Violence against women : This article introduce the discussion of legal responses to violence against women. It provides the context for the more detailed examination of those legal issues to which the courts can respond. Its objective is to show the many ways in which violence is relevant to legal disputes, even where it is not the direct issue and even though it is often ignored. First, it discusses examples of different legal remedies that have been, or might usefully be, invoked in cases in which violence is the central issue, the reason for bringing the legal action.
The examples illustrate briefly the possible role of areas of law other than criminal or quasi-criminal law. The paper presents examples of cases where, while the legal issue before the court did not directly involve violence, the judgment reveals that it was an underlying factor in the case. In these examples violence was not a focus of the discussion in the case but it emerges clearly from the judgment. Violence and the law As 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 judiciary The 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 education In 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 law As 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 women The 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. 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 noncriminal 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 woman Te 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.
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