Legal Research: Domestic Violence Act


PROTECTION OF WOMEN
WITH SPECIAL EMPHASIS ON DOMESTIC VIOLENCE ACT:
A Comparative Analysis between India and Indonesia

Domestic violence has been on the global agenda for several decades. The evidence suggests that domestic violence disproportionately affects women as victims.[1] The World Health Organization, in its first World Report on Violence and Health in 2002, revealed that between 40 percent and 70 percent of women who die due to homicide are killed by current or former partners.[2] The UN Special Rapporteur on Violence Against Women has defined domestic violence in gender terms as “violence perpetrated in the domestic sphere which targets women because of their role within that sphere or as violence which is intended to impact, directly and negatively, on women within the domestic sphere.”[3]

The significance of using gender as a basis of analysis is that it forces a paradigmatic shift away from domestic violence analysis best captured by the following observation: “Instead of asking why he batters, there is a tendency to ask why she stays.”[4] A gendered analysis compels us instead to question why men resort to violence and why violence against women occurs and is tolerated in many societies. Restructuring the question in this way is vital for meaningful legal reform, especially from the perspectives of criminal justice and human rights.[5] The key to understanding domestic violence from a gender perspective is to appreciate that the root cause of violence lies in an unequal power relationship between men and women that is compounded in male dominated societies. As noted recently, “Violence is . . . a sign of the struggle for the maintenance of certain fantasies of identity and power. Violence emerges, in this analysis, as deeply gendered and sexualised.”[6]Domestic violence perpetrated against women by partners and close family members also has long been a matter of silent suffering within the four walls of the home. Despite the awareness others may have of a woman’s ongoing experience of abuse, the phenomenon of domestic violence against women is typically identified as a private concern. From this perspective, violence is seen to be a matter of individual responsibility, and the woman is perceived to be the one responsible for either adjusting more adequately to the situation as dictated by cultural norms or developing an acceptable method of suffering silently.This basic understanding of domestic violence as a personal issue has limited the extent to which legal resolution to the problem can be actively pursued. In most societies, domestic violence against women has not been perceived to be a crime. However, as a result of feminist advocacy within the arenas of international human rights and development, social responsibility for domestic violence is slowly being acknowledged in many parts of the world.

Domestic violence is about using brute force to establish power relations in the family whereby women are taught and conditioned to accepting a subservient status for themselves. Domestic violence is about telling women you better learn to live at men’s mercy. It is about men with low self-esteem destroying a woman’s sense of self worth because they feel inadequate to cope with a woman who thinks and acts as a free human being with a mind of her own. Like rape, wife battering points to the common predicament of women across nations, castes, classes, religions and regions.[7]

At the international level, violence against women is finally being seen as a violation of the rights and fundamental freedoms of women as well as an impairment or nullification of their enjoyment of those rights and freedoms.[8] It is an obstacle to the achievement of equality, development and peace as recognized in the Nairobi Forward-looking Strategies for the Advancement of Women,[9] which recommended a set of measures to combat violence against women. These recommendations impose on governments a legal and moral duty to eliminate domestic violence through a combination of various means.

Domestic violence is a deeply rooted problem that exists in every country in the world. For the most part, however, the international community has yet to create effective legal standards that exclusively address domestic violence. Despite this unfortunate void, the rights of battered women may be asserted under international and regional human rights conventions that are legally binding upon ratifying states. The International Bill of Human Rights, comprised of the Universal Declaration of Human Rights (“UDHR”), the International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”), sets forth general human rights standards that victims of domestic violence may invoke against their state of citizenship.[10]

That is, battered women who have exhausted all domestic remedies and who still find that the state has failed to adequately address their grievances, may hold the state liable if that state is a party to the above instruments. The same can be done under the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) together with its Optional Protocol, and under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). Likewise, regional instruments may offer protection for battered women. The European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), the American Convention on Human Rights (“ACHR”), together with the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (“Inter-American Convention on Violence Against Women”), and the African Charter on Human and Peoples’ Rights (“African Charter”) are the major regional human rights documents that may be invoked by victims of domestic violence.

The impact of domestic violence is multi-faceted and by no means “domestic”, that is, limited within a family. In addition to the serious physical and psychological injuries directly suffered by women victims, the continuing and endemic nature of domestic violence limits the opportunities for women to achieve legal, social, political and economic equality in society. Apart from the victimization of women, domestic violence also results in broken families and troubled children, which cause extensive social problems.

Violence among intimates which has been described above is a major problem in India, as it is in the rest of the world including Indonesia. One common approach to this problem has been to look to the laws. Thus, women’s advocates in both the India and Indonesia have sought legislative and policy changes that criminalize such violence.

This research focuses on the issue on the issue of women protection through domestic violence acts in developing countries, namely India and Indonesia. A comparative description and analysis presented to find the legal solution of the problem. Finally, this research found that the society gives a very big influence to the making process of Domestic Violence Act whereas India and Indonesia have a different characteristic for defining domestic violence. For instance, India named its act as “the Protection of Women from Domestic Violence Act” meanwhile Indonesia named it as “the Elimination of Violence in Household Act”.

Moreover, India recognizes “dowry” and “sati” as specific domestic violence acts meanwhile Indonesia doesn’t. Nevertheless, Indonesia gives a broad definition to tackle all forms of domestic violence acts. Last but not least, the research proposes several suggestions in relations to the handling of the most significant form of violence.

In order to understand the paper more easily, hence the paper will be divided into several chapters.

PROTECTION OF WOMEN WITH SPECIAL EMPHASIS ON DOMESTIC VIOLENCE ACT: A Comparative Analysis between India and Indonesia

ACKNOWLEDGEMENT
CONTENTS
ABSTRACT

CHAPTER I: INTRODUCTION
1.1. Background to Research Paper
1.2. Statement of Problem
1.3. Objectives
1.4. Methodology
1.5. Conceptual Definitions
1.5.1 Domesticity
1.5.2. Understanding Domestic Violence
1.5.3. Defining Domestic Violence
1.6. Structure of Research Paper

CHAPTER II: WOMEN UNDER INTERNATIONAL LAW
2.1. Overview
2.2. Universal Declaration on Human Rights, 1948
2.2.1. Civil and Political Rights
2.2.2. Economic and Social Rights
2.2.3. Legal Effect of the Declaration
2.2.4. India-Indonesia and Universal Declaration on Human Rights
2.3. Convention on the Political Rights of Women, 1953
2.4. Convention on the Nationality of Married Women, 1957
2.5. Declaration on Elimination of Discrimination Against Women, 1967
2.6. Convention on the Elimination of All Forms of Discrimination Against
Women, 1979
2.7. Declaration on the Elimination of Violence Against Women, 1993
2.8. Optional Protocol to the Convention on the Elimination of Discrimination
Against Women, 1999
2.9. Commission on the Status of Women
2.9.1. Vienna Conference
2.9.2. Beijing Conference

CHAPTER III: THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
IN INDIA
3.1. Overview
3.2. Highlights of the Act
3.3. Meaning of Important Expression used under the Act
3.4. Duties and Functions of Protection Officers
3.4.1. Service Providers
3.4.2. Duties of Government
3.5. Procedure for Obtaining Orders of Relief
3.5.1 Protection Orders
3.5.2. Monetary Reliefs
3.6. Jurisdiction
3.7. Miscellaneous

CHAPTER IV: THE ELIMINATION OF VIOLENCE IN HOUSEHOLD IN INDONESIA
4.1. Overview
4.2. Highlights of the Act
4.3. Meaning of Important Expression used under the Act
4.4. The Obligation of Government and Public
4.4.1. Duties and Functions of Protection Officers
4.4.2. Victim of Violence
4.5. The Application and the Court
4.5.1. Perpetrator
4.5.2. Recovery of Victim
4.6. Criminal Stipulation
4.6.1. Additional Sentence
4.6.2. Other Stipulations

CHAPTER V: CONCLUSION AND SUGGESTION
5.1. Conclusion
5.2. Suggestion

BIBLIOGRAPHY

For readers who want to read or to get the complete research paper above, (s)he can contact the author by dropping his/her request in the comment column below or by sending a message directly to the author’s mail account.

Women is not created from eyebrow
because too risky if we let her goes on adulation
Nor created from sole
because insult, flatted and slaved
Women is created from the left abeam,
close to the heart to be loved, close to the arm to be protected
forever…
Best Regards,
Pan Mohamad Faiz

End Notes

[1] Kumaralingam Amirthalingam, Women’s Rights, International Norms, and Domestic Violence: Asian Perspectives, Human Rights Quarterly 27 (2005), p. 684.

[2] World Health Organization, World Report on Violence and Health 93 (2002), available at www.who.int/violence_injury_prevention/violence/world_report/en/.

[3] Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Ms. Radhika Coomaraswamy, Submitted in Accordance with Commission on Human Rights Resolution 1995/85, a Framework for Model Legislation on Domestic Violence, U.N. ESCOR, Comm’n on Hum. Rts., 52d Sess., Agenda Item 9(a), addendum, 28, U.N. Doc. E/CN.4/1996/53/Add. 2 (1996).

[4] Helen M. Eigenberg, ed., “Societal Change and Change in Family Violence from 1975 to 1985: As Revealed by Two National Surveys”, in Woman Battering in the United States: Till Death Do Us Part, 2001, p. 131.

[5] An important caveat must be introduced here. It is acknowledged that a multidimensional approach is crucial and while this paper focuses on criminal justice and women’s rights, it is not suggested that there are no other dimensions to domestic violence. All that is contended is that this particular aspect needs serious attention.

[6] Sally E. Merry, Rights Talk and the Experience of Law: Implementing Women’s Human Rights to Protection from Violence, 25 HUM. RTS. Q. 343, 350, 2003.

[7] Madhu Purnima Kishwar, Strategies for Combating the Culture of Dowry and Domestic Violence in India, UN Division for the Advancement of Women, Vienna-Austria, May 2005.

[8] See UN Declaration on the Elimination of Violence Against Women, U.N. GAOR, 48th Sess., Agenda Item 111, U.N. Doc. A/Res/48/104 (1994).

[9] See Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace, U.N. Doc. A/CONF. 116/Rev.1, U.N. Sales No. E.85.IV.10 (1986).

[10] Yuhong Zhao, Domestic Violence in China: In Search of Legal and Social Responses, 18 UCLA PAC. BASIN L.J. 211. 2001, p. 223.

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4 thoughts on “Legal Research: Domestic Violence Act

  1. boleh minta copian paper ini nggak ya?
    saya tertarik dengan isu gender dan perempuan.

    Silahkan kirim email and ke alamat email saya. Saya akan usahakan untuk mengirimkan dengan segera. Terima kasih.

  2. issue domestic violence di indonesia ga pernah habis..
    saya tertarik bgt untuk baca papernya, boleh minta copy-nya tidak ya?
    thx bgt ya :D

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