This piece was published in the 30th print volume of the Asian American Policy Review.
Language operates in inclusionary and exclusionary ways. Definitions that hinge liability or guilt on physical violence alone operate to exclude the lived experience of domestic violence victims who have suffered no or minimal physical abuse, but have lived in a virtual state of siege because of the power wielded by their abuser.
Introduction
The path from patriarchy to violence is short and well travelled, not just in South Asian culture but in the world. The uniqueness of its place in South Asian culture is a function of the elevation of patriarchy to the higher realms of tradition and custom. Traditional Indian society views the woman as an extension of her relationships to others and imposes upon her duties concomitant to each relationship: the obedient daughter, the dutiful wife and daughter-in-law, the nurturing mother. In contrast, the Indian son receives preferential treatment before birth and throughout life in the expectation that he will care for his parents in their old age. Traditionally, the boy is an asset, the girl a liability; she moves from her birth family to the family of her husband and in-laws in a ceremonial “transfer” called Kanyadaan in Sanskrit, “the giving away” of the father’s property to the groom (not unlike the custom of walking the bride down the aisle to “give her away”). Dowry, the gifting of goods, property, and/or cash by the bride’s family to the groom and his family as a condition of marriage has led to the devaluation of girls as debts to be discharged.[1] Although the government outlawed dowry in 1961, the sinister side of the patriarchal culture that enabled dowry practice in the first instance continues in the acceptance of rigid and hierarchical gender roles that relegate women to the status of second-class citizens, particularly in rural parts of India.[2]
This paper will first examine the evolution of law in India to address the harms of domestic violence and will follow with an analysis of the treatment of domestic violence in California’s Penal Code. California’s narrow approach to defining domestic violence ignores the non-physical patterns of power and control used to dominate victims of domestic violence and strip them of their personhood through a course of conduct. In contrast, Indian law has evolved beyond violence-focused definitions, but cultural norms in Indian society still hamper women’s potential to achieve full personhood. In each jurisdiction, the effect of the failure to align all definitions and structures under one framework is to thwart progress towards a society where women can live full and autonomous lives free of violence in all its manifestations.
This paper concludes by proposing an alternative framework to California’s existing criminal law, one envisioned by Professor Evan Stark, and subsequently adopted in England, Wales, Scotland, and Ireland under the label of coercive control. The coercive control framework recasts the language of domestic abuse through the lens of equal protection and personal liberties.
Evolution of the Law in India
The evolution of the law against domestic violence in India can be traced to the Indian Constitution, adopted by a newly independent India in 1949.[3] The Constitution’s basic guarantees for all people include social, economic, and political justice; liberty of thought, expression, belief, faith, and worship; and equality of status and opportunity.[4] Despite the Constitution’s progressive language such as prohibiting discrimination on the grounds of sex as outlined in Article 15 or placing on every citizen the “duty to renounce practices derogatory to the dignity of women” in Article 51A, it was not until 1961 that the government officially outlawed the practice of dowry in The Dowry Prohibition Act.[5]
The Dowry Prohibition Act defines “dowry” as “any property or valuable security given or agreed to be given either directly or indirectly” by one party to the marriage to the other party, or by the parents of either party or another person to either party to the marriage or to another person.[6] The Act sets the penalty for giving or taking dowry as up to five years in prison; for demanding dowry, up to two years in prison.[7] However, the Act does not apply to the reasonable exchange of gifts without demand.[8]
Due to the persistence of dowry murders, the government amended the Penal Code in 1983 with the Anti-Cruelty Statute, codified as Section 498A, which criminalizes the infliction of cruelty on a woman by the woman’s husband or a relative of the husband and carries a sentence of up to three years in prison.[9] Cruelty includes any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (mental or physical) of the woman; or harassment of the woman where such harassment is either for the purpose of coercing her or her relatives to meet any unlawful demand for property or is due to her failure to meet such demand.[10]
In 1986, the government further established the offense of dowry deaths through a presumption that the death of a woman by burns or bodily injury or under “other than under normal circumstances within seven years of her marriage” is a criminal act (“dowry death”) if it can be shown that soon before her death, the victim suffered cruelty or harassment by her husband or a relative of her husband for, or in connection with, any demand for dowry.[11] Punishment for dowry death ranges from the minimum of seven years to life imprisonment. [12]
Both the 1983 and 1986 statutes apply only to married women, excluding intimate partners or former intimate partners who have not entered into a marital relationship. And, despite its broad definition of cruelty, Section 498A has been applied largely to abuse in the dowry context.[13] In the 1989 case of Smt. Sarla Prabhakar Waghmare vs. State Of Maharashtra And Others, for instance, the Bombay High Court dismissed an appeal brought by the victim after the trial court acquitted her attackers of charges brought under Section 498A.[14] The victim’s husband and in-laws poured kerosene oil on the victim’s body and set her on fire; nevertheless, the high court found an absence of proof that the abusers attacked the victim in order to drive her to commit suicide or otherwise coerce her into meeting unlawful demands.
Criticism that interpretation of the 1983 and 1986 laws excluded the experience of domestic violence victims suffering abuse not specifically tied to dowry demands led to the adoption of The Protection of Women from Domestic Violence Act in 2005.[15]
The scope of the 2005 law is primarily civil; the law empowers magistrates to grant injunctive relief such as protection orders, restitution orders, custody orders, and residence orders.[16] However, breach of a protective order can result in criminal penalties, and the magistrate has the authority to amend and add charges under Section 498A.[17]
What is perhaps most noteworthy about the 2005 law is not the penalty prescribed but the broad definition of violence: conduct (whether by omission or commission) that harms or endangers the health, safety, life, limb, or well-being, mental or physical, of the aggrieved person or tends to do so, including physical, sexual, verbal, emotional, and economic abuse.[18] (emphasis added). Sexual abuse comprises conduct of a sexual nature that “abuses, humiliates, degrades, or otherwise violates the dignity of woman.”[19] Verbal and emotional abuse include “insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child.”[20]
Though the law elevates non-physical abuse into cognizable harms, the impact of the law has been limited by prevailing norms, as reflected in court decisions. Consider the case of Dilip Premnarayan Tiwari & Anr. vs. State of Maharashtra, in which a woman married a man outside her caste and refused to end the marriage on her brother’s urging.[21] The brother eventually gathered his friends and ambushed his sister’s husband at his home, killing the husband, the husband’s family, and a family friend.[22] The Supreme Court reduced the brother’s death sentence, finding mitigating circumstances in the brother’s attempt to remedy an act that had wounded his family’s honor.[23]
California Law
In California, domestic violence per se is criminalized through two separate, though related, statutes. The first, Penal Code Section 273.5, criminalizes the infliction of a traumatic injury upon a victim.[24] Traumatic injury can be minor or major.[25] The crime carries a potential sentence of two, three, or four years in prison, or confinement in the county jail; this variation qualifies it as a “wobbler”, a crime that can be filed as either a misdemeanor or felony.[26] The lesser counterpart to P.C. 273.5 is the misdemeanor version of domestic violence which requires only an unlawful touching by the defendant upon a qualifying victim; the touching need not result in an injury or wound.[27] Other crimes can also qualify as domestic violence – vandalism, criminal threats, stalking, animal abuse, burglary, to name a few – but these crimes apply equally to strangers. Nothing in the language of the latter category of statutes renders their scope DV-specific.
The Family Code contains a more comprehensive definition of domestic violence. Family Code Section 6203 lists bodily injury, sexual assault, and threats of serious bodily injury as examples of abuse, but specifies that “abuse is not limited to the actual infliction of physical injury or assault.”[28]
In California, the problem is not one of application or implementation but of definition. Language operates in inclusionary and exclusionary ways. Definitions that hinge liability or guilt on physical violence alone operate to exclude the lived experience of domestic violence victims who have suffered no or minimal physical abuse, but have lived in a virtual state of siege because of the power wielded by their abuser. The effect of exclusion is felt across time and space, starting with the immediate victim testifying in front of judge and jury. Using the benchmark of relevance, the judge sets the parameters of the victim’s testimony for the jury to consider in determining the truth of the charges. Truth hinges on the victim’s credibility. A judge who does not understand the dynamics of power and control will not necessarily see the point of victim testimony on life before the physical blow, though the blow is only one piece of a larger narrative. The constraints of violence-focused domestic violence statutes operate to break the flow of the victim’s story, limiting her to discussion of discrete instances of violence versus broader patterns of coercion and control. The victim testifying in such a piecemeal fashion does not seem credible because she does not sound credible, and she does not sound credible because her in-court narrative is not her lived reality.[29]
The exclusionary effect transmits beyond any particular victim’s experience, sending the message to society that the criminal law does not take seriously non-physical forms of abuse because it has no language for that experience. The effect of definitional exclusion is to normalize and even condone non-physical forms of abuse.[30]
Coercive Control: A New Framework
Evan Stark, author of the book Coercive Control: How Men Entrap Women in Personal Life, coined the phrase “coercive control” to explain the course of conduct used by (mostly) men to dominate women through selective tactics of intimidation, isolation, and control.[31] While assault can be among the tactics used to control, the harm inflicted is more political than physical, manifesting in “the deprivation of rights and resources that are critical to personhood and citizenship.”[32] Examples of coercive behavior include controlling the victim’s finances; isolating her from her family, friends, and other potential sources of support; and monitoring her day-to-day activities. Seen through this lens, coercive control is a crime against another person’s liberty.
Violence can and does happen in relationships between members of the same sex. However, coercive control succeeds precisely because of other ways in which women’s bodies and lives are micro-regulated.[33] Because of the gendered division of resources and labor in society, women as a class are more vulnerable to the tactics of coercive control.[34]
Is legal change sufficient? Stark answers no.[35] The example of India supports Stark’s position. After all, the broad statutory language in India’s definition of domestic violence has done little to elevate the position and safety of women on a day-to-day basis. The flaw in both India and California law is the idea that domestic violence (including coercive control) can be separated from human rights, that it is purely a criminal matter and not one impacting other rights such as the basic right to equality and autonomy over one’s body. The regulation of abortion is one example of the micro-regulation of women’s bodily autonomy. Another is India’s recent ban on the practice of commercial surrogacy.[36] In commercial surrogacy, surrogates receive monetary compensation in exchange for the service of carrying the embryo of another couple. In India, the practice was fraught with ambiguities and avenues for exploitation of the mostly low-income surrogates by wealthy clients seeking cheap labor (hence, the unfortunate designation of India as the ultimate “rent-a-womb” destination.) But rather than regulate the practice and permit women an important source of income, the government effectively banned the transference of money between surrogate and client, allowing only the practice of altruistic surrogacy and only under very limited conditions.[37] In this climate of regulation and control over women’s bodies, women will not likely receive relief from patriarchal systems of domination and control that enact themselves on comparatively minor levels – a husband telling his wife what to cook, what to wear, how to behave, and with whom to associate.
Domestic violence has historically been relegated to the shadows as a private matter, a mere disturbance not worthy of government intervention or legal redress. It is hard to not equate this indifference to domestic violence with historical indifference to women’s rights. Indeed, it has been observed that “[t]he failure of criminal law to remedy domestic violence…is neither atypical nor coincidental, but rather one of many tangible proofs of the oft-quoted proposition that ‘criminal law is, from top to bottom, preoccupied with male concerns and male perspectives.’”[38] This is not only an Indian problem, but a global one.
How, then, to change the criminal law to elevate non-physical abuse rooted in patriarchal patterns of power and control so that it may receive the same consideration and condemnation as physical acts of violence?
The law is nothing more than formalized, codified language. The first step in transforming the lens through which we view domestic violence in the law is expansion of language, an approach referred to as “definitional stretching.”[39]
Another Look
What would definitional stretching look like? And why does it matter?
Consider the available permutations. One could assault his/her partner due to a specific life event or stressor, or as a way to resolve a dispute.[40] Sociologist Michael Johnson calls this situational violence.[41] On the other end of the spectrum is the pattern of conduct that characterizes the entirety of the relationship and manifests in tactics of control, intimidation, force, and fear.[42] Johnson calls this intimate terrorism; Stark calls it coercive control.[43] Since each category of behavior stems from a different source and follows distinct patterns – indeed, the former may be too infrequent to even qualify as a pattern – differentiation is useful in addressing the harms achieved and the harms intended; the defendant who hits once is definitionally distinct from the one who imposes a scheme of domination. The victim who is hit once has a different story than the victim who has suffered under a persistent scheme of domination and control; even the language used to tell each story will differ. However, under existing California criminal law, the narrative of the latter victim will be cut short in court, if heard at all, because of the law’s definitional limitations.
One possible new framework is already in effect in California. Penal Code Section 236 criminalizes false imprisonment, but has been narrowly interpreted to apply only to physical restraint and must therefore “stretch” to encompass the personal liberties at stake in the context of coercive control.[44] Human trafficking laws do just this by criminalizing the deprivation or violation of the personal liberty of another, with the intent to obtain forced goods or labor. (emphasis added).[45] With the exception of the second clause, the harms of human trafficking as presently criminalized mirror exactly the harms of coercive control – the deprivation or violation of the personal liberty of another.
And yet, this is precisely what India’s Constitution condemns, at least in theory. Article 21 prohibits the deprivation of the life or personal liberty of another person. We have, it seems, come full circle: the law, without corresponding expansion in social structures, has failed to live up to its guarantee of equality. In the end, language relies on interpretation, and since interpretation relies upon the existing climate around women’s rights, a society that does not value the right of a woman to live freely and independently will not rush to enforce her right to be free from violence in all of its forms.
Conclusion
As a starting point, the law must be inclusionary in order to address the liberty deprivations that form the basis of control in intimate partner relationships, up to and including violence. This requires a revised understanding of domestic violence, and the corresponding stretching of the language of domestic violence as an act of power and control that exploits traditional gender roles by reenacting unequal societal norms on the level of family and home. Language serves the necessary function of granting recognition to as yet unrecognized groups of people and experiences, giving the victim visibility and uncovering the root of violence for victim, abuser, and society to see plainly. Language can lead the way for societal change. If we don’t have the words to describe an experience, how can we begin to address it? Like the tree that falls, the victim depends on the law and society to hear the sound, the reverberation of the trauma, in its many and variegated forms, not simply the form we expect to hear or see. The invisible bruise still exists, even if it is not seen – but we, as a society, need to start listening.
The author takes sole and full responsibility for the views expressed in this article.
References
[1] Ravikant, Namratha S., “Dowry Deaths: Proposing a Standard for Implementation of Domestic Legislation in Accordance with Human Rights Obligations,” 6 Mich. J. Gender & L. 449 (2000). (https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1148&context=mjgl)
[2] Gadkar-Wilcox, Sujata “Intersectionality and the Under-Enforcement of Domestic Violence Laws in India,” 15 U. Pa. J.L. & Soc. Change 455 (2012). (https://scholarship.law.upenn.edu/jlasc/vol15/iss3/5/)
[3] India Const. pmbl. (https://www.india.gov.in/my-government/constitution-india/constitution-india-full-text)
[4] Ibid
[5] Dowry Prohibition Act, No. 28 (1961). (http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/93625/109525/F-1517592880/IND93625.pdf)
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] India Pen. Code § 498A (1983). See also supra, note 2, at 459. (http://www.498a.org/contents/ipc_explained.pdf)
[10] Ibid.
[11] India Pen. Code § 304B (1986). (https://indiankanoon.org/doc/1569253/)
[12] Ibid.
[13] Vyas, Pami, “Reconceptualizing Domestic violence in India: Economic Abuse and the Need for Broad Statutory Interpretation to Promote Women’s Fundamental Rights,” 13 Mich. J. Gender & L. 177, 188 (2006). (https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1086&context=mjgl)
[14] Smt. Sarla Prabhakar Waghmare vs State Of Maharashtra And Others, 1990 CriLJ 407. (https://indiankanoon.org/doc/476786/)
[15] The Protection of Women from Domestic Violence Act, No. 43 of 2005, India Code (2005), vol. 12. (http://chdslsa.gov.in/right_menu/act/pdf/domviolence.pdf)
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Dilip Premnarayan Tiwari & Anr. vs. State of Maharashtra (2009) 16 S.C.R. 322. See also supra, note 2, at 463. (https://indiankanoon.org/doc/1100478/)
[22] Ibid.
[23] Ibid.
[24] Cal. Penal Code § 273.5(a). (https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=273.5.)
[25] Ibid.
[26] Ibid.
[27] Cal. Penal Code § 243(e)(1). (https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=243.&lawCode=PEN)
[28] Cal. Family Code § 6203(b). (https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM§ionNum=6203.)
[29] Tuerkheimer, Deborah “Recognizing and Remedying the Harm of Battering: A Call to Criminalize Domestic Violence,” 94 J. Crim. L. & Criminology 959, 983-984 (2004). (https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=7169&context=jclc)
[30] Tuerkheimer, supra, note 32, at 973 (“Systemic blindness to conduct perpetrated on an ongoing basis disappears the injury that results from unseen patterns. In this manner, law’s transactionalization of crime effectively functions to legalize non-physical battering behavior.”).
[31] Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (2007). (https://www.amazon.com/Coercive-Control-Personal-Interpersonal-Violence/dp/0195384040)
[32] Id. at 5.
[33] Id. at 231.
[34] Id. at 211.
[35] Id. at 367.
[36] Surrogacy (Regulation) Bill, 2019. (http://164.100.47.5/committee_web/BillFile/Bill/70/137/156-C%20of%202019_2019_12_12.pdf)
[37] Ibid.
[38] Tuerkheimer, supra note 32, at 969 (quoting Stephen J. Schulhofer, “The Feminist Challenge in Criminal Law”, 143 U. Pa. L. Rev. 2151 (1995)).
[39] Stark, supra note, at 85.
[40] Id. at 103.
[41] Ibid.
[42] Ibid.
[43] Id. at 104-105.
[44] Cal. Penal Code 236. (https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=236.&lawCode=PEN)
[45] Cal. Penal Code 236.1(a). (https://law.justia.com/codes/california/2011/pen/part-1/236-237/236.1)