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Human Rights Versus Gender Violence In The American Society: A Socio-Legal Approach

Violence against women constitutes the single most prevalent and universal violation of Human Rights. Around the world at least one woman in every three has been beaten, coerced in to sex or otherwise abused in her lifetime .The effects of violence can be devastating to a woman’s reproductive health as well as to other aspects of her physical and mental well-being. The United Nations, in keeping with the spirit of the U N Declaration of Human Rights works in many ways to eliminate this morally unacceptable scourge. One such effort in 1998-99 focusing attention on the issue of Gender Violence is the U N International Agency Campaign on Women’s Human Rights in Latin America and Caribbean to combat violence against women. The Campaign for Women’s Rights aims at altering society to the universal prevalence and the unacceptable high social and economic costs of Gender Violence. In Central America violence against women is rampant. It is estimated that one out of every two women suffers physical abuse at sometimes during her life. According to Dory Magnussen who is involved in a Pan American Health Organization Project to combat family violence, “ Women are taught that they are property of men, and men are taught that women and children are their property. This is very sexist culture. The only place most men can exert any kind of power is over their family”. Deprivation, discrimination and different forms of atrocities are all linked to one another and are manifestations of the gender ideology.

Violence against women includes physical, sexual, Psychological and economic abuse. It is often known as gender-based violence because it evolves in part from woman’s subordinate status in society. Many cultures have beliefs and norms and even social institutions that legitimize violence against women. The pathetic side of it is that it still happens in this era of universal human rights. Is it not true that the word ‘Human’ includes women too? The most sarcastic and humorous element is that this gender violence is an ongoing process in the so-called highly sophisticated class in the land of culture- United States. It would be amusing to learn that almost one half of the women in this country is still victims of wife beating and battering. Still a woman is beaten by her partner in the United States every fifteen seconds.

Can we believe that women’s human right is an abstract concept? Absolutely not. Every time a woman stands up for her rights, she is standing on the shoulders of women around the world who during the last decade have made women’s human rights the focus of world attention. No one has anticipated that the 1993 World Conference on Human Rights would bring women’s human rights to center stage in world human rights discussions. Although the nations of the world may have agreed to raise the issue of women’s human rights at the world conferences, there is still a long road ahead before the commitments are fully realized. But in this dawn of the new millennium women raised the level of awareness about the unending violence against them.

More US women are in the workforce than ever before, but many of the jobs open to women are those at the lowest pay. Women workers in various parts of the country are pioneering a new style of organizing that emphasizes the interconnections between women’s responsibilities in the work place, the family and the community. The increasing globalization of the world economy has put women’s social economic and cultural rights in great jeopardy. Seventy percent of the world’s poor are women.

Violation against women can be viewed as a global health care problem rather than just a law enforcing matter. Besides immediate physical injuries, abuse also has been linked to problem pregnancies, substance abuse, gastrointestinal disorder and chronic pain syndromes, perhaps due to anxiety. Heise, the co-director of the Center for Health and Gender Equity said, “Women who have a history of abuse are at much higher risk of having these chronic conditions than other women.” An Indian study found that women who have been beaten were more likely than other women to have miscarriages, stillbirths or infant deaths. Health care providers can do much to help the victims of gender-based violence. They can provide medical treatment, offer counselling and refer their clients to legal assistance. No doubt, abuse has a major impact on women’s reproductive health and sexual well-being. Providers cannot do their jobs well unless they understand how violence and powerlessness affect women’s reproductive health. They can reassure women that violence is unacceptable and that no women deserves to be beaten, sexually abused, or made to suffer emotionally.

Due to patriarchal family and social structures, girls in many areas of the world are considered a burden, and women do not have the same access to power and status as men do. The negative consequences of sexism and gender discrimination play out at every stage of a girl s life and may jeopardize her safety and life. In India, for example, the abortion of female fetuses is very common, and female infanticide is reportedly still practiced in China. During infancy, a girl may be breast-fed for a shorter period of time and get less food and nurturing than her male counterpart. She is also less likely to be given medical attention and treatment for illnesses. Every year, 500,000 women and girls worldwide die during pregnancy or childbirth; a quarter of these are teenagers. Other forms of gender-based persecution include rape and sexual abuse, widow and bride burning, and female genital mutilation. A woman who deviates from social norms may be disowned by her family, harassed by her community, or abused by members of the government . Rape of children and women is a common warfare tactic used to torture, humiliate, and control the victims, as well as psychologically hurt their families who are often forced to witness the crime. The more pathetic side of it is that even in this era of universal human rights the US women still undergo such deplorable and devastating humiliation.

Another important aspect is the violation of human rights of the refugee women, especially in the United States. Although women are not powerless victims, and the strength and courage of immigrant and refugee women is as great as the obstacles they must overcome, it is important to be aware of the gender-specific challenges they face. The women and children constitute 80 percent of the world s refugees, although their specific concerns have traditionally been neglected in refugee work and immigration policy. Only in the past 15 years has there been growing international recognition and awareness of gender-specific questions relevant to the determination of refugee status, immigration training and policy. For example, how does gender discrimination influence and interfere with a girl s physical and mental development? How do wars, poverty, and natural disasters render women even more vulnerable to abuse? What are the risks for refugee women in particular? Are women free from risk once they reach their country of asylum? .

Women and children may lack the mobility and resources that would enable them to seek asylum in Western countries. Gender-based persecution is not one of the universally accepted grounds for refugee or asylum status, and the extent to which gender issues are taken into account in determining asylum claims depends upon the specific policies of individual countries. In some countries such as Canada and certain European countries, for example, asylum can be granted to women solely on grounds of gender-based persecution, while in the United States, many immigration judges and attorneys have traditionally treated violence against women as private and not public persecution.

In terms of international law, the United Nations High Commissioner for Refugees, which oversees the protection of refugees, has adopted measures such as the 1990 Policy for Refugee Women, the 1991 Guidelines on the Protection of Refugee Women, and the 1995 Sexual Violence Against Refugees: Guidelines on Prevention in recognition of the specific needs and concerns of women. There is still, however, a great need for increased understanding of the ways in which gender compounds the effects of poverty and oppression. Once they have fled their country of origin, women are not necessarily free from victimization. In fact, the particular circumstances of refugee women place them at high risk for sexual violence, including sexual threats, assault, exploitation, and molestation. Both during their flight and in their country of asylum, refugee women may be assaulted by guards or other officials meant to protect them.

According to the United Nations High Commissioner for refugees, female heads of household, unaccompanied women and children, children in foster care situations, and women being held in detention are most likely to be subjected to sexual violence. Women’s vulnerability is heightened by the fact that they are in unfamiliar territory and are often dependent on unknown men in refugee camp. In some extreme cases, women have returned to the country from which they were fleeing due to the abuse they suffered as refugees. Though the refugee men are also victims of violation of human rights in many respects, comparatively the women are becoming bitter victims. Not all women who come to the United States are fleeing persecution or are candidates for asylum, but all are seeking a better life. There has been increasing attention over the past decade to domestic violence within immigrant communities in the United States. As the legal means by which immigrants can gain legal permanent residency become fewer and more restricted, the vulnerability of women to abuse by a spouse or employer increases. The 1994 Violence Against Women Act (VAWA) contained provisions to protect battered immigrant women and their children. Although this Act was a first step towards protecting battered non-citizens and their children, its scope is somewhat limited. The Violence Against Women Prevention Act was recently introduced in Congress to expand upon and improve VAWA s provisions.

Now let us come to the legal approach towards this gender violence, which is the most unacceptable form of human right violation. The US Supreme Court has agreed with lower courts that violence against women is not a matter of federal concern. Chief Justice William Rehnquist held that Congress exceeded its authority to write laws when it enacted the Violence Against Women Act, which provided for a federal civil cause of action for victims of gender-based violence. A federal district court and the Fourth Circuit Court of Appeals had previously made the same rulings, but the Supreme Court always accepts review when a federal statute has been declared unconstitutional.

Although the legal system is described as one system, a central problem encountered by women experiencing domestic violence is that there are essentially two legal systems. One is the criminal justice system, which is regulated by federal law and administered by the province. In this system the state or government takes action against individuals for crimes against society. The injured person, or "victim", is a witness for the government's case. The other system is the civil law or private law system, which regulates legal issues between individuals. Family law, which regulates custody, maintenance, matrimonial property, marriage and divorce are part of this system. It should be noted that even within this system there is further division in that the federal government regulates some family law matters and the province regulates some. For example, the federal government regulates divorce but the province regulates property. This means that although her spouse may be trying to injure or murder her, a woman may still share property with him or be dependent on him for maintenance of any children they may have.

In discussing the court system it is important to understand that women deal with two different court systems. The criminal court system and the civil or family court system. This fact, which largely arises from historical and constitutional reasons, is probably one of the most significant problems for women in Nova Scotia and Canada who are experiencing domestic violence. This is made worse for women in Nova Scotia by the fact that the family law court system is itself made up of two levels of courts dealing with different but sometimes overlapping family matters. The lack of complete family law jurisdiction in any one court can provide many problems for women. In many provinces the family law system has been "unified" so that there is a unified family court, which can deal comprehensively with most non-criminal family law matters. Several assaulted women and shelter workers said that it is easier for women to go through Family Court than Provincial criminal court. The Family Court is perceived to be more supportive of their situation for peace bonds and for assault charges. The physical facilities in the courthouse are also relevant. For example, having to wait in the same waiting room as her abusive spouse before a case is intimidating and dangerous for a woman. It was repeatedly expressed by women that delays caused by an overloaded court system are a major problem.

The comments regarding the judging of domestic violence cases made in the course of the consultation process fell into two main categories: the attitudes of judges towards domestic violence and sentencing patterns for domestic violence offenses. It was stated that while increasingly there are judges who treat domestic violence cases seriously and appropriately, there is a feeling that some judges have very little understanding of domestic violence. A number of women who went through the criminal court process described the judge as uncaring. Comments made with regard to sentencing for domestic violence offences suggests that there is a feeling amongst assaulted women and shelter workers that some judges may be beginning to treat domestic violence more seriously. However, there was still a sense that sentencing is very inconsistent and that, on a whole, the sentences are too lenient.

The greatest problem for women lies in the failure of the government to comprehend and respond to domestic violence as a serious problem. That will require fundamental changes to institutional structures and resources to eradicate it. One of the more important problems is to change the legal system so that violence in a family can be dealt with by the law as a crime. International, national and federal and provincial studies have established that domestic violence exists, that it is, in most cases, a gendered crime and that the justice system has not proved to be effective in responding to the problem. Instead, it will further endanger the lives of women in this situation.

Written by: Dr. N. Krishna Kumar - Associate Professor, Government Law College, Thiruvananthapuram.

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