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  Web Editor:
  Vernellia R. Randall
Professor of Law
The University of Dayton
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Judith G. Greenberg

excerpted Wrom: IMQZUIVOTQNQEMSFDULH Criminalizing Dowry Deaths: the Indian Experience, 11 American University Journal of Gender, Social Policy and the Law 801-846 (2003) (213 Footnotes)

 

Violence among intimates is a major problem in India, as it is in the rest of the world including the United States. One common approach to this problem has been to look to criminal laws. Thus, women's advocates in both the United States and India have sought legislative and policy changes that criminalize such violence. In the United States, violations of civil protective orders are usually criminal offenses. Many states and localities have adopted policies that call for mandatory arrest of spousal abusers. Prosecutors' offices have adopted "no-drop" policies that require prosecution of such cases regardless of whether the victim wishes to pursue judicial relief. For the past several years, some of those most dedicated to improving the lives of battered women have started criticizing, and even opposing, this heavy reliance on the criminal system to deal with the problem of intimate violence.

One criticism of the impact of criminalization in the United States involves the potential result of benefits to white, middle class women at the expense of poorer women of color. Furthermore, criminalization of domestic violence increases the opportunities for state control over the same women who are routinely marginalized on account of their race, class or immigrant status. Others, claiming that mandatory state intervention risks replicating the abuse that victims experienced at the hands of their abusers, have criticized the reliance on criminal remedies to address the problems of domestic violence; this time however, the abuse is at the hands of the state. All of these indicate that we, as advocates of victims of intimate abuse, must reassess the reliance currently placed on criminal remedies.

In India, women's advocates succeeded in the 1980s in getting two important laws passed to make at least some forms of domestic violence criminal. An analysis of how these laws have worked in practice and how they have been understood reveals additional problems with the strategy of relying on criminal law to keep women safe from intimate abuse. These two Indian statutes have been problematic in four distinct, yet related, ways. First, they established statutory enforcement within the criminal justice system. The actors within the Indian criminal justice system, like those in criminal justice agencies worldwide, are not trained to recognize or be concerned with domestic violence. Traditionally, it has not been part of their agenda. As a result, courts, police and other actors have a distinct tendency to narrow the purview of the statutes and attempt to reconcile such practice under the statutes with the demands of dominant institutions.

Second, criminal law declares some conduct wrong without making any normative statement about other related forms. In India, criminal law has singled out dowry violence as the offending form of violence. Consequently, the two anti-domestic violence laws passed in the 1980s focus primarily on dowry violence and say relatively little in condemnation of other forms of domestic violence. Therefore, the police, courts and society may find other forms of intimate violence against women to be less objectionable or even legitimate. Women who are the victims of non-dowry forms of domestic violence are likely to be discouraged from pursuing actions against their abusers.

Third, the lines between legitimate and criminal conduct beg for explanations. The failure to place criminal sanctions on violence against women in the larger context of women's subordination makes it difficult to sustain the reformist ideology that initially generated the laws. Instead of being seen as laws that were enacted to fight women's subordination in India, the evil at which they are aimed is variously redescribed as either colonialism or scheming mothers-in-law. Both of these are historic boogeymen (or women) in modern India. One effect of blaming dowry violence on colonialism or mothers-in-law is that the attention is displaced from male dominance and control as the motive for the violence.

Finally, the use of criminal law emphasizes individual, rather than systemic, responsibility for domestic violence. This emphasis might seem counterintuitive because declaring a particular form of conduct criminal can be understood as a statement that a significant segment of society opposes such conduct and believes that social resources should be used to prevent it. However, at a more practical, non-ideological level, criminal statutes focus on the injury done by one abuser, usually the husband or his family, to one victim. Individual women must plead their cases on their own. There is no mechanism within the criminal law system for aggregating these cases and bringing a "class action." Criminal laws do not place intimate violence in a social context whereby women's lives are subordinated to men's and whereby the violence can occur or continue because women have very few alternatives to life with their husbands. Although the violence would not have been made criminal if it had not been communally identified as a wrong, the focus on individual cases and low conviction rates in these cases undercuts this message.

In short, the anti-dowry criminal statutes, enacted in the 1980s with the support of women's advocates, have not provided a dramatic protective effect. Instead, they have been implemented narrowly. The underlying problem has been reinterpreted to maintain consistency with dominant institutional and ideological norms. The result is to de-emphasize the systemic subordination of women that was at the root of the original attack on dowry violence. Although this may generally be a problem of legal reformist efforts, it is especially a problem of reliance on criminal law where we must rely on enforcement by a limited cast of both the specialized institutional actors and preexisting systems of criminal justice. To the extent that law is to play a role in emancipating women, the experience in India indicates that we should enlarge the array of legal remedies to include civil remedies. Equally important, it shows the need to educate the institutional players involved in the criminal justice system and to resist explanatory systems that reposition the violence in ways consistent with continued male dominance and subordination of women.

[a1]. Professor of Law, New England School of Law.

 
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Thanks to Derrick Bell and his pioneer work: 
Race, Racism and American Law
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