Sri Lanka’s Prevention of Domestic Violence Act: An Eye-Wash
Autor: Aingkaran Kugathasan
Originally Published at Peace and Conflict Monitor on: 04/27/2012
"All crime has harsh effects on society. What distinguishes domestic violence is its hidden repetitive character and its immediate ripple effects on society, and in particular, on family life. It cuts across class, race, culture and geography, and is all the more pernicious because it is so often hidden and so frequently goes unpunished.”
Violence against women (VAW) is a major health and human rights concern. The United Nations Declaration on the Elimination of Violence against Women defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”. In Sri Lanka, as well as globally, the most prevalent form of violence against women is domestic violence. Domestic violence is widely defined as an abuse of power perpetrated mainly (but not only) by men against women. Commonly perpetrated forms of domestic violence include: physical and sexual violence, threats and intimidation, emotional and social abuse, and economic deprivation.
It is recognized that the level of equality between men and women guaranteed by law is variable, and that it varies according to the social context where the law is applied. The law needs to do more than enact a statute based on equality in its formal sense, where the society encourages or tolerates gender bias. The level of equality achievable in a particular society varies according to the standard of equality enforced by a law and vice versa. It is obvious that Sri Lanka’s legal system has failed to take this into account when enacting legislation to ensure “real equality”. The Constitution of Sri Lanka ensures equality before the law, and has the power to enact special laws for the protection and promotion of the rights of women. In addition to the Constitutional guarantees, the Penal Code recognizes sexual assault, rape (although not marital rape, except where the parties are judicially separated), extortion and intimidation as criminal offences against women, which warrant imprisonment and/or finesfor the offender.
Until the Prevention of Domestic Violence Act (PDVA) was passed in 2005, there was no legal document to protect any kind of violence perpetrated against a family member, as the concept of ‘domestic environment’ had been recognized as an entity that the law had nothing, or very little, to do with. Violence towards one’s spouse, parent or child was dealt with only under criminal law, where the motive is to put the perpetrator behind bars. The approach of the law had endorsed the patriarchal idea that within a family, one has to either put up with violence or give up the family ties, together with the entitlements attached to that relationship.
A raging increase in the number of domestic violence “cases” made Sri Lanka realize the insufficiency of constitutional guarantees and penal provisions. As a result, the legislative body of Sri Lanka has enacted the PDVA to curb the problem. The main objective of this Act,as stated in the preamble, is to provide for the ‘prevention’ of any act of domestic violence and for matters connected therewith or incidental thereto. The PDVA calls on ‘any person’ in respect of whom an act of domestic violence has been, is, or is likely to be committed to make an appeal to the Magistrate Court for a protection order as the means for the prevention of such acts of domestic violence.
Offences against the human body, including marital rape, which are not recognized in the Penal Code, are not identified under the PDVA as forms of violence. In interpreting the PDVA, the Magistrate Courts would not consider marital rape as an offence against the human body, since it is not recognized under the Penal Code.Nor would they consider it as emotional abuse, because according to the PDVA, emotional abuse “means a pattern of cruel, inhuman, degrading or humiliating conduct of a serious nature directed towards an aggrieved person”, and it is presumed in the existing penal law that marital rape does not amount to ‘cruel, inhuman, degrading or humiliating conduct’, as recognized in the PDVA.
Non-recognition of marital rape and sexual abuse between spouses as a form of domestic violence in the PDVA is a classic example of the ineffectiveness of the concept of equality when used in its formal sense. Even though the PDVA assumes equality between spouses, such equality cannot be expected in a marital relationship where the husband exercises power and control over his wife physically, psychologically, and very often economically. It is self-deceiving to expect a wife to seek judicial redress against her husband on account of marital rape unless she can prove a ‘pattern of cruel, inhuman, degrading or humiliating conduct of a serious nature’. It is similarly self-deceiving to expect a wider judicial construction of the term ‘domestic violence’, which would require a Magistrate to give a wider interpretation to the wording of the statute. It is too idealistic to expect this much in a patriarchy, particularly where the law, which is intended to curb violence and crime, chooses to be silent on the particular issue. Hence, achieving substantive gender equality becomes unrealistic in the absence of clear legislative provisions.Though PDVA is a law, it aims to achieve its objective via the lowest court in the country. Prevention of domestic violence is a major socio-legal task, and the PDVA is not equipped well enough to face such an enormous socio-legal breakthrough. What the PDVA does, in fact, is provide a protective mechanism for a victim or a possible victim.
Other than being a signatory to the UDHR, ICCPR and their optional protocols, Sri Lanka has acceded to the Convention against All forms of Discrimination against Women (CEDAW). Article 15 and 16 of CEDAW requiresState parties to agree to accord women equality with men before the law, in the exercise of legal rights in marriage and family law. Specifically, the General Recommendation 19 of CEDAW recognizes that gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men. As expressed further in GR19, these rights, which are impaired by gender-based violence include:the right to life, the right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment;the right to liberty and security of person;the right to equal protection under the law; and the right to equality in the family.
Further, Article 2(e) of the Convention calls on State parties to take all appropriate measures to eliminate discrimination against women by any person, which necessarily includes a family member. It should also be noted here that under the general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, as well as for providing compensation.
Having talked about all of these fancy (legal) documents, we shall now think about whether it is really easy to implement such laws in a patriarchal society. Is it easy to transform the ideology; for the police and the judiciary to suddenly accept and adopt a different point of view on domestic violence in a society where the law, as well as the law enforcement authorities, have ignored domestic disputes for centuries? This process will be even more difficult when the society in focus is a patriarchy, where men’s superiority in the family is considered the norm rather than the exception. The closer the relationship between the victim and the perpetrator, the more difficult it would be to get over this norm.
One cannot expect absolute protection from the PDVA in its present context due to various reasons. Firstly, the only effective protection mechanism advocated in the Act is the Protection Order issued by the court; and secondly, other practical measures, such as shelter homes, are not provided for by the state and, therefore, the court cannot compel private organizations to take in victims unless the organizations offer to help. Similarly, with the high rate of cases already handled by the courts daily, the courts cannot be expected to devote individual and special attention to provide protection to victims of domestic violence. As such, victims are rather discouraged to go to Magistrate Courts in search of protection where an adversarial procedure is adopted particularly because of the criminal nature of proceedings normally heard in these courts, as well as known judicial bias (mostly based on patriarchal and financial ideologies) against domestic disputes. Another issue is the comparatively limited involvement expected of the police in the PDVA, which means providing effective protection to the victim is a significant challenge. Finally, there are restrictions on persons who can submit an application on behalf of a victim, as well as significant economic constraints.
It is very important to note that patriarchal ideologies and gender inequalities are embedded in Sri Lankan culture and society, thus normalizing violence against women within the country’s social and cultural fabric. Hence, trying to address the domestic violence issues requires a holistic approach, as it is a social problem that necessitates a coordinated response from the government, civil society organizations, and the community.
The meaning and scope of domestic violence has to be broadened to include economic violence, marital rape and sexual abuse between spouses. Legal impediments to police action will have to be removed, and duties of the rural government officials in reporting, arresting and protecting victims of domestic violence will have to be specified in the Act. Support services should be made available to victims and their dependants.
A law dealing with domestic violence should be sensitive to power relations in the family if it is to guarantee equality in the substantive sense. It has to be recognized that gender neutrality in law will not guarantee the realization of this end. While legislative action in remedying the situation is most welcome, a judicial understanding of the social realities becomes absolutely necessary. The lawmakers should realize that as long as patriarchal values exist in the society, ‘prevention’ of domestic violence is unachievable, and hence, the objective of the Act should more practically be ‘protection’ from violence rather than prevention. To reach the desired outcome, “women need institutional support, both because of and in spite of the fact that power in women’s hands is different from power in men’s hands.”
The legislature and the judiciary have to recognize that all norms are subordinate to one basic norm – the Constitution. Hence, the PDVA should be construed in the light of substantive equality intended to be guaranteed in Article 12(4) of the Constitution. However, equality endorsed in the Constitution should not be interpreted as treating ‘likes alike’. In such situations, the judicial arm of the justice system should look for guidance in international conventions like CEDAW to close the gap between law, policy and reality. Besides, a National Action Plan for women must be in place to address women’s issues. A Women’s Rights Bill shall be passed, disregarding other parallel legislation. Subject to these reforms, the law will be what it is meant to be – a relief; sometimes the only relief.
Aingkaran Kugathasan is an Asia Leaders Fellow in the International Law and Human Rights Masters Programme at the University for Peace of Costa Rica.