Taking the Patriarchy to Court

 

Taking the Patriarchy to Court

The human rights organization JUMEN wants to combat violence against women in Germany through strategic litigation. What they want to achieve and why a case from Mexico serves as a model.

10.03.2022

Übersetzung

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Violence against women*, including its most extreme form, femicide, is a global problem that societies everywhere must confront. Although the forms and ways of dealing with violence vary depending on the local context, a look across borders can provide instructive insights into the fight against violence.

In many Latin American countries, social movements have long existed to resist femicide, violence against women, and the state’s ignorance or complicity in it. In 2007, relatives of murdered women from Mexico went to the Inter-American Court of Human Rights after years of protests. Supported by women’s and human rights organizations, they filed a complaint there because the Mexican state was doing too little to combat the alarmingly high number of femicides in parts of the country. With the ruling in this so-called „Cotton Field Case,“ the Inter-American Court set an example of how jurisprudence can recognize gender-based violence as a human rights violation and oblige states to combat it. Since then, the issue has been litigated in high courts around the world. Now an organization in Germany is also planning strategic litigation on the issue of femicide. The members of JUMEN are convinced: The German authorities are not doing enough to combat violence against women!

JUMEN – Juristische Menschenrechtsarbeit in Deutschland e.V. (Legal Human Rights Work in Germany) is a Berlin-based human rights organization that uses strategic litigation to combat human rights violations in Germany. It’s work focuses on refugees and migration, violence against women and the right to housing. More information (in German): www.jumen.org

JUMEN
Source: JUMEN

Lethal Violence against Women in Germany

But does Germany have a problem with femicide and violence against women at all? In a nutshell: yes. In 2020, 139 women were killed by their partner or ex-partner in Germany, and more than 24 women are dangerously physically injured by their partner every day**.1 This puts Germany in the middle of the pack across Europe. As of 2015, there were significantly more killings of women by their (ex-)partner or a family member per capita than in Spain, Italy, or the United Kingdom. It can also be observed that while the number of homicides in the EU as a whole is falling, the number of intentional homicides of women remains more or less the same.2 All these statistics are subject to a certain degree of uncertainty as there are no current studies on femicides in Germany. That is why JUMEN, among others, is calling for comprehensive studies on the subject, in order to be able to record the extent of the violence more precisely. At the beginning of this year, a major study was launched that will hopefully provide more clarity.3

What is a femicide?

Femicides (or sometimes feminicides) are killings of women because they are women. Femicides are a global problem, but differ according to social context. Motives vary from the assumed inferiority of women (e.g., in the killing of female babies), hatred of women (as in terrorist attacks by so-called incels), or punishment for deviating from role models considered feminine (e.g., in attacks against queer women or so-called „honor killings“). The most common form of femicide in Germany, however, is the so-called separation killing by the (ex-)partner. The perpetrator does not recognize the independence of the woman and her right to separate from him. This is based on the patriarchal concept of the woman as „property“.

While there have been major protests against femicides in some European countries in recent years, the issue has received very little attention in Germany. Only slowly is it becoming accepted that media reports no longer refer to „family drama“ or „jealousy act“ in a trivializing manner. But many people in Germany still see violence against women as a problem of „others“. When hearing the term femicide, many people first think of Latin America, and when women are murdered out of patriarchal ideas, they think of so-called „honor killings“. Many people in Germany do not seem to be aware that femicides by (ex-)partners, like domestic violence, occur in all social classes and regardless of background.

"Women have the right to equal access to justice"

The organization JUMEN – Juristische Menschenrechstarbeit in Deutschland e.V. (Legal Human Rights Work in Germany) has been working for years on the topic of violence against women and in recent years has focused primarily on the influence of gender stereotypes on court proceedings. Since last year, the organization’s jurists have been preparing strategic litigation on the topic of femicides. The German state, they argue, is not doing enough to protect the women affected and is thus ultimately violating their right to life. Therefore they are considering the options if having this established in court.

Strategic litigation refers to legal action in an area where a structural problem is seen, e.g. a systematic violation of human rights. Strategic litigation aims to achieve social change that goes beyond the individual case, e.g. by setting precedents, through public attention or by judicially obligating legislators to make changes.

But how could the state protect women from femicides? There are a number of measures that women’s and human rights organizations are calling for, not only to protect women from femicide, but also to improve help for victims of domestic and sexual violence overall. Many of these points have been known for a long time and have even been valid law in Germany since 2018: in form of the Istanbul Convention and the even older UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Germany has signed and ratified both international treaties. Nevertheless, the Istanbul Convention Alliance, an association of women’s counseling centers and women’s rights organizations, in which JUMEN is also involved, complains that parts of the treaties have not been sufficiently implemented in Germany.4 For example, most femicides do not happen out of nowhere, but have a history of abusive relationships and violence. In recent years, about 60% of the perpetrators were already known to the police before the crime.5 Therefore, if counseling centers and protective institutions such as women’s shelters were better positioned and, above all, better financed, affected women could get help more easily. In addition, the Istanbul Convention Alliance calls for government agencies, such as the police, to be better trained so that they can correctly assess the danger to victims and take effective protective measures.6 „In order for those affected to turn to state institutions, it is necessary to trust that these state institutions take them seriously and, above all, take effective measures to protect them“, explains Navin Mienert, who works in the project team on violence against women at JUMEN. „This requires not only better training in this area, but also that gender stereotypes and patriarchal ideas are questioned in the responsible institutions. Only then can the situation and the danger for the women concerned be better assessed.“ It is repeatedly reported from the field that gender stereotypes play a role in police work. Similar findings are evident from observations and studies on gender stereotypes in court, where however only a fraction of cases of violence against women end up. These studies show that judges, prosecutors, and defense attorneys, as well as some expert witnesses who are supposed to judge the credibility of the victim’s witness, often reproduce patriarchal ideas, gender stereotypes, and rape myths. For example, questions about the victim’s sexual history, her behavior after the crime, how she dressed, or a certain sympathy for the perpetrator are not uncommon. These are often based on a stereotypical conception of a supposedly „correct“ behavior as a woman or victim. Ultimately, ignorance about the dynamics of sexualized or domestic violence and patriarchal ideas make it difficult to correctly assess these acts. In addition, such questions are often difficult for the women involved to bear and can have a retraumatizing and revictimizing effect e.g. by blaming the victims for the crime. Fear of this questioning and evaluation in court also discourages women from pressing charges.7 „Women have the right to equal access to justice,“ is how Kaja Deller, member of the JUMEN-team sums up the organisation’s demand. “With the Istanbul Convention, for example, which is applicable law in Germany, there is also a legal framework for this”, says Navin Mienert. „However, there is a lack of comprehensive implementation, among other things.“ But such issues are rarely addressed in legal education, so many judges and lawyers would never have dealt with them. Thus, many fall back on their everyday understanding and outdated argumentation patterns in which sexist stereotypes are anchored. According to Kaja Deller, this could be changed through better education and training. And precisely through strategic processes in which it is made clear that human rights are violated if gender-based violence is not recognized, uncovered and prosecuted as such. Through strategic litigation, JUMEN hopes, courts and the public could also increase pressure on policymakers to improve prevention, counseling, and protection against gender-based violence. In addition, lawsuits could set an example for similar cases, spreading legal reasoning that exposes patriarchal structures and considers them in the adjudication.

Femicides as human rights violations - the "Cotton Field Case".

Here, the ruling of the Inter-American Court in the so-called „Cotton Field Case“ is a role model. There, for the first time, an international court judged femicides to be human rights violations based on structural discrimination against women. The case concerned the killing of three young women in Ciudad Juárez, Mexico, whose bodies had been found in a cotton field. Their fate was not an isolated case: since the 1990s, hundreds of young women and girls have been kidnapped, cruelly abused and murdered in the city. The authorities showed no particular interest in solving these crimes; on the contrary, the families of the dead were threatened and urged to take no further legal action. In its ruling, the Court stated that attitudes of contempt for women were not only the basis for the femicides, but also a cause of the lack of clarification. Structural sexism in the form of gender stereotypes and the idea of women’s inferiority had therefore led to systematic human rights violations.8
Femizide 2
“Roundabout of the women who fight” in Mexico City, feminist antimonument established in 2021 in honour of women combating femicide, source: Viv Lynch, flickr

Is going to court the right path?

The outcome of the Cotton Field Case shows: Even a successful court case does not end the violence. The relatives of those killed received their compensation, but otherwise the Mexican state dragged its feet in implementing the verdict. There are still almost a thousand femicides a year in Mexico (according to the official definition), and the problem is still talked down in politics and often negligently investigated.9 However, in addition to some changes in the law, the Inter-American Court’s ruling gave a boost to the feminist movement in Mexico, which has been fighting for years to end impunity. Moreover, the Cotton Field Case serves as a precedent for femicide trials from around the world. So the question must always be asked as to what can be achieved with strategic litigation and what costs are involved – especially for the victims or their relatives, who may have to testify in a trial lasting years in several courts, deal with the crime again and again, and possibly be exposed to retraumatization. Especially in Germany, where collective lawsuits are hardly possible, strategic litigation always faces the problem that a single case and individuals are on trial for something larger and bear a great responsibility. Strategic litigation always moves in a field of tension between individual and collective interests and needs. Thus, although the case is about the violation of an individual human right, it is caused by structural social conditions. Here, the selection of the case and the people affected is also a difficulty. For example, is it the goal to show that violence against women and the lack of protection against it affect all women by selecting the case of a basically very privileged woman? Or is it about showing that women affected by multiple discrimination have special difficulties in asserting their rights? Moreover, strategic litigation requires a lot of resources and expertise. Not everyone can simply do strategic litigation. This puts a huge responsibility on the organizations that choose the issues and set the goals. In order to always keep the interests of those affected in mind, close exchange and good networking with representatives of those whose rights one wants to defend is necessary. Therefore this is a large part of JUMEN’s work. At the same time, one must argue within the existing laws and institutions. This not only leaves little room for utopian ideas, but also carries a certain danger of getting too deeply involved in legal definitions and technical issues and thus losing sight of major political demands. But nonetheless, a court case can attract a great deal of attention and thus also lend greater force to political demands. And – especially when it challenges a country’s self-image as a stronghold of human rights and equality – it can bring an issue to the collective consciousness and trigger a debate. Strategic litigation alone cannot change the world. Patriarchal structures and thought patterns cannot be eliminated in court only. But it is a means to generate attention, put pressure on policymakers, and advance a more equal application of the law. For profound change, however, strategic litigation needs allies on the streets, in politics, and throughout society.

* In this article, in the context of gender-based violence, the term women is used without an asterisk (*)  and rather than other terms in order not to obscure the misogynistic nature of this specific form of violence. This is meant to include anyone who identifies or is identified as women and is therefore affected by violence. This may reproduce a third-party definition, but I didn’t find a better term to avoid this

 

** Men are also affected by intimate partner violence, but they make up a much smaller proportion of victims. Therefore, this article is about the much more widespread form of domestic violence against women, that is generated by patriarchal thoughts and structures.

Author:
Nele Feuchter

Sources

  1. Bundesverband der Frauenberatungsstellen und Frauennotrufe in Deutschland – bff. Tötung von Frauen- Merkmale und Tatsachen. Online: https://www.frauen-gegen-gewalt.de/de/infothek/toetung-von-frauen-femizid.html (last access: 14.02.2022)
  2. Bona, Marzia/Burba, Alberto. Frauenmord in Europa: Ein Vergleich zwischen Unterschiedlichen Ländern. Online: https://www.europeandatajournalism.eu/ger/Nachrichten/Daten-Nachrichten/Frauenmord-in-Europa-Ein-Vergleich-zwischen-unterschiedlichen-Laendern (last access: 14.02.2022)
  3. Eberhard Karls Universität Tübingen: Femizide in Deutschland – Eine empirisch-kriminologische Untersuchung zur Tötung an Frauen. Online: https://uni-tuebingen.de/fakultaeten/juristische-fakultaet/forschung/institute-und-forschungsstellen/institut-fuer-kriminologie/forschung/gewaltkriminalitaet/femizide-in-deutschland/ (last access: 14.02.2022)
  4. Bündnis Istanbul-Konvention (2021). Alternativbericht zur Umsetzung des Übereinkommens des Europarats zur Verhütung und Bekämpfung von Gewalt gegen Frauen und häuslicher Gewalt. Online: https://www.buendnis-istanbul-konvention.de/wp-content/uploads/2021/03/Alternativbericht-BIK-2021.pdf (last access: 14.02.2022)
  5. ibd.
  6. ibd.
  7. Geschlechterstereotype im Gericht, z.B. Stelzner, Lena/Minuth, Anne-Sophie (2018). Genderstereotype in Sexualstrafverfahren – Eine Untersuchung duch Prozessbeobachtungen. Forum Recht 03/18, S. 89 – 93
  8. Loyola Law School. González et al. („Cotton Field“) v. Mexico, Case Summary. Online: https://iachr.lls.edu/sites/default/files/iachr/Cases/Gonzalez_et_al_-Cotton_Field-_v_Mexico/Gonzalez%20et%20al.%20v.%20Mexico.pdf (last access: 14.02.2022)
  9. Amnesty International (2021). Mexico: Failings in investigations of feminicides in the State of Mexico violate women’s rights to life, physical safety and access to justice. Online: https://www.amnesty.org/en/latest/news/2021/09/mexico-failings-investigations-feminicides-state-mexico-violate-womens-rights-life-physical-safety-access-justice/ (last access: 14.02.2022)

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