Focus on Rights

Putting an end to the 'enjoyment' of domestic violence
The aside by Deputy Minister of Foreign Affairs, Viswa Warnapala from the floor of the House this Wednesday during the debate on the Bill to provide for the Prevention of any Form of Domestic Violence that "Women have to be totally emancipated from domestic violence for them to be able to enjoy it" (see the Island report of parliamentary proceedings, Friday 25th February, 2005) is terribly puzzling. Naturally, that is.

Given the congenial affability and the relative erudition of the Deputy Minister, it is difficult to think that this statement, wholly contrary as it is to all norms of civilised thinking today, could be anything more than a printer's devil. However, its unintended import strikes harder at home to the responses of much of the exceedingly less enlightened fifty percent male population in this country than one would ideally prefer.

The perception is, to a great extent, that domestic violence is an issue between the family, to be 'enjoyed' or not as the case may be, by the wife. This is often the topic for ribald hilarity in conversations of the strictly masculine kind. In Sri Lanka, much of the phenomenon of domestic violence is convincingly hidden under notions of culture and tradition despite the supposedly high literacy rate of women.

In that regard, the distinction often drawn between public and private violence by the courts has not been of much help either. It is therefore surprising that a Bill in relation to the prevention of domestic violence could have found its way to the currently august assembly of Sri Lanka's legislators at all, in the first instance. However, now that it has done so against considerable odds, it behoves us to treat the issue seriously and refrain from trivialising what is essentially, draft legislation of primary importance for both men and women in this country.

Given the overriding gravity of the law that is pending before the House, this column will examine the general context of the "mischief" that the draft law proposes to address as well as the ideal features that such a law should possess. It will then go on to look at the specifics of the draft Domestic Violence Act next week.

It goes without saying that a draft domestic violence law should apply equally to men as well as women who are victims of abuse within the home. Asserting this principle is a redundancy. But as evident as this general principle is the uncontestable fact that the overwhelming numbers of victims within the country are women.

Though no highly systematic data is available, periodic studies engaged in by research centres and activist networks testify to the extent of the problem. For example, Women In Need (WIN) a Non Governmental Organisation offering assistance to women subjected to domestic violence, has tabulated the following break-down of violations during the period January 1997 to September 2001. According to this data, during the year January 2001 to September 2001, out of one thousand five hundred and forty six complaints of violence against women, one thousand five hundred and fourteen were in relation to domestic violence. Previous years recorded a similarly high component of complaints as contrasted to complaints of rape, incest and sexual abuse.

The Women's Rights Watch Year Report (tracking the press reportage of violence against women in 1998), recorded two hundred and ninety one incidents of violence within the home out of a total of one thousand and ninety six incidents. Out of this, one hundred and twenty nine incidents of murder were committed within the home with husbands allegedly responsible for eighty three of the murders.

The nature of cultural traditions in this country stigmatises man, woman or child who goes outside the family circle to report on disputes arising within the family. That such a predominantly high percentage deals with violence by the husband upon the wife should therefore call for considered resolution rather than hilarity.

In contradistinction, there were only eleven reports of sentences among the two hundred and ninety one cases of violence in the home so reported during the year 1998. The sentences were for seven murders, two assaults and two cases of incest. This again indicates the poor nature of the legal response to the problem despite a process of legal reform that has been ongoing particularly since 1995.

Laws dealing with domestic violence around the world have acknowledged that the term includes all forms of physical, sexual, psychological, emotional, verbal and economic abuse. The inclusion of emotional, verbal and psychological abuse, (patterns of degrading or humiliating conduct towards a complainant, such as repeated insults, repeated threats to cause emotional pain, whether to the complainant or to some other person, and the repeated exhibition of obsessive possessiveness or jealousy) is marked.

Somewhat more controversial is the inclusion of economic abuse, which includes the unreasonable deprivation of economic or financial resources which a complainant requires, such as household necessities, mortgage payments and rent payments, wages in the case of household workers, and the unreasonable disposal of household effects or other property, in which the complainant has an interest.

Another point of dispute has been the definition of domestic relationship. At first glance, this would mean a relationship between two individuals who are or were married to each other, including marriage according to any law, custom, religion or practice. However, should the definition also include two individuals who live or have lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other?

Should such a relationship also include individuals who are family members related by consanguinity, affinity or adoption, individuals who live or have lived together as part of a joint or extended family and individuals who are in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration?

As controversial is the question as to whether the definition should include individuals who are or were engaged within an employee - employer relationship, where the complainant works as a household worker in a residence, household or other place occupied, shared or frequented by the respondent, whether the work is performed for wages or not.

Of much less debate is the need for the law to empower courts to grant interim protection orders directing the police to arrest the offender and to remove that person from the home. The protection orders so granted must necessarily be of wide application including restraining the offender from enlisting the help of another person to carry out a proxy act of violence. The granting of financial relief by the court to the victim is also a general feature of domestic violence laws in many countries.

While these features are admirable no doubt and the Sri Lankan draft law will be examined from this standpoint in the following column next week, it may be pertinent to recall the fact that laws, by themselves, have proved to be disastrously limited in their impact in Sri Lanka particularly where disputes inside the home are concerned.

There is a very salutary example in this respect, namely the Penal Code amendments in 1995 that were supposed to benefit women and children but have since then, been inefficacious in changing patterns of physical abuse. Translating the law from theory into practice will perhaps be the biggest challenge ahead for proponents of the draft Domestic Violence Act even if the forthcoming parliamentary hurdle is surmounted successfully.

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