What reasons do we have for believing that domestic violence must be eliminated? Does it matter what those reasons are?
In 2005, the Parliament of India in its Monsoon session passed The Protection Of Women From Domestic Violence Act. How did Parliament justify this legislation and what was it intended to achieve?
Domestic violence is a undoubtedly a human rights issue and serious deterrent to development.
The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) […] has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.
It is, therefore proposed to enact a law […] to provide for a remedy under civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.
Statement of Objects and Reasons of The Protection of Women from Domestic Violence Act, 2005
Reading between the lines, we see that the Parliament of India:
- recognized that the incidence of domestic violence is a violation of human rights (i.e. the harm caused by domestic violence is unjust and a matter of moral urgency that demands action to prevent it).
- acknowledged that the state has a duty to protect its citizens from such violations.
- stated that the objective of this law is to prevent occurrences of domestic violence, as a way of striving towards an ideal outcome in which there are no more incidents of domestic violence.
Does the state have any responsibility beyond protecting its citizens from violence? Is the ideal outcome that the law aims to create, really the best possible outcome? This article will prove that:
- There is a more fundamental injustice at the heart of domestic violence, and incidents of violence are only a symptom of it.
- This injustice arises not from the harm caused by domestic violence but from the mere possibility of it.
- There’s a greater ideal worth striving towards than merely eliminating incidents of domestic violence, which serves as a better justification for the law.
To do this, we first need answers to the following questions:
- Under what circumstances is there a “possibility of domestic violence”?
- What are the possible outcomes of such a “possibility”?
- In what sense are these outcomes unjust?
We will take the case of a married couple H and W, and assume that H and W behave rationally.
1. Under what circumstances is there a “possibility of domestic violence”?
In order to assess acceptance of norms regarding wife beating, women and men were asked whether a husband is justified in beating his wife for each of the seven reasons—if the wife goes out without telling her husband, if the wife neglects the house or children, if the wife argues with her husband, if the wife refuses to have sex with her husband, if she does not cook food properly, if he suspects her of being unfaithful, and if she shows disrespect for in-laws. Overall, 54% of women age 15-49 and 51% of men age 15-49 agree with one or more reasons for wife beating.
National Family Health Survey (NFHS-3), 2005–06.
If H behaves rationally, then a necessary condition for him to use violence is to believe that such violence is justified in certain circumstances, i.e. W either taking or not taking some action X (such as the examples used in the survey). Assuming that H holds such a belief, can he actually use violence against W if those circumstances arise? In other words, is domestic violence “possible”? Flowchart 1 answers this question:
2. What are the possible outcomes of such a “possibility”?
There are 4 possible outcomes, as Flowchart 2 shows. These outcomes may arise individually or in combination with one another, each with a different “X”.
3. In what sense are these outcomes unjust?
Let’s look at each of them in detail:
A) W wants to do X, but does not do X, because she expects that H will use violence if she does X.
For example, W wants to go out for dinner with her friends, but expects that H will use violence if she does this, so she does not go.
C) W does not want to do X, but does X, because she expects that H will use violence if she does not do X.
For example, W does not want to accompany H to a family event, but she expects that H will use violence if she does not accompany him, so she does.
We can see that A and C are unjust because W is unfree, in the sense that the possibility of violence forces her to act against her will. Let’s call this sense of freedom “simple freedom”. According to this sense of freedom, a person is free as long as he is neither:
- forced to do something he doesn’t want to do, nor
- prevented from doing what he wants to do
by the expectation of violence by another person.
B) W does not want to do X (for her own reasons, which are unlikely to change), but she knows that there is an actual possibility of violence if she does X.
For example, W expects that H will use violence if she has an extramarital affair, but this does not affect her actions since she does not want to have an extramarital affair. We can see that she is free as far as simple freedom is concerned since she is not forced to act against her will.
D) W wants to do X (for her own reasons, which are unlikely to change), but she expects that H will use violence if she does not do X.
For example, W takes H’s permission whenever she leaves the house because she wants to respect her family’s traditions. She expects that H will use violence if she doesn’t take his permission to leave the house, but this doesn’t affect her actions since she would take his permission even if there was no possibility of violence. In this case as well, we can see that she is free as far as simple freedom is concerned since she is not forced to act against her will.
Is there any other sense in which B and D are unjust? Let’s see what happens when we stretch B and D to their extremes:
Consider the case of a wealthy woman M who secretly employs a servant S from another country to work in her house. S is not paid anything for his work but is otherwise treated well by M. M believes that she is justified in using violence against S if he refuses to work or tries to run away, and can do so without any negative consequences because nobody else is aware of S’s existence. S is aware of all of this, but is content with the work he does because he feels that it gives him purpose. He has no other desires or ambitions, nor does he have any intention of running away.
Even though S is free in the simple sense (because he is not made to act against his will), we intuitively feel that he is a victim of injustice, because for all intents and purposes, he is a slave. So we must ask: what is unjust about slavery if there is no formal system of ownership and the slave is not being forced to act against his will?
Slavery and Freedom
One observation we can make is that a situation can arise in which S is forced to act against his will if either
- M changes her mind about what actions S is required to take or prohibited from taking, and this happens to conflict with S’s wishes, or
- S changes his mind about what he does or does not want to do, and this happens to conflict with M’s wishes.
Of course, the possibility of a future injustice does not prove that there is an injustice taking place in the present. What is important is what effect this possibility has on S in the present, irrespective of whether it is ever actually realised:
Considering that M can use violence against S without any negative consequences to herself, all that is necessary for M to use violence against S is for her to decide to do it. She may clearly communicate to S what he must and must not do and never use violence unless S disobeys, but she is under no obligation to do this and can stop at any time. Nothing stops her from using violence in a fit of rage, or just because she feels like it. She has an absolute power to inflict violence on S with no constraints or accountability. The only thing stopping M from using violence against S at any given moment is herself.
This means that every time S does anything, he must constantly anticipate what M’s reaction to it will be. Even if M has been rational and reasonable so far and has never made S do something he did not want to do, S can never stop being attentive to unclear instructions M might give or changes in her mood, because the costs of making her unhappy are intolerably severe. He must endlessly work to stay on her good side and get her approval, because that may be what saves him from violence on some occasion in the future.
What makes S a victim of injustice is that his security from violence depends entirely on another person being considerate enough to grant it to him. His freedom is compromised because he can no longer make choices as an autonomous individual: he cannot act upon any thought as soon as it strikes him; he cannot change his mind impulsively and pursue whatever action he feels like pursuing at that moment. He is forced to worry about and anticipate what M’s reactions to those choices will be at every step.
This is the sense in which W is unfree in cases B and D: the fact that H has the power to use violence without any constraints or accountability means that W can longer act autonomously.
Domestic Violence and Freedom
The fundamental injustice at the heart of domestic violence is the loss of autonomy that W will suffer when her security from violence depends on H. Actual incidents of domestic violence are only a symptom of this more fundamental injustice, which arises not from the harm caused by domestic violence but from the mere possibility of it. It follows from all of this that the ideal outcome that the state should aim to create is not to eliminate incidents of domestic violence but to eliminate the possibility of domestic violence itself.
Can the Protection Of Women From Domestic Violence Act reduce the likelihood that domestic violence becomes a possibility? If a woman has been subjected to domestic violence by a husband or live-in partner (H), it grants a Judicial Magistrate the power to secure W’s safety from future incidents of violence by issuing orders to (among other things):
- Allow W to stay in their shared home and direct H to find accommodation somewhere else.
- Prohibit H from attempting to communicate with W or entering her place of work.
- Direct H to pay for the living expenses of W.
- Grant W temporary custody of their children.
If we believe that an ideal outcome is the elimination of incidents of domestic violence, these provisions seem important only to the extent that would make it easier for W to make use of the legal system and get justice.
However, if we believe that the ideal outcome is the elimination of the possibility of domestic violence, they are absolutely crucial, because they can make it more feasible for W to take drastic action. This can decide whether W will live freely and make choices autonomously, or will have to constantly anticipate H’s wishes and try to keep him happy so that she can be secure from violence.
Since the passage of the Protection of Women from Domestic Violence Act, it has faced heavy criticism for inadequate implementation, vagueness, potential for misuse and not being gender-neutral.
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Sharma, Neetu Chandra. “Protection of Women from Domestic Violence Still Awaits Implementation.” India Today. Living Media India Limited, 23 Dec. 2015. Web. 21 Aug. 2016.
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