According to the UN Handbook, “There has been a long-standing debate as to the best way to ensure gender-sensitivity in legislation on violence.” Ch. 3.1.4. Some countries have chosen to adopt gender-specific language in their domestic violence laws to emphasize the gender-based nature of such violence. Often such language has been challenged on the grounds of gender discrimination.
For example, India’s Protection of Women From Domestic Violence Act, 2005 (hereinafter “Law of India”) has been challenged in various high courts for violating the constitutional right to equality. These challenges have been rejected on the grounds that a gender-specific law is necessary to achieve equality for women and that international treaties require the government to protect women against family violence. The Criminalization of Violence against Women Law (2007) of Costa Rica was also challenged. Spain justified gender specificity in the Organic Act on Integrated Protection Measures against Gender Violence (2004) (hereinafter “Law of Spain”) Comprehensive Measures Against Gender Violence on the grounds that gender violence is “the most brutal symbol of gender inequality.” See Spanish policy on gender equality: relevant current legislation and policies, European Parliament (2009) at p. 8 – 10.
The US Supreme Court has ruled that for a gender classification to be upheld it must serve important governmental objectives. Craig v. Boren, 429 US 190 (1976). An evidence-based argument could be made to show an important governmental objective in protecting women against domestic violence. But whether or not legal challenges to gender-specific laws are upheld, responding to such challenges will divert time and resources that might other wise be used to implement and enforce the law. It is recommended that any country considering using gender-specific language in it’s domestic violence law give careful considerations to the pros and cons of such a decision.
The Council of Europe wrestled with the question of gender-specific language in drafting the Istanbul Convention. The results of that debate are apparent in the official title of the document: The Convention on preventing and combating violence against women and domestic violence (implying that domestic violence is not limited to women). The drafters explained that they were leaving it to State Parties to decide the extent to which it applies the convention to “male, elderly and child victims of domestic violence.”
On the one hand, the drafters affirmed that violence against women, including domestic violence, is a distinctly gendered phenomenon because it is violence targeted at women to control them or their sexuality. On the other hand, the drafters of the Convention recognised that men and boys are not immune to some of the forms of violence covered by the Convention, in particular domestic violence, and that this violence needs to be addressed. Consequently, the Istanbul Convention leaves it to the State Party to decide on the extent to which it chooses to apply its provisions to male, elderly and child victims of domestic violence (see Article 2). In any event, States Parties are encouraged to integrate a gender perspective in all policies and this would help address the reality of gay men in abusive relationships or that of men that do not conform to what society considers to constitute “appropriate behaviour”. It should be noted that this expansion of the scope of application, however, in no way lessens the Convention’s focus on violence against women as a form of gender-based violence. Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) An instrument to promote greater equality between women and men.
Gender-specific legislation has been deemed important, particularly in Latin America, as it acknowledges violence against women as a form of gender-based discrimination and addresses the particular needs of women complainants/survivors. However, gender-specific legislation on violence against women does not allow for the prosecution of violence against men and boys and may be challenged as unconstitutional in some countries. A number of countries have adopted gender-neutral legislation, applicable to both women and men. However, such legislation may be subject to manipulation by violent offenders. For example, in some countries, women survivors of violence themselves have been prosecuted for the inability to protect their children from violence. Gender-neutral legislation has also tended to prioritize the stability of the family over the rights of the (predominantly female) complainant/survivor because it does not specifically reflect or address women’s experience of violence perpetrated against them.
Some legislation combines gender-neutral and gender-specific provisions to reflect the specific experiences and needs of female complainants/survivors of violence, while allowing the prosecution of violence against men and boys. For example, chapter 4, section 4 a of the Swedish Penal Code, as reformed by the “Kvinnofrid” package in 1998, contains a neutral offence of “gross violation of integrity” which is constituted when a perpetrator commits repeated violations, such as physical or sexual abuse, against a person with whom they have, or have had, a close relationship, as well as the gender-specific offence of “gross violation of a woman’s integrity” which is constituted by the same elements, when committed by a man against a woman. The Austrian Code of Criminal Procedure, since 2006, provides specific procedures and rights for women complainants/survivors of violence in the criminal justice process in order to avoid their secondary victimization.
United Nations Handbook for Legislation on Violence Against Women (hereinafter “UN Handbook”, Ch. 3.1.4
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