Academic journal article Journal of Political Studies

Reconceptualising Domestic Violence as 'Domestic Torture'

Academic journal article Journal of Political Studies

Reconceptualising Domestic Violence as 'Domestic Torture'

Article excerpt

Abstract

This paper attempts to capture the efforts of those feminist scholars, who call for the expansion of the human right law's norm of torture prohibition, to encompass domestic violence against women incidents (McQuigg, 2011: 6). It also assesses the prospects to explore whether certain aggravated forms of domestic violence against women could make a qualifying case for torture. It seeks to propose that certain acts of domestic violence, particularly those having atrocious elements, would fall into the ambit of torture, as defined in human right law. The comparison between two types of violence will be helpful in deepening the understanding of the true nature of brutalities involved in the abuse that occurs within the home. Once recognised as torture, the 'privacy' and the 'normalcy' aspect of domestic violence against women will be challenged and be more open to scrutiny. It will no longer be deemed as an issue outside of state intrusion, it would rather be universalised and accordingly receive the attention it deserves.

Key Words: Violence against Women, domestic torture, Convention against Torture (CAT), UN-Special Rapporteur on Torture, Human Rights

This will be done primarily by looking at the Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984 through gender lenses (http://www.irct.org/what-is-torture/convention-against-torture.aspx). However, the main focus of this paper will remain on the crime of torture, the distinction between torture and 'other cruel, inhuman or degrading treatment or punishment' is outside of the remit of the current discussion.

The struggle to place the domestic-violence-phenomenon at par with the established norm of prohibition-on-torture in human right law, by reconfiguring the latter, is still embryonic. Although the debate on comparison between domestic violence and torture emanated in early 1990's,( Copelon, 1993-94: 293). The origin of this concept within the context of domestic violence dates back to 1878 (Cobbe,1878: 55-87). Cobb, the distinguished activist of the Victorian feminism, whose work on law reform is well recognized in England, was much ahead of her time in describing domestic violence as torture (https://pi.library.yorku.ca/ojs/index.php/topia/article/viewFile/441/12258) Cobbe's influence was most felt through her writings, she published an article 'Wife Torture in England' to support a new bill then presented in parliament (Cobbe,1878). Cobbe had noted that:

..the unendurable mischief, the discovery of which has driven me to try to call public attention to the whole matter, is this- wife beating in process of time and in numberless cases, advances to wife torture and the wife torture usually ends in wife maiming, wife blinding or wife murder (Cobbe,1878: 72).

She supported her arguments with statistics of femicide and numerous accounts of extreme brutality carried out by men in the home. Matrimonial Causes Acts 1878 was passed as a result, her major achievement in this regard that enabled battered wives to obtain separation orders against their abusive husbands. That being said, Cobbe's reconception of domestic violence as torture perhaps was neither meant in the sense in which it is understood in the International human rights law nor was it done with an intention to attain any goal in this realm. Instead her primary purpose of using this terminology was, arguably, to equate the quantum of pain/suffering involved in the two forms of violence. By so doing she sought to expand legal options available to women victims of domestic violence within UK.

It is in the 1990s that feminist legal activism, recognizing the striking parallels between the two forms of violence, put forward the concept of domestic violence as torture (Edward, 2006: 350-51). The analogies between domestic violence and torture were drawn basically to bring the former into the folds of HRL or more specifically to attract the provisions of the CAT (Copelon, 1993-94:299 & Youngs, 2003: 1220-21). …

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