Dilemma of domestic violence victims

The problem of domestic violence has become increasingly dominant in mainstream media and Government discourse, with the criminal justice system including the courts being criticised for the possible lenient treatment of offenders.

This has had a negative impact as women continue to bear the brunt of domestic violence though most critics are quick to point out that women are their own worst enemies.

Notwithstanding the endeavours to empower women through reducing the various forms of abuse, gender equality remains contentious, elusive and vehemently opposed and resisted by men who are the major beneficiaries of the status quo.

In the last few decades, there have been significant shifts in criminal justice policy and practice in responding to the violence perpetrated against victims who are mostly women and children in Zimbabwe.

Examples of these changes include the implementation of pro-arrest policies and the introduction of legislation that criminalises non-physical forms of domestic violence such as financial and emotional abuse.

Meanwhile, Zimbabwe has endorsed major international conventions and instruments by making them part of the laws of the land. The country has instituted fundamental policies and legal provisions which in theory, offer women protection of their rights in society.

Among some of the legal instruments include the Legal Age of Majority Act of 1982, Maintenance Amendment Act of 1997, and recently and most significantly, the Domestic Violence Act of 2006 to mention but a few.

Legislative definitions of what constitutes domestic violence have also broadened to include criminal behaviour that would not have been imagined as violence such as emotional abuse or even stalking.

The Domestic Violence Act similarly conceptualised domestic violence as including physical abuse, emotional, verbal and psychological abuse, economic abuse, malicious damage to property, the list is endless.

Thus, cases of apparent leniency in the sentencing of male offenders convicted of violence often attract media attention suggesting that this type of violence is not being taken seriously by the Zimbabwe criminal justice agencies. This might be the picture but it is more than what meets the eye.

The sentence may be influenced by judicial acceptance of customary law misinterpretations supposedly condoning violence, consideration of community dysfunction and the detrimental impact of incarcerating an offender.

The extent of victim injury, use of weapon, the presence of children, and the nature for example, any past violence or type of past violence of the offender’s criminal history may all contribute to the assessments of blame and risk made by magistrates, which in turn, influence sentencing.

Many victims only report these cases after violence has been perpetrated for a long time and many a time after family resolving methods have failed, when the injury due to the violence is so serious so much that the victim cannot be treated without a police report having been made or where a third party, usually a distant relative or neighbour reports to the police.

The blame, in such circumstance, which cannot be visited on the courts is placed on the victims who are unwilling to prosecute their cases. But the victims also seem to justify their actions by laying the blame on circumstances which are beyond their own control. This is understood. I have personally encountered willing prosecutors who are ready to prosecute these matters but due to withdrawals by complainants their efforts are to no avail.

Violence perpetrated predominantly by men against women particularly in households is viewed as a normal part of gender relations. This is because some women opt to remain silent about violence perpetrated against them by men for fear of reprisals or that the attacker will retaliate and further harm them.

Reporting may also bring shame and damage to their own and families’ reputation. While women may perceive and feel that violence against them is both painful and wrong, they may not necessarily define it as a crime. In such circumstances, women are expected to endure any forms of violence perpetrated against them in order to save their marriage and keep their relationships or marriages intact.

Furthermore, many cultural beliefs reflect widespread tolerance of violence against women as a normal aspect of gender relations. The belief that violence is an indicator of love has existed for many years in many parts of the world. After all, love causes people to behave strangely, is that not so?

Prior research, for example, suggests that courts have a tendency to minimise the severity of violence committed within intimate or familial contexts. Non-domestic violence may be perceived as more serious and more harming because it impacts on the community at large and not just an individual victim.

If the perception of domestic violence as a private matter between two parties rather than a public concern still prevail, then we might expect that domestic violence offenders would be perceived as less harmful, and thus the possibility of sentencing leniency being extended to them would increase.

Whilst the harm caused by domestic violence in communities is well accepted and as illustrated by recent sentencing precedence, the court always finds itself between a place of hard and rock to churn out punitive sentences.

Who can blame them if on the other side of the courtroom the victim wife would be yelling to the magistrate to forgive her offending husband?

Who can blame them if the same victim refuses to give evidence against the offender and clinically commits an act of sabotage to her own case?

For example, assumptions around provocation or victim fault in cases of domestic violence may act to reduce assessments of offender culpability. Research on judicial attitudes to intimate partner violence suggests that the judiciary may assume the presence of victim provocation or at least see both victim and offender as equally responsible for the behaviour.

It can therefore, not be disputed that there are practical constraints to the victim and the law enforcement agencies.

The fact that the Act does not provide material support to the victims when the male perpetrator is the breadwinner exposes the inadequacies of law and its inapplicability to disempowered women.

The absence of safe houses to shelter victims of domestic violence particularly in rural areas makes it almost impossible for women to articulate or report cases of abuse to the authorities.

Social costs and societal expectations may be particularly important in understanding the sentencing of domestic compared to non-domestic violence offenders.

For example, in domestic violence cases, the social costs of incarcerating the offender may include the economic hardship that will befall the victim(s) through the potential loss of the major “breadwinner” during incarceration, concern about further damaging victim-offender relationships and the fragmentation of broader familial ties especially parent-child bonds.

Violence perpetrated within the criminal justice system against offenders including while incarcerated for example rape and assault within prisons often results in offenders returning to communities more violent than when they left.

Another issue is that if perpetrators of domestic violence are imprisoned this often leads to retaliatory violence from the perpetrators’ family toward the victim.

The separation of families caused by incarceration is further seen as an extension of familial separation which is discouraged and not as a strategy of resolving the factors contributing to the violence.

Faced with this disaster, one can only provoke the thoughts of the reader to formulate ideas on how the courts should deal with perpetrators rather than encourage to blame the courts.

Giving suspended imprisonment sentences which will stipulate that in the event of the offender committing the same crime again within a given period then automatically they go to prison can be effective.

But some will argue that if the woman is battered again would she risk reporting her husband which will effectively mean sentencing him to prison? Would she contain the pressure from relatives if they learn of the report? What if the offending spouse is the breadwinner only? But some view this scenario as sweet victory since rarely it places the victim on an upper hand since the perpetrator would have to beg.

Some suggest giving grants to victims’ families in the times of need to cure the obvious excuse given that since perpetrator is the breadwinner cannot be imprisoned. But with the current economic challenges this might be unrealistic though ideal.

Others even advocate for naming and shaming by creating a list of abusers which would be periodically broadcasted on television and radio. Whilst this might sound far-fetched and a bit too desperate since it infringes on privacy rights of the victim or the children’s – it only illustrates how complex this catastrophe is.

Rehabilitation programmes such as anger management and counselling are already in place but what the government is encouraged to do is to channel more resources towards these projects. They can make a big difference.

What can be gleaned from the above recommendations is the desire if not desperation on how sentencing against perpetrators can deliver that deterrent touch the criminal justice seeks. Fining sentences are convenient but not lasting. Also by imprisoning the culprit, it is tantamount to imprisoning the victim also. The children suffer. The marriage suffers also.

But the offender walks away unscathed if not even worse than before. It is a vicious cycle. Many men abuse their wives just to prove a point. The belief that wife beating is a sign of love is quite strong.

Traditional African culture has been used as a justification for abusing women as women themselves have been nurtured and internalised the belief that a man who does not beat his wife when she makes a mistake does not love her.

This kind of thinking makes it acceptable for women to be abused by their partners but it is wrong and should be thrown away.

 

Coddy Fungai Nyamundanda is a legal practitioner who writes in his personal capacity. Feedback: [email protected]