3 Theoretical foundations of Human Rights of women – The exclusion of women in Law

Severyna Magill

WHY WOMEN NEED SPECIFIC HUMAN RIGHTS:

“Violence against women in India is systematic and occurs in the public and private spheres. It is underpinned by the persistence of patriarchal social norm norms and inter- and intra-gender hierarchies.”

Historically as well as today, most positions of power are held by men and the idea of what rights are has been defined by men and represent male needs. Fuller legal protections have been given to the public sphere, e.g. employment, civil and political activity, where men have historically been more active, than the private sphere, e.g. rights within the home, within marriage, regarding separation etc. where women tend to be more involved as weaker/more dependent agents. Historically only men could be drafted to serve national service and to become combatants in the armed forces, and only men could claim social welfare support in cases of unemployment or disability and could oversee estates in cases of inheritance. Women, unlike men, were entitled to receive maintenance to look after children. These social welfare systems “were [often] built on the assumption that wives, but not husbands, were economically dependent on their spouses for support.” “[L]aws typically accorded automatic benefits to female survivors, but required male survivors to prove their dependency, often by means of stringent financial tests.” Similarly in the Netherlands, if men claimed disability related financial support from the state they were automatically entitled to it, the reasoning being that men are financially independent and are not dependent on anyone for support. However, if a woman was married and wanted to seek disability support, she first had to prove she could not rely on and be supported by her husband before she would be awarded social welfare support. Such laws had negative consequences for couples that did not meet these expected norms; if a family had a woman as the primary income earner and she was injured at work, her family would not be able to claim social welfare support.

Even recently when domestic laws have tried to be reformed they have met opposition: in 1972 both Houses of Congress in the USA passed the Equal Rights Amendment (ERA). The ERA promoted equality between men and women and was often seen as a “central feature of the feminist agenda.” Despite the amendment only having a limited scope whereby it could hold the “actions of the government [accountable] and did not affect private discrimination by employers, banks, insurance companies, or other non-governmental entities” it was still defeated and never came into force. Similarly in Australia, the introduction, in 1984, of the Sex Discrimination Act “was limited to particular areas of public life (e.g. employment and education) and specific grounds of discrimination (e.g. sex and marital status).” Discrimination in the private sphere, perpetrated by non-state actors, was therefore left without legal protections.

Law in itself, therefore, may not provide women with equal rights, such as to claim social welfare support, and thus denies them real, lived equality. This may be because the law may fail to give protections to women, e.g. workplace protection from discrimination/stereotyping, equal pay, parental leave. In some cases the law may provide women with equal rights but these are not translated into equal rights either because the system (eg courts, judges, access to quality legal representation) is overwhelmingly male and represents male experiences and perspectives and therefore doesn’t recognise her ‘needs’. Another barrier to law providing solutions for gender equality is that laws in themselves cannot transform social values within society, and courts are not sensitive to the experiences of women and therefore cannot fully comprehend the harms they suffer or provide a suitable solution.

Since the 1970s laws have started to be challenged and changed as a result of greater awareness about gender discrimination. In some cases it has even been credited as ‘fundamentally changing the legal and social environment’, but amendments are often patchy and sporadic and lack the support structures to address systemic, structural discrimination, especially within the private sphere. An example of this is legislation on domestic violence.

PRIVACY LAWS VS. PROTECTION FROM DOMESTIC VIOLENCE

Privacy laws, for example, have been in existence since the late 1800s in the USA where a landmark journal article titled ‘The Right to Privacy’ was published in the Harvard Law Review in 1890. This article established individuals’ right to privacy and freedom from interference by the state in all private matters. In 1968 when the American Convention on Human Rights was drafted (came into force 1978) it included in article 11 the right to privacy. The article included “No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honour or reputation.” This provision, amongst many national variations of the same theme, recognised men as the sole property owner, head of the household and therefore rights holder. Privacy was “thus his righto be free from interference by the State or Church [and] included his rights over those in his control in the private realm –women, children, servants.”

Privacy laws have therefore often aided the exclusion of perpetrators of domestic violence from the scope of the law. If police were notified of a physical, verbal, or another form of domestic violence and the perpetrator of the violence opened the front door he could say it was a private/domestic, affair and the police would have therefore had no grounds to intervene, any intervention within the private sphere would have been seen as a violation “of the legitimate extent of government authority.”

It was only in 1991 that the UK Law Lords ruled that “[m]arriage was … a partnership of equals and no longer one in which the wife was to be the subservient chattel of the husband.” Consent for sexual intercourse previously assumed to be given at marriage and which could not, from then on, be retracted was overturned. This landmark decision overturned a principle that can be traced back to UK law as far as 1736 when Sir Matthew Hale said: “But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.” This judgment was a momentous turning point in UK law when centuries old thinking, protecting the rights of men within the private sphere and therefore nullifying women’s ability to seek legal redress was overturned.

In 1994 the federal Violence Against Women Act (VAWA) was passed by the US House of Representatives and even then with a bi-partisan vote of 235-195. In other words, only 40 more voting representatives approved of the Act over those who did not vote for its enactment, thus demonstrating resistance to its passing. As the Act is federal, it ensures all states across the USA have the same protections to survivors of gender based violence and that if a perpetrator resides in a different state arrest warrants may still be served and executed, and the survivor can still take them to court. Within India, it was a decade later that the Protection of Women from Domestic Violence Act (2005) came into force in 2006 giving women a substantive definition of domestic violence and specific protections to supplement the general provisions of the Indian Penal Code.

Such recent inclusion of law that represents the lived experiences of women demonstrates how weak and quiet women’s voices have been within legal frameworks domestically in the east and the west. Internationally the Convention Elimination of Discrimination against Women (drafted 1979, came into force 1981) does not contain a provision protecting women from intimate partner violence. It wasn’t until 1989 that General Recommendation 12 on Violence Against Women, and a second Recommendation of the same title in 1992 that domestic violence was read into the protections of the Convention.

NATIONAL LAW

India has several women specific laws. Amongst these are: The Indecent Representation of Women (Prohibition) Act, 1986 No. 60 of 1986; The Commission of Sati (Prevention) Act, 1987, No. 3 of 1988; The Dowry Prohibition Act (1961); The Protection of Women from Domestic Violence Act (2005); and, The Protection of Women from The Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act (2013).

Whilst the content and intention of these acts are to reduce the social discrimination and consequences that women experience there has been limited training and sensitization regarding how to interpret and apply these provisions. This has resulted in interpretation and implementation of the law that is not compatible with its intent, even by judges. In 2013 Judge Kailash at the Delhi High Court stated within a judgment that: “rape cases are being used as “a weapon for vengeance and vendetta” to harass and even force a boy to marry.” Even the central Sexual Harassment Act that mandates hearing committees within public and private organisations to attend training every year does not have an accompanying training programme. Such voids in fulfilling law to make it meaningful results in weak understanding and implementation where cultural and patriarchal views, not gender-sensitive, rights-based opinions are then passed down as authoritative decisions.

Domestically The Prevention of Crimes in the Name of ‘Honour’ & Tradition Bill, 2010 is still pending before parliament. The Bill which in December 2014 received the support of 22 states and union territories has not been given a timeline for implementation by the government. Similarly, the Women’s Reservation Bill seeking one-third representation of women in the Lok Sabha first presented to the Parliament in 1996 and more recently as the Women’s Reservation Bill [The Constitution (198th Amendment) Bill, 2008] have failed to be enacted. Marital rape, despite the recommendations of the Verma Committee, is still not criminalized under the IPC.

LACK OF GENDER SENSITIZATION WITH THE JUDICIARY AND EXECUTIVE

In addition to a host of crimes that disproportionately affect women in society, there is also a significant lack of gender sensitivity towards rights based equality within both the judiciary and the executive. This often results in inappropriate statements from politicians and unfair judgments in court cases that often amount to victim blaming and fail to place the blame, shame, and stigma of the violence on the perpetrator rather than the victim/survivor.

In 1972 a 14 year old girl was raped in police custody by two police men. When the case went to court, the Supreme Court judgement in 1979 overturned the Bombay High Court’s judgment and ruled that the police men were not guilty. The Mathura judgment failed to place the blame for acts of sexual violence with the perpetrators and failed to, therefore, fulfil their constitutional provisions towards the equality and protection of all citizens. The Supreme Court justified its decision with a  combination of prejudice towards the young woman who was sexually active in a consenting relationship outside of marriage and with sweeping derogatory and demeaning subjective opinions which failed to deliver rights based justice. The court stated that she was habituated to sexual intercourse and therefore was less likely to have been raped. This is a clear failure to demonstrate an understanding of the difference between intercourse with consent and intercourse without consent; one with her partner near her age, the latter with an unknown police man in a police station latrine.

Further the judgment states in paragraph 13:

“Now the cries and the alarm are, of course, a concoction on her part but then there is no reason to disbelieve her assertion that after Baburao (P.W. 8) had recorded her statement, she and Gama had started leaving the police station and were passing through the entrance door when Ganpat [the] appellant caught hold of her and took her away to the latrine. And if that be so, it would be preposterous to suggest that although she … had practically left the police station, she would be so over-awed by the fact of the appellants being persons in authority or the circumstance … that she would make no attempt at all to resist. On the other hand, her natural impulse would be to shake off the hand that caught her and cry out for help even before she noticed who her molester was.

Her failure to appeal to her companions who were no others than her brother, her aunt and her lover, and her conduct in meekly following Ganpat [the] appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as “passive submission“.”

The Court’s decision that her claims that she tried to raise the alarm are a “concoction,” the assertion that “it would be preposterous to suggest …that she would make no attempt at all to resist,” that she followed the police man “meekly” and ‘allowed’ “him to have his way with her” all completely fail to understand the vulnerabilities of a 14 year old girl in a police station. The comments suggest there should be one method of reacting to a previously unexperienced situation that all young women must comply with or else be found wanting of belief. It reinforces a gender stereotype where women must scream and resist or else be complicit; that if once sexually active must now wilfully engage in any sexual activity regardless of whether, choice, consent, or coercion exist. The judgment completely fails to show any sensitivity or understanding towards the reaction of a 14 year old girl who has been restrained and dragged away by a police man who is in uniform at a police station.

In 1992 Bhanwari Devi, a social worker, from Rajasthan was raped by a group of upper caste men in her village as revenge for trying to prevent a child marriage thereby challenging traditional practices. The local sessions court in Rajasthan dismissed the case on the grounds that upper caste men wouldn’t rape a lower caste woman, especially not a man who was an uncle when his nephew was present.

This judgment again failed to recognize the power dynamics of sexual violence and how rape can be used as a tool to try to enforce conformity with caste roles and traditional practices. The judgment fails to deliver a sensitive and rights based form of redress to the survivor of the violence.

The influence of patriarchal thinking on the conduct of the judiciary and other state agents is unfortunately still present in society today. In 2008 after a journalist was shot dead whilst driving home from work at 3 am in Delhi the then Chief Minister Sheila Dixit issued a statement saying: “If she (Soumya) was out at 3 am in the morning, she was being too adventurous.” In 2013 AP Singh, the defence advocate for the accused in the Nirbhaya rape and murder on television publicly stated that he would burn his own sister or daughter if she engaged in the pre-marital sexual activity. In 2014 Mamata Banerjee, the Chief Minister in West Bengal, stated that the public outrage over the Kolkata gang rape incident was a “conspiracy to impede development work by her government.”

Such comments from politicians and from judges (as we saw earlier) demonstrate how deeply ingrained patriarchal views and victim blaming are within society. They also demonstrate the serious need for gender sensitivity and rights-based justice training for members of the judiciary, legal profession and politicians to bring tangible change for women’s rights and implementation of existing law more representative of its intent.

CONCLUSION:

The above examples ranging from the socio-economic position of women in society which reinforces women’s more vulnerable and inferior position socially, lack of prioritisation of women’s issues in the allocation of state funds, to laws that do and do not exist, and their gender-insensitive implementation demonstrates why special measures are needed to promote the substantive upliftment of women.

Reference

• Bergoffen, D; Gilbert, P. R.; Harvey, T. ‘Women’s Lives, Human Rights’ in Confronting Global Gender Justice: Women’s Lives, Human Rights edited by Bergoffen, D; Gilbert, P. R.; Harvey, T; McNeely, C. L.
• ‘Project On A Mechanism To Address Laws That Discriminate Against Women’, Office Of The High Commissioner For Human Rights –Women’s Rights And Gender Unit , 6th March 2008 Dr. Fareda Banda
• Buss and Manji (eds.) International Law: Modern Feminist Approaches (Oxford: Hart, 2005)
• O’Hare, U. A. (1999). Realizing Human Rights for Women. Human Rights Quaterly, 21(2), 364-402.
• Available: http://userpages.umbc.edu/~simpson/Human%20Rights/articles/OHare,%20Realizing%20HR%20for%20Women.htm