By Co-Editor Varsha Vijayakumar

As Domestic Violence Awareness Month (DVAM) comes to a close, it is imperative to consider the ways in which this pervasive form of intimate harm is consistently overlooked on a global scale. In paralleling domestic violence with torture— particularly by dissecting the four core components of Article 1 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)— practitioners can begin to uncover the biases inherent to the human rights system as it exists today.

Domestic violence is a phenomenon that exists everywhere. It is not restricted to any race, region, class, language, or any other marker of identity– many people across the globe share this experience.  While it is important to clarify that domestic violence is not only experienced by women, this form of harm is severely gendered and does skew heavily toward women as victims. In fact, the World Health Organization (WHO) classifies violence against women as a public health problem, pointing to research that shows that 30% of all women globally have suffered from physical or sexual violence at some point in their lifetime. Of pivotal concern is that the overwhelming majority of gender-based violence experienced by women is, in fact, domestic violence. The effects are staggering: battered women are twelve times more likely than a non-abused woman to commit suicide. To push this point even further, nearly 38% of all murders of women are perpetrated by an intimate partner. This act of femicide, which the 2012 Vienna Declaration on Femicide characterizes as “the killing of women and girls because of their gender,” is the most egregious consequence of violence against women– it is discrimination to the point of death. 

A common critique of paralleling domestic violence with torture, even before a deep analysis of the two harms, is that qualifying domestic violence as torture would severely dilute the UNCAT. But if the severity of domestic violence can be shown, as is proven within the context of what Bonita Meyersfeld calls “private torture,” what this really indicates is that torture is a practice so pervasive that it uncovers the “banality of evil” evident in society— we have permitted the unchecked proliferation of a human rights violation so brutal that the acceptance of this truth feels insurmountable. Even so, practitioners must recognize that experiences of domestic violence are not a monolith; that is, there are varying degrees of extremity. For example, one degree of domestic violence may involve pushing, slapping, or verbal abuse, while the other may include excessive battering, raping, or the breaking of bones. This is not to place value judgements on all the varied experiences of domestic violence; rather, the classifications exist to show that distinct interventions are necessary to mitigate different levels of harm. To that end, a particular focus on extreme forms of domestic violence implements nuance must be recognized within UNCAT. 

Private torture is characterized by intense levels of repetition, controlling power, and severity. The violence enacted upon the victim must be systematic in nature, having a degree of recurrence that cultivates an environment of fear of the next attack. This first point underscores how the threat of violence can often be felt just as painfully as physical violence. Next, there must be a clear power imbalance between the perpetrator and victim that prevents the victim’s ability to envision an end to the violence. In many cases, even societal entities, such as the police or governments, contribute to the perpetrator’s power, thereby multiplying the fear a victim experiences. Finally, private torture must be severe in nature: this level of physical violence consists of battering through the skin or the breaking of bones.  In conceptually distinguishing between intimate abuse and private torture, the linking of domestic violence and torture approaches even more feasibility. 

The UNCAT requires that one must suffer serious physical or psychological harm for an act of violence to constitute torture. Copelon notes that the primary purpose of modern torture is to break the victim’s will and spread terror. The infliction of severe physical torture is often conceptualized as “world destroying” because one’s mind cannot think beyond the excruciating pain felt by the body, thus also amplifying the psychological dread of what comes next.  In fact, psychological pain is in many ways deeply linked with physical pain, and may even persist longer. This is evident when considering that although rape may be less physically severe than the breaking of bones, for example, many women consider sexual abuse “the gravest violation.” Tortured prisoners and battered women alike are isolated, made dependent on their perpetrators, and experience a constant flow of fear. Indeed, it is not that the prisoner’s experience is necessarily worse than a battered woman’s; rather, the brutality women face in the home is comparatively and systematically trivialized, invisibilized, and denied-— considered simply a family issue or lovers’ quarrel, never a sign of private torture.

The pain must also be intentionally inflicted by the perpetrator without the victim’s consent. Legal critics argue that men that abuse women in the home act impulsively and without a general intent to cause harm. In other words, the argument is that abusive men lose control when hurting women, and therefore do not inflict harm with purpose. But this argument discounts the fact that battering is not simply done out of anger or impulse, but to control and constrain the victim– to bring about a desired outcome. Beyond this, “men who beat women partners commonly exhibit excellent impulse control in other contexts; their major or only targets are women partners, or children, pets, and inanimate objects.” Other common arguments blame alcohol instead of the man for violence; this ignores that many men abuse women without alcohol, and many men that drink do not abuse women at all. Ultimately, a feminist lens proves crucial, yet again: a fixation on intent “obfuscates the severity of the suffering threatened or inflicted, forgiving the perpetrator rather than recognizing the victim.” 

Like intent, the purpose behind the harm also carries weight when considering if an act constitutes as torture. The purposes of torture are generally conceived of to be to elicit information, to punish, to intimidate, or for discrimination of any kind. Important to note is that while seeking information was certainly a function of torture historically, it is not as prominent a purpose as is the spread of terror, as previously mentioned. In fact, interrogation is less about information and more so about rendering the victim frightful and powerless. Put in this way, an abuser’s line of questioning to his victim— What were you doing? Who were you talking to? Why are you wearing that?— similarly aims not to elicit information, but to instill fear.

Domestic violence is also a method of punishing women outside of the normal bounds of society, similar to the way in which a military power may go beyond legal means to punish a prisoner via torture. While power flows to the military through an illegitimate use of force, power flows to abusive men through the impunity proffered by patriarchy. Abusive men wield a “social license” to inflict punishment upon women– just like the state, or a controlling military, abusive men wield torture as a means of social control.  In addition, both official torture and domestic violence severely restrict the agency of victims. While victims of official torture may be physicially contained by a jail cell or other setting, the argument is commonly made that victims of domestic violence are not spatially restricted in this way. But the acute combination of physical and psychological punishment, interrogation, and intimidation makes “women act as their own jailors.” A concluding point on purpose is that victims of torture and victims of domestic violence both experience harm because of discrimination: the former due to a variety of identity labels, such as religion or race, the latter primarily because of gender.

Finally, the UNCAT specifies that torture must be committed by a public official or by someone who has “the consent or acquiescence of a public official or other person acting in an official capacity.” This component requiring state or state-like involvement is undoubtedly the stickiest of conditions when attempting to equate domestic violence with torture. Of course, there are several key issues with privatizing domestic violence. Primarily, the abuser’s absolute power and control in the household converts the private sphere into a state-like authority itself: men become “the de facto absolutist state in women’s lives.” As the parallels with the four components of torture show, extreme domestic violence is indeed a private torture that mimics, if not replicates, the conditions of official torture. Despite the proliferation of such extreme violence, the private sphere is the most unregulated and unprotected area under domestic and international law, leaving countless women susceptible to abuse without legal recourse. Interestingly, it took the international community significant debate to qualify even rape committed by state officials as torture. This proves that it is not so much the requirement of state involvement as it is patriarchy that makes it difficult to recognize torture when it occurs primarily against women and not men. The privatization of domestic violence risks the prevention of international intervention even when the state proves insufficient.   

A core reasoning behind restricting torture to public officials is because of the assumption that the state itself should resolve violations by private actors. But given that men tend to enjoy impunity under domestic laws, women are left with no legal redress within the confines of the state. The failure of the state in protecting women therefore “legitimizes the dominion of the husband,” and points to how the “parallel state” not only permits but encourages such violence to persist. If “government-inferred impunity” is the result of bringing domestic violence cases to the state, it is obvious that state intervention is wildly insufficient in alleviating the issue. 

Interestingly, restricting the torture definition to the state in Article 1 of the UNCAT was purely “borne out of political compromise.” To that end, many UN instruments– such as the UNDR, ICCPR and ECHR, to name a few– do not explicitly require a link between torture and state or state-like authority.  The UNCAT is therefore an outlier, and not the norm, in terms of its definitional requirements. Such a strict focus on public officials is arbitrary, induced not because of critical theoretical debate, but because of the need for international compromise. To this end, Manfred Nowak himself, a former Special Rapporteur on Torture, thinks that “the very narrow definition of torture of the UNCAT is outdated.” 

Even so, existing legal precedents among the various instruments regarding the public official clause create opportunity to include domestic violence– and specifically, private torture– as official torture. First, a public official can be a non-state actor. This expansion primarily developed in response to the obligations states have for actions of officials from other states or state-like entities. States are also responsible for a lack of positive action to prevent torture. In the case of A v. U.K., the European Court of Human Rights (ECtHR) found the U.K. liable for the actions of a private citizen– in this case, a stepfather that was caning his child. Because the state controlled domestic law, it was found in violation of Article 3 of the ECHR for not extending sufficient positive obligations to its citizens in order to protect them from torture.  

A final point is in regards to acquiescence. Bonita Meyersfeld conceptualizes acquiescence as:

State inaction [that] manifests itself in inadequate preventative measures, police indifference to abuses, police and judicial ignorance of the exigency of intimate violence, failure to criminalize intimate violence, gender bias in the court system and legal/administrative proceedings where women experience hostility from the moment the case is reported to the final hearing– if one indeed occurs– and poor medical services.      

Although Article 1 of the UNCAT does not offer a definition of acquiescence, this explanation by Meyersfeld is consistent with interpretations of other UN human rights treaties. So long as a state allows non-state actors to violate human rights, it can be considered acquiescence under Article 1 of the UNCAT.  The concept of acquiescence, then, is a check on states to ensure that they take responsibility for the violations that occur within their borders, even if not by official state actors. Former Special Rapporteur on Torture Manfred Nowak agrees that even he “tried to interpret [acquiescence] as broadly as possible.”

Indeed, the reluctance to characterize domestic violence as torture arises primarily from this being a gendered policy issue. Prisoners of war (POW) are considered heroic for surviving torture, but individuals that survive domestic violence are often invisibilized or characterized as dramatic. The psychological trauma experienced by survivors of domestic violence has also been found to be on the same level as the trauma experienced by survivors of official torture, yet domestic violence is not internationally recognized as a form of torture. Arguments regarding dilution are alleviated when specifying inclusion of only acts of private torture within the scope of the UNCAT. Similarly, there is extensive research and precedent that shows that torture need not always be committed by a state official, and that the acquiescence clause allows for state responsibility for private actions. It is undeniable that certain forms of violence, enacted upon certain marginalized communities, do not receive the attention they deserve; domestic violence is unfortunately a star example of this phenomenon. For human rights mechanisms to truly be functional arbiters of justice, they must not only move away from an over-reliance on states, but critically re-evaluate who human rights, as they exist, are really for. There are harms in privileging a formalist approach to rights and minimizing an approach that is dynamic and survivor-centered. As we evaluate such gaps in protection, it becomes all the more apparent that human rights really should begin in the home.

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