Written by: Sunny van den Berg
Despite active efforts to eradicate abhorrent breaches of human rights and to foster social development, the experiences of women are often neglected and overlooked in the socio-economic, political, and legal arenas. It is crucial to consider a gendered perspective: one that emphasises the adverse effects of each global concern on women. More specifically, Sustainable Development Goal (SDG) 16 calls for the promotion of peaceful and inclusive societies, impartial access to justice, and the building of efficient and accountable institutions. The case study of Cambodia will be investigated to highlight realistic goals for a gender-targeted sustainable future. A critical analysis of domestic violence in Cambodia and the subsequent legislation, teamed with an acute lack of accountable and objective legal institutions, reveals the severity of the degradation and vulnerability of women on both social and legal platforms. The reformation of these laws and control over normative patriarchal societal codes is integral for achieving SDG16.
Theoretical Context
Legal feminism critiques the patriarchal underpinnings of society that are further manifested through the legal discourse (Grant Bowman and Schneider 1998: 249-250). Critical Legal Studies emphasizes the “open-ended character of the social and political context in which law is shaped” (Freeman 2000: 555). More narrowly, feminist legal scholars have adopted the slogan “the personal is the political” as the framework to explore issues of the public/private dichotomy and how the legal system silences women’s experiences (Morgan 1987: 749). This has engendered critical analyses of the law’s failure to intervene in categorically “private” affairs, and its subsequent failure to address issues of domestic violence, marital rape, and incestuous assault (Morgan 1987: 749-750; Moyo 2012: 252-253). Propagating the position that the legal arena is gendered, feminists contend that the “private” is routinely restricted through taxation, family, criminal, and tort law, and that reluctance to reform domestic violence is a result of gender hierarchies (Morgan 1987: 750). The “family and the state are not unrelated” and thus, it is “disingenuous to suggest that family issues are beyond the state’s control” (Surtees 2000). Thus, the exploitation of women in the private sphere must be addressed to ensure positive and equal experiences for women in a global socio-political and legal landscape that routinely ignores legal disparities between men and women: a gendered perspective regarding violence must be adopted in order to challenge this norm.
Entrenched Gender-Based Violence Norms
The cultural terrain that engenders violence against women in Cambodia is indivisible from the violence itself, and subsequently, violent social norms illustrate the need for the reformation of legal infrastructure to implement SDG16.
Cambodian society endorses a power-based gender dichotomy of male/female as correspondingly dominant/weak, stemming from the reverence of patriarchal values. These values are observable in Cambodian households (Surtees 2003: 31). Qualitative data suggests that 25% of Cambodian women experience domestic violence in the forms of psychological, physical, and sexual violence, with 23% experiencing such violence in the past year of the study (Yount and Carrera 2006: 368). More specifically, 17% experienced psychological violence, 16% were subject to physical violence (with 5% exposed to punching, kicking, and dragging), and more than 5% suffered sexual violence at the hands of their spouse (Yount and Carrera 2006: 386). An independent study conducted by the Cambodian Human Rights and Development Association in 2005 and 2006 highlighted gross domestic violence occurrences: 364 domestic violence cases were reported in 2005, which increased by 146% to 531 in 2006, with 531 injured victims (HRN 2011: 9). The violence employed by husbands ranged in practice: victims experienced violence ranging from spearing with a harpoon to having hot water or acid thrown at them (HRN 2011: 9). Furthermore, over half of the abused women were struck by an object, 9.1% had been tied up and hit, 36.4% had reported being threatened with a knife or gun, and disturbingly, 5.5% had been stabbed or shot by their abusive spouse (Surtees 2003: 31).
Paradoxically, social responses to domestic violence shape the ideological landscape that prompts such violence. Whilst families occasionally intervene, victims are encouraged to return to their spouse, demonstrating the nexus between social acceptance and unhindered violence. Resultantly, over 25% of women who have been abused do not think this is the case (LICADHO 2004: 14) and 56% of women believed that physical abuse was justified (Yount and Carrera 2006: 368). This is instilled into girls from a young age: ‘Chab Srey’ (or the ‘women’s code’) in Cambodian curriculum encourages women to “follow the command of the husband like a slave… for fear of otherwise being insulted or beaten... even if your husband has a terrible temper, you must never dare to reply” (Zimmerman 1994: 7). This illustrates an overarching unfamiliarity with the concept of domestic violence and women’s rights. Consequently, abuse is largely unreported: preventative factors primary concern social stigma, blame, and the view that such crimes are not serious enough to report (LICADHO 2004: 14). A fear of further attacks supplements women’s unwillingness to report crimes and to file for divorce (Thomas Reuters Foundation 2013: 31). The silencing of domestic violence can also be attributed to the private status delegated to such issues: gendered violence is seen as a familial issue rather than a public issue that manifests from violent social norms (Surtees 2003: 32-33). This isolates domestic violence from its socio-political context and the systematic structures of society, and effectively removes accountability (Surtees 2003: 33). Thus, reporting crimes and divorce are “hardly a panacea in Cambodia” (Surtees 2003: 34).
Accordingly, domestic violence norms are deeply entrenched within Cambodian society, which undermines the progress of SDG16.
Statutory Measures and Remedies
Whilst domestic violence is an insidious social force, there remains a lack of an appropriate action taken by the legislature. Despite ratifying the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1992 (HRN 2011: 2), Cambodia has seen “limited progress in the prevention and elimination of violence against women” (Brickell, Prak, and Poch 2014: 8). Statutory remedies echo social norms: vagueness, a lack of criminal measures, and the importance of alternative dispute resolutions undermine legal progress towards appropriate and well-adapted legal avenues.
Legally defined by the Law on the Prevention of Domestic Violence and the Protection of Victims, domestic violence is:
“any act or failure (negligence of household members) by a person with respect to another person that infringes upon the latter’s constitutional rights and freedoms, or any act that causes or contains a threat to cause him/her physical, psychological, sexual or economic violence causing moral, physical or mental suffering” (Thomas Reuters Foundation 2013: 13).
However, despite the substantial comprehensiveness of this definition, the specific articles relating to implementation are significantly less thorough and operative. Articles 13-19 delineate that “the authorities in charge” shall intervene in cases of spousal violence, however, the failure to delegate this responsibility to a particular authority has lead to all of the potentially relevant authorities to fail to act, thus, leaving a wide scope for domestic violence (HRN 2011: 16-17). Further, Chapter 7, ‘Penalties’, does not recognize this statute as criminal law, and thus offenders are not subject to punishment (art 35-36). The Explanatory Notes justify this by stating that criminal penalties stigmatize the offender, and lead to the economic losses of his family without the main provider (Ministry of Women’s Affairs 2007: 18).
Divorce laws are similarly inept in the recognition of gendered-violence. Under Article 978 of The Civil Code of Cambodia, any form of abuse is not a valid reason for divorce, thus, trapping women into abusive relationships (art 978). The emphasis on reconciliation is also heavily problematic as the Code states, “acts of violence… reconciliation or mediation may be possible… in accordance with the nation’s good custom and tradition” (Law on the Prevention of Domestic Violence and the Protection of Victims art. 26). As the focus is placed on reconciliation rather than disciplinary measures, this alternate form of mediation does not offer an appropriate remedy for women in abusive situations. Victims of domestic violence are effectively confined to a situation where they must continue to see, interact with, and often live with their abusers (HRN 2011: 25-26).
Due to the vague articles of the legislation, the lack of criminalisation, issues with divorce stemming from violence, and the rigid encouragement of reconciliation, Cambodian “law is yet to be widely used to provide enough protection for women… the legal system is not able to prevent domestic violence and provide adequate protection” (Brickell, Prak, and Poch 2014: 8).
Defects in the Legal Machinery
Conforming to destructively pervasive social norms for domestic violence and following feeble statutory frameworks, defects in implementation obstruct the fulfillment of SDG16. A mélange of issues including access to justice, flawed police and judicial measures, and a shortage of services restricts the eradication of domestic violence.
Violence against women is frequently disregarded by authorities, despite violence against men (ie. men against other men) being perceived as unlawful (Surtees 2003: 32). A lack of police training fosters institutional acceptance of domestic violence norms: The Cambodian Women’s Resource Centre found that 48% of police do not believe domestic violence is a crime, and a meager 17% who witness the whipping of a women would arrest the abuser (Surtees 2003: 32). This limited exercise of authority in regards to the protection of women impedes upon progress. LICADHO reveals that one woman who was abused and threatened by her husband contacted the authorities, and was promptly rejected any form of protection as it was midnight, and she would have to wait until the morning (HRN 2011: 35). Often, the police maintain that a woman must be severely injured or killed before actions are taken, however, this leaves a dangerous gap in protection (Walsh 2007: 37). In adjunct to this, bribes are often required to commence police investigations, however, Cambodian women do not often have access to money, and taking money from the household for bribes can potentially lead to further abuse (LICADHO 2004: 18). Thus, the first wave of legal action is not an effective protection against gendered violence.
Defects in judicial mechanisms place further limitations upon the success of implementing SDG16. Judicial interpretation should be impartial and independent, however, “custom, tradition and religion” are considered in interpretation (HRN 2011: 43). As the Cambodian judiciary reflects the social norms of negative attitudes towards women, these norms are filtered through judgments: appropriate damages and results are often not given (LICADHO 2004: 12). Furthermore, areas for concern include: the required documents are often lost by the court and subsequently, no action is taken; there is no specified timeframe, which leads to indefinite delays; a high threshold of judicial discretion engenders arbitrary and prejudiced decisions; legal fees are not viable; and bribery (HRN 2011: 40). These weaknesses and the unresponsiveness of the system propagate the message that there are no repercussions for domestic violence (Walsh 2007: 21). Although domestic violence laws exist, legal action is not sufficient to “prevent domestic violence and provide adequate protection” (HRN 2011: 2), and thus, Cambodia “lacks the political will and institutional infrastructure needed to protect rights” (Walsh 2007: 21). Effectively, the institutional frameworks to implement SDG16 are eroded by the authorization of harmful societal norms.
Whilst the police and judicial authorities are problematic in their structure and implementation, a lack of access to legal measures also contributes to the dismissal of SDG16. Human Rights Now has identified numerous issues preventing access to justice for Cambodian women: remote villages are too isolated from legal necessities; there is a lack of education regarding rights; unfamiliarity with prospects for protection; financial difficulties; and lengthy timeframes further endanger the victim in the community (2011: 42-43). These factors prevent effective responses to domestic violence. A lack of access to support networks furthers the weaknesses in resolving domestic violence (HRN 2011: 43). Whilst several non-governmental organisations have formed in the last few decades, including the Project Against Domestic Violence and the Cambodian Women’s Crisis Centre, there is a severe shortage of services and resources for women (Walsh 2007: 37). In particular, access for those in remote provinces is non-existent: the services are all located in Phnom Penh, which severely limits access to justice (LICADHO 2001: 63).
Thus, the defects in the legal machinery stemming from flawed police forces and the judiciary, in conjunction with a lack of access to justice inhibits the success of the implementation of SDG16 in Cambodia.
Conclusion
The enactment of SDG16 is vital for Cambodian women to alleviate the implications of domestic violence upon women’s experiences. Whilst legislative frameworks are available, they are not adapted to serve as a protection for women by criminalizing domestic violence, nor do they effectively combat detrimental social norms. Furthermore, this legislation appears artificial in its application due to the failure of implementation at judicial, quasi-judicial, and social levels: violence is characteristically legitimized through inaction (Heak 2013: 5). Cambodian women receive a concerning lack of legal representation, equality before the law, and access to justice for crimes committed against them. Legislative and judicial restructuring, development corresponding with basic human rights for women, and social reform is vital to cement women’s rights and for Sustainable Development Goal 16 to be attained.
List of Works Cited
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