Go Back and Give Him What He Wants’: The Limits of a Legal Rights Approach to Gendered Human Rights Violations

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Go Back and Give Him What He

Wants: The Limits of a Legal Rights

Approach to Gendered Human Rights

ViolationsLaura Hebert

a

aDepartment 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 aLegal Rights Approach to Gendered Human Rights Violations, The International Journal of Human

Rights, 12:4, 483-504, DOI: 10.1080/13642980802204685

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Go Back and Give Him What He Wants1:The Limits of a Legal Rights Approach toGendered 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 narrowlyas legal rights, with a governments fulfilment of its international human rights obligationsexpected to take the form of appropriate legal protections at the national level. Building on acomparative analysis of anti-domestic violence campaigns in Malaysia and South Africa, I arguethat to reduce human rights to legal rights is to overstate the ability of legal change to translateinto a transformation of the deeply held beliefs and values that often underlie gendered humanrights violations. The international human rights framework, however, embodies far more than asource of legal rules and standards. To engage human rights fully holds the potential ofinforming 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 experi-

ences 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 (197585),

womens advocates demanded that the UN and its member states acknowledge the

physical and psychological trauma associated with gender violence and its long-term con-

sequences 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

The International Journal of Human Rights

Vol. 12, No. 4, 483504, September 2008

Correspondence Address:Laura Hebert, Department of Diplomacy and World Affairs, Occidental College, 1600Campus Rd, Los Angeles, CA 90041, USA. Tel.: 01 (323) 259-2847; Email: [email protected]

ISSN 1364-2987 Print=1744-053X Online=08=04048322# 2008 Taylor & FrancisDOI: 10.1080/13642980802204685


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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 menexperience 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 press-

ured 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, rapeand 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 ful-

filment of its international human rights obligations expected to take the form of appropri-

ate 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 forma-

lising 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 hierarchyis 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, haspositioned itself as a vocal defender of democracy and universal human rights. Rather

484 L. Hebert


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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 hun-

dreds of groups today being involved directly or indirectly in responding to gender vio-

lence. On the surface, in the light of important differences such as these, analysing theanti-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 vio-

lence 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 start-

ing 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 ofsuch 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 rep-

resents 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 frame-

work 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 increasetheir 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 mensviolence against women by reference to the behaviour or characteristics of victims or

Limits of a Legal Rights Approach to Gendered Violations 485


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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 criticisedcertain 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 experi-

enced 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 theor-

ists led a shift away from individual-based explanations toward those that understand

mens violence as a manifestation of the gender hierarchy. As articulated by JudithArmatta, 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 subor-

dination.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 posses-

siveness 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 sub-

stantiates many of the major tenets of feminist theory on male violence.24 She neverthe-

less 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 beha-

viour.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 developmen-tal 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 person-

ality 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) themacrosystemor 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 masculinitytied to dominance and toughness, adherence to rigid gender roles and social approval of the

486 L. Hebert


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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 inte-

grated theoretical framework for formulating responses to gender-based violence.30 A clear

implication of Heises analysis is that moving beyond partial and reactive approaches tomens 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 funda-

mental role in perpetuating mens violence against women. In the concentric circle

image that Heise constructs to represent the ecological model, the individual level of per-

sonal history is nested within the microsystem which is nested within the exosystem,

which is in turn nested within the macrosystem. Therefore, while acknowledging the com-

plexity and multi-causality of gender violence, Heise reaffirms that understanding why

females are disproportionately vulnerable to physical, sexual and psychological violenceby 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, interven-

tions 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 relation-

ships, establish stable and independent lives and protect themselves against further abuse.

The enactment of domestic violence legislation that was intended to rectify the weak-

nesses of existing protective remedies took quite different paths in Malaysia and SouthAfrica. 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 Inter-

national 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 violencebill. But in the years following the workshop, the efforts of womens organisations to



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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 Preven-

tion of Family Violence Act (PFVA)38

to provide enhanced and expedited legal remediesfor 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-domi-

nated 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 fol-lowing 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, enact-

ing 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, sim-

plify procedures for obtaining protection orders and hold perpetrators accountable for

their criminal behaviour. And after the implementation of these laws, womens advocates

in both countriesdidobserve 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 defi-

nitions of domestic violence in the DVA and the PFVA are fairly broad, encompassingphysical and psychological violence, options for non-physical harms are limited to coun-

selling.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 dom-

estic violence survivors relayed their experiences of encountering gender-biased attitudes

and even hostility in their interactions with police officers and judges. Common com-

plaints 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



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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 toachieve 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 Tech-

nical Working Groups (TWG) on womens issues that have been established by the Min-

istry 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 like-lihood 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 gov-

ernment 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 per-

petrators, 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 AfricanPolice Service (SAPS) to assist and inform victims of their rights either at the scene of

490 L. Hebert


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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 legis-

lation. 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 objectionsof 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 partici-

pant, 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 per-

sonnel 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 cantcome 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 com-

prehensive 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 enfor-

cement 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 rou-tinely 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 pro-

grammes for enforcement officers who frequently interact with domestic violence survi-

vors. 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, exist-ing gender sensitivity programmes tend to be run on anad hocbasis and are usually limited

to a half-day or a single-day training session.58

Moreover, these training programmes aregenerally designed not to probe and unsettle harmful gender norms and behaviours, but



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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, thenExecutive Director of People Opposing Women Abuse (POWA) in South Africa, acknowl-

edged 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 meansthat 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 enfor-

cement 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 acknowl-

edged 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 opti-

mistic 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, genderviolence 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. Pursu-

ing 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 thosekinds of discussions.61

492 L. Hebert


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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 func-

tioned 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 pro-

blems 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 insti-

tutional mechanisms and actors responsible for responding to such violence. As articulatedby 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 considerto 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 suf-

fered 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 deter-rence logic of criminalisation assumes a rational offender-actor who weighs the cost of



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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 sanc-tions and individual processes, reduce subsequent intimate partner violence.69 But the

authors acknowledge that the statistical significance of the effect of arrest varied depend-

ing 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 crimi-

nalisation 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 orhand 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 preven-

tion. By establishing standard procedures for handling gender violence cases, implement-

ing 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 individ-

ual women. Crisis intervention, however, is not the same as violence prevention, and pre-

venting 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 legalremedies 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 establishinglegalnorms 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 gender-

based harms. The first is the idea that the human rights recognised in the Universal Declara-

tion 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.

494 L. Hebert


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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 Economistcorrespondent 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 dueprocess 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 edu-

cated 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 cat-

egories 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 Declara-

tion 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 vio-

lence 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 threaten-

ing womens dignity and undermining their ability to enjoy their civil rights to life, secur-

ity 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 ofphysical 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 phys-

ical, 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 discrimi-

nate 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



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The strategic recommendations set out in the Beijing Platform bridge political, econ-

omic and socio-cultural systems, reflecting the understanding of womens advocates of

human rights as mutually dependent, and gender-based harms as interrelated. But, in prac-

tice, advocacy campaigns rarely cut across issue areas, with education, health, poverty and

violence instead being separately tackled by womens advocates. Moreover, not only isgender 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 cam-

paigns launched, around domestic violence orrape orsexual harassmentortrafficking.79

As a consequence, an opportunity to leverage the collective strength of womens advo-

cates 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 convin-

cingly 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 emancipa-tion (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 there-

fore be interpreted as coming at the expense of issues of economic and social justice, silen-

cing 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 advo-

cates 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, reproduc-

tive health, education and poverty challenges the privileging of particular womens iden-

tities 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 elabo-rated 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 supportiveassistance is in itself also insufficient if the ultimate objective of human rights is to

496 L. Hebert


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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-in-

progress 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 inter-

ventions that target the complex processes behind, and the effects of, human rightsviolations.

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 statecitizen relationship that has tra-

ditionally 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 largelybeen 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 guar-

antee of womensde jureequality 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 non-

legally binding instruments, such as the 1985 Nairobi Forward Looking Strategies forthe Advancement of Women85 and the Beijing Platform, similarly acknowledge legislative

changes as being essential but inadequate for eliminating gender-based inequality and dis-

crimination.

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 socio-cultural expectations of masculinity tied to the acceptability of violence as a means of



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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 andvalues 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 ofwomens 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 struc-

tures, 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 glob-

ally 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 hier-

archies 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 tar-

geting all sectors of society and involving formal and informal interactions and insti-

tutions, 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 ima-

ginable, 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 organis-

ations. Prevailing educational activities, however, centre primarily on increasing public

awareness of gender violence, providing information on where individuals in crisis situ-

ations 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 information-

sharing format have shown considerable promise for confronting entrenched gender

norms. In Malaysia, for example, the Womens Crisis for Change (WCC) organised ayouth camp in 2002 for secondary-school-age children. This event offered WCC the

498 L. Hebert


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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 settle-

ment in Cape Town, holds community workshops on the weekends targeted at men ontopics such as gender equality and gender roles, domestic violence, sex and sexuality

and female reproductive health.90 It also organises fatherchild 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 relation-

ships 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 andviolence 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 Embiz-

weni 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 exclu-

sively to activities that have the potential to produce immediate and measurable outcomes,

advocates are failing to heed their own warning that social transformation requires funda-

mental changes in values and beliefs. Advancing the utility of the international human

rights framework for preventing rights violations, rather than simply serving as a mechan-

ism for redressing such violations, will require that the educational dimension of the

framework be taken as seriously as its already well recognised legal dimension.

ConclusionNothing 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 protec-

tive services. Where these measures are not yet in place, the continued focus of attention

on legal advocacy is certainly warranted.92 For those countries thathaveimplemented or

reformed legislation concerning rape, domestic violence, sexual harassment, trafficking

and other forms of gender violence, however, the question arises as to the effectivenessof continually revisiting the phraseology of international human rights or refining



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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 think-

ing and planning and the adoption of proactive initiatives that go well beyond appeals tothe 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.178193; and C.T. Mohanty, Under Western Eyes: Feminist Scholar-

ship and Colonial Discourses, in Mohanty et al. (eds), Third World Women and the Politics of Feminism(Bloomington, IN: Indiana University Press 1991), pp.5180.

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 success-

fully 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 decision-

making positions related to conflict resolution and peace processes; the increased participation of female per-

sonnel 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 recentmulti-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 GenderViolence: Translating International Law into Local Justice (Chicago: University of Chicago Press 2005);

500 L. Hebert


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and C. Moore, Women and Domestic Violence: The Public/Private Dichotomy in International Law,International Journal of Human Rights, Vol.7 (2003), p.93.

10. G. Teeple,The Riddle of Human Rights (New York: Humanity 2005), pp.4859.

11. This article builds on two cycles of field research conducted in Malaysia and South Africa in 1997/1998 and2002. 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 formalapproval 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 gender-

based 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 sen-

sitive topics. A detailed list of participants is on file with the author.

12. 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 DavidWright-Neville, Losing the Democratic Moment? Southeast Asia and the War on Terror, Asia Research

Centre Working Paper No. 110 (2004).

13. An advocacy network is defined in this article as a form of organisation marked by informal and formal inter-

action 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.

14. 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.

15. 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.

16. L. Richards, B. Rollerson and J. Phillips, Perceptions of Submissiveness: Implications for Victimization,

Journal of Psychology, Vol.125 (1991), p.407.

17. L. Berkowitz, The Goals of Aggression, in D. Finkelhoret 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.5170.18. K.D. OLeary, Physical Aggression between Spouses: A Social Learning Theory Perspective, in V.B. Van

Hasseltet al. (eds), Handbook of Family Violence (New York: Plenum 1988), pp.3155.

19. 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).

20. 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.

21. P. Ulbrich and J. Huber, Observing Parental Violence: Distribution and Effects,Journal of Marriage andFamily, Vol.43 (1981), p.623.

22. J. Armatta, Getting Beyond the Laws Complicity in Intimate Violence against Women,Willamette Law

Review, Vol.33 (1997), p.842.

23. 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 Prac-

tice(New York: Routledge 2000), p.193.

24. L. Heise, Violence Against Women: An Integrated, Ecological Framework, Violence Against Women,

Vol.4 (1998).

25. Ibid. p.263.

26. Ibid. pp.266 269.

27. Ibid. p.264, pp.269 273.

28. Ibid. p.264, pp.273 277.29. Ibid. pp.277 282.



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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 under-

educated and economically disadvantaged of all the ethnic communities in the country. The British arrangedthe 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 Reser-

vations 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 recog-

nised by Arabic transliteration, the most common spelling of the word in Malaysia is Syariah and is there-

fore the spelling used in this article.

34. For example, Section 127 of the Islamic Family Law (Federal Territory) Act, No. 303 (1984) makes ill-treat-ment 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 afasakhdivorce (the dissolution of a marriage on the application of the wife).

35. M. Othmanet 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 Malay-

sian 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 rec-

tified in 1997, when apartheid-era laws were repealed and the application of the PFVA was extended through-

out 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. Usdinet al., The Value of Advocacy in Promoting Social Change: Implementing the New Domestic Vio-

lence Act in South Africa,Reproductive Health Matters, Vol.8 (2000), p.56. SeeState v. Baloyi(ICHRL 166of 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.

51. Ibid. Section 7.52. Ibid. Section 18.

502 L. Hebert


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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, seeP. 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 ses-

sions. 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.4353. 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 Court-

Restrained Male Batterers: Why Restraining Orders Dont Work, in Buzawa and Buzawa (note 67),

pp.192213.

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 frompreventing violence,punishment is the most powerful stimulus to violent behaviour that we have yet discov-

ered. 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

comp