Exploring Violence in Families and Societies 9781848880863, 1848880863

Table of contents :
Exploring Violence in Families and Societies
Table of Contents
Introduction
Part 1: Domestic Violence
Domestic Violence: Bystander Intervention and the Role of Privacy
Part 2: Domestic Violence in India: Responses and Strategies
Protection of Women from Domestic Violence Act, 2005 - Miracle Legislation or Façade?
Studying Domestic Violence in the Indian Context: Moving away from Gilead?
Peering into the Crystal Ball: The Future of the Protection of Women from Domestic Violence Act, 2005
Part 3: Literary Themes
Gossip: The Quarrels and Parleys of Margery Kempe, a 15th-Century Wife
Part 4: Visual Representations
Violence as a Theme in Pontecorvo’s The Battle of Algiers and Burn!
Part 5: Child Abuse
Older Relatives Raising Adolescents: The Relationship between Age of Caregiver and Youth Delinquent Acts
Part 6: Language and the State
Tracing the Linguistic ‘Agents’ of Illness and Disease in the End of Life Care
The Arbitrariness Ring on the Chain of the Free-Floating Violence
Part 7: Different Places, Different Worries
An Inquiry into the Anticlerical Violence in the Spanish Civil War (1936-39)
Part 8: Forms of Violence
Violence, Morality and Tragedy: The Israeli Soldier in the Hebrew Literature of the Intifada
Women and Armed Conflict: Specific Reference to Manipur, India

Citation preview

Exploring Violence in Families and Societies

Probing the Boundaries Series Editors Dr Robert Fisher Dr Daniel Riha Advisory Board Dr Alejandro Cervantes-Carson Dr Peter Mario Kreuter Professor Margaret Chatterjee Martin McGoldrick Dr Wayne Cristaudo Revd Stephen Morris Mira Crouch Professor John Parry Dr Phil Fitzsimmons Paul Reynolds Professor Asa Kasher Professor Peter Twohig Owen Kelly Professor S Ram Vemuri Revd Dr Kenneth Wilson, O.B.E

A Probing the Boundaries research and publications project. http://www.inter-disciplinary.net/probing-the-boundaries/ The Hostility & Violence Hub ‘Violence’

2011

Exploring Violence in Families and Societies

Edited by

Santoshi Rana and Lynn Frederick

Inter-Disciplinary Press Oxford, United Kingdom

© Inter-Disciplinary Press 2011 http://www.inter-disciplinary.net/publishing/id-press/

The Inter-Disciplinary Press is part of Inter-Disciplinary.Net – a global network for research and publishing. The Inter-Disciplinary Press aims to promote and encourage the kind of work which is collaborative, innovative, imaginative, and which provides an exemplar for inter-disciplinary and multi-disciplinary publishing.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means without the prior permission of Inter-Disciplinary Press.

Inter-Disciplinary Press, Priory House, 149B Wroslyn Road, Freeland, Oxfordshire. OX29 8HR, United Kingdom. +44 (0)1993 882087

ISBN: 978-1-84888-086-3 First published in the United Kingdom in eBook format in 2011. First Edition.

Table of Contents Introduction Santoshi Rana and Lynn Frederick Part 1

Domestic Violence Domestic Violence: Bystander Intervention and the Role of Privacy Victoria Gutierrez

Part 2

Part 3

Protection of Women from Domestic Violence Act, 2005 Miracle Legislation or Façade? Divya Shenoy

13

Studying Domestic Violence in the Indian Context: Moving away from Gilead? Megha Kaladharan

21

Peering into the Crystal Ball: The Future of the Protection of Women from Domestic Violence Act, 2005 Vatsala Sahay

29

Literary Themes

49

Child Abuse Older Relatives Raising Adolescents: The Relationship between Age of Caregiver and Youth Delinquent Acts Lynn Frederick

Part 6

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Visual Representations Violence as a Theme in Pontecorvo’s The Battle of Algiers and Burn! Thomas Riegler

Part 5

3

Domestic Violence in India: Responses and Strategies

Gossip: The Quarrels and Parleys of Margery Kempe, a 15th-Century Wife Maria Beatriz Hernández Pérez Part 4

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Language and the State

59

Part 7

Tracing the Linguistic ‘Agents’ of Illness and Disease in the End of Life Care Nate Hinerman

73

The Arbitrariness Ring on the Chain of the Free-Floating Violence Aysun Kiran

81

Different Places, Different Worries An Inquiry into the Anticlerical Violence in the Spanish Civil War (1936-39) José Luis Ledesma

Part 8

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Forms of Violence Violence, Morality and Tragedy: The Israeli Soldier in the Hebrew Literature of the Intifada Adia Mendelson-Maoz

99

Women and Armed Conflict: Specific Reference to Manipur, India Santoshi Rana

105

Introduction Santoshi Rana and Lynn Frederick Violence has been part of societies and used as a political tool in multiple ways: to unite or divide, to produce fear and compliance, to incite or neutralize mobilisation, to resist domination or to impose subordination. It has been touted as the only path of liberation or the inevitable road to annihilation and destruction, as a necessary means for transformation or as the ultimate form to avoid change and defend the status quo. And despite global, national and local efforts to minimise, reduce or eliminate it remains a horrifying feature of today’s world and life. Among the core themes which are being explored are: violence as part of human nature?; war, civil war, terrorism and the metropolis; policies of extermination; religion, religious institutions, and their role in curtailing or propelling violence; religious fundamentalism and violence, institutional life including schools and hospitals; ethnicity, nationalism, and sub-nationalism; racism and violence in the public domain - abuse of women and children; violence in the public domain - the legitimisation of violence, law, concepts of punishment, capital punishment; state violence - militarism and arms competition; market economy and globalisation; poverty and violence; violence and modernity - the role of science and technology; youth and violence - gang violence, children soldiers, hooliganism; how can we promote a culture that is counter to violence? The first section, ‘Domestic Violence’ delves in to the issues of whether bystander intervention is a breach of privacy. Domestic violence is a major social and health concern affecting countries worldwide. As with other forms of violence, the consequences affect not only those directly involved but reach all members of society. The paper in this section explores the divergent social construction of interpersonal violence on the basis of victim-offender relatedness and the right to privacy, and considers the consequent impact on social responses to prevent violence in the community. Long term strategies to tackle the problem aim to eliminate social attitudes condoning domestic violence as well as to urge public involvement and zero tolerance to instances of such violence (e.g. Berkowitz 2002). Research on bystander intervention indicates that onlookers may fail to assist the victim when the inter-personal aggression they witness is defined as private (e.g. Weisz and Black 2008) or when they perceive victim and offender to be related (Frye 2007; Laner et al 2001). This suggests that domestic violence is not merely construed as a form of inter-personal assault, readily identified as a crime, but continues to be linked to notions of privacy which make this recognition problematic. Is privacy more important than safety? This issue is dealt with by trying to understand the victim’s authority of making the decision of allowing intervention by the society. The second section, ‘Domestic Violence in India: Responses and Strategies,’ moves in to a more specific context of a recently enacted legislation, the Protection

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__________________________________________________________________ of Women from Domestic Violence Act, 2005 (PWDVA). The purpose of the papers in this section is to analyse whether the Indian society and the Indian judiciary are in fact ready for a legislation which aims to bring in a ‘more equal’ society by challenging the existing patriarchal notions. The first paper analyses domestic violence from a socio-cultural perspective. It examines whether the nature of domestic violence in India is significantly different from domestic anywhere else. The second paper includes a detailed analysis regarding the theoretical and legal ramifications of the PWDVA. It evaluates the innovative legislative tools adopted within a theoretical and practical framework. The paper also examines the varied responses to the Act, including calls for repeal from certain segments of the society. The third paper analyses the judicial pronouncements regarding domestic violence and related women’s rights issues as well as predicts future trends regarding the PWDVA. It also assesses the judiciary’s chosen policy of non-interference, while dealing with cases relating to violence against women since they perceive such matters to be in the private domain. The paper argues that along with the PWDVA in place, what is needed is a radical change in the judicial mind set and recognition of the fact that ‘personal is political.’ The third section, ‘Literary Themes,’ deals with the verbal expression of violence which has lately been dealt with by linguistic approaches which depart from a pragmatic stance in order to integrate the contextual realities as part and parcel of the verbal manifestations themselves. The paper analyses as defined by Spacks, gossip, a linguistic practice relying on a process of simultaneous containment and relief of information and constant repetition through common talk, brings about the dispersion and extension of violence. According to Lochrie, in the Middle Ages, this particular oral practice defined itself as different from written culture and was associated, often negatively, with the strictures of the female space and habits: a vice reflecting the presumed loquaciousness, bodiliness, secrecy, and deceptiveness of women. It was also seen as a kind of insurrectionary discourse on the part of female marginal communities which were thus able to resist a variety of institutionalised male discourses. The paper proposes the inclusion of gossip under the heading of domestic violence, examining this particular issue in the light of the late fifteenth-century The Book of Margery Kempe. The relationship between marital violence and communal gossip as found in this and other medieval texts is demonstrated, discussed, and related to other forms of institutional violence. The paper focuses on the constant verbal interferences of the public voice upon the private sphere, constitutive of a low frequency institutional violence that both speaks and beats the medieval individual. The fourth section, ‘Visual Representations’ includes the paper which explores the depiction of violence in Gillo Pontecorvo’s neorealist films The Battle of Algiers (1965) and Burn! (1969). Both Burn! and The Battle of Algiers are insightful meditations on Frantz Fanon’s theme of the ‘wretched of the earth’ and

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__________________________________________________________________ the subject of ‘liberating violence.’ The Battle of Algiers reveals much of the tactics inherent in asymmetric war - such as random shootings, bombings of public places and even a ‘suicide’-like mission - but also explores the rationality and effectiveness of terrorism in the context of a confrontation between unequal opponents. Burn! on the other hand focuses both on the nature of guerrilla warfare and the methods of colonial repression. While in The Battle of Algiers the FLN is simply defeated because torture ‘works,’ Burn! features tactics like the displacement of civilians or the integration of indigenous forces in the counterinsurgent camp. While the ‘independence’ won by slaves in Burn! is revealed as yet another form of indirect oppression, The Battle of Algiers did not question Algeria’s continuing subjection to one party-rule. The paper analyses the representation of violence in both the films and the structural enactment of violence in the context of neo-colonialism. The fifth section, ‘Child Abuse’ examines the relationship between grandparents and other older relatives raising children and delinquency. It posits that youth raised by grandparents and other older caregivers are more likely to commit delinquent acts. For over 1.3 million children in the US, a grandparent is the primary caregiver and this is a rapidly growing phenomenon due to social problems such as addiction, job loss and death of parents. Low caregiver control is linked to delinquency. Older caregivers may be unable to monitor and control youth sufficiently to keep them out of trouble. Further, the combination of frail caregiver and misbehaving/violent youth could be a risky combination. This paper uses survey responses from Wave I, The National Longitudinal Study of Adolescent Health (AddHealth), a comprehensive and representative data base addressing adolescent health related behaviour and status. Bivariate, baseline logistic regression, and fully specified logistic regression models are used to determine the relationship between: 1) Age of caregiver and violent delinquency in youth respondents; 2) Relationship of caregiver (grandparent) and violent delinquency in youth respondents; 3) Age of caregiver and non-violent delinquency in youth respondents; 4) Relationship of caregiver (grandparent) and non-violent delinquency in youth respondents. The sixth section, ‘Language and the State,’ examines the issues of the language used in health care settings and the state’s discourse on violence. The first paper traces the linguistic ‘agents’ of illness and disease in the United States health care settings, especially during end-of-life settings. It deals with the descriptions of illness and disease in the U.S. which often invokes war nomenclature, e.g. ‘the war on cancer.’ Engendering this discourse of war suggests patients’ bodies are ‘battlefields,’ ones upon which medicine clusters an attack. Viewing the patient as besieged, diagnostics tend to render loss of life not as ‘natural’ but rather the result of ‘failed, heroic interventions.’ Conceiving illness and disease in this manner causes an intractable dilemma for both the caregiver and patient, since war declarations rarely promote respectful active listening. This paper expands on how

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__________________________________________________________________ invoking war terminology, much of which has been derived from the current ‘War on Terror,’ during medical encounters inhibits healthy caregiver-patient dialogue and hinders prognostics and more holistic treatment interventions. The second paper characterises post-1990s everyday life as unpredictable, apolitical and reactive, the phenomenon of free-floating violence going beyond the limits of such known types of violence as honour killing and family violence. It describes freefloating violence as a chain with three interlocked rings. The exclusionary ring in the outermost refers to the micro-effects of global and neoliberal changes on the lives of ordinary people in the post-1990s. The arbitrariness ring in the middle is related to the roles of illegitimate state violence and the impunity culture. The innermost homosociality ring focuses on the inner dynamics of male homosocial groups such as hierarchy and collectivity. It analyses the locking-together of these rings, as a multi-dimensional phenomenon. The paper focuses on arbitrariness in two ways. Firstly, the logic of ‘vendetta’ justice taking its root from the state’s partiality in using violence remains fresh in the societal memory of the population through everyday experiences. Secondly, arbitrary practices of justice feed individuals’ feelings of insecurity and mistrust towards the state, which results in the random attempts of taking law into hands in society. On this axis, the paper examines the process that results in ‘state-isation’ of society on the road to freefloating violence. The seventh section, ‘Different Place, Different Worries’ focuses on the Spanish Civil War of 1936-1939. To date, historians have paid much less attention to that violence than to the one committed in the rebel or Francoist side. The apparently most striking aspect of that ‘red’ violence is the one suffered by the Catholic Church. Almost 7,000 members of the clergy were executed, most of them during the opening weeks of the civil war. That means that clergy was with no doubt the first and most intensely persecuted social group in the Republican side, and also that it was the greatest anticlerical bloodletting Europe has ever seen. This anticlerical persecution has often been described as senseless and a result of a collective pathology, as well as with Manichean and highly ideological biases. The paper goes beyond such existing explanations, moving on to a critical reading of the different interpretations which are offered as explanations for this particular intensity, with special attention given to those offered by history and anthropology. It offers an interpretive proposal which focuses on the confluence of two primary elements: the presence in Spain of a previous and deep-rooted anticlerical political culture - which held the clergy to be for Spanish bourgeois and working-class Left, the ‘enemy’ par excellence; and the context of ‘total’ civil war, in particular the configuration of power in the Republican rear guard, whose nuances explain the temporal and geographical variations in the anticlerical violence. The last section, ‘Forms of Violence’, comprises of two papers which analyse two different types of violence. The first paper, critically examines Yitzhak BenNer’s novel, Delusion (1989), which is but one example of Hebrew literature

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__________________________________________________________________ written by Jews in Israel in light of the Israeli occupation and the first and second Palestinian Intifadas. The paper discusses four novels written in the last two decades, which describe the realm of the Israeli soldier in friction points with the Palestinians. These works describe the reality in the Occupied Territories, reexamine the prototypical image of the Israeli soldier, and confront the question of violence and its roots. How these young boys became violent killers? What are the sources of this brutal and sadistic behavior? Can the Israeli soldier maintain his humanity while partaking in the dynamics of the checkpoint? The works presented illuminate different protagonists with different political and moral views. Alongside the description of the Palestinians suffering, they reveal a shared theme - the Israeli soldiers, standing up to or failing the moral challenges they face, often forced to reshape their identity and experience self-alienation. Ultimately they are destroyed, whether by incurable madness, by continuous nightmare, or by a paralyzing sense of guilt. The second paper, examines women’s roles as active agents in the economic and political functions of a patriarchal social structure by looking at their responses to armed conflicts. The paper focuses on the ethnically diverse state of Manipur in northeast India. It focuses on understanding armed conflict through women’s subjective experiences of coping with their daily lives and the changing role structures to they have to adapt. The paper analyses the way people internalise and cope with the changes brought about by violent and unstable armed conflicts. The eight sections in the compilation are titled according to the core themes of violence according to the World Health Organisation (WHO); ‘each year more than 1.6 million people worldwide lose their lives to violence. For every person who dies as a result of violence, many more are injured and suffer from a range of physical, sexual, reproductive and mental health problems. Violence places a massive burden on national economies, costing countries billions of US dollars each year in health care, law enforcement and lost productivity.’ The World Report on Violence and Health (WRVH), defines violence as, ‘the intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation.’ Each of these sections was initiated with the idea of whether we want to define violence and what the boundaries are or should be.

Part 1 Domestic Violence

Domestic Violence: Bystander Intervention and the Role of Privacy Victoria Gutierrez Abstract Domestic violence (DV) is a major social and health concern affecting countries worldwide. As with other forms of violence, the consequences affect not only those directly involved but reach all members of society. Long-term strategies to tackle the problem aim to eliminate social attitudes condoning DV as well as to urge public involvement. Research on bystander intervention indicates that onlookers may fail to assist the victim when the inter-personal aggression they witness is defined as private or when they perceive victim and offender to be related. This suggests that DV is not merely construed as a form of inter-personal assault, but continues to be linked to notions of privacy which make this recognition problematic. Within a broader debate, conflicting social discourses, contesting notions of privacy versus safety, are relevant to the discussion of how bystanders may understand and react to DV. These discourses incorporate the criminalisation of DV which in its latest development has given further powers to institutionalised interference (e.g. mandatory arrest of offenders) and the recognition of individual autonomy and the right to privacy which centre round the victim’s choice and agency. Drawing insights from bystander intervention research, this paper explores the divergent social construction of interpersonal violence on the basis of victimoffender relatedness and the right to privacy, and considers the consequent impact on social responses to prevent violence in the community. The article concludes with an examination of the human rights approach as a potential avenue to circumvent the public/private dichotomy, and encourage bystander involvement. Key Words: Domestic violence, bystander intervention, privacy, pro-social behaviour, human rights. ***** 1. Introduction Despite public moves to tackle the problem of DV, the notion of its private nature remains strong. The survival of traditional views of family privacy is coupled with positions advocating the need for survivors to retain agency and privacy during and after the experience of abuse. 1 Tensions between public efforts to end DV and warnings over the dangers of excessive state reliance are relevant in terms of whether the expectation of bystander involvement in stopping the abuse is reasonable. 2 The framing of DV as a public or private issue is likely to have profound effects on the onlooker’s decision to aid those experiencing violence. Such a premise calls for an analysis of how we can reconcile new notions of

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__________________________________________________________________ privacy with public strategies that seek to engage members of society in efforts to end DV. I begin this analysis with an examination of bystander intervention research, and then explore ways in which notions of privacy relate to DV and impact on bystander response to prevent violence in the community. I finally consider DV as a human rights issue and an alternative model that may prevent some of the problems discussed. 2. Bystander Intervention (BI) Research Discourses on DV have typically involved victims and perpetrators, with little attention paid to the role and responsibility of the observing community. 3 An observer is any member of the community who is not directly involved in the violence but witnesses or becomes aware of it. It includes not only the average passer-by or neighbours but also extends to the victim’s friends and family. Evidence showing that help-seeking behaviours of victims when enacted are mainly directed toward family and friends, rather than the police, highlights the importance of BI. 4 Despite this reality, there is limited research exploring the helping behaviour of the victim’s close network. 5 Furthermore, although research on helping behaviour has a relatively long history, the understanding of how prosocial behaviour applies to the context of interpersonal violence is less well understood. 6 Early pro-social behaviour research indicates that BI is less likely when the situation is ambiguous, when the presence of other onlookers diffuses the responsibility to help or when the bystander lacks the necessary skills to offer appropriate help. 7 In addition, research indicates that individuals experiencing violence are more likely to receive help if they are perceived as being wronged rather than blamed for the violence, when there are feelings of closeness with the victim, when victims are perceived as in-group members, or when the situation is defined as highly dangerous. 8 Recent approaches to DV aim to move the focus from an analysis of the victim (or less often the perpetrator) to a social or community challenge. 9 Long-term strategies to tackle DV aim to eliminate condoning social attitudes as well as to urge public involvement and intolerance of instances of violence. Efforts such as public awareness campaigns, however, are still far from conveying a sense of common responsibility. Studies have shown that there is opportunity for bystanders to intervene when witnessing violence or its effects. For example, over 70% of a sample of college students reported that they had interfered in a fight. 10 Data from US national representative surveys consistently show that in two-thirds of violent crimes, victims recognise the presence of third parties at the immediate scene. 11 Almost two-thirds of violent crimes in which the offender was known to the victim took

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__________________________________________________________________ place in the presence of at least a bystander. Of these, 36% clearly involved intimate partner assaults. In each incident of violence, bystanders have a choice. They may offer direct assistance to the victim, scare the offender off, prevent further injury to the victim, or help indirectly by phoning the police, summoning other people for help, etc. In some instances, onlookers who intervene may also make the situation worse, for example, by making the offender angrier. Data suggest, however, that when bystanders are present, victims of intimate partner assault perceive BI as more likely to help the situation than to make it worse. 12 Finally, third parties may choose not to get involved. The failure to act may contribute to the seriousness of the situation since the silence gives the aggressor permission to proceed. In addition to the personal and contextual factors that have been researched to explain bystander inaction, it is essential to examine ways in which notions of privacy prevent witnesses of DV from taking action. For people to intervene, the observation of relationship violence must involve an understanding that it belongs to the public rather than the private sphere. This conception necessarily conflicts with models of ‘privacy’, which revolve around the victim and, as a result, exempt third parties from responsibility. Public notions of DV stand closer to an understanding that the offender’s actions are socially deviant and punishable behaviours. Therefore, how bystanders articulate and understand aggression is greatly influenced by how they construe DV as a private or public matter. 3. Safety or Privacy: Broader Debates Concerning the Bystander Response Conflicting social discourses, contesting notions of privacy versus safety, are relevant to the discussion of how bystanders may understand and react to DV. Challenging the view that DV is a private matter are a number of social responses which give power to state interference. The most obvious, the criminalisation of DV, has seen a number of reforms (e.g. mandatory arrest) to improve the protection of victims and make offenders more accountable. By intervening, the state is said to take the burden and responsibility for stopping the abuse away from the victim. Concerns have been expressed, however, about the implications of such policies. Critics have warned that such strategies sanction the victims by ignoring their agency and needs, and caution against the expectation placed on women to secure safety using court procedures. 13 How this expectation affects minority women is of particular concern. To restore the victim’s autonomy and power, this view draws on the right to privacy. Social narratives supporting the notion of family privacy include the view that the state should not interfere in the private dealings of the family. Although in general privacy has been seen as problematic by feminist theorists, some scholars have emphasised its positive meaning. For example, it is thought that disclosure in the court room constitutes a way in which victims of rape encounter privacy loss. 14 Yet social attitudes towards DV which continue to support narratives of privacy

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__________________________________________________________________ lead to little social response. 15 The extent to which these notions prevail in the understanding of DV will necessarily affect the way in which members of society respond. At present, these discussions are taking place in the context of a broader debate that questions the role of state interference (e.g. increased surveillance) and upholds the right to privacy. Attention is drawn to an excessive reliance on the criminal-legal system, with some advocates warning about the negative effects of formal systems of control. 16 Some interpret this position as a radical quest for the decriminalisation of DV. 17 Hence, unresolved tensions between the private and the public spheres are manifested in approaches defending formal as opposed to informal social systems of control of DV. 18 The conflict between pursuing private autonomy, on the one hand, and aggregated public goals, on the other, is very much an unresolved issue. 4. The Human Rights (HR) Approach: A Promising Avenue? Substantial progress in HR international law is being made on a new avenue to regulate family life within and across countries. These last two decades have seen unprecedented efforts to apply HR law to family violence. 19 The need to emphasise the ‘public’ quality of DV is crucial because individuals do not act in isolation of cultural practices. As cultural practices contribute to ‘private’ family violence (e.g. by creating climates where violence can flourish), the use of international law may be valuable in reaching both private behaviour and cultural forces. 20 This approach engages members of society in a public understanding of private violence that can challenge cultural forces that foster violence, the only long-term solution to the problem. By sending out the message that DV is a public issue which must not be tolerated by the community, it is more likely to challenge bystander inaction. To address the cultural nature of the problem of DV, a cultural redefinition which recognises the fundamental human right of those who experience violence is needed. In addition, some scholars suggest that given the close parallel between DV and terrorism, there is a potential to use or interpret the provision of HR law in cases of DV. 21 Calling upon international HR law has the advantage of not only removing the analysis from the private sphere, but also of overriding cultural rationalisations of DV. 22 Finally, DV as an HR issue under international law reminds individuals that the state is responsible for ensuring the protection of its members. To tackle DV, the consideration of HR law is promising in terms of rethinking long-term solutions that encourage bystander action and responsibility. Although the reality of implementation may be complex, at the very least HR law is a means to frame family violence away from the private/public dichotomy, and to allow members of society to redefine DV. 23 As long as social representations of violence are linked to privacy the observing community is unlikely to respond.

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__________________________________________________________________ This paper suggests an alternative model that emphasises the ‘public’ dimension of DV. The application of an international HR framework to ensure protection against domestic and family violence may constitute a new avenue for greater intervention in nations and families. 5. Conclusion Bystanders are the social spectators in many DV events. Their response is more likely to affect the situation in a helpful rather than a negative way. If we are to take the battle against DV seriously and encourage community involvement in the social protection of other members, it is imperative that DV remains public. The value of the notion of privacy in promoting third party involvement has been contested. None of the conceptions of privacy can encourage third party commitment to holding perpetrators accountable. However, the public/private dichotomy still pervades and regulates social responses. In view of this, this article proposes the human rights approach as an alternative framework that may encourage public involvement in the battle against domestic violence.

Notes 1

D. Coker, ‘Race, Poverty, and the Crime-Centered Response to Domestic Violence’, Violence against Women, Vol. 10, 2004, pp. 1331-1353. 2 L. Mills, Insult to Injury: Rethinking our Responses to Intimate Abuse, Princeton University Press, Princeton, NJ, 2003. 3 A. West and M. Wandrei, ‘Intimate Partner Violence: A Model for Predicting Interventions by Informal Helpers’, Journal of Interpersonal Violence, Vol. 17, 2009, pp. 972-986. 4 S. Walby and J. Allen, Domestic Violence, Sexual Assault and Stalking: Findings from the British Crime Survey, Home Office Research Study 276. Home Office, London, 2004. 5 West and Wandrei, pp. 972-986. 6 T. Hart and T. Miethe, ‘Exploring Bystander Presence and Intervention in Nonfatal Violence Victimization: When Does Helping Really Help?’, Violence and Victims, Vol. 23, 2008, pp. 637-651. 7 B. Latane and J. Darley, The Unresponsive Bystander: Why Doesn’t He Help?, Meredith, New York, 1970. M. Laner, M. Benin, N. Ventrone, ‘Bystander Attitudes Toward Victims of Violence: Who’s Worth Helping?’, Deviant Behavior, Vol. 22, 2001, pp. 23-42. 8 C. Batson, ‘Altruism and Prosocial Behaviour’, in The Handbook of Social Psychology, Vol. 2, D. T. Gilbert, S. T. Fiske, G. Lindzey (eds), McGraw-Hill, New York, 1998, pp. 282-316. M. Davis, Empathy: A Social Psychological Approach, Brown & Benchmark, Madison, 1994. M. Levine and S. Crowther, ‘The

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__________________________________________________________________ Responsive Bystander: How Social Group Membership and Group Size Can Encourage as well as Inhibit Bystander Intervention’, Journal of Personality and Social Psychology, Vol. 95, 2008, pp. 1429-1439. 9 L. McKie, Families, Violence and Social Change, Open University Press, Milton Keynes, 2005. 10 Laner, Benin, Ventrone, op. cit., pp. 23-42. 11 Hart and Miethe, pp. 637-651. 12 Ibid. 13 L. Mills, Violent Partners: A Breakthrough Plan for Ending the Cycle of Abuse, Basic Books, New York, NY, 2008. 14 A. Allen, Uneasy Access, Rowman & Littlefield, Totowa, NJ, 1998. 15 E. Schneider, ‘The Violence of Privacy’, in The Public Nature of Private Violence: The Discovery of Domestic Abuse, M. Fineman and R. Mykitiuk (eds), Routledge, New York, 1994, pp. 36-58. 16 Mills, Violent Partners, op.cit. 17 E. Stark, ‘Reconsidering State Intervention in Domestic Violence Cases’, Social Policy & Society, Vol. 5, 2005, pp. 149-159. 18 V. Frye, ‘The Informal Social Control of Intimate Partner Violence against Women’, Journal of Community Psychology, Vol. 35, 2007, pp. 1001-1018. 19 R. Levesque, Culture and Family Violence: Fostering Change through Human Rights Law, American Psychological Association, Washington, DC, 2001. 20 Ibid. 21 M. Beasley and D. Thomas, ‘Domestic Violence as a Human Rights Issue’, in The Public Nature of Private Violence: The Discovery of Domestic Abuse, M. Fineman and R. Mykitiuk (eds), Routledge, New York, 1994, pp. 323-346. 22 Levesque, op.cit. 23 K. Morgaine, ‘Domestic Violence and Human Rights: Local Challenges to a Universal Framework’, Journal of Sociology & Social Welfare, Vol. 33, 2006, pp. 109-129.

Bibliography Allen, A. L., Uneasy Access: Privacy for Women in a Free Society. Rowman & Littlefield, Totowa, NJ, 1998. Banyard, V. L., Moynihan, M. M., Walsh, W. A., Cohn, E. S., Ward, S., ‘Friends of Survivors: The Community Impact of Unwanted Sexual Experiences’. Journal of Interpersonal Violence, Vol. 25, 2010, pp. 242-256.

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__________________________________________________________________ Batson, C. D., ‘Altruism and Prosocial Behaviour’, in The Handbook of Social Psychology. Vol. 2, D. T. Gilbert, S. T. Fiske, G. Lindzey (eds), McGraw-Hill, New York, 1998, pp. 282-316. Beasley, M. E. and Thomas, D. Q., ‘Domestic Violence as a Human Rights Issue’, in The Public Nature of Private Violence: The Discovery of Domestic Abuse. M. A. Fineman and R. Mykitiuk (eds), Routledge, New York, 1994, pp. 323-346. Coker, D., ‘Race, Poverty, and the Crime-Centered Response to Domestic Violence’. Violence against Women, Vol. 10, 2004, pp. 1331-1353. Davis, M. H., Empathy: A Social Psychological Approach. Brown & Benchmark, Madison, 1994. Hart, T. C. and Miethe, T. D., ‘Exploring Bystander Presence and Intervention in Nonfatal Violence Victimization: When Does Helping Really Help?’. Violence and Victims, Vol. 23, 2008, pp. 637-651. Frye, V., ‘The Informal Social Control of Intimate Partner Violence against Women’. Journal of Community Psychology, Vol. 35, 2007, pp. 1001-1018. Laner, M. R., Benin, M. H., Ventrone, N. A., ‘Bystander Attitudes toward Victims of Violence: Who’s Worth Helping?’. Deviant Behavior, Vol. 22, 2001, pp. 23-42. Latane, B. and Darley, J. M., The Unresponsive Bystander: Why Doesn’t He Help?. Meredith, New York, 1970. Levine, M. and Crowther, S., ‘The Responsive Bystander: How Social Group Membership and Group Size Can Encourage as well as Inhibit Bystander Intervention’. Journal of Personality and Social Psychology, Vol. 95, 2008, pp. 1429-1439. Levesque, R. J. R., Culture and Family Violence: Fostering Change through Human Rights Law. American Psychological Association, Washington, DC, 2001. McKie, L., Families, Violence and Social Change. Open University Press, Milton Keynes, 2005. Mills, L. G., Insult to Injury: Rethinking our Responses to Intimate Abuse. Princeton University Press, Princeton, NJ, 2003.

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__________________________________________________________________ Mills, L. G., Violent Partners: A Breakthrough Plan for Ending the Cycle of Abuse. Basic Books, New York, NY, 2008. Morgaine, K., ‘Domestic Violence and Human Rights: Local Challenges to a Universal Framework’. Journal of Sociology & Social Welfare, Vol. 33, 2006, pp. 109-129. Moore, C., ‘Women and Domestic Violence: The Public/Private Dichotomy in International Law’. International Journal of Human Rights, Vol. 7, 2003, pp. 93128. Rambo, K. S., Trivial Complaints: The Role of Privacy in Domestic Violence Law and Activism in the US. Columbia University Press, New York, 2009. Schneider, E. M., ‘The Violence of Privacy’, in The Public Nature of Private Violence: The Discovery of Domestic Abuse. M. A. Fineman and R. Mykitiuk (eds), Routledge, New York, 1994, pp. 36-58. Stark, E., ‘Reconsidering State Intervention in Domestic Violence Cases’. Social Policy & Society, Vol. 5, 2005, pp. 149-159. Walby, S. and Allen, J., Domestic Violence, Sexual Assault and Stalking: Findings from the British Crime Survey. Home Office Research Study 276, Home Office, London, 2004. West, A., and Wandrei, M. L., ‘Intimate Partner Violence: A Model for Predicting Interventions by Informal Helpers’. Journal of Interpersonal Violence, Vol. 17, 2009, pp. 972-986. Victoria Gutierrez is a Work-Based Fellow and Senior lecturer in Psychology at Thames Valley University, London, United Kingdom.

Part 2 Domestic Violence in India: Responses and Strategies

Protection of Women from Domestic Violence Act, 2005 Miracle Legislation or Façade? Divya Shenoy Abstract Widespread political and academic discourse has led to the dissemination of information and ideas regarding domestic violence across the globe, resulting in the adoption of similar legislative tools by different countries in order to tackle it. Domestic violence is a universal problem since it is an expression of patriarchy. However, local socio-economic factors play a significant role in determining the nuances that define it in a given state. The appropriate tools must therefore be accordingly shaped. In India, the remedies under the PWDVA have largely been adopted from similar laws in other jurisdictions. However, it has been reinvented in several ways in order to grasp the concerns and peculiarities of Indian society such as dowry deaths. For instance, the Act defines domestic violence in a wide manner so that issues like marital rape - yet to be recognised as a penal offence under Indian law - can be dealt with. Quasi civil-criminal remedies enable several different interest groups such as girl children and live-in couples to obtain effective remedies that circumvent societal compulsions. This paper will evaluate these innovative legislative tools adopted under the PWDVA within a theoretical and practical framework. The hypothesis put forth by the researcher is that although the legislative policy underlining the PWDVA is adequately designed to suit the local socio-economic conditions of the Indian society, the societal perception as regards its significance must undergo a significant change before we can successfully tackle domestic violence as a crime against the society and state. Key Words: Domestic violence, protection orders, human rights approach, bystander intervention, India. ***** In India, statistics show that two out of every three married women are subject to some form of domestic violence. 1 Activists have recognised the importance of legal reform as a tool to hold the state responsible for the welfare of victims of domestic violence 2 which eventually led to the enactment of the Protection of Women from Domestic Violence Act, 2005 (hereinafter ‘PWDVA‘). The remedies under the PWDVA have largely been adopted from similar laws in other jurisdictions. 3 However, as elsewhere, local socio-economic factors play a significant role in shaping the legislative policy to address this issue. This paper, thus, seeks to examine how the Indian legislation has been reinvented in order to grasp the concerns and peculiarities of Indian society and analyse the effectiveness of these remedies and the access to justice available to these victims.

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__________________________________________________________________ 1. Aims of the PWDVA: Survey of Legislative Remedies The primary problem that the PWDVA tackled was the lack of a comprehensive definition of ‘domestic violence’ that includes not only matrimonial relationships but also other domestic relationships such as by consanguinity or through a relationship in the nature of marriage, adoption or family members living together as a joint family. 4 This broad definition allows for the recognition of violence within live-in relationships, 5 which is a progressive step within the predominantly orthodox Indian society. Moreover, it also includes a broad definition of violence including emotional, psychological and economic abuse, apart from the traditional understanding of domestic violence as only physical violence. 6 Significantly, the legislation also laid down the basis of state intervention within domestic - private sphere of the home by recognising domestic violence as a human rights violation and upholding the right of women to a violence-free relationship and access to the shared household. 7 The pre-existing civil and criminal remedies provided victims with several procedural and infrastructural hurdles in accessing justice. 8 Moreover, these remedies were oblivious to the peculiar needs of women in a domestic fiduciary relationship. 9 For instance, a major barrier faced by victims who sought remedies under the civil legislations was the inaccessibility of the court in remote rural areas. 10 Moreover, civil litigation suits would translate into high costs for the victim in the form of lawyer fees, court fees and endless delay. 11 On the other hand, if the victim sought criminal remedies, she would be encouraged to reconcile and tolerate the abuse since the authorities would be reluctant to interfere in the private matters of spouses. 12 Often, the prosecutor would refuse to proceed with the case or the police would drop charges. 13 Moreover, once a complaint is filed, the victim loses control over the outcome of the trial, which can prove to be to the detriment of the victim as they result in the imprisonment of the accused. Therefore, there existed no effective remedy for women who sought to immediately put a stop to the violence inflicted, without necessarily imposing punishment upon the offender. 14 Victims tolerate domestic violence due to several economic and sociological reasons. 15 Marriage is an important factor that defines the identity of woman in the Indian society. 16 The victim is often dependent upon the abuser for economic support and shelter due to lack of livelihood opportunities. 17 Moreover, in cases where they have children with the offender, attachment to the children and fear of losing custody motivates them to endure the constant abuse. 18 In such a scenario, imprisonment of the offender does not prove to be a lucrative option. Surveys show that victims do not seek to incriminate the offenders but just seek a route so as to ensure that the violence stops. 19 It may be that victims do not want their partners to carry the stigma of a conviction, with associated detriments. Victims seeking criminal remedies have observed that imprisonment leaves the marriage in an irreconcilable state, thereby ending up in divorce. 20 Hence, a strong need was felt

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__________________________________________________________________ for a remedy that would provide the victim with immediate and effective protection from the offender, but would still be conducive to reconcile the relationship between the victim and the accused. 21 Therefore, the PWDVA, in recognition of these rights, laid down the following remedies. The most radical remedy provided was the mechanism of protection orders, 22 which is a hybrid quasi-civil, quasi-criminal mechanism. This mechanism is such that where in the first instance a complaint is filed by the woman of a man perpetrating violence against her, the magistrate can pass an ex parte interim order on prima facie evidence ordering him to stop violence against her. 23 The magistrate has the discretion to shape this order in the most effective way that can vary on a case to case basis in order to provide the woman with the most effective remedy to put an end to the violence she is suffering. 24 For instance, provincial High Courts have shaped Protection orders in very innovative manners such as restraining the offender from throwing waste in the victim’s part of the house or spreading scandals about the victim, etc. 25 Such a protection order acts as a personalised criminal code for the accused so as to deter him from committing the acts prohibited by the protection order upon threat of instant penal action against him. Other remedies that the PWDVA provides for are the provision of residence orders26 which ensure that the woman is not disposed of her right to reside in the shared household to the extent that the perpetrator and his family may be disposed of the house or part of it and custody, compensation 27 and monetary orders which protect the victim’s rights and interests adequately and allow her to examine her options and further actions in an atmosphere of empowerment without having to consider external conditions such as economic stability and children’s welfare. Thus it is seen that the remedies provided by the PWDVA are adequately adopted to suit the needs of a victim of domestic violence in India as it gives her the option of living a violence-free life in the shared or matrimonial household along with adequate protection from exploitation. 2. Practical Implications: A Survey of Legislative Tools The unique aspect of the PWDVA is that by declaring domestic violence as a human rights violation it makes domestic violence a crime against the society and thereby puts the onus of protection of the victim upon the state. 28 Thus, the legislation also provides for several mechanisms whereby the State is directed to provide logistical support to ensure the effective implementation of the legislation and, therefore, effective use of the remedies there under. The Act allows the victim several avenues to approach the justice system through the police, protection officers, service providers, or directly though the magistrate. 29 A Protection Officer works under the supervision of the court and is vested with the responsibility of facilitating an aggrieved woman’s access to the court and assisting the court in discharging its functions. 30 Moreover, they are required to be trained and sensitised in dealing with victims of domestic violence. 31

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Protection of Women from Domestic Violence Act, 2005

__________________________________________________________________ Another very significant addition in this statute is the onus put upon the Government to undertake widespread media campaigns to bring about awareness about the Act and its ramifications. 32 It is seen that the PWDVA is a progressive legislation that provides for creative remedies to tackle domestic violence in India along with providing elaborate mechanisms to ensure greater access to justice for the victims. However, although this legislation was passed over five years ago, concrete results of the same are yet to be seen. Nation-wide studies show that there exist several problems in the implementation policy, which have crippled the progress envisaged by this legislation. 33 A. Protection Officers It is seen that in most states although over the past few years there has been a steady increase in the number of POs appointed, 34 the standard of training or the level of qualifications possessed has steadily been inadequate. 35 Moreover, they are assigned this post alongside their full-time jobs thereby overburdening them to an extent that makes it impossible to provide effective protection and aid to the victim. 36 B. Medical facilities and shelters as well as legal aid facilities Although some states have taken the initiative to set up facilities that are exclusively for victims of domestic violence, in other states only the pre-existing state medical facilities and legal aid services are being doled out to the victims.37 C. Creation of public awareness Significantly, a recent, innovative ad campaign run by the public-private initiative called the bell bajao campaign seems to have been reasonably successful in creating awareness and promoting bystander intervention. 38 It is a mechanism by which the public is encouraged to create a social stigma against the perpetrator of domestic violence. 3. Conclusion The PWDVA appears to be a truly remarkable legislative endeavour to tackle the growing concern of domestic violence in the Indian society and is suitably designed to address the specific concerns viewed in domestic violence as a concern. The recognition of domestic violence as a human rights violation is backed up with remedies and infrastructural provisions which put the onus upon the state to protect and uphold the rights of these women. The legislation also aims to empower the woman in a manner that allows her to decide upon a course of action in an atmosphere that is devoid of the several externalities that would otherwise influence her decision such as economic and social security, children’s welfare, etc. However, this is possible only where the state can provide adequate facilities and infrastructure that will create an alternative for the woman that is better than her situation at home. In this scenario it is seen that a lot needs to be done in India to achieve such a state of being.

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__________________________________________________________________

Notes 1

Press Trust of India, ‘Two-Third Married Indian Women Victims of Domestic Violence: UN Report’, The Indian Express, October 13th, 2005, . 2 S. V. Ghosh, ‘Contextualising Domestic Violence: Family, Community, State’, in Behind Closed Doors: Domestic Violence in India, R. Bhattacharya (ed), Sage Publications, New Delhi, 2004, p. 51. 3 S. Ramaiah, ‘Towards a Civil Law on Domestic Violence’, in Domestic Violence and the Law: Report of Colloquium on Justice for Women-Empowerment Through Law, I. Jaising (ed), Butterworths, New Delhi, 1999, p. 85. 4 S. 2 PWDVA, 2005. 5 S. 2(f) PWDVA, 2005. 6 S. 3, Explanation I, PWDVA, 2005. 7 F. Agnes, ‘Domestic Violence Act: A Portal of Hope’, in Combat Law, viewed on 1st January, 2010, . 8 M. Kishwar, ‘Experiences of the Women’s Movement in Dealing with Violence against Women’, in Domestic Violence and the Law: Report of Colloquium on Justice for Women-Empowerment Through Law, I. Jaising (ed), Butterworths, New Delhi, 1999, p. 84. 9 P. Vyas, ‘Reconceptualizing Domestic Violence in India: Economic Abuse and the Need for Broad Statutory Interpretation to Promote Women’s Fundamental Rights’, Mich. Journal of Gender & Law, Vol. 13, 2006, pp. 176-199. 10 F. Agnes, ‘How to Implement the Domestic Violence Act’, in The Asianage, 19th September, 2005, viewed on 1st January, 2010, . 11 P. Bhave, ‘Assisting the Victims of Domestic Violence’, in Domestic Violence and the Law: Report of Colloquium on Justice for Women-Empowerment Through Law, I. Jaising (ed), Butterworths, New Delhi, 1999, p. 75. 12 K. Shrivastav, ‘Engaging the State and Activating the Criminal Justice System in Issues of Violence against Women’, in Domestic Violence and the Law: Report of Colloquium on Justice for Women-Empowerment Through Law, I. Jaising (ed), Butterworths, New Delhi, 1999, p. 96. 13 Ibid., p. 96. 14 Ghosh, p. 53. 15 Bhave, p. 77. 16 Ibid., p. 77. 17 Kishwar, p. 88.

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__________________________________________________________________ 18

K. Aggarwal, ‘Towards a Civil Law on Domestic Violence’, in Domestic Violence and the Law: Report of Colloquium on Justice for Women-Empowerment Through Law, I. Jaising (ed), Butterworths, New Delhi, 1999. 19 ICRW Report, ‘Domestic Violence in India, A Summary Report of Three Studies’, . 20 Bhave, p. 78. 21 M. Daruwala, ‘Domestic Violence Coordinate Responses’, in Domestic Violence and the Law: Report of Colloquium on Justice for Women-Empowerment Through Law, I. Jaising (ed), Butterworths, New Delhi, 1999, p. 104. 22 S. 18, PWDVA. 23 S. 23, PWDVA. 24 S. 18(g), PWDVA. 25 Rule 8, Rules under the PWDVA. 26 S. 19, PWDVA. 27 Ss. 20 and 22, PWDVA. 28 M. Kishwar, ‘Well Intentioned, but Over Ambititious’, Manushi, Vol. 156, 2006, p. 16. 29 S. 5, PWDVA. 30 S. 9, PWDVA. 31 S. 8(2), PWDVA. 32 S. 11(a), PWDVA. 33 Lawyers’ Collective, Staying Alive: First Monitoring and Evaluation Report 2007 on the Protection of Women from Domestic Violence Act, 2007, Lawyers’ Collective, viewed on 24th January, 2010, . 34 ‘Letter Seeking Protection Officers Converted into PIL’, Express India, 9th February, 2008, . 35 S. Sen and S. Ambast, ‘The Domestic Violence Act, 2005: A New Direction’, Indlaw, 11th November, 2008, . 36 Lawyers’ Collective, Staying Alive: Second Monitoring and Evaluation Report 2007 on the Protection of Women from Domestic Violence Act, 2008, Lawyer’s Collective, viewed on 24th January, 2010, . 37 Ibid. 38 P. Ramakrishnan, ‘Ring the Bell, Stop Domestic Violence’, DNA, 29th August, 2008, .

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Bibliography Aggarwal, K., ‘Towards a Civil Law on Domestic Violence’, in Domestic Violence and the Law: Report of Colloquium on Justice for Women-Empowerment Through Law. I. Jaising (ed), Butterworths, New Delhi, 1999. Agnes, F., ‘How to Implement the Domestic Violence Act’, in The Asianage. 19th September, 2005, viewed on 1st January, 2010, . Agnes, F., ‘Domestic Violence Act: A Portal of Hope’, in Combat Law. Viewed on 1st January, 2010, . Bhave, P., ‘Assisting the Victims of Domestic Violence’, in Domestic Violence and the Law: Report of Colloquium on Justice for Women-Empowerment Through Law. I. Jaising (ed), Butterworths, New Delhi, 1999. Daruwala, M,. ‘Domestic Violence Coordinate Responses’, in Domestic Violence and the Law: Report of Colloquium on Justice for Women-Empowerment Through Law. I. Jaising (ed), Butterworths, New Delhi, 1999. Ghosh, S. V., ‘Contextualising Domestic Violence: Family, Community, State’, in Behind Closed Doors: Domestic Violence in India. R. Bhattacharya (ed), Sage Publications, New Delhi, 2004. Kishwar, M., ‘Well Intentioned, but Over Ambititious’. Manushi, Vol. 156, 2006, p. 16. —––, ‘Experiences of the Women’s Movement in Dealing with Violence against Women’, in Domestic Violence and the Law: Report of Colloquium on Justice for Women-Empowerment Through Law. I. Jaising (ed), Butterworths, New Delhi, 1999. Kishwar, M., ‘Violence Against Women: Good Practices in Combating and Eliminating Violence Against Women’. Manushi, Vol. 145, January, 2005.

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Lawyers’ Collective, Staying Alive: First Monitoring and Evaluation Report 2007 on the Protection of Women from Domestic Violence Act, 2007. Lawyers’ Collective, viewed on 24th January, 2010, . ‘Letter Seeking Protection Officers Converted into PIL’. Express India, 9th February, 2008, . Press Trust of India, ‘Two-Third Married Indian Women Victims of Domestic Violence: UN Report’. The Indian Express, October 13th, 2005, . Ramaiah, S., ‘Towards a Civil Law on Domestic Violence’, in Domestic Violence and the Law: Report of Colloquium on Justice for Women-Empowerment Through Law. I. Jaising, (ed), Butterworths, New Delhi, 1999. Ramakrishnan, P., ‘Ring the Bell, Stop Domestic Violence’. DNA, 29th August, 2008, . Sen, S. and Ambast, S., ‘The Domestic Violence Act, 2005: A New Direction’. Indlaw, 11th November, 2008, . Shrivastav, K., ‘Engaging the State and Activating the Criminal Justice System in Issues of Violence against Women’, in Domestic Violence and the Law: Report of Colloquium on Justice for Women-Empowerment Through Law. I. Jaising (ed), Butterworths, New Delhi, 1999. Vyas, P., ‘Reconceptualizing Domestic Violence in India: Economic Abuse and the Need for Broad Statutory Interpretation to Promote Women’s Fundamental Rights’. Mich. Journal of Gender & Law, Vol. 13, 2006, pp. 176-199. Divya Shenoy is an Undergraduate Law Student at National Law School of India University, Bangalore.

Studying Domestic Violence in the Indian Context: Moving away from Gilead? Megha Kaladharan Abstract One would find shocking similarities between Atwood’s Gileadean society and the present day Indian society where violence and subservience have become a part of women’s lives. This paper seeks to answer whether despite the fruition of efforts resulting in greater rights for women, Indian society is really moving away from Gilead. Firstly, the nature of domestic violence will be examined and the causal factors will be identified. Other issues that will be looked at include: (a) Why do some Indian states have significantly lower cases of violence against women as compared to others? (b) Why is violence perpetrated by persons who are in an intimate relationship with the victim? (c) Why did it take India these many years to legislate on domestic violence despite ratifying Conventions including CEDAW and the CRC? In furtherance of the analysis aimed for, an understanding of the social realities of India and the identity of the Indian woman are important. However, this assessment is not peculiar to the India but to patriarchy itself. Prior to the Protection of Women Against Domestic Violence Act, 2005 (hereinafter the PWDVA), India had provisions criminalising dowry and cruelty which have failed. How will the PWDVA, with its liberal scope, attack the problem of domestic violence? In a country where marital rape is still not criminalised and draconian provisions such as restitution of conjugal rights exist, it would be difficult to effectively implement a legislation for women without a change in attitude of the society, legislators and the legal community. Unless an attempt is made to even out power relationships between men and women and re-think stereotypical gender roles, we cannot even begin to understand why domestic violence happens and what would be the best response to it. Key Words: Domestic violence, India, women, marital rape, conjugal rights, patriarchy, cruelty, dowry, legal reform. ***** 1. Introduction Atwood’s Handmaid’s Tale painted a disturbing picture of Gilead, a society where women have no identities and are merely vessels for bringing in new generations. In this society, control and submission are unquestioned facts of women’s existence. The striking similarity between the Indian society and Gilead is terrifying. In India, matrimonial families burn brides, kill for dowry and inflict physical violence against women. Despite the enactment of legislations such as the Dowry Prohibition Act and the recent PWDVA, domestic violence continues

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__________________________________________________________________ unabated. This paper aims to study domestic violence in India and the legal regime governing it. 2. Section I: A Historical Perspective - Constructing the ‘Indian Woman’ Feminist scholar Jan Pettman notes interestingly how the state is usually gendered male and the nation gendered female. Thus, while women are commonly seen as symbolising the nation, men are projected as its main agents and after the achievement of statehood, emerge as major beneficiaries. 1 These observations are pertinent to India, not only historically but even today. The British used the Indian woman as a symbol of the tyrannical nature of the cultural tradition of the country. Thus, when Indian nationalism took up the ‘woman question’ it was not really a question of Indian women but a question of tradition. 2 The running theme of the National Movement was to claim spiritual superiority over the West. Simultaneously, the superior technology and statecraft of the West was aspired to. 3 Reformers, usually urban males, encouraged women’s education but for the wrong reasons; they saw it as a means to preserve the patriarchal family by producing better wives and mothers. As Partha Chatterjee observes, there was ‘selective appropriation’ of Western modernity. 4 Captain Lakshmi Sahgal of the women’s regiment of the Indian National Army interestingly remarks, ‘We almost had no time to think of such things as feminism.’ This sentence sums up what most of movements involving women stood for. Women wrongly assumed that a free India would offer them the same status as the men and therefore, saw no need to bring up the woman question within the nationalist struggle. Indian women are still carrying the burden they carried during the National Movement. Even though women today have much more freedom compared to their 19th and early 20th century counterparts, they still are expected to prioritise domestic life over their professional or personal interests. They are still ‘possessions’ of their family as their personal will is often overlooked. The employed woman’s income is still seen as supplementing her husband’s income, without altering their power dynamics and the role of the man as the breadwinner. 3. Section II: Trends in Domestic Violence and Indicators of Female Autonomy The term domestic violence is generally understood as violence perpetrated by the male partner. However, it may also be used to refer to violence perpetrated by any member of the household towards women. 5 According to the UNPF report, as many as 70% of married Indian women between the age of 15 and 49 are victims of beating, rape or coerced sex. In Punjab, every third household acknowledged ‘wife beating’ in 2000. Yet another North Indian state, Uttar Pradesh accounted for over 31% of dowry deaths and 12.3% of cases of cruelty by husbands and family members recorded in the

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__________________________________________________________________ country. 6 These shocking statistics reveal that the level of domestic violence is higher in northern India than in southern India. The above-mentioned trend can be accounted to some extent by the cultural diversity across regions in India. For example, in North India, the bride and groom should not be blood relatives and must belong to different villages. Once the bride marries and moves to her husband’s village, her contact with her natal village and family reduces considerably. The new bride has no social power within her matrimonial family but subsequently, she gains it by the birth of sons. 7 The infrequent contact with the natal family makes the new bride susceptible to domestic violence. On the contrary, in South India, cross-cousin marriage is an accepted norm. Often the bride and groom are from the same village. The mother-in-law is the bride’s aunt; the family of marriage provides a familiar environment. Thus, contact with the natal kin is maintained and as a result the young wife is trusted more quickly. Studies have shown that the presence of members of the natal family within the marital household is associated with greater autonomy and lower rates of domestic violence. 8 The few recent studies regarding domestic violence in Eastern India have shown that the level of domestic violence is higher than the rest of India. A study found that the overall prevalence of physical, psychological, sexual violence during the life time among Eastern Indian women were 16%, 52%, 25% respectively. Further, the study revealed that in Eastern India, domestic violence is persisting considerably across all socio-economic strata. The prevalence of violence decreased with the increase of women's education and family income. 9 Slum-dwelling women often endure extremely high levels of violence in their daily lives in the family, community, work place and public place. A major causal factor making women vulnerable to domestic violence is their husbands’ addiction to cheap locally brewed liquor (arrack) towards which the meagre wages that the women earn are spent. The government has taken no steps to check this evil and is hand in glove with this crime by issuing licenses for cheap liquor shops in and around slums to generate high revenues. 10 In the face of this apathy, the solution lies in the economic empowerment of poor women. According to a research conducted in the South Indian state of Kerala, a woman’s risk of physical violence from her husband is dramatically less if she owns land or a house; the incidence is 49% among women without property, but 18% among landowning women, and 7% if they own both land and house. 11 This shows the inverse link between a woman’s economic independence and the level of domestic violence. Further, employed women will have greater autonomy in deciding expenditure and will also be able to afford better health care for the family. Manisha Sengupta’s and Nan E. Johnson’s study tested Caldwell’s thesis which had concluded that -

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Studying Domestic Violence in the Indian Context

__________________________________________________________________ 1) Indian daughters-in-law have less autonomy if they live with their mothers-in-law; but 2) even then, they can gain situational advantage over her if they are educationally superior to her. Sengupta and Johnson identified the following three dimensions to measure women’s autonomy: women’s freedom to 1) make decisions about their own health care; 2) set aside money for their own discretionary spending; and 3) travel outside the home without a chaperone. The study utilised data from the second National Family Health Survey conducted in India in 1989-1999 which surveyed 21,505 women. The results of the survey showed that, contrary to Caldwell’s thesis, the hardest form of female autonomy to achieve i.e. the ability to leave the home for the marketplace without permission, is not attained by junior wives despite a higher level of education than their mothers-in-law. 12 These results show that education cannot singularly emancipate women from domination by senior family members. More than education, employment of a daughter-in-law had a major impact on all dimensions of her autonomy. Thus, programmes which encourage women to take up gainful employment will go a long way in alleviating their familial status and lowering the incidence of domestic violence. 13 An earning woman will enjoy a higher level of autonomy. Patriarchy is often cited as one of the major causes of domestic violence. This is true to a large extent but this problem occurs in homosexual relationships and some heterosexual women do physically abuse their male partners. For example a study of lesbian relationships by Claire Renzetti (1992) showed that psychological abuse was prevalent in all of the violent relationships that were studied. The study showed that jealousy, power and control were major sources of conflict. Abusive partners were threatened by their partners’ efforts to establish independent friendships and activities. 14 This shows that though patriarchy may be one of the contributing causal factors of domestic violence, it cannot explain the occurrence of violence in relationships where women are absent or are the perpetrators of violence. 15 Thus, factors beyond patriarchy need to be accounted for to gain a holistic view of domestic violence. 4. Section III: Legal Regime Governing Crimes against Women Section 498-A of the Indian Penal Code (‘IPC’) criminalises acts of cruelty towards a married woman by her husband and his relatives. The legislation of this provision in 1983 recognised non-dowry related violence and mental cruelty, thereby expanding the scope of violence. However, the conviction rates under this section are very low 16 because the police and judiciary do not recognise many cases of ‘mental cruelty’ and term non-physical abuses as trivial and sometimes even false.

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__________________________________________________________________ Section 304-B of the IPC makes ‘dowry-death’ an offence punishable with imprisonment which may extend from seven years to life imprisonment. In the recent years, the judiciary has been increasingly hesitant in applying this provision because of an unproven fear of its misuse against elderly in-laws. This completely defeats the rationale behind the enactment of this provision as it came into existence because the harassment and murder of women was often being initiated and perpetrated by the family of the husband. Subsequently, a more specific Dowry Prohibition Act, 1961 was enacted which penalised the giving and taking of dowry but the same problems continue to plague this legislation. 17 An archaic provision that continues to be used against women is the restitution of conjugal rights. A woman, who wishes to stay apart from her husband can be ordered by court to provide companionship to her spouse. This situation can be particularly dangerous and demeaning when she is a victim of domestic violence, making her vulnerable to marital rape. Section 376(A) is the only clause under the IPC that specifically deals with marital rape, but only with regard to judicially separated partners. In India, marital rape is still not considered as being on the same footing as rape by a person other than the husband. Sexual violence in particular is pervasive, even commonplace, and is a key instrument for the suppression of women. India recognised marital rape as an offence in 2006 for the first time when the PWDVA was implemented and the IPC broadened to the scope of spousal cruelty by including emotional, verbal and economic abuse. 18 There is no reason why rape perpetrated by the husband amounts only to domestic violence and not rape. There is a need to adopt a victim-centric approach instead of classifying rape under different heads and employing different punishment for each category. 5. Conclusion Despite being one of the early signatories to the CEDAW, it was only in 2005 that India enacted a specific legislation dealing with domestic violence against women. This is largely due to the political ennui and the presumption that domestic violence is a private wrong that takes place in the home. This position has changed with the enactment of the PWDVA. Though the criminal justice approach is important inasmuch as it sees domestic violence as a crime against the state, there is a need to shift the focus to the victim whose rights are being violated. The radical provisions of the PWDVA not only punish the perpetrator of the crime but also provide reliefs such as a safe residence, medical costs and a share in the husband’s earnings. The need of the hour is a potent enforcement of the PWDVA and a change in mindsets of law enforcers and the judiciary. There is a need to understand the nature of domestic violence. Ascribing the patriarchal society and male control as

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__________________________________________________________________ the only causes of domestic violence would lead to confining dialogue, ignoring important issues. As enunciated through the course of this paper, traditionally accepted causes such as poverty and patriarchy alone cannot explain domestic violence. The reason why many women continue to stay in abusive relationships is often because of their socioeconomic dependence on partnerships. Unless these socioeconomic factors are understood by judges and law enforcers, the PWDVA despite its noble objective will become a dead letter.

Notes 1

R. Wilford, ‘Women, Ethnicity and Nationalism: Surveying the Ground’, in Women, Ethnicity and Nationalism: The Politics of Transition, R. Wilford and R. Miller (eds), Routledge, London, 1998, p. 1. 2 Ibid., p. 119. 3 Ibid., p. 121. 4 Ibid., p. 120. 5 S. Burge, ‘How Do You Define Abuse?’, Archives of Family Medicine, Vol. 7, 1998, pp. 31-32. 6 K. Santhanam, ‘Decrying Domestic Violence’, in The Hindu, April, 2002, viewed on 28th January, 2010, . 7 M. Sengupta and N. Johnson, ‘Does Educational Superiority Autonomize Daughters-in-Law Who Live with Their Mothers-in-Law in India? A Test of Caldwell’s Thesis’, in Center for Gender in Global Context, Michigan State University, Working Paper #285, March 2006, viewed on 18th January 2010, p. 1, . 8 S. Bloom et al., ‘Dimensions of Women’s Autonomy and the Influence on Maternal Health Care Utilization in a North Indian City’, Demography, Vol. 38, No. 1, February, 2001, p. 69. 9 B. Babu and K. Shantanu, ‘Domestic Violence against Women in Eastern India: A Population-Based Study on Prevalence and Related Issues’, in BMC Public Health, 2009, viewed on 18th January, 2010, . 10 K. Kannibaran (ed), ‘India: Second NGO Shadow Report on CEDAW’, November, 2006, viewed on 17th January, 2010, p. 16, . 11 B. Agarwal, ‘Landmark Step to Gender Equality’, in The Hindu, September 2005, viewed on 5th January, 2010,

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__________________________________________________________________ . 12 Kannibaran, p. 14. 13 Sengupta and Johnson, p. 15. 14 M. Johnson and K. J. Ferraro, ‘Research on Domestic Violence in the 1990s: Making Distinctions’, Journal of Marriage and Family, Vol. 62, No. 4, November, 2000, p. 951. 15 Ibid., p. 948. 16 Kannibaran, p. 112. 17 Ibid., p. 114. 18 Ibid., p. 16.

Bibliography Agarwal, B., ‘Landmark Step to Gender Equality’, in The Hindu. September 2005, viewed on 5th January, 2010, . Babu, B. and Shantanu K., ‘Domestic Violence against Women in Eastern India: A Population-Based Study on Prevalence and Related Issues’, in BMC Public Health. 2009, viewed on 18th January, 2010, . Bloom, S., Wypij D., Gupta, M. D., ‘Dimensions of Women’s Autonomy and the Influence on Maternal Health Care Utilization in a North Indian City’. Demography, Vol. 38, No. 1, February, 2001, pp. 67-78. Burge, S., ‘How Do You Define Abuse?’. Archives of Family Medicine, Vol. 7, 1998, pp. 31-32. Chatterjee, P., The Nation and its Fragments. Oxford University Press, Delhi, 1997. Jayawardena, K., Feminism and Nationalism in the Third World. Zed Books Limited., London, 1996. Johnson, M. P., and Ferraro K. J., ‘Research on Domestic Violence in the 1990s: Making Distinctions’. Journal of Marriage and Family, Vol. 62, No. 4, November, 2000, pp. 948-963.

28

Studying Domestic Violence in the Indian Context

__________________________________________________________________ Kannibaran, K. (ed), ‘India: Second NGO Shadow Report on CEDAW’. January, 2010, November 2006, viewed on 17th . Santhanam, K., ‘Decrying Domestic Violence’, in The Hindu. 22nd April, 2002, viewed on 28th January, 2010, . Sengupta, M. and Johnson N., ‘Does Educational Superiority Autonomize Daughters-in-Law Who Live with Their Mothers-in-Law in India? A Test of Caldwell’s Thesis’. Center for Gender in Global Context, Michigan State University, Working Paper #285, March 2006, viewed on 18th January, 2010, pp. 118, . Wilford, R., ‘Women, Ethnicity and Nationalism: Surveying the Ground’, in Women, Ethnicity and Nationalism: The Politics of Transition. R. Wilford and R. Miller (eds), Routledge, London, 1998. Megha Kaladharan is a third year B.A.LL.B (Hons.) student at the National Law School of India University, Bangalore, India. She is interested in women’s studies, trade and development and dispute resolution.

Peering into the Crystal Ball: The Future of the Protection of Women from Domestic Violence Act, 2005 Vatsala Sahay Abstract The PWDVA has received considerable attention in India on account of its perceived ‘radical’ nature. While it appears to be a panacea for all evils which Indian women are suffering from within their homes, apprehension exists that the radical nature of the PWDVA may in fact prove to be a serious impediment in its implementation given the largely conservative stance of the judiciary. The effectiveness of a statute can be assessed to some extent by the judicial response to it. This paper aims to analyse judicial pronouncements regarding domestic violence and related women’s rights issues as well as predict future trends regarding the same. On surveying present case law on the subject, one gets a somewhat ambiguous picture. While many judges have not hesitated to give full effect to the provisions of the Act, there have been decisions which have conservatively interpreted what are prima facie liberal provisions. There have been a significant number of judicial decisions which have challenged existing notions of patriarchy while looking at ‘the woman question’ and have delivered judgments which granted relief to women at a time when there were no legislations which provided any remedy. Yet, there have been judgments even today wherein archaic provisions like restitution of conjugal rights have been upheld. These are the kind of decisions that violate the Constitutional mandate to grant women equal rights and go on to reinforce the stereotypical notions of how an Indian woman should behave. Further, the judiciary has often chosen a policy of non-interference while dealing with cases relating to violence against women since they perceive such matters to be in the private domain. Given this background, the authors will be arguing that along with the PWDVA in place, what is needed is a radical change in the judicial mindset and recognition of the fact that ‘personal is political.’ Key Words: Domestic violence, women, India, judiciary, patriarchy, women’s rights, Indian Constitution, Indian judiciary, women’s laws, personal laws. ***** 1. Introduction Protesting against the Hindu Code Bill which introduced a degree of gender egalitarian measures in spheres of the family and marriage, a legislator from West Bengal claimed in 1949 that only “women of the lavender, lipstick and vanity bag variety” 1 wanted legal reform. In 2009, the former Chief Minister of the State of Haryana, India, dismissed in the Indian Parliament, as a ‘frivolous issue’ the case of Ruchika Girhotra. 2 Ruchika was a sixteen-year-old girl who was driven to

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__________________________________________________________________ suicide consequent to sexual harassment by a top ranking police official in the state of Haryana. These statements are a minor indicator of the unchanging attitude towards women in India. The hindrances blocking the march of women towards real emancipation are many - social, educational, constitutional. 3 In such a context the Protection of Women from Domestic Violence Act (hereinafter ‘PWDVA’), passed in 2005, can even run the risk of being considered as an aberration. The Act has been enforced by the various echelons of the Indian judiciary since it came into force in 2006. In my opinion, three years is too less a time to make a definite conclusion on the effectiveness of the Act. However, it is possible to make a reasonable prediction of how things will shape up. In this paper I will employ a technique used by lawyers - judicial precedent in cases under the PWDVA and other women related litigation for determining the trend of such cases. This will help determine whether Indian judges can in fact enforce the radical women oriented PWDVA. In the first segment of the paper, I will study the Indian judiciary’s approach to the PWDVA. Subsequently, the attitude of the Court in general cases involving women will be studied. Finally, I make my conclusion regarding the effectiveness of the PWDVA. 2. The Indian Judiciary and the PWDVA Laws can be effective only when met with good judicial enforcement. The PWDVA can be truly efficacious if judges adjudicate keeping in note that women are disproportionately affected by domestic violence due to their socio-historical position of inequality. 4 Fortunately, except for one or two freak judgments, the Act has been interpreted positively by the judiciary. In the case of Aruna Parmod Shah v Union of India5, the Delhi High Court of India upheld the Constitutionality of the Act, holding its gender specific nature to be a reasonable classification. In the case of Narinder Pal Kaur Chawla v Najeet Singh Chawla 6 the Act recognised the rights of a woman in a live-in relationship under the Act. Such a judicial pronouncement is in stark divergence with the earlier judicial view that a woman cannot claim maintenance after separating from her live-in partner. The statute, in light of its object and purpose, has also been held to have retrospective operation. 7 A disappointing judgment is the case of S.R. Batra v Taruna Batra. 8 In this case, a Supreme Court judge ruled that a shared household would only mean a house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The house in this case was not held to be ‘joint family property’ on the ground that its ownership was in the name of the mother-in-law. Also, as the husband had moved out of this house to another house, it was indicated in the judgment that only the latter house could be the shared household. I opine that the judgment is erroneous and in clear violation of the explicitly worded definition of ‘shared household’, under S. 2(s) of the Act.

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__________________________________________________________________ The section clearly states that neither the respondent nor the aggrieved person needs to have a right, title or interest in the house. Since they lived together in the house, even for a short period of time, the house did constitute a joint property even though it was in the name of the mother-in-law. 9 The judgment, result of adherence to a narrow, positivistic interpretation, is also ignorant of social reality. The practice of married couples staying in a house owned by the husband’s parents, either due to financial or cultural factors, is very common in India. 10 The Batra judgment, if followed, will have the effect of rendering many battered victims of domestic violence homeless. Victims will be deterred from taking recourse to the Act. With the exception of this judgment, however, the Indian judiciary has more or less taken the approach the PWDVA requires it to take for the extinguishment of domestic violence in India. Three years is, however, too little to make a definitive conclusion. I will now study the stance adopted by Indian courts in other cases involving women’s rights. 3. The ‘Good’ Judgments In the realm of rape cases, judicial decisions and legislative provisions have made a paradigm shift over the years. This can be attributed largely to the sustained campaigns by various women’s rights activists. Hence while there exist judicial pronouncements11 wherein sole testimony of the rape victim is only relied on because she fits into the patriarchal notion of how a woman should be - shy, docile and mild - there also exist judgments which have sought to change the trend. On one hand there was the infamous Mathura case, where two policemen accused of raping a sixteen-year-old tribal girl were acquitted by the Supreme Court because of absence of injuries on her person and because she was habituated to sex. 12 Subsequently though, there have been numerous judgments 13 where factors like history of past sexual activity, absence of injuries on the victim’s person and her behaviour in court have been ruled to be irrelevant in determining the conviction. Moving from the realm of criminal law to the realm of Constitutional law, there are provisions in the Indian Constitution which stress on ideal of gender equality. This includes Article 14, 14 stressing on equality of all, and Articles 15 and 16 which, inter alia, prohibit discrimination on the basis of sex. It is often the case, however, that rules in practice seem very different from what is suggested from their text. A formal notion of equality does not help the cause of women emancipation in any way. 15 Fortunately, the higher judiciary of India, constituting the Supreme Court of India and the High Courts, has played a very vital role in giving effect to the Constitution framers’ intentions and ensured equality of women. 16 4. The ‘Bad’ Judgments

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__________________________________________________________________ There have been decisions which are blatantly violative of basic rights of women. This is often either because the judge has turned a blind eye to the concept of women’s rights, or has let them be subsumed by archaic personal laws of the diverse communities of India or other patriarchal laws which label the issue in contention to be one too ‘domestic’ to intervene. 17 This has resulted in unfortunate judgments. The first provision which I highlight is Section 9 of the Hindu Marriage Act, 1956. This section provides for granting an application for restitution of conjugal rights made by an individual when his spouse ‘withdraws from his company’. 18 In an enlightened judgment, Justice P. Choudhary of the Andhra Pradesh High Court held the provision to be unconstitutional. Recognising that the provision basically was a way to make the spouse have forced sexual intercourse with the applicant, the judge held that such kind of forced cohabitation was perverse and unconstitutional. Not only was the provision in violation of the right to life, right to privacy and the right to lead a life of dignity, but was also essentially gender discriminatory. In spite of these cogent reasons, the Supreme Court upheld the constitutionality of the provision! Holding that the usage of the term ‘conjugal’ implied something more than mere sexual intercourse, the Court ignored the social reality which the Andhra Pradesh High Court had gained insight into. Saroj Rani is a highly unfortunate judgment. It is a classic example of how a narrow view of the law insulated from social realities can lead to a shockingly perverse decision. Restitution of conjugal rights is a highly archaic personal law provision. The partner against whom the ‘right’ is asserted is treated like property capable of attachment. The oft-cited argument that the right is necessary in order to ensure the preservation of the institution of marriage is not a valid argument as no marriage can be based on forced cohabitation. The aforementioned judicial viewpoint is consistent with the other judicial view that Constitutional notions of equality cannot be applied to personal laws, as that would be analogous to introducing a ‘bull into a china shop.’ 19 This has resulted in various undesirable decisions; for instance, women have not been able to inherit property denied to them under archaic personal laws, 20 and women have not been granted the right to be considered the natural guardian of their children. 21 5. Conclusion I would conclude that the PWDVA will work as the Indian judiciary has played a catalytic role in the widening of women’s freedoms in India. As outlined above, there have been judgments wherein the Court has continued to adopt a patriarchal stand. Nonetheless, in numerous cases the higher echelons of the judiciary have gone against majoritarian social norms and have ensured gender equality. Following a corrective approach, wherein it is recognised that women have historically been discriminated against, the Supreme Court and the High Courts of India have struck down inequitable rules. This is illustrated amply by their

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__________________________________________________________________ approach to the PWDVA. With the exception of the Batra judgment, the Courts have enforced the ‘radical’ provisions of the statute. Given the Courts’ readiness to enforce the Act, and to not skirt the issue of the woman’s rights in other cases by labeling it to be a ‘private’ matter, the biggest hurdle that the Act faces - that of the public-private divide - is slowly evaporating. It is not my contention that Utopia has been reached. Numerous problems persist. There are the aforementioned ‘bad’ judgments for one. The quality of decision making in trial courts should improve, given that the court of first instance under the PWDVA is a Magistrate’s Court. The biggest problem remain the entry barriers preventing effective progress. This can be attributed to two major factors. Firstly, there is the social ethos advocating that women’s issues are not issues to be resolved in the public domain. This causes the emergence of a resultant hostile administration preventing a victim from accessing justice systems. This is aptly illustrated by the infamous Ruchika case, wherein the victim was systematically harassed by the police after she filed her complaint, causing her to commit suicide. Eventually, after 19 years, 40 adjournments, and more than 400 hearings, the court finally pronounced Rathore guilty for molestation but only sentenced him to six months imprisonment. This case is a sad reminder of the many obstacles facing a woman victim in her fight for justice. The case was also defeated by an ineffective legislative remedy. That, however, is not the case with the PWDVA. The Act, one of a kind, has the potential to be an effective vanquisher of domestic abuse. I conclude that the intent of the framers of the Act will be given rightful effect to. The same cannot be possible always unless a change in attitudes is brought about in the various spheres of society. Adopting Kitty Calavita’s thesis that the Court can induce social change through its decisions, 22 I opine that the judiciary’s continued good work - which can be further improved through gender sensitization workshops as recommended by the Act - will positively impact treatment of women in India. Thus the mandate of PWDVA will succeed.

Notes 1

Pandit Laxmi Kanta Maitra, Constituent Assembly Debates (1 March 1949), at 996-997. 2 ‘Teen Molested, Killed Herself: Ex-CM Calls it Frivolous, Killer DGP Roams Free’, Zopag News Network, . 3 F. Agnes, Women and Law in India, Oxford University Press, New Delhi, 2004, p. 151.

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__________________________________________________________________ 4

Lawyers’ Collective Women’s Right Initiative, Staying Alive: Second Monitoring and Evaluation Report 2008 on the Protection of Women from Domestic Violence Act, 2005, 1st Edition, Supported by UNIFEM South Asia Office, at 56. 5 Aruna Parmod Shah v Union of India, WP(Crl.) 425 / 2008. 6 Narinder Pal Kaur Chawla v Najeet Singh Chawla, AIR 2008 Delhi 7. 7 Dennison Paulraj and Ors. v Mrs. Mayawinola, MANU/TN/0525/2008; Sarvanakumar v Thenmozhi, MANU/TN/9828/2007. 8 S.R. Batra v Taruna Batra, 3 SCC 169, 2007. 9 ‘Critique of the Batra Judgment & The Aftermath - A Note By LCWRI’, in Lawyers’ Collective: Women’s Rights Initiative, viewed on 3rd January 2010, . 10 Lawyers’ Collective Women’s Right Initiative, Staying Alive: Second Monitoring and Evaluation Report 2008 on the Protection of Women from Domestic Violence Act, 2005, 1st Edition, Supported by UNIFEM South Asia Office, at 58. 11 See Bharwada Bhoginbhai Hirjibhai v State of Gujarat AIR 1983 SC 753; Krishan Lal v State of Haryana, MANU/SC/0147/1980; Sridhar Bindhani v State of Orissa 1988 CriLJ 1022. 12 Tukaram v St of Maharashtra, Cr.LJ 1864 S.C, 1978. 13 See Rao Harnarain Singh Sheoji Singh and Ors. v The State, 1958 CriLJ 563; State of Punjab v Gurmit Singh, AIR 1996 SC 1393; State of Rajasthan v N.K., MANU/SC/0218/2000. 14 Article 14, The Constitution of India, 1950: The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. 15 B. Crossman and R. Kapur, ‘Women, Familial Ideology and the Constitution: Challenging Equality Rights’, in Feminist Terrains in Legal Domains Interdisciplinary Essays on Women and Law in India, R. Kapur (ed), Kali for Women, New Delhi, 1996, p. 70. 16 See C.B. Muthamma v Union of India, AIR 1979 SC 1868; Air India v Nargesh Meerza; AIR 1981 SC 1829; National Insurance Co. Ltd. v Deepika, MANU/TN/1304/2009; Visakha v State of Rajasthan, 6 SCC 241, 1997. 17 S. Fredman, Women and the Law, Clarendon Press, Oxford, 1997, p. 415; see also I. Jaisingh, ‘Gender Justice: A Constitutional Perspective’, in Feminist Terrains in Legal Domains - Interdisciplinary Essays on Women and Law in India, R. Kapur (ed), Kali for Women, New Delhi, 1996, p. 23. 18 Section 9, The Hindu Marriage Act, 1956: 19 Harvinder Kaur v Harminder Singh, AIR 1984 Del 66. 20 Mary Roy v State of Kerala, (1986) 2 SCC 209.

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Githa Hariharan v Reserve Bank of India, AIR 1999 SC 1149. See K. Calavita, ‘Blue Jeans, Rape, and the “De-Constitutive” Power of Law’, Law and Society Review, Vol. 35, No. 1, 2001, p. 89. 22

Bibliography Agnes, F., Women and Law in India. Oxford University Press, New Delhi, 2004. Aruna Parmod Shah v Union of India. WP(Crl.) 425, 2008. Crossman, B. and Kapur, R., ‘Women, Familial Ideology and the Constitution: Challenging Equality Rights’, in Feminist Terrains in Legal Domains Interdisciplinary Essays on Women and Law in India. R. Kapur (ed), Kali for Women, New Delhi, 1996. Dennison Paulraj and Ors. v Mrs. Mayawinola. MANU/TN/0525/2008; Sarvanakumar v Thenmozhi, MANU/TN/9828/2007. Fredman, S., Women and the Law. Clarendon Press, Oxford, 1997. Githa Hariharan v Reserve Bank of India. AIR 1999 SC 1149. Harvinder Kaur v Harminder Singh. AIR 1984 Del 66. Lawyers’ Collective Women’s Right Initiative, Staying Alive: Second Monitoring and Evaluation Report 2008 on the Protection of Women from Domestic Violence Act, 2005. 1st Edition, Supported by UNIFEM South Asia Office, at 56. Lawyers’ Collective Women’s Right Initiative, ‘Critique of the Batra Judgment & The Aftermath - A Note By LCWRI’, in Lawyers’ Collective: Women’s Rights Initiative, viewed on 3rd January 2010, . Mary Roy v State of Kerala. 1986, 2 SCC 209. Narinder Pal Kaur Chawla v Najeet Singh Chawla. AIR 2008 Delhi 7.

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__________________________________________________________________ Pandit Laxmi Kanta Maitra, Constituent Assembly Debates, 1st March 1949, pp. 996-997. S.R. Batra v Taruna Batra. 3 SCC 169, 2007. ‘Teen Molested, Killed Herself: Ex-CM Calls it Frivolous, Killer DGP Roams Free’, in Zopag News Network. . Tukaram v St of Maharashtra. 1978 Cr.LJ 1864 S.C. Vatsala Sahay is a third year B.A.LL.B (Hons.) student at the National Law School of India University, Bangalore, India. She is interested in women’s studies, family law, space law, international law and arbitration.

Part 3 Literary Themes

Gossip: The Quarrels and Parleys of Margery Kempe, a 15thCentury Wife María Beatriz Hernández Pérez Abstract Although communal by nature, gossip acts on the individual dimension by enmeshing it within the broader limits of the group needs. According to some medievalists, in the Middle Ages this particular oral practice defined itself as different from written culture and was associated with the strictures of the female space and habits. This paper proposes the inclusion of gossip under the heading of domestic violence, examining it in the light of the late fifteenth-century Book of Margery Kempe. Key Words: Gossip, confession, violence, The Book of Margery Kempe. ***** 1. Gossip: An Introduction The verbal expression of violence has lately been dealt with by linguistic approaches which depart from a pragmatic stance in order to integrate the contextual realities as entrenched in the verbal manifestations themselves, among which gossip remains a most important issue. Dealt with from many disciplinary standpoints, two main stances prevail in most of the approaches: the anthropological functionalism of authors like Malinowski or Gluckman maintains that it is a necessary means of self-regulation and of enhancement of the group’s identity as well as of individual integration in it; meanwhile, authors like Robert Paine, or Stewart and Strathern emphasise the sense of disruption of the group, lack of solidarity, competitiveness and manipulation related to this practice. Recent approaches have delved into the link between gossip and charms in order to describe the workings of this discursive practice and its performative potential. One of key aspects in the study of gossip is its unavoidable relatedness to women’s linguistic practices, which works like The Book of Margery Kempe (TBMK) reveal. This early fifteenth century work has been hailed as representing the English participation in the female mystical movement which rose on the continent in the late Middle Ages and furthered the consolidation of a female authorial voice, as well as the earliest example of autobiography in the English language. 1 Her book details her stubborn struggle to affirm her saintly identity by imitating some of the attitudes of continental 13th and 14th century mystic women. 2. Gossip and Confession: Blurred Frontiers As the daughter of an influential father, Margery Kempe must have been quite aware of the signs of status operating in her society. In the Middle Ages, as

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__________________________________________________________________ currently, having friends was in many cases part and parcel of the workings of power. Particularly evident on public occasions, friendship was explicitly paraded through a multitude of gestures. Thus, it was central to political life and social order, operating within very marked parameters as a highly structured relationship, intimately linked to patronage and kinship. 2 From a religious point of view, a kind of universal friendship or philanthropy would determine the ideal behaviour of any good Christian, based on the sacred pious conversation of the early the monastic model. 3 In religious communities sacred conversation intersected with the rise of the confessional practice. While early confessions were communal, after the 13th century they came to depend more and more on the idea of intimacy and confidence, providing a primary personal ground of acquaintance upon which further affections would rest. By turning confession compulsory at the Fourth Lateran Council (1215), the Church reinforced both its surveillance and didactic aims: confession not only meant cleansing the soul but also receiving further knowledge, an extra spiritual training conveyed secretly to the penitent, and thus liable to be sensed as alluring to the public eye. 4 Although privacy was intended, also the public exposition of the penitent when kneeling down to utter the sins called for future deviation into gossip. TBMK could be regarded as the written dictated version of a countless number of oral confessions, after its author underwent the mental crisis that would lead to her mystical arousal. Margery, a middle-aged mother, claims to have been divinely chosen to be Christ’s virgin bride, becoming thus the object of public scorn. Respectable members of her own group deem her a hypocrite when she all of a sudden rejects worldly riches, bursts into tears, howls and swoons or insists on going on pilgrimage time and again. Medieval un-orthodox religious women who would travel about the city and undertake pilgrimages would be particularly suspicious in their spiritual, social and generic marginality, and the Church advised specifically about their uncontrolled speech. That is why Margery insisted on practicing confession in order to maintain some standing as well as the counsel of a host of anchorites who would guarantee her sound conduct in front of society. Throughout the book, her anxiety over the gossip issue shows the extent of her loss; possibly she too had been a gossip once, that is, a friendly woman who would accompany female partners in their daily worries and duties, as part of a larger network of economic assistance and emotional support among women. Bernard Capp’s research on the daily lives of women in early modern England evidences that gossip would be a redemptive means for battered wives to overcome their grief. 5 Though justice allowed the husband the property and right over the wife, the pressure of the wifely congregation who would support the battered friend through gossip against such violence would be sensed. 3. Secrecy and Resistance

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__________________________________________________________________ The importance of secrecy should therefore be highlighted, since both confession and gossip respond to the individual need for secrecy in order to resist social pressure. Karma Lochrie’s thorough study of the uses of secrecy in the Middle Ages reminds that this particular set of tactics was clearly associated to gender and cultural difference. 6 This practice defined itself as different from written culture and therefore as a kind of challenging female parody of masculine language. As such, it would be felt as threatening and liable to be subjected by male control, increasingly sensitive to the discursive capacities of women. 7 Female utterance was thus presented as potentially dangerous and leading to a wrong use of language. The effect of gossip being set aside as vicious and subversive accentuated its secret nature, an attribute that women would internalise and reproduce. However, in order to overcome its liminality and secrecy, the discourse of gossip claimed instead ‘to speak in the world’s voice’ 8 acquiring an undeniable capacity to spread its power. Exchange of information would consequently be expected in such talks, which would proceed through complementary addition of information from all those present. In this sense, Margery links perfectly the bodily quality of gossip to the narrative and dramatic nature of her book, which revolves around her own wifely condition as a commodity, to which she rebels: her constant quarrels with her husband over Margery’s claims of remaining chaste - even dressing in white by divine command, - her demands to travel without him, and her own fleshly temptations. The violence in these chapters is an ever-present low frequency one, in which the husband insists on reminding her of the marital debt and her wifely and motherly duties, complaining when she decides to go on pilgrimage but helping her when in deep trouble with the local authorities. Thus, the narrator does not present violence as springing explicitly from the figure of the husband, but from the once friendly and domestic circle that out of resentment for her radical individualism, has decided to turn her down and reinterpret her actions with an evil eye and talk. The first fragments of the book are decisive in portraying Margery as enmeshed in the communal web of gossip. In the prologue, her complaint against the influence of backbiters’ remarks on the second scribe, a priest, can be heard: Then there was such evil talk about this creature and her weeping, that the priest out of cowardice dared not speak with her but seldom, nor would write as he had promised the said creature. And so he avoided and deferred the writing of this book for nearly four years or more. 9 If gossip may be defined as one of those activities carried out by those who have internalised the habit of commenting aloud the comings and goings of others, Margery shows it not as an unconscious, natural, even benign flux of gazes and words that keeps the community awake and sound in its concerns, but rather as an

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__________________________________________________________________ individualistic drive that fosters separation and enmity. The general rejection is shown in several instances in which disbelief in her mystical conversion is the main issue. But beyond this motive, the rivalry among important women for a proper confessor is another cause for dispute, as we can see when an anchorite reveals that important ladies have tried to persuade him to abandon Margery: And he said to her: “I have heard much evil talk of you since you went away, and I have been strongly advised to leave you and not to associate with you anymore, and great friendships are promised me on condition that I give you up.” 10 With the decline of her secular profile, she starts to lean even more on the ecclesiastical help. Lay friends and connections will gradually be superseded by priests, friars, masters of divinity and clerks, all of whom represent the sort of universal friendship Christian fathers had defined, she at times taking the role of a spiritual mother to the young clerics. In this guise she could also listen to the confidences of some noble ladies who trusted her prophetic and visionary qualities. 4. Male and Female Gossip The constant harassment Margery is exposed to not only reflects the communal view about independent women, but as well the internalisation of these social demands and religious models beyond the female sphere. After all, priests participate both as confessors and as agents of Margery’s bad reputation in the neighbourhood: they represent both confession strictures and the very vice of gossip. No wonder the key episode in which she will be accused of being a preacher and thus possibly a Lollard heretic fuses all these priestly voices. But Margery’s misbehaviour not only annoys the clerics and pious people. All the male anxiety about the wandering uncontrolled women of dubious orthodoxy is embodied in the mayor’s words to her: ‘I want to know why you go about in white clothes, for I believe you have come here to lure away our wives from us, and lead them off with you.’ 11 Later on, the link between gossip and confession is revealed again when an enemy friar accuses her of having been intimate of Lady Greystoke and having suggested her to leave her husband. This reflects the concern of husbands over their wives’ secret complaints and the possibility of an informally organized network of women the extent of which might surpass individual male agency. Facing the possibility of being executed as a Lollard after being interrogated by the Leicester Stewart and the Archbishop of York, a distressed Margery accuses them of slander, but her desperation turns grace under pressure at the moment in which she brightly repeals their accusation by precisely charging the Archbishop of York with the same allegation she had received, that of being a target of gossip.

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__________________________________________________________________ Thus she reverses the whole process and reveals the ambivalent essence of hearsay, a weapon belonging, after all, to women: Then the Archbishop said to her: “I am told very bad things about you. I hear it said that you are a very wicked woman”. And she replied, “Sir, I also hear it said that you are a wicked man. And if you are as wicked as people say, you will never get to heaven, unless you amend while you are here.” Then he said very roughly, “Why you!...What do people say about me?” She answered, “Other people, sir, can tell you well enough.” 12 The excuse of the murmuring community is here used by the Archbishop against the dissident, but as a wife she knows all too well the importance of reputation. This gives her the chance to wield the power of common suspicion and talk, standing now for those who speak in whispers, for the community. Thus, she skillfully gets her strength back and thrashes the subversive weapon against the representative of instituted power. While not always answering to revengeful and competitive intention from within, female networks kept on being under constant surveillance, measured and consequently talked about by men, specifically by those in the religious and political hierarchies, and by husbands at large. Thus, if gossip may be included under the heading of domestic violence, it inevitably reaches other forms of institutional violence, in this case the one directed against religious dissenters, here personified in the figure of the dissident wife who insists on performing her religious propensity in a way hardly controllable by husbands or priests. If gossip might somehow be understood as a negotiation process to come to terms with the inscrutable nature of the other within the community, it is clear that Margery’s trial before the ecclesiastics had been preceded by constant whispering negotiations among neighbours to deal with her peculiar behavior. The patriarchal concern about non-conformist wives got indelibly intertwined with the perception of religious dissent. The othering process both of the wife and of heretics went hand in hand, from mouth to mouth, resting ironically on the power of women to speak.

Notes 1

The only manuscript (BL MS Additional 61823), written in 1436, belonged and was annotated by members of the Carthusian monastery of Mount Grace (Yorkshire). Margery Kempe must have been born in 1373, being the daughter of the mayor of Lynn. See C. Atkinson, Mystic and Pilgrim. The ‘Book’ and the World of Margery Kempe, Cornell University Press, Ithaca and London, 1983. In this work, I shall be quoting from the modern English version by B. Windeatt.

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Friendship dictates codes of behaviour and political conduct. See J. Haseldine (ed), Friendship in Medieval Europe, Phoenix Mill, Sutton, 1999, p. xviii. 3 B. McGuire, Friendship and Community: The Monastic Experience 350-1250, Cistercian Publications, Kalamazoo, 1988. 4 See H. Lea, A History of Auricular Confession and Indulgences in the Latin Church, Greenwood Press, New York, 1968; and J. Root, ‘Space to Speke’: The Confessional Subject in Medieval Literature, Peter Lang, New York, 1997. 5 B. Capp, When Gossips Meet: Women, Family and Neighbourhood in Early Modern England, Oxford University Press, Oxford, 2003, p. 59. 6 K. Lochrie, Covert Operations. The Medieval Uses of Secrecy, University of Pennsylvania Press, Philadelphia, 1999, pp. 56-57. 7 The Church regarded Beguines and prostitutes as marginal, since they ‘moved beyond the prescribed space.’ B. Hanawalt, ‘Of Good and Ill Repute’: Gender and Social Control in Medieval England, Oxford University Press, New York and Oxford, 1998, p. 72. 8 Lochrie, op. cit., p. 61. One of the effects of gossip is creating the participants’ apprehension about the limits of the realms of the public and the private. See P. Spacks, Gossip, Chicago University Press, Chicago and London, 1985, p. 12. 9 B. Windeatt (ed), The Book of Margery Kempe, Penguin, Harmondsworth, 1985, p. 36. 10 Windeatt, p. 73. 11 Windeatt, p. 153. 12 Windeatt, p. 163.

Bibliography Atkinson, C., Mystic and Pilgrim. The ‘Book’ and the World of Margery Kempe. Cornell University Press, Ithaca and London, 1983. Capp, B., When Gossips Meet: Women, Family and Neighbourhood in Early Modern England. Oxford University Press, Oxford, 2003. Hanawalt, B., ‘Of Good and Ill Repute’: Gender and Social Control in Medieval England. Oxford University Press, New York and Oxford, 1998. Gluckman, M., ‘Gossip and Scandal’. Current Anthropology, Vol. 4, No. 3, 1963, pp. 307-316. Haseldine, J. (ed), Friendship in Medieval Europe. Phoenix Mill, Sutton, 1999.

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__________________________________________________________________ Lea, H., A History of Auricular Confession and Indulgences in the Latin Church. Greenwood Press, New York, 1968. Lochrie, K., Covert Operations. The Medieval Uses of Secrecy. University of Pennsylvania Press, Philadelphia, 1999. Malinowski, B., ‘The Problem of Meaning in Primitive Languages’, in The Meaning of Meaning: Supplement. I. Odgen and I. Richards (eds), Harcourt, Brace & World, New York, 1923, pp. 296-336. McGuire, B., Friendship and Community: The Monastic Experience 350-1250. Cistercian Publications, Kalamazoo, 1988. Paine, R., ‘What is Gossip about? An Alternative Hypothesis’. Man, Vol. 2, No. 2, 1967, pp. 278-285. Root, J., ‘Space to Speke’. The Confessional Subject in Medieval Literature. Peter Lang, New York, 1997. Spacks, P., Gossip. Chicago University Press, Chicago and London, 1985. Stewart, P. and Strathern, A., Witchcraft, Sorcery, Rumours, and Gossip. Cambridge University Press, Cambridge, 2004. Windeatt, B. (ed), The Book of Margery Kempe. Penguin, Harmondsworth, 1985. María Beatriz Hernández Pérez does her research in Medieval Literature at the University of La Laguna. She belongs to the Medieval Studies Institute as well as to the Institute for Women Studies of this university, and she is interested in how medieval culture and literature reflect and generate gender issues.

Part 4 Visual Representations

Violence as a Theme in Pontecorvo’s The Battle of Algiers and Burn! Thomas Riegler Abstract This contribution explores the depiction of violence in Gillo Pontecorvo’s neorealist films The Battle of Algiers (1965) and Burn! (1969) in regard to the ideas expressed by Frantz Fanon in The Wretched of the Earth. Key Words: Fanon, Pontecorvo, Algeria, Burn!, Battle of Algiers, film. ***** 1. Introduction: Frantz Fanon’s Ideas on Violence Frantz Fanon, born 1925 on Martinique, was one of the most influential revolutionary thinkers of the 20th century. His main work The Wretched of the Earth (1961) inspired the worldwide wave of anti-colonial revolts and liberation movements starting in the 1950s and 1960s. In his most renowned book, The Wretched of the Earth Fanon characterised colonialism as a system of violent repression that dehumanized the colonised subject for centuries, both physically and mentally. To bring about revolutionary change and freedom, Fanon stresses the importance of answering the greater violence of the coloniser with violence from below: ‘The colonized man finds his freedom in and through violence.’ 1 In Fanon’s thinking the commitment of a violent act is transformative, remaking the colonised subject into a free man and restoring his self-respect. His more pessimistic outlook on post-colonial perspectives for the newly freed nations of the ‘Third World’ was neglected in comparison - just like his observations on the damaging effects of violence on the mind. Fanon was certainly no champion for violence for the sake of violence and he did not perceive it as key for achieving political settlements - for him, violence was the consequence of a specific situation where a general state of injustice simply left no peaceful alternative. Since the colonial system represented the ‘natural state of violence,’ it could only be defeated on its own terms. 2 2. Gillo Pontecorvo - The Battle of Algiers and Burn! Born in Pisa in 1919, Gillo Pontecorvo grew up as a Jew in Benito Mussolini’s Italy. When Jews were banned from teaching at universities, he left for France in the 1930s. In 1942, he joined the fight against the fascists in the Italian Alps. After the war, he worked as a photographer, but found his true calling as soon as he saw Roberto Rossellini’s neo-realist Paisa (1946). 3 It was his 1965 film The Battle of Algiers that established Pontecorvo as one the most eminent political filmmakers of all time. The movie dramatises a well

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__________________________________________________________________ known episode during the Algerian War of Independence. In 1957 the National Liberation Front (FLN) undertook a series of bomb attacks against the French civilians in the capital Algiers - until the French army eventually rooted out the perpetrators trough a campaign of widespread repression and torture. Though the French won the so called ‘Battle of Algiers,’ they proved to lose the war, granting independence to Algeria in 1962. 4 The film about this event would probably have never been made, had the FLN not displayed an interest in telling its story. Saadi Yacef, who had commanded the bomb-network during the last months of the Battle of Algiers, founded a production and distribution company to make a movie about the struggle. He enlisted Pontecorvo and Solinas, who had already planned to make a movie about the war, but from a western perspective. 5 With a budget of US $800000, half from private sources and half from the Algerian government, The Battle of Algiers was then produced on location during five months in 1965. The film was an outstanding success and won the grand prize at the Venice Film Festival. 6 Pontecorvo’s and Solina’s next movie Burn! (1967) is set in the mid-19th century. On the small Caribbean island, Queimada, a slave revolt is brewing against the Portuguese colonial regime. The British government, who wants to get control over the sugar producing island, dispatches its agent, William Walker (Marlon Brando), to stir up the rebellion. Walker’s strategy is double-tracked: on the one hand, he pulls the strings on the ambitions of Queimada’s Creole elite for independence; on the other hand, Walker tries to find a potential insurgent leader among the impoverished black masses - since the original rebel leader Santiago had just been executed. Walker eventually locates a promising successor: Jose Dolores (Evaristo Marquez). Under manipulative guidance by the British agent, Dolores soon becomes the effective leader of the guerrilla struggle in Queimada’s mountainous region. After defeating the Portuguese troops, Dolores marches his army of freed slaves towards the capital. In this critical moment the Creole planters stage a coup and form a provisional government - with Walker in command behind the scenes. After frustrating negotiations the popular Dolores leaves the field to this new regime, which aligns itself closely with Great Britain. Although slavery is abolished, the political and social structure of the newly independent state remains basically the same as under the colonial regime. The former slaves are now exploited as poorly paid workers on the cane-fields, while the riches of Queimada mainly foster business interests of the Royal Sugar Company. But after 10 years the government is on the brink of defeat: Jose Dolores has returned to continue his liberation-struggle, this time against the new planter ‘aristocracy’ and their British allies. Again the special skills and services of William Walker are employed. As military advisor to the President of Queimada he is the principal architect of a strategy to defeat the guerrillas in their hideouts. Walker fights Dolores with

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__________________________________________________________________ scorched earth and by attacking the local population, which supports and feeds the insurgents - just like the Portuguese colonisers, who established control by burning the island and thereby giving Queimada its haunting name (‘burnt’). Now it is done a second time, until Dolores is finally captured and hanged on the gallows. Walker, who remained to the end sympathetic, even not affectious, towards the black rebel, tries to save him, but Dolores stubbornly refuses any help. He may have been defeated, but his revolutionary example is already infecting the whole Caribbean. Walker, on the contrary, is broken by the experience - when he is about to leave the island, he is suddenly stabbed by a black man and possible new Dolores. Thus, the setback was only temporary and the struggle will continue. 3. The ‘Dictatorship of the Truth’ - Pontecorvo’s Style and Format Putting The Battle of Algiers and Burn! in context of Pontecorvo’s filmography, both films exemplify the director’s artistic concept of the ‘dictatorship of the truth.’ Shot in black and white with high contrast, giving it a ‘grainy’ look, The Battle of Algiers has the tone and atmosphere of a documentary, a historical ‘cinema vérité.’ 7 While both the setting and main storyline of Burn! are fictitious, the movie again is a vehicle for political ideas, while dressing up as a classic adventure story. Burn! is different from The Battle of Algiers since it was shot in lucid Technicolor, but its beautiful set pieces in the Colombian province of Cartagena and later in Morocco underline the same painstaking commitment to realism. 8 Both pictures display another key aspect of Pontecorvo’s approach: showing ‘real faces.’ In The Battle of Algiers, he used an all-amateur ensemble, with the notable exception of French theatre actor, Jean Martin. For the counterpart on the insurgent’s side, Pontecorvo convinced Yacef Saadi to play himself as the leader of the FLN bomber-network. As his trusted adjutant and short time successor, Ali La Pointe Pontecorvo selected Brahim Haggiag, a poor and illiterate peasant, whom he had picked up by chance on a market because of his fitting looks. 9 Haggiag had to be coached step by step, but grew accustomed to his part and in this process resembled the conversion of the real Ali La Pointe from a crook into a ‘conscious’ resistance fighter. In the case of Burn!, a Hollywood production, Pontecorvo enlisted a major star in the lead role - Marlon Brando. While the studio originally had pressed for Sidney Poitier opposite Brando, Pontecorvo instead picked Marquez, a local illiterate peasant, who had never seen a movie. The director had long searched in vain for the ‘right face,’ but then stumbled across Marquez by chance in the Colombian jungle. 10 Like Haggiag, he had to be coached into acting, but in Marquez case this proved to be a real challenge. The qualities of Marquez acting are still disputed among experts and cineastes, but the ‘rawness’ of his performance perfectly underlines the general theme of Burn! - the political awaking and transformation of the colonised individual.

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__________________________________________________________________ All those different stylistic elements result in what Pontecorvo called the essence of his film-making, ‘staying close to reality’ and conveying a ‘sense of truth.’ He credits the BBC for calling this the ‘dictatorship of the truth.’ 11 4. Illustrating Frantz Fanon: Pontecorvo and the ‘Wretched of the Earth’ Fanon’s ideas, especially on the liberating nature of violence, are at the very heart of both The Battle of Algiers and Burn!. For instance, when Ali La Pointe is first introduced, he is shown as a street gambler and petty criminal. We see him on the run from French policemen - but when one French pied noir-youth trips him up, he stops to punch back and is subsequently captured. There is already some aggressive spirit noticeable and it only waits to be channelled properly. In the following sequence we see Ali in prison - he is still a mere criminal, sitting passively, while the ‘political prisoners’ salute a comrade who is led to the guillotine, because he fought for a free Algeria. Suddenly, Ali gets up and rushes to the window to get a glimpse on the execution taking place in the courtyard. When the blade finally comes down, the camera fixes on Ali’s eyes and his more and more intense stare. This is the moment that marks his final transformation from a mere rebel without a cause into a conscious freedom fighter. As soon as he is released, Ali joins the FLN. As mentioned, in Burn!, William Walker has to search long to find a suitable candidate to lead the struggle against the Portuguese. The blacks are behaving childlike towards the whites after generations of passivity and brutal suppression. But then Walker glimpses Dolores: the later is trying to hand some refreshment to some slaves herded through the streets of Queimada. When he is violently stopped from doing this, Dolores raises a stone and thereby displays a similar rebellious attitude like Ali, yet still repressed. It takes the guidance of Walker to complete the process: the agent employs Dolores and some other blacks in a scheme to rob the bank of Queimada. When the party is carrying off the booties, they are challenged by Portuguese soldiers. When one of them is discovers the stolen money, Dolores suddenly acts and silences the man with a killing stroke. Later, when more troops are dispatched to catch the robbers and threaten the village they are hiding in, Walker teaches Dolores and his men in the use of firearms. The soldiers are subsequently lured into a trap and massacred. The victory over the whites is the final turning point - Dolores and the others are ‘reborn’ in a Fanonian sense. 12 To take the struggle from the individual to the collective level, Fanon highlighted that the ‘pendulum motion of terror and counterterror’ would finally enlighten even the most alienated of the colonised. 13 Correspondingly, the FLN is seen in The Battle of Algiers as orchestrating terrorist attacks on French civilians on purpose: the bombings are aimed to provoke an indiscriminate response, which in turn would mobilise Algerians behind the FLN. The movie does not condemn

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__________________________________________________________________ this practise, but puts it in context. The employment of ‘dirty’ means is always measured against the greater violence on part of the French. In Burn! Pontecorvo’s interest had already shifted to the side of the counterinsurgent and his strategic usage of violence. While in The Battle of Algiers the FLN is simply defeated because torture ‘works’, Burn! features tactics like the displacement of civilians or the integration of indigenous forces in the counterinsurgent camp. 14 There is also some profound difference in regard to the refection of Fanon’s ideas. While The Battle of Algiers omits the grave implications of post-colonialism on Algeria, there is a problem at the centre of Burn!. Here the real drama begins only after Dolores triumphant entry into the capital and when the black leader painfully has to recognise that the hard-fought liberty and independence are somehow ‘relative.’ When Walker once convinced the Creole planters to support Britain, he used a telling metaphor to describe the basic shift from a colonial to a post-colonial structure: he argues that a prostitute (worker) is preferable to a wife (slave), because the employer does not have to cover the cost for the wellbeing of the latter. This is evident in the globalised capitalist system, in which Queimada now takes its place - as a supplier of resources and wealth towards the economic power centre, while only the planter class benefits at home. Britain, on the other hand, can rule indirectly instead of imposing a traditional colonial system. 15 5. Conclusion The purpose of this article was to explore the cultural representation of the ideas of Frantz Fanon on liberating violence in The Battle of Algiers and Burn!. Both in Fanon’s book and in Pontecorvo’s films violence is but a phase of dialectic historical process that will lead to national liberation. The subsequent loss of this conviction of history as a linear progression in the wake of the dissolution of the Soviet Union (1989) left a deep impression on Pontecorvo - from 1979 until his death in 2006 he did not make another movie. When journalist Philipp Glass asked him why he had remained absent for decades, Pontecorvo replied: ‘Because (our) certainties have failed. … Now, everyone is uncertain.’ Pontecorvo’s doubts were also fuelled by the development some of the celebrated national liberation movements took once they found themselves in power. ‘They stole their victory,’ he said of the Algerian government. 16 In retrospect, this reproduction of autocratic and repressive tendencies, which were also a result of the mentioned post-colonial dependencies, contrasts deeply with The Battle of Algiers’s euphoric closing spectre. Violent struggle may have won Algeria’s independence, but it had also turned inwards, in the end claiming more Algerian then French lives. The Wretched of the Earth, The Battle of Algiers, and Burn! may indeed be tied to a specific ideological context, but they have not lost their inspirational power

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__________________________________________________________________ and continue to fascinate audiences with their sense of solid conviction, radical dedication, and passionate commitment to change. They are especially insightful on their description of post-colonialism, which is still a distinct feature of relations between industrial and developing nations.

Notes 1

F. Fanon, The Wretched of the Earth, Grove Press, New York 1963, p. 86. Ibid., p. 61. 3 C. Glass, ‘The Hour of the Birth of Death’, Times Literary Supplement, 26th June 1998. 4 A. Horne, A Savage War of Peace. Algeria 1954-1962, Macmillan, London, 1977, pp. 183-202. 5 D. Forgacs, ‘Italians in Algiers’, Interventions, Vol. 9, No. 3, p. 357. 6 J. Mellen, Filmguide to ‘The Battle of Algiers’, Indiana University Press, Bloomington and London, 1973, pp. 16-23. 7 P. Solinas, Gillo Pontecorvo’s ‘The Battle of Algiers’, Scribers, New York, 1973, p. 181. 8 C. Celli, Gillo Pontecorvo: From Resistance to Terrorism, The Scarecrow Press, Lanham, 2005, p. 75. 9 E. Holmes, ‘A War Film with Striking Relevance’, The Los Angeles Times, 4th January, 2004. 10 N. Srivastava, ‘Anticolonial Violence and the “Dictatorship of the Truth” in the Films of Gillo Pontecorvo. An Interview’, Interventions, Vol. 7, No. 1, p. 104. 11 E. Esposito ‘Stay Close to Reality’, in www.wssw.org, viewed on 12th August 2004, . 12 N. Davis, Slaves on Screen. Film and Historical Vision, Harvard University Press, Cambridge, 2000, p. 48. 13 Fanon, p. 47. 14 J. Mellen, ‘Queimada - Gillo Pontecorvo’s Burn!’, Cinema Magazine, Issue 32, Winter, 1972-1973. 15 Celli, pp. 81-82. 16 C. Glass, ‘The Hour of the Birth of Death’, Times Literary Supplement, 26th June 1998. 2

Bibliography Celli, C., Gillo Pontecorvo. From Resistance to Terrorism. The Scarecrow Press, Lanham, 2005.

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__________________________________________________________________ Esposito, E., ‘Stay Close to Reality’, in www.wssw.org. Viewed on 12th August 2004, . Davis, N., Slaves on Screen. Film and Historical Vision. Harvard University Press, Cambridge, 2000. Fanon, F., The Wretched of the Earth. Grove Press, New York, 1963. Forgacs, D., ‘Italians in Algiers’. Interventions, Vol. 9, No. 3, pp. 350-364. Glass, C., ‘The Hour of the Birth of Death’. Times Literary Supplement, 26th June 1998. Holmes, E., ‘A War Film with Striking Relevance’. The Los Angeles Times, 4th January, 2004. Horne, A., A Savage War of Peace. Algeria 1954-1962. Macmillan, London, 1977. Mellen, J., Filmguide to ‘The Battle of Algiers’. Indiana University Press, Bloomington and London, 1973. Mellen, J., ‘Queimada - Gillo Pontecorvo’s Burn!’. Cinema Magazine, Issue 32, Winter 1972-1973. Solinas, P., Gillo Pontecorvo’s ‘The Battle of Algiers’. Scribers, New York, 1973. Srivastava, N., ‘Anticolonial Violence and the “Dictatorship of the Truth” in the Films of Gillo Pontecorvo. An Interview’. Interventions, Vol. 7, No. 1, pp. 97-106. Thomas Riegler is a historian and independent scholar in Vienna, Austria.

Part 5 Child Abuse

Older Relatives Raising Adolescents: The Relationship between Age of Caregiver and Youth Delinquent Acts Lynn Frederick Abstract This paper examines the relationship between grandparents and other older relatives raising children and delinquency. It posits that youth raised by grandparents and other older caregivers are more likely to commit delinquent acts. For over 1.3 million children in the US, a grandparent is the primary caregiver and this is a rapidly growing phenomenon due to social problems such as addiction, job loss and death of parents. Low caregiver control is linked to delinquency. Older caregivers may be unable to monitor and control youth sufficiently to keep them out of trouble. Further, the combination of frail caregiver and misbehaving/violent youth could be a risky combination. No previous studies related to delinquency in youth raised by grandparents were identified, thus the study provides some initial data, but scholarship is indicated. This study uses survey responses from Wave I, The National Longitudinal Study of Adolescent Health (AddHealth), a comprehensive and representative data base addressing adolescent health related behavior and status. Bivariate, baseline logistic regression, and fully specified logistic regression models are used to determine the relationship between: 1) Age of caregiver and violent delinquency in youth respondents; 2) Relationship of caregiver (grandparent) and violent delinquency in youth respondents; 3) Age of caregiver and non-violent delinquency in youth respondents; 4) Relationship of caregiver (grandparent) and non-violent delinquency in youth respondents. The Database included individual, school, family and community level data. Results of the bivariate analyses show significantly higher likelihood of committing a violent delinquent act by youth raised by grandparents. This finding, however, does not hold up in the multivariate analysis. The mixed results generated in this study must be viewed in the context of the data limitations that confront researchers from various disciplines who study adolescents who are being cared for by grandparents and other older relatives. Key Words: Custodial grandparents, delinquency, kinship care. ***** 1. Introduction Increasing numbers of older relatives in the US, including grandparents are assuming the role of custodial caregiver for children. The overall aim of this study was to find out whether youth in the care of their grandparents or other older relatives were more likely to engage in delinquency than those who lived with their parents. Previous studies have documented the effect of custodial caregiving on

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__________________________________________________________________ grandparents but less research has been done on outcomes for the youth in this care arrangement. Data for the study is from Wave I of the National Longitudinal Study of Adolescent Health (AddHealth), a nationally representative US study that explores the causes of health-related behaviour of adolescents in grades seven through twelve. Research on life course theory, delinquency and custodial grandparents, form the theoretical underpinning of this paper. This study tested the hypothesis that youth raised by grandparents and other older relatives were more likely to commit delinquent acts than youth raised by their parents. 2. Theoretical Background Life course theory asserts that certain activities correlate with certain stages of development, and failure to meet key milestones in earlier stages may be associated with developmental problems at later stages. 1 Crime in the life course theory delineates pathways criminal behaviour may take during the lifespan and factors related to initiation, persistence and desistence. The key pathways are, 1) Early starters who progress into more serious and violent delinquency plus persist offending into adulthood, and 2) Late-onset offenders, who start late, commit less serious offenses and desist by the late teens or early adulthood. Desistence primarily results from maturation and parental control/warmth in younger offenders. Marriage and employment contribute to desistence in early adulthood. 3. Literary Review The phenomenon of the custodial grandparent is part of a growing trend of alternatives to foster care or institutionalisation of children. It occurs when parents are unavailable due to their own physical, psychological or social problems, including incarceration or death or due to child factors, such as behaviour problems. Outcomes for children who have been in foster care tend to be rather poor 2 while children raised by grandparents generally fare well. 3 Research has shown that institutional care for children is much more costly and less effective than home care. Grandparents are the primary source of kinship care. 4 According to the 2005 American Communities Survey, 2.4 million grandparents were serving as the co-resident primary caregivers for their grandchildren. The 1994 Census Bureau Report estimate was 1.3 million. 5 Between 1990 and 1998, the number of children being raised exclusively by grandparents or other relatives grew by over 50%. Three percent of children lived with relatives other than parents in 1998 and one percent lived with non-relatives. By 1998 four million children lived with a grandparent, representing six percent of children. Two percent of children lived in the home of a grandparent with no parent present. 6 The Administration on Aging estimated that almost half of the children under the custodial care of grandparents were African American, over

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__________________________________________________________________ 40% are Caucasian, and 12% are Hispanic. 7 One in 20 Mexican Americans were raising a grandchild, four times higher than non-Hispanic whites. 8 Raising a grandchild takes a physical and psychological toll on the grandparent. 9 While the interest of the author was older caregivers, the literature indicated that very young custodial grandparents experienced very high levels of stress. This was addressed in the research design (see methodology section). Wellbeing of youth raised by grandparents has received some attention, 10 but delinquency in youth raised by grandparents has not. Many grandchildren raised by grandparents have been exposed to poverty, crime, drug abuse and violence prior to living with grandparents. Such exposure is associated with increased likelihood of high-risk youth behaviour. 11 The author questioned whether custodial grandparents and other older relatives have the stamina to keep their grandchildren away from delinquent activity. The correlates of delinquency have been studied extensively and are documented in meta-analyses of delinquency research 12 and Youth Violence: A Report of the Surgeon General (2001). 13 Elliott’s work demonstrates that delinquency is multi-determined by the interrelationship of individual, family, peer, school, and neighbourhood factors. 4. Methodology The risk and protective factors cited by Elliott (2001) were the source of control variables for the multivariate analysis in this paper. This study used survey responses from Wave I, The National Longitudinal Study of Adolescent Health (AddHealth), one of the most comprehensive databases on this topic that has ever been constructed. 14 Bivariate, baseline logistic regression, and fully specified logistic regression models were used to determine the relationship between: 1) Age of caregiver and violent delinquency in youth respondents; 2) Relationship of caregiver (grandparent) and violent delinquency in youth respondents; 3) Age of caregiver and non-violent delinquency in youth respondents; 4) Relationship of caregiver (grandparent) and non-violent delinquency in youth respondents. Age of caregiver was not operationalised as a continuous variable in this paper because the literature indicates that young custodial grandparents experience a high degree of stress which may interfere with their caregiver role. 15 Three caregiver age categories (