Progressive Law, Regressive System

Photo: Marko Miletić

The Law on Prevention of Domestic Violence makes provisions that could be considered progressive. While the public reception of this law was shaped by the right-wing misogynist narrative, its implementation is made questionable by the foreseen evaluation and assessment methods, as well as the systematic socio-economic inequality of women.

The Law on Prevention of Domestic Violence that was put into effect on the 1st of June is the result of long-term negotiations between feminist organisations working with the victims of domestic violence and the state, which has thus far not done anything to stop the violence.

The essential novelty in the Law is that any individual who feels that domestic violence is jeopardising their life and health can call the police, which is to conduct an investigation and decide whether to immediately intervene or not. The new Law holds police, prosecutors and social workers legally responsible for inadequate reactions. Thus far, the only mechanisms controlling their work have been the non-binding recommendations of the ombudsman. Therefore, it is now harder for the authorities to make excuses based on the inefficiency of the judiciary and for the police to arbitrarily determine if the case involves violence or an ordinary “family dispute”.

Nevertheless, the media and social networking sites users have mostly focused on ways stalking and sexual harassment were incriminated, even though these criminal acts have already existed in the Criminal Law and have represented some of the criminal acts to which the Law indirectly applies. Similarly to the rightwing “destroying the family” catchphrase and the natural harmony between sexes the state should not interfere with, many comments such as “what if your boyfriend/father/brother gets falsely accused of sexual harassment” emerged, while the “funny” Facebook event named “mass catcalling and sexual advances on women” presents the pinnacle of toxic masculinity. These reactions are an example of not only a malicious spin but of spreading misogynist stereotypes of women prone to false allegations as well.

The question of elementary safety and protection of women’s integrity comes down to banal interpretations that men will be prosecuted if they buy women flowers contrary to their will, and the fact that women are also subject to prosecution under the same conditions as men are utterly ignored.

The “debate” in which men are implicitly recognised as perpetrators, but where violence is relativised as romantic (stalking) and common (harassment) male behaviour, testifies to patriarchy truly being a system of social relations that is based on control of women’s sexuality.

Stalking and sexual harassment

The substantial contribution of the new Law should be the decrease in institutional tolerance to violence and thereinafter indirectly and gradually the change of the social consciousness.

Bearing in mind that last year 12 out of 14 murdered women in the final hours of their lives contacted the police who did not react and that the institutions such as police and social work centres – as shown by the feminist organisations working with the victims of domestic violence – are much more sensitive to the question of private ownership of men (when the offenders are to be banned from their flats) then to the right of women to live violence-free lives, it is rather dubious to suggest that any lawful solution to this problem could deal unjust damage to the potential perpetrators.

The feudal-misogynist imagination anticipates that the Law, which is intended to prevent serious acts of violence in the families, is to pervert into some female oligarchy where men will get severely sentenced immediately upon being reported to the authorities. Even worse than that are the quasi-lawful arguments on the drawbacks of the wide definitions of the criminal act in question, based on the “concern” that the juridical system could be overcrowded with a high number of cases.

The broad definition of sexual harassment: “Sexual harassment is every verbal, nonverbal or physical behaviour intended at or representing degradation of an individual in the sphere of sexuality, which tends to cause fear or create hostile, humiliating or offensive environment” (article 182) – in fact harms the victims more than the offenders, since it is difficult to prove. The same applies to stalking.

The legal frame ignores the fact that being exposed to such forms of violence is accompanied by the feeling of humiliation and fear in victims because these kinds of acts are to be proved cumulatively – the victim is expected to continuously and clear-headedly gather evidence in order to prove that the disturbing acts were taking place contrary to her will.

Moreover, the very definition of sexual harassment, i.e. the judiciary avoiding naming it sexual1, diminishes the seriousness of this criminal act by not taking context where most of the sexual harassment happens into consideration (workplace, schools and universities). The judicial system is oblivious to the unequal power distribution between the victim and the perpetrator, which is not based on gender alone but is also economic and social/political.

In other words, the term “seksualno uznemiravanje” (referring to sexual activity), unlike “polno uznemiravanje” (referring to sexual characteristics of individuals), unambiguously points to the sexual behaviour being inadequate in a certain context.

What does the Law on Prevention of Domestic Violence really bring?

Firstly, the substantial changes can be seen in the very definition of violence as an act of psychological, physical, sexual or economic violence (article 3), as well as in the fact that it focuses on the rights and wellbeing of the victim rather than her relationship with the perpetrator. The most significant novelty lies in the duty of all the officials of relevant institutions – the police, public prosecution and social work offices – not just to go through specific training, but to have to bear responsibility in case of inadequate reaction or an absence of it to the reported violence as well.

A significant advance can also be seen in the Law foreseeing forming of the Coordination Group, whose task is to assemble once in every fifteen days and design individual support plan not just for the victims who were already granted an injunction, but also for all those who just reported violence. The consent of the victims on all the proposed measures applying to them is required, which is not the case for the measures applying to the perpetrators. The main political effect of these novelties lies in the recognition of the domestic violence as a public issue that has to be dealt with systematically rather than a question of individual’s (in most cases female) choice to remain in or leave a violent relationship.

However, the key problem is a lack of any kind of mechanism of democratic control over putting the Law into practice. Assessment and evaluation of its implementation will be carried out by a Council named by the Government, so it is questionable in the least if the evaluation process will have a minimum of necessary criticism and political will for its consistent execution. Moreover, the absence of democratic control can be seen in the fact that the prosecutors, judges, social workers and the police who will work on preventing violence and assessing risks are to be appointed by the heads of these institutions. Therefore, there is no mechanism limiting the already too great power of public prosecutors, judges and the police commissioners.

Thorough application of such a principally progressive law is hindered by the fact it is to be implemented in a deeply corrupt judicial system as well as a system disabling the economic independence and political emancipation of women, where every new crisis of capitalism and a corresponding package of “austerity measures” render them essentially vulnerable and precarious.

The role of the class in tackling domestic violence is demonstrated by the judicial practice: if an offender is providing for the children and the family, even if he is sexually abusing children, the status of a husband and a father presents a mitigating circumstance. Furthermore, political and social emancipation of women are equally important first of all because many women, even if they are financially independent, find it hard to leave the abuser, and secondly because the only way to develop social conditions that would enable the consistent implementation of the Law is through the emancipation of women and politicising the question of male and domestic violence.

Violence against women as a first-class political issue

But before commencing any debate on potential defects of the Law on Prevention of Domestic Violence we must not omit that this undoubtedly positive and principally epochal advance in domestic legislation was brought forward entirely due to efforts of the Autonomous Women’s Centre and other feminist organisations, i.e. months of their work on negotiations aiming at the state taking substantial measures in order to reduce the mortality rate of victims of family and intimate partner violence. Furthermore, we must not forget all those brutally murdered women whose lives pledged the state to agree to the negotiations with feminist organisations that had been pointing to the problem of femicide for years.

Public reaction to the Law on Prevention of Domestic Violence unveils not just the unenviable position of women in the society, but also the disorganisation of forces fighting for women’s equality – the left and the feminist movement. The course of the debate was shaped by the rightwing sentiment that turned the discussion on the Law, which intended to stop the most brutal outcomes of violence, into false allegations hysteria, while the only coordinated reaction to the high level of misogyny in our society came from the network of CSOs. Still, that kind of organising has significant political limitations concerning not just the number and the exclusion of most women from it, but also are the aims that can be achieved through negotiating with the state without those on whose lives decisions are taken being part of it questionable.

Revising the ’68 slogan that home is the most insecure place on Earth and revitalising emancipatory values on which it is based would indeed represent a quintessential step towards creating a political, not a legalistic response to violence.

Only if the left manages to recognise the issue of violence to women as a political question can the struggle against violence overcome the scope of liberal consensus, which only punishes manifestation of violence without trying to reduce oppression and exploitation that are the cause of it.

Translation from Serbian: Ivana Anđelković

  1. In Serbian, sexual only refers to sexual activity (seks), while for the division of organisms to male and female as differentiated with reference to the reproductive functions a different word is used (pol). The second root is used for defining sexual harassment (polno uznemiravanje) in the mentioned law (translator’s note).
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