potency to deem it a crime or deal with it in a manner fitting a crime.
At present there is no specific legislation with regard to domestic violence against women. Likewise there is no specific provision in the Penal Code that specifically criminalises domestic violence as a distinct crime. Extreme cases of domestic violence are normally prosecuted under the general clause of the penal code relating to murder, assault and grievous hurt classified under emasculation; permanent damage to the eye, ear, or limb; permanent disfiguration of the head or face; or any hurt which endangers life.
The ambivalence of the law is exacerbated by familial pressures, societal prejudices and obstacles in the criminal justice system which not only blunts the serious magnitude of domestic violence but also hinders women's access to justice.
Publicising marital problems or seeking redress is a stigma that's often too heavy a burden to bear. Divorce is deemed a social suicide. The slur on character is often validated by the justice systems, which more often than not, has a gender bias that works against women victims of violence. This in turn lends a degree of legitimacy to the social stereotypes about women and violence.
In such a setting women's access to justice is hindered by spoken and tacit social dictates. In many cases women do not view the criminal justice system as accessible. Even those who do perceive the police and/or courts accessible, often have no desire to expose themselves and their families to public ridicule or scrutiny. Hence many women do not report the violence that is committed against them, leaving themselves open for yet more atrocities.
And when women do seek legal remedies, yet another factor appears as a stumbling block. The cost associated with litigation, which is prohibitively high.
The consequence of these legal limitations, social taboos, familial pressures and the existing system of justice, is that women are denied a whole host of remedies and services which special domestic violence legislation has brought to their counterparts in other countries.
Given this scenario of societal bigotry and legal myopia, coupled with spiralling incidence of abuse, the Draft Act on Domestic Violence is not only a welcome endeavour, but also desperately essential.
Conceived by Women and Media Collective and drafted in collaboration with, lawyers, various concerned bodies and organisations, the Act primarily seeks to label domestic violence a crime and afford legal protection for women victims of violence within the home and in the family, through mechanism that combines both civil and criminal remedies.
Perhaps for the first time in Sri Lanka, it also defines the exact forms of abuse that can be construed as violence. Along with physical and sexual abuse and these include emotional, verbal, psychological, economic abuse, intimidation, harassment, stalking, damage to property, committing or threatening to commit an act or acts of violence against another person, acts of deprivation and any other controlling or abusive behaviour.
Far reaching and somewhat radical in nature, the Act is formulated to recognise a woman's right to a life that's free from all forms of violence.
It seeks to provide criminal, civil and constitutional remedies, initially through an interim protection order that is seen as a quick remedy given in an emergency context and would provide short-term protection to a woman from threatened or further violence.
This is followed by a court hearing and permanent protection order two weeks later that direct the abuser to stop the violence; a warrant of arrest should a protection order be breached and finally, a series of relief that range from compensation payments, punitive damages to emergency monetary relief and a whole host more.
Still at a developing stage and requiring a significant amount of pruning and fine tuning, the act seeks to eliminate the yards of unnecessary red-tape that both delays justice and places it out of reach of the average women victims. By allowing a victim or a third party (a counsellor, social worker, medical officer, organisation or group) to directly approach the courts (Magistrate) by passing the existing lengthy formalities of lodging a complaint first, it puts a humane face to the mechanism of justice, giving the women something to believe in when all else falls apart.
But many are of the opinion that the introducing of this Act without a prior amendment of the existing divorce laws will render any domestic violence legislation ineffective. For although legal mechanisms for separation and divorce on grounds of violence exist, they are not widely used by women because of the high level of stigma attached to divorce. Further, insensitive courts, insufficient alimony awards and the difficulty in enforcing maintenance orders compound women's alienation from the law and legal remedies.
Some are also of the opinion that separate legislation will only lead to a conflict of interpretation and will lead to domestic violence crimes not being taken as seriously as crimes covered by the Penal code, which in effect would eventuate in domestic violence being marginalised.
Also for the Act to be effective, the various auxiliary facilities including shelters, counselling and rehabilitating facilities should be in place before the legislature is passed. Societal prejudices which often make women the automatic villain, making it impossible for her to report a case of sexual abuse without being labelled a 'tease,' 'prostitute' or worse an instigator to the rape, also need to be changed.
And women should be educated about their rights, so that they can avail whatever protection that are legally theirs.
Only when all these factors are in place, can women reap the full benefit of the act that gives them back their sense of self and a right to a violence free life in their own homes.
Violence means:
Physical abuse
Sexual abuse
Emotional, verbal and psychological abuse, which would include patterns of degrading or humiliating conduct towards a complainant, such as repeated insults or threat that cause emotional pain, whether to the complainant or to some other person and the repeated exhibition of obsessive possessiveness or jealousy.
Economic abuse, which includes deprivation of economic, financial or other resources which a complainant requires and the disposal of household effects or other property, in which the complainant has an interest.
Intimidation.
Harassment, which includes repeatedly watching or loitering outside a building where the complainant resides, works, studies or carries out a business; repeatedly making telephone calls, sending faxes, electronic mail or packages which induce fear in the complainant.
Stalking
Damage to property.
Entering a complainant's residence when the respondent and complainant do not share a common residence.
Committing or threatening to commit an act or acts of violence against any other person, whether it be family member, relative, friend, social worker or medical officer who may be known to the complainant.
Act of deprivation including denial of access to communication with family, relative and friends.
Any other controlling or abusive behaviour where such conduct harms or may cause harm to the safety, health or well-being of the complainant.
The Draft Act at a glance
Drafted by the Women and Media Collective, the Domestic Violence Act is intended to provide protection to victims of domestic violence; to empower courts to grant protection orders; and to ensure the law complies with Sri Lanka's international obligations.
How it will help the victims:
Formulated to recognise a woman's right to live a life free from all forms of violence, the Act will provide criminal, civil and constitutional remedies through:
Interim Protection Orders - These would provide short-term protection to a woman from threatened or further violence. It forbids access of an abuser to his victim. It is given in an emergency context where there is a possibility that the woman will be subject to abuse. It should serve as an easily accessible and immediate remedy against violence.
Protection Orders -These are permanent orders that direct the abuser to stop the violence as with Interim Protection Orders.
Warrant of Arrest - This is a warrant of arrest issued where a Protection Order is breached.
Other forms of Relief - These range from compensation payments, access to the family home and payment for punitive damages. Orders could also be sought for the police to seize any weapons that the abuser may have in his possession. Payment of emergency monetary relief would also be important to sustain a woman who wishes to stay away from her abuser, and to protect her from her abuser withholding funds to which she is otherwise entitled.
Application for a Protection Order
Any complainant may apply to the court for a protection order.
An application may be brought on behalf of the complainant by any other person including a counsellor, social worker, medical officer, organisation or group or other person who has an interest in the wellbeing of the complainant. The application must be brought with the written consent of the complainant, except in circumstances where the complainant is a minor, mentally retarded, unconscious or a person whom the court is satisfied is unable to provide the required consent.
Offences
A person who contravenes any prohibition, condition, obligation or order imposed by the court under the Act shall be guilty of an offence and on conviction after a trial before a magistrate, be liable to a fine not exceeding Rs.100,000, but not less than Rs.5000, or imprisonment not exceeding five years and not less than six months, or both such fine and imprisonment.
