Domestic Violence
Domestic Violence as Torture
Torture:
"An act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person," for a purpose such as obtaining information or a confession, punishment, intimidation, or coercion, "or for any reason based on discrimination of any kind."
- United Nations Convention Against Torture
"The use of methods upon a person intended to obliterate the personality of the victim or to diminish [her] physical or mental capacities, even if they do not cause physical or mental anguish."
- Inter-American Convention to Prevent and Punish Torture
Domestic violence:
A pattern of behavior used to establish power and control over another person through fear and intimidation, often including the threat or use of violence, when one person believes they are entitled to control another."
- National Coalition Against Domestic Violence
BACKGROUND
In the past, violence against women, particularly violence occurring in the home or between intimate partners, was viewed as a private matter, not as an issue of civil or political rights. Now, however, by applying the legally accepted definitions of torture to the violence that women face everyday around the world, the international community has explicitly recognized violence against women as a human rights violation involving state responsibility.
In 1993 the United Nations issued the Declaration on the Elimination of Violence Against Women. The Declaration states that, "States should exercise due diligence to prevent, investigate, and in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or private persons". It sets forth ways in which governments should act to prevent violence, and to protect and defend women's rights. These measures form the standard of "due diligence" that states are obligated to live up to.
The legal concept of due diligence describes the minimum acceptable level of effort which a state must undertake to fulfill its responsibility to protect individuals from abuses of their rights. Due diligence includes taking effective steps to prevent abuses, to investigate them when they do occur, to prosecute the alleged perpetrator and bring him or her to justice in fair proceedings, and to ensure adequate reparation, including compensation and redress. It also means ensuring that justice is upheld without discrimination of any kind. In various measures of this standard, in many countries of the world, states are failing in their due diligence and failing to protect women from violence.
Government's role in domestic violence
The failure of a government to prohibit acts of violence against women, or to establish adequate legal protections against such acts, constitutes a failure of state protection. Acts of violence against women constitute torture when they are of the nature and severity envisaged by the concept of torture and the state has failed to provide effective protection.
Article 7 of the International Covenant on Civil and Political Rights (ICCPR) states that "no one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment." In their General Comment 20 on this article, the Human Rights Committee, the monitoring body established by the Covenant, clarifies that "it is the duty of the State party to afford everyone protection through legislation and other measures as may be necessary against the acts prohibited in Article 7, whether inflicted by people in their official capacity, outside their official capacity or in a private capacity." When states fail to provide such protections, they hold responsibility for the abuse. Such failure on the part of the state is clear in the case of Rodi Alvarado.
Violence in the home is a global epidemic. Around the world, a woman's greatest risk of violence is from someone she knows. Domestic violence is a violation of a woman's rights to physical integrity, liberty, and all too often, her right to life itself. And when a government fails to provide effective protection from such abuse, domestic violence is torture.
Forms of domestic violence
Through this violence, women are subjected to the basest forms of abuse and humiliation. Such torture of women is rooted in a global culture which denies women equal rights with men, and which legitimizes the violent appropriation of women's bodies for individual gratification or political ends. Violence against women is compounded by discrimination on the grounds of race, ethnicity, sexual orientation, social status, class, and age and by social and cultural norms that deny women equality and render them more vulnerable to abuse. The common thread is discrimination against women, the denial of basic human rights to individuals simply because they are women. The Universal Declaration of Human Rights affirms the inadmissibility of discrimination and proclaims that everyone is entitled to all the rights and freedoms set forth in the declaration, without distinction of any kind, including distinction based on sex.
States have a duty under international law to take positive measures to prohibit and prevent torture and to respond to instances of torture, regardless of where these take place or whether the perpetrator is an agent of the state or a private individual. When states fail to take the basic steps needed to protect women from domestic violence or allow these crimes to be committed with impunity, they are failing in their obligation to protect women from torture.
Amnesty International considers domestic violence a form of torture for which the state is accountable when the acts perpetrated are of the nature envisioned by the international standards of torture, and when the state has failed to fulfill its obligation to provide women effective protection.
