Shades of Grey - Domestic and Sexual Violence Against Women

Law Reform and Society

Anna Carline, Patricia Easteal

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9780415622172
• eBook ISBN: 9781317815235
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Arguing that law must be looked at holistically, this book investigates the 'hidden gender' of the so-called neutral or objective legal principles that structure the law addressing violence against women. Adopting an explicitly feminist perspective, it investigates how legal responses to violence against women presuppose, maintain and perpetuate a certain context that may not in fact reflect women's experiences.

Carline and Easteal draw upon relevant legislation, case law and secondary studies from a range of territories, including Australia, England and Wales, the United States, Canada and Europe, to contextualize and critique different policy responses. They go on to examine the potential and limits of law, making recommendations for best practice models of policymaking and law reform.

Aiming to help improve government, community and legal responses to women who experience violence, Shades of Grey – Domestic and Sexual Violence Against Women: Law Reform and Society will assist law-makers, academics, policymakers and a wider audience in understanding the complexities of violence against women.

1 Introduction

DOI: 10.4324/9781315817958-1

Magnitude of the issues: our raison d’être

From crime victim surveys conducted globally, it would seem that violence against women remains a serious problem. For example, a 2013 prevalence study using data from 141 studies of intimate partner violence in 81 countries found that globally 30 per cent of women aged over 15 had experienced violence from a partner – that means that almost one-third of women were survivors of domestic violence.¹ This is a disturbingly high proportion, yet the actual numbers are likely to be even higher. For instance, in the context of rape: ‘It is generally accepted in sexual assault research that undercounting is much greater than over-counting … Therefore, any statistical data available are likely to be an underestimation’.²

¹ Australasia – 28.29 per cent, compared to 19.30 per cent in Western Europe, 16.30 per cent in East Asia and 65.64 per cent in Central Sub-Saharan Africa: K.M. Devries et al., ‘The Global Prevalence of Intimate Partner Violence Against Women’, Science 340(6140), 2013, 1527–1528, p. 1528 ² C. Tarczon and A. Quadara, ‘The Nature and Extent of Sexual Assault and Abuse in Australia’, Resource Sheet, Melbourne: Australian Centre for the Study of Sexual Assault, 2012, p. 14. The reasons for underestimation of both rape and domestic violence might include low levels of disclosure, shame and an inability to self-identify. These are discussed in later chapters

There is no doubt that violence against women is a major global public health issue and a significant human rights concern. The impact is not only felt by individual women and families, but also by the state, and it has been estimated that violence against women costs the United Kingdom £37.6 billion each year.³ However, only a minority of those victimised disclose or report.⁴ For those who do report, as we see in the following pages, the response is often problematic. Using comparative material, and a feminist and contextual approach, our intention is to shed more light on the legal responses to domestic violence and sexual assault. By drawing upon a range of material primarily from Australia and England and Wales but also from the United States, Canada and European countries, we explore the range of laws and reforms which have been introduced, and highlight the indeterminacy of legislation and how that translates into decision-making. This exploration of indeterminacy will demonstrate how legal discretion permits the continued circulation of myths, stereotypes and misconceptions regarding femininity and violence against women – a circulation which at times works to defeat the aims of legislation and policy to respond in an effective manner, whether in terms of reducing incidence or protecting and providing justice for victims.

³ HM Government, The Equality Strategy – Building a Fairer Britain, 2010, p. 8 ⁴ Statistics are provided in Chs 4–10

The feminist and holistic perspective

Our critical analysis will be explicitly feminist. Throughout the book, we will draw upon a range of feminist theories in order to explore how the law has responded to violence against women. This will not only highlight the many successes of feminist activism in bringing about productive law reform, for example changes to the law of rape,⁵ but also draw attention to and lament the law’s inadequacy. Throughout this analysis, we adopt a coalitional and contingent approach to feminist theory, or, to borrow a phrase from Halley, ‘a politics of theoretic incommensurability’.⁶ Hence, we draw upon a wide variety of perspectives – from radical feminism to queer theory – in order to highlight and explore not only the law’s failure, but also its productive potential.

⁵ See further the discussion by K. Cook and H. Jones, ‘Surviving Victimhood: The Impact of Feminist Campaigns’, in S. Walklate (ed.), Handbook of Victims and Victimology, Abingdon, Oxon: Routledge, 2nd edn, 2011, 125–145 ⁶ J. Halley, Split Decisions: How and Why to Take a Break from Feminism, Princeton: Princeton University Press, 2006, p. 2

Undoubtedly, many of the feminist theories we utilise cannot be harmonised. Significant contradictions and disagreements exist. However, the aim of the book is not to develop a unified feminist jurisprudence. Moreover, it is doubted whether such unity is either possible or desirable. Rather, we see disagreement and divergence as a potential ground for productive engagement. Butler notes:

As a democratic enterprise, feminism has had to forfeit the presumption that at base we can all agree about some things or, equivalently, to embrace the notion that each of our most treasured values are under contestation and that they will remain contested zones of politics.⁷

⁷ J. Butler, Undoing Gender, New York: Routledge, 2004, p. 175

In contrast to leading to an interminable cycle of internal self-reflection which prevents any ‘active engagement in with the world’,⁸ Butler maintains that ‘resisting the desire into unity is precisely what keeps the movement alive’.⁹ Furthermore, we find that by adopting an eclectic approach to our feminist theory we are able to delve into the myriad ways in which law and policy construct the issue of violence against women and frequently work to exclude, silence and stereotype victims. This, in turn, allows an exploration of a diverse range of reforms and potential solutions. The issue of violence against women is complex; it therefore stands to reason that no one feminist perspective in and of itself will exhaust the field of possibilities.

⁸ Ibid. ⁹ Ibid.

In addition to the feminist approach, we are writing from an holistic perspective and consider violence against women, legal processes, the practitioners’ actions and the substance of laws as both interrelated and as incomprehensible without an understanding of the cultural landscape. As we discuss at p. 6 and in Chapter 2, that socio-legal landscape is undulating. It presents obvious and obscured obstacles for women accessing legal remedies in general and even more so for survivors of violence. Hence, even if the letter of the law is reformed to respond more effectively to violence against women, other barriers frequently exist.

Even what is perceived of as violence against women is context dependent. As we will explore throughout the chapters, over the years feminist theory and activism have drawn attention to the impoverished manner in which the law has conceptualised violence against women. By engaging in a genealogy of law and reforms, we can see that the state and the judiciary have frequently failed to acknowledge a range of abusive behaviour as amounting to activity that should raise concern, and we will show how this has been challenged from a variety of feminist perspectives. Furthermore, there is an ongoing heterogeneity in what is defined within a culture as domestic violence and as rape. Accordingly, a cross-cultural analysis of ‘wife beating’ identified variation in derivation and definition.¹⁰ Generally across cultures, a common denominator is evident though. Male domination translates into a higher incidence of violence against women; therefore ‘high levels of female empowerment … [are] protective against intimate partner violence’.¹¹ Male dominance is associated with a number of societal characteristics, such as a gendered division of labour in which activities undertaken by men are more valued, male control of resources and a separation between the public and the private spheres.¹²

¹⁰ J. Campbell, ‘Beating of Wives: a Cross-Cultural Perspective’, Victimology 10(1–4), 1985, 174–185 ¹¹ R. Jewkes, ‘Intimate Partner Violence: Causes and Prevention’, Lancet 359(9315), 2002, 1423–1429, p. 1425 ¹² L. Lindsey, Gender Roles: A Sociological Perspective, New Jersey: Pearson Higher Education, 5th edn, 2010

In Chapter 2, we describe the persistence of these variables in western countries such as Australia and England and Wales. In Australia, for example, there is a strong historical basis to the subordination of women with some theorising that the culture has ‘never outgrown the former attitude, and our women are still deeply, if unconsciously, impoverished by this dominant cultural characteristic’.¹³ Although there have undeniably been advances for women, as we will see the division of labour within the home remains largely gendered. We agree with Margaret Thornton who wrote that significant changes in ‘sexual relations cannot take place without addressing the anomalies which exist in the private sphere in the sense of family’.¹⁴

¹³ M. Dixson, The Real Matilda: Women and Identity in Australia 1788 to the Present, Sydney: University of New South Wales Press, 4th edn, 1999, p. 1 ¹⁴ M. Thornton, The Liberal Promise Anti-Discrimination Legislation in Australia, Melbourne: Oxford University Press, 1990, p. 102

A lot has been written about Australian mateship in the bush, with male dominance continuing to be normative.¹⁵ However, such sexism (and misogyny)¹⁶ is not confined to the bush:

¹⁵ R. Hogg and K. Carrington, Policing the Rural Crisis, Sydney: Federation Press, 2006; S. Sharma and S. Rees, ‘Consideration of the Determinants of Women’s Mental Health in Remote Australian Mining Towns’, Australian Journal of Rural Health 15(1), 2007, 1–7; S. Jamieson and S. Wendt, ‘Exploring Men’s Perpetrator Programs in Small Rural Communities’, Rural Society 18(1), 2008, 39–50, p. 48 ¹⁶ ‘Sexism goes hand in hand with misogyny. Sexism provides the rationale for misogyny’: A. Summers, The Misogyny Factor, Sydney: New South Publishing, 2013, p. 8

systemic beliefs and behaviour … are predicated on the view that women do not have the fundamental right to be part of society beyond the home … [T]he misogyny factor is that set of attitudes and entrenched practices that are embedded in most of our major institutions (business, politics, the military, the media, the church, academia) that stand in the way of women being included, treated equally and accorded respect …^17...

Table of contents

• Cover
• Half Title Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• 1 Introduction
• 2 The cultural context
• 3 The indeterminacy and discretion of law (reform)
• 4 Domestic violence and criminal law response
• 5 Domestic violence civil legislation
• 6 Domestic violence and family law
• 7 Battered women who kill
• 8 Consent, corroboration and recent complaint in rape and sexual assault
• 9 More on myths and indeterminacy in sexual assault law
• 10 Partner rape
• 11 Violence against ‘other’ women
• 12 Conclusion
• Index