Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Thursday, September 30, 2010

Kapai: "Minority Women: A Struggle for Equal Protection Against Domestic Violence"

Puja Kapai (Faculty of Law, University of Hong Kong) has posted "Minority Women: A Struggle for Equal Protection Against Domestic Violence" (forthcoming Cambridge University Press) on SSRN.  Here is the abstract:

Feminist legal scholars, long distraught over the failure of the law and its institutions to account for their impact on the realities that women experience, have fought hard against the masculinity and patriarchal representations of the law given its detrimental and discriminatory effects on women. As a result, society’s norms, systems, culture and practices have come under strict scrutiny to address the inequalities perpetuated through these systems.

With the feminist movement having gained pace over the last century, the world has united in condemning discrimination against, and the subjugation of, women, particularly as manifested in its most debilitating form, violence against women. Although family violence has been recognized as a growing social problem, domestic violence has been recognized as a distinct form of violence affecting women as a class. Given that violence against women has been noted as the single most pervasive form of human rights violation in addition to being the most costly to society, at least eighty--nine state parties have introduced legislation to address domestic violence against women in furtherance of their international obligations.

In some jurisdictions, the call for a more comprehensive system of protection has led to the development of specialized domestic violence courts and batterer-intervention programs to rehabilitate perpetrators of violence. Whilst these global and local efforts are commendable, there is much debate over their adequacy and effectiveness in light of increasing rates of violence against women, particularly in the domestic sphere, due to poor implementation, under-reporting, inadequacy of the laws or lack thereof. Given these failings, governments are required to reexamine their law and policy pertaining to domestic violence to provide an environment to enhance women’s safety, autonomy and participation in their public and private lives and to root out violence in all its manifestations, cultural, religious, political and otherwise.

Presently, there is a critical failure at the implementation level due to a lack of resources or commitment. Law enforcement officers, clinicians, psychologists, judges, lawyers and activists have also struggled to reconcile the notion of a victimized woman continuing to live with or love the batterer, often concluding that the victim must be fabricating the abuse, its prevalence, or seriousness. Work done by feminist and other scholars reveals the impact of social and judicial perceptions about women who fail to leave their batterers despite the assistance rendered on the likelihood of victimized women successfully obtaining justice. These problems are compounded by the lack of a holistic approach despite the existence of legislation and institutional provisions.

Aside from the deficit in implementation of such measures, a more critical discussion has emerged regarding the viability of the ‘one-size-fits-all’ approach. Research has revealed that women experience and respond to domestic violence differently depending on various factors. The reasons for this differential response are multifold. Research findings show that general laws fail to adequately protect the interests of all groups of women. Women belonging to minority groups are singled out as most unlikely to use existing systems of protection. Most domestic violence response measures depend on user-capacity, the willingness to report, and cultural response systems. In light of the recognition that minority, ethnic, indigenous, refugee, and migrant women are especially vulnerable to violence and discriminatory practices , the assumptions inherent in the laws and institutional mechanisms to assist victims in fact perpetuate power--dynamics in a patriarchal society. The measures are racialized and class- and culture-specific. Despite this fact, no equality-based challenge has been brought with respect to domestic violence laws and their inadequacies vis-à-vis minority women.

Intersectionality has gained extensive prominence in the writings of feminist scholars working in numerous fields because of its contribution towards a more comprehensive feminist discourse which seeks to locate knowledge within realities of women whose experiences are not singularly shaped by their gender, but rather, by a multiplicity of factors such as race, class, sexuality, identities, and other phenomena. These experiences help us better define our capacities for dominance or to be dominated as a woman (or man). This theory delineates sites of oppression horizontally as opposed to the paradigmatic depiction of oppression as hierarchical. Intersections analysis implores us to view multiple layers of experience as informative of an overall pattern of domination which requires deconstruction as a whole. It is argued that this deconstruction is all the more important in order to further the project of substantive equality to protect all women against domestic violence.

Crenshaw has argued that in order for dominant systems to be challenged, those resisting dominance are forced to categorize their demands in terms of the logic of the dominant system itself. Inability to do so results in exclusion from the discourse for change. It is here, she argues, that intersections analysis can prove groundbreaking in addressing the needs of the marginalized woman who is neither accommodated within the feminist discourse, nor within that of antiracism completely. Third World feminists have similarly posited that intersections analysis offers a new site for the production of knowledge arguing that “difference” constitutes a resource through which feminist knowledge can be reorganized.

Failure to integrate user--specific information into models of intervention and to account for culture--based beliefs and systems of information and worldviews will necessarily limit and undermine the effectiveness of the legal and social frameworks combating violence in the domestic sphere. Furthermore, they will remain inept at recognizing high--risk groups, providing appropriate intervention services, and meeting the needs of marginalized groups experiencing domestic violence.

To the extent that domestic violence legislation is in existence and implemented through a framework of multidisciplinary measures in a country, this chapter focuses on the extent to which such services are accessible to a routinely marginalized group of women who, despite advancements in the law relating to domestic violence, continue to fall through the gaps. By examining the assumptions underlying existing models of prevention and intervention against domestic violence, this chapter outlines the source of these gaps and investigates the reasons for the continued failure of domestic violence policies in some countries to safeguard the interests and rights of a neglected community of ethnic minority and immigrant women in countries where such laws and policies are relatively advanced in their development. Whilst ethnic groups have been residing in Western countries since the colonial era, migrant worker and sponsorship schemes have increasingly attracted such groups. Given the basic assumptions inherent in preventive and interventionist measures against domestic violence, this chapter seeks to critically examine these assumptions and question their validity, drawing on the cultural, racial and socio--economic attributes of these women to argue the need for a varied and systemic response to provide for ethnic and immigrant women specifically.

Immigrant and ethnic minority women both share certain common traits in their experience with law and social policies relating to domestic violence. The cultural and socio-economic attributes of ethnic minority and immigrant women make them less receptive to law and policy relating to domestic violence. Their capacities to play an active role in the preventive and legal mechanisms for protection are closely tied to their “cultural” equipment. This chapter highlights the different ways in which the “location” of ethnic minority and immigrant women within their cultural, racial, and socio--economic backgrounds affects their perceptions and actions particularly when recognizing and responding to domestic violence.

The Western liberal democratic society is selected as the context for analysis due to the rights-oriented framework of the law, which affords human rights and constitutional rights protection for all people. As such, it can be assumed that there is a degree of development of human rights and constitutional principles, such as equality and non-discrimination, which impose on a government the obligation to offer substantive and equal protection to all women.

The following sections of this chapter argue that ethnic minority and immigrant status are yet to be applied as relevant differentials in the context of developing effective strategies for addressing domestic violence within the ethnic minority community. Using intersections analysis, it is argued that ethnic minority and immigrant women face obstacles on various counts, including class, language, ethnicity, culture, and experiences.

This chapter argues first, that domestic violence response systems in many countries in the West are predicated upon basic assumptions about user-capacity and cultural attributes; second, these assumptions are flawed to the extent that they are based predominantly on the information and experience of the white woman; third, given the assumptions underlying such legislation and policy, their effectiveness in addressing domestic violence against minority women is questionable since a significant proportion of such women are excluded from equal protection against violence in the home; fourth and in conclusion, that equal protection demands standards exacted by the doctrine of substantive equality to apply here. In light of this, the lack of appropriate mechanisms to account for the impact that ethnicity and culture has on accessibility to law and social resources renders the law inept and discriminatory in that it fails to achieve substantive equality in its protection of all women against domestic violence. It is argued that new initiatives are required to ensure equal access to ethnic minority and immigrant women and a more holistic approach towards combating domestic violence through user--oriented, culturally informed legislative and policy measures designed to achieve substantive equality.


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