Day Sixteen |When the law against violence becomes violent

Rachana Johri, Bindu K.C. and Krishna Menon

Resisting Violence

Image of WISCOMP’s Resisting Violence annotated bibliography, reproduced with permission. Original art work by Linda Carmel

 

A critical question for feminists to ask when women turn to the law is whether a legal victory is always a triumph of the feminist worldview. Violence against women is ubiquitous in patriarchy. It pervades virtually all spheres of lives, happening most often in relational spaces. Without questioning the necessity of the law, it seems that the work of feminism must include a detailed analysis of the many moments in which women experience violence such as sexual harassment at the workplace and at educational institutions. 

Every violent act – whether it is a comment on the looks of a classmate, persistent messages from one student to another, or rape – constitute violence. Must all these be treated within a legal framework? And is ‘punishment’ the only imagination of justice? Perhaps more pertinently, does ‘punishment’ belong in a feminist approach to justice?

Feminists have had a rather contentious relationship with the law, and thereby with the state. In India, for instance, feminist campaigns have reposed great faith in the ability of law to initiate and establish equality and freedom on the one hand; on the hand, feminists have doubted and been skeptical of the very foundations on which modern legal systems are based. Consider the two moments where feminists in India have engaged with law – the Mathura custodial rape case and the infamous Delhi bus gang rape case. 

The Mathura rape case (1972) was undoubtedly a watershed moment in India; it signalled a radical shift in the focus of the women’s movement and feminist politics in India, and its engagement with the law. In 1974, the Committee on the Status of Women in India published its landmark report – ‘Towards Equality’ – and demonstrated an abiding faith in the ability of legislation to act as the major instrument for ushering in changes in the social order. 

The Supreme Court of India belied this faith when it pronounced its judgment in the Mathura rape case. Mathura was a sixteen year old girl who was raped by two policemen who were on duty.  She fought a courageous battle in the courts only to find that the Supreme Court of India cited the absence of injury marks on her body and her failure to have raised an alarm as evidence of consent for sexual encounters.  Following the judgement, sustained feminist campaigns resulted in many substantive changes in Indian criminal laws as passed in 1983.

In response the Mathura case, an Open Letter to the Chief Justice was authored by teachers of law at the University of Delhi Upendra Baxi, Lotika Sarkar, Raghunath Kelkar and Vasudha Dhagamwar. The letter represented a thrilling moment in the history of women’s movement and its long battle on the question of violence.

Thirty two years later came the Delhi bus gang rape case. This was a brutal and aggravated sexual attack perpetrated against  a 23 year student traveling home on a bus after an evening out with her friend. It horrified people across India and, indeed, the world.  She and her friend fought back only to be beaten mercilessly with iron rods, resulting in grave injuries that finally resulted in her death.  This incident resulted in  angry protests in the city of Delhi and elsewhere, compelling the government to review the existing legal framework – a process that resulted in further changes in the law.

Just months later, the Justice Verma Committee Report was released in response to protests across the country. This report laid the foundations of the Criminal Law Amendment Act 2013, and became an occasion for feminists in India to engage deeply with the nature of law and the crime and punishment matrix. 

Law is not static; it is best understood as a process that unfolds rather messily and haltingly. While the legal dispensation might nudge along progressive change, its ability to render justice remains limited. While the law might nurse implicit emancipatory potential, it harbours within it the seeds of what might be called a ‘carceral’ and aggressive feminism that is hostile to conversation, dialogue, mediation and conflict resolution. The power of the legal statute combined with a rigid and unimaginative invocation of identity politics, can result in nasty and bitter and – dare we say – violent use of the law.  What do we do when groups of feminists argue with each other, and use the power of law to settle disputes? Can the law, as Pratiksha Baxi asks, translate sexual agency and desire into juridical categories?

Feminists in India have reflected upon other conceptions of justice and indeed the impossibility of justice within what is essentially a masculinist legal paradigm (see also Menon’s Recovering Subversion and Sethi’s commentary ‘Why the Mahmood Farooqui Judgment is Deeply Flawed’).  It is this kind of questioning that has led feminists in India and elsewhere to value emotions and account for the specificity in each instance, rather than be guided solely by universalising frames and principles based on ‘reason’ and empirical evidence. Such an orientation towards questions of legality and justice  would be concerned with setting limits to the use of law. It would value friendship, compassion and relationality as frames within which to examine the question of justice. 

Do these two approaches have to be pitted against each other? As feminists we would caution against the setting up of yet another unfruitful binary. It is only through the difficult task of feminist engagement with the law, legal processes, legal institutions, legal education and the legal profession that the distance between these two approaches will be creatively negotiated. We see the sixteen days of activism against gender-based violence as yet another significant initiative in this direction.

Krishna Menon is Professor of Gender Studies, is and currently Dean of the School of Human Studies, Ambedkar University Delhi. Some of her recent publications include Social Movements in Contemporary India (SAGE Texts 2019), ‘The “Right” Music: Caste and “classical” music in south India’ in Discourse on Rights in India: Debates and Dilemmas (Routledge 2018). 

Bindu K.C. is Assistant Professor in gender studies at Ambedkar University Delhi. Her teaching and research expertise are at the intersection of gender studies and English literature.  

Rachana Johri is a Professor at the School of Human Studies, Ambedkar University Delhi, where she teaches psychology, psychosocial studies and gender studies. 

 

Day Eleven | A calling to account: Suing perpetrators of domestic violence in Australia

Anni Gethin

anni gethin day 11Image of King Street Court House Sydney by Kgbo, used under a CC BY-SA 4.0 license

The costs of being a victim of domestic violence (DV) are huge. Prolonged abuse by a partner results in psychological, physical, and financial devastation. Leaving the abuser brings a set of formidable challenges, including staying safe, impaired capacity to work, sole parenthood, and high risk of poverty and homelessness. DV costs victims and the Australian economy AU$22 billion a year, yet the people responsible – DV perpetrators – are almost never required to pay for the damage they have caused. 

Suing DV perpetrators in civil actions is one way to put accountability back where it belongs, and to bring some measure of just compensation to victims. In Australia, Domestic Violence Redress, a  joint venture between survivor charity, The Brigid Project, and law firm, The People’s Solicitors, aims to make these actions widely available to DV survivors. 

Most people don’t know that suing an abusive ex-partner is even possible, but it certainly is; in 2018, I took legal action against my former partner and obtained an AU$100,000 settlement in DV-related damages. That my case was unusual was obvious from the reaction of the judges during the five interlocutory hearings – they had clearly never seen a similar case. 

Researching the topic, I found there had only been 9 heard cases in Australia where DV survivors had sued the perpetrator (these cases are Jackson v Jackson (NSWSC, 26 March 1999, unreported); Ainsworth v Ainsworth [2002] NSWCA 130; Penn v Caprioglio [2002] VCC 37; Grosse v Purvis [2003] QDC 151; Varmedja v Varmedja [2008] NSWCA 177 Giller v Procopets [2004] VSC 113; [2008] VSCA 236; Elliott v Kotsopoulos  [2009] NSWDC 164; Morris v Karunaratne [2009] NSWDC 346; Cooper v Mulcahy Mulcahy v Cooper [2013] NSWCA 160). Similarly, an international search only found a very small numbers of cases in other common law countries.

I got the idea for suing my ex-partner from the litigious United States, specifically the OJ Simpson civil case – this case suggested that if the criminal system fails you, then you can bring a civil suit. The criminal system had failed me: it was traumatising and disempowering and did nothing to compensate for the debilitating post-traumatic stress disorder that resulted from the abusive and violent behaviour of my former partner, nor the associated loss of income from being unable to work for two years. The criminal process also delivers little to nothing in terms of perpetrator accountability.

Tort law, by contrast, can compel a person or company pay money for the harm they have caused, whether by negligence or on purpose. Tortious harms can occur from events such as a street assault, being defamed, or trespass on your property; tort also applies to some domestic violence behaviour. In Australia, there are around 25 intentional torts. DV victims can potentially use a number of these torts to sue perpetrators, although tort law does not by any means cover the full scope of domestic violence. 

Where there has been physical violence, then the tort of battery is relatively easy to establish as it makes actionable any touching without consent. Battery includes slapping, pushing, punching, hair pulling, sexual assaults, and attacks causing serious injury or disability. It also includes physical contact that is primarily degrading, such as urinating on the victim (see Morris v Karunaratne [2009] NSWDC 346, 3), or pouring beer on her (see Cooper v Mulcahy [2012] NSWSC 373, 204). 

DV perpetrators commonly stop their partners from leaving the house, even tying them up or locking them in the home; these behaviours could result in an action for wrongful imprisonment. Intentional infliction of emotional harm is a tort that potentially makes the more shocking emotional abuseby perpetrators actionable, such as sexually abusing children or slaughtering pets. The tort of deceit brings into scope fraud and financially abusive behaviours, such as forcing a victim to sign loan documents.

There are also torts which I call the ‘stalker torts’, because they enable actions against this common form of DV. Stalking is typically used by perpetrators to control a partner, and to terrorise a victim if the victim attempts to leave. Trespass to land, nuisance, and breach of privacy torts were all used in a landmark Queensland case where the survivor successfully sued an ex-lover who stalked and harassed her for many years (Grosse v Purvis [2003] QDC 151).

There are benefits to bringing an action in torts. Damages payouts can be substantial. The largest payout in the DV cases was $800,000 (in Penn v Caprioglio [2002] VCC 37), with damages in six of the nine DV cases exceeding $150,000. These sums should be compared to the tiny amounts available through victims’ compensation schemes. Civil litigation also puts the survivor in control: it is their case, and they instruct their lawyers. This contrasts with criminal cases in Australia where the victim has no role, and the prosecutor and defence can make deals that effectively erase offences. Importantly too, that of the nine DV cases, the women were from a wide range of socio-economic backgrounds. This is not just an action for middle class victims.

Despite the potential benefits, suing the perpetrator is definitely not for every DV survivor. Perpetrators regularly kill and seriously assault their former partners, and civil courts have none of the protections of family and criminal courts. If a defendant has no money, there is no point pursuing damages. The survivor will also have to relive the trauma to make out their claim, and will need to prove injury or loss. Larger damages payouts can only be expected where the victim has experienced substantial physical or psychiatric injury, and/or a large loss of income connected to the DV. 

Even given these limitations, 1 in 4 Australian women are subjected to DV, so there are thousands of viable cases. Domestic Violence Redress aims to start running actions in 2020, with an initial target of 25 cases. These will run on a no-win no-fee basis, and we will establish a fund to cover the initial costs of litigation and any adverse costs orders. Opening up this legal avenue for redress will make an important contribution to compensating DV survivors. It will also profoundly challenge current social expectations of perpetrator accountability.

Dr. Anni Gethin is a health social scientist with an interest in domestic violence law reform. She coordinates The Brigid Project, a peer support charity for survivors of domestic violence, runs a research consulting business, and lectures in public health and criminology at Western Sydney University. Anni holds a doctorate in population health and, to further her interests in law reform, is completing a Juris Doctor at UNSW. Her current research focuses on legal remedies for victims of domestic violence, and perpetrator accountability.