Letter to Human Rights Organizations *** Carta a las Organizaciones de los Derechos Humanos
Dear Madam or Sir,
I am contacting you regarding the violation of the rights of victims of domestic violence in judicial proceedings and a government’s duty to protect under the principle of due diligence. The rampant violation of human and civil rights of women and children in family courts across the globe, as well as discrimination against women, is well documented in reports by the United Nations, Amnesty International, Save the Children, inter alia.
Please find attached Family Courts in Crisis newsletters (Nov. 2013 – Jan. 2014) which define these rights, the acts and omissions of acts by judicial actors which violate these rights, and the implications for governments under international law. While the reports by Amnesty International and Save the Children provide a case study of the issues at hand, the finding of the reports exemplify the problems and trends within family courts throughout Europe, North America, Australia and New Zealand, encompassing a population of over 1 billion people.
As Ms. Michelle Bachelet, United Nations Under-Secretary-General and Executive Director of UN Women, stated in the closing statement of the 57th Session of the Commission on the Status of Women, “ending violence against women and girls is a must...This agreement is one step more for realizing the rights and dignity of girls and women. But we cannot stop here. We need to do so much more. Words now need to be matched with deeds, with action. Now is the time for implementation and accountability.”
Under Secretary General of the United Nations Jose Antonio Campos stated in presentation of the Secretary General’s report In-depth Study on Violence against Women (2006) “Violence against women is truly a global phenomenon. Complex, pervasive, persistent, pernicious. It occurs in different settings, takes many different manifestations, and evolves and emerges in new forms... On average, at least one in three women is subject to violence at some point in her lifetime…”
The fact that 70% of half of the world’s population (2.45 billion women) are victims of domestic violence during their lifetime, and that according to the UN:
• “half of all women who die from homicide each year are killed by their current or former husbands or partners” (33,000 women each year – half of the 66,000 women killed every yr.) (ie. widespread attack directed against any civilian population)
• “The roots of violence against women lie in historically unequal power relations between men and women and pervasive discrimination against women in both the public and private spheres… (ie. systematic attack directed against any civilian population)
• States worldwide are failing to implement in full the international standards on violence against women ….” (ie. with knowledge of the attack)
Domestic violence fulfills the criteria of crimes against humanity . (Noting that annual death rates in countries currently being investigated for crimes against humanity and war crimes were an average of 4,000/yr. in Sudan/Darfur; 2958/yr. in Colombia; 2336/yr. in the Congo; and that total death under Pinochet were 3,197 (1974-90); and under Franco were 114,000 (1936-52).
It should be noted that the estimated 33,000 women killed each year by intimate partners only reflect recorded deaths, but does not include rape, torture, ill-treatment, emotional abuse or disappearances, nor does it account for the estimated $30 billion usd/year in health care and lost productivity costs in western societies caused by domestic violence. And, it does not include male children who are sexually abuse, mistreated, and/or killed each year at the hands of an abusing parent. The gravity and enormity of the problem cannot be stressed enough.
However, even though the issues and problems, as well as the consequences under international law is well documented, western judicial systems are not applying these standards in family law and as a consequence are knowingly sanctioning, encouraging and supporting the rape, torture and ill-treatment of victims of domestic violence under their jurisdiction, recalling that this represents a population of the over 415 million women and 100’s of millions of child victims and potential victims in western countries alone.
Reminding that lesser developed countries (with nearly 1 billion victims and potential victims) are often following initiatives, programs, and trends developed in western countries. Meaning that if western societies continue to send a message of impunity to abusers and judicial actors for their complicity in said impunity, then developing countries (Africa, Eurasia and Latin America) will follow suit. But, if they address these issues by developing systems of transparency and accountability of family courts and judicial actors, these other countries will follow suit. Also, noting that those involved in war crimes, mass-torture, genocides, and their conspirators, were all victims of/witnessed extreme domestic violence as children.
Taking the case-study of Spain presented in the attached documents , the legal counsels of victims, presiding judges, and court-psychologists are systematically and knowingly covering-up and suppressing evidence of domestic violence, even declaring that acts of abuse are “patria-filial” rights of the husband and/or father. Furthermore when presented with complaints, regulatory agencies (Defensor del Pueblo, Consejo General del Poder Judicial , Instituto de la Mujer , and Colegio de Abogados , inter alia) are refusing to fulfill their obligation to duly investigate allegations of victims.
Judicial actors are utilizing the same tactics to silence and intimidate victims as abusers are using (economic sanctions, threats, intimidation, manipulation of court-proceedings, and refusal to present/examine evidence), thereby re-victimizing victims. And, the refusal of regulatory agencies to investigate the actions (and omission of actions) of judicial actors is creating a “culture of impunity” for these actors as well as for abusers, thereby encouraging future abuses of victims as well as widespread corruption within judicial systems.
In the case of the Colegio de Abogados de Madrid (Madrid Bar Association) they have even declared that the “decisions by lawyers [that violate the rights of their clients and/or fail to defend & protect clients’ interests] fall under their independence, prerogative that assist in the execution of their function as provided for under article 542.2 of the Ley Orgánica del Poder Judicial, 33 of the Estatuto General de la Abogacía and 2 of the Código Deontológico de la Abogacía Española, [and] that immunizes them from all interference and is the exclusive territory of the defense, without any possibility of a deontological revision”. Further declaring that the violation of the rights of a victim of domestic violence and discrimination against women “exclusively affect fundamental rights recognized in the Spanish Constitution (CE) and norms in international agreements, and not in any way norms under ordinary laws” and thereby protects lawyers from any wrong-doing (see attached Press Release – 9/13).
One of the key and necessary actors in defending the rights of women and children are the lawyers of victims. These professionals have a legal and moral obligation to be familiar with and utilize the constitution, civil and penal codes, progressive laws (gender equality and domestic violence), jurisprudence, expert testimony, and innovative, well-developed argumentation to defend their clients and promote their interests. However, as women rights organizations have avowed, it is almost impossible to find lawyers (in N. America, Europe, Australia, and New Zealand) who will effectively defend victims of domestic abuse.
In order to understand how and why lawyers (and other judicial actors) are failing to defend their clients one must examine the following “social” factors from an intersectional perspective:
1. Widespread discriminatory beliefs amongst judicial actors that women lie about domestic abuse in order to obtain preferential treatment during divorce (an illogical argument since women who file complaints for abuse (perpetrated against them or their children) receive reprisals and detrimental treatment during divorce proceedings).
2. The still prevalent belief that women are hysterical, stupid, don’t understand complex concepts ‘litigation/legal principles’ etc. “weak, lacked strength, their brains [are] too small. So those who could, stayed home and looked after the children accepting the role of homemaker and mother (Coltrane 1998).” (ie. case-study Spain, the cállate tonta mentality)
3. The common belief that homemakers “don’t do anything” and live-off the hard-work of their husbands. This is the main reason that lawyers are failing to adequately reclaim common property assets during divorce, and judges are refusing to award alimony to women commensurate with contribution to home and family. As a consequence homemakers are left destitute by courts and denied access to common property assets during the entire process, effectively hampering their ability to defend themselves within the courts.
(In examining the case-study of Spain (see Nov. ‘13 & Jan. ‘14 Family Courts in Crisis newsletters) – judges award alimony in 11.4% of divorces with reported sums at €500/month (below poverty level) after an average of 15 years of matrimony with the average age of women, 42 years old. Many of these women who have not developed careers and dedicated themselves to raising children & assisting husbands in developing their careers (and elevated salary levels) are left penniless, and thrown into labor-markets where gender & age discrimination is rampant (with unemployment rates of 26.7%) condemning them to a life of extreme poverty. Basically, the courts are relegating the status of the homemaker to one of servitude with no recognition of her contribution to the family or society, & ‘workers’ rights (“safe conditions,” compensation, or pension, etc.) – in violation of Convention of Civil & Political Rights, & Intl. Covenant on Economic, Social & Cultural Rights).
Financial dependence of women is the strongest and most effective form of control a man has over his victim, and the court re-enforces this power and control – all the while classifying women who seek common property assets & alimony as “gold-diggers”.
4. Historically victims of domestic violence have been “silenced” by the community in order to protect the “honor” of the abuser (using tactics such as making victims feel “ashamed” and “responsible”, talking about abuse is not considered “polite” conversation, social ostracisation, restricting access to assets & funds, etc.) and lawyers are utilizing these same tactics in silencing victims (their clients)
5. Up to two-thirds of populations suffer from “abusive personality” disorders, with abusers more likely to seek jobs which put them in positions of authority and facilitate their access to victims. Lawyers, judges and court-psychologist are in positions where they can easily and readily abuse their powers over women. This is the reason that accountability of judicial actors by regulatory agencies is of the utmost importance in government fulfilling their obligation to protect
6. There exists a false assumption that women lawyers, judges, etc. will defend the rights of victims, when in fact these women are as likely, if not more likely, to discriminate against victims or cover-up abuse. As stated in the UN report In-depth study on all forms of violence against women, “Women also commit acts of violence. While women commit a small proportion of intimate partner violence, they are involved to a greater degree in the perpetration of harmful traditional practices”
7. There exists a high level of nepotism, “old-school” networks, and antiquated “code of honor” traditions amongst lawyers (and other judicial actors) which encourage (if not obligate) the covering-up for “indiscretions” (negligence, malpractice, etc.) of colleagues
8. Since there is no effective over-sight on family courts, with gag orders common in cases where victims attempt to attract media attention, judicial corruption has become common (noting there is a high correlation between abusers and criminal activity/organized & white collar crime.) –
"Judicial civil servants can manipulate the dates of hearings in order to favor one party over another… Judge can make inexact summary decision or distort the testimonies of witnesses before handing down a sentence… Judges can refuse the introduction of evidence or testimonies in order to favor one party over another… Civil servants can ―lose a document… Prosecutors can block avenue of legal reparation… Corruption is more likely in judicial procedure where journalist do not have free access to all fact or lack of activist groups who push for reform." (This is a synopsis of problems in family courts) (About Judicial Corruption 2007 by Transparency International)
“White-collar criminals exert more pressure on the judiciary, as they have easier access to social networks that facilitate corruption… organised crime uses social, professional and political networks to influence the judiciary… Certain type of companies, such as law firms..are in high demand by organised crime as middlemen… Attorneys have a significant competitive advantage over all other intermediaries – they can provide services through the whole institutional chain, starting with police and going all the way to prosecutors and even judges… ‘Collusion’ is often a more appropriate way of describing professionals‘ corrupt behaviour, including that of lawyers… (Examining the Links Between Organized Crime and Corruption by the Center for The Study of Democracy)
9. Divorce courts are a huge money-making industry, with little incentive for lawyers to develop arguments and jurisprudence advancing the rights of women within the family or marriage. Yet, jurisprudence (supreme/constitutional court decisions) in the past few decades regarding domestic abuse and family law, has made many inroads in advancing father’s rights and ‘abusers rights’, with little opposition/argumentation from family law lawyers. (This is an area which needs serious examination from a trans-national pool of legal experts in family law, in conjunction with human, civil and women’s rights lawyers.)
10. Women’s rights movements have concentrated almost exclusively on women’s rights within the work-force and reproductive rights in the past – not the home or marriage. This has left a “vacuum” as women simply have not ‘gained’ any rights in the home and marriage in the past 100 years, because no one is “requesting/demanding/arguing for” those rights in the courts. – Feminists and women’s rights activists have traditionally considered homemaker’s role (house-keeping, child-raising, supporting husband’s career, even marriage itself) as ‘shackles of oppression’ with little incentive or desire to develop a political platform or promote legal rights of the homemaker.
In order to advance and defend the rights of victims of domestic abuse it is imperative that human, civil, and women’s rights organizations and legal clinics around the world take a proactive approach to the defense of victims. This entails assisting individual victims compile and file complaints against judicial actors for actions (and omission of actions) which have failed to defend their rights and interests in the courts, including but not limited to the suppression of evidence. And, after all domestic remedies have been thoroughly exhausted, compiling and filing cases within the appropriate international courts against governments who are failing to exercise due diligence in fulfilling their obligation to protect.
Additionally, women’s rights organizations and activists must promote and develop argumentation for the rights of the homemaker and recognition of her contributions to her family and society. Additionally, they must actively lobby and work with lawyers at national levels in developing protocol and ‘good practices’, which comprehensively build legal principles and jurisprudence which defends women’s rights within the courts, as well as a global, political platform and plan of action (see #9 above).
The mission of my organization, Global Expats, is to assist the expatriated (unemployed) homemaker and families (see Global Expats’ report Profile of the Trailing Spouse and Expat Family - http://worldpulse.com/node/44543). In my blogs on the Huffington Post - http://www.huffingtonpost.com/quenby-wilcox-/ and Memoirs of a Trailing Spouse - http://www.globalxpatsblog.wordpress.com/, I have started to establish and develop arguments promoting the rights of the homemaker (and related social issues) and which might assist women’s rights organizations, activists, and lawyers in promoting these rights.
I would be happy to speak with any organizations, activists, advocates, etc. about my on-going research & work (see Family Courts in Crisis - http://worldpulse.com/node/71182 & World Pulse Journal - http://www.worldpulse.com/user/2759/journal), and concretely what can be done at present. I can be reached at my email: email@example.com, skype: quenby.wilcox2, and cel.: 00.1.202-213-4911.
Founder – Global Expats
Founder – Safe Child International