Abstract
More than a decade after its passing, Sri Lanka’s Prevention of Domestic Violence Act (PDVA) remains a remedy of last resort for female survivors of intimate partner violence, as there is little support to take on a rights-defined identity as a battered woman both inside and outside the courtroom. However, large numbers of women are accessing the Maintenance Act of 1999 to exit violent relationships without the censure and stigma that attaches to the PDVA. The key to understanding this phenomenon is to consider how familial ideology works in unpredictable ways within the Sri Lankan judicial system. This article examines the reach and different impacts of familial ideology within the judiciary and argues that female survivors of violence navigate this ideology to their own advantage. However, the preference to address violence through the Maintenance Act renders such violence invisible. The price for judicial redress is silence.
Keywords
The follow up to the passage of a law is of greater concern to women’s groups now than it has been in the past, in large part due to the failure of a slew of reformist laws . . . to make any impact in the courts.
Following years of advocacy by women’s organizations, the government of Sri Lanka finally passed the Prevention of Domestic Violence Act (PDVA) in 2005. The Act, which provides for a civil remedy by way of granting Magistrate’s Courts powers to issue Civil Protection Orders (CPOs), fell short of the expectations of women’s organizations on a number of counts (see Kodikara, 2012b). Nevertheless, it was an important victory in the long and continuing struggle to address violence against women within the family, particularly intimate partner violence. 1 While intimate partner violence can be prosecuted as a criminal offense under Sri Lanka’s penal laws, a British inheritance, the police rarely take these complaints seriously. At best, perpetrators are warned and discharged in what is considered a family matter. In any event, survivors who make a police complaint also rarely want to initiate criminal proceedings against a husband or a partner. Rather a police complaint is often only a tactic to interrupt episodes of violence or prolong a violence-free interval.
CPOs were promoted by the global women’s rights movement as part of efforts to ensure a wider repertoire of legal and social interventions to stem intimate partner violence. Along with various forms of direct action to support victim-survivors, women’s organizations across the globe expended considerable energy on legal reform with the expectation that it can play a critical role in interrupting the pattern of domination and control inherent in such violence. However, as the 2004 Rajan quote at the beginning of this article asserts, in addition to a number of other scholarly opinions, these laws are in themselves insufficient to protect women (Goodmark, 2012; Hunter, 2008; Logan, Shannon, & Walker, 2005; Rigakos, 1995). As Hunter (2008) points out, they are not implemented by feminist reformers, but by judges and lawyers who do not necessarily share the same understanding of intimate partner violence leading to what she refers to as “implementation gaps.” This article evaluates Sri Lanka’s PDVA law and its implementation gaps. In particular, drawing from the work of Kapur and Cossman (1996) and Basu (2015), I am interested in the way familial ideology shapes responses to the PDVA within and outside the court room.
The article begins by discussing the PDVA in Sri Lanka and the symbolic and material significance of civil protection laws in general, before going on to examine how familial ideology shapes constructions and understandings of violence. This is followed by a consideration of the extent to which survivors of intimate partner violence access the PDVA in the light of statistics relating to prevalence, complaints made to the police, and the services and support rendered by women’s organizations. I then explore women’s experiences of filing cases under the PDVA and judicial approaches to these cases before moving on to consider the widespread preference of women victim-survivors and indeed their advocates to resort to the Maintenance Act in search of redress in cases involving intimate partner violence. The article concludes with a discussion of the implications of this preference.
Apart from secondary literature, the article draws on a total of 26 interviews and one focus group discussion. The 26 respondents include five male lawyers and 14 female lawyers (all of whom had appeared in at least one case filed by a woman under the PDVA), one counselor, three women’s rights activists from organizations providing legal aid to survivors of violence, and three senior police officers attached to Women and Children’s Bureau Desks from four districts across Sri Lanka. The focus group discussion involved a group of more than 15 survivors of intimate partner violence facilitated by a women’s organization. I did not directly speak with any women who had made an application under the Act. The article is therefore a secondhand account of women’s experiences under the PDVA.
The PDVA as a Civil Remedy for Domestic Violence
The PDVA in Sri Lanka allows “any person” who suffers or is likely to suffer domestic violence to seek a Protection Order (PO) from a Magistrate’s Court. Once an application is received, the court is empowered to summarily issue an Interim Protection Order (IPO) valid for 14 days. A PO, valid for 12 months, can then follow on the basis of evidence presented before the court. Domestic violence, as defined in the Act, constitutes offenses already recognized under Chapter XVI of the Penal Code under the offense of “physical violence,” as well as “emotional abuse.” The latter is defined as a pattern of cruel, inhuman, degrading, or humiliating conduct of a serious nature directed toward an “aggrieved person.” The Act seeks to ensure the safety of the applicant by providing a civil remedy even while preserving her right to initiate separate civil or criminal action as permissible. These orders can bar the aggressor from committing further acts of violence in addition to of a number of other prohibitions.
Once a PO is obtained, failure to comply with it is an offense punishable with a monetary fine not exceeding 10,000 rupees (approximately US$70) or with imprisonment for a term not exceeding 1 year or both imprisonment and a fine. The Act recognizes that a police officer may apply for a PO on behalf of an aggrieved person.
CPOs are now an integral part of the legal protection landscape against intimate partner violence in a number of countries and have been analyzed both in terms of their symbolic power and their real value to individual victim-survivors. At a symbolic level, PO laws, by making public what was formerly a private family matter, send a message to society in general and abusers in particular that violence against intimate partners is unacceptable (Kelly, 2003; Schneider, 2000). The very existence and possibility of CPOs pose a challenge to popular and dominant narratives that legitimize violence as well as cultures of tolerance that underpin and perpetuate it. They also enable alternative narratives of violence to be articulated in court-houses and their subsequent circulation through authoritative court judgments (Fenton, 1999; Hunter, 2008).
At an individual level, CPOs give complainants the power to invoke the law as a protection measure without the state control inherent in criminal remedies and without criminal sanctions against the perpetrator (Murphy, 2003). They are less time-consuming and less burdensome to obtain. Moreover, the evidentiary standards necessary to prove violence is less than in criminal proceedings. They have the potential to ensure immediate relief and protection from violence, by empowering a judge to order the perpetrator to alter his behavior, leave the home, or cease contact with the applicant. They can also ensure other forms of relief including maintenance, temporary custody of children, and return of property (Ko, 2002).
CPOs have also been analyzed in terms of their power to shift the burden of blame that is often carried by a survivor and offer her a new subjectivity as a bearer of rights (Merry, 2006), or as “bargaining chips” that enable complainants to regain or bolster their relative power in the relationship through the authorization of a judge (Goldfarb, 2008; Murphy, 2003). Waul (2000) describes CPOs as unique among the array of judicial responses to domestic violence because they “represent the intersection of traditional community-based and justice system approaches: victim empowerment coupled with deterrence” (cited in Murphy, 2003, p. 504). But to what extent is the potential of CPOs being realized in Sri Lanka?
Familial Ideology and Intimate Partner Violence in Sri Lanka
The dominant discourse on intimate partner violence in Sri Lanka trivializes, normalizes, and dismisses such violence as momentary disruptions in otherwise harmonious and happy households or as a normal part of married life (Kodikara, 2012b). As enjoined by the popular Sinhala aphorism “gedara gini eliyata danna epa,” which means “do not carry domestic fires outside,” breaking the silence surrounding violence is considered taboo. Intimate partner violence is private business, to be endured silently or resolved privately and not meant for a public court of law. This discourse about violence is part of a broader discourse that privileges the family unit over a woman’s right to bodily integrity. In this discourse, a good wife is one who listens to and obeys her husband, remains silent in his presence, avoids socializing outside the family, and diligently attends to household chores and child care (de Alwis, 1995; Marecek, 2000).
The discourse around family values is of course not unique to Sri Lanka. Whether described as familial ideology in India (Kapur & Cossman, 1996), the public–private divide in the United States (Schneider, 1994), or cultures of reconciliation in Trinidad and Tobago (Lazarus-Black, 2007), cultural norms that recognize and privilege the family as the basic unit of society and essentialize patriarchal gender roles within the family persist across cultural contexts. In this discourse, women are held responsible for domestic labor, biological and cultural reproduction, and protection of family honor, while men are considered providers and breadwinners.
Moreover, women are routinely constructed as “good” or “bad” wives and mothers in this discourse. “Good” women are those who accept and obey the roles defined by the ideology as natural and immutable without question and make sacrifices in fulfillment of the roles assigned to them. In Sri Lanka, a good wife is one who listens to and obeys her husband, remains silent in his presence, avoids socializing outside the family, and diligently attends to household chores and child care (de Alwis, 1995; Marecek, 2000). Those who go against the grain of this discourse are of course “bad.” Thus, as Kapur and Cossman (1996) point out, in this discourse, “the family” does not simply describe the empirical reality of kinship or household structures, but acquires an additional ideological dimension and meaning, which operates to naturalize and universalize the sexual division of labor while obscuring and legitimizing unequal power relationships within family structures (p. 89).
The persistence of these norms even after the enactment of the PDVA in Sri Lanka is evident in the statistics that I explore below. Although increasing numbers of women seek institutional support to address violence within their homes, very few seem ready to invoke the provisions of the PDVA. These statistics tell their own story about the way in which familial ideology mediates women’s own response to legal POs. To be clear, my objective here is to provide a picture of the extent to which the PDVA is “resorted to” as a protective measure, rather than a rigorous and comprehensive assessment of the actual caseload.
Statistics
National-level prevalence statistics of intimate partner violence are not available in Sri Lanka. 2 Nevertheless, several micro studies have attempted to determine prevalence at the community, district, and provincial levels (see Kodikara, 2012a, for a detailed overview). Data from prevalence studies relating to intimate partner violence over the years show rates ranging from a low of 18.3% in a study done among pregnant women (Moonesinghe, Rajapakse, & Samarasinghe, 2004) to a high of 60% of women in a sample in a low-income urban settlement (Deraniyagala, 1992). Considering the numbers from across the studies, one may assume that at least a third of women in Sri Lanka face violence within their homes (Kodikara, 2012a).
Yet, only a small percentage of women who experience violence seek institutional support. For instance, a Centre for Women’s Research (Jayasuriya, Dias, Sanmugam & Nagahawatte, 2011) study of non–poor households in several districts found that only 42.5% of women experiencing violence from a partner or husband go to the police. The percentage of those who sought legal aid was even less, only 14.4%. In a community survey of domestic violence conducted in the Western Province, Jayasuriya, Wijewardena, and Axemo (2011) found that only 23% of the abused women had accessed any institutional services including the police, hospitals, courts, social services, legal aid, women’s organizations, and religious institutions.
Of women seeking institutional redress, those who will file a case under the PDVA are likely to be even fewer. However, learning the exact number of women filing cases under the PDVA is impossible, since official statistics of cases filed under the PDVA are not available. In the absence of such data, I rely on the number of cases filed by the police, the Legal Aid Commission (LAC, a semi-government institution), 3 and Women in Need (WIN, a prominent women’s organization and the largest NGO service provider with offices in a number of districts across the country) 4 to get an idea of the extent to which the Act is being used.
The Children and Women Bureau Desks (CWBDs) of the Department of Police commenced filing PDVA cases in 2009, with 55 filed that year. By 2013, that number had increased almost 10-fold to 499 cases across the country. The LAC filed 46 cases in 2006 and 353 cases in 2013, while WIN filed 13 cases in 2006 and 40 in 2013. In the case of the police and the LAC, the number of cases being filed is slowly and steadily increasing (except for a dip in the number filed by the police in 2011). In the case of WIN, the number appears to have stabilized at around 40 per year.
PDVA Cases Filed by the Police, LAC, and WIN.
Note. PDVA = Prevention of Domestic Violence Act; LAC = Legal Aid Commission; WIN = Women in Need. Statistics obtained directly from the police, the LAC and WIN.
Contrary to discourses of political leaders in Sri Lanka about the PDVA leading to increasing rates of divorce (Kodikara, 2012b), almost all lawyers who were interviewed for this study stated that it is only in extreme cases of violence that women resort to the PDVA and that these cases represent only a fraction of those who are affected by intimate partner violence or even of those who make a complaint. For instance, CWBDs received more than 90,000 “family disputes” in 2009, most of which are complaints of violence lodged by women, but the number of PDVA cases filed by them amounted to less than 1% of these complaints (Kodikara, 2012a). Unfortunately, the absence of data from CWBDs precludes comparisons being made for other years, but a similar pattern is discernible from WIN statistics. It is this small percentage of PDVA cases that this article focuses on.
Implementation Gaps
As mentioned at the outset, despite the salutary provisions of the PDVA, which allow a Magistrate’s Court to intervene in cases of intimate violence, problems of implementation that bedevil the legal system continue to pose obstacles to obtaining POs. These obstacles include institutional and structural factors such as bureaucratic delays and inefficiency as well as the lack of independence of law enforcement authorities, including judges, due to the steady erosion of the rule of law. Women face further obstacles due to the overwhelming domination of the legal profession and spaces by men, women’s unfamiliarity with legal procedures and rules, their lack of formal and informal connections, and the constant threat of further violence and exploitation by men in power. As one lawyer pointed out, women who access the judicial process have to be ready to deal with demands for bribes and even sexual favors by male officials.
For a woman, access is difficult. Women are economically also very weak. They don’t have that kind of money. And they don’t also know how to do things. . . . When a woman goes to a police station to make a complaint of violence, the policeman who takes the complaint wants other favors or will ask for her telephone number. The attitude will be, “I am helping you, so you help me.” And mostly it is a physical relationship that they want, no? Almost all the women come and tell us similar stories. That’s a real problem. (PD, Lawyer, Colombo)
Unlike female applicants, male perpetrators can typically access and mobilize networks of collusive or cooperative power that reinforce and support their behavior. In addition, the relative autonomy of legal decision makers and the scope of the discretion they possess provide ample opportunity for cultural norms to dictate and trump legislative mandates. As many lawyers pointed out, judges bring their own personal biases to the decision-making process. One lawyer after another interviewed for this study expressed the view that the outcome of filing a case under the PDVA is impossible to predict and almost totally contingent on the judge handling the case.
A common thread running through the narratives offered by lawyers is the ambivalence around the PDVA among judges and the fact that not all judges see the Act in a positive light. This ambivalence stems from fears and anxieties that the PDVA is undermining marriage, the welfare of children and promoting divorce, or that it is a tool in the hands of vengeful and spiteful wives. Some lawyers reported that judges openly expressed concerns that women use the Act to get a PO when they are having extra-marital affairs and they want to get rid of their husbands so they can move in with their new lovers. Lawyers also reported that some judges believed that violence within the family only very rarely assumes such serious proportions as to warrant a judicial response. Judicial discourses have no doubt drawn succor from political discourses, including at the highest levels, which have repeatedly questioned the cultural appropriateness of the Act (see Kodikara, 2012b for more, including a discussion about the former President’s disparaging remarks about the Act).
Below I discuss how a number of institutional and structural barriers operate in conjunction with familial ideology to affect judicial decision making at every level of the I/PO process, from the initial inquiry to counseling practices and enforcement of POs.
Delays and Denials
As outlined before, the PDVA seeks to ensure the safety of victim-survivors through a two-step process—an IPO followed by a PO valid for a 12-month period. In terms of Section 3 of the PDVA, the application for a PO has to be considered “forthwith” by the magistrate and an IPO granted or refused summarily. The inquiry for a PO has to be then held within 14 days of filing the application. An IPO in terms of Section 4(1)(a) of the Act can be issued based on affidavits produced before the court and even without leading evidence from the respondent or other witnesses. These provisions of the PDVA give magistrates the power to deal with applications under the Act as a matter of urgency. Yet, many lawyers reported unwarranted delays in obtaining an IPO and a PO, as well as outright and repeated denials, which in turn increased the vulnerability of applicants to more frequent or greater levels of violence.
As Wijayatilake (2009) points out, the meaning of the term “forthwith” is obvious, and it would be reasonable to expect that an application is considered immediately or on the same day. While Wijayatilake found a high degree of compliance with the requirements of Section 3 of the PDVA—75.7% of cases studied by her were considered on the same day they were filed—many judges do not treat these cases with the urgency that is required. In at least 19% of cases analyzed by Wijayatilake, the application was heard 1 week later. Lawyers interviewed for this study also reported that even when the matter is taken up within a day or two, there can still be considerable delay (sometimes up to 14 days) in obtaining the written copy of the IPO, placing the security of the applicant in jeopardy. There can also be considerable delays in fixing the date for a full inquiry to determine the need for a PO and in issuing notice on the respondent as to why a PO should not be issued against him (Wijayatilake, 2009). Disturbingly, some lawyers said that “paying something” could expedite the functioning of the administrative machinery in getting a written copy of an order or in having notice served on a respondent. One lawyer averred, “Yeah, it [bribing officials] should not be done, but in the interest of the applicant, we are reduced to doing such things.”
Evidentiary Requirements
Some magistrates apparently simply deny IPOs and POs even when there is sufficient evidence to support an application. Lawyers reported that magistrates took widely different approaches to the evidence required to establish the need for an IPO and a PO. In terms of Section 4 of the PDVA and its proviso, when the application is first considered, the IPO can be issued on the basis of the written application and affidavit alone. The examination of persons including the applicant, other witnesses, or the respondent is not essential. The Act therefore takes cognizance of the fact that there will be situations in which even the applicant may not be able to be present in person for an examination (Wijayatilake, 2009). While many magistrates consider the written application and affidavits sufficient for the issuance of an IPO, there are others who refuse to issue an IPO without examination of the applicant. WIN Colombo reported on an application for an IPO filed by them in 2011 which was supported by five police complaints and a medical report, but the judge still refused to grant an IPO without recording the evidence of the applicant (Case No. 91609/DV).
Some judges go even further by insisting on leading evidence of the respondent before the issuance of an IPO. As an independent lawyer working in Colombo pointed out,
Some magistrates are reluctant to give ex parte orders even in the case of IPOs and insist on leading evidence of the husband before the IPO is issued, because of their belief that the law is sometimes abused by women who want to oust their husbands from the homes that belong to them (the husbands). This results in delay and consequently women face additional abuse. (PD, Lawyer, Colombo)
The PO is only issued following an inquiry. In making a determination as to the issue or otherwise of a PO, the court is required to consider the evidence that has been previously received (at the initial consideration of the application) and any further affidavits or evidence as the court deems necessary (under section 6[1] of the PDVA). The purpose of the inquiry is to establish to the satisfaction of the court, the fact of violence. Yet, some lawyers representing respondents attempt to justify the use of violence by the respondent and some judges seem open to following this line of inquiry. In terms of the Act, it is not the role of the judge to inquire whether violence was justified, or provoked by, or caused by an act of omission or commission by the applicant. As one lawyer for this study pointed out,
A PO is required to restrain the respondent in order to prevent the commission of an act of domestic violence and to ensure the protection of the aggrieved person. Yet, there is a tendency to look at contributing factors that provoke violence, whereas such matters should be addressed in the course of counseling.
The Limited Nature of POs
The effectiveness of both IPOs and POs depends on the comprehensiveness of the relief provided as well as the specificity of its terms. The PDVA in Section 12(1) provides for a range of restrictions and prohibitions to be imposed via IPOs and POs, including entering and occupying the shared residence, using or having access to shared resources, contacting or attempting to establish contact with the applicant in any manner whatsoever, committing acts of violence against any other person connected to the applicant, following the applicant so as to cause a nuisance, and, selling, transferring, alienating, or encumbering the matrimonial home so as to place the applicant in a destitute position (Section 12[1] of the PDVA).
Thus, the law provides for the possibility of issuing IPOs and POs, which do not merely restrain the offender from further violence but also limit the possibility of such violence by imposing several restrictions pertaining to physical contact or proximity between the applicant and perpetrator. As Rajan (2004) points out, the formulation of civil remedies for female survivors of intimate violence is premised not just on a feminist politics relating to the inviolability of women’s bodies, but also but a feminist politics of space; a critical connection is made between violence against women’s bodies and the dangers inherent in the domestic space. Thus, the concept of protection that is fundamental to I/POs is to be upheld irrespective of the ownership of the shared residency or the offender’s right to custody of children.
Yet, interviews with lawyers and a study of Magistrate’s Court decisions make it clear that not all judges are ready to embrace this radical potential of the law. Many judges are hesitant to issue POs which limit an offender’s access to the shared residence or their children irrespective of the seriousness of the violence. An activist from Ampara spoke of a judge who was of the view that the PDVA is in conflict with property laws and that the husband cannot be prohibited from entering his own home. He is said to have told lawyers and women’s organizations “not to bring PDVA cases before him if the house belongs to the husband.” Thus, when the right granted by the PDVA comes into conflict with other rights, there is a tendency to privilege the right to custody or the right to property over the woman’s right to security.
Poor Quality of Counseling
Section 5(2)(a) of the PDVA provides for the court to order counseling following the issue of an IPO. Six of the 37 cases analyzed by Wijayatilake (2009) were referred to a family counselor. Wijayatilake (2009) also states that in many cases, it was reported that counselors had forced the applicant to settle the matter and go back to the abusive environment. Only some women were able to withstand the pressure brought upon by the counselor, while others succumbed and the outcome was not positive. She refers to one incident where the family counselor who was partial to the respondent forced the applicant to settle the case. When the applicant refused because of the abuse and the violence, the judge blamed her. Many of the respondents who were part of this study also raised concerns about the quality and purpose of counseling as follows:
Court-mandated counselors do a poor job. Clients complain saying that they are not given a chance to tell their story, but are prescribed solutions. Furthermore, for all four courts in Batticaloa, there is only one court counselor. So practically speaking that counselor is overloaded. (CC, Lawyer, Batticaloa) The family counselor was judgmental which resulted in injustice to the victim. The counselor wanted the case withdrawn. The applicant prayed for time to consider whether or not to do so. The request was turned down forcing the applicant to terminate the case. (WS, Lawyer, Colombo) I am not happy with the counseling process as it can undermine the safety of the women. There have been instances where women reconcile after attending these counseling sessions only to be subjected to violence once they get back together with their husbands. (FSD, Lawyer, Batticaloa)
A number of respondents linked the poor quality of counseling to the lack of proper qualifications of counselors. Respondents stated that although many counselors have an undergraduate degree, it is often completely unrelated to the work they are expected to perform; for example, counselors may be qualified in agriculture or geography with little or no training in counseling survivors of gender-based violence (Wijayatilake, 2009). Indeed, these findings are substantiated by my own research (Kodikara, 2014), which found that many counselors, including those assigned to Magistrate’s Courts, work within a dominant patriarchal understanding of the family and of violence, often perpetuating gender role stereotypes, blaming the applicant, and trying very hard to keep the family together.
Lack of Monitoring and Enforcement of POs
Sections 5(2)(b) and 12(1)(e) of the PDVA grant the court discretion to appoint a social worker, family counselor, probation officer, family health worker, or child rights promotion officer to monitor IPOs and POs. In the case of IPOs, the officer appointed may be requested to submit a report on the date specified for the inquiry into the application in terms of Subsection 4(1). In the case of POs, the designated officer may be asked to submit to court a report every 3 months. Furthermore, failure to comply with a PO is a criminal offense punishable with imprisonment or a fine or both (Section 18 of the PDVA).
These provisions relating to the monitoring and breach of IPOs and POs are crucial to rendering them meaningful and ensuring the safety of applicants. However, Section 5(2)(b) relating to monitoring is a discretionary provision, and while courts do not always enforce it, even lawyers for the complainant and women’s rights organizations do not always demand it. In the experience of WIN Colombo, the court only ordered monitoring when so requested by WIN’s lawyers. The lawyers at WIN also stated that they do not always request monitoring and that monitoring is sought only in cases where they think it is necessary. Lawyers working with a women’s organization in Kandy not only said that they had never sought monitoring of an IPO or PO to date, but also that it had not even occurred to them to do so.
Even when the court does order monitoring of the IPO or the PO, it may not be effective unless the person entrusted with the duty of monitoring takes this responsibility seriously. R, a lawyer from Kandy, noted that all persons named as monitors are supervised by and answerable to a number of different government departments or ministries. Family health workers serve under the Medical Officer of Health (MOH) of the area, family counselors under the Divisional Secretariat, and child rights promotion officers under the National Child Protection Authority. He was of the view that unless all these government departments and institutions are supportive of this additional responsibility placed on one of their officers by the PDVA, monitoring is bound to fail.
There is also an issue with the enforcement of IPOs and POs. Because POs are pieces of paper issued by judges, their ability to reduce violence depends significantly upon the police. If a respondent violates the I/PO, then the applicant has to go back to court and the judge has to direct the police to take necessary action, including taking the respondent into custody. It is not possible to lodge a complaint directly to the police about a violation of an I/PO. Yet, respondents who were part of this study also referred to instances where the police ignored complaints relating to breach of POs even following a court order, not only because of police attitudes or indifference, but also because the perpetrator may be known to them. Many suggested that the possibility of collusion between perpetrators and the police is higher when the perpetrator is a wealthy or powerful member of the community. Thus, women married to powerful elites (e.g., politicians, police officers) may be at a disadvantage when it comes to enforcement of POs under the PDVA.
The client obtained a PO against her husband who was a senior bank officer. But even after the PO, he was still forcefully trying to enter her home. She made an entry in the police but the police and the husband had a link. . . . Even though the police station was next door, they were not interested in monitoring the PO. (NP, Lawyer, Colombo)
Settlements Without Issuing of IPOs and POs
Every victim-survivor who makes an application for an I/PO under the PDVA retains the right to withdraw the application or reach a settlement of the case. Many applicants do withdraw their applications or agree to settle the matter before the PO is issued. Some lawyers seem to think that the settlement rate is as high as 90%. The reasons for this high dropout rate include economic vulnerability and financial dependency, fear of retaliation, social isolation, community pressure, concern over losing custody of children, a deep emotional bond with the partner, and wanting to preserve and improve the relationship. The “battered woman syndrome” and women blaming themselves for the violence were also mentioned as reasons survivors settle cases.
What is of concern is that judges do not see anything wrong with settlements. Lawyers spoke of judges encouraging applicants to settle and even becoming actively involved in attempts to settle. According to a lawyer from Anuradhapura, all cases handled by her in one particular Magistrate’s Court were settled with the involvement of the judge, who was particularly averse to domestic violence cases. As Wijayatilake (2009) points out, applications can be settled even without an inquiry, or after an inquiry but without a PO, even though it was expected that in all cases where the circumstances indicate that an act of domestic violence had either been or was expected to be committed, the court will issue a PO. She goes on to state that the practice that has developed in this regard is somewhat different from the expectations with which the law was formulated. While settlements may afford the best chance for parties to continue living together, they can also be risky for female survivors.
Lack of Respect for IPOs/POs by Perpetrators
A successful application under the PDVA resulting in a PO does not necessarily guarantee protection from further violence. A number of respondents who were part of this study referred to the complete disregard of an IPO or PO by some perpetrators. As R (lawyer, Kandy) pointed out, “You can walk out of court and walk into further violence.” Indeed, lawyers and counselors recounted many incidents where levels of violence increased following the application for a protection order. S (Counselor, Kandy) said,
some husbands become very angry with the wife for taking him to court. They say our family has never been to court, but this woman has dragged me into a court house. It’s not even enough to kill this woman.
The fundamental goal of an I/PO is protection of the complainant, not punishment of the perpetrator. Nevertheless, they are premised on ideas of social control and deterrence linked to shame and fear–shame related to the fact of the perpetrator’s action becoming a matter of public discussion and fear that noncompliance with a PO can result in penal consequences. The law assumes that the direct confrontation with the judiciary will have a deterrent effect, especially if the judge’s words and attitude at the hearing reinforce the order’s message that intimate partner violence will not be tolerated.
As Lewis, Dobash, Dobash, and Cavanagh (2000) and Lewis et al. (2001) point out, deterrence is invoked both in specific terms—to prevent individual violent men from reoffending—and in general terms—to prevent future offenses and to build a cultural ethos which prohibits domestic violence. Both the actual and the symbolic power of the law are thus important. And indeed there is evidence that invoking these laws can catalyze behavioral change (see Merry, 2006). Yet, it does not have the same effect on all perpetrators, and there is a real possibility of increased violence, at least in some cases.
The propensity to be contemptuous of the I/PO may vary depending on the economic and social status and class of the offender. At one end of the spectrum, offenders who wield power within their communities, such as politicians, can use their power and influence to ignore orders, while offenders lacking political and social capital may have equal contempt for the law. Different power dynamics are at play here. Even where public officials such as police officers and welfare officers are interested in monitoring the I/PO, the perpetrator may have no respect for the law. NP, a lawyer, stated that some (poor) men can take a certain perverse pleasure in defying the law. She quoted one perpetrator as saying, “Go ahead and make a complaint. I am ready to go to prison. I am not afraid of you.” R, the lawyer cited above, also reported that he was now more diffident and more careful about filing a case under the PDVA:
We started filing cases in 2007. In 2007 we filed about 40 cases, but by 2009 it has come down to 5-7 cases. The reason for this decline is that now we are more cautious particularly after the terrible backlash against one of the women that we supported. In fact it was attempted murder. We were really alarmed by this incident. We suddenly realized that you can walk out of the court house, and there can be further violence. We are dealing with the family unit. There is no room to do experiments with that.
Judicial Bias Against Female Lawyers and Women’s Organizations
The issue of judicial bias against female lawyers and women’s organizations working to support women applicants in court came up in a number of interviews conducted for this study. As one male lawyer explained, the highly gendered nature of the legal system and the fact that most female applicants tend to be defended by female lawyers allow little space to amplify women’s voices within the court room.
Female lawyers are generally teased and ridiculed, even by judges. It is chauvinistic and unacceptable, but that is the reality of the situation. Men are often the abusers in intimate partner violence and these men will be more open to listening to a man than to a woman. (NH, Lawyer, Colombo)
In interviews conducted with LAC as well as police officers attached to Women and Children’s Bureau Desks of police stations, it was also possible to discern a certain disapproval of women’s organizations filing cases under the PDVA. One lawyer attached to LAC Batticaloa hinted at a perception held by judges that women’s organizations supporting PDVA cases did so for money. According to her,
LAC has a good reputation. Judges know that cases are not filed for monetary gain (the LAC does not charge a fee for DV cases). But lawyers in the private bar face challenges as judges are skeptical about their motives.
Another felt that cases filed by the police are considered more legitimate than those filed by women’s organizations. Police officers themselves are of the view that their cases are more legitimate as they hold an inquiry prior to filing a case under the PDVA.
It is true that in addition to the system’s hostility toward women, judges, the vast majority of whom are male, also discriminate against and are hostile toward female lawyers as well as women’s organizations who represent survivors. Male lawyers representing the perpetrators exploit this hostility to the maximum. One lawyer, however, said, “[o]ur response should not be to cave in, but to challenge these attitudes.” She felt that progressive male lawyers can play an important role educating judges not only about the law and facts involved in the case at hand, but also about the general legal or social milieu including dominant biases (WS, Lawyer, Colombo). A male lawyer expressing a similar view stated that in order to get the legal profession to treat the issue of intimate partner violence with the seriousness it requires, “women’s organizations should make a serious effort to include more male lawyers in their work.”
The findings documented here under several different themes, from denial and delays to bias against female lawyers and women’s organizations, are consistent with other studies that have concluded that the passage of CPO laws do not automatically resolve a number of serious shortcomings of the legal system in relation to women’s experiences. Feminist engagement with the state to achieve legal rules and policies that respond to women’s harms is repeatedly dogged by implementation problems that hinge on the patriarchal character of the judicial system (Hunter, 2006; Lazarus-Black, 2007; Logan et al., 2005; Rigakos, 1995). It is also true that dominant discourses around the family, which manifest in different ways during court proceedings, are a significant cause of many of these implementation problems. However, as I will argue in the next section of the article, familial ideology can also operate to the “advantage” of women.
The Maintenance Act
In the course of interviews with lawyers for this study, I was frequently, and often casually, told that many female survivors of violence prefer to file a case under the Maintenance Act and that the real issue behind a maintenance claim is, in fact, intimate partner violence. While it barely registered when first mentioned, following similar remarks made by a number of different lawyers I began to inquire into it further. A lawyer from Colombo put it thus:
In almost all maintenance cases that we assist with there is domestic violence. The men drink and beat their wives and do not financially support them. We normally tell the women about the PDVA when we hear that they are victims of violence, but not many are interested to file a case under it. They see domestic violence as normal. What is of greater concern to them is the lack of maintenance. Normally when the woman is being beaten up, and the men don’t pay maintenance, they leave the house and go elsewhere. These are mostly poor women with no assets. They rent a house and then file for maintenance. (MC, Lawyer)
ES, a women’s rights activist in Batticaloa, further observed that for many years she thought the bulk of their caseload related to maintenance and only later realized the under current of violence in these cases.
The Maintenance Act of 1999 allows a spouse who is unable to maintain herself or himself to apply for maintenance from the other spouse provided such other spouse has sufficient means to do so, and has neglected or unreasonably refused to do so (Section 2[1] of the Act). The Act also provides that when a parent with sufficient means neglects or refuses to maintain his or her child, such child is entitled to make a claim for maintenance (Section 2[2]). Once an application is received and the evidence is considered, the court can order the respondent to make a monthly allowance as maintenance at a rate fixed by the magistrate. The amount of maintenance is determined with due regard for the income of such person and the means and circumstances of the spouse (Section 1). Before an order is made, the respondent is required to show cause, if any, why an order should not be made, and furnish income particulars (Section 6).
The Maintenance Act gives the magistrate the power to compel the attendance of the respondent against whom the application is made as well as any other person to give evidence (Section 12[1]). Also under the terms of the Code of Criminal Procedure, the court has the power to order the production of any document that is considered necessary for the inquiry. If the respondent neglects to comply with a maintenance order, the court can sentence such person for the whole or any part of each month’s allowance in default, to simple or rigorous imprisonment for a term which may extend to 1 month (Section 5[1]).
The 1999 legislation on maintenance introduced the concept of joint and shared responsibility, moving away from the concept of a male breadwinner or head of household and a dependent wife (see Goonesekere, 2006). Under these new provisions, a wife is no longer entitled to maintenance simply by virtue of marriage and is no longer automatically considered to be economically dependent on her husband. Similarly, the duty of support of children is no longer exclusively on the father but falls on both parents.
Yet, the overwhelming number of maintenance cases are filed by women. It is a fact that in contrast to the very few women seeking a remedy under the PDVA, thousands of women are filing cases under the Maintenance Act. Consider the following statistics: in 2009, the LAC filed 6,391 maintenance cases as opposed to 128 cases under the PDVA. 5 One of the women’s organizations interviewed for this study had handled a total of 213 maintenance cases in 2012-2013 alone, as compared with a total of 25 PDVA cases filed during a period of 8 years from 2006 to 2014.
Lawyers did report a number of challenges in claiming maintenance, including proving the monthly income of respondents, low payments ordered by the court, and noncompliance with court orders by respondents. Yet, getting a court order for child maintenance appears to be relatively easy. It seems that judges still operate on the assumption that the primary duty of support of children lies with the father/husband and therefore even a mother/wife who is no longer sharing the matrimonial home is entitled to child support. The focus of the maintenance inquiry is on the father’s duty to maintain his children, whether or not he is failing in his duty, and if he is, the need for judicial intervention to rectify this situation. It appears that women who have left the matrimonial home are not required to explain or justify their reasons for leaving. As GB (Lawyer, Colombo) stated,
child maintenance is often granted on the first date of calling in court even without an inquiry. Even though in practice maintenance cases are sanctioning de facto separations between husband and wife, courts are much less concerned with the fact of separation or the reasons underlying the separation.
Feminists have argued that nonmaintenance is often part of the violence perpetrated by a husband to exert power and control over his wife. Economic dependency is one reason why women are unable to leave an abusive relationship, although economic independence is no guarantee that women will leave an abusive relationship or take action to end violence. Given this analysis, does the Maintenance Act allow women to leave an abusive relationship by allowing them to claim maintenance for their children (even if not for themselves)? It appears so and it is doing so without the censure and stigma that attaches to invoking the PDVA. This is because in the context of the Maintenance Act, the dominant discourse around the family appears to operate rather differently.
Following reforms to the maintenance law in 1999, although a wife is no longer assumed to be economically dependent on her husband merely by virtue of marriage and shares the duty of supporting children with the father, courts continue to place the primary burden of child care on the father. Thus, judicial attitudes toward women who claim maintenance still operate within the discursive framework of familial ideology, and indeed reinforce assumptions about vulnerable and dependent women and male breadwinners. Even though it is patriarchal and patronizing, this “supportive” or “sympathetic” encounter with the judiciary under the Maintenance Act has become a critical resource for women survivors of intimate violence. In fact, separated wives refer to a sense of satisfaction gained by forcing their husbands to appear before the law, and a sense of power gained from having a hold on them via the law. 6
It could be argued that the use of the Maintenance Act by Sri Lankan women to free themselves from intimate violence or regulate perpetrator behavior demonstrates how women have actually leveraged the very patriarchal ethos of the legal system in their favor. This is consistent with the experiences of women in other contexts, where women manipulate the legal system without overt confrontation to achieve outcomes that are considered favorable to them. It is pertinent to recall here Srimati Basu’s (2015) account of laws which are “used against the grain” in India, where plural legal strategies exist to address violence. As she explains, Section 498A of the Indian Penal Code that criminalizes “domestic torture” is often invoked by victim-survivors of violence to negotiate financial settlements rather than to criminally punish perpetrators (pp. 177-179). Similarly, the Maintenance Act allows women a way out, but without naming the violence to which they are subjected. The price women pay for legal relief is silence.
Conclusion
Laws that recognize CPOs for intimate partner violence provide a new way of thinking about a victim-survivor’s experience of battering and can engender a new subjectivity as a citizen whose rights are entitled to summary protection by the state. As Merry (2006) points out, taking on this new identity requires a shift from seeing oneself as defined by family and kin to a more autonomous self, endowed with rights protected by the state. The ability of women to take on this identity as a rights-bearing subject is contingent, however, on the extent to which actual practice resonates with the law, the response of judges and law enforcement agencies, and access to effective intermediaries such as women’s organizations. If state institutions pay serious attention to the complaint of a battered wife and treat her as a person whose right not to be battered has been violated, she will be more willing to take on the identity of a rights-bearing subject. On the contrary, if these rights are treated as insignificant, she may give up and no longer think about her experience of violence in terms of rights (Merry, 2006).
Following from this analysis, it is the contention of this article that there is little support for a woman to take on a rights-defined identity as a battered wife under the PDVA given the deeply patriarchal nature of the system entrusted with implementing it. Those who do so are perceived by many in the judiciary and law enforcement agencies as challenging cultural norms, breaking up and bringing shame on the family, or as spiteful and vengeful women who are trying to grab the property of their husbands or deprive them of their children. This is at least one reason why so few women are taking recourse to the remedy available under the PDVA.
Yet, these same women are able to abandon the marital relationship because of spousal violence and claim maintenance for their children without the same censure, either from the community or the judiciary. The Maintenance Act allows women survivors of violence to retain the identity of a “good” wife and mother even as she challenges the power and control exerted by her husband. Women who go before the law not as battered women but as dependent mothers have a very different encounter with those implementing the law. Judges who frequently refuse to grant POs endorse de facto separations by ordering maintenance for children under the Maintenance Act.
The problem raised by this article reveals that magistrate court judges make sense of the PDVA within the overarching framework of familial ideology. It also reveals the ways in which women negotiate this ideological judicial terrain and different subject positions offered by different laws. But what are the broader implications of this analysis? Feminist engagement with the law resulted from the understanding that law is a particularly authoritative discourse. As Finley (1989) argues,
Law can pronounce definitely what something is or is not and how a situation or event is to be understood. The concepts, categories and terms that law uses, and the reasoning structure by which it expresses itself, organizes its practices, and constructs its meanings, has a particularly potent ability to shape popular and authoritative understandings of situations. (p. 888)
Feminist demands for law reform relating to intimate partner violence, including the demand for CPOs, are part of a strategy to force the state to take such violence seriously. The intention is to make it a public problem, and to convey the message that the state will not tolerate such violence. It is part of the strategy to break the silence surrounding such violence. Yet, more than 10 years after its enactment, Sri Lanka’s PDVA remains a remedy of last resort for women victims of intimate violence. Even when women do invoke the provisions of the PDVA, it can be a risky proposition. The Maintenance Act, in contrast, allows women to address the problem of violence by seeking de facto separations provided they embrace the identity of a dependent wife and mother. Thus, this article finds that female survivors of violence navigate the judicial system to their own advantage, but it is not on their own terms, at least not as women with autonomous selves. The preference to address violence through the Maintenance Act in fact renders it invisible and perpetuates the silence surrounding it.
Footnotes
Acknowledgements
I am grateful to Dr Dinesha Samararatne for comments on an earlier draft of this article. I would also like to thank Dr Claire Renzetti, Amy Batchman and the two anonymous reviewers for comments and suggestions to improve this text.
Author’s Note
The research for this article was undertaken as part of a project titled “Narratives of Intimate Partner Violence in the Courtroom and Counselling Centres in Two Districts in Sri Lanka” conducted at the International Centre for Ethnic Studies, Colombo, Sri Lanka which commenced in October 2013 and was completed in January 2015.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Financial Assistance for research for this article was from the Support for Professional and Institutional Capacity Enhancement (SPICE) project, a civil society support initiative implemented by Management Systems International (MSI) and funded by the United States Agency for International Development (USAID)