Intimate Partner Violence
With the recent review by the Inter-American Commission on Human Rights review of Castle Rock v. Gonzales, and public debate regarding intimate partner violence (IPV) as it relates to the National Football League (not to mention review of disciplinary procedures), the issue of IPV has been particularly salient as of late. Certainly, the issue has been given attention by drafters of state statutes, thanks in no small part to a generation of vocal, and effective, advocates. However, as demonstrated by Castle Rock, there remain gaps in domestic legislation which leave victims of IPV unprotected. This blog suggests solutions to those statutory gaps, using international human rights concepts to shift how IPV is approached by the justice community. Those solutions are: 1) acceptance of the R2P theory, which emphasizes a state’s responsibility to protect its citizens from future violence; and 2) a dignity-based legislative regime based on principles of bodily integrity, freedom from inhumane treatment, and right to an effective remedy.
The Responsibility to Protect (R2P) doctrine came most directly from a desire in the international community to not allow the atrocities of Rwanda in 1994 to repeat themselves. The debate about a state’s responsibilities was furthered by both the NATO intervention in Bosnia and civil war in Libya (again, with NATO intervention). The genocide in Rwanda was undoubtedly a human tragedy on a horrendous scale. In 100 days, 800,000 Rwandans were killed by other Rwandans, almost exclusively along ethnic lines. Just one year later, during the conflict in Bosnia, another act of genocide occurred within the confines of Europe. At the town of Srebrenica, about 600 Dutch troops sought to create a safe zone inside which Muslim Bosnian refugees could shelter from encroaching Bosnian Serb forces. After Dutch forces were overrun by the Serb army, the Serbs separated men from women and children. The Serbs then expelled the women and children, then began killing unarmed Muslim men. An estimated total of about 7,000 Muslim men were killed by Serb forces.
Out of the events of Rwanda and Bosnia, as evidenced in the Security Council action against Libya, came the concept of Responsibility to Protect. The R2P idea has three components: 1) a state must protect its own people; 2) other states in the international community must help a state which is unable to prevent human rights violations against its own people; and 3) as a last step, other states must use all means allowable under the U.N. Charter to assist states where violations are occurring. The focus of R2P, then, shifts as conditions cannot be met: first, the state must in effect “earn” its sovereignty by preemptively protecting its population from genocide, crimes against humanity, and other serious human rights violations; second, the state and international community act together to prevent violations from occurring; last, after the state and international community have failed to prevent violence, the international community may intervene to stop violence with methods up to and including use of force.
The European Convention on Human Rights gives additional backdrop to the human rights story vis a vis domestic violence through its Article 2 (Right to Life) and Article 3 (Prohibition of Torture). In its decision Opuz v. Turkey, the Court concluded a state has a positive obligation to protect its citizens, and that law enforcement mechanisms must be in place to enforce protective laws, including mechanisms to prevent future loss of life. Further, legislatures must give police the power to proactively stop threats of intimate partner violence, and the police must use such power when they are aware of a potentially dangerous situation. Finally, because IPV victims are particularly vulnerable to future violence, authorities are under an obligation to take “all reasonable measures” to protect the plaintiff from future violence. The Court noted that both physical violence and “psychological pressure” both entered into the calculus of determining whether the authorities had acted to stop violence perpetrated by the defendant.
Over their lifetime, approximately 1 out of every 5 women in the United States is assaulted by an intimate partner, as well as 1 out of every 14 men. Around 1.3 million women and 835,000 men are assaulted every year in intimate partner violence. Rape by intimate partners averages approximately 322,230 per year for women. In 2000, 1,247 women and 440 men were killed by intimate partners. Although a mere statistical comparison of violence rates in Rwanda and Bosnia with IPV violence rates in the U.S. does not in any way paint a full picture of the horrors of events in any instance, the U.S. IPV figures do show that the sheer scale of violence occurring on an annual basis in the country is staggering. Extrapolated to Arizona specifically, the state would average approximately 44,304 people assaulted in IPV incidents every year, 3,351 incidents of women raped by their intimate partner, and 35 deaths per year due to IPV. Intimate Partner Violence in the United States also shares characteristics with the legal definition of a crime against humanity. The Rome Statute, which formed the International Criminal Court, includes in its definition of crimes against humanity the following actions: murder; rape; and “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
Currently, Arizona has both a preventative statutory measure for IPV, in the form of orders for protection, and a punitive measure for repeat IPV offenders, in the form of an aggravated domestic violence statute. There are also legal provisions for confiscating firearms if they are used in an incidence of IPV, and federal law which disallows access to firearms for a convicted abuser. However, as the Opuz case highlights, there are shortcomings even with a seemingly well-written and well-intentioned legislative regime. One suggestion for dealing with a lack of prosecutorial action under available domestic violence legislation is “no-drop” enforcement, or mandatory prosecution for IPV offences. No-drop legislation can lead to seemingly perverse results, such as victims being subpoenaed for refusal to testify, and even being imprisoned for attempting to protect themselves from a vengeful abuser. Because a person’s cooperation with the justice system is largely based on how fair she or he feels the system is, using the state mechanism to force victim cooperation with no-drop legislation is ill-advised. Using human rights language in legislation, rather than an inflexible no-drop approach, can lead to better results both for IPV victims, and can help change how the purpose of the criminal code is viewed.
The advantage of developing human-rights based IPV legislation, versus strict no-drop approaches, are three-fold: 1) Dignity-based language allows a victim greater input than mandatory prosecution; 2) A focus on the individual victim’s rights and status changes norms within the legal system; and 3) Accepting a responsibility to protect citizens from threat of future violence changes the law from reactive to proactive thinking. Instead of legislation which is used to coerce victims into testifying against their abuser, and potentially putting their future safety at risk, legislation should acknowledge as much as possible a victim’s value as a person who can decide for themselves the best course of action to take regarding an IPV incident. That is not to say a victim should be completely free to decide whether to prosecute severe IPV. Society does maintain an interest in ensuring violent offenders are prevented from doing further harm.
However, emphasizing each individual’s worth as a person can lead to a shift from viewing victims as a tool to be used by the judicial system to obtain a conviction, to putting the focus on what is best for the victim balanced with what is in the state’s best interest. Legislation should make it clear that when prosecuting IPV, the victim should never be exposed to outright control and punishment by the state. In order to obtain the best results for victims, the victim should be removed as much as possible from the very behavior she or he is trying to escape: manipulation by those with power over them.
Legislation which explicitly confirms the state’s responsibility to protect its citizens from violence changes how the justice system views its role. Rather than taking a retributive or reformative, the roll of prosecutors and judges becomes stopping future violence, not addressing past discrete incidences of violence.
Lastly, Arizona must create an integrated IPV database, available across counties and agencies. In the Opuz case, authorities were aware of past incidences of IPV, but did not act sufficiently to stop it. However, in Arizona, it is possible for police to be engaged in protecting citizens from IPV, but not know of prior acts which occurred in a different city or county. Such a situation places both victims and police in danger for future violence. Police are unable to check in with partners of repeat offenders, while police themselves may unexpectedly encounter situations which have intensified in violence over time.