VIOLENCE AGAINST GIRLS IN THE FAMILY
JOANNA BOURKE-MARTIGNON
The World Organisation Against Torture’s, Geneva
Résumé
Un grand nombre de lois incriminent la violence domestique, à charge pour l’Etat d’apporter protection aux femmes et aux enfants. Cependant, la violence domestique est toujours et encore considérée comme une affaire privée. Les filles sont plus vulnérables émotionnellement que les garçons et 60% des abus sexuels domestiques sont perpétrés à l’encontre des filles. Le Rapporteur Spécial des Nations Unies sur la violence à l’encontre de la femme a rédigé un projet de législation cadre que chaque pays peut adopter en fonction de sa situation. Dans la société musulmane, l’Islam est invoqué pour justifier les violences à l’encontre de la femme. Il s’agit d’une interprétation erronée du Coran qui bafoue l’enseignement du Prophète.
Zusammenfassung
Eine Vielzahl von Gesetzen brandmarken die Ausübung von Gewalt in der Familie und beauftragen den Staat, Frauen und Kinder zu schützen. Die Gewalt in der Familie wird jedoch meist immer noch als eine private Angelegenheit angesehen. Mädchen sind emotional verletzbarer als Knaben, und 60 % des sexuellen Missbrauchs innerhalb der Familie werden an Mädchen verübt. Der Fachberichterstatter der Vereinten Nationen über Gewalt an Frauen hat einen Rahmenentwurf eines Gesetzes verfasst, das jedes Land unter Berücksichtigung seiner besonderen Verhältnisse verabschieden kann. In moslemischen Gesellschaften beruft man sich meist auf den Islam, um die Gewaltsamkeit gegen Frauen zu rechtfertigen. Es handelt sich hierbei aber um eine irrige Interpretation des Korans, welche der Lehre des Propheten spottet.
Resumen
Un gran número de leyes incrimina la violencia doméstica, a cargo del Estado para llevar protección a las mujeres y niños. Sin embargo la violencia doméstica es considerada como un asunto privado. Las niñas emocionalmente son más vulnerables que los niños y el 60 % de los abusos sexuales domésticos son perpetuados hacia las niñas. El Relator Especial de las Naciones Unidas sobre la violencia hacia la mujer redactó un proyecto modelo de legislación que cada país puede adoptar en función de su situación. En las sociedades musulmanas es invocado para justificar la violencia en contra de la mujer: Se trata de una interpretación errónea del Corán que engaña las enseñazas del profeta.
Summary
An extensive legal framework to protect women and children from domestic violence exists and it is up to States to implement it. Nonetheless domestic violence is all too often still regarded as a private matter. Girls are more emotionally vulnerable than boys and 60% of sexual abuse in the home is directed against them. The Special Rapporteur on violence against Women has prepared draft legislation which can be adapted to suit the needs of individual countries. In some Moslem societies the Koran is used to justify the maltreatment of women. Such views are based on a misinterpretation of the Koran and are completely at variance with the teachings of the Prophet.
1. INTRODUCTION
As the main network for NGOs fighting against torture, the World Organisation Against Torture (OMCT) can not ignore the increasing number of reports of domestic violence being transmitted to it by the members of the OMCT- SOS-Torture network, nor can it fail to involve itself in the development of measures to put an end to this serious violation of human rights.
OMCT has taken the position that depending on the severity and the circumstances giving rise to State responsibility, violence perpetrated by private persons can constitute a form of torture or cruel, inhuman or degrading treatment or punishment under the International Covenant of Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman Treatment or Punishment (CAT). In the view of OMCT, domestic violence can be regarded as falling within the definitions of torture or cruel, inhuman or degrading treatment or punishment contained in article 7 of the ICCPR and articles 1 and 16 of the CAT when the State fails to act with due diligence in order to prevent, investigate and punish this violence and to provide its victims with adequate reparations.
While in the past, human rights protection was interpreted narrowly and state inaction to prevent and punish violations was not viewed as a failure to protect human rights, international human rights law now increasingly recognises the fact that States may be held responsible for human rights violations committed by private persons when they fail to exercise due diligence to prevent, investigate, prosecute and punish these abuses. This trend is reflected in the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women and the Declaration on the Elimination of Violence against Women as well as in the general comments and concluding observations of the Human Rights Committee and the Committee against Torture.
Nevertheless, despite the legal frameworks that have been created at the international, regional and, in many States, at the national level, violence occurring in the domestic sphere is still often not treated by the relevant authorities or by society at large as a serious violation of human rights, but instead continues to be regarded as a private matter.
The goal of this presentation is to provide an outline of the gender-based causes and consequences of domestic violence as it affects girls with a view to developing certain conclusions aimed at strengthening the protection accorded to girls against this serious and widespread human rights violation.
To this end, the presentation will initially focus on briefly outlining the various forms and causes of the types of domestic violence that are predominantly perpetrated against girls. These gender-based forms of violence include; psychological and emotional violence, sexual violence including incest, wife
battering, marital rape, forced prostitution and other forms of economic exploitation, and different traditional and customary practices that affect the psychological and physical integrity of girls.
There are several complex and closely inter-related socio-cultural factors that work to render girls particularly vulnerable to these forms of domestic violence, however, the root cause of much of this violence lies in the historically unequal power relations that exist between women and men in all societies. Factors contributing to these unequal power relations include: socio-economic forces, the family institution which often reflects and enforces prevailing social stereotypes including belief in the inherent superiority of males, and legislation and cultural sanctions that have traditionally denied both children and women an independent legal and social status. The vulnerability of girls to domestic violence is conditioned by the inter-play and overlap of discrimination and marginalisation based on both gender and age as well as on additional factors including racial, ethnic and religious identity and socio-economic status.
The second half of the presentation will focus on ways in which the existing norms and standards designed to protect girls against domestic violence can be more effectively applied in practice. It will be suggested that while there is a relatively large body of international law that can be invoked for the purposes of preventing and eradicating domestic violence against girls, many of these norms are not still not being adequately implemented at the national level.
2. DOMESTIC VIOLENCE AND GENDER: AN OVERVIEW
As a unit, the family is traditionally associated with warmth, security, and safety: a shelter, where peace and harmony are predominant. In reality, however, in every region of the world, children suffer from violence in the family, with devastating effects for the victims, their families and the community. Although distinct social, cultural and political contexts give rise to different forms of violence in the family, its prevalence and patterns are remarkably consistent, spanning national, cultural and socio-economic borders.
Violence against children in the family takes various forms including; child- battering, psychological violence, incest, correctional abuse, abandonment and neglect, forced labour in the family, the sale of children by their parents for prostitution or bonded labour and violent cultural practices.
Both boys and girls are subjected to violence in the family. However, due to the difference in their gender,1 girls and boys may experience different patterns of
1 The term “gender” refers to the ways in which roles and attitudes, values and relationships regarding women and
abuse and vulnerability, with girls often at higher risk of sexual abuse, psychological violence or other forms of violence resulting from certain cultural practices occurring in the family. Many forms of violence in the family are specifically directed against girls or affect girls disproportionately. This violence may include; “honour crimes”, female foeticide and infanticide, forced childbearing and forced abortions, son preference resulting in violence in the form of neglect, as well as harmful traditional practices affecting the health of girls, such as female genital mutilation, virginity testing, early marriages and bride price and dowry-related violence.
It is important to note that family violence against girls is not limited to violence perpetrated by parents but also includes violence by grandparents, siblings, other relatives, guardians or carers, neighbours, and family friends. Therefore, any references to “family” and “domestic” should be understood within the local context and may include extended families, polygamous systems and non- traditional family units.2
3. PSYCHOLOGICAL AND EMOTIONAL VIOLENCE
The prevalence of psychological violence and emotional abuse is very difficult to measure in quantitative studies. Nevertheless, it is apparent that girls and women are more commonly subjected to emotional and psychological violence than men and boys.3
According to a study conducted in the Netherlands, psychological violence in the family is more often directed against girls and young women. Between the ages of 15 and 20, one in seven girls becomes a victim of psychological violence in the domestic sphere.4
The effects of psychological and emotional abuse are devastating and many women and girls who have been victims of this form of violence either commit or attempt suicide. One study has concluded that girls and women who have been subjected to emotional and psychological abuse are 12 times more likely to attempt suicide than other women and girls.5
2 See Committee on the Rights of the Child, 28th Session (CRC/C/111), Discussion on “Violence Against Children,
Within the Family and in Schools”, Friday 28 September 2001, Recommendation 1 (unedited version).
3 UNICEF, Innocenti Digest No. 6, Domestic violence against women and girls, UNICEF, Florence, June 2000, pp.
4-5.
4 Dutch Ministry of Justice, Dienst Preventie, Jeugdbescherming en Reclassering, Huiselijk Geweld, 1997, p. 54. 5 United Nations, Violence against Women in the Family, UN Doc. ST/CSDHA/2, New York, 1989.
4. SEXUAL VIOLENCE IN THE HOME INCLUDING INCEST
Girls are also especially vulnerable to sexual violence in the home including incest. For social and biological reasons, incest is widely viewed as unacceptable. Most countries throughout the world have made it a criminal offence reflecting the taboo that surrounds incest. But precisely because of this taboo, families in which incest occurs keep it secret, making it one of the most invisible forms of domestic violence.
The information that is available shows that from 40 to 60 per cent of known sexual assaults within the family are committed against girls aged 15 years and younger, regardless of region or culture.6 A study from the Netherlands found that 45% of the victims of domestic sexual violence are under 18. Between the ages of 10 to 25, more than 7% of the respondents were victims of a form of sexual violence in the domestic sphere. Between the age of 10 and 25 years, girls are more often victims of incest than boys.7
A particular difference between sexual abuse of adults and children is that the identification, reporting and decision-making in the case of children lies not so much with the child victims, but much more with persons concerned about the child. An extra complication arises from the fact that the legal representatives of the child victim (parents, guardians, care givers) are frequently the perpetrators of the sexual abuse. It is extremely important that the right of the child, enshrined in article 12 of the CRC, to be heard in any judicial and administrative proceedings affecting the child be respected and that the views of the child are accorded due weight.
5. WIFE BATTERING
Girls, when married before the age of 18, are at greater risk of physical and psychological violence perpetrated by their husbands or other members of their extended families. It should be noted that wife battering at home constitutes by far the most common form of violence against women and girls and is a significant cause of injury. Wife battering remains hidden, it is not the type of act that dominates headlines as it happens behind closed doors and victims fear speaking out.
Wife battering includes various methods of physical violence. Survivors of battering report violence such as slapping, punching, kicking, beating with fists or
6 United Nations, The World’s Women 1995: Trends and Statistics 1995, United Nations, 1995.
objects, biting, strangling, burning, throwing acid, raping with body parts or objects, stabbing and shooting. In the most extreme cases, woman victims are murdered or die as a result of their injuries.
Wife battering is often the result of the general view that a woman is subordinate to and the property of a husband or intimate partner. This attitude is reinforced in some societies by practices such as demanding a bride price, which leads the husband and his family to believe that they have bought a wife or daughter-in-law and that she is therefore their property. Other unequal structures in the family, such as discriminatory laws with regard to land ownership, marriage and divorce, place women in a position of dependence on their husbands.
Specific legislation on domestic violence is a modern phenomenon. In certain countries, wife battering is still not considered to be a crime and no legal sanctions exist against perpetrators. In other countries, domestic violence is frequently dealt with under laws that regulate "ordinary" cases of criminal assault. But these laws ignore the fact that the violence takes place in the family, between persons who are emotionally and financially involved with each other. Therefore, special laws are drafted, with specific remedies and procedures that meet the circumstances and special needs posed by violence between domestic inmates. These laws may deal with issues such as quasi-criminal remedies, civil law remedies, and the question of whether domestic violence is a complaint offence or a public offence.
Even in cases where countries have “criminalised” wife battering, much still depends on the role and the power of the police as well as on the willingness of national governments to create mechanisms in order to provide protection, support and assistance to victims of this violence.
6. MARITAL RAPE
Girls, when married before the age of 18, can be at risk of marital rape or other forms of sexual violence. Surveys in a number of countries show that from 10% to 15% of women report that they have been forced to have sex by their intimate partner.8 Among women who experience physical violence from their partners, figures are higher; an average of 50-60%.9 In many societies, however, women do not define forced sex as rape if they are married to or living with the abuser. Although some countries have recognised marital rape as a criminal offence, others still argue that husbands have a legal right to have sexual access to their wives. But when rape or other forms of sexual violence against a women or a
8 Lori L. Heise, Jacqueline Pitanguy and Adrienne Gramain, Violence against Women, The Hidden Health Burden,
World Bank Discussion Paper, 255, pp. 6-10.
girl committed by her husband are not recognised as a crime, the marital relationship acts as a cover for violence in the home.