Violence and the lawAs it explains, violence by men against women is a longstanding problem and remains widespread. Until recently it was sanctioned by the law's indifference. While it may not be possible to envisage a complete and comprehensive legal response to violence, either by the Commonwealth or the State and Territories, the level of tolerance of it in different areas of the law needs to be examined and addressed. A brief reading of judicial decisions across a range of different legal issues shows that violence is quite often a part of the background or context of a legal dispute but it is either ignored or treated as irrelevant. This is not to say, however, that courts always ignore or miss the violence in cases involving domestic relationships when the case is not one legally classified as 'about violence'. Indeed, the cases discussed below indicate that courts can respond to male violence against women. However, it was obvious from the response of women to the law that such judicial sensitivity to issues of violence was by no means uniform.
Gender bias and the judiciaryThe Senate Standing Committee on Legal and Constitutional Affairs has recently examined the issue of gender bias in the judiciary. Its May 1994 report concentrates on issues of sexual violence against women. The Committee found that stereotypes deriving from historical, social attitudes which did not accept women's status as equal, autonomous citizens continue to be used. While the Senate Committee focused on particular cases of sexual assault that had received widespread media coverage, they suggested that it was not an adequate response to the issue of gender bias merely to hold individual judges responsible. They saw the problem a real, significant but largely unconscious problem of a systemic nature calling for multiple solutions.
Violence and legal educationIn traditional legal education, violence against women is not typically a subject in the law course in its own right nor, more importantly, is it a topic in a general compulsory course such as property law, contract, equity or administrative law. While it is an essential and comparatively visible part of criminal law in courses in Australian law schools, it should also be a prominent part of all traditional law subjects. Violence is often part of the context of a case, or essential to understanding the dispute between the parties, even while it is not the central focus of the case. The federal Department of Employment, Education and Training (DEET) has recognised this by providing funds for the development of course materials on key thematic areas, including violence, for inclusion in core subjects within the law curriculum.
Violence extends beyond the criminal lawAs a result of the ways in which legal categories are structured, there is a tendency to see violence as relevant only to the criminal or quasi-criminal law, largely the responsibility of the States and Territories, and not to consider it as having any relevance to a range of other non-criminal law issues. There may well be a tendency not to recognise it at all in other areas. There has been considerable law reform effort in Australia around criminal law issues such as rape and sexual assault, violence by men against women in the home, child sexual abuse and homicide laws. The focus has been on male violence against women in its clearest and most direct forms. This work, evident in the reports of various task forces, committees and inquiries, including the National Committee on Violence Against Women, has been essential to make violence against women a more prominent concern in traditional criminal law. There has been much less attention to violence which arises less directly in the law and may take other forms. For example, women are subjected to a variety of different injuries. They may be harmed in their workplaces and the streets by sexual harassment. They may be vilified or infantilized or sexualized in media representations. They may be harmed in a seemingly infinite variety of forms of pornography. They may also be injured through medical abuses, particularly in relation to their reproductive capacities. As young women, they may be distinctively harmed by the juvenile justice system. Abuses against women are perceived as a 'by-product' of war. Yet male violence against women is routinely ignored outside criminal or quasi-criminal areas.
Legal responses to violence against womenThe law can respond to violence against women in a number of different ways, as an examination of violence against women in the home illustrates. These responses include enforcement of existing criminal laws, such as the law of assault; resort to quasi-criminal laws, such as the use of protection/restraining/apprehended violence orders; the use of administrative law remedies, such as a writ of mandamus to compel police to exercise their powers under the criminal law in appropriate cases.
The broader use of tort law
Existing tortsThere have been some successful attempts to address violence in the area of tort law, or civil wrongs. Actions for negligence have been brought in cases where the defendants have breached their duty to protect women at foreseeable risk of violence. Examples include an action against the police for failing to protect women against a known rapist and actions against landlords for failure to protect tenants from rape and other forms of assault. Negligence actions are potentially available against any body or person with a responsibility to protect the community or provide a safe environment, for example, a school or university, an occupier of a public building, or perhaps a local government authority with responsibility for street lighting. The tort of trespass to the person, which includes assault and battery, has also been used directly against perpetrators.
Developing new tortsTort law may also have the potential to develop other responses to violence. For example, in the UK there is currently debate over whether the law relating to nuisance and the tort of intentional infliction of emotional distress can deal adequately with harassment or whether a new tort should be developed. Tort law could develop 'a category sui generis for injuries suffered by individuals because they are women', using the understanding of social injury.
A new framework
There are many possible responses to the problem of violence against women and a variety of legal doctrines in which violence emerges as an issue. A complete legal response to violence might require a substantially reconstructed legal framework with a new category solely for the purpose of dealing with violence against women in all its forms. This is beyond the scope of what can be achieved in this reference.
The emergence of violence against women
In many cases violence against women may not be the issue before the court. However, a history of violence may emerge from a discussion of the background of the case. It can become a central part of the context of the case. The first three examples below form a case study of how aspects of the non-criminal law respond to 'domestic' homicide. These and the other examples here show how, by examining violence against women only through criminal or quasi-criminal law, its extensive incidence and effects in other legal and social contexts can be easily overlooked. The examples may also illustrate the link between violence and women's economic inequality.
Violence against women in case laws
Now I shall deal with the facet relating to offences against women. The offences are of various types. They find mention in many enactments. These under- mentioned provisions are enumerated in Indian Penal Code, 1860:
# Section 304-B ----- dowry death
# Section 354 ----- Assault or criminal force to woman
# Section 361 ----- kidnapping from lawful guardianship
# Section 366 ----- kidnapping, abducting or inducing a woman
# Section 372 -----selling minor for purposes of prostitution
# Section 376 ----- rape
# Section 376-A ----- intercourse by a man with his wife during separation
# Section 376-B ----- intercourse by public servant with woman in his custody
# Section 376-D ----- intercourse by any member of the hospital with any woman in that hospital
# Section 494 ----- remarriage
# Section 498 ----- enticing or taking away or detain a married woman
# Section 498-A ----- dowry cruelty
These are the main offences under the IPC against women. Certain offences are general against all women and certain offences are applicable in respect of married women.
Assault or criminal force to womanTe apex court in State of Punjab v. Major Singh, while dealing with section 354 had interpreted the term 'women' denoting female of any age. It further held that an offence which does not amount to rape may come under the sweep of section 354, IPC.
In this context the decision rendered in the case of State v. Musa is worth noticing. The aforesaid offence caught the eye of the nation when a senior police officer misbehaved with another senior officer belonging to the IAS cadre. The lady officer was slapped before the members of the elite society. Their Lordships (Supreme Court) observed that the observations made in the FIR were neither absurd nor inherently improbable. Finally the accused was acquitted.
In Rupen Deo Bajaj v. Kanwar Pal Singh Gill, the Supreme Court said that the offence under this section should not be treated lightly as it is quite a grave offence. In certain western countries privacy to person and even privacy to procreation are regarded as very sacrosanct rights and if this offence is studied in that prospect the offence would clearly show that it affects the dignity of women and, therefore, the accused of this offence, when proved, should be appropriately dealt with.
In People's Union for Democratic Rights v. Police Commissioner, Delhi, Police Headquarter and another, the supreme court after holding that the accused was guilty of offence under section 354 of IPC, awarded, to the victim, compensation which is to be recovered from the salary of the guilty officers.
RapePresently, I shall deal with the regard to offence of rape. Offence of rape is regarded as one of the most heinous crimes. Every person's physical body is a temple in itself. No one has the right to encroach and create turmoil. When there is any kind of invasion or trespass, it offends one's right. The right of a woman to live in her physical frame with dignity is an epitomization of sacrosanctity. An impingement or incursion creates a sense of trauma in the mind of the person. Not only does the body suffers but also the mind goes through such agony and tormentation that one may not be in a position to forget it throughout her life. She becomes a different person in the eyes of the society for no fault of hers. That apart the offence of rape is an offence which creates s a dent in the social marrow of the collective and a concavity in the morality of the society.
In State of Haryana v. Mange Ram, their lordships (Supreme Court) gave emphasis highlighting that the evidence in the case of this nature should be appreciated on broader probabilities and the judge should not be carried away by insignificant contradictions.
In State of A.P. v. Ganula Satya Murthy, the Supreme Court made an observation that it is an irony that while we are celebrating women's rights in all spheres we show little or no concern for their honour. Their lordships further observed that the courts must deal with rape cases with utmost sensitivity and appreciate the evidence of the totality on the background of the entire case and not on isolation.
An aspect which needs to be stated here is that a woman who has been raped is not an accompliance. She is the victim of a carnal desire. In a case of rape, corroboration need not be searched for by the judge if in the particular circumstances of the cases before him he is satisfied that it is safe to rely on the evidence of the prosecutrix. If the prosecutrix is able to give a vivid account of how she was subjected to sexual harassment and the intercourse, the same can be placed reliance upon and the conviction can be recorded.
In State of Maharashtra v. M.M. Madikar, it has been empathically laid down that there is rule or prudence requiring corroboration of the victims in a case of rape.
At this juncture I may state that sometimes the trial courts give emphasis on absence of physical injuries, lack of corroboration by medical evidence, non-raising of alarm, no evidence of showing resistance and such other ancillary factors. From these angles the prosecution is disbelieved or the court arrives at the conclusion that there is consent.
The apex court in the case of State of H.P. v. Mange Ram, has clearly laid down that if the prosecutrix submits her body under fear or terror the same would never amount to consent. In the said case their lordships also held that in the absence of any violence to the body of the victim in all circumstances would not give rise to inference of consent.
In State of Rajasthan v. N.K. , wherein the supreme court held that the absence of injuries on the person of the prosecutrix is not necessary to falsify the allegation or be regarded as an evidence of consent on the part of the prosecutrix.
Dowry cruelty and dowry deathThe other offences which relate to women and have become wanton and excessive are offences under section 304-B and 498-A. the apex court has given a broader meaning to the concept of cruelty enshrined under section 498-A of ipc. A case may not fall under section 304-B when ingredients are not fulfilled but when cruelty is otherwise proved, the trial judge is entitled to record a conviction under section 498-A. The ingredients which are necessary to be satisfied for an offence under section 304-B are as follows:
# The death of the woman is caused by any burns or bodily injuries.
# Occurs otherwise than under abnormal circumstances.
# And the aforesaid two factors spring within the seven years of the girl's marriage, and
# Soon after her death, she was subjected to cruelty and harrased by her husband or his relatives; and
# This is in connection with the demand of dowry.
Homicide and violence outside the criminal lawOne of the best known legal aphorisms is 'no man shall profit from his own wrong'. A common example given of this is the rule that a person cannot benefit under the will of someone that person has killed. However, the circumstances of some homicide cases, in which women have killed their husbands after a long history of abuse; have confronted some courts with the dilemma of how to apply this principle. For example, in a case the Supreme Court of Victoria was confronted with an application for probate by a woman named in her husband's will as his executor who had pleaded guilty to manslaughter. The judge noted that he had before him materials from the criminal proceeding, which demonstrated that the relationship involved violence or threats of violence directed by the deceased to his wife.
The cumulative effect of the deceased's behavior was to engender in his wife a very real and understandable fear of him.
After reviewing a number of authorities concerned with the principle, the Court decided, in view of its finding that her level of moral culpability was markedly diminished, that this was not a case in which the rule should operate to prevent the granting of probate. Similarly, in the NSW case Public Trustee v Evans, the Court decided that the forfeiture rule should not apply where the applicant had been subjected to a prolonged history of violence prior to the killing.
Social securityA co-ordinated response to domestic violence requires a rethinking of, among other things, housing and social security policies. In the context of social security, a history or current fear of violence may arise as an issue in a number of ways. For example, a sole parent may not wish to pursue child support from her former violent partner because she is in fear of him. This is a matter, which has been recognized by the Department of Social Security in its guidelines as forming a valid basis for an exemption from the obligation to pursue support from her ex-partner. Alternatively a woman may be overpaid entitlements as a result of pressure by a male partner to make a claim to which she is not entitled. It has also been suggested to the Commission that women who fear violence from their ex-partner may be more likely to plead guilty when confronted with criminal charges relating to overpayments, which may themselves flow from the violence by a partner. In one case recounted, a woman had pleaded guilty as she believed that this would prevent her ex-partner from finding her. It was suggested that if she had been prepared to plead not guilty and the matter gone to trial, she would most likely have been acquitted. It appears that there may be many situations in which men's violence against women (and children) may be central to the context of a case but not formally be an issue for decision. The Department of Social Security is preparing guidelines for staff on dealing with clients who are the targets of violence. However, this recognition of the impact of violence on clients has not been incorporated into the legislation which governs entitlements.
Suggestions and observations
# A wider social movement of educating women of their rights, to conquer the menace, is needed more particularly in rural areas where women are still largely uneducated and less aware of their rights and fall an easy prey to their exploitation.
# It is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunae in the evidence as otherwise the criminals would receive encouragement and the victims of the crime would be totally discouraged by the crime going unpunished.
# The courts are expected to be sensitive in cases involving crime against women. The verdict of acquittal made by the trial court in the case is an apt illustration of the lack of sensitivity on the part of the trial court.
# Another fact is delay in filing of F.I.R. in a case of rape it is dependent upon the facts of each case. The victim does not immediately rush to the police station to lodge an F.I.R. she has too overcome the trauma. There is consultation with the family members and a decision is taken. All these circumstances are to be kept in mind.
# It is noticed that some judges unnecessarily gives emphasis on the presence of spermatozoa in the victim's private parts. It is to be borne in mind that the definition of rape has a different connotation. A mild penetration would meet the ingredients of the crime. There may be several circumstances which affect the presence of the spermatozoa and hence, emphasis on the same is unwarranted.
Violence is a part of the background to many legal disputes, even though it is less frequently the central issue before a court or tribunal. The examples above are merely illustrations. Many others could have been chosen to make the same point.
Other areas of federal law which warrant some further scrutiny in this context include banking and insurance, and the now well-recognized phenomenon of 'sexually transmitted debt', or unconscionable guarantees; customs law regulating the importation of pornography and other material which is violent or contributes to the maintenance of women in a position of disadvantage; broadcasting law and the ways in which vilification of women is dealt with; employment, law and the centrality of sexual harassment as an occupational health and safety issue.
# Joti journal, October 2002, Vol.3, Judicial Officers' Training & Research Institute, High Court of Madhya Pradesh, (2002).
# Agnes, Flavia, Law and gender inequality- the politics of women rights in India, Oxford University Press, New Delhi, (1999).
# Graycar, R., & Morgan, J., The Hidden Gender of Law, Federation Press, Sydney (1990).
# Commonwealth to Stamp Out Gender Bias in Law Curricullum, Media Release from Minister for Employment, Education and Training 23 March 1994.
# Manorama Yearbook, 2003, 38th publication, Malayala& Manorama, Banglore, (2003).
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