Go Back and Give Him What He Wants': The Limits of A Legal Rights Approach To Gendered Human Rights Violations

This article was downloaded by: [124.195.116.
125]
On: 11 December 2014, At: 00:39
Publisher: Routledge
Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered
office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK
The International Journal of Human

Rights
Publication details, including instructions for authors and
subscription information:
http://www.tandfonline.com/loi/fjhr20
Go Back and Give Him What He

Wants: The Limits of a Legal Rights
Approach to Gendered Human Rights
Violations
Laura Hebert
Department of Diplomacy and World Affairs , Occidental

College , Los Angeles, CA, USA
Published online: 18 Aug 2008.
To cite this article: Laura Hebert (2008) Go Back and Give Him What He Wants: The Limits of a
Legal Rights Approach to Gendered Human Rights Violations, The International Journal of Human
Rights, 12:4, 483-504, DOI: 10.1080/13642980802204685
To link to this article: http://dx.doi.org/10.1080/13642980802204685
PLEASE SCROLL DOWN FOR ARTICLE

Taylor & Francis makes every effort to ensure the accuracy of all the information (the
Content) contained in the publications on our platform. However, Taylor & Francis,
our agents, and our licensors make no representations or warranties whatsoever as to
the accuracy, completeness, or suitability for any purpose of the Content. Any opinions
and views expressed in this publication are the opinions and views of the authors,
and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content
should not be relied upon and should be independently verified with primary sources
of information. Taylor and Francis shall not be liable for any losses, actions, claims,
proceedings, demands, costs, expenses, damages, and other liabilities whatsoever
or howsoever caused arising directly or indirectly in connection with, in relation to or
arising out of the use of the Content.
This article may be used for research, teaching, and private study purposes. Any
substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing,
systematic supply, or distribution in any form to anyone is expressly forbidden. Terms &
Downloaded by [124.195.116.125] at 00:39 11 December 2014
Conditions of access and use can be found at http://www.tandfonline.com/page/termsand-conditions
The International Journal of Human Rights

Vol. 12, No. 4, 483 504, September 2008
Go Back and Give Him What He Wants1:

The Limits of a Legal Rights Approach to
Gendered Human Rights Violations
LAURA HEBERT
Department of Diplomacy and World Affairs, Occidental College, Los Angeles, CA, USA
ABSTRACT In advocacy and academic circles, human rights are commonly interpreted narrowly
as legal rights, with a governments fulfilment of its international human rights obligations
expected to take the form of appropriate legal protections at the national level. Building on a
comparative analysis of anti-domestic violence campaigns in Malaysia and South Africa, I argue
that to reduce human rights to legal rights is to overstate the ability of legal change to translate
into a transformation of the deeply held beliefs and values that often underlie gendered human
rights violations. The international human rights framework, however, embodies far more than a
source of legal rules and standards. To engage human rights fully holds the potential of
informing more proactive, strategic responses to gender-based harms.
Introduction
Womens rights advocacy over the past two decades has been distinguished by the attempt
of academics and activists to navigate the reality of difference among women globally.
As interactions between women from the global North and South have deepened over the
years, facilitated by networking opportunities associated with the United Nations (UN),
the idea that women comprise a homogenous group by virtue of their gender identity
has increasingly become untenable.2 Yet, irrespective of the diversity of womens experiences of discrimination and injustice, womens advocates from around the world have long
been united in their recognition of gender-based violence3 as one threat that crosses all
borders and social cleavages. In the wake of the UN Decade for Women (1975 85),
womens advocates demanded that the UN and its member states acknowledge the
physical and psychological trauma associated with gender violence and its long-term consequences for womens ability to contribute to, and benefit from, developments in the
economic, political and social arenas. By the mid-1990s, gender violence had come to
serve as the foundation of the transnational womens rights as human rights movement,
offering both a rallying point for bridging differences of ethnicity, class, sexual orientation
Correspondence Address: Laura Hebert, Department of Diplomacy and World Affairs, Occidental College, 1600
Campus Rd, Los Angeles, CA 90041, USA. Tel.: 01 (323) 259-2847; Email: lhebert@oxy.edu
ISSN 1364-2987 Print=1744-053X Online=08=04048322 # 2008 Taylor & Francis
DOI: 10.1080/13642980802204685
484
L. Hebert
and geographic location among womens advocates and a platform from which they could
challenge the gendered deficiencies of the international human rights framework.4
The convergence of womens activism around gender violence has produced significant
advances in womens rights over the past two decades. Womens advocates have
employed the issue of gender violence strategically, highlighting how women and men
experience violence differently in order to generate international support for the adoption
of international mechanisms that more directly address threats to womens enjoyment of
their human rights, including the Declaration on the Elimination of Violence Against
Women (DEVAW)5 and the Beijing Declaration and Platform for Action.6 Womens
advocates have used the norms and standards agreed upon at the international level to
push for concrete changes in laws and policies at the domestic level. They have also pressured the UN and its member states to recognise women as valuable partners in promoting
peace and security, rather than approaching women solely as victims of violence, as is
illustrated by developments surrounding the adoption of Security Council Resolution
1325 (2000).7 In spite of these important successes, however, domestic violence, rape
and other forms of gender-based violence remain pervasive across societies during
times of war and peace, with millions of women and girls around the world continuing
to live in fear of violence at the hands of loved ones, acquaintances and/or strangers.8
Anti-gender violence campaigns have now reached a mature stage of development in
many countries around the world, presenting an opportunity for a constructive appraisal
of the priorities and strategies of womens rights advocacy. In this article, I evaluate
one prominent dimension of nearly every anti-gender violence campaign that has been
launched to date globally: the effort to enact or revise legislation. In activist and academic
circles, human rights are commonly equated with legal rights, with a governments fulfilment of its international human rights obligations expected to take the form of appropriate legal protections at the national level. By extension, when gender violence is engaged
as a human rights issue the focus tends to be on the implementation, enforcement or reform
of related legislation.9 This focus on legal remedies is not without justification. Even many
scholars who recognise that fundamental rights may exist prior to or separate from legal
rights nonetheless view legal codification as the most concrete means available for formalising the obligation of states to promote and protect their citizens rights. In the case of
gender violence, establishing legal prohibitions symbolises public intolerance of violence
against women and (theoretically) holds perpetrators accountable for their violent actions.
But to reduce human rights to legal rights is to ignore how official equality between
women and men in many countries around the world coexists alongside womens lived
experience of inequality.10 To rely on law as a tool for subverting the gender hierarchy
is thus to overstate the ability of legal change to translate into a transformation of the
deeply held beliefs and values that often underlie gendered human rights violations.
My analysis of the relationship between the international human rights framework and
gender violence advocacy is grounded in a comparison of anti-domestic violence efforts in
Malaysia and South Africa.11 Malaysia is a semi-authoritarian state that has actively
undercut challenges to the status quo through the curtailment of civil and political liberties.
Malaysian leaders have traditionally viewed international human rights norms as tainted
by Western ideas and values.12 And, reflecting the limited spaces available for civil
society action, Malaysias gender violence network is held together by a small group
of committed advocates. The post-apartheid South African government, in contrast, has
positioned itself as a vocal defender of democracy and universal human rights. Rather
Limits of a Legal Rights Approach to Gendered Violations
485
than curtailing spaces for civil society, it has often relied on non-governmental actors to
take on tasks that would normally fall under the responsibility of the state. Civil society
organisations therefore proliferated in the years following the end of apartheid, with hundreds of groups today being involved directly or indirectly in responding to gender violence. On the surface, in the light of important differences such as these, analysing the
anti-domestic violence campaigns in Malaysia and South Africa appears to make for an
unusual comparison. But it is precisely these differences that make a comparative study
interesting and fruitful. Given the distinctiveness of their historical, political and social
contexts, the similarities in the objectives, strategies and outcomes of anti-domestic violence advocacy in Malaysia and South Africa are all the more striking.
The gender violence advocacy networks13 that have formed in Malaysia and South
Africa have devoted significant financial and human resources towards ensuring that
legal mechanisms are put in place and that laws are being properly implemented. The starting assumption that guides my analysis is that enacting laws against domestic violence,
rape and other forms of gender violence is vital for challenging the acceptability of
such violence and ensuring that victimised individuals are protected from further harm.
The argument I unfold in this article, however, is that the widespread preoccupation
amongst womens advocates with achieving ideal legislation has taken attention away
from the macro-level cultural beliefs, attitudes and behaviours that sustain mens violence
against women. Although the realisation of legal sanctions for domestic violence represents a significant achievement for advocates in both countries, analysing the problems
that have been identified since the implementation of legal remedies in these two contexts
provides a basis for assessing the utility of the law as an instrument of social change.
The article begins with a review of contemporary theorising on mens violence against
women. As the review illustrates, the structure of gender inequality that reflects and
reinforces male privilege and power has come to feature centrally in international accounts
of domestic violence (and gender violence more generally). Yet, gender-biased attitudes
and behaviours remain largely neglected in the most common responses to such violence,
including legal-oriented remedies inspired by international human rights standards. But to
criticise the over-reliance of womens rights advocates on a legal approach is not to
dismiss the value of employing human rights in anti-gender violence discourse and
action. Rather, the argument advanced here is that the international human rights framework offers far more than sets of legal rules and standards. To engage the legal and
non-legal dimensions of international human rights holds the promise of informing
more holistic responses to gender-based harms.
Theorising Domestic Violence
Theoretical approaches to the causes of gender violence predominantly have their origins
in Northern research and scholarship. Scholars from across academic disciplines have
variously attributed mens violence against women to such factors as mental illness;14
alcoholism and/or drug abuse;15 personality characteristics among females that increase
their vulnerability to victimisation;16 the instrumental use of violence to maintain
control or resolve conflicts;17 and the socialisation or social learning of violence.18 The
response of feminist theorists has been to highlight the male standard on which most of
these theories of violence are based and to challenge those theories that explain mens
violence against women by reference to the behaviour or characteristics of victims or
486
L. Hebert
forces over which violent individuals are supposedly powerless.19 Feminist approaches
generally acknowledge the interplay of overlapping factors, including the importance of
familial and societal modelling of violent behaviour on reinforcing the acceptability of
(male) violence and the way in which violence is employed by (some) men as a means
of maintaining dominance and control. But feminist theorists have strongly criticised
certain approaches for constructing violence as gender-neutral or as a problem shared
equally by males and females.20 For example, empirical evidence bears out the claim of
social learning theorists that a link exists between experiencing or witnessing violence
as a child and engaging in abusive behaviour as an adult.21 But by ignoring the salience
of gender dynamics, these theorists cannot explain why it is that females who have experienced or witnessed violence as a child do not engage in violent behaviour at the same rate
as males with a similar history.
Responding to the perceived shortcomings of early theories of violence, feminist theorists led a shift away from individual-based explanations toward those that understand
mens violence as a manifestation of the gender hierarchy. As articulated by Judith
Armatta, the extensiveness of domestic violence establishes that the problem does not
originate with the pathology of an individual person. Rather, domestic violence is
embedded in the values, relationships and social and institutional structures of society.
Its roots are found in a hierarchical social structure of male dominance and female subordination.22 Similarly, R. Emerson Dobash and Russell P. Dobash argue that the leading
conditions contributing to violence against women all centre on mens sense of entitlement
stemming from their privileged location in the gender hierarchy, including mens possessiveness and jealousy, mens expectations concerning womens domestic work, mens
sense of the right to punish their women for perceived wrong doing and the importance
to men of maintaining and/or exercising their position of authority.23
In a valuable review of the domestic violence literature, Lori Heise maintains that
single-factor explanations of mens violence against women are bound to leave important
questions unaddressed, with no theory independently sufficient to account for why gender
violence occurs. Heise confirms that much evidence from the cross-cultural literature substantiates many of the major tenets of feminist theory on male violence.24 She nevertheless contends that feminist theorists have failed to adequately explain why some men beat
and rape women when others do not, even though all men are exposed to cultural messages
that posit male supremacy and grant men as a class the right to control female behaviour.25 In order to fill important gaps left unaccounted for by theories of gender violence,
Heise promotes the adoption of a multi-level ecological approach that allows for scrutiny
of how individuals interact with their environment, attending to the multiple developmental and social systems within which individuals are embedded. Her ecological framework
identifies four nested levels of causality that require attention: (1) the individual level,
which encompasses factors that shape an individuals cognitive development and personality characteristics;26 (2) the microsystem or the specific context within which violence
occurs, including the marital or dating relationship;27 (3) the exosystem or the formal
and informal institutions and structures within which the microsystem is embedded,
including the structure of economic relations, educational and media systems, legal
systems and peer social structures;28 and (4) the macrosystem or the broad set of cultural
values and beliefs that permeate and inform the other three layers of the social ecology,
including attitudes upholding the belief in male supremacy, cultural notions of masculinity
tied to dominance and toughness, adherence to rigid gender roles and social approval of the
487
physical chastisement of women.29 By drawing on and linking together cross-disciplinary

empirical studies that have identified causal connections at the individual, microsystem,
exosystem and macrosystem levels, Heise is attempting to build a far more nuanced and integrated theoretical framework for formulating responses to gender-based violence.30 A clear
implication of Heises analysis is that moving beyond partial and reactive approaches to
mens violence against women will require that anti-violence interventions be targeted at
each level of causality.
By confirming the existence of multi-level explanatory factors, Heise does not
invalidate the contention of feminist theorists that the gender hierarchy plays a fundamental role in perpetuating mens violence against women. In the concentric circle
image that Heise constructs to represent the ecological model, the individual level of personal history is nested within the microsystem which is nested within the exosystem,
which is in turn nested within the macrosystem. Therefore, while acknowledging the complexity and multi-causality of gender violence, Heise reaffirms that understanding why
females are disproportionately vulnerable to physical, sexual and psychological violence
by an intimate partner is not possible without attention to the broad cultural norms that
reinforce unequal gender relations, shape individual developmental experiences and
infuse social institutions and structures. The increased attention of theorists such as
Heise to the complexity of violence has not, however, fully filtered into anti-gender
violence advocacy. As the case studies of Malaysia and South Africa illustrate, interventions targeting the macro-level remain peripheral in the light of the priority advocacy
network actors have placed on women-centred and legal-oriented responses.
Domestic Violence Legal Reform in Malaysia and South Africa

The first anti-domestic violence organisations were established in South Africa in the
1970s and in Malaysia in the 1980s. Paralleling the evolution of anti-domestic violence
campaigns internationally, the initial concern of womens advocates in both countries
was to ensure the immediate physical and psychological welfare of survivors and their
children through offering safe shelter and counselling services. But advocates quickly
realised that their police and judicial systems were inadequately prepared to handle
domestic violence cases, which impeded the ability of women to leave abusive relationships, establish stable and independent lives and protect themselves against further abuse.
The enactment of domestic violence legislation that was intended to rectify the weaknesses of existing protective remedies took quite different paths in Malaysia and South
Africa. In Malaysia, the effort to pass a domestic violence bill was spearheaded by the
Joint Action Group against Violence Against Women (JAG), a coalition created by five
local womens organisations in 1984 in response to heightened public awareness of
gender violence during the UN Decade for Women. JAGs decision to prioritise legal
reform was sparked by a two-day workshop held in Kuala Lumpur in 1985 to mark International Womens Day, during which time its more than 1,000 participants heard many
accounts of the enormous challenges survivors were confronting when trying to have
their complaints of violence taken seriously by the police and court systems. In spite of
long-standing ethnic, religious and class cleavages amongst Malaysians, JAG successfully
generated support among women from across Malaysian society for a domestic violence
bill. But in the years following the workshop, the efforts of womens organisations to
488
L. Hebert
engage state and religious leaders in dialogue were far less successful and it would
ultimately take more than a decade for a domestic violence law to be put in place.
The sticking point in the negotiations was the demand of womens advocates that the
new law be applicable to both Muslims and non-Muslims. Muslims comprise roughly
51% of Malaysias population. Although Malaysia is not an Islamic state, constitutional
protections afforded to Muslim Malays have been in place since the countrys
independence from Britain in 1957, including the recognition of Islam as the countrys
official religion.31 Under the Constitution,32 Muslims are governed by Islamic law in all
matters relating to the family (e.g. marriage and divorce, guardianship and inheritance).
When womens groups tried to extend the protection offered by their proposed domestic
violence bill to Muslim women, religious authorities protested that a domestic violence
law applicable to Muslim women wasnt necessary given that Syariah33 (Islamic law) prohibitions against family abuse were already in place.34 Muslim women and womens
organisations countered religious authorities by arguing that domestic violence transcends
ethnicity, class and religion in Malaysia, despite the gender-sensitive guiding principles of
Islam. Moreover, womens groups expressed concern that if a federal law against domestic
violence was not passed, different statutes would be enacted across Malaysias 13 states,
opening a loophole allowing individuals to move across state borders to avoid restrictive
regulations, as has occurred in the case of polygamy.35
What womens advocates wanted was for domestic violence to be treated not as a family
or civil matter, but as a criminal offence. They also sought to establish a separate law
against domestic violence, with separate penalties, in order to address the unique dynamics
of domestic violence, which is most often marked not by an individuals experience of a
single violent episode (as in typical cases of assault), but rather long-term, systematic violence at the hands of someone with whom they shared an emotional relationship. But the
negotiations with government and religious leaders stagnated, and in order to move the
process forward womens groups compromised and allowed domestic violence to be
attached to Malaysias existing Criminal Procedure and Penal Code.36 Although
Syariah Law has jurisdiction over all family matters for Muslims, criminal offences for
both Muslims and non-Muslims fall under the administration of the federal government.
Attaching domestic violence to the Criminal Procedure and Penal Code therefore
enabled domestic violence to be classified as criminal behaviour while ensuring applicability of the law to all Malaysians. But this also meant that domestic violence would
remain attached to definitions and procedures for hurt, criminal force and assault, rather
than being established as a distinct crime punishable by new penalties. In spite of this significant compromise by womens groups, the government continued to drag its feet.
Although the Domestic Violence Act (DVA)37 was prepared for the cabinet in March
of 1994, it took a further two years before the Act was formally passed. Altogether, the
campaign to realise the implementation of a domestic violence bill spanned eleven years.
Malaysian womens advocates were rightly proud of their lead role in pushing for the
enactment of the DVA. As a consequence of their sustained activism and their ability to
surmount inter-ethnic, religious and class differences, Malaysia became the first Muslim
country in the world to implement domestic violence legislation. But the celebrations of
advocates in the wake of the DVAs enactment were short-lived. Almost immediately
after it came into force, womens groups began to identify significant deficiencies in the
law that resulted from the concessions that had been agreed upon in order to facilitate
its implementation.
489
In South Africa, the road to the countrys domestic violence law was more direct than in
Malaysia, but ultimately equally contentious. Unlike in Malaysia, the effort to realise a
domestic violence bill was not spearheaded by womens groups. In December 1993, in
the final months of the apartheid regime, the National Party (NP) implemented the Prevention of Family Violence Act (PFVA)38 to provide enhanced and expedited legal remedies
for domestic violence survivors. The NP had dominated South African politics for more
than 40 years and was facing the end of apartheid and the transition to a majority-dominated political system. Given the anticipated landslide for the African National Congress
(ANC) in the countrys first democratic elections in 1994, the NP recognised that it would
need every possible edge if it was to stay alive in South African politics. When the NP
decided to enact the PFVA, many womens groups complained that the drafting of the
Act was rushed and politically expedient, a way for the NP to court women voters
leading up to the April 1994 elections.39 Notwithstanding the political motivations
believed to have been behind the PFVA, womens advocates welcomed the governments
efforts to establish legal remedies against domestic violence. But almost immediately following the enactment of the PFVA, womens groups began to express concern that the
quick formulation and implementation of the Act did not allow for the participation of
womens groups and, as a result, the law reflected a narrow approach to domestic violence
and was marked by significant substantive and structural problems.
In spite of the different processes that led up to the domestic violence acts in Malaysia
and South Africa, the DVA and PFVA were quite similar in their content and in the
obstacles encountered in their implementation and enforcement. In both countries, enacting a law against domestic violence was intended to raise public awareness of domestic
violence, challenge the widely held belief that domestic violence is a private issue, simplify procedures for obtaining protection orders and hold perpetrators accountable for
their criminal behaviour. And after the implementation of these laws, womens advocates
in both countries did observe an increase in public awareness of domestic violence and a
rise in the number of women willing to report domestic violence to the police. But it
was nonetheless the case that advocates in Malaysia and South Africa identified a host
of problems that had the effect of undermining the protective and preventive potential
of the laws.
Under both the DVA and PFVA, the recognised relationship between the perpetrator
and abuse victim is quite restrictive, encompassing only traditional family relationships
and excluding protective options for non-married cohabitating partners, victims of dating
violence or victims of violence within homosexual relationships.40 Although the definitions of domestic violence in the DVA and the PFVA are fairly broad, encompassing
physical and psychological violence, options for non-physical harms are limited to counselling.41 Moreover, neither the DVA nor the PFVA includes guarantees that a violation of
a restraining order will be met with police or judicial action against the violator. During
field research in Malaysia in 1997 and South Africa in 1998, womens advocates and domestic violence survivors relayed their experiences of encountering gender-biased attitudes
and even hostility in their interactions with police officers and judges. Common complaints included women being told by enforcement officers that they must have done
something to provoke the violence; being persuaded to go back to their spouses because
the police didnt want to break up families; or being told that their injuries werent
serious enough to warrant protection orders.42 As described by one Malaysian activist,
In theory, they [police officers] know what to do, the kind of actions they have to take
490
L. Hebert
when a woman comes and lodges a report of domestic violence . . . [But] when you talk
with them you realise the attitude is Im a man and it is my right to discipline a woman if
she has done something wrong . . . And nobody should take away my right.43
As a consequence of the substantive omissions in the DVA and PFVA and their
inadequate enforcement, womens advocates in both countries re-mobilised in order to
achieve reform of the laws. In Malaysia, over the past decade there has been a surge in
the formation of groups, committees and subcommittees that aim to expose the
deficiencies of the DVA and propose recommendations for changes. At times, advocates
strategise amongst themselves, but they also participate in government-led efforts such as
the National Steering Committee on Violence Against Women (NSCVAW) and the Technical Working Groups (TWG) on womens issues that have been established by the Ministry of National Unity and Social Development.44 During interviews in 2002, advocates
expressed concern that these efforts may be a way to placate womens groups by giving the
impression that the government is moving the reform process forward while, in practice, it
prevents any substantial legal changes from being achieved. When asked about the likelihood that their efforts would lead to significant changes in the law, the advocates I
spoke to expressed little optimism. They believe that if the DVA is to have real power
behind it, domestic violence must be de-linked from the Criminal Procedure Code and
recognised as a crime in itself. They did not, however, anticipate that this would actually
happen. Nonetheless, they have continued to channel considerable human and financial
resources towards pushing for reform of the DVA.
In South Africa, womens advocates had greater success in their efforts at reform. The
Minister of Justice agreed to undertake a review of the PFVA in 1996, although this was
only after an alleged abuser challenged the constitutionality of provisions under the law
with respect to the right of respondents to a fair hearing.45 Learning from the experience
of the PFVA, the South African Law Commission (SALC) established a committee to
review the Act and widely consulted civil society actors from around the country, including
womens groups, to identify necessary revisions to the law. Less than five years after the
PFVA had been enacted, a new bill the 1998 Domestic Violence Act (DVA) was
drafted and ready to be gazetted into law.46 The fact that the SALC and parliament agreed
to revisit legislation that had been so recently implemented is quite unusual, which many
womens advocates interpreted as reflecting a sincere commitment by the post-apartheid government to promote womens human rights. But it is also important to note that, as was the
case in 1993, the government was under political pressure to pass the new legislation before
the second national elections in 1999.47 Regardless, many network actors viewed the repeal
of the PFVA and the enactment of revised legislation as a significant victory.
South Africas DVA has been hailed as one of the worlds most progressive laws on
domestic violence. It recognises a wide range of relationship between victims and perpetrators, including individuals who have lived together (even if they never married) and
people in dating relationships, whether heterosexual or homosexual.48 The Act recognises
an unusually broad definition of domestic violence, including not only physical, sexual and
psychological violence, but also economic abuse.49 It allows for the arrest without a
warrant of any individual whom a police officer reasonably suspects of having committed
an act containing an element of violence.50 It permits the court to seize any arm or
dangerous weapon in the possession or under the control of the respondent.51 And,
perhaps most novel, it establishes the duty of members of the South African
Police Service (SAPS) to assist and inform victims of their rights either at the scene of
491
the incident or as soon thereafter as is reasonably possible. Failure to do so constitutes

misconduct and may result in disciplinary action.52
On paper, South Africas DVA is as close as exists to ideal domestic violence legislation. But in spite of its progressive provisions the DVA, like its predecessor, came
under strong criticism shortly after it came into effect. One of the most serious objections
of womens advocates is that legal reform was not accompanied by the allocation of
sufficient funds to properly implement the new law. As described by one interview participant, like most policies and legislation the government had passed, they hadnt thought
about implementation. So we have an Act without sufficient resources to make it work,
without training to make it work, without additional person power to make it work.53
The SAPS in particular has struggled with its expanded responsibilities under the Act.
One NGO director described police officers as burnt out and short of the resources and personnel necessary to actually respond to domestic violence situations: We have a shelter
where were supposedly linked with the police station. And weve had perpetrators
break into the shelter. We phone the police and they say Weve got no cars. We cant
come and help you.54
A multitude of other problems associated with the PFVA were left unresolved in the
process of altering the language of the law. Although South Africas DVA is far more comprehensive and detailed than either the PFVA or Malaysias DVA, the enforcement of the
new law remains similarly deficient. Domestic violence survivors continue to find the
police and judicial system intimidating and onerous to navigate, frequently encounter enforcement actors who are themselves unclear about the law and have difficulty in having their
protection orders enforced properly. Womens advocates have also objected to the continued
discretion of police and judicial actors in determining the worthiness of a case, in spite of
attempts in the drafting of the Act to minimise the arbitrariness of enforcement. The passing
of a domestic violence law implies that the question of whether domestic violence should be
seen as a private or public matter is settled; but as articulated by one NGO director, the
assistance an abused individual receives is dependent on the enforcement officers feelings
around domestic violence or basically their mood for the day.55 This view was echoed by
another interview participant, who complained that legal reform had a minimal effect on
increasing the stringency of repercussions for domestic violence offences: Youve still
got a lot of inappropriate sentencing going on. I dont think people are scared of the criminal
justice system . . . If you are going to be able to get away with it, youve seen people getting
away with it all the time, then theres a feeling that you can.56
One response of advocates in Malaysia and South Africa to the unmet expectations of
their domestic violence laws has been to push for better training of individuals who routinely come into contact with domestic violence survivors, including police officers,
welfare officers, medical personnel, clerks of court and judges. The three gender violence
organisations in Peninsular Malaysia Womens Aid Organization (WAO), the All
Womens Action Society (AWAM) and the Womens Centre for Change (WCC) all
describe their organisations as regularly conducting gender sensitisation training programmes for enforcement officers who frequently interact with domestic violence survivors. Similarly, nearly half of the South African organisations interviewed for the study
are involved in the training of police and/or judicial officers.57 But in both countries, existing gender sensitivity programmes tend to be run on an ad hoc basis and are usually limited
to a half-day or a single-day training session.58 Moreover, these training programmes are
generally designed not to probe and unsettle harmful gender norms and behaviours, but
492
L. Hebert
rather to equip participants with information on how to identify cases of domestic

violence, rape or incest; how to handle survivors in a sensitive manner; and how to
refer survivors to available services.
Interview participants themselves questioned whether their own training programmes are
contributing to attitudinal and behavioural change. For example, Kelly Hatfield, then
Executive Director of People Opposing Women Abuse (POWA) in South Africa, acknowledged that it is relatively impossible to have an attitudinal shift process happening with 200
people in the room.59 Nicola Christofides of South Africas Womens Health Project
(WHP) remarked on the growing challenge of assessing the impact of training programmes
on attitudinal change now that people are cognisant of the need to be politically correct:
You end up going through a stage where people give a socially acceptable response
because they now know what that is. And I think that underneath it, things dont
change . . . Men start to recognize, Oh, okay, this is not socially acceptable, the
social norm has shifted. That doesnt mean that practice is shifting. It just means
that they know when to talk about it and when not to talk about it.60
Evaluating the contributions of training programmes to the gender sensitisation of enforcement officers, particularly in terms of long-term attitudinal and behavioural change, is
complicated by the absence of systematic impact assessments. None of the Malaysian
organisations interviewed for the study had procedures in place to evaluate the impact
of their training programmes on the attitudes or behaviours of their workshop participants.
In South Africa, only five of the 28 organisations interviewed had instituted standard
evaluation procedures for their training sessions. But even these organisations acknowledged that the evaluations they conduct do not measure (or are not very effective in
measuring) attitudinal and behavioural change. And even if changes are observed in the
work environment (e.g., noted improvements in a police officers treatment of rape or
domestic violence survivors), they admitted that this does not necessarily mean that
these changes extend beyond that setting.
The reform campaigns in Malaysia and South Africa have considerably tempered the optimistic assumption of womens advocates that the enactment of legislation would increase
the security of women and serve as a deterrent to future violence. One might therefore
expect that network actors would be dissuaded from so heavily relying on legal approaches.
Yet womens advocates have instead tenaciously looked to the law as a tool not only for
protection but also for prevention, and continue to focus their collective energy on achieving
further reforms to their laws. As powerfully observed by one interview participant, gender
violence advocates (nationally and internationally) remain fixated on the law. When laws
arent working as they should, advocates push for reforms rather than recognising that the
law is never going to be a perfect instrument with which to address gender violence. Pursuing legal remedies is an easy option because we dont have to confront the complexities of
problems such as domestic violence, which is housed within a social unit that is seen as so
fundamental to our society: the family. The emphasis of gender violence activists is targeted
to things that are more tangible, such as how to counsel survivors, how to ensure that there
are shelters in place where survivors can be taken, how to inform individuals of their rights
under the law and so forth. The real complexities, however, remain untouched, because of
the reluctance of those within the violence against women sector to even engage with those
kinds of discussions.61
493
The Power and Possibilities of Human Rights

Reflecting the position of many feminist scholars and advocates, Nadine Taub asserts that
the fight for legal rights plays a key role in achieving the changes in consciousness and
the changes in power distribution, that are so crucial to improving womens situation in
all of our different countries.62 Anti-gender violence legal advocacy has invaluably functioned to generate and sustain linkages amongst womens advocates locally, nationally
and transnationally, playing a key role in achieving international recognition of womens
rights as human rights. The very process of rallying civil society actors, and the public
more generally, to support the implementation of anti-gender violence laws has also
opened spaces for society-wide debates about gender roles and gender expectations, creating
opportunities for questioning and opposing deeply entrenched biases. As is confirmed by a
comparative analysis of the Malaysian and South African cases, however, three major problems arise from the legal emphasis of remedies seized on by the gender advocacy networks.
First, the gender biases at the root of violence against women also influence the institutional mechanisms and actors responsible for responding to such violence. As articulated
by Robin West, the law is markedly masculinised:
[T]he distinctive values women hold, the distinctive dangers from which we suffer
and the distinctive contradictions that characterise our inner lives are not reflected in
legal theory because legal theory . . . is about actual, real life, enacted, legislated,
adjudicated law and women have, from laws inception, lacked the power to
make law protect, value, or seriously regard our experience.63
Nearly every feminist analysis of the legal response to violence against women points to
the reluctance of police officers, prosecutors and judges to intervene in what they consider
to be a personal matter and to hold men accountable for their acts of violence.64
Second, whether criminalisation deters acts of gender violence and enhances protective
efforts remains highly contested. A landmark US study conducted in 1981 by sociologists
Lawrence Sherman and Richard Berk (known as the Minneapolis Domestic Violence
Experiment or MDVE) examined the effects of different policing strategies in response
to domestic violence situations and found that only 10% of the abusers arrested repeated
their abusive behaviour, compared to 19% who were advised and 24% who were removed
from the scene.65 More recent studies, however, have failed to conclusively demonstrate
the deterrent effects of criminalisation on repeat victimisation.66 In five follow-up attempts
to replicate Sherman and Berks findings in the MDVE, the studies
clouded the issue for police and policymakers . . . Arrest cured some abusers but
made others worse . . . One central finding is that arrest increased domestic violence
recidivism among suspects in Omaha, Charlotte and Milwaukee. Although these
cities produced some evidence of a deterrent effect of arrest within the first 30
days, victims found that this protective shield quickly evaporated and that they suffered an escalation of violence over a longer period of time.67
A 2001 National Institute of Justice Report by Christopher Maxwell, Joel Garner and
Jeffrey Fagan further complicated the debate. In 1996, Fagan had argued that [t]he deterrence logic of criminalisation assumes a rational offender-actor who weighs the cost of
494
L. Hebert
offending . . . against whatever benefits that may accrue from the behaviour . . . This logic
is strained in the context of domestic violence.68 Five years later, however, Fagan joined
Maxwell and Garner in arguing that their more recent findings based on enhanced
research methods, yet using the same data provide systematic evidence supporting
the argument that arresting male batterers may, independent of other criminal justice sanctions and individual processes, reduce subsequent intimate partner violence.69 But the
authors acknowledge that the statistical significance of the effect of arrest varied depending on whether the subsequent aggression was measured by victim interviews or police
records.70
Even without adding to the debate on the view of scholars such as James Gilligan that a
punitive approach to violence will only beget an escalation of violence,71 whether criminalisation deters acts of gender violence and enhances protective efforts is a question that
is clearly not yet settled. What proponents and critics of the criminalisation approach can
agree on, however, is that the punitive and protective effect of the law is diminished when
the actors responsible for enforcing the law refuse to take action against perpetrators or
hand out token punishments. Referring to domestic violence, Fagan observes that when
perpetrators perceive that punishment is not a cost worth avoiding, legal sanctions
alone are unlikely to induce compliance with the law.72 Similarly, Richard Davis
remarks that much of our current domestic violence policy remains as follows: have
the police arrest the abuser, have the court system let them go. He therefore concludes
that [i]f is the purpose of deterrence to let potential offenders know that those who break
the law will swiftly and surely be punished, there is no question that we have failed.73
Third and perhaps most critical, legal systems are able to deal only with the commission
of violations, not with the reasons or intentions behind violations. As a consequence, even
if one were to imagine an ideal scenario where laws are perfectly conceptualised,
implemented and enforced, the law remains of limited use as a tool for violence prevention. By establishing standard procedures for handling gender violence cases, implementing harsher punishments for violent offenders, sensitising enforcers of the law to the nature
and consequences of violence and ensuring womens access to legal remedies, the law may
reduce the likelihood that perpetrators will commit further acts of violence against individual women. Crisis intervention, however, is not the same as violence prevention, and preventing further violence is not the same as preventing violent acts from being committed in
the first place. Working towards eradicating violence against women requires the direct
targeting of the discriminatory attitudes, values and behaviours that have made legal
prohibitions against such violence so necessary.
In spite of the many limitations of the legal approach, states that establish national legal
remedies for violations of womens human rights are generally acknowledged as having met
their obligations under international human rights law. But the power of human rights goes
well beyond establishing legal norms and standards that states are to abide by. As embodied
in the Beijing Platform,74 two inter-related dimensions of the human rights framework have
the potential to inform a more integrative approach to gender violence and other genderbased harms. The first is the idea that the human rights recognised in the Universal Declaration of Human Rights (UDHR)75 are to be approached as indivisible or inseparable from one
another. The second is that preventing human rights violations requires macro-level, social
structural change involving both state and non-state actors.
495
The indivisibility of human rights

The UDHR is implicitly grounded in an understanding of the inter-relatedness of civil,
political, economic, social and cultural rights, with an individuals enjoyment of each
right depending on the fulfilment of all other rights. Geopolitical squabbling between the
Cold War powers led the integrative promise of the UDHR to go unfulfilled, with the
rights contained within the Declaration being splintered into two separate legally binding
international instruments. The inability of key states to reach agreement on a single,
unified treaty is read by many scholars and non-scholars alike as confirmation that certain
rights are indeed more fundamental than others. As an Economist correspondent recently
asserted, when it comes to the new category of what people now call social and economic
rights . . . no useful purpose is served by calling them rights.76 Overlooking the articles
mischaracterisation of social and economic rights as new, to maintain as the correspondent
does that shifting away from a focus on civil and political freedoms is to dilute human
rights is to ignore the fact that the exercise of civil and political rights does not occur in a
vacuum. Is it really possible, for example, to imagine an individual fully enjoying her due
process right to a fair and public hearing by an independent and impartial tribunal under
Article 10 of the UDHR in the absence of a judiciary or jury of her peers sufficiently educated to carefully analyse the evidence and determine guilt or innocence? The notion of
human rights as indivisible remains an ideal, with states routinely privileging particular categories of rights over others in practice, regardless of whatever shift may occur in rhetoric.
But being cognisant of the inseparability of rights, as affirmed in the 1993 Vienna Declaration and Programme of Action, is to recognise that satisfying the ultimate ambition of the
international human rights system to realise the inherent dignity of each person requires
attention to the array of threats to human dignity that people around the world confront
on a daily basis threats that cut across and bridge the range of human rights.77
Womens rights as human rights advocates coalesced around the issue of gender-based
violence in the 1980s in large part because it allowed for transnational mobilisation
without denying the reality of identity-based differences among women. But gender violence also served the purpose of exposing the interconnections between the human rights
set out in the UDHR. Threats and acts of rape, domestic violence, sexual harassment and
other common forms of violence have been identified by womens advocates as threatening womens dignity and undermining their ability to enjoy their civil rights to life, security of person, freedom from torture and so forth which, in turn, prevents their ability to
enjoy the full range of human rights, including rights to education, to employment, to
participate in the work of the government, to achieve the highest attainable standards of
physical and mental health and so on. This recognition of the indivisibility of human
rights is evident in the Beijing Platform. In singling out violence against women as one
of the twelve critical areas of concern that requires urgent state and non-state attention
if gender equality is to be achieved, the Beijing Platform recognises that ensuring the physical, sexual and psychological security of women and girls is contingent not only on the
implementation of legal prohibitions against violence and the repeal of laws that discriminate against women. It also requires the reform of educational systems in order to modify
socio-cultural patterns or practices that perpetuate gender role stereotypes or assumptions
of female inferiority; the alleviation of constraints on womens economic independence;
the elimination of negative and exploitative images of women and girls in the media;
and improved access of women and girls to affordable and quality health care.78
496
L. Hebert
The strategic recommendations set out in the Beijing Platform bridge political, economic and socio-cultural systems, reflecting the understanding of womens advocates of
human rights as mutually dependent, and gender-based harms as interrelated. But, in practice, advocacy campaigns rarely cut across issue areas, with education, health, poverty and
violence instead being separately tackled by womens advocates. Moreover, not only is
gender violence separated out from other manifestations of the gender hierarchy, but a
further narrowing effect is evident, whereby the various forms of gender violence are
often isolated and treated individually, with organisations being established, and campaigns launched, around domestic violence or rape or sexual harassment or trafficking.79
As a consequence, an opportunity to leverage the collective strength of womens advocates across issue areas to target the causes of gender-based rights violations has been
missed.
In her critique of the womens rights as human rights discourse, Dianne Otto convincingly argues that the unifying potential of womens rights advocacy has not been fulfilled.
In her account, rather than taking indivisibility seriously, the goal of womens emancipation (encompassing freedom from violence) has been pursued through the legalistic human
rights framework while social and economic justice has been separately pursued through
the development paradigm.80 The prominence of gender violence as a rallying issue for
womens social movements and networks in many countries around the world may therefore be interpreted as coming at the expense of issues of economic and social justice, silencing the voices of women for whom issues such as poverty and economic exploitation take
precedence over violence in their daily lives. Whether or not one accepts Ottos critique, a
more direct engagement with the notion of indivisibility at the core of the international
human rights framework can benefit efforts to better link advocacy efforts across issue
areas, a necessary move if the ultimate goal is genuinely to target the causes rather than
manifestations of the gender hierarchy. Harnessing the various efforts of womens advocates is an important way of preventing the duplication of work, using scarce resources
more efficiently and increasing the effectiveness of responses. Just as importantly,
however, understanding the interrelatedness of issues such as gender violence, reproductive health, education and poverty challenges the privileging of particular womens identities and interests over others.
Engendering macro-level change
The principle of indivisibility implicit in the UDHR is more explicitly expressed in later
human rights documents.81 Similarly, subsequent human rights instruments have elaborated on the meaning of the rights that are set out in the UDHR and have provided
greater specificity to the obligations of states as duty-bearers. Documents such as the
Vienna Declaration and Beijing Platform go even further in their articulation of requisite
measures for fulfilling the potential of human rights, acknowledging that doing so will
require the efforts not only of governments but also of international organisations,
private sector actors and civil society. What is evident in these later instruments is
confirmation that alleviating threats to human dignity will not be possible simply
through adopting laws that require public and private actors to refrain from actions that
impede individuals from enjoying their rights. Legal remedies must be accompanied by
government support in the form of political and economic resources. But such supportive
assistance is in itself also insufficient if the ultimate objective of human rights is to
497
reach the point where claiming ones rights is no longer necessary because ones rights
are no longer under threat.82 What is necessary is to shift from stopping violations-inprogress to prevention. This, in turn, requires gaining a much deeper understanding
of the inequities that pose a threat to human dignity and devising more holistic interventions that target the complex processes behind, and the effects of, human rights
violations.
Womens advocates at the national and transnational levels have made remarkable
progress in achieving governmental recognition of gender violence as a human rights
issue, even when such violence falls outside the state citizen relationship that has traditionally been at the core of the international human rights framework. As a consequence
of the sustained efforts of womens advocates, governments may be held responsible even
for those acts of violence perpetrated by private actors when it can be shown that there has
been a pattern of non-prosecution for a violation (either because a law is not in place or
because the law is not being enforced properly) and that this pattern of non-prosecution
can be shown to be rooted in discrimination on the basis of sex.83 What has largely
been left unchallenged by womens advocates to date, however, is the tendency to
equate human rights with legal rights. State leaders, international organisations and
non-governmental actors continue to evaluate a governments adherence to international
human rights norms on the basis of whether it has implemented, enforced or reformed
legislation relevant to the issue area in question. To reduce human rights to legal rights
is, however, not only to overlook the deeply held beliefs and values that frequently
underlie human rights violations; it is also to neglect the non-legal dimensions of the
human rights framework that can be used to advocate for social change.
An examination of women-related UN instruments confirms that the international
human rights framework encompasses far more than simply legal rights. The Womens
Convention84 includes several articles that call for more than legal change. Under
Article 3 of the Convention, states have an obligation to take active steps to promote
the advancement and development of women. Article 5 recognises that even with the guarantee of womens de jure equality and the implementation of special temporary measures
intended to promote womens de facto equality, other measures are needed to realise
womens equality in practice, such as efforts to eliminate social, cultural and traditional
patterns that perpetuate stereotypes based on the inferiority of women and to achieve
greater balance between men and women in the raising and development of children.
Article 10 calls for the elimination of stereotypical representations and gender roles of
men and women by encouraging coeducation and the revision of textbooks. Other nonlegally binding instruments, such as the 1985 Nairobi Forward Looking Strategies for
the Advancement of Women85 and the Beijing Platform, similarly acknowledge legislative
changes as being essential but inadequate for eliminating gender-based inequality and discrimination.
As established earlier, feminist explanations for why mens violence against women
occurs have shifted towards more complex, multi-causal analyses. Building on Heises
ecological framework,86 individual, situational and institutional factors are understood
as embedded in macro-level beliefs and values that shape what is accepted and expected
of men and women. The construction of gender identities may vary across social contexts,
but beliefs and values that centre on male superiority and privilege are manifest to some
degree in nearly every society, as are beliefs and values that sustain dominant sociocultural expectations of masculinity tied to the acceptability of violence as a means of
498
L. Hebert
conflict resolution, and dominant socio-cultural expectations of femininity tied to the

toleration of, or acquiescence to, violence.
Advocating greater gender sensitivity in the substance and functioning of the law in the
absence of attention to the broader socio-cultural context within which legal institutions
are embedded will thus inevitably be thwarted by macro-level cultural beliefs and
values that push in the opposite direction. Even if positive attitudinal and behavioural
change is discerned among police officers, judges and prosecutors as a result of their
participation in gender sensitivity programmes, this change is unlikely to be sustainable
or extend beyond the work environment when these attitudes and behaviours considerably
diverge from dominant social norms. Before the law can function as a tool for social
change, as womens advocates envisage, the social norms that shape legal institutions
must be more directly targeted.
As feminist scholars have long recognised, any attempt to grapple with the entrenched
norms that patrol and reinforce gender-based rights violations must attend to the gendered
structure of the neoliberal economic order, which is reproduced through the exploitation of
womens unpaid and under-paid labour.87 At present, womens advocates in the academic,
legal and policy worlds continue to operate within existing political and economic structures, having yet to offer a viable alternative to neoliberalism.88 Alongside the on-going
effort to engender economic justice, other avenues for achieving gender justice must be
simultaneously pursued. In particular, the effort to target hegemonic social norms can
benefit from greater attention to the role of formal and informal education as vehicles
for social change.
Ever since the institutionalisation of the international human regime in 1948, the UN
leadership has maintained that human rights will remain an ideal unless individuals globally are educated about their rights and are provided with models for action. Education is
therefore understood by the UN as a right in itself, as well as a prerequisite for realising the
full range of human rights.89 Educational change is vital to subverting identity-based hierarchies that violate the principle of non-discrimination at the core of international human
rights law. Pro-women educational change as understood in this article and as expressed
in the Beijing Platform is envisaged as entailing long-term, multi-level interventions targeting all sectors of society and involving formal and informal interactions and institutions, aimed at building a culture intolerant of mens violence against women and
committed to realising gender equality. It is only through building up a critical mass of
support across society against the gender hierarchy that an alternative future will be imaginable, one where women and girls will be safe beyond those secure spaces created by
and within womens movements and networks.
Interview participants in both Malaysia and South Africa acknowledged the importance
of education as a means of transforming gender-biased attitudes and behaviours, with
many identifying educational initiatives as central to the work of their respective organisations. Prevailing educational activities, however, centre primarily on increasing public
awareness of gender violence, providing information on where individuals in crisis situations can find assistance in the event of violence, and offering guidance to actors such
as social workers and police officers on how to intervene in violent situations. Although
far more rare, creative local educational initiatives that go beyond an informationsharing format have shown considerable promise for confronting entrenched gender
norms. In Malaysia, for example, the Womens Crisis for Change (WCC) organised a
youth camp in 2002 for secondary-school-age children. This event offered WCC the
499
opportunity to meet with a group of male adolescents and, together with male facilitators,
discuss issues of self-esteem, sexism and violence, representing an attempt to intervene
proactively in order to prevent the solidification of gender-biased attitudes. In South
Africa, the Embizweni Voluntary Mens Association in Khayelitsha, an informal settlement in Cape Town, holds community workshops on the weekends targeted at men on
topics such as gender equality and gender roles, domestic violence, sex and sexuality
and female reproductive health.90 It also organises father child excursions, one to two
day trips where men accept exclusive responsibility for planning the excursion and
caring for the children, in order to advance their parenting skills and deepen their relationships with their children. For Embizweni, changing the mindsets and behaviours of men as
fathers offers an immediate, practical opening for beginning the process of transforming
the gender hierarchy.91
These types of informal educational efforts offer important opportunities for building
alliances with non-violent men, modelling gender-equal relationships at the community
level and creating forums where the acceptability of the link between masculinity and
violence can be challenged. Building relationships with male allies also opens
avenues for targeting religious and cultural leaders, to problematise their use of religious
and cultural traditions and texts to defend and reinforce the gender hierarchy. But, to
date, educational initiatives remain the most under-developed of all efforts implemented
by state and non-state actors. At the time of my interview with the director of WCC, the
organisation had run only one youth camp and no plans were yet in place to repeat or
follow-up on the event. And although Embizweni is well-respected in South Africa,
including amongst womens advocates, little collaboration has occurred between Embizweni and anti-gender-violence groups (which are traditionally exclusively led by
women).
The historical fixation of womens advocates on women-centred services and legal
remedies is understandable. But in directing their energies and resources almost exclusively to activities that have the potential to produce immediate and measurable outcomes,
advocates are failing to heed their own warning that social transformation requires fundamental changes in values and beliefs. Advancing the utility of the international human
rights framework for preventing rights violations, rather than simply serving as a mechanism for redressing such violations, will require that the educational dimension of the
framework be taken as seriously as its already well recognised legal dimension.
Conclusion
Nothing in the preceding discussion is intended to deny the need for laws against gender
violence. Rather, I argue for greater caution in looking to the law as a tool for violence
prevention, particularly given that the complex reasons why violence against women
occurs are also at the root of why laws against violence against women are inadequately
enforced (or not enforced at all). Gender violence networks in many countries have
already achieved great success in ensuring the availability of legal remedies and protective services. Where these measures are not yet in place, the continued focus of attention
on legal advocacy is certainly warranted.92 For those countries that have implemented or
reformed legislation concerning rape, domestic violence, sexual harassment, trafficking
and other forms of gender violence, however, the question arises as to the effectiveness
of continually revisiting the phraseology of international human rights or refining
500
L. Hebert
national legal measures. In most contexts, the attempt to fine tune legal language has
been taken as far as it can go. Fundamental social change benefiting the lives of women
now requires that advocates shift their attention to addressing the broader attitudes and
values that have sustained violence against women. Such a shift requires strategic thinking and planning and the adoption of proactive initiatives that go well beyond appeals to
the law.
Acknowledgements
The author wishes to thank Jane Jaquette and Mary Hawkesworth for their comments on
an earlier draft of this article. A special thank you to the interview participants in Malaysia
and South Africa, particularly Womens Aid Organization in Petaling Jaya and Nicro
Womens Support Centre in Cape Town for serving as the home base for my field
research.
Notes
1. This was the response of a South African police officer to a domestic violence survivor when she tried to
report her ex-husband for beating and attempting to rape her. The authors case documentation of Anna,
a counselling client of Nicro Womens Support Centre (NWSC), 25 February 1998.
2. See K. Crenshaw, Intersectionality and Identity Politics: Learning from Violence against Women of Color,
in M. Shanley and U. Narayan (eds), Reconstructing Political Theory: Feminist Perspectives (University
Park, PA: Penn State Press 1997), pp.178 193; and C.T. Mohanty, Under Western Eyes: Feminist Scholarship and Colonial Discourses, in Mohanty et al. (eds), Third World Women and the Politics of Feminism
(Bloomington, IN: Indiana University Press 1991), pp.51 80.
3. Gender violence is defined in this article as physical, sexual, and/or psychological harm perpetrated by
(some) men against women and girls because of their subordinate gender position. It encompasses violence
within the family, within the general community and violence that is committed or condoned by the state.
4. As demonstrated by critiques of Northern feminist discourse and activism against female genital-cutting and
sex-trafficking, international campaigns against particular forms of gender violence have not always successfully attended to differences that exist among women. See B. Shell-Duncan and Y. Hernlund (eds), Female
Circumcision in Africa: Culture, Controversy and Change (Boulder: Lynne Rienner 2000); and
K. Kempadoo and J. Dozema (eds), Global Sex Workers: Rights, Resistance and Redefinition (New York:
Routledge 1998).
5. Declaration on the Elimination of Violence Against Women (DEVAW), G.A. Res. 104, U.N. GAOR, 48th
Sess., Supp, No.49, at 217, U.N. Doc. A/RES/48/104 (1994).
6. Report of the Fourth World Conference on Women: Action for Equality, Development and Peace, Beijing
Declaration and Platform for Action (Beijing Platform), U.N. GAOR, U.N. Doc. A/CONF.177/20 (1995).
7. Security Council 1325, among other measures, calls for the increased representation of women in decisionmaking positions related to conflict resolution and peace processes; the increased participation of female personnel in UN field operations; and the integration of a gender perspective into peacekeeping operations.
8. See World Health Organization (WHO), World Report on Violence and Health, 2002, p.149, accessed at
www.who.int/violence_injury_prevention/violence/world_report/en/(visited 23 February 2004). A recent
multi-country study conducted by the WHO concluded that womens risk of violence is highest within
their intimate relationships. See Summary Report, Multi-Country Study on Womens Health and Domestic
Violence Against Women, 2005, p.vii, accessed at www.who.int/gender/violence/who_multicountry_
study/en/index.html (visited 6 June 2007).
9. See for example K. Amirthalingam, Womens Rights, International Norms and Domestic Violence: Asian
Perspectives, Human Rights Quarterly, Vol.27 (2005), p.684; S.M. Engle, Human Rights and Gender
Violence: Translating International Law into Local Justice (Chicago: University of Chicago Press 2005);
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
501
and C. Moore, Women and Domestic Violence: The Public/Private Dichotomy in International Law,
International Journal of Human Rights, Vol.7 (2003), p.93.
G. Teeple, The Riddle of Human Rights (New York: Humanity 2005), pp.4859.
This article builds on two cycles of field research conducted in Malaysia and South Africa in 1997/1998 and
2002. The conclusions reached in the article draw heavily on insights gained during interviews conducted in
2002 with individuals affiliated with the anti-gender-violence campaigns in the two countries. The formal
approval of interview participants was secured prior to the start of the interviews, following required
human subjects procedures. In several cases, permission was not received to use the name of the individual
or organisation in the study and these names will therefore remain confidential. The intent of this article is not
to exacerbate the challenges confronted by the advocacy networks in the two countries, but rather to provoke
conversation amongst relevant players in the interest of advancing state and non-state responses to genderbased harms. As such, even in those cases where written permission has been granted to use an individuals or
organisations name, names and distinguishing markers are omitted when interviewee comments broach sensitive topics. A detailed list of participants is on file with the author.
There has been some softening of government rhetoric in this area since Mahathir Mohameds retirement in
2003. But how much has changed under the leadership of Prime Minister Abdullah Badawi is of some debate,
particularly given on-going allegations of abuses perpetrated by Malaysias domestic intelligence service and
the continued intimidation of those who express dissent against government laws and policies. See David
Wright-Neville, Losing the Democratic Moment? Southeast Asia and the War on Terror, Asia Research
Centre Working Paper No. 110 (2004).
An advocacy network is defined in this article as a form of organisation marked by informal and formal interaction among individuals and groups committed to promoting shared values, ideas and practices around a
given issue area through joint discourse and action. The advocacy networks in Malaysia and South Africa
are led by non-state actors, but build linkages between individuals and groups from both the non-state and
state sectors, including service-delivery organisations, academic institutions, legal groups and government
ministries or commissions.
D.D. Dutton, The Domestic Assault of Women: Psychological and Criminal Justice Perspectives (Boston:
Allyn and Bacon 1988); and D. McIntyre, Domestic Violence: A Case of the Disappearing Victim?,
Australian Journal of Family Therapy, Vol.5 (1984), p.249.
G. Kaufman Kantor and M.A. Straus, Substance Abuse as a Precipitant of Wife Abuse Victimizations,
American Journal of Drug and Alcohol Abuse, Vol.173 (1989), p.214.
L. Richards, B. Rollerson and J. Phillips, Perceptions of Submissiveness: Implications for Victimization,
Journal of Psychology, Vol.125 (1991), p.407.
L. Berkowitz, The Goals of Aggression, in D. Finkelhor et al. (eds), The Dark Side of Families (Thousand
Oaks, CA: Sage 1983), pp.166181; and Su. Steinmetz, The Violent Family, in M. Lystad (ed.), Violence in
the Home: Interdisciplinary Perspectives (New York: Brunnel/Mazel 1986), pp.5170.
K.D. OLeary, Physical Aggression between Spouses: A Social Learning Theory Perspective, in V.B. Van
Hasselt et al. (eds), Handbook of Family Violence (New York: Plenum 1988), pp.31 55.
See L.H. Bowker, Ending the Violence (Holmes Beach, FL: Learning Publications 1986); and R.E. Dobash
and R.P. Dobash, Women, Violence and Social Change (New York: Routledge 1992).
M. Bograd, Feminist Perspectives on Wife Abuse: An Introduction, in K. Yllo and M. Bograd (eds),
Feminist Perspectives on Wife Abuse (Newbury Park, CA: Sage 1988), p.19.
P. Ulbrich and J. Huber, Observing Parental Violence: Distribution and Effects, Journal of Marriage and
Family, Vol.43 (1981), p.623.
J. Armatta, Getting Beyond the Laws Complicity in Intimate Violence against Women, Willamette Law
Review, Vol.33 (1997), p.842.
R.E. Dobash and R.P. Dobash, The Politics and Policies of Responding to Violence against Women, in
J. Hanmer and C. Itzin (eds), Home Truths about Domestic Violence: Feminist Influences on Policy and Practice (New York: Routledge 2000), p.193.
L. Heise, Violence Against Women: An Integrated, Ecological Framework, Violence Against Women,
Vol.4 (1998).
Ibid. p.263.
Ibid. pp.266269.
Ibid. p.264, pp.269273.
Ibid. p.264, pp.273277.
Ibid. pp.277282.
502
L. Hebert
30. Ibid. p.262. For additional literature on the ecological approach to gender violence, see M. Fondacaro and
S. Jackson, The Legal and Psychosocial Context of Family Violence: Toward a Social Ecological Analysis,
Law and Policy, Vol. 21 (1999), p.91; and J.L. Perilla, Domestic Violence as a Human Rights Issue: The
Case of Immigrant Latinos, Hispanic Journal of Behavioral Science, Vol.21 (1999), p.107.
31. As a consequence of British colonial policies, by the end of British rule ethnic Malays were the most undereducated and economically disadvantaged of all the ethnic communities in the country. The British arranged
the Bargain of 1957 in response to the demands of Malay leaders, granting Indian and Chinese settlers
Malaysian citizenship in exchange for their acquiescence to constitutional advantages granted to Malays.
In addition to recognition of Islam as the official religion, Bahasa Melayu was recognised as the official
national language and special privileges were granted to Malays in such areas as education, land acquisition
and civil service employment. Rather than elevating the economic position of Malays, the Bargain of 1957
served to deepen inter-ethnic discontent. See D. Nesiah, Discrimination with Reason? The Policy of Reservations in the United States, India and Malaysia (Delhi: Oxford University Press 1997).
32. Constitution of Malaysia (31 August 1957), amended 16 September 1963.
33. Arabic transliteration of the word for Islamic law may be spelled Sharia or Shariah. Although not recognised by Arabic transliteration, the most common spelling of the word in Malaysia is Syariah and is therefore the spelling used in this article.
34. For example, Section 127 of the Islamic Family Law (Federal Territory) Act, No. 303 (1984) makes ill-treatment or cruelty to a wife an offence punishable with a fine or imprisonment or both. Section 52(h) specifies
cruelty to a wife as grounds for a fasakh divorce (the dissolution of a marriage on the application of the wife).
35. M. Othman et al., Objections Put the Act in Limbo, New Straits Times (8 March 1997), Issues, p.6.
36. Criminal Procedure Code, Act 593 (1935), revised 1999. Penal Code, Act 574 (1976), revised 1997.
37. Domestic Violence Act (DVA), No. 521 (1994).
38. Prevention of Family Violence Act (PFVA), Act 133 of 1993.
39. J. Fedler, Lawyering Domestic Violence through the PFVA 1993: An Evaluation after a Year in Operation,
South African Law Journal, Vol.112 (1995), p.234.
40. DVA, Section 2; PFVA, Section 1.
41. In Malaysia, it is worth noting that the DVA also does not protect victims of marital rape. Under the Malaysian Penal Codes definition of rape, [s]exual intercourse by a man with his own wife by a marriage which is
valid under any written law for the time being in force, or is recognised in the Federation as valid, is not rape
(Penal Code, Section 375).
42. An added issue in South Africa is that the PFVA was among the numerous laws implemented by the South
African government that initially did not have force in the homelands the ten reserves designated as
African areas under the Promotion of Bantu Self-Government Act (Act 46 of 1959). This was finally rectified in 1997, when apartheid-era laws were repealed and the application of the PFVA was extended throughout the country. But the lack of infrastructure, personnel and resources in the impoverished former homelands
(along with the townships and rural areas) prevented many abuse victims from being aware of their legal
rights or accessing remedies under the PFVA.
43. Interview with confidential participant (October 2002).
44. Personal notes from a JAG meeting at Womens Aid Organization (WAO) (20 October 2002, Petaling Jaya,
Malaysia).
45. S. Usdin et al., The Value of Advocacy in Promoting Social Change: Implementing the New Domestic Violence Act in South Africa, Reproductive Health Matters, Vol.8 (2000), p.56. See State v. Baloyi (ICHRL 166
of 3 December 1999). While the Transvaal High Court acknowledged in its ruling that the nature of domestic
violence necessitates speedy procedures for handling interdicts and penalties, it nonetheless upheld that the
alleged violator of the interdict is entitled to the presumption of innocence. The Constitutional Court,
however, ultimately declined to confirm the Transvaal High Courts order. See S v. Godfrey Baloyi 2000
(1) BCLR 86 (CC).
46. Domestic Violence Act (DVA), No. 116 (1998). Due to a number of procedural concerns the implementation
of the DVA was delayed until December of 1999.
47. Usdin et al. (note 45), p.56.
48. DVA (South Africa) (note 46), Section 1(vi).
49. Ibid. Section 1(vii)).
50. Ibid. Section 3.
503
53. Interview with confidential participant, August 2002. See also Gender Advocacy Program, Making the Act
Work: A Research Study into the Budget Allocations for the Implementation of the Domestic Violence Act
(Cape Town, 2000).
54. Interview with confidential participant (September 2002).
55. Interview with confidential participant (August 2002).
56. Interview with confidential participant (September 2002). For a more detailed evaluation of the DVA, see
P. Parenzee, L. Artz and K. Moult, Monitoring the Implementation of the Domestic Violence Act (Cape
Town: Institute of Criminology 2001).
57. Advocates in both countries remarked on the difficulties of getting enforcement actors to attend training sessions. Judges have proven most resistant to training workshops led by NGOs, particularly those facilitated by
women.
58. As described by a staff member from WAO, when they invite us, we go (interview, 31 October 2002).
AWAM staff confirmed that their training programme is more informal, conducted largely through
holding talks and workshops to publicise womens concerns (interview, 19 November 2002).
59. Interview, 30 September 2002.
60. Interview with Nicola Christofides, Programme Manager: Gender and Health, 27 September 2002.
61. Interview with Penny Parenzee, then Researcher with the University of Cape Towns Institute of
Criminology, 2 September 2002. See also Parenzee et al. (note 56), p.113.
62. N. Taub, The Status of Women in New Market Economies. Seeing the Laws Limits: A Westerner
Comments on Women and the Disparate Impact of Violence, Connecticut Journal of International Law,
Vol.12 (1996), pp.15354.
63. R. West, Jurisprudence and Gender, in P. Smith (ed.), Feminist Jurisprudence (New York: Oxford
University Press 1993), p.521.
64. See for example Armatta (note 22); K.D. Askin and D.M. Koenig, Women and International Human Rights
Law, Vol.1 (Ardsley, NY: Transnational Publishers 1999); and J. Peters and A. Wolper (eds), Womens
Rights, Human Rights: International Feminist Perspectives (New York: Routledge 1995).
65. L.W. Sherman and R.A. Berk, The Specific Deterrent Effects of Arrest for Domestic Assault, American
Sociological Review, Vol.49 (1984), p.261.
66. See R. Davis, Domestic Violence: Facts and Fallacies (Westport, CT: Praeger 1998); and J.A. Fagan, The
Criminalization of Domestic Violence: Promises and Limits (National Institute of Justice Research
Report, 1996), accessed at www.ncjrs.gov/pdffiles/crimdom.pdf (viewed 25 April 1998).
67. J.D. Schmidt and L.W. Sherman, Does Arrest Deter Domestic Violence?, in E.S. Buzawa and C.G. Buzawa
(eds), Do Arrest and Restraining Orders Work? (Thousand Oaks, CA: Sage 1996), pp.43 53. What is
particularly interesting about this article is that one of the co-authors, Lawrence W. Sherman, is one of
the researchers for the landmark Minneapolis Experiment. See Sherman and Berk (note 65).
68. Fagan (note 66), p.33. See also Davis (note 66); and A.R. Klein, Re-Abuse in a Population of CourtRestrained Male Batterers: Why Restraining Orders Dont Work, in Buzawa and Buzawa (note 67),
pp.192 213.
69. C.D. Maxwell, J.H. Garner and J.A. Fagan, The Effects of Arrest on Intimate Partner Violence: New
Evidence from the Spousal Assault Replication Program (National Institute of Justice Program Research
Report, 2001), accessed at www.ncjrs.gov/pdffiles1/nij/188199.pdf (viewed 15 July 2004).
70. Ibid.
71. As argued by Gilligan, by examining how people who are punished actually behave, one finds that far from
preventing violence, punishment is the most powerful stimulus to violent behaviour that we have yet discovered. See J. Gilligan, Preventing Violence (London: Thames and Hudson 2001), p.18.
72. Fagan (note 66), p.28.
73. Davis (note 66), pp.86, 93.
74. The Beijing Platform is not a legally binding instrument. The document nonetheless remains the most
comprehensive treatment of womens rights at the international level and, together with the legally
binding Convention on the Elimination of All Forms of Discrimination Against Women, is often employed
by womens activists in their efforts to advocate changes at the local and national levels. See the Convention
on the Elimination of All Forms of Discrimination Against Women (Womens Convention), G.A. Res. 34/
180, 34 U.N. GAOR, Supp. (No. 46), U.N. Doc. A/34/46 (1980), at 193 (1979) reprinted in 19 I.L.M. 33
(1980).
75. Universal Declaration of Human Rights (UDHR), G.A. Res. 217A(III) of 10 December 1948.
76. Stand Up for Your Rights, Economist (2430 March 2007), p.12.
504
L. Hebert
77. Vienna Declaration and Programme of Action (Vienna Declaration), World Conference on Human Rights,
Vienna (1425 June 1993). U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993). Article 5 of the Vienna
Declaration states that All human rights are universal, indivisible and interdependent and interrelated.
The international community must treat human rights globally in a fair and equal manner, on the same
footing and with the same emphasis.
78. Beijing Platform (note 6), para.112 130.
79. As described by Ivy Josiah, the Executive Director of WAO, one of the developments that has occurred organically amongst gender violence NGOs in Malaysia is that they have more or less marked out their issue
areas. WAO is known for focusing on domestic violence and foreign domestic worker abuse; WCC focuses
on the issue of sexual harassment; and AWAM looks most closely at the issue of rape. Each organisation is
(informally) responsible for taking the lead in their particular issue area and the other organisations follow as
members of whatever coalition forms. Interview with Josiah, 8 November 2002.
80. D. Otto, A Post-Beijing Reflection on the Limitations and Potential of Human Rights Discourse for
Women, in Askin and Koenig (note 64), p.117.
81. See for example the Vienna Declaration (note 77).
82. J. Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press 1989),
pp.1314.
83. R. Copelon, Intimate Terror: Understanding Domestic Violence as Torture, in R.J. Cook (ed.), Human
Rights of Women (Philadelphia: University of Pennsylvania Press 1994), pp.116 152.
84. See note 74.
85. Report of the Conference to Review and Appraise the Achievements of the United Nations Decade for
Women: Equality, Development and Peace (New York: United Nations 1986).
86. Heise (note 24).
87. D. Elson, Gender Justice, Human Rights and Neo-liberal Economic Policies, in M. Molyneux and S. Razavi
(eds), Gender Justice, Development and Rights (New York: Oxford University Press 2002), pp.78114; and
J. Gideon, Accessing Economic and Social Rights Under Neoliberalism: Gender and Rights in Chile, Third
World Quarterly, Vol.27 (2006), p.1269.
88. J. Jaquette, Feminism and the Challenges of the Post-Cold War World, International Feminist Journal of
Politics, Vol.5 (2003), pp.331.
89. The relationship between human rights and education was confirmed by the UN Educational, Scientific and
Cultural Organization (UNESCO) in its 1974 Recommendation concerning Education for International
Understanding, Cooperation and Peace and Education relating to Human Rights and Fundamental Freedoms
(UNESCO General Conference, Paris, France, 17 October to 23 November 1974) and was further elaborated
during the Principles of the International Congress on the Teaching of Human Rights, Vienna, Austria
(1216 September 1978); the UNESCO International Congress on Human Rights Teaching, Information
and Documentation, Malta (31 August to 5 September 1987); and the UNESCO International Congress on
Education for Human Rights and Democracy, Montreal, Canada (811 March 1993).
90. Female partners and spouses are also encouraged to attend.
91. Interview with Dumisani Nqina, Embizwenis National Programs Manager/Project Coordinator, 22 October
2002.
92. For example, the Malaysian government has yet to enact a law against sexual harassment. Another area
warranting further advocacy is marital rape, which remains permissible under Malaysian law.

Go Back and Give Him What He Wants': The Limits of A Legal Rights Approach To Gendered Human Rights Violations

Cargado por

Información del documento

Título original

Derechos de autor

Formatos disponibles

Compartir este documento

Compartir o incrustar documentos

Opciones para compartir

¿Le pareció útil este documento?

¿Este contenido es inapropiado?

Copyright:

Formatos disponibles

Go Back and Give Him What He Wants': The Limits of A Legal Rights Approach To Gendered Human Rights Violations

Cargado por

Copyright:

Formatos disponibles

This article was downloaded by: [124.195.116.

The International Journal of Human

Go Back and Give Him What He

Department of Diplomacy and World Affairs , Occidental

PLEASE SCROLL DOWN FOR ARTICLE

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Conditions of access and use can be found at http://www.tandfonline.com/page/termsand-conditions

The International Journal of Human Rights

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Go Back and Give Him What He Wants1:

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Limits of a Legal Rights Approach to Gendered Violations

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Limits of a Legal Rights Approach to Gendered Violations

physical chastisement of women.29 By drawing on and linking together cross-disciplinary

Domestic Violence Legal Reform in Malaysia and South Africa

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Limits of a Legal Rights Approach to Gendered Violations

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Limits of a Legal Rights Approach to Gendered Violations

the incident or as soon thereafter as is reasonably possible. Failure to do so constitutes

Downloaded by [124.195.116.125] at 00:39 11 December 2014

rather to equip participants with information on how to identify cases of domestic

Limits of a Legal Rights Approach to Gendered Violations

Downloaded by [124.195.116.125] at 00:39 11 December 2014

The Power and Possibilities of Human Rights

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Limits of a Legal Rights Approach to Gendered Violations

Downloaded by [124.195.116.125] at 00:39 11 December 2014

The indivisibility of human rights

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Limits of a Legal Rights Approach to Gendered Violations

Downloaded by [124.195.116.125] at 00:39 11 December 2014

conflict resolution, and dominant socio-cultural expectations of femininity tied to the

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Limits of a Legal Rights Approach to Gendered Violations

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Limits of a Legal Rights Approach to Gendered Violations

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Downloaded by [124.195.116.125] at 00:39 11 December 2014

Limits of a Legal Rights Approach to Gendered Violations

Downloaded by [124.195.116.125] at 00:39 11 December 2014

También podría gustarte