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Veena Oldenburg (2002)Dowry Murder: The Imperial Origins of a Cultural Crime
(2009)Decriminalising Homosexuality in India, Reproductive Health Matters
Ruth Vanita, Saleem Kidwai (2000)Same-sex love in India : readings from literature and history
L. Gostin, John Monahan, J. Kaldor, Mary DeBartolo, E. Friedman, K. Gottschalk, Susan Kim, A. Alwan, A. Binagwaho, G. Burci, L. Cabal, K. Deland, T. Evans, E. Goosby, S. Hossain, H. Koh, G. Ooms, Mirta Periago, Rodrigo Uprimny, A. Yamin (2019)The legal determinants of health: harnessing the power of law for global health and sustainable development
Lancet (London, England), 393
G. Gangoli, Gopika Solanki (2016)Defining Domestic Violence and Women's Autonomy in Law
Catherine Turner (2016)Violence, Law and the Impossibility of Transitional Justice
G. Gangoli, M. Rew (2011)Mothers-in-law against daughters-in-law: Domestic violence and legal discourses around mother-in-law violence against daughters-in-law in India
Womens Studies International Forum, 34
G. Gangoli, L. Bates, M. Hester (2020)What does justice mean to black and minority ethnic (BME) victims/survivors of gender-based violence?
Journal of Ethnic and Migration Studies, 46
Nivedita Menon (2012)Seeing Like a Feminist
M. Hester (2013)Who does what to whom? gender and domestic violence and perpetrators
Bhumika Jhamb (2011)The Missing Link in the Domestic Violence Act
Nivedita Menon (2004)Recovering Subversion: Feminist Politics Beyond the Law
(2015)citation_author=Basu S.; citation_publisher=University of California Press, California; The Trouble with Marriage: Feminists Confront Law and Violence in India
Srimati Basu (2015)The Trouble with Marriage
Jon Wilson (2011)The Domination of Strangers: Time, Emotion and the Making of the Modern State in Colonial India
Economic and Political Weekly, 46
E. Stark (2007)Coercive Control: How Men Entrap Women in Personal Life
A. Kalokhe, C. Rio, K. Dunkle, R. Stephenson, N. Metheny, Anuradha Paranjape, S. Sahay (2017)Domestic violence against women in India: A systematic review of a decade of quantitative studies
Global Public Health, 12
Abstract This article is a response to the Lancet Commission on the Legal Determinants of Health from gendered perspectives and focusing on gender-based violence and abuse. The Lancet Commission sees the role of law as positive, indeed central in providing justice in global contexts, and this contribution explores and unpacks this assertion, drawing on some examples from India and elsewhere. Some feminists have argued that law and justice are incompatible for women, and this is sometimes borne out when we look at legal reforms and interventions in the field of gender-based violence. However, we also explore the ways in which some women have used legal reforms in creative ways to destabilize patriarchal norms, and more broadly, how absence of legal protection can undermine access to rights. We conclude that law can have a symbolic relationship with justice. Introduction The Lancet Commission on the Legal Determinants of Health sees the role of law as positive, indeed central in providing justice in global contexts, and aims ‘to enhance the global health community’s understanding of law, regulation, and the rule of law as effective tools to advance population health and equity’ (Gostin et al., 2019). This article will explore the relevance of this statement in the light of Hawkes and Buse’s (2020) excellent observations on the Lancet Commission, where they argue that legal intervention would benefit from more recognition of the role of gender as a key determinant in accessing well-being and health, particularly focusing on gender-based violence as a key issue for health and well-being. There is rich evidence that gender-based violence contributes to poor health and well-being particularly for women and children at a global level, with one in three women experiencing some form of gender-based violence during their lifetime (WHO et al., 2013). To illustrate the ways in which gender intersects with location, law and well-being in complex ways, we will be drawing on some examples mostly from India, but also from other parts of the world. For the purposes of this contribution, gender-based violence is understood as rooted in gender inequality, and as violence and abuse directed at someone due to their biological sex, sexuality or gender identity (EIGE, 2020). Gender-based violence is something experienced primarily by women, and perpetrated by men, with health and well-being impacts being worse for women victims than male victims of gender-based violence (Stark, 2007; Hester, 2009). I will start with reflecting on some theoretical challenges posed by feminist scholars on the vexed question of the role of law in providing justice in situations of gender-based violence, and then try to illustrate the issues in different international contexts. Theoretical Challenges to the Role of Law The Lancet report reflects on the benign role of law in improving the lives of people. However, feminists in particular have challenged the idea of transformative justice through law. Debates on law and gender-based violence have for long raised the disjuncture between law and justice, particularly in cases of gender-based violence (e.g. Turner, 2016), with Menon (2004, 2012) making a case for feminists to recognize the impossibility of justice through law and legal change. This is an important and powerful argument, and this has resonance in some cases of gender-based violence. Levine (2017), writing on the globaI #metoo campaign further argues that ‘the more we entrust the state to mete out justice for sexual infractions, including harassment, the more we collude in the manner in which it administers “justice”’, also suggests that the nexus between the state, law and feminism can never work in favour of women. Law as Discrimination It can be safely argued that women in India have suffered discrimination from legal remedies, even after feminist intervention and reform in the law. One example of this are the laws banning sex determination in India (1994, 2003), which were in part a response to feminist campaigning on the skewed sex ratio in India, attributed to sex determination and the pre-selection and selective abortions of female foetuses in India. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003, makes it illegal to determine the sex of the unborn child or use sex-selection technologies. The law first came into force in 1996 as the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse Act, 1994) and was amended in 2003 to bring techniques of preconception sex selection within the ambit of the Act. The 1994 and 2003 laws, while important steps to prevent female foeticide, posed two feminist dilemmas. One that in addition to criminalizing the medical acts of sex determination and preconceptual techniques, they also criminalized the women who aborted female foetuses, seeing women as complicit in the act, rather than considering socio-structural and gendered inequalities. Secondly and perhaps conversely, preventing abortion in any form can also be seen as a form of control over women’s bodies. Women in India have the right to medical abortion, except in the case of women who may not desire female children (Menon, 2004). The act therefore poses a philosophical feminist legal dilemma—do Indian women have the right to be born, do Indian women have the right to choose the sex of their child(ren), and when are the limits to women’s reproductive freedoms justified? Similarly, laws against domestic violence in India have been reformed, mostly as a response to feminist intervention, leading to the criminalization of domestic violence in 1983 (Section 498A Indian Penal Code); and an excellent law on domestic abuse in 2005. Section 498A includes dowry-related extortion and dowry-related domestic abuse within its purview, as dowry demands are seen as the particular form that domestic violence in India takes (Talwar Oldenburg, 2002). Section 498A in particular has been criticized severely, and has led to a severe backlash against women and women’s organizations in India, with concerns raised by men’s rights organizations, the police and the judiciary about the misuse of these laws by women (c.f. Gangoli and Rew, 2011; Jaiswal, 2017). Many of these claims of misuse are based on the high number of withdrawals of cases by women after arrests are made, and these cases are therefore seen by the criminal justice system as ‘false cases’ filed by women in cases of marital dispute, rather than domestic abuse. In reality, women in situations of domestic abuse find themselves struggling to find justice from the criminal justice system, and there is evidence that only 2 per cent of women who experience domestic abuse report it to the police (Jhamb, 2011; Kalokhe et al., 2017). The 2005 law was also a direct consequence of Indian feminist intervention and engagement, and the role of women’s organizations in drafting the Act has been noted as a ‘landmark victory’ for feminists (Solanki and Gangoli, 2016). The law moved away from criminal protection (as it is already covered under Section 498A); and included civil protection for women in violent relationships, including single women and cohabiting women, extending to women in domestic abuse situations the right to matrimonial property, providing for injunctions and allowing for non-governmental organizations (NGOS) to intervene and extend support (Solanki and Gangoli, 2016). However, the 2005 law has also faced many problems of implementation and interpretation. In a judgement in 2007 (Sonia v Vinod, 2007, cited in Solanki and Gangoli, 2016), it was stated that there was no evidence that a respondent was suffering domestic violence, because the respondent had left her marital home and was perceived as not behaving in a traditional manner towards her husband and his extended family. Furthermore, while there is a strong feminist movement in India, there is not enough provision for feminist intervention in individual cases of domestic abuse, and that can leave women in domestic abuse situations bereft of protection. Law as Empowerment While laws can be ineffective, conversely, the absence of legal protection can lead to human rights violations for marginalized groups. An example of this has been under Section 377, of the Indian Penal Code which was introduced in India in 1860 under colonial rule, criminalizing sex between men, and ‘unnatural’ sex between men and women. In particular it has been used, until its abolition as an instrument, particularly by the police in order to terrorize, coerce and blackmail lesbian, gay, bisexual, and transgender (LGBT) communities in India (Vanita and Kidwai, 2001). Similarly, the absence of welfare and legal rights for women with insecure immigration status, including refugee and asylum-seeking communities in different parts of the world, increases women’s vulnerability to abuse in situations of gender-based violence. Research by the author on the experiences and perceptions of justice for black and minority ethnic (BME) women experiencing domestic and sexual abuse in the UK found that there was a difference in access to legal justice for women with insecure immigration status and British born women from an ethnic minority background (Gangoli et al., 2019). BME women’s perception of legal justice alluded to inequalities based on ethnicity and implicit racism within legal systems. (justice is) fairness, fair dealing, and equal treatment in law (Salma, Pakistani, victim of HBV).1 For women with insecure immigration status, justice is inextricably linked to this status. Justice in this context also includes access to resources, where women with insecure immigration status do not have access to a range of welfare provisions that British women and those with secure immigration status (indefinite leave to remain) have. Asha, a woman from India, had applied for asylum on the grounds of her domestic abuse explained that ‘I cannot get justice yet because after 5 years… still fighting to gain asylum, I still haven’t got a visa’. Law and Positive Outcomes in Cases of Gender-Based Violence This section will explore whether law and legal interventions have positive impacts for victims of gender-based violence, and consider whether law and legal interventions are or can be effective in preventing gender-based violence, and whether they can at the very least have some positive outcomes for women in situations of gender-based violence. If not, can non-legal interventions may be more effective in providing justice? I will now focus on two specific examples of how legal interventions may or may not pave the way for gender justice. Firstly, I will consider the symbolic importance of law and legal changes in situations of gender-based violence. Laws against sex determination, domestic abuse and other forms of gender-based violence can send a powerful message that these acts are not acceptable in law, and that social norms should follow suit. Returning to India it is clear that the judicial abolition of Section 377 Indian Penal Code in 2018, after a protracted legal battle following an appeal by the Naz Foundation, an NGO working on HIV/AIDS prevention brings out some of these issues. The Supreme Court judgement has been rightly celebrated by activists in the LGBT community as a moment of victory, and a recognition of the rights of LGBT communities to love and live freely (Suresh, 2018). However, Misra’s paper (2009) after the Delhi High Court judgement abolishing Section 377 (which was subsequently overturned) warned against the dangers of being content with legal change and argued that wider social change and acceptance of same sex relationships is vital, and that police harassment of gay and lesbian populations may not cease with the judgement. This is a fair point, given that the Indian police have in the past misused this law to harass lesbian women, and threaten them with social exposure, even though Section 377 did not prohibit sex between women. Furthermore, Section 377 criminalized sexual acts between men, not homosexual relationships. However, the police used the law, and the threat of the law to sanction and control public displays of affection, including kissing and holding hands between same sex couples. In other words, the police misused their powers to control the public behaviour of what they deemed inappropriate behaviour, even where that behaviour was not specifically prohibited by law. Misra (2009) points to the reform of Section 377 as a big step for sexuality rights, and suggests that it introduced, for the first time in South Asia, the idea of sexual citizenship, offering hope for other marginalized communities. This is based on the idea that changes in law can send a powerful and symbolic message to society, and that social mores must change in response to these changes. Furthermore, the absence of legal protection for specific populations can send a powerful message that legitimizes oppression and marginalization. There is also some evidence that despite the limitations of domestic violence legislation in India, it has had benefits for women. Research has indicated that the claims of ‘misuse’ of domestic violence legislation by men’s rights groups need to be seen in the context of how women in situations of marital dispute and domestic abuse may use the criminalization of domestic violence and anti-dowry legislation to get relief and possibly escape from their marital families. In the absence of alternative refuge provision and lack of opportunities for single women, married women are known to ‘use’ Section 498A by filing cases of dowry extortion and abuse against their in laws and husbands, and then to offer the withdrawal of these claims to secure concessions, such as separate households from in-laws or ‘permission’ to work outside the home (Basu, 2015). We interpret this not as ‘misuse’ but creative bargaining and use of legal provisions by women, particularly in the absence of other forms of social and familial protection. Concluding Thoughts In conclusion, links between law and justice can often appear tenuous, and at times the Lancet report appears quite abstract, seemingly not engaging with varied cultures and the complex realities of social life. It is evident that vague appeals to procedural aspects of legal systems will not change the lived reality of women’s lives, where the changes are not made in tandem with non-legal interventions that may arise through social movements. However, there is some scope to argue, based on the evidence above, that legal reforms, even where partial and contradictory, can help in some situations of gender-based violence. Arguably, the abolition of Section 377 is a testament to the strength of social movements that pose a challenge to the heteronormativity and homophobia in Indian society, though legal changes alone will not abolish these traits. It is also important to note that the absence of legal protection can leave women even more vulnerable to abuse. 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Public Health Ethics – Oxford University Press
Published: Apr 1, 2020
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