Therapeutic Jurisprudence and Overcoming Violence Against Women

Therapeutic Jurisprudence
and Overcoming Violence

Against Women
Debarati Halder
Centre for Cyber Victim Counselling (CCVC), India & Unitedworld School of
Law, India
K. Jaishankar
Raksha Shakti University, India
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Editorial Advisory Board
Johnson Ayodele, Lagos State University, Nigeria
B. M. Ezra, Academy of Prisons and Correctional Administration, India
Esther Friedman, Linnaeus University, Sweden
Martine Herzog-Evans, University of Reims, France
Syed Mahfujul Haque Marjan, University of Dhaka, Bangladesh
Munir Ahmad Mughal, Lahore High Court, Pakistan
Maran Nandan, Multimedia University, Malaysia & Marsh Lawyers, Australia
Michael Pittaro, American Military University, USA
A. Mathan Raj, Academy of Prisons and Correctional Administration, India
Natti Ronel, Bar Ilan University, Israel
Deeksha Bajpai Tewari, University of Delhi, India
Lorenn Walker, University of Hawaiì, USA & Honolulu Community College, USA

Table of Contents
Foreword.............................................................................................................................................. xvi
Preface................................................................................................................................................xviii
Acknowledgment............................................................................................................................... xxiv
Section 1
Traditional Practices and Therapeutic Jurisprudence
Chapter 1
Harmful Traditional Practices, Laws, and Reproductive Rights of Women in Nigeria: A
Therapeutic Jurisprudence Approach...................................................................................................... 1
Yomi Rasul Olukolu, University of Lagos, Nigeria
Chapter 2
Violence Against Women and Therapeutic Jurisprudence in Egypt: An Islamic Approach................. 15
Sawsan El Sherif, American University in Cairo, Egypt
Chapter 3
Love Marriages, Inter-Caste Violence, and Therapeutic Jurisprudential Approach of the Courts in
India....................................................................................................................................................... 30
Debarati Halder, Centre for Cyber Victim Counselling (CCVC), India & Unitedworld School
of Law, India
K. Jaishankar, Raksha Shakti University, India
Section 2
Restorative Justice, Violence Against Women, and Therapeutic Jurisprudence
Chapter 4
Restorative Justice and Womens Experiences of Violence in Nigeria.................................................. 44
Chapter 5
Restorative Justice and Violence Against Women in the United States: An Effort to Decrease the
Victim-Offender Overlap and Increase Healing.................................................................................... 63
Lorenn Walker, University of Hawaii, USA & Honolulu Community College, USA
Cheri Tarutani, University of Hawaii Manoa, USA
Chapter 6
Violence Against Women Programmes in a North-Eastern French City: Issues of Safety,
Collaboration, Gender, McJustice, and Evidence-Based Practices.................................................... 85
Chapter 7
Reconciling Restorative Justice with the Law for Violence Against Women in Europe: A Scheme
of Structured and Unstructured Models............................................................................................... 106
Theo Gavrielides, The IARS International Institute, UK & Restorative Justice for All
Institute, UK
Chapter 8
Pornography and Global Sex Trafficking: A Proposal for Therapeutic Jurisprudence as Court
Innovation in the United States............................................................................................................ 121
Michael Pittaro, American Military University, USA & East Stroudsburg University, USA
Section 3
Issues of Workplace and Therapeutic Jurisprudence
Chapter 9
Sexual Harassment of Women in Workplace in India: An Assessment of Implementation of
Preventive Laws and Practicing of Therapeutic Jurisprudence in New Delhi..................................... 135
Amit Gopal Thakre, Raksha Shakti University, India
Chapter 10
Procedural Remedies as Continuing Violations and Therapeutic Jurisprudence as Best Practice to
Prevent Workplace Harassment in the United States........................................................................... 147
Marta Vides Saade, Ramapo College of New Jersey, USA
Chapter 11
Female Victims of Labor Exploitation Vis--Vis Labor Courts in the Southern Tamil Nadu, India:
Therapeutic Jurisprudence Solutions for the Prevention of Secondary Victimization........................ 171
R. Rochin Chandra, Raksha Shakti University, India
Chapter 12
Toxic Workplace Environment and Its Impact on Women Professors in the United States: The
Imperative Need for Therapeutic Jurisprudence Practices in Higher Education................................. 182
Roslin Growe, University of Louisiana Lafayette, USA
William A. Person, Alabama State University, USA
Chapter 13
Sexual Violence in the University Campuses of Delhi, India, and Therapeutic Jurisprudence for
Justice to Victims: A Qualitative Study............................................................................................... 198
Hina Kousar, YWCA Dallas, USA

Section 4
Modern Practices and Therapeutic Jurisprudence
Chapter 14
International Criminal Justice and the New Promise of Therapeutic Jurisprudence: Prospects and
Challenges in Conflict-Related Sexual Violence Cases....................................................................... 214
Jean de Dieu Sikulibo, University of Strathclyde, UK
Chapter 15
Can Therapeutic Jurisprudence Improve the Rights of Female Prisoners?......................................... 248
Helen Crewe, Independent Researcher, UK
Chapter 16
Women and the Impact of the Shifting Jurisprudence in New Delhi, India: How Therapeutic for
Urban Slum-Dwellers?......................................................................................................................... 264
Divya Priyadarshini, University of Delhi, India
Chapter 17
Revenge Porn Against Women and the Applicability of Therapeutic Jurisprudence: A
Comparative Analysis of Regulations in India, Pakistan, and Bangladesh......................................... 282
of Law, India
Compilation of References................................................................................................................ 293
About the Contributors..................................................................................................................... 335
Index.................................................................................................................................................... 342
Detailed Table of Contents
Foreword.............................................................................................................................................. xvi
Preface................................................................................................................................................xviii
Acknowledgment............................................................................................................................... xxiv
Section 1
Chapter 1
Harmful Traditional Practices, Laws, and Reproductive Rights of Women in Nigeria: A
Therapeutic Jurisprudence Approach...................................................................................................... 1
Yomi Rasul Olukolu, University of Lagos, Nigeria
There are many traditional practices in Nigeria that literally affect womens reproductive rights within
and without marriages ranging from genital mutilation, harmful traditional practices to control women,
early girl marriage, one sided divorce rights in Islamic marriage to men alone, nutritional taboos and
other uncouth pregnancy related practices, to unfavorably widowhood practices and inheritance. This
chapter intends to bring to the fore these traditional practices which impede the womens reproductive
rights in Nigeria with emphasis on the study of the role of law as a therapeutic agent within the therapeutic
jurisprudential context. This is done with a view to calling on the Nigerian government to wake up to its
responsibility by enacting local laws specifically on womens rights generally or domesticating the various
international instruments which the country had so far voluntarily ratified on womens reproductive rights.
Chapter 2
Violence Against Women and Therapeutic Jurisprudence in Egypt: An Islamic Approach................. 15
Sawsan El Sherif, American University in Cairo, Egypt
It has been observed by researchers that when women are targeted by domestic violence, it may also
affect their children and their families. This chapter suggests that along with clinical and psychological
therapy, spiritual therapy must also be used to address the challenge. This chapter states that Islamic
jurisprudence offers solution for combating violence against women. It not only offers spiritual guidance
and healing, but also sets rules for peaceful environment to prevent violence against women. Islamic
jurisprudence also suggests punishment for violators of such rules. The chapter explores this therapeutic
jurisprudential approach of Islamic jurisprudence and explores ways and means to combat violence
against women in Egyptian context.
Chapter 3
Love Marriages, Inter-Caste Violence, and Therapeutic Jurisprudential Approach of the Courts in
India....................................................................................................................................................... 30
of Law, India
India is a country of multiple religion, castes, and linguistic groups. The Indian constitution guarantees
for equal treatment of laws irrespective of religion, caste, creed etc. Similarly, the modern marriage laws
provide opportunity to marry inter-caste or inter religion. In modern India there is a huge growth of inter-
religious, inter-caste, cross cultural love marriages, however, many societies in different parts of India
are still reluctant to accept such mixed marriages. Couples of such mixed marriages may suffer various
sorts of victimization including violent assaults. Children of such mixed marriages may also suffer social
ostracism. Also, due to social attitude, such mixed marriages may miserably fail. This chapter aims to
find out whether courts in India have Therapeutic Jurisprudential role in saving such marriages and how
the implementation of such TJ approach may be made possible.
Section 2
Chapter 4
Restorative Justice and Womens Experiences of Violence in Nigeria.................................................. 44
The principles of restorative justice (RJ) and traditional African mediatory practices share a similar vision
about giving social healing to offenders, victims, and communities in the aftermath of victimization.
Regrettably, colonialism drove Africas traditional restoration-based justice initiative out by forcefully
replacing it with its retribution-oriented alternative. The chapter theoretically examines RJ vis--vis
womens experiences of violence in Nigeria. It obtained its data mainly from secondary sources. It argues
that culture prevents numerous cases involving the interests of women, as wives or intimate partners
of men, from public negotiation especially with or before strangers in Nigeria. This chapter concludes
that RJ is an innovative means of returning to and modernizing Africas history of social healing to ease
access of Nigerians to justice, regardless of gender.
Chapter 5
Restorative Justice and Violence Against Women in the United States: An Effort to Decrease the
Victim-Offender Overlap and Increase Healing.................................................................................... 63
Lorenn Walker, University of Hawaii, USA & Honolulu Community College, USA
Cheri Tarutani, University of Hawaii Manoa, USA
Opposition to using restorative justice to address violence against women mainly concerns the fear that
women will be re-victimized if they engage with men who endangered them. While law enforcement
and criminal justice approaches are necessary to address violence against women, womens choices
about when and how to use law enforcement and prosecution to address violence against them, should be
respected. Exclusive criminalization of violence against women has not protected many and has further
harmed marginalized and Black people. To address intimate partner violence, victims needs for healing
must be met including when the victim-offender overlap applies and an offender is also a victim. Ignoring

healing perpetuates violence. Applying restorative justice and its foundational questions, during direct
meetings between victims and offenders, or when they meet separately, can address the victim-offender
overlap, reduce reliance on punishment, and increase healing.
Chapter 6
Violence Against Women Programmes in a North-Eastern French City: Issues of Safety,
Collaboration, Gender, McJustice, and Evidence-Based Practices.................................................... 85
In 2013, the author was commissioned by the mayor of City A, North East France, by the prosecutor
and the main local social work and reentry charity, Association A, with the mission to evaluate the host
of local programmes addressing violence against women (VAW). This qualitative study is still ongoing
for one more year, but has already yielded very significant findings, for if at first glance, the desire to do
tackle VAW is shared by most practitioners (with the notable exception of family courts), in the field,
the reality is quite disheartening. Our first finding is that most practitioners are oblivious to the dangers
incurred by battered women and virtually no efficient measure is taken in this respect. Another finding
is that practitioners are not organized in collaborative networks and operate sequentially or parallel to
each other with virtually no collaboration or information sharing. We also worryingly found a systematic
denial of the gendered nature of VAW, with many practitioners clearly believing they are essentially
situational with shared responsibility.
Chapter 7
Reconciling Restorative Justice with the Law for Violence Against Women in Europe: A Scheme
of Structured and Unstructured Models............................................................................................... 106
Theo Gavrielides, The IARS International Institute, UK & Restorative Justice for All
Institute, UK
Violence against women (VAW) has slowly found its place in many international policies and conventions.
The objectives, enforceability and foci of these international initiatives vary depending on a number of
factors including political, sociological, economical and legal. However, they share one common feature.
They are all based on the legal positivistic understanding of delivering justice. This chapter accepts this
understanding and moves on to argue that what is also undeniable is that justice has a normative concept
that is universal truth. The chapter proceeds to illustrate that Restorative Justice (RJ) outside the law has,
is and will continue to manifest itself even for VAW cases. Ultimately, the chapter aims to contribute to
the books general objective of advancing the multi-dimensional growth of therapeutic jurisprudence
with a gender sensitive and gender focused approach.
Chapter 8
Pornography and Global Sex Trafficking: A Proposal for Therapeutic Jurisprudence as Court
Innovation in the United States............................................................................................................ 121
Michael Pittaro, American Military University, USA & East Stroudsburg University, USA
The primary purpose of drawing international attention to this chapter is to truly understand and
subsequently address the abhorrent role that pornography and prostitution play in transnational sex
trafficking operations. Pornography, especially when coupled with prostitution unquestionably perpetuates
sex trafficking particularly in the commercial sexual exploitation of women and girls across the world, yet
the exact role pornography and prostitution play remains largely misunderstood and mostly speculative

within the practitioner and scholar literature. This chapter will address those concerns as well propose
plausible recommendations based on the research to date in order to assist and support those who
are dedicated and committed to eradicating sex trafficking by infiltrating pornographers who create,
disseminate, and participate directly and indirectly in the sexual exploitation and abuse of women and
children on a global-scale. Also, this chapter will emphasize the need for TJ as a form of Court Innovation
in the United States.
Section 3
Chapter 9
Sexual Harassment of Women in Workplace in India: An Assessment of Implementation of
Preventive Laws and Practicing of Therapeutic Jurisprudence in New Delhi..................................... 135
Amit Gopal Thakre, Raksha Shakti University, India
Therapeutic Jurisprudence is legal conscience seeking for a fully-functional system that involves
collaboration of sensitized judiciary, academicians and practitioners, working in a congenial environment
which collectively facilitates in healing process of the victim. Similar to the principles of Therapeutic
Jurisprudence, preventive laws too aims for more humane approach with regard to legal matters. In fact,
preventive laws may also be viewed as pro-therapeutic jurisprudence. In a more comprehensive and
treatment oriented legal service system, prevention has to have prominence over healing goals. Laying
emphasis on preventive law does not negate the importance of healing objectives set forth by Therapeutic
Jurisprudence rather preventive laws supplements to the overall aim of enabling healing power of
law. An ideal system would be wherein preventive laws are implemented effectively and therapeutic
jurisprudence works efficiently. This chapter aims to assess the implementation of preventive laws and
practicing of therapeutic justice for victims of sexual harassment in New Delhi, India.
Chapter 10
Procedural Remedies as Continuing Violations and Therapeutic Jurisprudence as Best Practice to
Prevent Workplace Harassment in the United States........................................................................... 147
Marta Vides Saade, Ramapo College of New Jersey, USA
The well-being of adversaries and witnesses participating in workplace gender and sex discrimination
actions filed under federal and state laws in the United States is generally not considered as important.
These actions are typically initiated within the personal workplace where the offending conduct
presumably occurred, and proceed in an already tension filled atmosphere. The effect is that the procedure
itself becomes an additional violation harming claimants through overt and micro-aggressions. These
practices have focused on rule not relational principles. Conventional law and policy frameworks
inadequately address the harms these processes promote. This chapter will move from the limitations
of rights-based regulation to a jurisprudence of imperfect obligations and vulnerability, incorporating
therapeutic understandings of needs and relationships, as the more inclusive and equitable foundation
of institutional practices. It offers best practices models in therapeutic jurisprudence as alternatives
to resolve workplace conflicts.

Chapter 11
Female Victims of Labor Exploitation Vis--Vis Labor Courts in the Southern Tamil Nadu, India:
Therapeutic Jurisprudence Solutions for the Prevention of Secondary Victimization........................ 171
R. Rochin Chandra, Raksha Shakti University, India
The exploitation of young female workers is rampant in the spinning and textile units of southern Tamil
Nadu, India, under the notorious Sumangali Scheme, which has features similar to bonded labor.
Until now, an increasing number of studies have been conducted to examine the characteristics of this
abusive scheme, including the patterns of victimization and its subsequent effect on the physical health
of sumangali workers. Yet, very little is known as to how legal procedures, and the roles or actions of
legal actors within industrial courts, commonly known as labor courts, impacts the emotional life and
psychological well being of these female laborers. In this chapter, we claim that sumangali victims
often experience secondary victimization as a result of their contact with labor courts, and most often,
due to their relative failure to access labor courts. We aim to address these issues from TJ perspectives
and provide suitable solutions that may reduce the incidence of secondary victimization (among the
sumangali victims).
Chapter 12
Toxic Workplace Environment and Its Impact on Women Professors in the United States: The
Imperative Need for Therapeutic Jurisprudence Practices in Higher Education................................. 182
Roslin Growe, University of Louisiana Lafayette, USA
William A. Person, Alabama State University, USA
Higher education, often referred to as the ivory tower, gives the grand illusion of an environment
of learned individuals with intellectual agendas and pursuits. This specialized environment is not a
resistance-free fortress immune from toxic behaviors and unfair internalized institutional structures.
In this chapter, the authors provide some theoretical perspectives of a toxic workplace environment.
Then the authors focus on a review of literature on toxic leadership; the conceptualization of workplace
bullying; the prevalence of academic mobbing; and the effects of toxicity on women professors in the
academy. The final sections of the chapter include a discussion of implications for policy development
in a toxic workplace; implications for research on toxic university environment; and concluding remarks.
Chapter 13
Sexual Violence in the University Campuses of Delhi, India, and Therapeutic Jurisprudence for
Justice to Victims: A Qualitative Study............................................................................................... 198
Hina Kousar, YWCA Dallas, USA
This chapter explores the existence of therapeutic jurisprudential approach in the present laws and
guidelines that may address sexual harassment in the university campuses in Delhi, India. It has been
seen that sexual harassment in the college campuses has often been overlooked as courtship problems
between young adults. In this course, the trauma and victimization of women had also been overlooked.
This chapter suggests that university campus sexual harassment may be exhaustive and it may include
various forms of harassment including physical touching, verbal sexual bullying to even graver offences
like molestation. This chapter researches on several forms of sexual harassments which are prevalent in
the university campuses and which may defy the existing regulations due to the patriarchal social setup.
It further researches on needs of therapeutic jurisprudence to deal with such problems.

Section 4
Chapter 14
International Criminal Justice and the New Promise of Therapeutic Jurisprudence: Prospects and
Challenges in Conflict-Related Sexual Violence Cases....................................................................... 214
Jean de Dieu Sikulibo, University of Strathclyde, UK
For centuries, rape and other forms of sexual violence have always been an integral aspect of warfare.
Even so, it is rather recently that these practices have been recognized as crimes and prosecutions
undertaken by international criminal tribunals. Whilst the ad hoc international tribunals for the former
Yugoslavia and Rwanda did not take an integrative approach to victims in the criminal justice process,
the Rome Statute of the International Criminal Court (ICC) took a victim-centred approach by setting out
some provisions allowing victims to actively participate in proceedings beyond their traditional role of
witnesses. This chapter sets out to critically examine the effectiveness of the ICC victims rights framework
in achieving this objective in sexual violence cases. Drawing on the complex nature of experiences of
victims of such crimes, this chapter engages with the various aspects of the relatively recent approach
of victims participation in international criminal justice process to highlight prospects and challenges
in facilitating the healing process of victims of such crimes.
Chapter 15
Can Therapeutic Jurisprudence Improve the Rights of Female Prisoners?......................................... 248
Helen Crewe, Independent Researcher, UK
Women offenders may suffer from numerous violations of basic rights within the prison system. They are
vulnerable for sexual assaults including rape, molestation and sexual bullies. They may also lack basic
medical and hygienic amenities. While international conventions and rules like United Nations Rules for
the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders offers guidelines
for protection of the rights of women prisoners, still there has been no research which explores the
therapeutic jurisprudential values of such rules. This chapter suggests that the therapeutic jurisprudential
approach of the domestic and international laws, conventions and guidelines must be understood by the
practitioners, activists and other stakeholders who may in turn; make use of the therapeutic jurisprudential
values to improve the condition of women prisoners.
Chapter 16
Women and the Impact of the Shifting Jurisprudence in New Delhi, India: How Therapeutic for
Urban Slum-Dwellers?......................................................................................................................... 264
Divya Priyadarshini, University of Delhi, India
Through an ethnographic research in the resettlement colonies of Delhi, India, the present study aims
to address the effect of the judicial pronouncements in the lives of the evicted population with main
focus on the women residing in such colonies. This study aims to understand from the perspective of the
various judgements and the victims of evictions, the healing effect it has had on the victims if any. An
analysis of the shifting jurisprudence in case of the urban poor will help us better understand the gaze
with which they are seen. Also, whether women and issues of violence and violation of rights of women
are understood, expressed, prevented and healed or not needs to be understood.

Chapter 17
Revenge Porn Against Women and the Applicability of Therapeutic Jurisprudence: A
Comparative Analysis of Regulations in India, Pakistan, and Bangladesh......................................... 282
of Law, India
It must be noted that the modern legal history of India, Pakistan and Bangladesh may show that all these
three countries have framed their penal laws from colonial British Penal laws which was the governing
law of the Indian peninsula in pre-independence era (prior to 1947). As such, the present criminal laws
of these countries including those dealing with violence against women (including physical and online)
may have similar features. This chapter argues that South Asian countries including India, Bangladesh,
and Pakistan do not have focused laws on dealing with the issue of revenge porn targeting women.
Further, the socio-economic conditions of these countries being quite the similar, it may be noted that
women victims of revenge porn may neither prefer to seek police help due to fear of reputation damage.
This chapter therefore aims to research as whether the application of Therapeutic Jurisprudence in such
cases may benefit the victims.
Compilation of References................................................................................................................ 293
About the Contributors..................................................................................................................... 335
Index.................................................................................................................................................... 342
xvi
Foreword
NEW FRONTIERS IN THERAPEUTIC JURISPRUDENCE
It is a real pleasure and indeed a privilege to prepare a brief foreword to this excellent collection of es-
says, Therapeutic Jurisprudence and Overcoming Violence Against Women, edited by Debarati Halder
and K. Jaishankar. The volume is a therapeutic jurisprudence (TJ) milestone in a number of ways:
1. It may, for example, be the first-ever explicitly TJ book-length work devoted to womens issues.
2. It is surely the richest and most extensive international and comparative TJ work yet published,
tackling womens legal matters not only in the more TJ-familiar terrain of the US, UK, and France,
but also in nations such as India (where the editors reside), Egypt, Nigeria, Pakistan, and Bangladesh.
3. The essays here make a new contribution as well to the interdisciplinary development of TJ, using
but going beyond the familiar fields of psychology, criminology, and social work to craft pro-
posed justice system reforms. Here, for example, chapter authors look also to religion, tradition,
and anthropology to aid their analyses. In one chapter regarding Nigeria, for instance, the author
notes how traditional African mediation-like methods were, because of colonialism, driven out by
a retributive criminal justice system, and how reformers are now trying to recapture aspects of the
traditional healing approach through the modern garb of Restorative Justice initiatives.
4. Importantly, the book stretches the substantive scope of TJ coverage. Familiar urgent themes are
of course included (e.g., reproductive rights; debates regarding mediation and power imbalance in
cases of battering; sexual violence and harassment in higher education settings; pornography and
trafficking), but so are newer topics such as cyber bullying, the eviction and displacement of urban
slum-dwellers, the secondary victimization of female workers by labor courts, and the role of the
courts in tackling violence related to love marriage among Indians of different castes or religions.
Overall, the importance of each individual chapter is obviously to improve the wellbeing of women
in given countries and socio-legal settingsand in the hope that the individual scholarship may also
be of use in teaching as well as in reform efforts in other nations with roughly similar cultural contexts.
Those are naturally very worthwhile goals. But taken as a whole, the books importance relates as well
to the very development and expansion of the field of therapeutic jurisprudence itself, as illustrated im-
mediately above in the four enumerated paragraphs.
The last of the above paragraphsthe fourth one relating to the expanding substantive scope of TJ
in tackling societal problems---is particularly noteworthy in exposing the very trajectory of TJ from
its beginning. TJ technically began in the substantive area of mental health law, proposing the study of
Foreword
the law itself as a potential therapeutic agent, and defining the law as consisting of legal rules, legal
procedures, and the roles of legal actors (judges, lawyers, mental health and other professionals work-
ing in a legal context). In short order, academics and others noted the potential applicability of the TJ
framework to areas of law beyond mental health lawfirst, to areas closely related, such as criminal
law, juvenile law, family law and the like. And later, the leap was made to personal injury law, health
law, employment law, and broadly across the legal spectrum.
The present volume is evidence of how, armed with the TJ lens, creative and passionate academics
and professionals can continue to push the envelopeapplying TJ to areas and problems far beyond the
legal niche of its creation, and well beyond the knowledge and experience of any given TJ scholar. Ac-
cordingly, this seems like a convenient place for me to end this foreword, to congratulate the authors and
editors, to welcome the readers of the volume, and to encourage all to join the TJ effort, easily begun by
joining the user friendly TJ Blog at www.mainstreamtj.wordpress.com The Blog has an advisory group
of persons from 18 countries, TJ work is now in something like 14 languages, and the community is a
welcoming one. The next frontier awaits all interested readers.
David B. Wexler
University of Puerto Rico, Puerto Rico & University of Arizona, USA
xvii
xviii
Preface
Therapeutic Jurisprudence (TJ) in its technical sense may mean that philosophy of law which highlights
the healing power of law as a social force rather than its harsh retributive power. According to Professor
David B. Wexler, the proponent of Therapeutic Jurisprudence, TJ deals with laws therapeutic and ant-
therapeutic consequences and advocates for therapeutic use of law, which itself is a social force (Wexler,
2003). It focuses on laws impact on emotional life and psychological wellbeing of individuals who are
to be governed by any particular law/s. In brief, Therapeutic Jurisprudence is the study of the role of
the law as a therapeutic agent (Wexler & Winick, 1996). This book titled Therapeutic Jurisprudence
and Overcoming Violence Against Women, essentially deals with laws role as a therapeutic agent for
the causes of women.
Violence against women (VAW) is steadily rising in the present world. Violence against women may
include domestic abuse, intimate partner violence, sexual harassment at workplace, women and child sex
trafficking, female foeticide, online gender violence etc. Even though existing UN documents includ-
ing those like Declaration on the Elimination of Violence Against Women (A/RES/48/104) adopted by
UN General assembly in 1993, Convention on Elimination of All Forms Declarations Against Women
(CEDAW), adopted by the UN General Assembly on 1979 etc, have motivated many countries to create
better laws for protection of women, the laws inherent positive aims may have failed miserably due to
the failure in proper understanding of the same by legal actors including the police, the lawyer or even
the courts. In many occasions, women victims may face discrimination due to bad drafting of the law,
which may be extremely anti-women. In such cases, the law as a social force, becomes a tool for social
and legal oppression and becomes anti-therapeutic. However, in many cases, laws positive values are
highlighted by the courts, lawyers, mediators etc and it became a therapeutic tool for heeling the harm
suffered by women. This positive example may lead researchers to find out why and on which occasion
law may become anti-therapeutic for the well being of women.
There are also various examples of women offenders committing social harms not only against men,
but also against fellow women and children. Often it is found that women turn into offenders due to
poverty. In many jurisdictions, law is lenient towards women offenders when it comes to bail, paroles or
custody of children of women offenders. Notably, at the same time, such therapeutic nature of the laws
is eclipsed by certain anti-therapeutic laws, which may include anti-abortion laws or child custody laws
etc, whereby women may have to bear the brunt of their own unfortunate and unintentional misdeeds or
that of their partners and which may take a toll on their own health or may permanently disable them to
have custody of their children. Such examples are plenty with migrated refugees or immigrates, who may
not be aware of the laws of the new country, but may still have to face the unfortunate results that the law
dictates. This book researches on these very issues related to Therapeutic Jurisprudence and Women.
Preface
OBJECTIVE OF THE BOOK
Therapeutic Jurisprudence has been gaining popularilty among academicians, practitioners, lawyers,
judges, and therapists as a jurisprudential discipline which sees law as a social force that must be used
for healing damage with its therapeutic values. While researchers are working towards building litrature
on multi-dimensional growth of therapeutic jurisprudence, it must be addressed from the perspective of
womens rights as well. This project aims to achieve this objective. This book is a compendium of chap-
ters which show how Therapeutic Jurisprudence can be used for the benefit of women, whether existing
laws addressing domestic violence, custody laws, rape laws, child custody laws, internet laws can meet
the goals set by Therapeutic Jurisprudential principles and how would it be possible. This book aims to
provide relevant theoretical frameworks and the latest empirical research findings in the area. It is writ-
ten by both senior and emerging scholars for academics, practitioners and students who want to improve
their understanding of the strategic role of trust at different levels of the information and knowledge.
Contents of This Edited Volume
This book is divided into four sections: 1) Traditional Practices and Therapeutic Jurisprudence; 2)
Restorative Justice, Violence Against Women, and Therapeutic Jurisprudence; 3) Issues of Workplace
and Therapeutic Jurisprudence; and 4) Modern Practices and Therapeutic Jurisprudence. Four major
themes discussed in the following sections form the major content of the chapters of this edited volume.
There are three chapters under the section: Traditional Practices and Therapeutic Jurisprudence. In
Chapter 1, Yomi Rasul Olukolu analyzed the dependence of womens reproductive rights and health
on her legal status within society in Nigeria. The chapter highlights the problems faced by women in
Nigeria that are carried under name of traditional practices which are predominantly harmful. Such
practices that involve genital mutilation, controlling womens lives, coarse pregnancy and widowhood
practices are inflicting emotional and physical harm on majority of women in Nigeria. Olukolu calls for
governments legal intervention as a therapeutic agent in preventing such regressive traditional practices
that violates human rights of women of Nigeria. Also, the chapter suggests domesticating International
instruments ratified by Nigeria.
In Chapter 2, Sawsan El Sherif illustrated on violence against women and practicing of therapeutic
jurisprudence in Egypt. Sherif suggested an interesting bridging between religious intervention and
emotional wellbeing of women victims. The chapter points out the benefits of religious therapy extend-
ing to the family of victim as well. The Islamic religious approach in psychological therapy of victims of
violence also demands for modifying surroundings in favor of healing the victim. The chapter concludes
with mentioning Islamic Feminist movement and Islamic texts that talk about womens rights.
In Chapter 3, Debarati Halder and K. Jaishankar addressed a contemporary and highly relevant social
issue in India about inter-religious, inter-caste, cross-cultural love marriages. The chapter highlighted the
practical hardships associated with the idea of love marriages in Indian society. The authors specifically
mentioned about high propensity of victimization related to love marriages where there are umpteen
number of cases of violent assault, children facing social ostracism, family pressure forcing either or both
xix
Preface
of the couple to go through emotional stress. The authors illustrated on stark contrast between prevailing
social norms about marriages and the egalitarian stand of the Constitution of India on marriages. The
chapter discussed on role of courts in India to practice therapeutic jurisprudence in saving love marriages.
Also, suggestions are made on the ways to implement therapeutic jurisprudence approach.
There are five chapters under this section. In Chapter 4, Johnson Ayodele explored womens experi-
ences of violence in Nigeria. The author argues that Nigerian culture prevents women from getting fair
justice due to limited participation of women victim in CJS in Nigeria. The CJS in Nigeria is stated to be
jammed due to pendency of under trials, over crowding in prisons and high rate of recidivism. Ayodele
recommends for practicing Restorative Justice to render social justice and move towards a more stable
and equitable Nigerian community.
In Chapter 5, Lorenn Walker and Cheri Tarutani also suggested practicing of Restorative Justice in
United States to increase healing of women victims. The authors emphasized on respecting the women
victims choice to choose the due course of legal actions. The authors also touched upon the victim-
offender overlap and considering this sensitive convergence, restorative justice is stated to be as an ef-
fective tool to render healing of the victim.
In Chapter 6, Martine Herzog-Evans introduced to violence against women in a French city through
an evaluation study of host of local programmes addressing violence against women. Though, the study
is yet to complete, the author states that, it has produced some significant findings which includes, ig-
norance on part of majority of practitioners about sufferings of a battered women and nothing has been
done to intervene this problem. The study also reveals poor response of CJS for battered women cases,
where most of the time the cases are not taken seriously and the offender do not receives swift and just
punishment. Also, there is poor coordination amongst practitioners in dealing with cases of violence
against women. Evans concluded with indicating lack of research and empirical based practices which
could be supplemented through more assessment or treatment based researches.
In Chapter 7, Theo Gavrielides attempts to explore the reconciliation of restorative justice for vio-
lence against women (VAW) in Europe. Gavrielides suggested that International conventions aim to
keep minimum standards of legal actions backed by general consensus. The chapter uses the School
of Thought of Aristotles Natural Law theory to unravel the dimensions of an alternative, non-punitive
response to VAW and domestic violence in particular. The author described the international scenario
that does not favorably support restorative justice but at many levels across the world restorative justice
is being actively practiced with positive outcomes. The chapter aims to investigate therapeutic jurispru-
dence and the role of the legal (i.e., justice) and non-legal (i.e., fairness) provisions of RJ for VAW
and domestic violence (DV) in particular. The chapter describes the importance of reconciliation and
restorative justice along with suggestions for policy makers and practitioners.
In Chapter 8, Michael Pittaro analyzed the issue of pornography and global sex trafficking and pro-
posed TJ as a form of Court Innovation in the United States. The author brought the issue of pornography,
human trafficking and prostitution to fore from International perspectives. Pittaro addressed plausible
recommendations to eradicate sex trafficking, pornography with special reference to those who actively
participate in creating and dissemination of pornography at global scale. The author also looked into
courts intervention in such cases through therapeutic measures.
xx
Preface
There are five chapters under this section. In Chapter 9, Amit Gopal Thakre assessed sexual harass-
ment of women in workplace in India, extent of implementation of preventive laws and practicing of
therapeutic jurisprudence. Thakre suggested that like therapeutic jurisprudence, preventive laws too
aim for more humane approach with regard to legal matters. Laying emphasis on preventive law does
not negate the importance of healing objectives set forth by Therapeutic Jurisprudence rather preven-
tive laws supplements to the overall aim of enabling healing power of law. The author is of the view
that an ideal system would be wherein preventive laws are implemented effectively and therapeutic
jurisprudence works efficiently.
In Chapter 10, Marta Vides Saade identified violations in procedural remedies and as a measure
suggested therapeutic jurisprudence to prevent workplace harassment in the United States. The author
believes that the well-being of the adversaries and witnesses is generally not considered as important.
It is very common for claimants to face overt or micro-aggression. The author believes that the laws do
not consider this aspect as important. Vides Saade suggests for incorporating therapeutic understand-
ings of needs and relationships, as the more inclusive and equitable foundation of institutional practices.
The chapter also offers best practices models in therapeutic jurisprudence as alternatives to resolve
workplace conflicts.
In Chapter 11, Rochin Chandra and K. Jaishankar provided therapeutic jurisprudence solutions for the
prevention of secondary victimization of female victims of labor exploitation in southern Tamil Nadu,
India. The authors revealed about the impact of legal procedures and role of legal actors within industrial
courts on the emotional life and psychological wellbeing of female workers under Sumangali Scheme.
The chapter also highlighted on ways to reduce the propensity of secondary victimization (among the
sumangali victims). The authors work is significant in adding to the knowledge of therapeutic jurispru-
dence literature on participation of female victims of labor exploitation in industrial courts.
In Chapter 12, Roslin Growe and William A. Person undertook an interesting analysis on the impact
of toxic workplace environment on women professors in the United States. The toxicity of workplace is
referred in terms of lack of regard and dignity for employees, especially at upper administrative level. The
authors focus on a review of literature on toxic leadership; the conceptualization of workplace bullying;
the prevalence of academic mobbing; and the effects of toxicity on women professors in the academy.
The final sections of the chapter include a discussion of implications for policy development in a toxic
workplace and implications for research on toxic university environment. The chapter also highlighted
the need for therapeutic jurisprudence practices in higher education.
In Chapter 13, Hina Kousar described sexual violence in University campuses of Delhi, India. Kousar
also looked into possibilities of therapeutic justice that is available for the victims of sexual violence.
The author described the context of sexual violence and how it affects women on different levels. Kousar
believes that sexual violence is an act of showing male dominance in political and economic spheres.
This chapter is helpful in adding to the dearth of literature on impact of sexual violence on women in
India. The author collected data from women in academics and made an attempt to understand their
level of understanding and acceptance of sexual harassment which is deeply ingrained in social fabric.
xxi
Preface
There are four chapters under this section. In Chapter 14, Jean de Dieu Sikulibo analyzed prospects and
challenges in conflict-related sexual violence cases at the International level. Sikulibo critically examined
International Criminal Tribunals which is holding some reservations in delivering justice to victims of
sexual violence with respect to war crimes. This chapter engages with the various aspects of the relatively
recent approach of victims participation in international criminal justice process to highlight prospects
and challenges in facilitating the healing process of victims of such crimes. The author argues that the
current modalities of victims participation encompass a range of approaches which could prove inef-
fective in addressing the victims needs, and potentially dilute the victims effective participation in the
international criminal justice process.
In Chapter 15, Helen Crewe examined the possibility of therapeutic jurisprudence improving the
Rights of Female Prisoners. The importance of this chapter is its consideration of international non-state
legislation which has been designed to improve conditions of women in prison. The author believes that
this chapter will be applicable for activists, practitioners and stakeholders who want to understand the
potential of therapeutic jurisprudence for improving the rights of female prisoners.
In Chapter 16, Divya Priyadarshini examined the therapeutic aspect for urban-slum dwellers. The au-
thor with a qualitative study assessed the situation of urban slum-dwellers and the never-ending evictions
and displacement. The study focused on the discourse observed in the Metropolis of Delhi, India. The
author believes that women being the worst affected in instances of eviction, relocation and displacement
do not appear in the policies, laws or judgements that are formulated to address the issue. Through an
ethnographic research in the resettlement colonies of Delhi, India, the present study aims to address the
effect of the judicial pronouncements in the lives of the evicted population with main focus on the women
residing in such colonies. This study aims to understand from the perspective of the various judgements
and the victims of evictions, the healing effect it has had on the victims, if any. Priyadarshini also made
an analysis of the shifting jurisprudence in case of the urban poor that will help us better understand the
gaze with which they are seen. Also, the author examined whether women and issues of violence and
violation of rights of women are understood, expressed, prevented and healed or not.
In the last chapter (17), Debarati Halder performed an interesting comparative analysis of revenge
porn regulations in three countries viz., India, Pakistan and Bangladesh. In furtherance to it, Halder also
examined the applicability of therapeutic jurisprudence in instance of revenge porn against women. This
chapter argues that South Asian countries including India, Bangladesh, Pakistan do not have focused
laws on dealing with the issue of revenge porn targeting women. The author discussed on the lines of
the socio-economic conditions of all the three countries - being quite the similar, the women victims
of revenge porn may neither prefer to seek police help due to fear of reputation damage. This chapter
therefore aimed to research the application of Therapeutic Jurisprudence in such cases that may benefit
the victims in healing.
All the chapters presented in this book focused on various areas such as Traditional Practices Restor-
ative Justice, Violence against Women, Issues of Workplace, Modern Practices and the chapters connect
to Therapeutic Jurisprudence (TJ) or emphasize the need for TJ. Also, specific focus was given on vari-
ous topics such as: Therapeutic Jurisprudence, Restorative justice, Rape laws from global perspectives,
xxii
Preface
Sexual violence, Domestic Violence, Women victims of war crimes, Online violence against women
and laws positive as well as negative roles, CEDAW, Workplace gender harassment and evolving laws,
Women offenders, Rights of women prisoners, Female sex workers and their rights, Right to education
for girls, Freedom of speech, digital connectivity and womens rights, Rights regarding mental health
of women, Reproduction rights, Child marriage, Genital mutilation of girls, Property rights of women,
Voting rights of women, Sexual orientation, Right to privacy for women, Positive criminology/victimol-
ogy and Cyber criminology/victimology.
We the editors believe that this book would lay foundation for future researches on TJ and would be
provide grounding for TJ practices to grow around the world. This book will be useful to profession-
als, researchers and graduate students working in the field of law, restorative justice, womens rights,
Therapeutic Justice, criminology, victimology and sociology. Moreover, the book will provide insights
and support to lawyers and judges, correctional administration officers to bring in best practices of TJ.
REFERENCES
Wexler, D. B. (2003). Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts. Durham,
NC: Carolina Academic Press.
Wexler, D. B., & Winick, B. J. (Eds.). (1996). Jurisprudence. Durham, NC: Carolina Academic Press.
xxiii
xxiv
Acknowledgment
At the outset, we thank Professor David. B. Wexler, proponent of modern concept of Therapeutic Juris-
prudence, for his constant encouragement to bring out this volume. He was also kind enough to write an
excellent foreword which laid a strong foundation for this book. We will be ever grateful to him.
We sincerely thank all the members of the editorial advisory board of this book for their patient and
effective support in producing high quality reviews of the chapter(s) and for making this book project
a success. Some of the authors were kind enough to (blind) review chapters of others and our earnest
thanks are due to them. One of the authors, Amit Gopal Thakre, rendered significant editorial assistance
and we thank him from the bottom of our hearts.
We thank the authors for their wonderful thought provoking chapters and patience and cooperation they
rendered in this book project. Without them this book project would not have materialised.
We thank the all the Therapeutic Jurisprudence practitioners and teachers from the International Thera-
peutic Jurisprudence network (especially the Therapeutic Jurisprudence Google group) for constantly
encouraging us for taking up this book project.
We thank our respective employing institutions, the Unitedworld School of Law, Gandhi Nagar, Gujarat,
India and Raksha Shakti University, Ahmedabad, Gujarat, India for providing excellent work environ-
ment which enabled us to finish this book in time.
Finally, we thank our family, especially our daughter, D. J. Mriganayani and Prof. Dipika Haldar for
constantly encouraging us with this book project.
Section 1
Traditional Practices and
1
Chapter 1
Harmful Traditional Practices,
Laws, and Reproductive
Rights of Women in Nigeria:
A Therapeutic Jurisprudence Approach
Yomi Rasul Olukolu

University of Lagos, Nigeria
ABSTRACT
There are many traditional practices in Nigeria that literally affect womens reproductive rights within
and without marriages ranging from genital mutilation, harmful traditional practices to control women,
early girl marriage, one sided divorce rights in Islamic marriage to men alone, nutritional taboos and
other uncouth pregnancy related practices, to unfavorably widowhood practices and inheritance. This
chapter intends to bring to the fore these traditional practices which impede the womens reproductive
rights in Nigeria with emphasis on the study of the role of law as a therapeutic agent within the thera-
peutic jurisprudential context. This is done with a view to calling on the Nigerian government to wake
up to its responsibility by enacting local laws specifically on womens rights generally or domesticat-
ing the various international instruments which the country had so far voluntarily ratified on womens
reproductive rights.
INTRODUCTION
Recognition of the rights of human beings as a special category of rights within the mainstream of hu-
man rights is traceable to the United Nations Charter. The Charter declares inter alia that one of the
purposes of the organization . is the promotion and encouragement of respect for human rights and
fundamental freedom for all without discrimination or distinction as to race, sex, language or religion
(Article 3). Subsequent international instruments have made similar objective in relation to the protection
of human rights. For example, the first paragraph of Article 2 of the Universal Declaration of Human
Rights (UDHR) 1948 provides that:
DOI: 10.4018/978-1-5225-2472-4.ch001
Copyright 2017, IGI Global. Copying or distributing in print or electronic forms without written permission of IGI Global is prohibited.

Harmful Traditional Practices, Laws, and Reproductive Rights of Women in Nigeria
Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any
kind, such as race, colour, sex, language, religion, political or the opinion, national or social origin,
property, birth or other status (Article 2).
Similar positions are expressed in the International Covenant on Civil and Political Rights (ICCPR)
and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Africa Charter
on Human and Peoples Rights, 1981 declares in Article 2 the same normative standard set by UDHR.
Section 42 of the 1999 Constitution of the Federal Republic of Nigeria also provides that:
A citizen of Nigeria, of a particular community, ethnic group, and place of origin, Sex, religion or politi-
cal opinion shall not, by reason only that he is such a person
(a). Be subjected either expressly by, or in the political application of, any law in force in Nigeria or
any executive or administrative action of the government to disabilities or restrictions to which citizens
of Nigeria of other communities, ethnic, groups, places of origin, sex, religion, or political opinions are
not made subject: or
(b). Be accorded either expressly by, or in the practical application of, any law in force in Nigeria or
any such executive or administrative action, any privilege or advantage that is not accorded to citizens
of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinion.
In spite of this plethora of legal instruments, equality remains more of a mirage due to the prevalence
of legal, administrative and cultural impediments and inhibitions erected and maintained against women.
These instruments conflict with the internationally recognized equality status of women. In order to
address this anomaly and call special attention to the rights of women, the international community
has devoted time and resources to advocacies. This has yielded commendable results in terms of the
Convention on the Elimination of all forms of Discrimination against Women (CEDAW) in 1979; the
2006 Maputo Protocol additional to the African Charter on Human and Peoples Rights on the rights of
women; and the relevant decisions made at crucial international meetings like the Beijing Conference,
which was held in 1995 in China. Apart from these, catchy slogans and terminologies are being gener-
ated to call attention to the basic issues at stake. One of the terminologies, which evolved from the 1994
International Conference on Population and Development (ICPD) held in Cairo, was the Reproductive
Rights of Women.
Nigeria is a signatory to all the foregoing Conventions but the rights of women, especially their
reproductive rights still continue to elude the womenfolk as a result of several traditional practices and
customs prevalent within the Nigerian society. This chapter, therefore, intends to bring to the fore these
traditional practices which impede the womens reproductive rights in Nigeria with emphasis on the
study of the role of law as a therapeutic agent within the therapeutic jurisprudential context. This will
be done with a view to calling on the Nigerian government to wake up to its responsibility by enacting
local laws specifically on womens rights generally or domesticating the various international instruments
which the country had so far voluntarily ratified on womens reproductive rights.
2

HARMFUL TRADITIONAL PRACTICES AND

REPRODUCTIVE RIGHTS IN NIGERIA
Traditional cultural practices are values and beliefs consistently held by members of a community for
periods often spanning generations. While there are a good number of customary and traditional prac-
tices, which have merit, for instance, community conflict resolution strategies, some are of no benefits
to society. Nevertheless, it has been established that the more severe the effect of a practice, the more
likely that the victim will either be a woman or child, particularly, a female child.
Every social group in the world has specific traditional cultural practices and beliefs some of which
are beneficial to its members while others are harmful to a specific group such as women. These harm-
ful traditional practices include female genital mutilation (FGM), forceful feeding of women, various
practices which prevent women from controlling their own fertility, nutritional taboos, traditional birth
practices, son preference. The implications for the status of the girl child, female infanticide, early
marriage, early pregnancy cannot be over emphasized. Despite their harmful nature and the attendant
violation of international human rights laws and conventions, such practices persist in Nigeria and most
times are hinged on cultural, moral and religious beliefs.
Harmful traditional practices that affect women are performed in most, if not in all cases, to con-
trol women. The existing socio-economic and practical status of women is usually subordinate to and
inferior to their male counterparts. Most of these harmful traditional practices affecting women and
children bother on reproductive health issues. For many years, Nigerian governments have paid little or
no attention to the issue and the international community had very little understanding of the plight of
thousands of women and children who experience horrendous practices inflicted on them in the name
of culture and traditions.
However, in the early 1950s, some United Nations specialized agencies and human rights organiza-
tions started to consider harmful traditional practices as health issues with emphasis on practices like
Female Genital Mutilation (FGM). The 1993 Vienna Conference, which affirmed that womens rights
are human rights, drew attention to the enormous violence against women in the name of traditional
practices. Also, in the report of the special Reporter on Harmful Traditional Practices and Violence
Against Women, it was noted that despite the many technical advancements in the area of international
legislation geared towards political and economic development, Nigeria is still very slow in according
women their due rights as they still hold on to the age-old customs and traditions, which are detrimental
to the health of women and children.
The strategic objectives and actions of the Beijing Platform for Action, section D, paragraph (a) deals
with violence against women and states that:
The term violence against women means any act of gender based violence that results in or is likely to
result in physical, sexual or psychological harm or suffering to women, including threats of such acts,
coercion or arbitrary deprivation of liberty, whether occurring in public or private life.
Accordingly, the Womens Conference held in Vienna, 1993 posits that:
Violence against women encompasses but is not limited to physical, sexual and psychological violence
occurring in the family including battering, sexual abuse of female children in the household, dowry
3

related violence, marital rape, female genital mutilation and other traditional practices harmful to
women, non-spousal violence and violence related exploitation.
Institutionalized patriarchy plays a major part in the perpetuation of those harmful practices and
prevention of women from the exercise of their right as human beings as guaranteed in the Universal
Declaration of Human Rights and other international instruments on the subject. Another aspect to this
is that there are women who support these practices based on their experience and lack of proper edu-
cation. For instance, this apathy or strong opposition to the eradication of these practices is prevalent
amongst the Angivan Zoma traditional birth attendants (TEA) amongst the Hausas in northern Nigeria
who engage in these practices as means of livelihood. These women, through years of socialization and
the acceptance of the inferior status of women encourage these practices as part and parcel of the culture
and identity of their community.
Types of Harmful Traditional Practices
1. Female Genital Mutilation (FGM)
Female genital mutilation (FGM) or female circumcision is defined as all procedures that involve partial
or total removal of the female external genitalia and/or injury to female genital organs for cultural or any
other non-therapeutic reasons (WHO Report, 1995).
It is an age-old customary practice, and it is very rampant in communities in Nigeria irrespective of
the peoples religious beliefs. FMG forms an important rite of passage ceremony for some communities
to mark the coming of age of female children. A number of reasons and beliefs are proffered for this
practice. It ranges from reducing sexual desires in females, thus curtailing promiscuity and ensuring
virginity before marriage; sustaining chastity after marriage, increasing male sexual pleasure, promoting
social integration, initiation of girls into womanhood, hygiene and aesthetic reasons, to protection of the
unborn child from death as well as other religious reasons (WHO Report, 1995).
In most societies in Africa, young women may undergo FGM at marriage or during pregnancy or
at the birth of their first child. FGM may also be performed on girls as part of traditional puberty rites.
There are different types of FMG which include the following:
1. Sunna Traditional Circumcision: This involves the removal of the prepuce and the top of the
clitoris. This is the only procedure, which medically can be likened to male circumcision.
2. Excision or Clitoridectomy: This involves the removal of the clitoris and often the labia minora.
It is the most common procedure and is practiced throughout Africa, Asia, the Middle East and
the Arabian Peninsula.
3. Infibulation or Pharaonic Circumcision: This is the most severe of all procedures. It involves
excision and the removal of the labia majora and sealing of both sides through stitching or natural
fusion of sear tissue leaving a very smooth surface and a small opening (which sometimes is not
larger than the head of a match) to permit urination and the passing of menstrual blood (always an
artificial opening). The procedure is performed under unhygienic condition with unsterilised and
crude instrument like a knife or blade that is often times, used for more than one person thereby
increasing the risk of blood transmitted diseases such as HIV/AIDS.
4

4. Scraping, Anguruya or Gishiri Cuts: This involves the cutting of the labia minora and the vagina
opening, usually as traditional rites. It is prevalent amongst the Hausas of Northern Nigeria. It is
used to treat a number of health conditions including infertility, painful intercourse and to remove
a foetus in the case of obstructed labour.
Effects of Female Genital Mutilation (FGM)

The practice of FGM causes untold physical and psychological pain and suffering and its health im-
plications are enormous. Most times, FGM is done leaving deep cuts to the bladder and vagina which
may result ultimately to short and long term health implications on the patients. The short-term health
implications include hemorrhage (excessive bleeding), acute pain, stock, hepatitis-B from using unclean
instruments and other infections leading to fever, gangrene, septicemia, failure of the wound to heal and
in some case, death. The long-term health implications include the possibility of dysmeorrhea (painful
menstruation), infertility as a result of infection, obstructed labour, recto-vagina fistulae (RVF), vesico
- vagina fistular (VVF), dysperenuia (painful sexual intercourse), sexual dysfunction, higher incidence
of wounds and abstractions during sexual intercourse, vulva cysts and abscesses, HIV/AIDS as well as a
number of psychological complications such as sexual frigidity and fear of sexual intercourse (Nigerias
Federal Ministry of Health Report, p. ii).
FGM has been a focus of international attention for a number of years. In 1990, CEDAW issued General
Recommendations. No. 14 calling on all governments to eradicate this practice. CEDAWs programme
of action called for the eradication of any conflicts which may arise between the rights of women and
certain traditional or customary practices. It also called for the repeal of existing unfavorable legislations
and regulations and removal of customs and practices that discriminate and causes harm to the girl child.
The Copenhagen and Beijing conferences were explicit in their recommendation s on FGM. The Cairo
programme of action called on Governments to discourage and prohibit FGM, support its elimination
and provide treatment, education and counseling. It also classified FGM as a fundamental violation of
the basic rights of women as it seeks to control the sexuality of women. The Copenhagen Declaration
urges governments to protect women and children from FGM. The Beijing platform for action regards
FGM as a form of sex discrimination that begins early in life. Indeed, Nigeria along with other member
nations at the 47th World Health Assembly acknowledged FGM, as a form of violence against women
and girls and that its practice infringes on their human rights which, includes their rights to integrity as
well as attainment of the highest level of physical and mental health. Consequently, the Assembly urged
member nations to establish national policies and programmes that will effectively eliminate FGM and
other harmful traditional practices.
2. Nutritional Taboos and Other Pregnancy Related Practices
In many communities in Nigeria, pregnant and lactating women are prevented from taking specific foods.
Deprivation of nutritious food results in anemia or even malnutrition for females and poor development
for infants. Peoples lack of proper diet may result in physical and mental impairment. While the poverty
climate contributes to severe nutritional imbalance, food taboos either for religious or cultural reasons
exacerbate the situation. Nutritional taboos placed on women, especially pregnant women result in their
low intake of nutrients. For instance, in some parts of Nigeria, pregnant women are prevented from eat-
ing eggs, fish and so on. The reason behind this taboo induced deprivation is that children of mothers
5

who eat such forbidden foods end up with undesirable physical or character traits. And some foods
are perceived as having negative effects on women and girls and as such it is in their interest not to eat
them. There are still other pregnancy related practices such as:
1. Consumption of Porridge Made with Potassium (Kunun Kanwa): As a part of a womans

after childbirth rituals, she is expected to consume large amount of potash mixed in millet-based
porridge. It is believed to help in the production of breast milk for the newborn child. However,
potash taken in large quantity does result in over concentration of potash in the blood. This could
affect the working of the heart and ultimately lead to cardiac arrest.
2. Sleeping on a Bed with Hot Coals Underneath: It is believed that after a woman has had a baby,
she and the baby require a great deal of warmth. Hence, she is expected not only to ingest hot spicy
fluids; but also to sleep in a room with a traditional charcoal heater. In extreme cases, she sleeps
on a room with hot coals underneath. However, this practice is generally erroneous and harmful.
3. Total Privacy during Delivery: In parts of Northern Nigeria, a woman is expected to give birth in
total isolation. Hence, a woman is not supposed to utter a sound no matter how painful her labour
pains because the process of child birthing is viewed as a very private matter. The traditional Birth
Attendant (TBA) comes in after delivery. She is responsible for cleaning up and bathing the child.
Only in extreme cases, when the labour is difficult, she is called to assist.
All these practices are clearly harmful to the health of the mother, leading to problems like burns,
heat rash, cardiac, renal failures and death.
3. Widowhood Practices
In many communities in Nigeria, women are forced to go through one dehumanizing widowhood practice
or another. The difference in practice lies in the gravity of some of the acts perpetrated against women,
which differs from one locality to another. In parts of Rivers State of Nigeria, for example, a widow is
expected to wear black from head to foot for about a year, despite the highly humid climate of the area
and the fact that black clothing is a conductor of heat. The woman is, most times, kept in seclusion from
the day of her husbands death till his burial irrespective of whether she has young children that may
require her attention or that she may suffer from claustrophobia (fear of closed spaces). In some parts of
Igbo land, women must shave their hair, dress up in tattered clothes and sit on the bare floor or a mat.
She is also not allowed to take a bath whether she is having her menstrual period or not.
In the Orlu area of Imo State in Nigeria, during the mourning period, a widow must remain clad
in black and she is not allowed to continue with her economic activities. Should she try to do so, she
would have no customers because she can easily be identified as a widow when she is dressed in black.
No consideration is given as to whether she has children or relatives who are her dependents. More hor-
rific is the practice of some ethnic groups in Rivers, Edo and Kogi States of Nigeria, where a widow is
labeled a suspect of her husbands death, the only way to prove the innocence of not been responsible
for her husbands death is to drink the water used to wash the corpse of her husband. Should the husband
have died from a contagious disease, the widow would likely be infected after drinking the water used
to wash her husbands corpse. There is also the risk of infection from lack of bathing especially when
she is menstruating and from eating with unclean utensils. This is very grave especially in West Africa
with the outbreak of the deadly Ebola virus disease (EVD).
6

Sometimes, the widow is expected to partake in sacrificial rituals, which may require her to expose
herself to physical harm. For instance, in some communities in Edo State, a woman is expected to walk
on a dark lonely path at night as part of the rites to end her period in mourning. This could be danger-
ous as her husbands relatives could ambush her in an attempt to harm or even kill her. In Opobo area
of Rivers State, widow(s) are submerged in the river to prove her innocence. The tragic consequence of
this is obvious if she does not possess swimming skill.
Notwithstanding these degrading and inhuman acts, women in such communities would rather go
through them to prove their innocence as non- compliance attracts enormous social sanctions against
them and their children. For example, the wife and children may be denied of the right to inherit the
deceased mans property. In extreme cases, there is total excommunication of the widow and children
from the family and community.
It is submitted that there are double standards in relation to the men folk. For instance, a widow, by
culture, is expected to fulfill all the foregoing rites but the widower is not expected to mourn his wife at
death whether they had children or not. He is not obliged to do anything; rather members of his family
will get him another wife to help rid him of his wifes spirit and permanent absence.
Effects of the Violation of Reproductive Right of Widows

A woman who has lost her husband faces the initial emotional trauma of the loss of a companion and a
breadwinner. The grief is further aggravated by the widowhood rites she is subjected to for a prolonged
period of time. These rites are deep-seated cultural practices that have been upheld despite education
and enlightenment. Some of the very common ones are the wearing of black attire for specified time
frame and the shaving of hair. These are rites that affect the womans body but in which the woman has
no say. Fellow women, especially her husbands relations are usually there to ensure that the rites are
carried out. Some women feel bad about the rite but dare not resist for fear of being accused of killing
their husbands. Even where they dare to resist or fail to comply, their lives and that of their children
may be threatened.
Apart from the widowhood rites, there is also widow inheritance, which is prevalent in the traditional
societies. This is a form of violation of the reproductive rights of women. A widow is usually inherited
by one of the deceased mans brothers or sons. This stems from the belief that the woman is married
to the entire family. So she could be merely transferred to another member of the family without any
marriage ceremony or dowry. If she insists on leaving the family for another, there will be a divorce and
repayment of the dowry paid on her.
In the process of looking for money to cater for the family, a few come across men who try to take
advantage of them by demanding sex before they give jobs or contracts; some who do not want to lose
such jobs or contracts succumb to this for the sake of their children. This has negative effects both on
the woman and their children who look up to them as role models. The pressure placed on widows in
the process of trying to fend for her children has made some to have sexual partners who provide money
and materials to enable them cater for themselves and children.
As members of the society continue to violate widows right to property, more problems are created
for both the widows and their children who depend on them. If this is not checked, society will continue
to have increased number of delinquent children as a result of inadequate care. This by inference, is a
negative impact on the womans reproductive right because of lack of adequate care, engendered by the
deprivations visited on the widow, by her in-laws, upon the seizure of her deceased husbands property,
7

amounts to visitation of the violence of poverty on the legitimate products of the marriage (the children).
This practice, however, may be waning in view of the influence of western education.
THE LAW AND HARMFUL TRADITIONAL PRACTICES IN NIGERIA
There is no law in Nigeria that either prohibits or explicitly addresses harmful traditional practices.
However, the fundamental human rights provisions of the 1999 Constitution of Nigeria by section 34
enshrine the right to dignity of human person. It states that: every individual is entitled to respect for
the dignity of his person and accordingly no person shall be subjected to any form of torture or to inhu-
man or degrading treatment.
As a result of educational and advocacy campaigns conducted by organizations of women health
professionals and other Non-Governmental Organizations, secondary school curricula have recently been
revisited in Nigeria to include information about the health consequences of FGM. The Nigerias Childs
Rights Act, 2003 also recognizes the right to dignity of the child and directs that no child shall be sub-
jected to physical, mental or emotional injury, abuse irrespective of sex (section 11). The Act prohibits
tattoos and skin marks on children (Nigerian Ministry of Health Report, p. 8). This could be taken to
mean the outlawing of FGM on children. One of the goals of the National Policy on the Elimination of
FGM is to eliminate the practice of FGM in Nigeria in order to improve the health and quality of life of
girls and women (Nigerian Ministry of Health Report, p. 8).
It is also essential for men to be included in the struggle against such practices because they are the
main perpetrators of such acts. There is a great need for men to be educated along with the women. The
desire to eradicate harmful traditional practices in Africa is visible in the number of resolutions adopted
at various international fora. These resolutions have stressed the need for the protection of women and
girls from these practices. They have urged countries to devise mechanisms that will promote physi-
cal, economic and social well being of girls and women. Relevant Non-Governmental Organizations
(NGOs), womens groups, the media and traditional leaders as change agents have an enormous role to
play in ensuring that our governments adhere to the promises they have made at international fora and
at the same time they must continue in their struggle to raise public awareness and sensitize people to
the detrimental effects of these practices (Ameh, 2002, pp. 1-10).
Abortion and Reproductive Rights
Abortion has been defined, by the Blacks Law Dictionary, 5th edition, as the deliberate destruction of
an unborn child or the intentional expulsion or removal of an unborn child from the womb other than for
the principal purpose of producing live birth or the removal of dead tissues. It has also been described
as the expulsion of the fetus from the uterus before it reaches viability (Encyclopedia Britainnica, Vol.
1, (1991). However, induced abortion is not an offence under the law when performed in certain cir-
cumstances and condition (section 297, Criminal Code and section 235 Penal Code). For instance, it is
not an offence if it is shown that the abortion was done in good faith for the purpose of preserving the
life of the mother of the unborn child.
Section 229 of the Nigerian Criminal Code provides that
8

any person who with intent to procure the miscarriage of a woman, whether or not she is with child,
unlawfully administers to her or causes her to take any poison or other noxious thinguses any other
means whatever is guilty of felony and is liable to imprisonment for fourteen years.
Thus, a person who voluntarily causes a person with child to miscarry including a woman who
causes herself to miscarry (section 232, Penal Code) is guilty of the crime of criminal abortion and
may be punished by imprisonment (section 230, Criminal Code). Even the unlawful supply of material
with the knowledge that they may be used to procure the miscarriage of a woman is illegal and is subject
to punishment.
Reproductive rights of women all over the world have greatly been affected by the legislative policies
regulating and relating to abortion. Religious and moral conviction has further fuelled the ongoing debate
on abortion and reproductive rights in Nigeria. Socio-cultural practices peculiar to the legal system have
directly influenced reproductive and abortion rights. Active feminist movements in many jurisdictions
have posed the following questions: is the unqualified right to abortion reproductive or fundamental
human rights? Is abortion guaranteed by the Constitution? Do the prevailing legislative restrictions on
abortion mean a denial of reproductive rights? Can such a right mean a right to abortion? There are some
of the many questions that have arisen in recent times in relation to reproductive rights and abortion.
The abortion laws in Nigeria are very restrictive and they are infringements on the fundamental hu-
man rights of women to exercise control over and take decisions regarding their bodies. It has been said
that the statutory provisions on abortion are unconstitutional and their application constitutes a direct
infringement on a persons fundamental right to privacy and right to self determination. In Nigeria, the
interpretation of section 297 of the Criminal Code has often followed English case laws, but while the
English law regulating abortion has been updated since 1967 by the Abortion Act, the Nigeria law on
the subject has not been so updated. Under section 1(1) of the English Abortion Act of 1967, an abor-
tion becomes legal where a practitioner and two other medical practitioners are of the opinion formed
in good faith that the termination can be carried out to:
1. Prevent risk to life of the pregnant woman.

2. Prevent risk of injury to the physical and mental health of the pregnant woman.
3. Prevent injury to the physical or mental abnormality in the unborn child as not to be severely
handicapped.
4. Prevent injury to the physical or mental abnormality in the unborn child as not to be severely
handicapped.
Therapeutic Jurisprudence and Reproductive Rights of Women
Therapeutic jurisprudence is the study of the role of the law as a therapeutic agent which focuses on the
laws impact on emotional life and on the psychological well-being of the individual (Wexler, 2000, p.
125). What this means for individuals is that the processes of and outcomes from the law are considered
in terms of how they impact on the whole person.
Womens reproductive rights and health cannot be fully evaluated without investigating womens legal
status within the society in which they live. In the therapeutic jurisprudential context, the law impacts on
the emotional life and on the psychological well being of women in Nigeria. As therapeutic agents, not
only do laws relating to womens legal status reflect social attitudes that affect their reproductive rights,
9

but also such laws often have direct impact on other aspects of their family lives, access to education,
etc. Laws and policies affecting their economic status can contribute to the promotion or the prohibition
of womens access to reproductive health care and her ability to make voluntary and informed decision
about such care. Indeed, laws regarding age of first marriage can also have a significant impact on a
young womans reproductive health.
Furthermore, the inadequacies of rape laws and other laws prohibiting sexual assault or domestic
violence present significant reproductive rights issues and can also have direct consequences on womens
health.
1. Rights within Marriage
There are three types of marriage laws in Nigeria, namely, Customary, Islamic and Civil marriages.
Marriages according to customary or Islamic law are legally valid throughout the country pursuant to
the respective relevant customary rules and Islamic law as applicable. Customary and Islamic law mar-
riages are polygamous (Olukolu, 2013, p. 89).
Under customary law, marriages are arranged between families and the prospective suitor is often
required to pay a bride price to the brides family. Some customary marriage laws require women to
undergo sometimes harsh and burdensome rites at widowhood and the periodic ritual of seclusion of
women is prevalent. Under Islamic law, the father of the woman retains the right to arrange the marriage
of his virgin daughter and the right is exercised regardless of her age and without her consent, this is
called Ijbar. Islamic law marriage involves a dowry paid directly to the woman to be married (Ambali,
2003, pp. 139 -140).
Under civil law marriage, otherwise referred to as English marriage, the union must be monogamous
and unlike the other two types of marriage, it must be registered in a civil marriage registry. Both par-
ties must voluntarily enter into a valid civil marriage in Nigeria and it is purely regulated by statutes
(sections 11 and 35, Marriage Act).
In Nigeria, a forceful, non-consensual marriage under any system of law is prohibited and regarded as
criminal offence, punishable by imprisonment (sections 141 and 144, Criminal Law, Lagos State, 2011).
Article 16 of the Convention of Elimination of all forms of Discrimination against women (CEDAW)
in support of this position, states that:
Parties shall have all appropriate measures to eliminate discrimination against women in all matters
relating to marriage and family relations and in particular shall ensure, on a basis of equality of men
and women:
1. The same right to enter into marriage

2. The same right to freely choose a spouse and to enter into marriage only with their free and full
consent.
It should be noted, however, that despite this prohibitions, women in the Southwestern part of Nigeria
may be compelled to marry the local Oba (King) usually by their parents whether or not the king asked
to marry the girl or not. This is, however, prevalent amongst the illiterates in that society.
10

2. Divorce and Custody
Like marriage, divorce is governed or regulated by various laws. The dissolution of civil marriage is
governed by the Nigerian Matrimonial Causes Act (MCA), 1970. A divorce, pursuant to the Act, may
only be granted on the ground that the marriage has broken down irretrievably. A list of situations that
satisfy this condition includes the willful and persistent refusal to consummate the marriage; adultery;
desertion; and marital behavior such that the petitioner cannot reasonably be expected to live with the
respondent (section 15, MCA, 1970). The Act states that unreasonable marital behaviour includes the
failure to pay maintenance for at least two years and the commission of sexual assault, including rape
(MCA, 1970).
Customary and Islamic law marriage, which is not governed by the 1970 Act, may be dissolved either
in accordance with customary law or Islamic law. In Nigeria, a man married under Islamic law may
divorce his wife by simply repeating talaq (I divorce you) three times. Such action is not available
to a woman spouse. Islamic law, however, does provide that a woman may divorce her husband with
his consent if she returns the dowry paid on her to him. In considering the grounds for divorce, Sharia
courts may take account of any failure to pay maintenance, a prolonged absence or the infliction of harm.
Available grounds for divorce are not defined under customary mode of marriage. The customary courts
will only consider as relevant adultery, cruelty, desertion, impotence, etc., (Section 15, MCA, 1970).
3. Economic and Social Rights
There are no formal laws restricting womens right to own property in Nigeria. A married woman has
capacity to hold, acquire and dispose of property but property acquired during marriage is often pre-
sumed to belong to the husband or male head of the household. Also, a married woman often could not
demonstrate her rights in property without documentation of ownership or proof of her contribution to
the purchase of the property.
Domestic laws governing inheritance rights do not discriminate against women. Moreover, under
customary laws, daughters may inherit from their parents estates. However, most women (widows) are
excluded from inheriting property in their own right and often widows must enter into some arrangements
(in which the widow marries a member of the family) to ensure the continuing support of her husbands
family (Mgekwu v. Mgekwu, 1997, p. 283). Under Islamic law of inheritance as practiced in northern
Nigeria, one eight of mans estate is allocated to his surviving wife or wives (if the deceased had issues)
or one fourth, where the deceased had no issue, the remainder of the estate is distributed amongst his
children in which male children receive twice the share of any female heirs (Ambali, p. 273).
4. Labor Rights
The constitution recognizes the principle of equal pay for equal work without discrimination on account
of sex and seeks to eliminate discrimination on any ground in employment matters. However, Nigerian
women encounter informed discrimination in employment and often do not receive wages commensurate
with those received by male co-workers. Moreover, the Nigerian Labour Act contains some provisions
that although designed to protect women, prohibit women from engaging in certain areas of employment,
such as working at night or underground (Nigerian Labour Act, section 55(1)). By 1990, less than 10%
of Nigeria women were employed in non-agricultural jobs. By law, all women are entitled to 12 weeks
11

maternity leave, during which period they must receive, at least 50% of their regular wages. In addition,
the labour laws require employers to provide women workers with at least one hour each day to nurse
their children (Nigerian Labour Act, section 55(1)).
5. Right to Physical Integrity
A significant phenomenon that militates against womens physical integrity is rape. Nigerian Criminal
Code Act defines rape in section 357 to mean:
Any person who has unlawful carnal knowledge of a woman or girl, without her consent or with her
consent, if the consent is obtained by force or by means of threat or intimidation of any kind, or by fear
of harm, or by means of false and fraudulent representation as to the nature of the act, or in the case of
a married woman, by impersonating her husband, is guilty of an offence which is called rape.
In general, the Criminal Code in Nigeria provides little protection against marital rape. Intercourse
between a husband and a wife can never constitute rape by virtue of section 357 of the Criminal Code.
This position is on all fours with the view of the European legal elites as exemplified in the wordings
of Sir Matthew Hale thus the husband cannot be guilty of rape committed by himself upon his lawful
wife, for by their mutual matrimonial consent and contract, the wife hath given up herself in this kind
unto her husband which she cannot retract (Hale, 1736, p. 629).
Rape under Islamic law is regarded as a special case of unlawful sexual intercourse (zina). It is
punished by death by stoning, if the offender is married or has been married. The penalty is 100 lashes
of cane in other cases. Men are in addition punished by imprisonment for one year (Kano Penal Code,
section 125 and Zamfara Penal Code, section 127).
This Islamic law on rape is to the disadvantage of women because if a woman reports to the public
that she is a victim of rape, this can be construed as a confession to unlawful intercourse, which makes
here liable to the harsh punishment unless she can prove that the intercourse took place without her
consent. The burden of proof is on her. If her attacker does not confess, her accusations against him
amount to defamation (qadf) for which she can be punished by additional eighty lashes of the cane
(Peters, 2003, p. 19).
Incidence of domestic violence may be prosecuted under general criminal code provisions penalizing
assault. Under Islamic Law however, it is permissible for husbands to discipline their wives with physi-
cal punishment. This could mean corporal affliction like beating (Quran 4: 34). No law deals explicitly
with sexual harassment in Nigeria. However, criminal law in Nigeria prohibits indecent assault which
is defined as an act of gross indecency committed against a person, without consent or by use of force
or threats (Section 285, Penal Code Act). It needs be noted that the Nigerian Child Right Act 2003 at
section 11, guarantees the right of dignity of person of a girl child; and protects against unlawful sexual
intercourse, abuse and exploitation (sections 31 and 32).
CONCLUSION
Reproductive rights of women are inalienable fundamental rights. These are rights acquired by virtue of
being human beings. Women have been oppressed for many years, and there is a need for a conscious
12

recognition, affirmation and application to women of the rights and they should be given special rights
apart from the (general rights) guaranteed in the 1999 Constitution of the Federal Republic of Nigeria as
amended with regard to equality, security, liberty, integrity and dignity of all human beings as enshrined
in chapter four of the Nigerias Constitution.
These needs have yielded the much acclaimed Conventions on the Elimination of all Forms of
Discrimination against Women (CEDAW) and other international instruments such as the Beijing
Conference Plan of Action in 1995. In spite of these international conventions on reproductive rights,
equality of the genders remains more of a myth due to prevalence of legal, administrative and cultural
or traditional impediments. For example, harmful traditional practices like female genital mutilation,
son preference, widowhood practices, etc., are both psychologically and physically harmful to women
and a direct infringement on the reproductive rights of women. A divergence between the customary
laws and civil laws in Nigeria pose peculiar problems too. Customary law, for instance, allows bigamy
which gives rise to the spread of sexually transmitted Diseases (STD) like AIDS/HIV and even death.
There are also other legal and administrative impediments like the abortion laws. The abortion law
prohibits a woman from getting an abortion or prohibits a person in the capacity of a doctor or medi-
cal officer from miscarrying a woman except on the basis of saving her life. In developed countries,
abortion laws have been turned around by grounding reasons why a woman can get an abortion and how
she has right to obtain an abortion based on how it will affect the family either emotionally, mentally,
economically, etc. The effects of all these on women are far reaching. There is the urgent need on the
Government and other policy makers to effect a change in or come up with new law to protect more the
reproductive rights of women in Nigeria and Therapeutic Jurisprudence will play a great role in ame-
liorating the problems of Women in Nigeria.
REFERENCES
African Charter on Human and Peoples Rights.

Ambali, M. A. (2003). The Practice of Muslim Family Law in Nigeria. Zaria: Tamaza Publishing.
Ameh, C. O. (2002). Harmful Traditional practices in Nigeria and Measures for Tradication: An Educol-
ogy of Home Education. International Journal of Ecology, 16(1).
Child Rights Act, 2003.
Convention of Elimination of all forms of Discrimination against women (CEDAW).
Criminal Code Act, LFN, 2004.
Criminal Law of Lagos State. (2011). Nigeria: Harmful Traditional Practices. Retrieved from https://
www.crin.org/en/library/news-archive/nigeria-harmful-traditional-practices
Ekejiuba, F. I. (1992). Nigeria Women in Historical Perspectives. In B. Awe (Ed.), Omu Okwei of Osomari.
Hale, M. (1736). History of the Pleas of the Crown. Academic Press.
Matrimonial Causes Act, 1970.
13

Nigerian Labour Act, LFN. (2004). Harmful Traditional Practices Affecting the Health of Women
and Children. Fact Sheet No. 23. Retrieved from http://www.ohchr.org/Documents/Publications/Fact-
Sheet23en.pdf
Olukolu, Y. (2013). Customary Versus Islamic Laws of Marriage: The Unsettled Matter in the Nigerian
Family Law. The Journal of Private and Property Law, 31.
Penal Code Law, Cap. 89, Laws of Northern Nigeria.
Peters Ruud. (2003). Islamic Criminal Law in Nigeria. Spectrum Books Ltd.
The Marriage Act, Laws of the Federation of Nigeria (LFN), 2004.
United Nations Charter, 1945.
Universal Declaration of Human Rights, 1948.
Wexler, D. (2000). Therapeutic Jurisprudence: An Overview. Thomas M. Cooley Law Review, 17.
World Health Organization (WHO) Report. (1995). Retrieved from www.unwho.org
14
15
Chapter 2
Violence Against
Women and Therapeutic
Jurisprudence in Egypt:
An Islamic Approach
Sawsan El Sherif
American University in Cairo, Egypt
ABSTRACT
It has been observed by researchers that when women are targeted by domestic violence, it may also
affect their children and their families. This chapter suggests that along with clinical and psychological
therapy, spiritual therapy must also be used to address the challenge. This chapter states that Islamic
jurisprudence offers solution for combating violence against women. It not only offers spiritual guidance
and healing, but also sets rules for peaceful environment to prevent violence against women. Islamic
jurisprudence also suggests punishment for violators of such rules. The chapter explores this therapeutic
jurisprudential approach of Islamic jurisprudence and explores ways and means to combat violence
against women in Egyptian context.
INTRODUCTION
Violence against women is a daunting challenge, not only for the women who are exposed to harm and
hurt, but also for their families and children. This challenge needs several interventions: clinical and
psychological therapy, law reforms, social and cultural environment change, and, assure on another es-
sential part of therapy, which is the religious dimension.
Huguelet (WPA, 2015) said that:
Although medicine is practiced in a secular setting, religious and spiritual issues have an impact on
patients perspectives regarding their health and the management of disorders that may afflict them. This
is especially true in psychiatry, because spiritual and religious beliefs are prevalent among those with
DOI: 10.4018/978-1-5225-2472-4.ch002

Violence Against Women and Therapeutic Jurisprudence in Egypt
emotional or mental illness. Clinicians are rarely aware of the importance of religion and understand
little of its value as a positive force for coping with the many difficulties that patients and their families
must face.
The idea of this chapter emerged from this point, and will use an Islamic religious approach to help
women who were victims of violence and protect others, by modifying the cultural and social surrounding
environment. Although the author can use the Islamic religion as a clinical approach, especially consider-
ing the concept of stillness (the first step in the psychological therapy for women who faced violence),
he finds that the surrounding environment also needs to be changed, because this is the basis of any
behavior. As it is, it affects a wide range of people as Philippe Huguelet mentioned about the religious.
This chapter aims to explore Islam as therapeutic jurisprudence for reducing violence against women
starting with the meaning of Islamic jurisprudence and related definitions; the tools we have at our
disposal; its link with the Islamic Feminism movement, and the conclusion will address womens rights
as stated in Islamic religious texts.
1. ISLAMIC JURISPRUDENCE: A DEFINITION
The author will explore the meaning of Islamic jurisprudence, as well as the other related definitions, as
an essential issue to determine how it can be used as a therapeutic approach, and how it can be adapted
to suit various different cases.
1.1 Islamic Sharia and Jurisprudence (Fiqh)
There is a considerable difference between Sharia, which is Islamic law, and Fiqh, which is jurisprudence.
In other words, Sharia is the religion sent down from God, whereas jurisprudence or Fiqh consists of the
interpretations of Sharia laws. Thus, if the scholars interpretations are in line with Sharia, then they
make up a jurisprudential tradition that conforms to it. If they wrongfully interpret it, then they construct
a jurisprudential tradition that conflicts with Sharia as such. The difference can be even confined to the
literal meaning of each as follows:
Islamic Sharia is the God-sent collection of rulings via Gods messenger Muhammad (PBUH),
and has been stated in the Quran and Sunna. Fiqh is the human effort to interpret and understand
Sharia rulings, to extract their intended meanings and to connect them to real life and different
environments. It is therefore, the work of scholars to interpret the religious texts, whether they get
it right or not, and it is only Sharia if it corresponds correctly to it.
Sharia is more complete than Fiqh, and this is what the following verse confirms: Today I
have perfected for you your religion and completed my favor upon thee and have approved for
you Islam as a religion (Al Maidah: 3). Thus, Sharia includes all rules and general guidelines,
where practical, religious and moral regulations, whereas, Fiqh deals with the practical rulings,
specifics and the details of Sharia rulings. Fiqh relies on the rules set by Sharia and their origins
(Al Ashqar, 1982, p. 18).
16

1.2 Jurisprudential Differences
The Holy Quran is the book of Muslim Sharia (Gods law); the Sunna translated this Sharia into
acts between people, that give a wide spread of rules which can deal with different situations and life
challenges. Jurisprudence is the scholars interpretation of both the Holy Quran and Sunna, which give
flexibility to laws and allows interpretation according to norms and traditions as condition, time and
place dictate. Scholars opinions have varied across the ages. As a matter of fact, differences appear in
the same school of jurisprudence (Madhhab) in more than one place. The differences are clearer between
early jurisprudential scholars and later ones. This is attributable to the importance of renewing Fiqh
to keep up with progress in social and economic circumstances and to be able to interact with foreign
cultures. For instance, we find that Muhammad Abduhs opinions played an important role in reviving
and renewing Islamic jurisprudence. Some may not be able to distinguish between the limitations within
which changing and renewing Fiqh is permitted and between adhering to the principles of Sharia itself,
which are unchanging and represent the heart and core of Islam.
The plurality that characterizes Islamic jurisprudence goes to a number of reasons, some of which are:
a. Geographical Reasons
The main source of difference here would be based on the different customs and practices of every so-
ciety. This goes to show that Islamic jurisprudence is a social construction of Sharia. In the beginning,
the word Fiqh was used literally to mean to understand and comprehend Sharia, which depended
on certain categories of thought (whether in understanding the meanings behind the advent of Sharia
in a specific society or in the building of institutions to make it socially accepted). Theoretically, the
purpose of social construction was to achieve a degree of harmony between the social and the legal. The
jurisprudential scholars sought to explain plurality and differences in opinion by the linguistic diversity
and the varied methods of interpretation. However, the social context is an aspect often overlooked, even
though linguistic and methodological diversity are closely linked to social standards and institutions,
which indicates different social contexts. For understanding or interpreting certain words, even within
the same language, would differ from region to region; what is language but after all a social phenom-
enon? (Masoud, 2001, pp. 71-97).
b. Social Norms
Customs are what people have come to recognize as normal and familiar in their lives. Imam Malek based
a lot of his rulings on the work of the people of Medina as he knew them then. Also, Imam Al Shafie
first based his work and rulings on the people of Iraq in his early doctrine. Then, when he came to Egypt,
he based his work on its people and left out what he had based on Iraq and Hijaz in his early works. He
even stated that he repudiated the use of the jurisprudence he had produced in Iraq. Abu Yusuf argued
that the jurisprudential ruling that is founded on custom or social norms is affected, should these develop
or change. A lot of the dispute in many issues in the Abu Hanifa School is due to differences in social
norms; rulings based on customs change with period and/or place (Bishry, 1996, p. 124). Furthermore,
scholars identify two types of customs: verbal and actual. Both are considered customs adopted by society.
17

This distinction between word and deed is especially employed in relation to the plurality and diversity
of familial laws. For example, issues related to the amount or manner of paying the dowry (especially if
the dowry is not defined) are settled according to custom. However, moral or customary differences are
often misunderstood as difference in jurisprudential interpretation (Masoud, 2001, pp. 71-97).
2. THE JURISPRUDENTIAL DIFFERENCES BETWEEN RENEWAL AND IJTIHAD
As mentioned earlier, the opinions of the scholars of jurisprudence are but efforts for interpretation. Since
it is a diverse human production, it varies not only from one scholar to the next but also from period
to period and place to place. This leads us to point out the reasons for the differences among scholars,
the concept of Ijtihad, when it is necessary or needed and the conditions and the specifications that the
mujtahid must possess.
The idea of renewal and Ijtihad (the independent interpretation of the legal sources) is based on
the fact that jurisprudence is a human creation, open to revision and change. Masoud (2001) explains
that jurisprudence is not divine law imposed on Muslims, but a law placed by scholars. It is law that
was constructed by man to deal with changes in time and circumstance and can therefore change in ac-
cordance with time and circumstance. Furthermore, the schools of thought (Madhaheb) that developed
over history and still develops till this day are a product of societal change. These schools gained in
popularity and potency as people benefited from them. Therefore, we need not invent new schools but
rather apply them where it is practical and beneficiary for the society as a whole (Masoud, 2001). There
is agreement among the scholars on the importance and necessity of renewing and updating rulings with
what is appropriate for our time and place. However, this process must not result in rulings that oppose
or conflict with the principles of Sharia, which are God-sent and must not be tampered with.
Al Ashqar (2001) warns of not abiding by the rules of Ijtihad, overdoing reform or going beyond
Quran and Sunna. He explains that caution is imperative for many contemporary writers who call for
the stripping of the legislative characteristic of jurisprudential Ijtihad, which would lead to divesting
Sharia from its sacredness. These advocates would consider Sharia itself a human construction rather
than divine law. This is completely false, for Sharia is divine and Fiqh is derived from it. Scholarly
interpretation is mostly accurate and is expressive, and falsehood is a result of interpretation and indi-
vidual understanding (Al Ashqar, 2001).
2.1 When Is Ijtihad Needed?
The need for Ijtihad arose when some issues came up that required a ruling which was not explicitly
stated in the Quran or Sunna. This is why Ijtihad became a major source of Islamic legislation, obvi-
ously because new issues arose as the times and the places changed. This desire to update the laws,
so to speak, was stated by the scholars; some of them even worked on updating their own works after
a period of time. All that is permissible so long as it does not conflict or oppose Sharia and remains
within the framework of what is permitted in Ijtihad. The progress of time and the advancements in
science and technology dictate renewing jurisprudential rulings, which is permissible and acceptable,
for as the Prophet Muhammad (PBUH) said: God sends to this nation (umma) a mind every hundred
years that renews [its] religion.1
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Jurisprudence is assessed for the need for renewal depending on its relevance to reality, current change
and progress. Progress here, does not necessarily refer to movement and change alone, but in this context,
implies improvement. Thus, the ability of jurisprudence to respond to the challenges imposed by reality
and history is taken into consideration. Furthermore, what is signified by renewal here is not to restrict
or limit jurisprudence on the work of early scholars and their opinions. Rather, contemporary scholars
of today (and of tomorrow when it comes) must do their part in understand Sharia in the context of our
reality which is not explicitly targeted by Quran and Sunna. This way the production of Islamic thought
does not stop but is renewed in every age and place.
Also, early jurisprudential tradition must be revised in terms of opinions that were not based on explicit
correct evidence in the Quran and Sunna and those that require reconsideration due to differences in time
and place. The reason for the existence of some opinions that are not based on explicit evidence in the
Quran or Sunna could be due to transcriptions or the narration of scholarly opinions across generations
without reconsideration or research. Moreover, it was customary for some scholars in the past centuries
to summarize their predecessors books, to simplify them or even expatiate; rarely did they introduce
new ideas. Then a faction introduced a fatwa claiming Ijtihad was haraam (forbidden) and called on
closing the door to Ijtihad and the production of thought. Therefore, jurisprudence remained static for a
period of time, almost unrecognizable to most people today. The early jurisprudential works were often
restricted on the time and place in which they were produced and were not meant to suit all periods of
time and places. This was the case until Imam Muhammad Abdo renewed a great deal of rulings that
could not be applied in his time (Bishry, 1996, p. 130).
Muhammad Abdo clearly expressed the need to update some Muslim practices in Egypt and his sup-
port for reopening the door to Ijtihad, calling on Muslims to look to the spiritual sources of their religion.
This gave Muslims, men and women, an instrument for reinterpretation anew and to reintroduce Islamic
regulations to their lives. This restructuring and revival of Islamic development gave Islamic feminists
a place in an Islamic cultural framework and an environment suitable for growth (Badran, 2001, p. 29).
2.2 The Conditions for Ijtihad
Ijtihad, or endeavor in independent reasoning based on the Quran and the Sunna, is permitted as long
as it keeps away from clear limits (hudud), obligation (fard) and forbidden issues (haraam). It is a wide
area and many instruments and methods can be utilized in extracting legislation. Ijtihad is actually where
most disagreements arise between the different scholars and their varying opinions. This goes back to
the different methods they used in devising the rulings and inferring them from the religious texts, as
well as adapting them to the different countries they lived in and their customs (Bishry, 1996, p. 132).
The mujtahid must be qualified for this task, and the conditions for this endeavor are divided into
two sets:
Unmerited conditions that are general and include: being a Muslim, being an adult and being sane.
Conditions based on merit and they qualify the individual to be a Mujtahid: First, knowledge of the
sources of legislation which involves, first and foremost, knowing the Quran. This in turn includes
knowing the reasons for the descent of the verses. The mujtahid must also know the Sunna, includ-
ing the oral Sunna and its transcription, as well as its meanings, implications, linguistic structure
and Hadith Studies.2 The mujtahid must also know the language and the tradition of jurispru-
dence, meaning how the rules are produced and attached to their evidence, their conditions, how
19

to apply them and their indications. The scholar must understand the concept of Ijma (the areas
of disagreement and consensus), when it is used and how a ruling is fixed by it. For there can be
no Ijtihad in what has already had Ijma (and no scholar ever opposed this but disagreed upon how
much they have to know). Second, complementary conditions and they include: understanding the
original obligations of religion. This means that the mujtahid must be fully aware that nothing is a
must except for what Sharia declared as an obligation and nothing is forbidden without verifica-
tion. Understanding the purposes of Sharia involves the comprehension of two main principles:
that Sharia is founded on peoples interests (necessities, needs and improvements) and being able
to deduce based on this understanding and its implications. The mujtahid must be well-versed in
the wholesome rules of jurisprudence, and Ijma. Moreover, the mujtahid must be well-aware of
the countrys customs and norms due to their significance in applying jurisprudential rulings. S/
he must practice its reason, its origin, rules and how it can be utilized. There are other personal
qualities that a mujtahid should possess as s/he must be just, industrious, good, honorable, pious,
chaste, wise, perceptive, observant, confidant and trustworthy and s/he must practice what s/he
preaches (Al Omry, 1986, pp. 60-115).
3. JURISPRUDENTIAL AND WOMENS RIGHTS MOVEMENTS:

THE ISLAMIC FEMINIST MOVEMENT IN EGYPT
3.1 Definition of Islamic Feminism
Islamic feminism, as a term, raises controversy, not only among those who are interested in womens
issues, but also among its feminists themselves. One can find that sometimes what it means differs from
its concept and objectives. Even those who belong to this movement sometimes have different views and
attitudes based on their different intellectual, social and cultural backgrounds. Through the following,
the author will discuss some of the issues related to this movement in an attempt to reach a definitive
rendering of Islamic feminism.
Amal Qurami ensures that the concept of Islamic feminism is very difficult due to the absence
of a definite, clear and unified definition. Researchers of this movement did not pay much attention to
refining the appellation. What is known is its obvious relation to the word female (women); it is known
also as an intervention medium to analyze the community and history in order to change the unfair con-
ditions of women. It also describes a reform strategy that aims at changing the community structures.
In addition, its relationship to Islam and what is behind its link to Islam has not been defined either,
which increases the difficulty of its concept. Questions have been raised as to where does Islam stand in
the context of this movement, and whether it refers to the Islamic doctrine, to the practice and history,
or to the existing texts; these have not been answered yet. Finally the author also noticed that even the
activists of the movement addressed the concept of Islamic feminism through different perspectives
(Quramy, 2012, pp. 32-42).
Throughout the following, the author will review some attempts at developing a specific definition of
Islamic Feminism: Ziba Mir-Hosseini defined Islamic feminism as an awareness and a new method,
as a gender- based feminist speech with regard to its demands, and as an Islamic doctrine in terms of its
language and source of legitimacy (Mir-Hosseini, 2006, pp. 629-645). Saleh (2010, pp. 27-47) defined
it as a movement that includes activists and researchers who defined themselves within the frame of the
20

Islamic pattern, and who addressed womens rights in the context of the Islamic texts and traditions.
Miriam Cook sees that this term is used to describe the efforts and discourse of those who call for
womens rights within the context of true Islam, while others refuse the possibility of using this term:
they believe that feminism is inconsistent with the traditional Islamic instructions and practices (Cook,
2003, pp. 569-581). On the other hand, Abu Bakr (2001, p. 4) suggests that Islamic feminism can be
defined from various perspectives as it can represent an active movement, a religious doctrine or even
a research activity. She sees that:
The feminist Islamic researchers focus on finding and suggesting alternative solutions in the con-
text of Islamic values. These researchers do not aim to criticize or attack the Islamic heritage of
religious texts interpretations.
The Islamic feminist speech is based upon two premises:
The first is the need to reconsider the traditional interpretations of the Quran in order to intro-
duce new ones that apply the real meaning of Islam and reflect the actual status of women in
Islam. These new interpretations will avoid all the cultural and social factors that change evi-
dence. Thus the focus will once more be upon the strong religious references to the concepts
of justice and equality, instead of on the culturally-justified interpretations that commonly
circulate and which enhance mens domination over women.
The second focus is what Abu Bakr (2001) refers to as the turning of the table. Her empha-
sis is on the man and his role as a husband, father and son rather than the usual portrayal of
what the womans role, responsibilities and commands should be that God prescribes. So,
it is important to focus on the man, the meaning of manhood, his roles and responsibilities,
and how he sees them in general. It is important also to focus on the role of the mujtahids
who interpret the religious texts related to men with regard to the threats and intimidation
when they neglect any of their roles and responsibilities, and in terms of the warnings in case
they abuse their power over women. Abu Bakr (2001, p. 4) believes that this is an important
requirement in this day and age.
Islamic feminism is a movement that seeks to produce an intellectual output and to develop a
religious speech that focuses on positive aspects. It is a movement that shows the Divine justice
reflected in the Quran and which guarantees the right to equality for all people, both men as well
as women. As a movement, it emphasizes that the relationship between mankind and his/her God
does not require any mediator to understand what He means and refers to within His Holy Quran.
On the other hand, Badran (2001) defines Islamic feminism as a feminist speech and a practice focused
on the Islamic model. As a movement, it is meant to implement goals within the context of Quranic
interpretations and seeks to ensure justice and equality for both women and men. Badran (2001) also3
sees that it is important to differentiate between Islamic feminism and Islamic feminist discourse. She
shows that what characterizes this movement is its efforts to achieve equality and social justice between
men and women. While todays feminist discourse sometimes does not represent the movement itself: it
only refers to some scattered ideas that Badran (2001) describes as talk show feminism.4
Through the literature review and interviews conducted by the researcher, it has become evident that
Islamic feminism, from the point of view of those who belong to it, can be defined by within the context
of the following four concepts:
21

Islamic feminism describes those who try to defend womens rights and achieve equality between
women and men.5
As a trend, it derived from Feminism in general, but in consideration of the customs and traditions
of the eastern societies (which differ in some matters from the western context, especially after the
emergence of ideas that do not fit with the Arab Islamic traditions in the context of the feminist
movement).
Islamic feminism refers to those who use the Islamic discourse to influence public opinion on
womens issues especially that the Islamic discourse is generally thought to be one of the best and
most effective methods to influence and convince people. However, one must accept that some of
those who use the Islamic discourse to influence others do not believe in it themselves and are not
convinced by it, and sometimes they attack specific matters and issues within Islam.
Islamic feminism also refers to any production of knowledge concerned with womens issues and
the achievement of equality between men and women.
3.2 Why Islamic Feminism in Egypt?
By reviewing the literature, the researcher found that sometimes there is a radical difference between
the ideas and the ideologies addressed in the context of Islamic feminism in the Arab world as opposed
to the West. It is fair to say that feminists differ from country to country, from those in the US, to those
in Malaysia, and those in the Arab countries like Lebanon, Tunisia, Morocco and Iran when address-
ing issues. The first are known for not being committed to the Islamic doctrine and therefore they do
not consider the Hadith that is being represented by the western Islamic feminist trend, while in Arab
countries they focus on the jurisprudential heritage in context of their respect to Islamic doctrine. They
only try to present their ideas liberally. Although they are predicated on a basis of legal rules, some of
them do manage to effectively influence their societies. The modifications that took place in the personal
status laws in Tunisia and Morocco are the best example of this achievement. Similarly, in Tunisia, po-
lygamy has been outlawed and was curtailed in Morocco. The difference here is based upon the social
religious context of each society. Tunisia, as opposed to Morocco, is one of the Arab countries which
were strongly influenced by secularism.
In Egypt, the situation differs greatly due to its specificity. Egypt is distinguished by the multiplicity
of its cultural and intellectual contexts. It includes all the intellectual trends, though the Islamic trend is
the most widespread. But today, secularism is gaining ground again, after the period of blind subjugation
to a political Islamic trend which only aimed to achieve political gain under the cover of religion. By
the same token, the political Islamic trend produced ideas offensive to Islam under the guise of Islamic
legislation.
The Islamic trend mentioned in the beginning of this section represents the majority who are commit-
ted to the religion as well as those who try to follow its injunctions. For them, Islam represents a major
part of their life and thought. It influences all their decisions and draws their future. This, in fact, is the
real focus of Islamic feminism in Egypt, therefore the researcher characterize it as conservative liberty.
It advocates for freedom and equality but on a conservative basis that is to a great extent committed to
Islamic Sharia. For example, Islamic feminists here stand against polygamy, as in Tunisia, but they
call for restricting it and not preventing it totally. In addition, they only tackle the jurisprudential views
22

that are allowed to be reviewed. One can say that they adopt a moderate approach suitable for Egypt and
its specificity. They are working hard to provide women with their rights and to find solutions for their
problems within the context of these particular characteristics.
3.3 Jurisprudence and the Islamic Feminist Movement
The relationship between the schools of Islamic jurisprudence and the Islamic Feminist movement is
controversial and one-sided. One of the methods used by Islamic feminists is to study and research
religious texts like the Quran and the Sunna in an effort to present a fair perspective that can represent
women fairly. They also revise the jurisprudential tradition and apply themselves to Ijtihad to come up
with a new Fiqh that can achieve equality and social justice for women. Nonetheless, this Ijtihad is done,
to a great extent, away from jurisprudential thought, even though jurisprudential references should be a
primary pillar in a methodology that strives to re-examine the Islamic heritage of Fiqh.
There were several explanations for this approach by the Islamic feminists: jurisprudential scholars
are condescending in their interaction with Islamic feminists and refute their arguments without con-
sideration even if they are legitimate. Some say that it was the fault of jurisprudential scholars who
failed to make an effort in exploring new cultural and social trends and are quite rigid in their approach.
Another opinion noted that the scholars are inaccessible or are rather difficult to contact because they
are irresponsive and busy.
The scholars of jurisprudence on the other hand argue that the reason for this one-sided relationship
lies in that the Islamic feminists work and efforts are not advertised or well-communicated. Therefore,
their work is difficult to follow and is essentially unknown. Others agree with this while explaining
that they are completely open to discussing these ideas and rethinking current problems, ideologies and
social and economic circumstances. They also stress the importance of revising long standing religious
institutions before coming up with any new Ijtihad.
This chapter considers both parties responsible for the lack of communication: the Islamic feminists
do not advertise their work enough and their audience is rather limited as their discourse targets only a
specific cultural and intellectual category. It is also appears to be the case that the feminists are dissuaded
from seeking out the scholars or other established religious institutions. That is not to say that there is
no contact between the two sides, but that it must be more serious. Regardless, they may be dissuaded
for a couple of reasons, the first of which is the general condescending approach of scholars toward any
new ideas under the dictum that there are no problems to begin with. Thus, contact between the two
starts shrinking to near breaking point. Second, there is a desire to work more freely on the part of the
feminists aware of the degree of rejection and resistance their ideas would beget. The scholars have just
as much responsibility. They are difficult to reach due to the fact that most of them are extremely busy
and unavailable for serious and in depth discussion as noted by the feminists. In addition, there is a lack
of interest in new productions of thought, approaches and ideologies, and even when the scholars are
well-aware of their existence; they sometimes underestimate its effects. All this discourages communi-
cation between the two parties.
A common question raised is how jurisprudence exists in Islamic feminist circles. Is jurisprudence
used in an effort to reach new Ijtihad that achieves equality for women and provides an objective feminist
perspective (provided that the Quran and Sunna are read objectively)? Or will jurisprudence be employed
23

to achieve feminist goals, so that an unfair jurisprudential product is the result and would be in this case
dubbed Feminist Fiqh? Indeed, some members of the movement already refer to it as such, and it
involves issues and fatwas that are indeed related to women.
However, the feminist jurisprudence that will be discussed here will attempt to interpret religious texts
possessed by the notion of escaping patriarchy. This fixation will of course affect the objectivity of their
production of thought. The author brought this issue up with a number of feminists and their responses
were rather biased emphasizing that it would be extremely hard for Feminist Fiqh to be impartial when
it is in fact a response to patriarchal bias. Another response suggested the need for experimenting with
a strand of jurisprudence partial in favor of women since we have already attempted patriarchal Fiqh.
Yet another opinion explained that the concept of objectivity cannot be ensured because bias is inherent
in this researchers own opinions.
4. ISLAMIC APPROACH AS A PREVENTION AND

THERAPEUTIC JURISPRUDENCE
As mentioned earlier, Islamic Sharia is more complete than Fiqh, which gives spread ways to dealing
with social disorders or problems, not just in therapeutic method but as prevention approach. Both the
Holy Quran and the Sunna endorse womens rights and their good treatment as they must be respected,
given all the rights equally with men, lengthily expounded in a whole Surat (or verse) of the Quran
named El Nesaa (the Women). This surat sets down the womans rights in inheritance; in engage-
ment, in marriage and how her husband should treat her; it spells out her rights in divorce and even after
it; she also has rights to claim when the husband chooses a second wife. Woman is honored in Islam
to the extent that man is made to care for her and manage her affairs. She is viewed as an independent
individual who keeps her own name, her own properties, is financially independent and has complete
freedom managing her own life. She is also regarded as a delicate being, a symbol of comfort and affec-
tion, honored three times more than man and it is said that Paradise is laid out under her feet.
So how does Islam Protect and Help Women?
It draws guidelines and rules to prevent this violence (whatever form it may take), right from the
beginning; throughout the Quran, there are reminders of the honored status of women and warnings to
any who might harm. This protection and these warnings take many aspects, among which the author will
focus on two: as a law and as a tool for socio-cultural change, informed by ethics, tradition and customs.
4.1 Islamic Sharia as a Law
So Muslims in Arab countries depend on the Sharia when they set down laws and define jurisprudence.
In the past there used to be Islamic courts, now there are Personal Status Laws and we shall see how
those developed.
Islamic culture entered a period of stagnation during the Middle Ages and the state of fragmentation
of the Islamic world allowed it to be conquered by colonial powers. Many thinkers criticized the Islamic
world for neglecting thought and reason and as such, it became unable to cope with modernity, locked
as it was in its own past glory. When World War I occurred, Islamic countries were shaken out of their
24

lethargy and there were attempts to make some structural changes, but most of them were imported sys-
tems from the West which completely ignored their regional roots and cultural strengths. This resulted
in the isolation of the majority of the population which eventual led to a conservative religious reaction.
Al Jabri called for fixing this situation by returning to the original sources of Arab Islamic culture and
their rational interpretive methodologies (Sonn, 2003, pp. 534-539).
It can be argued that the beginning of the transformation occurred in the presence of colonial pow-
ers in the region. That is because even though we can find a number of jurisprudential interpretations
that date back to then, the actual laws used at the time were a mixture of jurisprudential, customary
and philosophical rules common in the 19th century (especially with regard to the relationship between
men and women). These laws and the inclusive methodology dealing with gender (male or female) in
society reflect European values, traditions, norms, laws and educational systems of the time: they were
Euro-centric. Despite the fact that European women did away with some of these philosophies and laws
since then, those have remained embedded in the family laws of the Islamic countries once colonized by
the French or the British. Perhaps one of the main reasons behind the recent changes in the treatment of
women in courts was the creation of new separate laws. These stopped referring to the older legislations
placed by the earlier courts. Instead, modern states drafted legal codes collected by various committees
and new ones were placed between the hands of judges that were taught in modernized schools. In this
manner, the logic governing the earlier court systems was curbed providing a possibility for flexibility.
The common practices that were originally linked to the communities they served were therefore replaced
(Sonbol, 2009, pp. 179-207).
4.2 Islamic Sharia as a Socio-Cultural Change Tool
Islam was also known as the religion of better treatment; Prophet Muhammad (PBUH) said: I was
only sent to complete the morals,6 which means that Islam emphasizes ethics and good treatment be-
tween people, by putting down rules to moderate behavior. Changing the prevailing behavior is the first
and most important step in social constructing; religion is also a means of rectifying unfair traditions
and customs which promote negative attitudes, especially toward women.
These rules of Islamic religious principles in general, and those concerning women in particular (as
delineated in the religious texts), have emphasized womens rights in marriage, and warned husbands
of violating or treating them badly. These warnings are considered prevention of any violence, either
physical or emotional, in order to protect women.
Here are some of these rights as spelled out in the Quran and Sunna and applied by the Companions
and their Followers of Islam:
It is forbidden for a man to deliberately abandon his wife (leave the marital bed), for he is obliged
to satisfy all her needs as best he can. Sharia law is not confined to the womans responsibility
to respond to her husband, but also requires him to deliver her rights, protect and provide for her.
Where the Quran says: And you will never be able to be just [in feeling] between wives, even if
you should strive [to do so]. So do not incline completely [toward one] and leave another hang-
ing (Al Nisaa:129). Imam Abu Bakr Al Jasas explains that it refers to sexual intercourse. In
other words to leave another hanging means that either woman is neither free to marry another
and nor is she fully married due to the absence of intercourse,7 and therefore she is not getting her
rights as she should.
25

A man is not to leave his wife for a long period of time or to neglect her right to live in the mari-
tal home. The Quran says: For those who swear not to have sexual relations with their wives
is a waiting time of four months, but if they return [to normal relations] - then indeed, Allah is
Forgiving and Merciful (Al Baqara: 226). This means that if the husband swears not to sleep with
his wife in a fit of anger, it cannot be for longer than four months. After that he can either give
her that right and repent or divorce her to spare her any further harm (Al Watban, 1991, p. 456).
The Prophet Muhammad (PBUH) explained that a woman should not overwhelm herself with non-
obligatory worship if it causes her to neglect her husbands right. In the same way, a man should
not be so occupied with non-obligatory worship to the extent of neglecting his wife. Abdullah bin
Amr bin Al Aas reported the Prophet as saying: Abdullah, I was informed that you fast by day and
pray all night; I said: yes, Messenger of God. He said: But do not; fast and break your fast, rise to
pray and sleep, for your body has a right to you, your eyes have a right to you and your wife has a
right to you too; so give each their right.8
A mans kind treatment of his wife and good manners are a measure of piety and peace in Islam.
By Abu Hurairahs account the Prophet said: The most pious of believers are those who have the
best character, and the best of you are those who are best to their wives. 9
The Companions took this right seriously: Hafsa, the Mother of Believers, reported that her fa-
ther Omar Ibn Al Khattab had asked her: How long may a woman bear her husbands absence?
She replied: six months (another account says four). At the time Ibn Al Khattabs army had been
away for more. It is said the he wrote to his commanders to allow all soldiers who had been away
for more to return home to relieve their wives and bring them their alimony.
The Prophet Muhammad (PBUH) said: Women are the twin halves of men, only the generous
are kind to them and only the depraved would humiliate them. 10 He also said: The best of you
is the best to his family, and I am the best to my family. 11 He said: The most perfect of believers
in faith and the closest to me, are the kindest to their families 12.
During the Farewell Pilgrimage, the Prophet said: Fear God in women for they are first and fore-
most your helpers. Unless they commit a grave sin, then you are to leave their beds and chastise
them, but not severely. If they obey you, do not overdo it. Women owe you rights and you owe
them the same. As for what they owe you, they do not do what you hate (sexually), and do not
allow into your homes those you hate. And you owe them kind treatment, clothing and food. 13
The Prophet told Jaber when he came to him from travel: If night comes, do not enter your home
until she can wax [pubic hair] and comb her hair. 14 Meaning that it is not advisable (makrooh)
to enter the home suddenly after a long period of absence so that he might not see what he does
not like in his wife. He should give her the space to prepare herself as she would like to be seen,
in her best state.
A woman has the right to a virtuous and kind cohabitation; the Prophet said: I warn you regard-
ing the rights of two weak persons: the orphan and the woman. 15
A wife should be cared for when ill: as an example of this right, Othman Ibn Affan stayed back
from the Battle of Badr (Ghazw Badr) because his wife Roqayah (also the Prophets daughter) was
ill. The Prophet said: Stay with her, and you will have Gods reward for jihad and whose arrow
witnessed Badr. 16
She has the right to his assistance in household chores! Aisha said: The Prophet was at his fam-
ilys service, and when prayer time came he left to pray. She also said: He was a person who
cleaned his robes, milked his goat and served himself.
26

Men must also make the effort to look good and pleasing to their wives just as much as the lat-
ter must make the effort to beautify themselves for their husbands. The Prophets Followers un-
derstood this from the following Quranic verse: And the due to the wives is similar to what is
expected of them, in accordance with what is reasonable (Al Baqarah: 228). Similarly, Ibn Al
Abbas said: I groom myself for my wife, just as she does for me. For I would not neglect her right
as she does not neglect mine, because God has said: And due to the wives is similar to what is
expected of them, in accordance with what is reasonable.
Al Imam Ahmed was asked once: How long can a man be absent from his wife? He answered:
Six months, it is written; and if he refuses to return to her, the ruler will separate them if the wife
is in harm and has asked for separation.
5. CONCLUSION
Committing acts of violence against women is a great evil and several interventions are needed to stop
it, be they psychological therapy, social or cultural. The author firmly believes that, given the current
societal context of Muslim countries, religion is an essential part of the solution to overcome this chal-
lenge. Religion has a tangible effect on social and cultural beliefs, as well as on the reigning mentality,
and thus would positively impact the situation of women.
This chapter discussed the Islamic religion as a therapeutic approach to reduce violence against
women. The author set the background with a discussion about Islamic Shariaa and Fiqh, the differ-
ence between the two, and between Ijtihad and the imperative need to renew Fiqh in order to rectify the
modern deviations from the original sets of rights as set down in the Quran and the Sunna.
The author also tackled the relationship between the Islamic Feminist Movement and Islamic juris-
prudence as well as the opinions of its scholars. She presented how the members of the movement define
Fiqh and how the movement grapples with it. Defining this relationship is important in discerning the
framework within which the movement intends to function and build upon. Many people mistakenly
think that this movement is a part of general jurisprudence and dub it Feminist Fiqh when in fact it is
the product of Islamic feminist Ijtihad.
In conclusion, the author argues that Islam is not only a divinely sanctioned injunction to protect
women, but also a temporal tool of jurisprudence, a powerful prevention technique via using the Islamic
approach in law, as well as tool for spiritual therapy and socio-cultural reform of womens rights as set
down in Islamic sacred texts.
ACKNOWLEDGMENT
The author thanks Dr. Sherin Darwish for her preliminary editing of this chapter.
REFERENCES
Abu-Bakr, O. (2001, Winter/Spring). Islamic Feminism? Whats in a Name? Preliminary Reflections.

Middle. East Womens Studies Review, 15(16), 4.
27

Al Ashqar, O. S. (1982). History of Islamic Fiqh. Al Falah Library.

Al Bishry, T. (1996). In the contemporary Islamic issue - the contemporary legal status between Islamic
Sharia and statutory law. Cairo: Al Shorouq.
Al Khoshooey, M. (n.d.). Al wajeez fi ulum al aHadith. Al Qahera: Wizarat al awqaf.
Al Omry, N. S. (1986). Ijtihad in Islam. Beirut. Al Resala, 3, 60115.
Al Watban, A. R. (1991). Signs on the road to chastity. Riyad: General Directorate for Publications.
Badran, M. (2001). Pioneers of the Egyptian Feminist Movement and Islam and the State (A. Badran,
Trans.). Cairo: The Supreme Council of Culture, The National Project of Translation.
Badran, M. (2002). Islamic Feminism: What is in a Name? Al-Ahram Weekly, 17-23(569), 1-8.
Cook, M. (2003). The American and European Feminist Studies and the Islamic Cultures (H. Kamal,
Trans.). In Women and the Islamic Cultures Encyclopedia (Vol. 2, pp. 569581). London: Dar Bril.
Huguelet, P. (2015). World Psychiatric Association, (WPA). Section on Religion, Spirituality and Psychiatry
WPA Releases a position statement on spirituality and religion in psychiatry. Retrieved from http://reli-
gionandpsychiatry.org/main/wpa-releases-a-positionstatement-on-spirituality-and-religion-in-psychiatry
Masoud, M. K. (2001). The divergence of scholars: Varied jurisprudential opinions as a social con-
struction. In Z. Anwar (Ed.), We want equality and justice in the Muslim family (pp. 7197). Malaysia:
Sisters in Islam.
Mir-Hosseini, Z. (2006). Muslim Womens Quest for Equality: Between Islamic Law and Feminism. In
Critical Inquiry (pp 629-645). Chicago: The University of Chicago.
Quramy, A. (2012). Islamic Feminism: a new feminist movement or a feminist strategy to reach the rights.
In The Arab Future Magazine (pp. 3242). Lebanon: The Arab Union Studies Center.
Saleh, H. (2010). From Ijtihad to Gender Jihad: Islamic Feminists between Regional Activism and
Transnationalism. In Diversity and female political participation views on and from the Arab world.
Berlin: Heinrich Boll Stitung.
Sonbol, A. E. A. (2009). The Genesis of Family Law: How Shariah, Custom and Colonial Laws Influ-
enced the Development of Personal Status Codes. In Z. Anwar (Ed.), We want equality and justice in
the Muslim family (pp. 179207). Malaysia: Sisters in Islam.
Sonn, T. (2003). Philosophy (M. A. Halim, Trans.). In Encyclopedia of women and Islamic cultures
(Vol. 2, pp. 534539). London: Brill.
ENDNOTES
1
Hadeith Saheeh, narrated by Abu Hurairah. Narrated by Abu Dawud (no. 4291) and classed as
Saheeh by Al Sakhawy in al maqased al hasanah (149), and Al Albany in al selsela al saheeha
(no. 599).
28

2
Hadith Studies can be divided as such: 1. narration (Riwaya), which includes everything narrated
from what the prophet had said, down, described or agreed on or opposed. 2. terminology (Diraya),
a study of the rawy and marwy in order to accept them or not. It includes many methodologies and
sciences: classification, criticism, studying the rawy and his characteristics (dubbed the Study of
Men), studying the copier and there are more than 50 sciences. (See: Al Khoshooey Muhammad,
Al wajeez fi ulum al aHadith, (Al Qahera: Wizarat al awqaf), pp.15-18.
3
An interview with Margo Badran.
4
A title of a TV Talk Show program that depended on dialogue without reaching a certain objec-
tives.
5
In this context, we can say that Islamic feminism began with the era of the Prophet Muhammad
(PBUH). Om Salama, the Prophets wife, was the first to call for gender equality when she asked
about the discrimination between men and women in inheritance and invasions. (Megahed informs
us that Om Salama asked the Prophet why men participated in the Islamic invasions and women
did not, and why did women only get half of what men inherited. God answered her through a
Quranic verse that says: And do not wish for that by which Allah has made some of you exceed
others. For men is a share of what they have earned, and for women is a share of what they have
earned. (El Nisaa, 32). We have also Asmaa bnt Yazeidein El Ansary who was wise: she was
interested in organizing women and calling for their rights. She has been called the representative
of women as once she visited the Prophet in the mosque on behalf of Muslim women. She told
him: I am representing women who believe in what I believe in and who have the same opinion
as I. God has sent you for both men and women, yet men share the greater part of you, so we need
you to devote one day for us to teach us about Islam and its values. The Prophet promised to do
so. She also transmitted more than eighty Hadith from the Prophet.
6
Mogamea Alzawaaz, 9/18.
7
Ismail Al Moqadem, The return of the veil, ibid, p.430
8
Saheeh Al Bukhary, The book of fast, chapter on life-long fast. No. 1976, and the book of marriage
no. 4903.
9
Imam Ahmed, 16/114.
10
Imam Ahmed in: Masnad Al Ansar, 5869.
11
Narrated by Ibn Majeh.
12
Narrated by Al Tirmidhi.
13
Agreed upon, narrated by Muslim, Al Bukhari, Ibn Majeh and Al Tirmidhi.
14
Al Boukhary, Nekah book, 5300.
15
Hadeith saheeh on Muslim conditions, but he didnt narrated it, 220, in El Mustdrak Ala Al Sa-
heeheen, Iman book.
16
Al Boukhary, Othmans advantages, 3465.
29
30
Chapter 3
Love Marriages, Inter-Caste
Violence, and Therapeutic
Jurisprudential Approach
of the Courts in India
Debarati Halder
Centre for Cyber Victim Counselling (CCVC), India & Unitedworld School of Law, India
K. Jaishankar
ABSTRACT
India is a country of multiple religion, castes, and linguistic groups. The Indian constitution guarantees
for equal treatment of laws irrespective of religion, caste, creed etc. Similarly, the modern marriage
laws provide opportunity to marry inter-caste or inter religion. In modern India there is a huge growth
of inter-religious, inter-caste, cross cultural love marriages, however, many societies in different parts
of India are still reluctant to accept such mixed marriages. Couples of such mixed marriages may suffer
various sorts of victimization including violent assaults. Children of such mixed marriages may also suf-
fer social ostracism. Also, due to social attitude, such mixed marriages may miserably fail. This chapter
aims to find out whether courts in India have Therapeutic Jurisprudential role in saving such marriages
and how the implementation of such TJ approach may be made possible.
INTRODUCTION
In India, love marriages are accepted forms of marriages, since the ancient period. In ancient Indian
texts, such forms of marriages were known as Gandharva vivaha, (Rao, 2009, p. 180) and this required
only the consent of the bride and the groom. This form of marriage was however considered as an un-
approved form of marriage since it did not involve kanyadan or presenting the daughter to the groom
by the father of the daughter (Rao, 2009, pp 180). However, Gandharva vivaha as a socially accepted
form of marriage finds mention in ancient epics like Mahabharata, whereby it is found that Emperor
DOI: 10.4018/978-1-5225-2472-4.ch003

Love Marriages, Inter-Caste Violence, and Approach of the Courts in India
Bharata, the ancestor of Pandavas and Kauravas was born out of a Gandharva Vivaha of his parents,
King Dushyant and Shakuntala (Meyer, 1989). With the influx of different invaders belonging to dif-
ferent religious and cultural sects in India including the Greek and Arab invaders in the ancient period,
Muslim invaders in medieval period and lastly the European invaders, the Indian society, especially the
Indian Hindu society became more orthodox towards allowing love marriages which may necessarily
include inclusion of individuals from different socio-religious backgrounds. The Indian Hindu society,
which was already divided based on the Varna system,1 became more stringent towards accepting any
sort of marriages, which may involve two individuals belonging to two Varnas (or castes), two separate
geo-locations with different cultures, separate linguistic sectors and religions.
In several Indian States, other than the fear of dilution of particular societal values nurtured in par-
ticular societies, such sorts of love marriages are also discouraged for the fear of distribution of property
to people from other sects. In the medieval and colonial periods, social reformers in India including
Raja Ram Mohan Roy from eastern India, especially Bengal, Subramania Bharathi and E. V. R. Periyar
from Madras Province etc. fought for abolition of caste /religion/language based discrimination in every
field including marriages. Such reformatory ideology was carried in to modern Indian constitution by
Dr B. R. Ambedkar, who framed the Constitution of the modern India. The first few provisions of the
Constitution of India including Article 14 (equal protection of laws to all), Article 15(prohibition of
discrimination on grounds of race, religion, caste, sex or place of birth), Article 21 of the constitution
(Right to life, liberty and property) etc. are the anti-discriminatory provisions which guarantee equal
rights to all citizens including right to marry according to ones own choice. This very understanding was
reached by the Supreme Court of India in the case of Lata Singh vs. State of U.P. and another (2006).2
Nevertheless, inter-caste, inter-religious and inter-linguistic love marriages are still not accepted by
many societies in India. Such marriages may often see devastating results including honour killing or
forced separation by families. Even though India has laws for facilitating such sorts of mixed marriages,
oftener than not, the purpose of the said law, namely Special Marriages Act, 1954 failed miserably due
to various reasons including unawareness of the interested stakeholders about the nuances of the law,
courts failed attempts to restore the marriages with Therapeutic Jurisprudential (TJ) approaches and lack
of general awareness about TJ scopes of the courts to protect couples thus married. These issues came
up again and again in recent times with especially two recent cases from Tamil Nadu, viz., the alleged
suicide of Illavarasan, a Dalit (lower caste) boy, who had an inter caste marriage with a caste Hindu
girl (a middle caste), and the brutal killing of V. Shankar, a Dalit boy, who married a caste Hindu girl.
While in the earlier case, even though the Madras High court had the opportunity to use TJ principles
to reintegrate the couple, it failed to do so. In the latter case, the same Madras High Court had issued
guidelines to protect inter-caste, inter-religious and inter-linguistically married couples from violent
social outbursts including honour killing or social ostracising.
This chapter examines the issue of TJ from the aspect of Indian courts execution of laws and guide-
lines to protect such love marriages in India. This chapter follows doctrinal methodology and relies on
secondary data, namely court cases, scholarly articles etc. This chapter is divided in to two parts. The first
part discusses the issue of Indian socio-legal approach to love marriages, honor killing and love jihad; the
second part discusses about to legal approaches to inter caste, inter religious and interstate marriages in
India with special reference to courts intervention in specific four cases of such sorts of love marriages.
This part further examines the possible TJ approach, which the courts may have exercised in managing
victimisation of women involved in such marriages. This chapter limits its scope with problems of love
marriages between (i) Hindu men and women belonging to different castes, and (ii) love marriages where
31

either of the parties is a Hindu, involved in marriage with individual from other religion and possible TJ
role of the courts from the Hindu family law and the Special marriages Act perspectives and does not
include examination of private laws of other communities, including Muslim and Christians in regard
to love marriages between members of these two communities due to lack of time and available data.
PART I: LOVE MARRIAGES, HONOUR KILLING AND

LOVE JIHAD: SOCIO-LEGAL APPROACH
The modern Indian constitution does not have specific provision to recognise right to marry as per own
choice as a basic fundamental right. Instead, this right stems out from the basic right to life and liberty
under Article 21 of the Constitution, which says, No person except according to the procedure established
by law shall be deprived of his life or personal liberty. With the broadening judicial understanding about
right to life and liberty, Article 21 was expanded to cover rights to food,3 shelter,4 privacy,5 etc. In India,
marriages being governed largely by private laws, it was assumed that right to marry and have family
might automatically come within the purview of Article 21.6 Interestingly right to marry and family did
not have a separate understanding regarding right to marry according to ones own choice (love mar-
riage) from right to marry as a societal right until lately. Seeing from legal aspects, there can be four
types of marriages in India: (a) sagotra marriages (as per the Hindu rituals), (b) non-sagotra marriages
(as per Hindu rituals and laws), (c) intra-religious marriages as per personal laws (Muslim, Christian
marriages) and (d) inter caste/religious marriages (as per the Special Marriages Act, 1954). The first two
sorts of marriages may in general involve choice of partners from among their own societies by family
members, or in exceptional cases, choice of partners by the prospective bride or the groom with approval
from the families. In case of arranged marriages there may or may not be pre-marital introduction of the
prospective bride and groom; and in certain cases only when the families have known each other for a
longer time, pre-marital introduction or courtships may be allowed and the respective families would
have decided to make the wedlock at time when prospective bride and groom may have been children.
In all such cases, marriages may be governed by their own personal laws, rituals or customs, which may
have been recognised by the laws of the land; these may include personal laws including Hindu marriage
laws. These marriages may have their own social rituals and customs involving family members, elders
of the particular society or tribe etc.
It may further be interesting to note that many of such marriages and customs are further divided
by the social practices of particular geo-locations. For example, while most Hindu societies in northern
India do not allow marriages within the same Gotra or family, most of the Hindu Societies in Southern
India on the other hand encourage marriages within the Gotra or the families.7 To lay the confusion at
rest, the modern Hindu marriage law, viz., the Hindu Marriages Act, 1955 codified the capacity of each
relationship to enter into marriages under S.3 (g) under the broad head, namely prohibited relationship.8
As such, the list of such relationships was further elaborated under S.2 (b) of the Special Marriages
Act, 1954 that provides a list of prohibited relationships for marriages under the 1st Schedule.9 However,
while such listing of prohibited relationships may apparently show that certain Sagotra marriages (as
are held in southern India) are invalid, S.5(iv) and (v) of the Hindu Marriages Act, 1955 clarifies this
by stating that A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled............ the parties are not within the degrees of prohibited relationship unless the custom or us-
32

age governing each of them permits of a marriage between the two; and the parties are not sapindas of
each other, unless the custom or usage governing each of them permits of a marriage between the two
The latter two sorts of marriages mentioned above paragraphs may not involve choice of partners by
family members; they may not be necessarily arranged marriages and may in general be love marriages.
Such marriages may be governed by personal laws of the parties involved, as per their own choices of
laws. These may be Muslim marriage laws, Christian marriage laws, Special marriages Act, Arya Samaj
marriages etc.10 However, it should not be assumed that legally inter caste and inter religious marriages
are not permitted in India. Right to life and liberty under Article 21 of the Constitution of India, which
expands its scope to cover right to privacy and right to choose ones own partner for marriage, family,
right to practice a particular faith or embrace new religion under Article 25 and right against discrimina-
tion on the basis of gender under Article 15 are some of the basic tenets which form the right to choose
ones own life partner irrespective of caste, religion, language and race.
India being a multi-religious, multi linguistic and multicultural country, the lawmakers felt it apt to
create laws for marriages, which may involve more than one religious, cultural and societal practices and
rituals. With this aim, The Special Marriages Act was created in 1954.11 This law was made specifically
to recognise such special forms of marriages and to facilitate divorces in such cases. This provision
(which extends to all citizens in India and to those domiciled in Jammu Kashmir) in the very first chapter
explains about the degrees of prohibited relationships in S.2.12 It needs to be understood first that norms
regarding relationships for the purpose of marriages and succession of properties had been established
in India by ancient lawmakers. According to these norms, degrees of prohibited relationships include
sapinda relationships, signifying that group of people who offer ritualistic respects to same ancestor/s.
Similarly, Sagotra marriages or marrying within the same Gotra, which further signifies ancestral family
unit, also falls under prohibited marriages as per the ancient marriage laws in India.
The Sapinda relationships, sagotra relationships etc. of the ancient marriage laws later framed the
modern degrees of relationships as recognised by modern laws in India, especially the Hindu marriage
laws.13 Even the colonial rulers maintained these prohibited relationships in marriages when modern
Hindu family laws including marriage, succession and adoption laws were framed. The older Hindu
marriage laws also included inter religious and inter caste marriages as void marriages since such sorts
of marriages were prohibited by ancient lawmakers. The modern Hindu marriage law of 1955 however
has removed such anomalies and made marriages between two Hindus legal unless they are falling within
the prohibited relationships. However, as mentioned above, several customary practices still allow mar-
riages within the prohibited relationships in India; for example, in south India, especially in Tamil Nadu,
Andhra Pradesh and Karnataka, marriages with fathers sisters son/daughter or mothers own brother or
mothers brothers son/daughter are considered legal; similarly, in northern India, especially in Punjab,
marriage with brothers widow is also considered legal. This has been made possible due to exception
clauses, which give preference to existing customary practices in a particular society, which is ethically
and morally not against laws of the country as well as societal health as a whole. Nevertheless, at the
same time, these exceptions are not applicable to other societies where such marriages are void as per
customary practices of those societies. As such all other modern marriage laws in India have maintained
this norm for prohibited relationships in their respective clauses
As researchers have pointed out, in above sorts of arranged marriages and love marriages with
approval from the families, mostly brides are chosen on the basis of their chastity, moral values for
making good homes, adjustment capacities with other members of the family (Desai & Andrist, 2010)
and necessarily reproductive abilities. On the contrary, grooms are chosen mostly based on his earning
33

capacity, integrity towards family etc. (Caldwell, Reddy & Caldwell, 1983; Desai & Andrist, 2010).
Further, in India, marriages are made between families and not necessarily between two individuals.
As such, families thus united may add to the unit of families who may eventually fall under prohibited
or not prohibited relationship under the private laws. Families thus united, may also play crucial role
in distribution of properties, including landed properties (Caldwell, Reddy & Caldwell, 1983; Desai &
Andrist, 2010; Halder & Jaishankar, 2008).
Love marriages involving choice of partners from different castes and communities or geo locations
may not be approved by the family members or the society of either the bride or the groom or both on
various grounds including fear of dilution of particular social understandings, moral values and division
of properties amongst individuals belonging to different community or social unit (Caldwell, Reddy &
Caldwell, 1983). In Indian value system, love marriages against the wish of the family members or the
elders of the community or society are considered as extreme form of revolt against the established family/
community or social norms. The social mindset has been so set also because of the historical past in India
where local invaders from different tribes as well as non-Hindus including Muslims and Christians had
from time to time invaded cities and destroyed the socio-economic and cultural structure of the existing
societies. The fear of sexual exploitation of unmarried young girls by foreign settlers, including Muslim
and other colonial rulers and grabbing of the property in the name of forceful dominance was one of the
key factors for many Indian societies from different geo-locations to restrict marriages within the sect.
The medieval Muslim rulers avoided disturbing existing Hindu personal laws, which already had catego-
rised women as unsuitable natural heirs. However, son- in-law could still be considered as suitable heir
for those who did not have sons (Halder & Jaishankar, 2008, p 24). Incidentally, such apprehension was
also the key factor for conducting marriages within sects at very young ages and for performing heinous
rituals like Sati (Halder & Jaishankar, 2008, p 24).14 Historically families thus affected by invaders or
rulers, were socially shamed due to the polluting of the chastity of women by attackers or invaders
from different sects/tribes/religion/ countries. Such women were barred from returning to their families
and in order to save the honour of the families, several of such women and girls were killed by family
members or by the community members in the name of honour.
With the Bengal renaissance during the 19th and early 29th century, the newly enlightened youth were
encouraged to break the orthodox social norms relating to marriages. Inter-caste, inter-religious mar-
riages, widow remarriages and prevention of sati were encouraged not only by the social reformers
(Chaudhuri, 2010), but also by the colonial British government who passed several laws, including the
Indian Penal Code,15 with provisions prohibiting torture on women, caste related violence, murder and
instigating religious unrest, which may necessarily occur due to inter-religious/caste marriages (Halder
& Jaishankar, 2008). However, the colonial government like their predecessor medieval Muslim rulers,
avoided disturbing the customary laws relating to marriage and succession and hence no uniform law
was created to regularise inter religious marriages or to reintegrate the couple or child born from inter
caste or inter religious marriage with families for succession purposes. This lacuna in laws had further
enlarged the social exclusion of the couple who had married inter caste, inter religious out of their
own consent and wish. It must also be noted that since medieval period, women were not considered
as suitable heirs to the ancestral properties (Halder & Jaishankar, 2008). This further had discouraged
welcoming of couples married against the wish of the family members into the family and community
as well as in the society as a whole. This trend has continued even after India gained independence and
reformative laws like the Special Marriages Act, (1954) were introduced to remove anomalies related
34

to inter-caste/religious marriages, succession rights of women and children born out of such marriages
(See Halder & Jaishankar, 2008).
Post Babri Masjid demolition (1991), which caused major religious riots in India post-independence,
there emerged another disturbing trend of love jihad which has further encouraged non acceptance
of love marriages by families, communities and societies. While many researchers tend to address it as
Hindu fundamentalist groups propaganda against conversion of Hindu women to embrace Islam for
marriage (Gupta, 2009), a deeper research is needed to understand the relationship between reluctance
to accept inter religious marriages by traditional Hindu societies and judicial understanding in this re-
gard. It needs to be understood that the Constitution of India provides freedom of religion under Article
25, which extends to freedom of conscience and free (i) profession, (ii) practice and (iii) propagation
of religion. This implies that conversion to another religion due to marriage must be based on free will
of the parties. Neither of the parties must be coerced to either marry or converse to other religion to
embrace a particular religion or renounce any religious belief or practices because of proving their love
to their partner. This understanding along with the issue of Love Jihad or Romeo Jihad came into light
with the case of Shansha vs. State of Kerala,16 where it was observed that certain groups of Muslim youth
were allegedly alluring Hindu and Christian girls by way of love and promises to marriage to convert
to Islam. The court rejecting the plea for anticipatory bail sought by the main perpetrator who allegedly
took two girls for converting to Islam, emphasised upon free will to convert and embrace any religion
as per Article 25 of the Constitution of India, rather than coercing by any means including by way of
showing love and affection and praising about one particular religion demeaning another only to make
the woman renounce her faith in the later.
PART II: LEGAL MANAGEMENT OF AFTER EFFECTS OF

INTER-CASTE, INTER-PROVINCIAL MARRIAGES WITH
THERAPEUTIC JURISPRUDENTIAL APPROACH
The above discussion lays down several factors regarding acceptance and non-acceptance of love mar-
riages (especially inter caste and inter religious marriages) in India. As mentioned above, presently, the
Special Marriages Act, 1954 is used for regulating inter religious marriages and for marriages where
concerned parties wish to have different form of marriages different than that as prescribed by personal
marriage laws.17 It is essential to note that India has a diverse culture due to several socio-cultural prac-
tices including marriage rituals. Inter-caste and inter-religious marriages act as positive bridges between
different communities. Keeping this in mind, courts in India of late have started applying restorative
principles to save the marriages rather than allowing the parents or influential elders in the family to
use the legal powers to break the marriages based on frivolous grounds including difference of caste,
cultural practices, different food habits etc. This is evident from the examples below:
In the case of Lata Singh vs. State of UP,18 the Supreme Court of India after examining the plea of
the petitioner Hindu woman, who had an inter-caste marriage, reversed the order of the sessions courts
whereby the petitioners husbands sisters and cousin were taken into custody on a complaint by the
brothers of the petitioners. The Supreme Court took a welfare decision to criminalise those who actually
intended to harass the petitioner and her husband for such inter-caste love marriage. This case crated
a landmark example in the judicial understanding of love marriages in India and the principles were
followed in many other cases including cases like Babli Rani and Another vs State of Punjab and Oth-
35

ers (decided on 22 October 2009).19 In the latter case, the petitioner woman sought direction from the
court towards the respondents, namely the police officials, to provide them security and safe passage
to reach their destination in the State of Punjab. Vide the petition thus filed, the petitioners invoked
inherent jurisdiction of the High Court under S.482 of the Indian Criminal Procedure Code where the
court had ordered for protection of the couple and ensuring safe passage for their destination from their
family homes. It needs to be noted that S.482 of the Criminal Procedure Code itself is a therapeutic law,
which says that Nothing in this Code shall be deemed to limit or affect the inherent powers of the High
Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of justice. The inherent purpose of
this provision is to prevent abuse of power invested upon government machinery including the criminal
justice machinery. As the wordings of the provision states, the provision can be used to (i) give effect to
any order under the criminal procedure code, (ii) to prevent abuse of the process of any court and (iii)
to secure the ends of justice.
As such, in the above mentioned case of Babli Rani, this provision was used mainly to secure ends
of justice keeping in view of the opinion of the Supreme Court provided in the Lata Singh case which
stated as followed:
... Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the
caste system. However, disturbing news are coming from several parts of the country that young men
and women who undergo inter-caste marriage, are threatened with violence, or violence is actually
committed on them. In our opinion, such acts of violence or threats or harassment are illegal and those
who commit them must be severely punished. This is a free and democratic country, and once a person
becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not
approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off
social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of
violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We,
therefore, direct that the administration/police authorities throughout the country will see to it that if
any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man
who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and
anyone who gives such threats or harasses or commits acts of violence either himself or at his instiga-
tion, is taken to task by instituting criminal proceedings by the police against such persons and further
stern action is taken against such persons as provided by law. We sometimes hear of `honour killings of
such persons who undergo inter-caste or inter-religious marriage of their own free will. There is noth-
ing honourable in such killings, and in fact, they are nothing but barbaric and shameful acts of murder
committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we
stamp out such acts of barbarism.
This particular view of the Supreme Court has been seen as a landmark vision to not only to invoke
inherent powers of the courts, but also to provide protection and uphold the right guaranteed under
Article 21 (right to life and liberty and property) to people interested in love marriages irrespective of
caste or creed.
However, at the same time, the courts did not consider applying TJ approach to such cases fully.
As such, when the couples so married, approached courts for order for protection or for orders against
harassments, the courts instead of counselling the couples and then pronouncing prohibitory orders
36

against the harassers, took steps only for the later, leaving much scope for future domestic fights pulling
disturbing past. It is however understandable that in most of the cases, the courts primary concern was
to save the lives of the man and his wife as in most of such cases the couples would have approached the
courts after the womans family would have either lodged complaints with the police alleging that the
she had either been abducted or went missing (which generally initiates suspicion that she had eloped
with the boy after being thoroughly brain washed); such police complaints preferred by womans family
members would invariably make them more powerful in the eyes of law and they could misuse law to
even kill the couple, as is evident from the case details of Babli Rani. Now, it becomes important here to
discuss as why courts in India should follow TJ principles in cases such as these, which involve mental
wellbeing of the parties involved in the social activity, viz., marriage.
TJ in regard to criminal justice system is not new to the Indian courts. In 1977, Justice Krishna Iyer
had emphasised upon therapeutic role of laws in awarding punishment, which may correct the behaviour
of the offender.20 However, Justice Iyers views were more from the offenders rights perspective and
the modern principles of TJ as propounded by Professors David Wexler and Bruce Winnick are more
from the victims rights perspectives (Wexler & Winnick, 1996). The modern TJ principle focuses the
impact of laws on the psychological and emotional wellbeing of people, thereby expanding the scopes
of the therapeutic role of the laws on victims, offenders as well as common law abiding civilians. As
per this principle, courts have greater role as problem solvers (King, 2009). Judges and lawyers play key
roles in the process of dispute resolution emphasising laws therapeutic values in criminal cases includ-
ing physical harm, drug abuse, domestic violence, criminality arising out of abuse of patients suffering
from mental disorder etc.
Those courts, which have adopted TJ mechanism to resolve problems, are termed as problem solving
courts (King, 2009). As such, problem-solving courts do not limit their scope with awarding punish-
ment to the perpetrators; they try to heal the wrong and restore justice through application of therapeutic
values of laws. This process may involve several Restorative Justice Mechanisms, including apology,
forgiveness and reconciliation (Daicoff, 2013), victim compensation, administration of retributive justice
for correctional purposes and community supervision. While in India, courts have stated following TJ
principles in small scales especially through alternative dispute resolution forums, the procedure still needs
more revamping for turning courts into problems solving courts within the meaning of TJ principles.
Still now, we have not come across any case on love marriages where courts have applied TJ principles
in India. Such opportunity came along with the case of Divya and Illavarasan, who had inter-caste mar-
riage (Vijay Kumar, August 4, 2013). Divya, a caste Hindu girl (middle caste) married Illavarasan, a dalit
(lower caste) boy in 2012 in Dharmapuri District of Tamil Nadu, India, against the wish of the families,
especially that of the earlier. The news of this inter-caste marriage created unrest at the native place of
Divya and her father committed suicide due to loss of his prestige in his community and fear of social
ostracization. When her mother filed a Habeas corpus petition seeking courts intervention in bringing
back Divya to her parental family, Divya was produced before the court, she was asked about her wishes
(where she intended to stay). In such interaction, the court did not counsel Divya regarding her rights
to stay back in her marital home. She later consented to return her paternal home with her mother. The
point to be noted here is that both the parties were adults when they got married and they were legally
eligible to consent for the marriage. As such, the court could have counselled the man and the wife as
well as the parents from both the sides to amicably settle the issue and accept the marriage. However,
when the girl agreed to go back, apparently, the husband became extremely depressed and consequently
he allegedly committed suicide (Vijay Kumar, August 4, 2013). This created an extremely bad example.
37

Also, the courts could not but be mute spectator for the tragic brutal murder of another Dalit boy
(lower caste) V. Shankar, who was murdered due to his marriage with a caste Hindu girl (middle caste)
a few years later in the Southern Tamil Nadu, India (Vimal Kumar, & Vijay Kumar, 2016). Noticeably in
the latter case, Shankar and his wife did not seek courts help for protection even though the girls family
also threatened them. Three armed men who were appointed by his father-in-law attacked Shankar and
killed him on a busy road, and the CCTV cameras installed for traffic management captured the whole
incident and instantly the video was leaked in WhatsApp, YouTube and Facebook.21 Before the probes
begun for his murder and gruesome attack on his wife, social media including Facebook were flooded by
groups and pages created in favour of such killings for inter caste marriages with the video as a warning
signal for those who dare to get married inter caste or inter religious.22 Alarmed by such wide spread
hate messages, the Madras High court in the case of B. Dilip Kumar vs Secretary to government, Tamil
Nadu,23 took suo motu decision to implement a set of guidelines to save couples who are inter caste and
inter religious married against the wish of their families or communities. These guidelines are as follows:
1. Creation of Special Cells in every district comprising of the Superintendent of Police, the District
Social Welfare Officer and District Adi-Dravida Welfare Officer, to receive petitions/complaints
of harassment of and threat to couples of inter-caste marriage.
2. Creation of a 24-hour helpline by the Special Cells, to receive and register complaints and to
provide necessary assistance/advice and protection to the couple.
3. The State of Tamil Nadu to examine the possibility of generating FIR automatically, upon the re-
ceipt of complaints from the aggrieved couple via the Crime and Criminal Tracking Network and
Systems.
4. The Special Cell formed in each District are to monitor the receipt of complaints through helpline
or otherwise, the registration of the same and the action taken by the concerned police on a regular
basis.
5. The Station House Officer would be duty bound to provide protection to the couple who are moving
about within their jurisdiction.
6. The special cells are to take proactive steps to provide counseling sessions to the parents of the
aggrieved couples.
7. The State is to allocate funds to be utilized by the Special Cells in order to eradicate the menace
of honour killing.
8. In the event of any untoward incident, the Special Cell is to fix responsibility upon the officers who
failed in their duty to protect the couple. (Editor, 2016 )
Even though such guidelines regarding setting up of monitoring cells by the courts is indeed an ex-
ample of practising TJ principles, but still, there remains lacuna in achieving the goals set by modern TJ
principles. Further, in this regard, mention must be made about the Law Commission of Indias proposed
Bill, Prohibition of unlawful assembly (interference with matrimonial alliance) Bill 2011. This bill aims
to penalise and thereby prohibit unlawful assembly whereby planning may be made to interfere with love
marriages. However, we argue that such Bill, when transferred in to the Law, may actually multiply the
number of laws created to safeguard rights of men and women to marry according to their own choice.
The endeavour may still fail to achieve its aim unless courts emphasise upon implementation of the
order above mentioned along with the laws meant for protection and rehabilitation of the stakeholders.
38

The failure of this endeavour was noticed within few months of passing the above order of the Madras
High court with the gruesome murder of another woman in Southern Tamil Nadu, whose brother had
an inter-caste marriage with the daughter of the assailant (Special correspondent, 2016). As such, this
incidence proves that still now, neither the courts, nor the laws could provide holistic assurance, support
and protection to couples and their families who married inter caste or inter religious against the wish
of the family members of either of the bride or the groom. Further, the above mentioned order of the
Madras High court is area-specific and still now neither the Supreme court nor the others courts in other
parts of India could successfully test the positive effects of this particular order. It is however to be noted
that to make such orders and laws effective, the criminal justice administration must take measures to
create awareness programmes for civilians and sensitisation programmes for police officials who may
be dealing with such cases. Unless such steps are adopted, the courts may not turn into problem solving
courts and neither the laws may achieve the aims of TJ.
CONCLUSION
This chapter researches about love marriages, inter-caste/religion based violence that may occur as result
to such marriages and the role of the courts from TJ aspects. As it can be seen from the above discussion,
while the courts could take preventive and punitive steps after the violence occurred as results of love
marriages, there is no follow up available as to the emotional-social wellbeing of the women victims of
the love marriages that have been discussed above. While in the case of Lata Singh, the court ordered for
arrest and punishment for those who tried to harass her and her husband with false allegations and physi-
cal assaults; in Babli Ranis case, the court ordered for ensuring safe passage for her and her husband to
their destination and arrest of those who threatened to harm her and her husband; in the case of Divya,
she was reunited with her mother as her own wish and within a day and her husband committed suicide;
in the case of Kaushalya, while her husband died instantly and her father and others who actually killed
her husband, were arrested and were also denied bail, she herself wanted to join her dead husbands
family. Still now, no constructive attempt has been made either by the courts to know whether these
women had faced any other sorts of violence emotionally or physically from the families with whom
they intended to continue living, or from any other persons including the society as a whole. It needs to
be remembered that the scope of TJ extends to emotional wellbeing of the victims as well and this can
be achieved only when the problem solving courts engage governmental as well as non-governmental
stakeholders to follow up the present condition of the women thus affected.
In India, there is a general practice of follow-up of the victims conditions when the victim is a mi-
nor and his/her custody is entrusted with a fit person, who may include his/her parents or guardian.24
However, such victim oriented approach is largely absent in cases of victims of violence arising out of
love marriages. This is mainly because women may prefer to have privacy, confidentiality, and no more
contacts from the criminal justice administration after they have encountered such violence due to their
own choice. However, this does not mean that such women may not encounter any more violence or
victimisation from the families with whom they prefer to live afterwards. They may undergo emotional
torture from the members of such families especially when the latter may feel that the victim women
were the sole reasons for the loss of lives of their dear ones or physical harassment and financial loss
that may have been caused due to repeated visits to lawyers, police stations and the courts. In such cases
when the victims may undergo such torture, several lawyers may suggest to seek remedy from family
39

courts relying on the protection of women from Domestic Violence Act, 2005.25 Nevertheless, this in
turn, may become anti-therapeutic for such victims as this may pile up more problems and may finally
make her to sever ties with the family she chose to live with. Hence, it is suggested that in such cases,
the courts, which must turn into problem solving courts, must adopt a holistic welfare approach towards
the victim women and their families who may have been primarily victimised. This approach must also
include proper counselling and follow up in the same model as that of Juvenile Justice (Care and pro-
tection of Children) Act, 2015. Unless such measures are adopted, the courts may never provide proper
justice to people intending to marry according their own choice defying orthodox social rules and the
aims of TJ may never be achieved.
REFERENCES
Caldwell, J. C., Reddy, P. H., & Caldwell, P. (1983). The Causes of Marriage Change in South India.
Population Studies, 37(3), 343361. doi:10.1080/00324728.1983.10408866
Chowdhuri, S. (2010). Women, Rebirth and Reform in Nineteenth Century Bengal. In S. Chaudhuri
(Ed.), Renaissance Reborn (pp. 159183). Delhi: Chronicle Books.
Desai, S., & Andrist, L. (2010). Gender Scripts and Age at Marriage in India. Demography, 47(3),
667687. doi:10.1353/dem.0.0118 PMID:20879683
Directions issued to the Tamil Nadu Government to create Special Cells to tackle the growing menace
of honour killings in the State. (2016). Retrieved from http://blog.scconline.com/post/2016/04/19/
directions-issued-to-the-tamil-nadu-government-to-create-special-cells-to-tackle-the-growing-menace-
of-honour-killings-in-the-state/
Gupta, C. (2009, December19). Hindu Women, Muslim Men: Love Jihad and Conversions. Economic
and Political Weekly, 44(51).
Halder, D., & Jaishankar K. (2008). Property Rights of Hindu Women: A critical review of succession
laws of Ancient, Medieval, and Modern India. Journal of Law and Religion, 24, 101-122.
King, M. (2009). Solution-Focused Courts Bench Book. Available online through the Australasian
Therapeutic Jurisprudence Clearinghouse and on the bibliography of the TJ website: www.therapeu-
ticjurisprudence.org
Meyer, J. J. (1989). Sexual Life in Ancient India: A Study in the Comparative History of Indian Culture.
New Delhi: Motilal Banarsidass Publishers.
Rao, S. G. C. V. (2009). Family Law in India (9th ed.). Hyderabad: S. Gogia & Company.
Special Correspondent. (2016). Residents threaten to boycott poll. The Hindu. Retrieved from http://
www.thehindu.com/news/national/tamil-nadu/residents-threaten-to-boycott-poll/article8603028.ece
Vijay Kumar, S. (2013). Divya provides crucial evidences. The Hindu. Retrieved from http://www.the-
hindu.com/news/national/tamil-nadu/divya-provides-crucial-evidence/article4986062.ece
40

Vimal Kumar, R., & Vijay Kumar, S. (2016). Dalit youth murdered for marrying caste Hindu girl.
The Hindu. Retrieved from http://www.thehindu.com/news/national/tamil-nadu/dalit-youth-killed-for-
marrying-caste-hindu-girl/article8350431.ece
Wexler, D. B., & Winick, B. J. (Eds.). (1996). Law in a Therapeutic Key: Developments in Therapeutic
Jurisprudence. Durham, NC: Carolina Academic Press.
ENDNOTES
1
As per the Varna system, the society was divided into four categories: Brahmins or the priests,
Kshatriyas or the warriors, Vyasyas or the traders or merchants and Sudras or those categories of
people who were engaged in doing menial work including slavery, serving the other three higher
categories. Varna is considered to be the mother of present caste system in India.
2
Lata Singh Vs. State of U.P. and another (2006) 5 SCC.
3
For example, see Kapila Hingorani vs State of Bihar (2003 44 SCL 429 SC).
4
For example, see the case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan,
(1997) 11 SCC 123.
5
See for example, Maneka Gandhi v. Union of India & Anr. 1978 (2) SCR 621.
6
See R. Rajagopalan v. State of Tamil Nadu, 1995 AIR 264, 1994 SCC (6) 632.
7
See the following paragraphs for further explanation on this issue.
8
(g) degrees of prohibited relationship - two persons are said to be within the degrees of prohib-
ited relationship- (I) if one is a lineal ascendant of the other; or (ii) if one was the wife or husband
of a lineal ascendant or descendant of the other; or (iii)if one was the wife of the brother or of the
fathers or mothers brother or of the grandfathers or grandmothers brother or the other; or (iv) If
the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or
of two brothers or of two sisters. Explanation.- for the purposes of clauses (f) and (g) relationship
includes- (I) relationship by half or uterine blood as well as by full blood; (ii) illegitimate blood
relationship as well as legitimate; (iii) Relationship by adoption as well as by blood, and all terms
of relationship in those clauses shall be construed accordingly.
9
The List of the prohibited relationships are as follows: Part I: 1. Mother 2. Fathers widow (step-
mother) 3. Mothers mother 4. Mothers fathers widow (step grandmother) 5. Mothers mothers
mother 6. Mothers mothers fathers widow (step-great-grandmother) 7. Mothers fathers mother
8. Mothers fathers fathers widow (step-great-grandmother) 9. Fathers mother 10. Fathers fa-
thers widow (step-grandmother) 11. Fathers mothers mother 12. Fathers mothers fathers widow
(step-great-grandmother) 13. Fathers fathers mother 14. Fathers fathersfathers widow (step-
great-grandmother) 15. Daughter 16. Sons widow 17. Daughters daughter 18. Daughters sons
widow 19. Sons daughter 20. Sons sons widow 21. Daughters daughters daughter 22. Daughters
daughters sons widow 23. Daughters sons daughter 24. Daughters sons sons widow 25. Sons
daughters daughter 26. Sons daughters sons widow 27. Sons sons daughter 28. Sons sonssons
widow 29. Sister 30. Sisters daughter 31. Brothers daughter 32. Mothers sister 33.Fathers sister
34. Fathers brothers daughter 35. Fathers sisters daughter 36. Mothers sisters-daughter 37.
Mothers brothers daughter PART II 1. Father 2. Mothers husband (step-father) 3. Fathers father 4.
Fathers mothers husband (step-grandmother)5. Fathers fathers father 6. Fathers fathers mothers
41

husband (step-great-grandfather) 7. Fathers mothers father 8. Fathers mothers mothers husband

(step-great-grandfather) 9. Mothers father 10. Mothers mothers husband (step-grandfather) 11.
Mothers fathers father 12. Mothers fathers mothers husband (step-great-grandfather) 13. Moth-
ers mothers father 14. Mothers mothers mothers husband (step-great-grandfather) 15. Son 16.
Daughters husband 17. Sons son 18. Sons daughters husband 19. Daughters son 20. Daughters
daughters husband 21. Sons sons son 22. Sons sons daughters husband 23. Sons daughters son
24. Sons daughters daughters husband 25. Daughters sons son 26. Daughters sons daughters
husband 27. Daughters daughters son 28. Daughters daughters daughters husband 29. Brother
30. Brothers son 31. Sisters son 32. Mothers brother 33. Fathers brother 34. Fathers brothers
son 35. Fathers sisters son 36. Mothers sisters son 37. Mothers brothers son. Explanation- for
the purposes of this Part, the expression husband includes a divorced husband.
10
Arya Samaj was a religious movement in India initiated by Swamy Dayanand Saraswati in the 19th
Century. The Arya Samaj movement slowly initiated social reform by breaking strict caste barriers
in regard to education, especially influenced by Vedic ideologies. The Samaj encouraged equality
of all human beings irrespective of their religion and caste who ever embraced Arya Samaj ideolo-
gies. Gradually the Samaj also created its own simple rituals of marriages between two individuals
who are Arya Samajists (even though originally they may belong to different religion, caste or
creed). The marriages performed by Arya Samaj rituals were made valid by Arya Samaj marriage
Validation Act, 1937.
11
Act no.43 of 1954.
12
The prohibited relationships are the same as showed in supra 10.
13
ibid
14
Mughal Emperor Akbar, in order to end enmity with several Hindu kingdoms, had tried to bring
harmony among the different religions, especially Hindu and Muslim by creating a new religion
called as Din-i-Ilahi which emphasised freedom of religion. Unfortunately, his efforts did not see
much success to bring religious harmony including encouragement for inter-religious marriages
and enabling children born out of such marriages to inherit ancestral properties.
15
See for more Indian Penal Code, 1860.
16
Bail Appl..No. 5288 & 5289 of 2009.
17
The opening clause of the Act states that: An Act to provide a special form of marriage in certain
cases, for the registration of such and certain other marriages and for divorce.
18
Lata Singh Vs. State of U.P. and another (2006) 5 SCC.
19
CRM-M 29618 of 2009 (O&M).
20
See the views of Justice Krishna Iyar in the case Mohd.Giasuddin v. State of A.P. reported in (1977)
3 SCC 287. Available at: www.indiankanoon.org/doc/1850315. Page accessed on 19.05.2016.
21
The videos are still available on internet when this chapter was being drafted. For example, see
https://www.youtube.com/watch?v=JQFoYkka1Rc. Accessed on 12.05.2016
22
The authors came across such posts in Facebook which were immediately reported to Facebook.
23
B. Dilip Kumar vs Secretary to Government, Tamil Nadu, WP no. 26991 of 2014, decided on
13.04.2016.
24
For better understanding of this issue, see chapters IV and V of the Juvenile justice Care and Pro-
tection Act, 2015, which discuss about individual care plan and follow up for child in conflict with
law and child in need of care and protection.
25
Act no.43 of 2005.
42
Section 2
Restorative Justice, Violence
Against Women, and
44
Chapter 4
Restorative Justice and
Womens Experiences of
Violence in Nigeria
Johnson Ayodele
Lagos State University, Nigeria
ABSTRACT
The principles of restorative justice (RJ) and traditional African mediatory practices share a similar vi-
sion about giving social healing to offenders, victims, and communities in the aftermath of victimization.
Regrettably, colonialism drove Africas traditional restoration-based justice initiative out by forcefully
replacing it with its retribution-oriented alternative. The chapter theoretically examines RJ vis--vis
womens experiences of violence in Nigeria. It obtained its data mainly from secondary sources. It argues
that culture prevents numerous cases involving the interests of women, as wives or intimate partners
of men, from public negotiation especially with or before strangers in Nigeria. This chapter concludes
that RJ is an innovative means of returning to and modernizing Africas history of social healing to ease
access of Nigerians to justice, regardless of gender.
INTRODUCTION
The pre-colonial people of Africa regulated their behavior using the home-grown normative order, which
got its values from an exclusively African ontological metaphysics strengthened by an African belief
system (Juma, 2007). At that time, African communities were not under the pressure of intense insecurity.
However, to maintain the expansionist passion of Europe to establish legitimacy by coercion, through
its colonial policy, it demonized the subsisting indigenous judicial practices of the African people and
forcibly replaced them with their retribution-oriented justice option. Using the combined power of the
dead and the gods who simultaneously approved the decisions of the living, African elders, men, women,
and the youths created a metaphysical environment in which their efforts to resolve social issues make
meaning only within the African context (Mqhayi, 1914). In a purely traditional understanding, gender-
based violence (GBV) was not a phenomenon that threatened harmonious co-existence and productive
interactions between men and women in Africas pre-colonial epoch.
DOI: 10.4018/978-1-5225-2472-4.ch004

Restorative Justice and Womens Experiences of Violence in Nigeria
In most traditional communities of the world, women have lopsidedly become victims of various
forms of violence which are often strengthened by vibrant socio-cultural norms. Such violence often
impacts women twice as men by the experience of violence and its aftermath. Also, this disproportionate
effect occurs through the reactions of their families, particularly the men, to their status as survivors of
sexual crime (UNIFEM, 2002). Although, gender-based violence is commonly assumed to be limited to
domestic violence, Minnesota Advocates for Human Rights (2003) debunked this assumption. It classified
gender-based violence into four broad categories. These classes are: (i) Overt physical abuse (includes
battering, sexual assault, at home or in the workplace); (ii) Psychological abuse (includes deprivation of
liberty, forced marriage, sexual harassment, at home or in the workplace); (iii) Deprivation of resources
needed for physical and psychological well-being (including health care, nutrition, education, means of
livelihood) and (iv) Treatment of women as commodities (includes trafficking in women and girls for
sexual exploitation) (Minnesota Advocates for Human Rights, 2003).
The World Health Organization (2002) defines violence as the deliberate use of physical force or
power, threatened or actual, against oneself, another person, or against a group or community that either
results in or has a high likelihood of resulting in injury, death, psychological harm, mal-development or
deprivation. But, gender-based violence (GBV) is the physical, sexual or mental harm or suffering to
women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring
in public or in private life (World Health Organization, 2002). Since violence is a serious social and
public health issue, the United Kingdom aid agency, DFID, and the British Council, developed a report
which indicated that in Nigeria, young women between the ages of 15 and 24 were most likely to have
experienced physical violence (The Gender in Nigeria, 2012).
About 28 percent of all women, almost a third of all women in Nigeria, have experienced physical
violence, a significant number in a country of almost 160 million, where almost half are women. Within
Nigeria, GBV transcends region, religion and ethnicity, with physical and sexual abuse affecting as many
as 35.1% of Igbo women and 34.3% of Hausa-Fulani women (Oladepo et al., 2011). Onyeukwu (2004)
identified female genital mutilation, child marriage, ritualistic widowhood practices, nutritional taboos,
cult prostitution, domestic violence, traditional land tenure systems, patterns of inheritance, lack of ac-
cess to credit, family preference for sons, lack of participation in public decision-making, discrimination
in housing and employment, discriminatory legislation, and discriminatory religious practices as some
of the Harmful Traditional Practices (HTPs) against women and female children in Nigeria. However,
gender inequality is the acutest violence against women in Nigeria (Onyeukwu, 2004).
1. INSTANCES OF GENDER VIOLENCE AGAINST WOMEN IN NIGERIA
There is a need to discuss some of the instances of Gender based Violence (GBV) against women in
Nigeria to lay the foundational plank for a profound discussion of the problem of justice for women in
post-colonial Nigeria. The natural gender role distinction all over the world appears to have created gap
in opportunities between men and women (Nwajiuba, 2011), for which humanity is yet to find telling
solutions. As the cycle of gender-based abduction and detention and increased violence in Nigeria con-
tinues to evolve, researchers have revealed a picture of violence and intimidation, with women increas-
ingly targeted with kidnap, forced marriage and compulsory conversion to Islam with over 45% of the
victims of Boko Haram being women and children (Barkindo et al., 2013). Today, GBV constitutes a
life-long threat to hundreds of millions of women and girls across the globe (United Nations, 2000). In
45

every country where scholars have done credible studies, results indicate that men have physically abused
between 10% and 50% of the women in their lifetime and that between 12% and 25% have attempted or
completed rape (World Health Organization, 2000).
Derived from media reports covering a period of December 2004 to November 2005, there were a
total number of 170 cases of violence against women. Out of these, 43 cases were domestic violence,
Rape/Incest (46), Assault on women (12), Murder of women (40), Acid Bath (10), and Kidnap/Abduc-
tion (19) (Project Alert, 2004). Report on Nigeria indicates that on a daily basis, women experience
violence in the form of beating and ill-treatment for supposed transgressions, rape and even murder
which members of their family perpetrate. In some cases, vicious acid attacks disfigure them in horrible
ways. For example, Egbo had her face, chest and some other parts of her body destroyed by an acid
bath (Okolie, 2012). Irrespective of the intense effects of such violence; communities often excuse and
tolerate them. Husbands, partners, and fathers are responsible for most of the violence against women
(Amnesty International, 2005).
Attracting public and policy attention to the prevalence of GBV in Nigeria, a survey of 38,948 women
and 17,359 men in all Nigerias 36 states and the Federal Capital Territory (FCT), established that vio-
lence against women is a common practice (Nigeria Demographic and Health Survey (NDHS), 2013,
p. 2, 4). While the NDHS (2013, p. 15) notes that domestic violence cuts across all socioeconomic and
cultural backgrounds, with nearly three in ten Nigerian women, have experienced physical violence since
age 15, the US Department of States Country Reports on Human Rights Practices for 2013, confirms
that domestic violence remained widespread and was often considered socially acceptable in Nigeria.
A 2013 survey with the sample of 11,518 Nigerians (equally distributed by gender) in 36 states and the
FCT, found that domestic violence is among the top four most common types of crime experienced by
respondents (Cleen Foundation, 2013).
2. REASONS FOR VIOLENCE AGAINST WOMEN IN NIGERIA
In spite of the fact that Nigeria has signed or ratified, in the international context for developing legislation
on violence, a high proportion of Nigerian women still experience violence. Especially disadvantaged
in the process of legislation are women who often remain in a position of powerlessness in this, up till
now, highly patriarchal society (Perrott, 2004). The United Nations report on the State of the World
Population 2000 provided data on violence committed against African women and the unfairness of
criminal justice to them (United Nations, 2000). Studies, which the World Health Organization (2000)
and Amnesty International (2004) conducted, indicate that violence against women is widespread in
Africa and is escalating in some areas. The extensive violence against women is due to the existence of
discriminatory laws, harmful traditional practices, and non-enforcement of gender-sensitive laws (Oker-
eke, 2006). Nevertheless the ascendancy of the traditional CJS has not corrected the seeming injustice to
women on the account of some cultural practices which appear to non-Africans as encouraging violence
against women.
If all the preceding cases of GBV happened to women in Nigeria in the face of the CJS, it is an in-
dication that the CJS is either not as good, ineffective or altogether dysfunctional to the sustenance or
restoration of womens rights. Although conventional wisdom holds that criminal justice professionals
are best at determining and adjudicating on matters of justice administration, they do not possess the
competence to address the specific justice needs of both victims and offenders who are products of the
46

African cultures skillfully. Their incompetence gains expression in the increasing awaiting trials, prison
congestion and recidivism that characterize the operations of the CJS in environments where its values
conflict with the normative patterns of the people. The data from the Nigeria Prisons show that 70 per-
cent of prison inmates in Nigeria are on awaiting trial while many of them have been there for upward
of 10 years. The various jail delivery and pardons offered by the Federal and state governments have
done little to make any meaningful impact (Azu, 2013). The awaiting trial problems, inadequate legal
aids, high caseloads in courts leading to undue delays in criminal justice dispensation, compromise of
judicial integrity by some judges and cases of recidivism are sufficient reasons for Nigeria to buy into
RJ paradigm.
In comparison with formal criminal justice, RJ radically reduces repeat offending for some offenders
more than prison for adults and at least as well as prison for youths; provides both victims and offenders
with more satisfaction that justice had been done than did traditional criminal justice; reduces crime
victims post-traumatic stress symptoms and the associated costs, and reduces victims desire for violent
revenge against their offenders (Sherman & Strang, 2007). Experience has also shown that a commit-
ment of a justice system to a grave punishment of offenders has not stopped re-offending. In this respect,
research has noted that restorative justice is effective in addressing recidivism rate of offenders (Lipsey,
Wilson & Cothern, 2000). Retribution, one of the core objectives of the CJS, can and often does fail
victims and their families, doing little to provide comfort to victims and providing little opportunity to
heal from the crime while RJ offers victims more options by which they can ease their healing (Mills,
2006). The above background makes the CJS famous for appropriating the gains of litigation to the state
by making the victim visible only in the context of the provision of evidence for the prosecution and later
superimposes the ostensible pursuit of public justice on the interests of the injured victims.
3. BASIS FOR RESTORATIVE JUSTICE
When in his 1977 article Beyond Restitution: Creative Restitution, Albert Arthur Eglash, a psycholo-
gist, coined the concept of restorative justice in modern times (Llewellyn & Howse, 2002:4; Gehm,
1998, p. 3), little did he know that one-size-fits-all definition will elude the concept. To the extent that
no practice or policy is intrinsically restorative (Sharpe, 1998), the grandfather of RJ, Howard Zehr, in
his little book, chose to begin by outlining what RJ is not, rather than making a positive claim as to what
RJ is (Zehr, 2002). Presenting RJ as a concept that actually lacks definition, Achutti (2015) observed that
it risks encompassing anything which goes on in a room with RJ written on the door. Apart from RJ
seeming to embrace anything having restorative or recidivist content, scholars have, through empirical
activities, attempted to define the concept.
RJ is seeking to reconcile victims concerns and the community with the need to reintegrate the
offender into the society; assisting the recovery of the victim and enables all parties with a stake in the
justice process to participate fruitfully in it (Restorative Justice Consortium (RJC), 2002, p. 6). RJ is a
philosophy of justice which underscores the significance and interrelations of the offender, the victim,
the community, and the government in cases of crime and delinquency (Clifford, 2008). To Skotnicki
(2006, pp.188-189), RJ is a theory that seeks to restore the harm caused by crime through a process
of restoration that results in forgiveness or at least in the sense of closure for the participants, each hav-
ing expressed themselves and having determined a mutually satisfactory solution to the infraction.
Also looking at the concept, Abrams, Umbreit and Gordon (2006), RJ offers a fundamentally different
47

background for responding and understanding crime, victimization and justice. It places emphasis on
the importance of elevating the role of crime victims and community members, as well as provides
opportunities for dialogue to usher in negotiation and problem solving for the achievement of a greater
sense of community safety. Except one gives up pain, resentment, anger, and fear to experience good-
ness, peace, joy, and love, as well as do away with what you do not want so as to make room for what
you want (Crisostomo, 2008), there can be no lasting restoration.
To the Centre for Justice and Reconciliation (2005), RJ is a theory of justice that emphasizes re-
pairing the harm caused or revealed by criminal behavior. It is best accomplished through cooperative
processes that include all stakeholders. As a contribution to the efforts at evolving a suitable definition,
this chapter takes RJ to mean the adoption of the value-driven thoughts of the community to strengthen
its normative rhythm which the offender has disrupted with his or her crime so as to achieve inclusive
cultural reconnection of the victim who requires empathetic empowerment, reintegration of the offender
who has to demonstrate honest repentance to earn forgiveness for a re-admission into the mainstream of
community life and the refurbishment of the community in the aftermath of victimization.
The contemporary development in the law considers RJ as a mechanism that used to be the norm
in most societies in which it is a suitable alternative to the failures of the traditional CJS (Strang &
Sherman, 2003). To the extent that RJ views crime as a violation against a community of people and
the intra-community relations, the traditional legal system is likely to focus on judges and juries who
analyze crimes as external observers (Reimund, 2005). African settings and culture differ from Euro-
peans. The above explains why African systems of justice focus more on the processes of achieving
peaceful resolutions of disputes rather than on adherence to rules as the basis for determining disputes
(Armstrong et al., 1993, p. 14). This is understandable considering the kind of cases that come before
the customary courts, which are often between blood relations, and therefore require acceptable and
lasting reconciliation.
While the Eurocentric explanations to social problems and criminality is individualistic in approach
and holds that state-based tribunal decisions often follow the winner takes all approach, which goes
against the principles and values of the African justice system (Elechi, Morris, & Schauer, 2010: 78),
Afrocentric explanations argue that RJ has its roots in the principles of Afrocentric theory and demon-
strates how Black cultures in both Africa and the United States use the principle to resolve many disputes.
From the preceding arguments, it is clear that retributive justice and restorative justice are two sides
of a coin presenting entirely different worldviews of what justice is, and these views are aligned with
the dominant Eurocentric or Afrocentric philosophies. These frameworks can be used to bring order to
multiple descriptive understandings of what justice is in each realm and some basic principles on which
to build dialogue and to engage all citizens (Elechi, 1999; Elechi et al., 2010).
Leaving Africa out of the RJ trajectory is to do an irreparable disservice to African women in particular
and global penal history in general. Though, in his changing lenses, Zehr (1990) suggests that the history
of RJ probably formally began in the late 1970s when a group of Mennonites first explored the radical
idea of suggesting to a judge that victims and offenders in a series of vandalism cases be allowed to meet
face-to-face to negotiate restitution, nonetheless, there are evidence of informal RJ in informal display
long before that epoch in Africa. The above is the account of the birth of the concept of victim-offender
mediation which the grandfather of RJ (Ness & Strong, 1997) described as combining within a crimi-
nal justice framework element of mediation and reparative justice (Zehr, 1990, p. 160). This historical
account does not agree with the trajectory of African RJ narrative. In the traditional African societies,
disputants desire to reach and abide by an agreement and the publics interest in ensuring an outcome
48

is also strengthened by the fear that supernatural ancestral spirits may be disquieted by the breaking of
rules and quarrelling, and respond by causing illness or material misfortune on the wrongdoers kin or
on the community as a whole (Robert, 1979, p. 42).
Whenever an individual does a forbidden thing, it is customary for the Yoruba people of south-western
Nigeria to say the person ti je eewo (Alade, 2007, p. 24) meaning one has done what someone had not
done before. Since taboo was the only means by which the Yoruba people maintained social restriction
and obligation in the pre-colonial era (Odofin, 2009), the people seem to have no option than to derive
joy, happiness, wealth, comfort, and long life from complying with taboos (Babatunde, 2005, p. 99).
Thus, the Yoruba people have accepted most taboos sincerely trusting that their traditional rulers or
priests on their behalf and in the public interest have imposed them (Adedoyin, 2009). In pre-colonial
Nigeria, issues regarding crimes and deviance were resolved among the parties involved amicably by the
elders and within the community, applying restorative indices. In the context of an efficient traditional
rehabilitative intervention, the community compels persons who are guilty of serious moral violations
to undergo ritual cleansing to purify and morally transform them (Arifalo, 2010).
Culturally cleansed criminals do not experience stigmatization, which may pressure them to go back
to crime. The colonialists did not structure the prison system, which they imposed on Africa to foreclose
recidivism. Therefore, this represents a critical edge which informal rehabilitation of criminals has over
the formal practices. Because of these traditional precautions, cases of recidivism were not common.
Whereas, some countries having the highest incarceration rates such as the United States, Russia, South
Africa, China, and others have utilized the advantages which RJ offers to reduce the prominence of
retributive justice and incarceration (Abrams, Umbreit, & Gordon, 2006). In criminal matters, a restor-
ative principle is the convergence at which offenders, victims, and other individuals affected by crime,
resolve criminal puzzles. The principle draws on the traditional and religious belief, as well as that of the
state that disputants can repair disputes or crimes without recourse to the conventional CJS (Bradshaw
& Roseborough, 2005).
4. BENEFITS OF RESTORATIVE JUSTICE IN THE PRESENT DAY
RJ is relevant in contemporary societies because it is re-emerging as a formidable alternative to incar-

ceration, prosecution, in addition to a means of holding offenders accountable in a way that responds not
only to the needs of offenders but also the victims, as well as the community (Bradshaw & Roseborough,
2005). For RJ to be effective, the offender must be honest to confess the roles he or she had played in
the criminal events, the victim must be ready to demonstrate the large-mindedness to forgive the of-
fender so as to move on and the community must be accommodating enough to provide abode for both
the offender and the victim can take contributory part in repairing the harm to experience restorative
outcomes (Bazemore & Schiff, 2001; Abramson & More, 2002; Skotnicki, 2006).
It is disheartening that regardless of the fact that the whole world is tending towards appreciating
the values of restoration, the expectations that our society has for the CJS is to punish and rehabilitate
individuals who commit a crime (Ayorinde, 2014). Many theorists throughout history have argued which
is more effective, punishment, rehabilitation, or RJ. The effectiveness of punishment and rehabilitation
has been analyzed to see the effects on victims and offenders and also the social and fiscal impact on
society. Among the vulnerable groups whose lives are extremely affected by their lack of access to justice
are the aged, children, physically challenged and women (Ayorinde, 2014).
49

While the potential benefits for participants of restoration are increasingly well established (Strang,
et al., 2013), there often still appears to be a notable gap between the RJ described by academics and the
practices delivered by the police in its name (Parker, 2013). To the extent that the gap between theory
and practice in RJ has long been observed by researchers (Gavrielides, 2007), and this has not been em-
pirically proven to be untrue, there is a need to intellectualize the extent to which restorative principles
could help to equilibrate Nigerian women better. Thus, this chapter argues that the CJS in Nigeria is not
taking any systematic step to give women the access to the resources of RJ. It also reviews the operation
of the CJS which is not only sluggish, discriminatory, expensive, procedurally difficult and adversarial
but hurls offenders into prisons that do not have any rehabilitative appeal. Except RJ is allowed to play
a complementary function of restoring community values as well as making courts more user-friendlier,
the access of women to fairness may continue to be impaired in Nigeria.
On the whole, RJ is a lot quicker than a court process; proportionately fair to both victim and of-
fender; based on accountability and repairing harm; based on non-coercive participation of victim and
offender; works toward a specific restitution agenda that has a high success rate in reducing recidivism
as the offender has to face the victim and take responsibility (Abbotsford RJ & Advocacy Association,
2010). If in Northern Ireland, the embrace of RJ principles and practices has transformed violent prac-
tices of punishing various actors into more constructive, non-violent mechanisms of dispute resolution
(Ellison & Shirlow, 2008), its adoption is not likely to generate counterproductive effects among women
in Nigeria in particular and Africa in general. There is a growing consciousness among Nigerians that
the victims require restitution more than the state needs retribution. In light of crime having its origin in
social conditions, its resolution cannot be effective outside its social context as well.
5. THE TRADITIONAL AFRICAN RESTORATIVE JUSTICE

SYSTEM IN NIGERIA: THE TRAJECTORY
Elechi (2006) extensively reviewed the restorative traditions of dispute resolution amongst the Igbos in
South Eastern Nigeria. Also, Dalgleish (2005, p. 62) re-examined how rulers in ancient Ghana did their
justice. Weitekamp (2003) took a look at the anthropological origin of RJ practices and claimed that RJ
had existed in non-state and early state societies, arguing that ancient forms of RJ have been used in
societies and by early forms of humankind. It is somewhat ironic that we have at the turn of this century
to go back to methods and forms of conflict resolution, which were practiced some millennia ago by
our ancestors (Weitekamp, 2003, p. 111) and disbanded by colonizers.
Arisi and Oromareghake (2011) claim that in Nigeria, and most of Africa, norms, traditional beliefs,
and practices legitimize gender-based violence on the one hand and the British Council Report (2012)
argues that most structurally-motivated gender violence emanates from social norms which define what
constitute abuse of women both at the private and public levels. Thus, gender violence occurs in both the
public and domestic spheres. Such violence not only occurs in the family and the general community
but it is sometimes also perpetuated by the state through policies or the actions of agents of the state
such as the police, military or immigration authorities. This kind of gender unfairness took its roots from
colonial example, as it will be obvious in the course of this chapter.
Therefore, one of the notable vestiges of colonialism in Nigeria is its dominant adversarial court
structure which embraces a retributive, punitive system, comprising of the offender and the state, about
the offenders act and a determination of guilt or innocence (Caplan & Stringham, 2008; Doolin, 2007).
50

This legal and judicial system is sluggish and therefore encourages citizens to settle disputes outside the
courtroom. Judging by the obscurity into which culture had driven women concerning the enforcement
of their human rights; RJ beckons to them for the resolution of numerous cases of HTPs against them
and female children in their everyday life in Nigeria.
The CJS rests on the philosophy that the offender is instrumental in the injuries of the victim and
deserves to be punished. The offenders are labeled evil individuals. Thus, when someone is said to have
been brought to justice under an adversarial regime of justice, it is usual for members of the public
to inevitably think of severe punishment before any other option (Bazemore, 2007, p. 652). Based on
colonial authorities misunderstanding of the traditional structures of governance among the Igbo people
of Nigeria, the colonial anthropologists labeled these Nigerians headless or acephalous societies. The
colonialists went ahead to foist the appointment of Warrant Chiefs over the radically republican Igbo.
By this imposition, Igbo and Ibibio women declared war against colonialism in 1929, resulting in the
murder of dozens of women by the colonial forces (Afigbo, 1972; Agozino, 1997).
At another level of colonial recklessness, on assaulting a woman who raised the alarm about an at-
tempt to assault women for rejected taxation by a government, her other women occupied the home of
the teacher-assaulter. They denied him of sleep with an all-night noise as collective punishment for a
man who had abused a woman in traditional Igbo society. The next morning, he confessed that it was the
Warrant Chief who had commissioned him to evaluate the women for taxation. The women forced him
to march to the home of the Warrant Chief to repeat the allegation. On arrival, assistants of the chief as-
saulted the women. In a social equation that seemed to re-enact the scientific law that action and reaction
are equal and opposite, the women burnt his house. The war spread to Aba where women stopped a train
by occupying the tracks but when they occupied a road, the British driver, a medical doctor, rammed
into them and killed two, enraging them to loot and burn the premises of trading companies, customary
courts, and homes of chiefs. Finally, in Opobo, a British officer ordered troops to open fire and killed
dozens of women for refusing to disperse after he read the riot act. The colonial administration set up a
commission of inquiry which dished out collective punishments to the women and the communities to
recover the costs of the multinational companies whose premises were burnt by the women (Falola &
Paddock, 2011). From the preceding account, it is clear that the commission of inquiry, a component
of CJS did not do anything near an all-inclusive RJ. It considered the women, who were compelled by
intense provocation to react to taxing women, an act which then was culturally strange, criminals who
must pay for their crimes.
The commission punished arsonists and set murderers free. These harmful practices against women
in Nigeria were not traditional. It was a colonial agenda hatched by colonial agents. Up to that time, there
had been no recorded history which established Igbo women undertaking consistently violent organized
protests against their men for any act that can be described as HTPs. The British imported violence
against Nigerian women as part of their probably unintended package of undermining the self-worth
of the African people. For example, the chief judge of Edo State (in the South Eastern Nigeria) had to
warn magistrates to desist from giving unnecessary bail conditions on simple offences particularly those
involving women. As he put it: a bail bond of three hundred thousand naira (about US$3,000) with two
sureties who must be gainfully employed civil servants and house owners; for a woman alleged to have
stolen a chicken is outrageous (Iriekpen, 2010, p. 24), and betrays the fairness in real justice. Women,
who are victims of gender-based violence often, have little recourse because many state agencies like
the police and prisons are themselves guilty of gender bias and discriminatory practices. Many women
opt not to report cases of violence to authorities because they fear being ostracized and shamed by com-
51

munities that are too often quick to blame victims of violence for the abuses they have suffered. Violence
against women is so deeply embedded in society that it often fails to garner public criticism and outrage
particularly as it is clothed with religious immunity in certain cases (Nnadi, 2012).
Diverse studies have been carried out on GBV in Nigeria. Alawemo and Muterera (2010) situated
their study within the context of the economy of conflict theory. Women are selected as easy targets
for random and systematic acts of violence. They were not only physically harassed but also sexually
abused and degraded. Also, research established that apart from being raped, women were also divorced
by their husbands, which facilitated a worse emotional, stressful and painful condition. The resort to
divorce by men whose wives had been sexually abused was a means of dealing with the humiliation
acquired from the conflict (Alawemo & Muterera, 2010). The colonial-foisted CJS on Africa lacks the
power of restoration. It is RJ which is integrative, holistic system that addresses all stakeholders to a
crime and acknowledges individual perspectives and cultural differences (DeLisi, 2010). The colonial
commission of inquiry was an arm of the CJS. It merely gave the impression that the colonial government
allowed the supposed offenders the opportunity of fair hearing. Afterward, among the Yoruba people of
south-western Nigeria, agbe foba kii jebi meaning the mouthpiece of the government does no wrong.
Although evidence suggests that early civilizations in Africa and Asia incorporated many of the re-
parative practices that are now labelled restorative (Bazemore, 1994, 2007), RJ is said to have Western
origins, and the earliest instances of its use are usually cited as within the past half century and in North
America, as in the often-cited incident in Ontario (Yeh, 2008, pp. 669-671). Usually, when the literature
refers to an African-based RJ system, it is also within the past half century. It is however historically prov-
able that with the advent of colonialism, the communal lifestyle of Africans came under intense cultural
erosion. The colonial authorities came with their family life practices which heralded individuality into
the African lifestyles and misinterpreted the traditional role and status of the woman within the context
of her traditional African family setting. Thus, Africans were forced to abandon their community-driven
extended family system which facilitated restorative application and outcomes to adopt the alien CJS.
Nevertheless, history accounts for the trajectory of justice from restorative to a retributive system.
None of the theories which have attempted to explain the origin of this transition has succeeded in offering
a plausible and satisfying theory of its origin (Bianchi, 1994, p. 15). There seemed to be a consensus
about the legal revolution (Berman, 1983) that moved RJ to what we know today as public, state
centered, retributive justice taking its root in the eleventh and twelfth centuries (Llewellyn & Howse,
2002, p. 6). RJ has its roots in both western and non-western traditions. Therefore, a move towards a
restorative model of justice in Africa is perhaps best understood as a return to the roots of justice, and
not as a new-age justice for an ailing CJS (Llewellyn & Howse, 2000). Little wonder then that RJ has
been the dominant model of criminal justice throughout most of human history for all the world people
(Braithwaite, 2002, p. 3), whether from western, African, Asiatic and other non-western societies.
The transition of justice from restorative to retributive paradigm resulted in a re-conceptualization of
the nature of disputes. The preceding state of affairs led to the proclamation of the crown as keeper of
peace. He thus became an automatic even if paradoxical victim whenever the peace was violated (Zehr,
1990, p. 110). This development caused the courts to lose the content of their neutral focus and became
the defenders of the crown. They took ownership over those cases in which the crown was deemed victim
and justice came to mean applying rules, establishing guilt, and fixing penalties. The usurpation of the
victims status by the crown made the real victims, Nigerian women in this instance, inconsequential
in their cases because their disputes have been effectively stolen from them (Christie, 1977). In cases
of rape, incest or assault-related cases, African women became intense victims of judicial procedure.
52

In a very culturally and exceptional way, indigenous governance has its fine points in the administra-
tion of RJ. This philosophy heralded the development of restorative discipline which commits African
legal tradition to human dignity. Amongst the Igbo of Nigeria for example, a judgment will only be
considered fair and just in so far as it takes cognizance of some basic interests of stakeholders which
necessarily include that of the victims, the offender and that of the community. All these are expected to
be taken care of without necessarily compromising the facts of the matter in dispute. It is in this aspect
that Uchendus (1965) observation that victims and the community are central to African indigenous
justice systems found expression in the royal position of King Moshoeshoe of Lesotho who stoutly stood
against the imposition of the capital punishment on convicted murderers, driven to cannibalism by mate-
rial deprivation. This rare restorative royal thought confirms the strength of the culture of restoration in
African jurisprudence in which humanism meant treating the worst criminal with extensive humanity.
It also underscored the superior reconciliatory strength of African restorative passion to recover the
biblical lost sheep over the sheer waste of resources that characterize the adversarial retributive option
of the European tradition. This reconciliatory disposition of the African custodian of culture provides an
historical response to English (1996) who was not persuaded about the wisdom of choosing forgiveness
in the face of calls for revenge.
On arrival, the colonialists presented the African indigenous jurisprudence as rich in unfair judgments
and demonology, which in the colonial mindset does not qualify it for what the Europeans accept as a
legal system. For these reasons, there is a need to understand African legal history with the intention of
getting a clearer picture of its content before its colonial conquest and compare its features with the ones
attributed to RJ of the contemporary times to see the level of semblance or difference. The above is to
help improve the present state of public safety and the future progress of African jurisprudence. This
chapter anchors the urgency for Africans and their leaders to recognize the strength of their indigenous
social control systems as more able to restore social calm in the aftermath of victimization on this need.
Practically one in every four women in sub-Saharan Africa is Nigerian. This statistical strength and
the situation of women in Nigeria significantly determine the progress of the whole region. The non-
committal stance of government on the adoption of RJ has not allowed anticipated structural changes in
the lives of women in Nigeria to reflect the ideal expectations of the citizenry.
As a result of this evasive policy position of government, data indicate that Nigeria has one of the
lowest rates of female entrepreneurship in sub-Saharan Africa; only 7.2% of women own the land they
farm, which limits their access to credit and constrains entrepreneurship and business activity; only 15%
of women have a bank account (Gender in Nigeria, 2012). These negative outcomes are the consequences
of the systemic and deeply entrenched discrimination which no gender sensitive legislation exists to
address with the required depth of commitment in Nigeria. To improve the life chances of millions of
Nigerian women and the future of their children and the whole community, RJ can equilibrate their
interests. Since the focus of this chapter is on RJ and womens experiences of violence in Nigeria, it
presents the extent to which the interests of women have suffered under the criminal justice dispensation
to serve as a persuasive foundational plank on which it lays the justification for the adoption of RJ as a
necessary complement to the CJS in Africa as a whole and Nigeria in particular.
In a similarly deconstructing submission, Chirwa (2004) argued that reparations are consistent with
African systems of justice. These could be symbolic by making the offender and victim drink from the
same cup; or in kind, for example, payment of goats, cattle, chicken and sheep; or in cash, in the form
of blood money. In the usual African customary legal practices, compensation and restitution are more
likely outcomes. The infliction of action of a penal character comes as a last resort. African RJ uses
53

the mechanisms of restitution, compensation, participation and rehabilitation to address the resolution
of a crime. In this same way, many pre-colonial African societies aimed less at punishing criminal of-
fenders than at resolving the consequences to their victims. Since sanctions were compensatory rather
than punitive and intended to restore victims to their previous position (Van Ness & Strong, 1997, p.
9), the priority of the community is the resolution of the crime in a way that doing so does not unduly
compromise the strong social solidarity and prevailing spirit of good neighborliness in the community.
6. THE WAY FORWARD FOR RESTORATIVE JUSTICE IN

NIGERIAN (MODERN AND TRADITIONAL) APPROACHES
Regardless of the harmfulness of gender-based violence to women and the practices being contrary to
equity, natural justice and good governance, the lack of knowledge of women about their basic funda-
mental human rights helps to perpetuate the infringement of their economic, social, and cultural rights
(Onyegu & Essiet, 2002; Lockwood, 2006). For women to access solutions, a multi-sectoral response is
inevitable. If Nigeria adopts the RJ, it will expose the actual causes of crime in a friendly and corrective
atmosphere. Also, it will reveal the unwitting role which the victim played in facilitating the crime while
it will identify the carelessness of the law enforcement and porosity in communitys security network
that led to the victimization of the victim. It can reveal the intended and unintended implications of the
crime for the stakeholders. It is probably in this context that Amose (2013) could not understand the
sense in the state having to spend so much money to prosecute an alleged offender without considering
the multiplier effects of doing so in the overall interest of the victim. Most Nigerians would go for the
adoption of the principles of RJ to achieve a drastic reduction in crime rate in the society. For this same
reason, Uwandu (2013), the country officer of Avocats San Frontieres France (ASFF) known as Lawyers
Without Borders said her organization supports reformative justice for offenders, especially in the context
of a capital punishment. From this background, it is clear that stakeholders can provide solutions that
may be acceptable to all the parties involved in criminal activities in Nigeria (Botchkovar & Tittle, 2005).
It is ideal if Africa repackages her customary social control structures which do not tolerate impunity
and present them in the form of a restorative paradigm shift for adoption to rescue her women from the
callousness of a retributive judicial system. The extent to which African women show their displea-
sure with discussing the violation of their private rights on the premise of the formal laws shows their
profound understanding of the special values of the African people. Since there is no culture without
an admixture of some deep-seated restorative and retributive traditions (Braithwaite, 2002), the CJS,
working alone, cannot effectively prevent criminal activities. This is the premise on which this chapter
anchors its suggestion that RJ serves as an inevitable complement to jolt the CJS into vibrant justice-
dispensing competence.
To the extent that a flawless CJS in any nation, including Nigeria, is the vanguard for economic
growth, social balance, and political stability (Ugwuonye, 2011), the mutual tolerance and non-violence
that characterize the traditional restorative wisdom have begun to beckon at Nigerians. Contemporary
African communities had no option than nostalgically look back at the resources of their restorative
initiative and embrace the re-emerging paradigm of the African restorative traditions. For the fact that
RJ interventions have become significant and recognized tools of Alternative Dispute/Conflict Resolu-
tion both within and outside of CJS in Europe, the Oceania and North America (Barton, 2003) is good
54

evidence supporting the assumption that restorative paradigm is gaining substantial ascendancy all over
the world as a complement of the CJS.
Having sat beside native judges and empirically interacted with Africans administration of justice, the
first Chief Justice of the West Coast of Africa (now Nigeria, Ghana, Liberia, Sierra Leone, etc.) under the
companys administration, Sir James Marshall, had gained significant insight into the dynamics of African
jurisprudence. Balonwu (1975, p. 31) supported Marshalls discovery as reported by the London Times
(July 17, 1886), that pre-colonial African justice system was indeed not barbaric because the efficiency
with which the natives administered their laws and customs were more conducive to the best interests of
Africans. It was better adapted to their condition than the complicated system of English jurisprudence.
In the pre-colonial Africa, many African citizens were resolving their disputes using the traditional
and informal justice media. Despite the popularity of this system among the Africans, these media were
regarded as obstacles to development. Those who have criticized the African traditional justice system
as being too traditional to promote development are often too simplistic in their arguments. Because the
critics are bound up in the traditional-modern dichotomy in which traditional to them is equated with
backward and modern with advanced initiatives. So to them, development could only occur within
a modern framework, forgetting that traditions are often invented and hence, very modern in content
(Keulder, 1998, p. 294). Though orientalist criminologists would not accept this argument, but Cain
(2000, p. 1) with her experience teaching criminology in non-western cultures of Trinidad and Tobago
supported the above argument when she says that the issues which were most salient in other cultures/
context might not be covered at all in western criminology texts, and that the theoretical presumptions
of western criminology were as likely to be misleading, or at best to miss the point, as to be helpful.
She argues that in spite of the orientalistic and occidentalistic views of some Western criminolo-
gists, the African traditional dispute resolution approaches have remained relevant among most Africans
for reasons that include the vast majority of Africans to live in rural villages where access to the formal
CJS is extremely limited; or that the type of justice offered by the criminal justice courts may be in-
appropriate for the resolution of disputes between people living in the kind of communities in which
Durkheim stated were driven by mechanical solidarity. Despite all the acclaimed triumphs of RJ, the
Nigerian government has displayed inadequate loyalty to the principle. What came very close to open-
ness in respect of RJ emerged from a state government was displayed by the Commissioner for Justice
and Attorney-General of Lagos State at a two-day National Prison and Restorative Justice Conference
in Abuja. Ipaye (2013) bore testimony to the absence of a federally developed RJ policy in Nigeria and
called on the Federal Government to adopt RJ system as an option for the contemporary CJS, which is
largely characterized by the punishment of offenders through incarceration.
To a certain extent, the temptation to remain indifferent to the global appreciation of the restorative
justice paradigm with amount to a blatant refusal of the contemporary Africans to know what happened
before they were born and therefore fated to remain a child forever (Cicero, 106 BC - 43 BC). As yet
there is no institutionalized restorative policy-based practice in operation in Nigeria. However, the diverse
institutions and Non-governmental Organizations in the dispute resolution and criminal justice sectors
are working tirelessly to mainstream RJ in the ongoing criminal justice reforms in the country. Along
this direction, the Federal Ministry of Justice has sponsored the Administration of Criminal Justice Bill
in the National Assembly (Azu, 2016).
Because of the arbitrariness of the CJS, public confidence in it has remarkably ebbed. As a result of
its fundamental shortcomings, the clarion call by some Nigerians for the adoption of RJ is not misplaced.
In some jurisdictions around the world, RJ options are utilized at some stage after a suspect has been
55

arrested implying that the understanding and support of police, prosecutors, magistrates and judges is
essential if they are to propose restorative options for the accused. For instance among the emerging
African democracies, South Africa, Lesotho, Rwanda, and Botswana are piloting RJ schemes in the
juvenile justice system, and Ghana has passed an alternative dispute resolution Act in 2010 (Omale,
2013). Omale (2013) interviewed seventy-seven (N=77) criminal justice professionals. These included
strategic professionals in the administration of criminal justice such as the police, prosecutors, lawyers,
magistrates, judges, and prison officers in Nigeria. He investigated their opinions with regards to the
acceptability of RJ in the Nigerian CJS. The study found that 81.8% of the respondents are very likely to
recommend RJ if the opportunities were available and 15.6% is not likely; with 2.6% undecided. Though
the statistical strength of the sample size is not significant enough to warrant national generalization,
it is nonetheless symptomatic of the direction of the inclination of the Nigerian people on the subject
matter of the adoption of RJ system.
For a genuine RJ model that will address the peculiar needs of Nigerian women to evolve, Johnstone
(2002, p. 10) prescribed the following four ideals and characteristics: (i). That crime is, in reality, a viola-
tion of a person by another person; and this is much more significant than the breach of legal rules; (ii).
Response to crime should primarily be driven by a concern to make offenders aware of the harm they
have caused, display sincere penitence and to prevent them repeating that harm; (iii). That the nature
of reparation and measures to prevent re-offending should be decided collectively and consensually by
offenders, victims, and the community; and (iv). Efforts should be made to improve the relationship
between the victim and the offender to reintegrate the offender into the community. Also, Gittleman
(2008) proposed four criteria needed for restorative justice to succeed: (1) there must be a workable
relationship between the parties, (2) the offender must accept responsibility for his actions, (3) both
victim and offender must be dedicated to the process of creating a workable relationship, and (4) the
process must involve interested community members that can support the parties as they work toward
their goals. With the different kinds of radical multi-door judicial initiatives that are being championed in
Lagos, will Nigeria join the league of countries adopting RJ in the foreseeable future, to enable women
who are often victims of HTPs take advantage of its triumphs? The legislative response of the Nigeria
National Assembly will determine this.
CONCLUSION AND RECOMMENDATIONS
The philosophy of punishment as one of the primary justifications of the CJS is alien to African tradi-
tional justice system. The underlying principles of RJ are closer in orientation, procedure, application
and outcomes to the traditional African justice. From the theoretical arguments advanced in this chapter,
it is clear that RJ is beneficial to the triad of interest involved in the crime event. The direct involve-
ment of the victim, offender and community is a radical articulation of penal democracy. In its effort to
give justice a human face, RJ practically humanizes the offender, the offended and the community that
accommodates all parties. This equity approach effectively promotes social healing as the victim is ap-
peased to accept the offender who atones for his crime and the community fosters interaction between
the two and integrates them back into its mainstream. From the preceding, it is clear that RJ extends the
frontiers of justice in criminal law further outwards.
This chapter recommends that the CJS should be reformed in a way that the introduction of RJ
complements it; The values of RJ should be Africanized to make it value-compliant approach; African
56

RJ should be engendered so that it is not endangered; Nigerians should periodically review its use so
as to update its operational weaknesses; Educate children to deepen their understanding and use of RJ.
Cultural socialization should take cognizance of the new paradigm shift in jurisprudence. To the extent
that the Kenya National Library Service, in Africa provides information services that increase access to
knowledge (Sturges, 2001), these resources empower every citizen, encourage social inclusion and make
librarians active change agents in society (Tise, 2007). While efforts to address gender-based violence
cannot ignore legislative approach, attempts should focus on cultural and attitudinal problems which
predispose perpetrators to harmful practices against women. In this regard, a multi-sectoral approach
involving a combination of efforts at individual, community, state and federal levels that review socially
constructed roles, access to educational, health, and employment opportunities will be a pathway to suc-
cess. Non-governmental organizations attempt to work with school systems, law enforcement agencies
and the media to embolden women to report their experiences of violence for the criminalization of
stigma and prosecution of perpetrators can stamp out gender-based violence in Nigeria.
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63
Chapter 5
Restorative Justice and
Violence Against Women
in the United States:
An Effort to Decrease the Victim-
Offender Overlap and Increase Healing
Lorenn Walker
University of Hawaii, USA & Honolulu Community College, USA
Cheri Tarutani
University of Hawaii Manoa, USA
ABSTRACT
Opposition to using restorative justice to address violence against women mainly concerns the fear that
women will be re-victimized if they engage with men who endangered them. While law enforcement and
criminal justice approaches are necessary to address violence against women, womens choices about
when and how to use law enforcement and prosecution to address violence against them, should be
respected. Exclusive criminalization of violence against women has not protected many and has further
harmed marginalized and Black people. To address intimate partner violence, victims needs for healing
must be met including when the victim-offender overlap applies and an offender is also a victim. Ignoring
healing perpetuates violence. Applying restorative justice and its foundational questions, during direct
meetings between victims and offenders, or when they meet separately, can address the victim-offender
overlap, reduce reliance on punishment, and increase healing.
INTRODUCTION
In March 2016, Reiko, of Hawaiian, Japanese and Caucasian ancestry, is 46 years old. Her biological
mother was 16 and her biological father was 21 years old when she born and gave her up for adoption
through Hawaiis state child protective services. This is Reikos story of victimization, to offending, to
desistance and community service, in her own words, which she has reviewed and granted permission
to publish:
DOI: 10.4018/978-1-5225-2472-4.ch005

Restorative Justice and Violence Against Women in the United States
When I was seven, my adoptive moms boyfriend started standing outside my room at night and looking
at me. Eventually he came in and sat on my bed. He touched me. I would pack on extra clothes, like
wear five shirts and shorts, but he would find my private parts. He made me do things to him. I told my
mother innocently, Oh, Uncle was in my room last night. She didnt believe me. She said I was a liar. I
think she was afraid of being alone and wanted him more than me. I think she was abused herself and
was angry I wasnt her real daughter. She beat me with anything she could grab. Once she beat me
for being sick. I was coughing in bed with a fever. She came in and hit me in the head with her fists. A
lot of times she locked me in a closet. My imagination saved me from that. I would go in my mind and
imagine a life where I was loved. She yelled all the time I was stupid and not worth nothin. I believed
her and felt unworthy for years.
When I was eleven, I started sniffing paint and doin drugs. I ran away. I met horrible people on the
street. Guns were held at my head. The first time when I was raped; the second time when I was raped
after I ripped off a drug dealer; and the third time when my boyfriend played Russian roulette with me.
I was put into foster care and lived in every group home on Oahu. I ran away from all of em. I went
mute when I was twelve and was put into the Hawaii state mental hospital. I was locked up alone in a
room. I did whatever I could to make em think I was crazy. I said I heard voices. Got so depressed I
started believin I really was crazy. Somehow I snapped out of it. After I got out of the mental hospital,
I assaulted someone. I was 13 and put into Koolau [Hawaiis youth prison]. I was there until I turned
18 because I escaped twice and got more time.
I had my first baby when I was 18 and three more after that. The last one was born when I was in prison.
I was shackled to the bed when I gave birth. He was taken from me and put into foster care. I havent
seen him since he was adopted around five months old in 2000. I held him in the judges chambers and
said goodbye. He is 16 years old today. I abused my other three kids I had. Not as bad as my mom, but
I was not good. I did a lot of crystal methamphetamine. I would fall asleep after being up for days. We
lived in a house by the beach. Id wake up and the kids would be playing by the ocean. They were little,
like 12 months to 4 years old. Id snap, and go off screaming and hitting em. When I was 29, I got
sentenced to prisonmostly for theft charges, but I also got into a lot of fights and assaulted dozens of
women I had relationships with. I was a very angry person. It was my escaping from O triple C [Oahu
Community Correctional Center] that got me a sentence of 40 years. I got out of prison when I was 44
years old, two years ago.
I always had a hard time learning in school. I was in special ed since elementary. I got motivated in
prison to get my GED [General Educational Development] because my friends all were. The prison
also paid us about 34 cents a hour to go to school for it. I passed the test after my third try. Prison was
a place of healing for me. I got treatment. It helped me see my worth. I wasnt just a broken unworthy
child. Today I value integrity, and being responsible for myself. I work for a non-profit, helping women
in prison come out and succeed. I want them to see if I could do it, they can too.
My biggest goal in life right now is to have a relationship with my kids. In 2012 when I was in prison,
I had a restorative reentry circle. The circle helped me plan for how I could work on repairing things
with my kids. Their paternal grandmother who raised them since I went to prison didnt come to the
circle, but she gave information that was read. She asked me not to contact the kids until they were 18. I
64

respected that. After they turned 18, I found em through Facebook. We stay in touch now with that. Im
careful respecting their boundaries. I dont push myself on them. They still have anger and resentment
to me. I understand their disappointment. I made a lot of promises I broke. I do what I say I am gonna
do now. My hope is that someday they see I can be trusted and know how much I love them.
Since being released from prison in 2014, Reiko has remained law abiding and works helping women
transition from prison. She maintains her relationship with her children through social media, hoping
for more involvement in the future.
BACKGROUND
Unfortunately, Reikos life story is not an aberration. Her experience of child abuse and violence is similar
to the life paths of many thousands of people that the authors have worked with throughout their careers
as lawyer, social worker and public health educator. Most of these people, both victims and offenders,1
were involved in the child welfare, criminal justice, and corrections systems. Numerous times the au-
thors acted as guardians ad litem for children and incapacitated adults in family court; assisted families
accused of abuse and neglect; represented youth charged with crimes and status offenses; worked with
imprisoned adults and juvenilesboth male and femalealong with their loved ones; and represented
state agencies charged with negligence in the custody and care of foster youth and imprisoned people.
Reikos experiences highlight the shortcomings of the criminal justice system in response to violence
against women. In the United States, the criminal justice approach has utilized resources that would
be better spent on prevention, and healing for people harmed and traumatized by violence. Failing to
address the harms that victims like Reiko suffer, can lead to further criminal and violent behavior. To
improve the criminal justice approach, the World Health Organization (WHO, 2010) suggests using
public health to empower women and prevent domestic violence. Restorative justice practices apply
public health learning principles (Walker & Greening, 2011). Restorative practices can be applied with
or without the offenders participation, which can give women victimized by violence an opportunity to
address any resulting harm and trauma, and help them find healing (Walker, 2004).
Criminal Justice Systems Failure to Prevent Violence Against Women
Violence against women2 is a problem that persists throughout the world today. In 2013 the WHO re-
ported that violence against women is not a small problem that only occurs in some pockets of society,
but rather is a global public health problem of epidemic proportions, requiring urgent action (2013, p.
36). Despite the popularity of mandatory criminal justice interventions for intimate partner violence,
it has not protected many women (Iyengar, 2007; Richie, 2012; Maguigan, 2003). Over a thirty-year
period (between 1973 and 2003) intimate partner homicide increased in states with mandatory arrest
laws (Iyengar, 2007, p. 17, emphasis added). Applying criminalization instead of prevention has caused
further harm for marginalized people, especially women of color.
The federal Violence against Women Act (VAWA) was originally enacted as part of the expansive
Violent Crime Control Law Enforcement Act of 1994, which was one of the most comprehensive, far-
reaching crime bills in the history of the United States (Richie, 2013, p. 85). The 1994 law funded state
law enforcement positions, prisons, and prevention programs (United States Congress, 1994). VAWA has
65

been reauthorized several times, most recently in 2013. The law originally provided funding for states
that enacted mandatory arrests in domestic violence cases. Later the law dropped the mandatory
provision to pro arrest (United States Congress, 2013). As of 2010, however, no states with mandatory
arrest provisions had eliminated them (SAVE, 2016).
Jeremy Travis, president of New Yorks John Jay College of Criminal Justice, originally supported
the law, but twenty years after its enactment he believes mandatory imprisonment for crime control was
a terrible mistake (National Public Radio, 2014, p. 1). Travis led a National Research Council panel
that published a massive report on American incarceration polices and its consequences, which found
only a modest relationship between imprisonment and lower crime rates (National Research Council,
2014). The report also found that the prison industry has had major negative impacts on American society.
The influence of economic interests that profit from high rates of incarceration grew at all levels of
government, due in part to a revolving door that emerged between the corrections industry and the
public sector. Another factor was the establishment of powerful, effective, and well-funded lobbying
groups to represent the interests of the growing corrections sector. The private prison industry and other
companies that benefit from large prison populations have expended substantial effort and resources in
lobbying for more punitive laws and for fewer restrictions on the use of prison labor and private prisons.
(National Research Council, 2014, p. 126, references omitted)
Despite the damage that prison causes individuals and communities, the US prison industry grew
from about $7 billion dollars in 1980 to nearly $80 billion in 2010 (Stevenson, 2014). Prisons are harmful
for incarcerated people and for the people who work in them (Zimbardo, 2007). The United States is the
prison nation (Richie, 2012), imprisoning 2.3 million people or 707 out of every 100,000 people in the
country. The United States surpasses all other countries by imprisoning 67% more people than Russia,
the second largest incarcerator in the world, with about 474 per 100,000. The US also incarcerates a
higher number of people who are not dangerous (Cabral & Saussier, 2012). In contrast, Finland incar-
cerates the least number of people, 58 per 100,000 (International Centre for Prison Studies, 2013). Yet,
the US has 23 times more crime than Finland, including 80% more rapes (Nation Master, 2016, p. 1).
American prisons are known for housing inordinate numbers of people who seriously abuse substances,
yet go untreated while incarcerated. An alarming irony of the American war on drugs is that drug users
condemned to prison often receive no treatment for their addictions (Hari, 2015).
Those suffering from mental illness too have been criminalized in the US where they are more often
imprisoned than provided treatment.
In 2012, there were estimated to be 356,268 inmates with severe mental illness in prisons and jails.
There were also approximately 35,000 patients with severe mental illness in state psychiatric hospitals.
Thus, the number of mentally ill persons in prisons and jails was 10 times the number remaining in state
hospitals. (Torrey, et. al., 2014, p. 6)
U.S. prisons also harm communities by shifting resources away from areas that have positive results
including education, which prevents crime (Lochner & Moretti, 2003). Education is negatively correlated
with incarceration and correlates to the wide gap between the number of white and Black3 American
men who are incarcerated (Lochner & Moretti, 2001). Finland illustrates the importance of education
66

by having the worlds lowest prison population and the top fifth public school system. Finland schools
rank below only four Asian countries, also with far less imprisonment rates than the US (Pearson, 2016).
Beth Richie, professor of African American studies and criminology, examines the ways that race/
ethnicity and social position affect womens experience of violence and incarceration, focusing on the
experiences of African American battered women and sexual assault survivors (University of Illinois,
2016, p.1). According to Richie, Black women challenged the strategies and decision-making structures
of white-dominated institutions and protested imbalances in power in feminist anti-violence organiza-
tions, drawing attention to the ways that anti-violence work was reflective of general trends associated
with the buildup of Americas prison nation (2012, p. 149).
Similarly, Florynce Kennedy, civil rights activist and lawyer, urged early feminists to address racism
in the womens rights movement to ensure equality, but her arguments were rejected (Randolph, 2015).
Kennedy also argued for material resources to help people in the Black community achieve equality. Richie
continues Kennedys call for recognition that race is as central to the analysis of what is happening to
women as class and further emphasizes that Black women being criminalized because they are poor
is tantamount to institutionalized racism (Richie, 2012, p. 114). Being poor and involved in domestic
violence are related. The University of Californias Center for Poverty reports that Poverty increases
the risk for family violence including intimate partner violence and child abuse (Maurer, 2015, p. 2).
Intimate partner violence and homelessness are significantly correlated. Because a disproportionate
number of public housing residents are Black women, threats to public housing are another example of
how poverty is criminalized and racism is institutionalized (Richie, p. 115).
According to Dorothy Roberts, scholar and racism expert, As a result of the political choice to fund
punitive instead of supportive programs, criminal justice and child welfare supervision is pervasive in
poor Black communities (2002, p. 206). Rather than investing in education and violence prevention,
investments in the criminal justice system have segregated and harmed poor Black communities further
(Richie, 2012). The support for a criminal justice approach to address gender violence has resulted in a
lack of antiviolence programming to assist victims and rehabilitate offenders (Heise, 2011).
Dorothy Roberts has also documented how prison support has harmed the community:
The monumental investment in prisons comes at the cost of disinvestment in other social institutions that
serve the communities that produce the inmate population. The tens of billions of dollars spent each year
on building the prison industrial complex were taken from other social systems that educate, house, and
heal poor children (Roberts, 2002, p. 206).
To the extent that marginalized people experience disparate treatment by the criminal justice system,
these populations are overrepresented in child welfare, foster care, and prisons. In Reikos home state
Hawaii, criminal justice instead of educational and social investments have resulted in Native Hawai-
ians representing half of the foster placements, being imprisoned more, and suffering greater poverty
compared to other populations (Perez, 2015; Office of Hawaiian Affairs, 2010). Additionally, the average
educational level for an imprisoned person in Hawaii is the sixth grade. Yet, the state continues to invest
in prisons with plans to build a new prison estimated to cost 1.5 to 2 billion dollars (Hawaii Twenty-
Eighth Legislature, 2016) for its population of about 1.4 million (State of Hawaii (2015).
HawaiI contracts with Corrections Corporation of America (CCA), a for-profit private prison com-
pany, to incarcerate almost 2000 people in Arizona. CCAs Hawaii lobbyists were paid over $200,000
during a two-year period (Jacobs, 2015). If Hawaii invested more in education instead of prisons, Reiko
67

might have had better opportunities for a crime free life with specialized education to address her learning
disabilities. Her learning problems left unresolved likely contributed to her abusing substances, which
is common for minors involved with the justice system (Keilitz & Dunivant, 1986).
Public Health Responses to Violence Prevention
While laws against intimate partner violence are necessary, the criminal justice system alone is inadequate
to resolve and prevent the problem (Peterson, 2008). While law enforcement is necessary, a wider ap-
proach is needed to effectively deal with domestic violence. An approach is needed that addresses the
social structural factors that law enforcement cannot address (Erez, 2002). Currently, on the whole,
sufficient evidence of the deterrent effect of criminal justice system responses on intimate partner and
sexual violence is still lacking (Dahlberg & Butchart, 2005; cited in WHO, 2010, p. 36).
Richard Peterson, research director for the New York City Criminal Justice Agency, advises:
It is time to correct the imbalance between the criminal justice response and other responses to IPV. We
need more time, effort, and resources for programmes that empower battered women, promote informal
social control, and, most importantly, prevent individuals from committing acts of IPV. To reduce IPV,
we need to move beyond responding to victims toward investing more in the prevention of IPV from
happening in the first place. (Heise, 2011, p. 72)
Public health works to prevent violence, while law enforcement and the criminal justice system react
to crime primarily by identifying and punishing the people who caused it. Public health approaches focus
on changing the social, behavioral and environmental factors that cause violence (Mercy, Rosenberg,
Powell, Broome & Roper, 1993, p. 8).
Economic and social problems such as poverty, joblessness, and racism are inextricably linked to
violence in our society. In the final analysis, if violence is to be prevented, these fundamental societal
issues must be addressed at the same time that we take whatever immediate actions possible to prevent
violence. (Mercy, et al, 1993, p. 24)
The WHO advocates: The public health approach to prevention is intended to complement criminal
justice-based approaches (2010, p. 2). The WHO recognizes:
At present, the bulk of the limited human and financial resources expended in the area of intimate partner
and sexual violence are devoted to the treatment, management and support of victims (who often do not
seek out services until they are older) and the arrest and incarceration of perpetrators. Drawing lessons
from a public health perspective means however that a similarly strong emphasis should now be placed
upon the primary prevention of intimate partner and sexual violence. (WHO, 2010, p. 8)
Public health addresses violence prevention by healing the wounds it causes, and repairing damaged
relationships:
Unlike the criminal justice model, the public health model focuses on healing the wounds of violence
because of its perception that violence is a disease that is difficult to contain. In turn, the public health
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approach emphasizes the importance of healing the individual victims physical and emotional wounds
and reestablishing the victims and offenders connection to one another and to the community. This
approach is designed to prevent the spread of more violence. (Monterastelli, 2002, p. 244)
The WHO recommends the following prevention interventions for violence against women:
[C]hallenging social norms that support male authority and control over women and that condone
violence against women; reducing levels of childhood exposure to violence; reforming discriminatory
family law; srengthenging womens economic rights; eliminating gender inequities in access to formal
wage employment and secondary education; and, at an individual level, addressing harmful use of
alcohol. (2013 p. 36, references omitted)
A public health approach to violence prevention consists of three levels: primary, secondary, and
tertiary. The primary level seeks to prevent violence from ever occurring; the secondary level of preven-
tion provides immediate responses to violence including medical care; and the tertiary prevention level
helps people deal with the aftermath of violence including victim trauma and offender rehabilitation
(Center for Disease Control, 2016). These last two levels represent the bulk of the limited human and
financial resources expended in the area of intimate partner and sexual violence (WHO, 2010, p. 8).
Prevention efforts require valuing women in all social, economic, political and family arenas by
empowering them with education, adequate employment, and child support, as well as changing the
values, beliefs and behaviors of men that condone and commit violence against women.This necessary
shift is unlikely if resources continue to support punitive approaches over prevention needs. The WHO
reviewed intimate partner violence prevention programs including Hawaiis Healthy Start intervention.
This home visitation program for at-risk families showed that mothers were less likey to be violent toward
their children, and less likely to be victimized themselves by intimate partner violence (Bair-Merrit, et
al., 2009). Unfortunately, the Healthy Start program, once a statewide program, it is now only available
in two limited areas on Oahu island (Hawaii Department of Health, 2016).
Restorative Justice to Address Violence Against Women
According to Howard Zehr, one of the worlds most renowned restorative justice scholars:
Restorative justice emerged in the 1970s as an effort to correct some of the weaknesses of the western
legal system while building on its strengths. An area of special concern has been the neglect of victims
and their needs; legal justice is largely about what to do with offenders. It has also been driven by a
desire to hold offenders truly accountable. Recognizing that punishment is often ineffective, restorative
justice aims at helping offenders to recognize the harm they have caused and encouraging them to
repair the harm, to the extent it is possible. Rather than obsessing about whether offenders get what
they deserve, restorative justice focuses on repairing the harm of crime and engaging individuals and
community members in the process. (Zehr, 2013, p. 7)
While there is no universal definition of restorative justice (Gavrielides, 2007), it is a concept in hu-
man history as old as acephalous societies (Gavrielides, 2011, p. 1). RJ practices provide opportunities
for finding harmony and healing after wrongdoing. While RJ does not help everyone, it has been shown
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to help those most troubled and difficult to treat. People diagnosed as psychotic who participated in RJ
practices developed empathy while they previously lacked it (Reisel, 2015). Restorative justice views
crime as harm to relationships between people and communities. RJ is concerned with repairing harm
by meeting victims, offenders and communities needs, including being accountable and responsible
(Zehr, 1990; Zehr, 1997).
RJ practices apply public health learning principles to wrongdoing that can help people recover
from trauma, heal, and move forward with their lives (Walker & Greening, 2009; Walker, et al, 2015).
Restorative justice is a health equity practice (Witt, 2014, p.1). Because Europe has the lowest preva-
lence of violence against women, examining how it approaches the problem is instructive. Since 1999
European governing bodies have recommended guidelines for member states to develop legislation for
using victim offender-mediation in penal matters, a common restorative practice (Council of Europe,
1999). In 2012, the European Parliament issued a directive superseding prior guidelines dealing with
victim rights. Directive 2012/29/EU established minimum standards on the rights, support and pro-
tection of victims of crimes (Journal of the European Union, 2012). The European Unions (EU) 2012
mandate included a restorative justice provision.
(46) Restorative justice services, including for example victim-offender mediation, family group con-
ferencing and sentencing circles, can be of great benefit to the victim, but require safeguards to prevent
secondary and repeat victimisation, intimidation and retaliation. Such services should therefore have
as a primary consideration the interests and needs of the victim, repairing the harm done to the victim
and avoiding further harm. Factors such as the nature and severity of the crime, the ensuing degree of
trauma, the repeat violation of a victims physical, sexual, or psychological integrity, power imbalances,
and the age, maturity or intellectual capacity of the victim, which could limit or reduce the victims ability
to make an informed choice or could prejudice a positive outcome for the victim, should be taken into
consideration in referring a case to the restorative justice services and in conducting a restorative justice
process. Restorative justice processes should, in principle, be confidential, unless agreed otherwise by
the parties, or as required by national law due to an overriding public interest. Factors such as threats
made or any forms of violence committed during the process may be considered as requiring disclosure
in the public interest. (Journal of the European Union, 2012, p.6)
In August 2016, the United Kingdoms House of Commons issued a report on restorative justice
acknowledging it could be used for domestic violence despite arguments against it:
Our attention was drawn to doubts around the use of restorative justice in cases of sexual offences, do-
mestic abuse and hate crime. In particular we received submissions concerned with the appropriateness
of restorative justice in cases of domestic abuse. While acknowledging the real and substantial risks,
our view is that, while restorative justice will not be appropriate in every case, it should not be excluded
simply by reason of the type of offence committed. (House of Commons, 2016, p. 3)
To strengthen crime prevention against women the UN suggests that countries develop guidelines for
applying RJ in violence against women cases that protect safety, confidentiality, and personal agency
(2014).
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The restorative justice process must offer the same or greater measures of protection of the victims
safety as does the criminal justice process; The referral to the restorative justice process is made after
the perpetrator has been charged with a crime and with approval of prosecutor or investigative judge;
Determination by trained and qualified personnel that the case is not high-risk; and The victim is fully
informed and has consented. (UN, 2014, p. 77)
Restorative justice practices can empower people who have been harmed by wrongdoing (Braithwaite,
2002). RJ practices are a way for communities to create and increase cohesion and efficacy (Block, 2008).
Challenged neighborhoods can benefit from informal social control to prevent violence (Sampson, et
al, 1997). RJ helps generate social capital and informal control by providing small group dialogues for
people to build understanding and relationships.
The criminal justice system was used early in Reikos life unsuccessfully. While she benefited from
RJ while imprisoned as an adult by participating in a restorative reentry circle, Reiko could have been
helped in her youth if RJ had been available. Extensive research on experimental studies of juvenile diver-
sion recommends, restorative justice interventions like family group conferencing and victimoffender
mediation as effective interventions (Schwalbe, Gearing, MacKenzie, Brewer & Ibrahim, 2012, p. 32).
Family group conferencing (FGC) is a restorative practice that began in New Zealand and spread to
the United States in the 1990s (Immarigeon, 1996). It is used in many countries for family violence in
child welfare cases. Ohana conferencing is Hawaiis FGC model. Since 1996, it has served thousands
of families similar to Reikos with positive results including fewer child foster placements, fewer parental
right terminations, and less court interventions (Walker, 2005).
Restorative Justice for Addressing the Victim-Offender Overlap
The victim-offender overlap is one of the most consistent findings in criminology (Lauritsen & Laub,
2007). Victims and offenders have been described as often the same individuals (Wolfgang 1957;
Singer 1981; Jensen & Brownfield 1986; Lauritsen et al. 1991; Sampson & Lauritsen 1994; all cited
in Shaffer, 2004, p. 1). A comprehensive literature review of 37 studies researching the relationship
between victimization and offending, over a 50-year period (1958 to 2011), illustrates that victims and
offenders share histories of violent behavior, property arrests, lifestyle characteristics, and neighborhood
characteristics (Jennings, Piquero & Reingle, 2012, p. 20). Moreover, the victim-offender overlap is
consistent in the United States as well as other countries, over time, across various contexts, and within
various demographic subgroups. Additionally, the greatest overlap appears to be among the most se-
vere crimes, particularly homicide (Jennings, Piquero & Reingle 2012; Lauritsen & Laub 2007; cited
in Tillyer & Wright, 2014, p. 34).
Reiko is an example of the victim-offender overlap. She was victimized for much of her life and later
behaved in offensive and assaultive ways. Often, after continuous acts of victimization, one abandons
the role of the victim to take on the role of the offender in order to survive (Gaffney, 2012, p. 1). While
the victim-offender overlap is widely recognized, little research has been conducted on its relationship
to violence against women (Tillyer & Wright, 2014). Instead, the main emphasis in violence against
women research has distinguished offenders from victims, and focused on their differences. The most
prevalent treatment theories for domestic violence assume clear differences and a monolithic group of
males exercising dominion and control over women, e.g., the Duluth Model of power and control
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(Gondolf, 2007). While male domination of females certainly exists, addressing the problem solely as
offenders vs. victims, is a limited way to understand violence against women.
Researchers suggest that victim-offender overlap be considered in studying violence against women:
[I]f we consider that at least some instances of IPV might be better understood as conflicts that are not
necessarily used for domination and control purposes, but which nonetheless occur within intimate set-
tings, an investigation of the victim-offender overlap with respect to IPV becomes more tenable. (Tillyer
& Wright, 2014, p. 31)
The most common type of intimate partner violence for instance is perpetuated by both men and
women resulting from escalating arguments into minor forms of violence, such as pushing or shoving and
verbal attacks, which is unlikely to escalate and usually stops after separation (Kelly & Johnson, 2008).
Reikos history demonstrates the implausibility of simply categorizing her as an offender, even though
she harmed others. She was abused by her adoptive mother; sexually abused and not believed when she
reported it to her mother; used illegal substances and ran away at age eleven; and was involved in the
juvenile justice system as a young teen. Her early trauma resulted in her becoming mute for some time,
and eventually confined in a state mental health facility. She spent much of her adolescence in a youth
correctional facility, and almost 20 years of her adult life in a womens correctional facility, mainly be-
cause she escaped. Reiko was victimized in many ways. She was not safe while under the responsibility
of foster care and child welfare. She was punished instead of treated by the juvenile justice system. The
educational system did not address her learning problems effectively. She was left without the skills
or resources to adequately survive when she emancipated at age 18. Unsurprisingly, her life situation
required her to survive as a young adult and the overlap became prominent. As an adult she used drugs,
committed crimes, and mistreated her own children. Her harmful behaviors and the failure of the social
systems she was involved in, led her to imprisonment. While incarcerated Reiko earned her GED, which
was key to her being able to function when she was released. She has been employed since her release
being of service to others. Her desistance, despite being caught in the victim-offender overlap, is a testa-
ment to her resiliency and hard work.
Restorative Practices Applications without Victim and Offender Encounters
Restorative practices apply restorative justice philosophy (Strang & Braithwaite, 2000). RJ practices
give individuals affected by specific incidents of crime the opportunity to meet and discuss their needs,
and how to repair the harm. Healing4 harm is the foundation of restorative justice (Zehr, 1997). The
quintessential RJ practice is an encounter between a victim, offender, each partys respective supporters,
and any other affected members of the community. Together individuals affected by a specific incidence
of wrongdoing meet to discuss questions, which Howard Zehr (1997, p. 55) believes are the essence of
restorative justice:
1. Who has been hurt?

2. What are their needs?
3. Whose obligations are these?
4. Who has a stake in this situation?
5. What is the appropriate process to involve stakeholders in an effort to put things right?
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RJ can be applied at many levels (McCold & Wachtel, 2002; Koss, 2014) and does not require direct
victim and offender encounters to help people heal. People can consider Zehrs fundamental RJ ques-
tions for healing without face-to-face meetings. Often victims and offenders cannot meet for a variety of
reasons. First, RJ is voluntary and not all parties want to meet. Second, many people do not know who
hurt them. Most reported crime goes without anyone arrested. In 2014, only 47.4 percent of all reported
violent crimes and only 20.2 percent of property crimes in the US resulted in an arrest (Federal Bureau
of Investigation, 2014). Often times people also commit crimes against strangers and do not know who
they harmed. Third, people in prison are not always allowed to meet with victims even if the parties
want to meet.
Victims have met with facilitators, with or without supporters, to discuss how they were harmed
and what could be done to help repair the harm (Walker, 2004). These processes have helped victims
engage in less rumination about the crime and helped them address any shame and guilt they might
feel. One woman, who participated in a restorative process without the offender, resolved suffering
she experienced for a decade after being harmed (Walker, 2004). She was working as a store clerk and
robbed at gunpoint. When the robber asked for the safes combination she told him she did not know it
when in truth she did. After he left her tied up on the floor, she was terrified he would come back and
kill her. She worried her children would lose their mother because she lied to the robber. Later in court,
when she was cross-examined, and her credibility was challenged, she felt additional guilt and shame.
Her restorative meeting was held ten years after the robbery, which she was still haunted by (Walker,
2004, p. 1). Six months after participating in a restorative meeting with two facilitators addressing Zehrs
essential RJ questions, she said it helped me a lot. I used to think about the robbery all the time. She
found the RJ process helped her not worry about it anymore (Walker, 2004, p.1). Additionally, offenders
can engage in restorative processes to deal with their behavior in positive ways (Walker & Hayashi, 2007;
Walker & Sakai, 2006). Imprisoned people can meet with loved ones in restorative reentry circles and
discuss how they harmed others, and what they can do to make things right (Walker & Greening, 2013).
Hawaiis experiments with a restorative reentry circle process have been evaluated for its healing
benefits for children of imprisoned parents. Children who participated in a restorative reentry circle for
a parent reported increased ability in dealing with the trauma of losing a parent, decreased rumination of
painful memories, and increased optimism about the future (Walker, Tarutani & McKibbon, 2015). The
reentry circles have also been evaluated for recidivism outcomes (Davidson, 2016). Arrest rates three
years after release from prison for imprisoned people who had circles, were compared with imprisoned
people who applied for a circle, but did not participate in one. They did not receive a circle most often
because they left prison before one could be provided. Those who had circles were significantly more
likely to remain arrest free than those who did not have circles. Additionally, the imprisoned peoples
average rate of re-arrest after having a circle was significantly less than the states average recidivism
rate for anyone released from prison three years earlier.
Restorative Justice for Victim Autonomy
Mandatory prosecution for violence against women has been the prevalent approach for over 25 years,
but the problem continues (Pickert, 2013), even for white middle class women who are its primary
beneficiaries in the United States (Richie, 2012; Ruttenberg, 1994).
Mandatory criminalization of gender violence is problematic for many reasons. Besides creating fur-
ther marginalization of Black people by criminalizing more Black men, it is highly paternalistic. Marian
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Ruttenberg, a law student in 1994, correctly predicted that mandatory arrest would further harm Black
people. She also pointed out that increased state controls over family relations, however abusive or
oppressive, strengthen the patriarchy from which feminists struggle to free themselves (1994, p. 184).
Similar arguments have been made by Mills (2006), Goodmark (2015) and Coker & Macquoid, (2015).
Further, [u]niform policies of mandatory arrest rob women of choice and are oversimplified, given the
varied domestic situations women face and the strategies they choose to deal with abuse (Koss, 2000,
p. 1). Lawyers Johnsen and Robertson (2016, p. 1585), argue that victim autonomy is important for
allowing therapeutic and restorative interventions in domestic violence protective order cases. Robertson
is a prosecutor in Philadelphia.
Restorative Justice as an Alternative to the Criminal Justice System
Restorative practices, compared to criminal justice interventions, have been shown to be more effective
at preventing repeat criminal behavior, especially for serious offenses (Sherman & Strang, 2007). Just
as important, victims and others affected by crime prefer RJ practices compared to other interventions.
Restorative practices have also been shown to reduce post-traumatic stress and the desire for violent
revenge (Sherman & Strang, 2007 p. 7).
Linda Mills, New York University professor and dean, describes the advantages of using a restor-
ative approach for domestic violence. Mills personal experience of intimate partner violence gives her
a unique understanding of the criminal justice systems failure to address this serious problem (Mills,
2003). Mills and her colleagues conducted a randomized controlled trial with 152 domestic violence
cases randomly assigned to either a commonly court mandated Batterer Intervention Program or a
restorative justice process (Mills, Barocas & Ariel, 2013 p. 65). Results showed no difference in recidivism
between offenders in either group, but did establish that RJ processes resulted in outcomes no worse for
participants compared to the regularly court ordered interventions. This research joins a growing body
of evidence that suggests that restorative justice should be viewed as a viable treatment alternative to
addressing criminal behavior (Mills, Barocas & Ariel, 2013, p. 86).
Despite fears that a power imbalance between men and women outweigh the benefits from any meetings
between intimate partner violence offenders and women, public health and family therapy professionals
advocate for couples treatment interventions based on positive research results (Stuart, et al, 2007; Stith,
et. al., 2004). Additionally, treating family and intimate partner violence with RJ is not a new concept.
The successful family group conference model commonly used for child welfare has been addressing
domestic violence for many years (Nixon, Burford, Quinn & Edelbaum, 2005).
The foundational elements of applying restorative justice include the fundamental questions, which
can be asked of women who have been harmed by violence. Feminist critics and others often ignore these
foundational elements concerning the use of restorative justice for violence against women. Daly (2005)
cites victim safety, power imbalances, pressure on victims, mixed loyalties of supporters, little behavior
change in offender, and negative symbolic implications. Stubbs (2002) did a control-based analysis of the
role of RJs use in DV cases, noting that offenders coercive tactics are meaningful, strategic, subtle and
often embedded in deeply held beliefs or cultural dimensions. Neither critic considers how processing
RJs fundamental questions could benefit women who have been harmed in intimate partner abuse cases.
Considering the fundamental elements of a restorative practice is important because it is through
the individual reflection of the questions asked by Zehr (1997) that a harmed person can find what
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they uniquely need to cope with their situation. The individuals who harmed others and the community
too, can benefit from considering these questions. Most people who research and report on restorative
practices confine their study to face-to-face meetings between victims and offenders. Women who have
suffered from domestic violence, however, can use RJ processes without meeting with the men who
harmed them (Walker & Hayashi, 2009).
Restorative Justice Is Empowering
Rather than paternalistic, autocratic and adversarial, restorative justice is strength based and respects
individuals as the agents of their own lives. RJ practices assume individuals can be accountable, know
how they have been affected by wrongdoing, and know what they need to repair harm they have suf-
fered or that they have caused. The strengths perspective for empowerment assumes that: Despite lifes
struggles, all persons possess strengths that can be marshaled to improve the quality of their lives (De
Jong & Berg, 2013, p. 9). Each individual is the best expert of their own life. Each person knows what they
tried, what was successful, and what was not in dealing with their problems. No professional, nor anyone
else, is more qualified than the person harmed by crime to know what is needed to make things right.
Women should be given the choice to call the police whenever violence is committed against them, and
it should be up to them to decide whether or not they want to press charges and have offenders prosecuted.
Additionally, women should be given the choice to participate in RJ instead of prosecutions. Arguments
that promote an intersectional analysis of Black womens experiences underscore the importance of this.
Intersectionality is a term developed by women of color activists and popularized by Black legal scholar
Kimberle Crenshaw in 1989. This concept describes: the way multiple oppressions are experienced
by Black women. Racism and sexism are multiple oppressions [that] are not each suffered separately
but rather as a single, synthesized experience (Smith, 2014, p. 1).
Giving Black women the opportunity to engage in RJ instead of, or in addition to, the criminal justice
system, makes it more likely they can consider and determine how they might deal with the complex
and harsh discrimination they face. Moreover, that marginalized women suffer from the criminalization
of gender violence alone warrants this approach. Support for mandatory arrest statutes excludes Black
women because these statutes conflict with the goals of eradicating racism and violence against women
(Ruttenberg, 1994, p. 180). Black women should be respected to decide for themselves how best to ad-
dress violence against them (Richie, 2012; Ruttenberg, 1994). American society and its criminal justice
system suffer from racism (Nesbit, 2015). The disproportionate numbers of people of color, especially
Black people, subjected to the criminal justice system, has been clearly established (Stevenson, 2014).
And while the state has always been a protector of some rights, it has also been an agent of control over
people who are more socially marginalized (Richie, 2012, p.107).
Hawaii practitioners subscribe to a culturally competent approach, one that moves away from a pre-
determined assessment framework to focus on the unique aspects of culture that reflect the worldview,
values and traditions of the client (Hurdle, 2002). Problems, including domestic violence and intimate
partner violence are not new concepts; they existed prior to colonization (Kanuha, 2004). Incorporating
culturally relevant interventions empowers women of color to use their own means for resolving their
own problems (Mokuau, Garlock-TuialiÌ & Lee, 2008). A common family conflict resolution practice
utilized in Hawaiian culture is hooponopono, which principles can be adapted to other cultural groups
to develop approaches unique to them (Hurdle, 2002). Hawaiis experience shows that RJ practices
75

resonate with Native Hawaiians consistent with similar hooponopono processes. Empowerment gives
individuals the power to heal in a manner consistent with their own beliefs and values. Professionals
and the government do not empower women when they hold the power, and dictate what women must
do to address violence against them.
CONCLUSION
It is past time for policymakers to listen to what Florynce Kennedy, Dorothy Roberts, and others in-
cluding Ruttenberg, (1997), Coker, (2001), Mills, (2008), and Richie, (2012) have advised. Instead of
mandatory law enforcement to stop domestic violence, resources must go into prevention to empower
women to help themselves stay safe.
Girls and women who have been harmed can find healing and empowerment from restorative pro-
cesses. Girls that have been harmed need opportunities, including education, to ensure employment and
independence, which are empowering and can prevent dependence on dominate men. Girls and women,
such as Reiko, need opportunities to heal as well, and the opportunity to be accountable and to repair
any harm they caused, which restorative processes achieve. Equally important, all incarcerated girls and
women can benefit from reentry planning for independence and educational goals, and support from
friends and family through healed relationships (Walker & Greening, 2011).
Violence against women should be a crime. Women should always have the right to call the police
and have anyone arrested who is violent toward them. Women should also have the right to drop charges
for any reason they choose. While the criminal justice system is necessary to address violence against
women, it should be complimented by public health prevention, including restorative strategies. Giving
women the opportunity to engage in RJ practices, with or without the offender, addresses the victim-
offender overlap, and promotes healing.
ACKNOWLEDGMENT
The authors thank Linda Ikeda, Cassandra Shaylor and Gale Burford for their helpful comments to drafts
of this chapter.
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ENDNOTES
1
The terms victim and offender are used here only for simplicity. The authors believe that people
are always more than what has happened to them or what they have done in life.
2
For this chapter, violence against women means men versus woman only, and includes intimate
partner violence, domestic violence, and non-partner sexual violence, and uses these terms inter-
changeably. The authors agree with Goldscheid (2014) that gender-neutral terms are more helpful
for achieving the goal of equality rather than the sex classification term violence against women
used here and throughout the literature. The authors also acknowledge that intimate violence is
not confined only to men against women, but here they only address those relationships, and not
other types including women against men, lesbian, transgender, etc.
3
The authors agree with Ruttenberg (1994) and Visconti (2009) on why Black is capitalized while
white is not. Black people in the US represent a specific cultural group while most white people
identify with other cultures, e.g. Jewish, Irish, Basque, etc.
4
Healing was quantified in a study of children who participated in reentry circles for their imprisoned
parents (Walker, Tarutani & McKibbon, 2015) is discussed supra.
84
85
Chapter 6
Violence Against Women
Programmes in a North-
Eastern French City:
Issues of Safety, Collaboration, Gender,
McJustice, and Evidence-Based Practices
Martine Herzog-Evans
University of Reims, France
ABSTRACT
In 2013, the author was commissioned by the mayor of City A, North East France, by the prosecutor
and the main local social work and reentry charity, Association A, with the mission to evaluate the host
of local programmes addressing violence against women (VAW). This qualitative study is still ongoing
for one more year, but has already yielded very significant findings, for if at first glance, the desire to
do tackle VAW is shared by most practitioners (with the notable exception of family courts), in the field,
the reality is quite disheartening. Our first finding is that most practitioners are oblivious to the dangers
incurred by battered women and virtually no efficient measure is taken in this respect. Another finding
is that practitioners are not organized in collaborative networks and operate sequentially or parallel to
each other with virtually no collaboration or information sharing. We also worryingly found a system-
atic denial of the gendered nature of VAW, with many practitioners clearly believing they are essentially
situational with shared responsibility.
INTRODUCTION
On 27 July 2003, the famous French actress, Marie Trintignant, who was shooting for a film in Vilnius,
was transferred to hospital in a profound coma. She died on 1 August of that year. Her partner, Bertrand
Cantat, an equally famous singer in France, was arrested for having battered her to death. In Lithuania,
Cantat was sentenced to eight years and incarcerated there, before being transferred back to France and
being paroled, after serving five years. Unsurprisingly, in view of the notoriety of the protagonists in
DOI: 10.4018/978-1-5225-2472-4.ch006

Violence Against Women Programmes in a North-Eastern French City
this case, but also because Marie Trintignants own mother and father were also famous actors, this
case remained in the headlines for a very long time. It was the start of a long-overdue realisation that
domestic violence against women was a common phenomenon and it boosted political decisions to
address it. Until then, French entrenched patriarchy (Alwood, 1998; Dubu et al., 2015) had relegated
this issue in the private sphere and the legal system had manifested no concern over the condition of
suffering women. A series of law reforms was subsequently enacted: the law of 4 April 2006, which
generalised the aggravating circumstance attached to violence when committed between partners or
spouses and facilitated the removal of the perpetrator from the family home; the law of 9 July 2010,
which allowed family judges to issue a restraining order, if they were made aware of such violence; the
law of 4 August 2014, which made mediation illegal in cases of domestic violence and generalised the,
until then, experimental, Great Danger Phone for high-risk situations. Lastly, in 2014, France ratified
the 11 May 2011 Istanbul Convention of the Council of Europe on preventing, and combating violence
against women, and domestic violence.
In spite of this essentially legal response to domestic violence, France is not different from other
jurisdictions, when it comes to the prevalence of this crime. A recent report by the French statistic
institutions INHESJ (National Institute for the Superior Studies on Safety and Justice) and ONRDP
(National Organisation for Demographic Studies) (INHESJ-ONRDP, 2013) estimated that 174 voluntary
homicides and 61,297 acts of voluntary violence had been committed by a spouse, partner, ex-spouse,
or partner in 2012 against their female partner, spouse, ex-spouse, or partner. However, official data
grossly underestimate the true picture of violence against women (hereafter VAW), an offence which
is par excellence highly covert. American data are by far more pertinent when they reveal, for instance,
that 25 to 30% of women check into hospitals Accident and Emergency in relation to VAW (Johnson,
2008) or when they estimate, on the basis of a representative sample, that women are thirteen times more
frequently victimised than depicted in national data (Stark, 2007). Such data do not even include other
types of abuse, such as stalking, sexual abuse, or the rape of a spouse or partner, which are typically
registered via other sources, in spite of being typically inflicted in the context of a continuum of VAW. As
the World Health Organisation (hereafter WHO) repeatedly states, VAW represents the first health risk
for women in the entire world (WHO, 2013a) and is a global health problem of epidemic proportions
(2013b; 2016: 1). In other words, the prevalence of VAW is endemic and considerable, and it essentially
victimises women, although negationism has become rampant over the recent years. Unfortunately, the
literature does not allow for complacency: VAW is essentially a male offence, grounded in a culturally
constructed and historically supported feeling of entitlement; yet it is largely resistant to treatment, which
suggests that the best way forward remains to protect womens safety.
THE LITERATURE
Two Conflicting Discourses
In the literature, one can easily detect two opposing camps. This is well reflected by the use of tag-like
vocabulary and revealing hashtags on Twitter. Those who deny the specificity of VAW use the neutral
term Interpersonal violence (hereafter IV). For those belonging to this camp, the violence in question
takes place in the context of interpersonal disagreement or conflict, and is equally committed by women
and men. There is nothing cultural or historically embedded in what happens at home, and, in fact, men
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are equally victimised. When confronted by the fact that male victimisation simply does not show as
much in the statistics, their argument is that male victims are even more ashamed than female ones. The
other camp, the one we unashamedly belong to and the one to which WHO belongs as well, insists on
the gendered dimension of this violence, which affects women at home, on the disproportionate volume
of women being victimised, and on the fact that violence is only one aspect of the continuum of coer-
cive control that is exercised upon women. A more descriptive terminology, that of Domestic Violence
(hereafter DV), is also still useful. It is apparently neutral, as it simply reflects that one is talking about
a violent phenomenon happening in the domestic sphere, i.e., close family realm. However, it is lim-
ited, in the sense that it does not reflect the gendered nature of such violence. In this chapter we shall
alternatively refer to DV or to VAW.
Clearly, the two main opposing discourses are currently experiencing high level of conflict, exposing
an undeniable backlash (Chesney-Lind, 2006) against the progress obtained since the 1970s thanks,
to a great extent, to the shelter movement and feminists. This backlash is orchestrated by male defence
groups who exploit the legal system to their advantage, have been exceptionally active in the field of fam-
ily law, and have notably gained access to joint physical custody (American Psychological Association,
Presidential Task Force on Violence and the family, 1996; Liss & Stahly, 1993; Walker & Edwall, 1987),
in order to maintain control over the family after separation, irrespective of the negative consequences
this may have on children (in France, see Herzog-Evans & Brunetti-Pons, 2014). It is true that raw of-
ficial data may provide the illusion that these are the narratives of dysfunctional couples, rather than a
gender issue. In reality, however, it is overwhelmingly women who enter the Accident and Emergency
Units, because their controlling partner has been violent towards them once again. Clearly, the sheer
physical strength balance is hardly in favour of women; only women are seriously in any danger and
need shelters. Even when women are, in fact, violent, typically this does not happen within the context
of a gendered continuum of control (Towns & Scott, 2013) grounded in the fact that their partner is a
man, and it is certainly not because they have had culture and society on their side for thousands of years.
But a General Consensus around Two Essential Typologies
Johnson (2008), presents a renewed categorisation of types of violence occurring in the domestic (home)
sphere, which can account both for the number of women arrested for having committed assaults on
their spouse and for the fact that it is overwhelmingly women who are the victims of gendered total
control. Johnson (2008) identifies three types of DV. Firstly, violence taking place in the context of a
continuum of coercive control, exclusively committed by men against women. This has also been called
Intimate terrorism and it is highly gendered, as it feeds on deeply entrenched societal cognitions and
values whereby men are entitled to take absolute control over the domestic sphere and its members and
to be the sole decision-makers. It does not take a refined historian to detect in the very recent French
past and notably in its legal system numerous traces of this cultural and historical legacy. According
to Johnson (2008), coercive control represents between 50 and 75% of all cases of DV, which validates to
a great extent the feminist presentation of VAW. However, Johnson (2008) notices that women respond
to mens violence by resistance, in the early days of abuse, or by retaliating, in some cases murderously,
after years of abuse (Stark, 2007); and this constitute the second form of DV. A third category of offence
is indifferently committed by men or women and occurs in the context of a degraded or dysfunctional
relationship. In such a context, interaction is acted out and volatile, but there is no total control.
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The understanding of VAW has also been considerably ameliorated by Holtzworth-Munroe and Stuart
(1994; and their later replica, 2000). According to these authors, two categories represent each 25% of all
perpetrators: one half of them has an Antisocial Personality Disorder (hereafter ASPD) or can even qualify
as psychopaths; the other half has a Borderline and/or Dependent Personality Disorder (hereafter BPD).
A third category accounts for about half of the offences and comprises family-only violent offenders. If,
however, the categorisation itself has not been contested, the proportion of each category has, because
Holtzworth-Munroe and Stuart (1994) consider general population samples. Focussing instead on bat-
terers only, Johnson (2006) finds that no less than 60% of abusers are generally violent and antisocial.
This is consistent with the findings by Dunford and his colleagues (1990), later confirmed by Dixon
and Browne (2003). It is not surprising to identify so many people with ASPD amongst violent offend-
ers, when one remembers that ASPD is one of the Big Four general criminogenic needs identified by
Andrews and Bonta (2010, pp. 58-59). Whilst ASPD-psychopaths act in a controlled and cold manner,
not showing physiological signs of any sort, sufferers of BPD conversely show a variety of physiologi-
cal signs and lose control; the former have therefore been often called cobras, whereas the latter have
been labelled pitbulls (Jacobson & Gottmann, 1998; Richards et al., 2004). Whatever the statistics, it
is important to note that a significant proportion of abusers have a personality disorder. Just as crucially,
it is essential to note that cognitions of masculine domination are common to all forms of VAW (Flood
& Pease, 2009; Garcia-Moreno et al., 2005; Johnson, 2006), and that the higher the patriarchal control,
the more severe the violence (Pence & Paymar, 1993), notably in cases of homicides (Campbell et al.,
2003; Martin & Pritchard, 2010).
The dominant feeling of entitlement that is found in all types of VAW (Anderson & Umberson, 2001)
is a typical trait in ASPD and psychopathy (American Psychiatry Association, 2013). This core belief
is strengthened by the historical and cultural embeddedness of patriarchy and male control over women
in the domestic sphere. In the western world, masculine domination has only recently been eroded
(Pomeroy, 1975) and many men have not yet accepted these changes (Kimmel, 2013); thus gender
crosses paths with common delinquent traits. Gender is, however, not only a pertinent framework since
women are victimised first and foremost because they are women, it is also a pertinent framework since
the men who abuse do so because they perceive masculinity as implying domination and rights over
women (Anderson & Umberson, 2001), and supporting, even glorifying, violence itself (Stanko, 1994;
Polaschek et al., 2009; Hatty, 2000; Ellis, 2016).
Research projects inspired by Wards work on sex offenders (Ward, 2000) have focussed on the
schemata shared by male abusers. The abusers implicit theories are notably that: they are entitled and
superior beings who are always right; violence is normal; they should trust no one and, particularly
women; as women are unknowable and bad (Dempsey & Day, 2011; Eckhardt et al., 2012; Pornari et
al., 2013). Other studies have confirmed the prevalence of entitlement and the normality of violence, and
have added a very gendered beat or be beaten cognition consistent with the masculine requirement to
preserve ones self-image (Polaschek et al., 2009). In short, the literature does empirically support the
theory that the abusers normalize violence, have very negative views of the opposite sex, feel a general
and personal sense of entitlement, and, generally, adhere to gender-role stereotypes.
The Disappointing Treatment Avenue
The punishment versus treatment debate takes a very singular form when it comes to VAW. While it is
precisely the lack of legal disapproval and punishment that has fed the cultural feeling that male VAW
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in the domestic sphere is perfectly acceptable, unfortunately, changes in legislations have failed to im-
pact significantly on VAW particularly in its form of intimate terrorism. One reason for this is that, in
reality, the Criminal Justice System (hereafter CJS) can typically only reach the tip of the iceberg of the
offences committed. It is estimated that the risk for a man who abuses his partner to be jailed is around 1
in 100,000 (Stark, 2007). Moreover, cases of DV have more chance of being dismissed by the CJS than
other kinds of crime (Cammis, 2006). The CJS thus fails with abusers as it fails in the general context
of criminal justice, particularly since it merely consists in increasing sentences (von Hirsh et al., 1999).
More worryingly, it is now well known that police intervention can have a doubly negative impact on
women. Firstly, policies that adopt a zero tolerance towards DV often tend to lead to dual arrest on the
scene, as the police cannot distinguish between the usual he did/she did. Secondly, many jurisdictions
do not offer adequate protection for the victim, so, whilst the CJS operates, further DV takes place (Sher-
man et al., 1997). As Sherman and Harris (2015) find, the arrest of the perpetrator for DV increases the
likelihood of premature death of their victim.
Many women would wish for their violent partner to be submitted to a treatment which will miraculously
change their behaviour. Unfortunately, treatment is not more effective than punishment, although much
hope had initially been placed in treatment programmes. One main difficulty is that a great proportion
of these programmes rely on old-school psychodynamics (Hamilton et al., 2013), which is doomed to
fail in view of the what works literature (Andrews & Bonta, 2010). It would make much more sense
to use Cognitive Behavioural Therapy (hereafter CBT), since, as we have seen, abusers have specific
cognitions and entrenched schemata. Initially, weaker research designs facilitated some optimism as for
the successful impact these programmes would have (Davis & Taylor, 1999), or at least a limited opti-
mism (Babcock et al., 2004), but when better-designed research was developed, and, particularly, when
Randomised Controlled Trials (hereafter RCT) were conducted, this positive attitude was reversed. Meta-
analysis has consistently found that programmes simply do not work (Smedslund et al., 2011; Akoensi
et al., 2013). This led Feder et al, (2008, p. 18) to conclude quite bluntly: At this point the existing
evidence cannot ensure that these programs are, in fact, helpful and not harmful. Feder et al, (2008) also
considered cases of DV in which the perpetrator had attended a programme, with alleged success, but
when the victims were later interviewed, the conclusions drawn were very different. Consistent with the
findings of the international Risk/Needs/Responsivity usual research findings (Landenberger & Lipsey,
2005) VAW evaluation studies have found that perpetrators who start a programme and later drop out
have worse outcomes than those who are not even allocated in programmes (control groups) (Feder &
Forde, 2000). At best, the protective impact of mandated treatment is short-lived and does not extend
beyond the mandate itself (Maxwell et al., 2010). This is also consistent with international desistance
(Farrall et al., 2014) and compliance (Bottoms, 2001; Robinson & McNeill, 2008) findings.
It is puzzling that CBT programmes which work to a degree on most populations of offenders (An-
drews & Bonta, 2010), on cases of anger (Beck & Fernandez, 1998), and on cases of general violence
(Landenberger & Lipsey, 2005), do not obtain results on perpetrators of DV. In our view, three reasons
may explain this phenomenon. First, as we have seen, a very significant proportion of abusers have a
personality disorder, notably ASDP, or even psychopathy, or BPD. As we know, although this is con-
troversial (Salekin et al., 2010), there is no evidence that any form of treatment works with psychopaths
(Harris & Rice, 2006). There is surprisingly very little literature on treatment efficacy with ASPD (Ma-
tusiewicz et al., 2010), to the point that it is premature to expect significant results in the present state
of knowledge. If research is now more optimistic concerning cases of BPD (Giesen-Bloo et al., 2006),
it is with the use of Schema Therapy (Keulen de Vos et al., 2010), which is not easily available and
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requires extremely experienced and skilled psychologists, who are not common in the usual context of
programme delivery, i.e., probation services (Gannon & Ward, 2014). Treatment probably needs to last
for a much longer period than standard CBT therapies do and, as a matter of fact, research has shown
that the longer the treatment, the more impact the programme has (Gordon & Moriarty, 2003). A recent
qualitative desistance study (Morran, 2013) also showed that offenders stated that it took them years to
change their attitude towards women and masculinity. A second explanation for the lack of efficacy of
VAW treatment programmes might stem from the lack of coordination between the sphere of penal law
and that of family law (Hester, 2011) and this provides abusers with ample opportunities to continue
controlling and being violent towards their victims, in particular while exercising their right to access
their children. Because of the aforementioned backlash, modern and yet, still, patriarchal societies, such
as France, tend to believe that abusive men can still be good fathers (Herzog-Evans & Brunetti-Pons,
2014), in spite of the evidence on the contrary (Harne, 2011; Bancroft et al., 2012). A third reason ex-
plaining the nil impact of VAW programmes, probably also derives from the fact that most societies are
still to a degree, patriarchal, and that therefore it is pointless to try and change mens cognitions when
societal sources of social-learning vastly condone male domination. It is in this context that the author
of this chapter was asked to evaluate a group of local interventions in the North East of France.
A FRENCH STUDY
A French Programme
In June 2013, the author of this chapter was contacted by a Triumvira, comprising the Mayor of the
city of A, the prosecutor of A, and the Association X, i.e., the major socio-judicial charity operating
in the city, in charge of the treatment of most offenders, of their resettlement in the community, and of
victims support. They required the author to evaluate all of City As VAW programmes. City A is a city
of 188,000 inhabitants, in the North East, situated at the heart of the Champagne region, 45 minutes
away from Paris by High Speed Train, and famous for its 800-year old cathedral, and for the worldwide
recognition of its champagnes. In other words, it comprises many potential cases of VAW and the culture
of champagne potentially increases the risk. A fact that might further complicate the authors task was
a long list of local interventions, such as a treatment programme (work group) for offenders delivered
by Association X; a victim support work group delivered by a State-supported semi-feminist institution
(Association Y Centre dInformation sur le Droit des Femmes: Centres for the Information on Womens
Rights); violence vouchers, which gendarmes and police officers intervening on scenes of violence would
give to the victims, if they were not yet ready to file a complaint, and in which a host of information
could be found; Great Danger Phones, allowing a handful of high-risk victims to call a private security
company, if they were in danger; furthermore, traditional penal intervention with police precincts and
courts, but also out of trial procedures led by the prosecutor (called Bis procedures); and on-site (police
precincts and tribunal) victims reception by social workers of Association X. It was decided that this
author and her team would evaluate the outcome of the work group programme of Association X, and
would conduct an in-depth study of the charitys other activities. This four years research, funded by
the Ministry for the Rights of Women and the City A agglomeration (via a State-funded system called
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FIPD: Inter-ministry Funding for the Protection against Delinquency) is still ongoing. A preliminary
report was presented to the Triumvira in April 2015, and the final report will be issued in mid-2017. In
the present chapter, the author will summarise the main findings of the study.
Methodology
The team comprised of the author, and a group of 10 to 14 Masters students volunteering each year to
participate on the study. There are two planned parts to the methodology followed: on the one hand, an
outcome evaluation; on the other hand, a qualitative study. The team is also supported in the prosecutors
office by a judicial assistant appointed to them.
For the outcome evaluation, the team were luckily allowed by the prosecutor to randomise the offend-
ers submitted to mandatory treatment via the Bis procedures which had, up until then, led to Association
X work group (hereafter the Work Group). However, the prosecutor did not allow the researchers to
compare the outcomes of treatment cases and those of cases in which no treatment was offered and it
was agreed to compare the members of the Work Group with offenders who had participated in com-
munity liberal, or hospital psychological or psychiatric, treatment. This part of the study would com-
prise a follow up two years later, and it was planned that the team would then measure re-offending and
re-arrest percentages, and test offenders after their treatment with the Straus Revised Conflict Tactic
Scale. The randomisation, albeit supported by the prosecutor and verified by the team on site, met a
host of difficulties with each Bis procedure case. Firstly, the prosecutors delegates in charge of the Bis
procedures consistently overrode allocations and were not forthcoming about upcoming cases: twice,
the researchers had to start all over again. Secondly, as the team had finally convinced or, more likely,
tamed the delegates, the interim report which was written in April 2015 and which drew attention on
the disputable bifurcation procedure for DV offences, led the prosecutor to jeopardise the outcome of the
research by entirely stemming the tide of offenders allocated to these procedures: the meagre research
sample became non-existent and the team had to explain to the prosecutor that he could not ask them to
evaluate something which had disappeared.
Thankfully, the qualitative part of the study vastly compensated for the failing of the outcome evalua-
tion. A quasi-ethnographic method was used, whereby the team would spend a lot of time in situ with all
the practitioners involved (psychologists, social workers, police officers, prosecutors delegates, lawyers,
and judges), observe their daily practices, be present at all the court hearings involving domestic violent
abusers, at all police interrogations, and at all victims receptions at the tribunal and inside the police
precincts, they would observe the Work Group (three offenders Work Groups of seven sessions and two
victims support groups sessions). Therefore, the researchers managed to take ample and hugely detailed,
formalised, and standardised notes, which were later transcribed verbatim, and discussed within the team.
The researchers also interviewed all parties involved, including the offenders. Access was not granted
immediately everywhere, in spite of the Triumviras support, but the researchers constant presence on
site eventually paid off and they were gradually allowed to observe most situations. They also had access
to the majority of the relevant documents: minutes of the police interrogations of offenders; victims
statements; files of Great Danger phones; files Association X kept for individual offenders; and so on.
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FINDINGS
City A, a Good Little Soldier of the Government
The first and most worrying finding is that most of the actions put in place in Reims are led by the pros-
ecutor, who is acting under the direct orders of the government in France prosecutors are not indepen-
dent and by not-for-profit third sector agencies (notably Association X and Association Y), following
the aforementioned law reforms. Many of the decisions taken are motivated by the prosecutors desire
to please the government. This prosecutor is, however, leaving Reims in June 2016 and the agencies are
worried that his replacement might not take VAW seriously, particularly since, following the attacks on
France in 2015, the new priority of the French Executive has become terrorism. More importantly, as we
shall see, in spite of the prosecutors good efforts, VAW is still not taken seriously by most CJS actors.
Nonetheless, City A is a good little soldier in the eyes of the government, since it has, indeed, put in
place more initiatives than other cities have. In addition to the actions described above, the prosecutor,
in agreement with the police (in charge of City A and its immediate suburbs) and with the gendarmes
(in charge of rural neighbouring small cities and villages) has decided that, even if the victims refuse to
file a complaint, the agents ought to register the offence in their daily record journal (mains courantes)
and communicate the information to the prosecutors office. The latter will systematically order a police
investigation and, if the offence is confirmed, charge the culprit, notwithstanding the victims refusal
to make a claim. The prosecutors office has also increased the number of cases in which the violent
spouse is evicted from his home, with Association X offering temporary housing, so that these men do
not become homeless.
Local Third Sector Agencies Really Supporting Victims
Beyond the action of the prosecutors office, it has been found that it is mostly third sector agencies
which contribute positive intervention. The presence of social workers from Association X in the po-
lice precinct, in the tribunal walls, and their availability in their own building is undoubtedly the most
important contribution. These social workers support victims immediately upon entry, offer them legal
advice, and intervene directly with other agencies in order to sort out practical issues (e.g., emergency
housing; employment agencies; food stamps or equivalent, etc.). They patiently explain what to do and
what to expect. The personalities of these social workers differ greatly, however, and those seen at the
tribunal are much less patient, much more indifferent and easily irritable with the victims particularly
with those refusing to file complaints than the two working in the police precincts. These are clearly
extremely at ease in the police station and have established excellent relationships with police officer,
which means that they are fully credible in the eyes of the law-enforcing agencies, and can offer high-
quality services to the victims. The other excellent feature on the VAW intervention scene is the third
sector network Femmes Relais 51 (Relay for Women of the 51, hereafter FR51 here 51 stands for
the geographical area in Champagne in which City A is situated). FR51 was created by some ethnic
minority women living in City A, who felt that cultural translation between the different actors in the
CJS was needed. The association provides translation services, intervenes between ethnic minorities
and the CJS or other agencies, and helps foreigners with their residence permit, and other paperwork.
As far as VAW is concerned, they support minority women with a culturally-aware approach. What
is truly remarkable is how they have managed to network in an excellent fashion with most agencies
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in City A: the police, the Court, the prefecture (in charge of residence permits), Association X, street
social workers, etc. The research team attended several of their meetings and can testify of the excellent
relationship between FR51 and these social actors. FR51s hands-on attitude and their credibility with
key partners allow, for instance, to quickly sorting out the situation of foreign women who have very
little command of the French language, and the situation of those whose violent spouse has confiscated
the passport or residence permit.
A Generalised Flawed Understanding of VAW
Aside from these examples of very good practice, however, the researchers have identified a series of
worrying features, and particularly, the fact that most actors have a flawed understanding of VAW. As
seen above, the literature is typically divided in two camps: that of VAW and that of IV. These trends are
represented in City A. The Association Y, being first and foremost a feminist organisation, sees VAW
as a patriarchal society issue. However, its intervention with the victims is not at all as supportive as
that of Association X and, in spite of its empowering discourse, its assistance to victims who are unable
to disentangle themselves from their controlling spouses is, at best, perfectible. Their work group, in
particular, facilitated by a lawyer and a psychologist, uses a rather patronising tone towards the victims.
In Association X, the psychologist in charge of the offenders work group is clearly in favour of the IV
interpretation. The social workers also seem to believe that VAW is an interpersonal issue, but they do
a wonderful job in helping victims. However, a new director is appointed at Association X, half-way
down the research period and this persons own views are in opposition with those of her team: she
understands that DV is a patriarchal issue, but also accepts that, in some cases, it may be an IV issue. In
the mind set of most CJS actors (police, prosecution, Court, probation services) there is a third interpre-
tation of VAW: they see it as an offence amongst others that needs to be processed. This neutral legal
and managerial stance blinds most CJS actors, who clearly do not understand the dynamics of gender
violence and inevitably tend to become quite irritated with these women, as they too often call them,
who do not play the game of believing in the CJSs solution to their plight.
Overall Insufficient Interagency Collaboration
The second worrying finding is that, as it is unfortunately the case with most CJS agencies in France
(Herzog-Evans, 2013a), and, apart from FR51, with most actors in City A, the various agencies work
sequentially or parallel to each other, not in an integrated fashion. In the best case scenarios, the police
investigate, the prosecutor charges, the Court, or the prosecutor (in bis procedures), sentences and then
refers the offender to a psychologist or to a Work Group but, in many cases, they do none of the above.
In many instances, the batterer is only asked to pay an insignificant fine that hardly ever exceeds 100
euros. In the course of the procedure leading to this light sanction, the different agencies work separately
and the information exchanged is either non-existent or minimal. For instance, facilitators of the Work
Groups consistently complain that they never have access to the criminal record and CJS file of the of-
fenders they have in charge, and this renders them enable to appreciate risk levels. The health planet
(Hester, 2011) meanwhile, does not communicate at all with any of the agencies. In France, the principle
of medical confidentiality (Gielsen & Kilbrandon, 1988) is sacred (Villey, 1986) and violating it, even
in order to inform the Court, constitutes an offence punishable with three years of imprisonment (art.
226-13 of the Penal Code). The predictable result is that, on the one hand, victims try one agency and
93

service after another, never encountering the holistic, problem-solving and protective approach they
need; on the other hand, most agencies, possessing only part of the information, are blind to the habitual
nature of the violence these women suffer: so that, in most cases, habitual, and, at times, very danger-
ous, offenders are considered as first-timers. This, in turn, fuels the practitioners IV interpretation (see
above) and their lack of awareness of the severity of the danger.
A Completely Blind Family Law Planet
Perhaps the most sickening aspect of the way the French system handles VAW is found with the family
law planet (Hester, 2011). When investigating the family judges in charge of divorce and custody cases
in City A, the researchers were appalled to hear them state that they hardly ever hear about domestic
violence cases and that these are extremely rare. This is a rather unlikely reality, in view of international
findings, according to which a worrying proportion of separation and custody cases are linked to do-
mestic violence (Clarke, 1995; Holden et al., 1998). Unsurprisingly, no protection ordinances have been
issued by these family judges since the law of 2014. Similarly worrying are the statements according to
which violent spouses can be good fathers. Clearly the backlash has hit France, and here it has met an
already deeply patriarchal culture. Recent legal family law trends have, thus, ensured that even violent
spouses are guaranteed full access to their children, since the principle of joint physical custody had
become the norm (in France, Herzog-Evans & Brunetti-Pons, 2014; in the U.S.A.: Kernic et al., 2005).
An American study (Rosen & Sullivan, 2005) even found that, when a restraining order existed against
the batterer, he obtained more, not fewer, visitation rights. Battered women themselves express the need
for their children to remain in contact with their fathers (Hardesty & Ganon, 2006), civil courts, however,
should know better and particularly should know that violence and control are actually made possible
by visitation rights, which continue to expose the children to their fathers extremely deleterious influ-
ence (Harne, 2011; Bancroft et al., 2012) and to the consequences (Stover et al., 2003) of their violent
temperament, manipulation, and distorted cognitions. French family judges also fall in the trap of the
friendly parent concept, whereby the advantaged parent is the one who, at least in appearance, seems
to be respecting the other parents rights. Fearful and litigious battered women who raise the issue of
DV, thus, appear unfriendly, and end up being at a great disadvantage in the battle for custody (Dalton,
1999). Judges in City A seemed to adhere to the unfounded concept of Parental Alienation Syndrome
(PAS) unfortunately a general trend (Herzog-Evans & Brunetti-Pons, 2014) supported by the French
Highest Court (Cour de Cassation, First Civil Chamber, 26 June 2013, n12-14392) which has been
entirely fabricated by the American guru clinician Garner, and rejected by the American Psychiatric
Association (2013) (Houchin et al., 2012), as devoid of any empirical support. According to the PAS
theory, when women make allegations about violence or sexual abuse against their spouse, they lie in
more than 90% of cases. Such unsubstantiated non-sense presents enough scientific veneer to convince
lawyers and is readily accepted, because it feeds from the hand of patriarchal cognitions and culture.
Two Competitive Third Sector Agencies
The lack of coordination between the different planets (Hester, 2011) is made worse in City A by the
competition between Association X and the Association Y. It took the researchers three years to understand
the deeply entrenched opposition between the two associations. At first, it seemed to be caused by the
different interpretation of VAW that the two agencies held. The arrival of the new Association X director,
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who holds more balanced views, raised the hope that the oppositional stand of the two agencies would
wane. Unfortunately, her attempts at a fresh start were rejected by the Association Y. The root causes
of the opposition between the two institutions are twofold. Firstly, Association X is a do-it-all charity;
it supports all types of victims, who have all sorts of needs, but also supervises and cares for offenders,
homeless people, and other high-need citizens. Conversely, the Association Y is exclusively focussed
on female victims and in their eyes, Association X have not chosen the right camp and, from the point
of view of the Association Y, they should not have accepted to organise a Work Group for offenders. A
second factor is that Association X and the Association Y find themselves in competition de facto, when
it comes to VAW victims. The research team eventually discovered that, whereas Association X referred
cases to the Association Y, when relevant (for instance, by informing victims about the Association Y
victims support group), the opposite did not happen.
A Common Lack of Danger Awareness
A common denominator with all City A partners is their sheer lack of danger awareness. A first sign of
this is the massive use of Bis procedures to address acts of DV. Bis procedures are entirely led by the
prosecutors office and are supposed to be used for non-serious offences. Referring offenders of DV to
this type of procedures shows that their offences are not taken seriously by the judiciary. Moreover, the
selection of DV cases processed through these bifurcation procedures has never been based on the level
of risk as assessed, for instance, by a validated tool, in view of the continuum of violence and control
that has actually been committed in each case. Quite the opposite, the coercive control to which the
victim is submitted is entirely ignored, since it does not constitute an offence in itself. Only the violent
act is punished, by being entirely expunged from its context and treated as an isolated incident, since,
in most cases, the victim has not filed a complaint beforehand and will certainly not do so the fol-
lowing time. Being deemed first-time offenders, and unless the physical damage has been very serious,
these men are, thus, considered as posing minimal risk. During the research teams constant presence
in the delegates office, they had access to the police interrogation minutes in which, most of the time,
the victim actually mentioned that the violence was habitual, in many cases serious, something the
children themselves frequently confirmed. The delegates office itself represented the low importance
given to these cases and testified to the extreme poverty of the French judiciary. What the team saw was
a minuscule office in which the researchers struggled to sit, with an old carpet, with factory-style col-
lapsing shelves, and a printer that was constantly out of order. More often than not, offenders observed
this shabby and unkempt paupers room with a smirk on their faces. The delegates handling of the
cases was also a cause for extreme concern. Reference to this led to the prosecutor putting a quasi-end
to the use of Bis procedures for DV cases, after reading the research interim report. Delegates treated
DV offences with shocking flippancy, using a friendly and joking tone to describe the privilege granted
to the perpetrator by the prosecutor, who guaranteed they would not have a criminal record, and were
only asked them to attend a few treatment sessions. The main object of the proceeding then consisted
in signing the Courts documents.
At no point in the intervention of the CJS or in that of other agencies was there any use of a risk as-
sessment tool to help guide professional judgement. The researchers were frequently witnesses of cases
which were processed as low risk, in spite of clear signs of extreme danger, such as the combination of
stalking, precise death threats, the existence of firearms, and strangulation attempts (Hilton et al., 2010).
When allocating the handful of available Great Danger Phones (tlphones grand danger: hereafter
95

TGD) to women supposedly at higher risk of lethal assault, the prosecutor publicly confessed, during a
conference held in City A in February 2015, that he made these decisions off the top of his head. As-
sociation X practitioners confessed they were certain that most of the allocated phones were not given to
the women who actually needed them the most. Association X practitioners confessed they were certain
that most of the allocated phones were not attributed to the women who actually needed them the most
and gave the team numerous illustrations of referrals they had made for extremely disquieting cases that
had been rejected. TGD were a token communication tool for the Ministry for the Rights of Women
and the Ministry of Justice. In reality though, only ten TGDs were available for both the city of City A
and the nearby City B and, in 2015, the government decided that three phones for each for city would
be sufficient. Moreover, these phones provide rather poor safety to victims. An electronic monitoring
device allows women to hide the minute the abuser penetrates a restraining perimeter, these are used,
for instance, in Spain, Australia, and in the U.S.A.; on the contrary, TGDs are mere phones that the
victim can activate when she sees the abuser and is, therefore, already in danger. Furthermore, the call
is picked up by a private sector company (Mondial Assistance) which, in turn, will call the police, if it
appears that the situation is truly dangerous. Needless to say this technology is hardly useful.
It is also very worrying that victims are pressured by most agencies to file a complaint; since com-
plaints are the bread and butter of most practitioners and institutions. Most victims legitimately hesitate
to file such complaints, however, since there is typically no protection put in place after their abuser has
been interrogated by the police. The offender is usually sent back home and, as we shall see, even if he
is sentenced, he hardly ever spends a day in jail. In other words, women quite logically do not trust the
CJS to protect them. The sad conclusion is that it is, to a great extent, the CJSs fault, if women do not
file complaints or do not do so again, after a first attempt. Their decision is very logical in view of the
risks they incur.
The lack of danger awareness is further proved by the sentences that are usually issued for the more
serious cases not dealt with by Bis procedures. The research team attended all Court hearings pertaining
to DV cases, during the course of one year. The sentences that were mostly issued were non-custodial
and consisted in small fines (e.g. 150 euros, suspended), or, with repeat offenders, short probation orders.
Most custodial sentences a minority were either suspended or transformable ab initio in the course
of a procedure that saves many people sentenced to up to two years from actually serving their sentence
(Herzog-Evans, 2016). For example, during a hearing in November 2015, a repeat domestic abuser was
simply sentenced to a 300 euros fine. In another case, judged in September 2015, in which the husband
had attempted to strangle his wife, because she had said good morning to their dogs, but not to him, the
sentence amounted to eight months imprisonment suspended and four months of probation.
With Huge Delays and Backlogs
The CJS and its partners deal with most cases with astonishing delays. For instance, the offences pre-
sented to the Court and to the delegates have often been committed between four and six months earlier,
sometimes up to a year earlier. The backlog of the Work Group was of about eighteen months, when
the study started. As was mentioned above, after the interim report, the prosecutor decided to refrain
from processing cases through Bis procedures. One of the reasons for this decision was that he wanted
to reduce the excessive delays, which are, nonetheless, currently still of about one year, with many of-
fenders attending a Work Group, after they have already separated from their former partner or wife.
96

Clearly, the whole system functions like a McJustice production line (Berman, 2000, p. 80), which
is unsurprising, as the whole French CJS essentially operates on the basis of a stock and flow system
(Danet, 2013). Most CJS practitioners predominantly try and move the docket and process cases without
having the time to solve problems. The main goal has become to keep the process itself going, rather than
finding a solution for the case and justiciables. During the Court hearings, the research students were
shocked to observe indifferent and bored judges, who were hardly listening to the offenders, attorneys,
waiting for their cases to be heard, who talked out loud or toyed with their mobile phones, while the
whole courtroom looked and sounded more like a station concourse than a tribunal.
The Reinforcement of Batterers Cognitive Biases
The production line processing of cases also contributes to another general trend: the reinforcement of
the abusers biased cognitions, particularly their patriarchal and violence-condoning views. In many of
the cases the research team observed, by not making clear to the perpetrators that their offence was seri-
ous, and in some cases actually constituted a crime, practitioners indirectly supported the perpetrators
already entrenched forms of rationalisations and denial. In some instances, they went further and the
prosecutors delegates, eager to close the case by obtaining the offenders signature, would validate the
perpetrators refusal to take responsibility, by transferring the blame unto the victim, stating that they
knew how difficult women can be, but that the offender could not respond with violence to provocation.
In one case, the team even heard the delegate tell a patently dangerous offender, to whom the police had
ordered to leave his home, that they did not know why the police had told him that and that the police
had no power to evict him from his home, as was his home after all.
During the delivering of the WorkGroup, the psychologist of Association X and its social worker
never reacted to a single one of the plentiful and classic patriarchal rationalisations voiced by the abus-
ers. For instance, justifications such as that the woman was a bad mother, because she constantly went
out with her friends, or that she only cooked pizza for their children, or blatantly false statements such
as that he was doing everything at home, were never picked up to be used in treatment as being typical
patriarchal cognitions pertaining to gender roles and traditional seclusion of women at home. Like the
delegates, the Association X Work Group facilitators often validated the situational explanation given
by men who blamed the victim. To She would not shut up, they would typically answer: I understand
how hard it must have been, but you need to learn other ways of dealing with difficult relationship other
than with violence.
Things were just as bad in court. In many cases, defence attorneys lamely pleaded that their client
had a job and needed to keep it, in many others, they validated their clients denial and rationalisations
by using them in their plea. In the aforementioned strangulation attempt case, for instance, the attorney
made fun of the woman who had allegedly nearly died and went as far as saying: Mr X also has to
put up with things. I mean what kind of an example is that for children if the woman says hello to the
dogs and not to him? In many instances, attorneys simply support their clients denial by minimising
(e.g. the injury is not as severe as it seems; he only pushed her; he only slapped her once, etc.), or
transferring the fault unto the victim who, naturally, always exaggerates, or using lame excuses, such
as: she spends all his money. It became a joke in the research team how many offenders victims had
fine skin that easily bruised. In one case (March 2016), the attorney confirmed his clients version
of the facts (he had dragged her by the hair, removing whole locks of hair) by saying: she has capillary
problems after a hair colouration gone wrong.
97

All the men seen in all the contexts the research team observed, from police arrest to treatment, use
textbook forms of denials and rationalisation (Dobash & Dobach, 1998; Ptacek, 1988) that seem made out
of the very same mould, and correspond exactly to the typology presented by Sykes and Matza decades
ago (Sykes & Matza, 1957). Some men simply denied committing the offence: Im innocent; I did not
do it; Shes always been a liar. They were heard minimising: I only pushed her; I only slapped her
once; blaming the victim: She would not shut up; She gave rubbish to the kids to eat. Naturally, as
mentioned above, many of these forms of denial had a gendered connotation and consisted in justifying
the offence, because the wife had not kept her place: She kept going out with her friends; She dressed
provocatively to drive me mad. The researchers also heard cognitive distortions common with violent
men in general, who, for instance, justify their actions on the basis of a perceived provocation: She was
looking for it; She always nagged me; I had to make her shut up. Men also used paradoxical macho
proofs: If I had wanted to really hurt her, believe me I could have; I was a boxer for years, so imagine
the damage I could have done if I had wanted to Another classic in VAW consists in raising suspicion
against the victims statement by accusing her of being crazy and telling family, friends, neighbours,
and the Court: Shes bipolar; She takes meds for depression or She drinks. As mentioned above, in
order to deny the damage done to the victim, many of these men pretended that the victims skin bruised
abnormally easily.
A Generalised Lack of Evidence-Based Practices
If none of these rationalisations were picked up by the Association X programme facilitators it was,
first, because, as was mentioned, they believed that the main cause for this violence was a dysfunctional
relationship within the couple. It was also, second, because the facilitators, albeit publicly announcing, in
their leaflets and presentations, that they were conducting a CBT programme, only referred to techniques
of CBT twice, and in passing, in the course of the three seven-session programmes observed, and, for
the rest of the time, used a psychodynamic format. While the international standard for DV programmes
is twenty-six sessions (it is for instance the average length of European programmes: Hamilton et al.,
2013), Association X is only funded to deliver seven sessions and can only attend to seven to eight of-
fenders per group. Thus, in a classic psychodynamic format, each session is devoted to the presentation
of his story by each man; then a discussion ensues. Techniques of CBT were used in two sessions,
one during the first group observed, one during the third group importantly after the psychologist had
attended a CBT training session and with a very crude presentation (a mere drawing of the A, B, Cs
of classic CBT followed by unrelated examples), no work on offenders typical cognitions was made,
nor any homework ever given.
Five city psychologists and psychiatrists are also in charge, thanks to our randomisation, of part of
the treatment of DV abusers processed through Bis procedures and they all confirmed that they used
psychoanalysis in order to treat these patients, in spite of all the studies showing how this method is
utterly unable to impact on offending or re-offending (Andrews & Bonta, 2010). Even if, so far, the
gold standard of what works in domestic violence is yet to be found, there is no doubt that modifying
the violent, gendered, and entitled cognitions of these men is vital (Pornari et al. 2013; Polaschek et al.,
2009; Eckhardt et al., 2012). Association X practitioners simply do not even attempt doing this.
98

CONCLUSION
A three years in-depth ethnographic study of DV programmes in the north eastern City A, France, has
led the researchers to a rather disheartening picture. There is indeed a national drive to develop actions
against VAW; however, these actions mostly consist in developing the legal arsenal, without funda-
mentally changing its very core. Whilst noticing that most of the people harmed, who are victimised
repeatedly in their own home, are women, none of the stakeholders, at national or at local level, seem to
be aware of and to have a clear understanding of the gendered nature of this violence. The programmes
developed and the local players tend to consider people involved in these incidents as sub-intelligent
people with alcohol problems, and annoying dysfunctional couples, who love-hate each other and cannot
make decisions for themselves. The cycle of abuse and the battered woman syndrome (Walker, 2013)
is clearly not understood by a single one of these players, even though they are in contact with victims
and abusers on a daily basis. It is perhaps unsurprising that a deeply patriarchal country, such as France,
under a modern and egalitarian coating, is unable to fathom and act upon the entrenched dynamics of
male domination and male violence. The widespread lack of EBP in this jurisdiction (Herzog-Evans,
2013b) and the domination of long outdated psychoanalysis (Van Rillaer et al., 2005) transpire in the
field, and annihilate all the efforts and real desire to act. The production-line functioning of the French
CJS along with its total lack of coordination and interagency collaboration further contributes to the lack
of focus on the end result, i.e., the protection of women; victims are thus, as a general rule, left vulner-
able. Slightly contrasting with this extremely depressing findings are, however, the actions of third sector
practitioners, who help women solve their practical, social, financial, and legal problems. Unfortunately,
their very hands-on approach only benefits to the women who are ready to leave their abusers; those who
are not ready or are too afraid and legitimately so, in view of the lack of an adequate victim protection
programme are left alone and, predictably, find it safer to stay at home and hope for the best.
It is important however to note the important limitations of the present research. Firstly, it is a qualita-
tive study comprising mainly interviews and observation. Secondly, and most importantly, it focuses on
one city and it is very possible that the local situation described in this chapter, may be rather unique.
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Chapter 7
Reconciling Restorative Justice
with the Law for Violence
Against Women in Europe:
A Scheme of Structured and
Unstructured Models
Theo Gavrielides
The IARS International Institute, UK & Restorative Justice for All Institute, UK
ABSTRACT
Violence against women (VAW) has slowly found its place in many international policies and conventions.
They are all based on the legal positivistic understanding of delivering justice. This chapter accepts
this understanding and moves on to argue that what is also undeniable is that justice has a normative
concept that is universal truth. The chapter proceeds to illustrate that Restorative Justice (RJ) outside
the law has, is and will continue to manifest itself even for VAW cases. Ultimately, the chapter aims to
contribute to the books general objective of advancing the multi-dimensional growth of therapeutic
jurisprudence with a gender sensitive and gender focused approach.
INTRODUCTION
Violence against women (VAW) has slowly found its place in many international policies and conventions.1
They are all based on the legal positivistic understanding of delivering justice.
This understanding accepts that each legal system is based on the accepted notion of justice by society
which then entrusts its application and enforcement to legal practitioners such as judges and lawyers.
This statement, by definition, leads us to assume two things; first, that there are different legal systems
DOI: 10.4018/978-1-5225-2472-4.ch007

Reconciling Restorative Justice with the Law for Violence Against Women in Europe
and second that there are different types of justices depending on a local communitys understanding.
Therefore, at the international level, conventions aim to coordinate national laws e.g., by providing
minimum standards and a general consensus.
This chapter accepts this understanding and moves on to argue that what is also undeniable is that
justice has a normative concept that is universal truth. The paper uses the School of Thought of Aris-
totles Natural Law theory to unravel the dimensions of an alternative, non-punitive response to VAW
and domestic violence in particular. This approach has recently been named restorative justice (RJ)
(Eglash, 1977; Gavrielides, 2008), a notion that has been in existence in various shapes and forms since
the early societies (Gavrielides, 2011).
From the outset, it is worth pointing out that when it comes to VAW cases, RJ is not generally favoured
amongst feminist and some victim groups (Stubbs, 1997 and 2002; Acorn, 2004). The truth is that the
appropriateness of RJ with cases of VAW remains largely unexplored (Cook et al 2006; Gitana & Daly
2011). Consequently, this area of practice is under-researched and in the shadow of the law (Hopkins
et al 2004; Gitana & Daly 2011). In fact, the UN and the Council of Europe have issued guidance that
prohibits their member states from using mediation, a form of RJ, in all cases of VAW, both before and
during legal proceedings (United Nations, 2009, p. 42; Council of Europe 2009).
Nevertheless, this did not hinder passionate practitioners from piloting conferences, mediation and
other RJ programmes most of the times without any government support (e.g., Hudson, 2002; Gavrielides
& Artinopoulou, 2012; Gavrielides, 2015). As the evidence will show, RJ exists with or without the law
and this applies also to VAW cases.
It is within this framework that the chapter aims to investigate therapeutic jurisprudence and the role
of the legal (i.e. justice) and non-legal (i.e. fairness) provisions of RJ for VAW and domestic violence
(DV) in particular. As it will be argued, RJ has struggled to find its place within the current criminal
justice system, while many think that when it comes to VAW and DV it is simply not reconcilable with
the law. The chapter argues that co-existence is possible.
The chapter proceeds to illustrate that RJ outside the law has, is and will continue to manifest itself
even for VAW cases. It is thus important that reconciliation is achieved and that RJ practices come out of
the shadows. This reconciliation can be achieved by understanding the two forms that RJ can appear. The
chapter describes these forms and gives some warnings for policy makers and practitioners internation-
ally. Ultimately, the chapter aims to contribute to the books general objective of advancing the multi-
dimensional growth of therapeutic jurisprudence with a gender sensitive and gender focused approach.
CONCEPTUAL AGREEMENTS
Restorative Justice
Gavrielides and Artinopoulou (2013) argued that it is folly to try and define RJ. Despite its objective
existence, it is an evolving norm as its constituent objects is to be found in living nature Therefore,
restorative justice will always be accused by empirical researchers for lacking clarity. Restorative justice
is a short-cut term constructed under the mentality of our busy and managerial lives. Therefore, attempts
that continue to define restorative justice in the narrow sense will remain vain and out of touch with its
evolving and ever changing nature.
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With this caveat in mind, we look at the many international, regional and national bodies that drafted
guidance, declarations and statements fleshing out the key principles encompassing RJ.2 It is not the
intention of this paper to explore the conceptual battles surrounding RJ. However, it is important to ac-
knowledge the complexity of the issue and adopt a working definition of RJ as an ethos with practical
goals, among which is to restore harm by including affected parties in a (direct or indirect) encounter
and a process of understanding through voluntary and honest dialogue (Gavrielides, 2007, p. 139).
Gavrielides understands the term ethos as; A way of living. It is a new approach to life, interpersonal
relationships and a way of prioritising what is important in the process of learning how to coexist
(Gavrielides, 2007, p. 139). For Braithwaite (2002) and McCold (1999) the principles underlying this
ethos are: victim reparation, offender responsibility and communities of care. McCold argues that if
attention is not paid to all these three concerns, then the result will only be partially restorative. Key
practices of RJ include (direct and indirect) mediation, family group conferences, restorative boards and
peace circles (Gavrielides, 2007).
Violence Against Women (VAW)
VAW is not a term without definitional challenges. The UN recommends that the term includes all the
following forms of violence:
Domestic violence, Femicide/feminicide,

Sexual violence including sexual assault and sexual harassment,
Harmful practices including early marriage, forced marriage, female genital mutilation, female
infanticide, prenatal sex selection, virginity testings, HIV/ AIDS cleansing, honour crimes, acid
attacks, crimes committed in relation to bride price and dowry, maltreatment of widows, forced
pregnancy, and trying women for sorcery/ witchcraft, and
Trafficking and Sexual slavery. ( United Nations 2009 : 24)
The UN also acknowledges that VAW can occur in the following contexts: in the family; in the com-
munity; in conflict situations; condoned by the state including violence in police custody and violence
committed by security forces (United Nations 2009, p. 25). Finally, forms and manifestations of VAW
vary depending on the specific social, economic, cultural and political context. This chapter is largely
focused on domestic violence as an accepted form of VAW.
The Evidence So Far
When looking at RJ and VAW as a topic, the extant literature is scarce. The debate was opened in 1995 by
Braithwaite and Daly (1995). They proposed a model based on communitarian control to empower victims,
seen as a pyramid with escalating steps. They noted: We are suggesting that community conferences
open an avenue for addressing the failures of contemporary justice processes, which leave misogynist
masculinities untouched by shame and victims scared by blame (Braithwaite & Daly 1995, p. 244).
UK research published in 1995 looked at the use of RJ with spousal abuse (Carbonatto 1995) while
Strang and Braithwaite (2002) provided a theoretical analysis of the arguments for and against RJ in cases
of domestic violence. Some of the most thorough evidence so far has been produced in Austria where
Out-of-court-offence-resolution (AuergerichtlicherTatausgleich) has been used in cases of partnership
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violence since the 1990s. In 1999, qualitative research led to the conclusion that the potential or strength
of mediation with these cases lies in reinforcing processes of empowerment or liberation (Pelikan, 2000).
The study was repeated ten years later focusing on female victims. About 900 questionnaires were sent
out to those who had undergone victim-offender mediation. 33 victim-offender mediation sessions were
observed and 21 qualitative follow up interviews were carried out. Eighty three percent of all domestic
violence victims who had undergone direct mediation reported no further violence. Eighty percent of
those who reported no further violence contended that this was due to the RJ meeting. They reported that
RJ helped to bring about direct or indirect empowerment. Forty percent of those women who remained
in a partnership or who were still in contact with the offender but had not experienced further violence
stated that their partner changed as a result of mediation.
In South Africa, a large victim-offender conferencing project with female victims of domestic vio-
lence occurring in three districts near Johannesburg reported positive outcomes. Twenty-one women
who had agreed to take part in a small scale study reported that they felt that mediation had provided a
safe space where their personal safety was not threatened, and where they could tell their stories, speak
their minds and be heard, often for the first time (Dissel & Ngubeni, 2003). According to this research,
the RJ dialogue and the intervention of the mediator helped female victims feel safe again, and able to
speak on an equal basis to their partners. Follow ups to assess whether there had been any changes in
the victims views and the offenders behaviour showed that in all twenty-one cases, the female victims
remained positive while reporting changes in the behaviour and conduct towards them with no further
assaults or verbal abuse (Dissel & Ngubeni, 2003).
Canadian research with First Nations women who had been in violent relationships favoured diver-
sionary responses (McGillvray & Comaskey, 1999), while three New Zealand studies on RJ with family
(Kingi, et al, 2008), partner (Tisdall, et al, 2007) and sexual (Julich, et al, 2010) violence cases highlighted
the victims satisfaction citing open dialogue, empowerment, healing and being able to meet
the offender. The UK-based DOVE project working with victims of partner violence reported positive
results (Social Services Research 2003), while the New Zealand-based Project RESTORE discusses a
range of RJ practice matters and benefits in relation to sexual violence cases (Julich, et al, 2010).
Recently, there has been an increased interest in reviewing the scarce extant literature in the area. I
agree with Ptacek (2010), Daly and Nancarrow (2010) and Gitana and Daly (2011) that all the afore-
mentioned studies are based on small samples and lack the longevity that would allow us to draw solid
conclusions. As Gitana and Daly (2011) put it, Our review of the sparse literature suggests that the
sharp-edged nature of the debate is not recapitulated in the evidence which may show a fuzzier and
incomplete picture (274).
2015 research on RJ with DV cases concluded that when appropriately applied, RJ can empower
victims while enabling offenders to engage in dialogue based solutions to the problems that DV has
caused to them. However, the discussion of RJ in the context of DV and the consequent implications of
the issue of power cannot be separated from questions around gender inequality, womens position within
traditional judicial systems, and whether RJ procedures can practically change the judicial stereotypical
treatment of victims (Gavrielides, 2015). The research also identified a number of RJ practices in the
UK dealing exclusively with DV, indicating that despite the lack of government and legislative support
RJ still prevailed (Table 1).
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Table 1. RJ with DV cases in the UK (Gavrielides, 2015)
Project/Organisation Nature of Work Sector

Plymouth Mediation (with Plymouth Mediation carried out in conjunction with the CJS (post sentencing) Community based
Probation Service)
Silence the Violence and Milestons Conferencing (surrogate victims) and mentoring with offenders of DV Community based
(Khulisa UK) either in prison or post release
The Daybreak DOVE Project (with the Family Group Conferences in conjunction with the CJS (post Voluntary
Hampton Trust) sentencing)
Circles UK Circles (surrogate victims) with perpetrators and their families in Voluntary
conjunction with the CJS
The Forgiveness Project No encounter victim awareness through surrogate victims working Community
with perpetrators in prison or post release
Victim Liaison Units, National Mediation with victims and perpetrators who receive a prison Statutory
Probation Service sentence of one year or more for a sexual or violent crime
UK College of Family Mediators Family mediation non-criminal justice based (preventative) Voluntary
Connect (with NACRO) Mediation and group conferences in conjunction with the CJS (post Voluntary
sentencing)
Fair Process Direct and indirect conferencing in conjunction with the CJS (post Community based
sentencing)
SORI (Cardiff Prison) In prison conferencing with surrogate victims Statutory
Warwickshire Domestic Violence No direct encounter counselling and dialogue with victims and Voluntary
Support Service, Rugby offenders (in support of CJS)
METHODOLOGY
To construct its arguments, the chapter used normative analysis of Aristotles teachings on justice and a
review of empirical data gathered through two unrelated research projects that the researcher coordinated
in 2012-16. None of these projects were conducted solely for the purposes of this chapter.
The Research Projects
The first project was titled RJ in cases of DV: Best practice examples carried out by the IARS Inter-
national Institute3 in partnership with seven other EU based organizations.4 The project was co-funded
by the EU as part of its efforts to help member states to prepare for the implementation of the Directive
2012/29/EU of the European Parliament and of the Council establishing of minimum standards on the
rights, support and protection of victims of crime (Victims Directive). In fact, through this Directive,
for the first time, RJ is explicitly regulated at a regional legislative level so that victims who chose to be
involved are safeguarded. The Directive, which treats RJ both as a complementary as well as an alterna-
tive route to criminal justice, gives direct rights to victims. The Directive pays particular attention to
protecting the rights of victims of domestic violence and gender based abuse. Infringement by a member
state may constitute a base for a claim to the European Court of Justice. We applied a qualitative method
over a period of two years and through 6 phases (Table 2).
The second project was titled Restorative Justice in Europe: Safeguarding Victims and Empower-
ing Professionals (RJE).5 It was led by The IARS International Institute and was carried out in 5 EU
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Table 2. Research phases and methods used (2014-15)
Research Phase Sample Contacted (Original) Sample Reached (Final) Research Method Employed
Fieldwork Phase 1 20 experts contacted through IARS existing 5 experts interviewed In-depth, semi-structured
contacts interviews
Fieldwork Phase 2 25 experts contacted through IARS existing 22 experts attended Focus group
contacts
Fieldwork Phase 3 10 victims contacted through a referral 5 victims attended Focus group
organisation working with DV victims
Fieldwork Phase 4 24 victims and offenders contacted through 8 proxies attended In-depth, semi-structured
criminal justice and victim support agencies, interviews
social media and IARS contacts
Fieldwork Phase 5 2 RJ and DV cases 2 RJ and DV cases Case studies analysis
Fieldwork Phase 6 10 DV services providers reached through 5 DV services In-depth, unstructured
IARS database attended interviews
countries, but its findings are EU-wide. RJEs general objective was to produce social scientific and
practical results that will be directly used by victims and professionals in their national implementation
of the Victims Directive. After a thorough review of the extant literature and existing best practice, over
20 reports were produced sharing this information across Europe. Following this, fieldwork was carried
out with over 272 victims and offenders and 280 professionals working with victims either by providing
victim support, RJ or criminal justice services (Table 3).
The Normative Approach: Aristotles Natural Law
In order to normatively understand RJ for VAW cases, the chapter went back to basics looking at what
is justice as an objective notion that is detached from reality. To this end, the paper focused on Aris-
Table 3. Sampling and research methodology for the RJE project
Country - Project Sample Contacted (Original) Sample Reached (Final) Research Method Employed
Partner
UK - IARS 39 victims 24 victims In-depth interviews (qualitative)
54 offenders 28 offenders In-depth interviews (qualitative)
5,240 contacts 107 victims and offenders Online survey (quantitative)
51 experts 24 experts Focus Group (qualitative)
Germany Bremen 245 victims and institutions 53 victims and 30 institutions Quantitative Survey
University 466 victims and institutions 20 victims and 4 institutions Quantitative Survey
Greece - EPLO 100 victims 20 victims In-depth interviews
10 professionals 10 professionals In-depth interviews
Bulgaria - ICR 10 victims 10 victims In-depth interviews
22 professionals 22 professionals Focus groups (x5)
Netherlands 197 practitioners/ professionals 75 practitioners/ professionals Attitudinal survey (qualitative)
Restorative Justice 197 practitioners/ professionals 75 practitioners/ professionals Fact finding survey (qualitative)
Netherlands (RJN) 20 stakeholders/ experts 20 stakeholders/ experts In-depth interviews
10 offenders (juveniles) 10 offenders (juveniles) In-depth interviews
20 experts 20 experts Mini conference
2 case studies (juvenile prisons x 5) 2 case studies (juvenile prisons x 5) In-depth observation
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totles teachings, which define justice as part of Natural Law. This involves a system of consequences
which naturally derives from any action or choice. On this account, justice is a universal and absolute
concept, while human constructs such as religions, principles and theories are merely attempts to codify
that concept, sometimes with results that entirely contradict the true nature of justice. This analysis is
not abstract as it acknowledges the caveat between the normative side of justice and its real dimension
which is expressed in the law.
The starting point for Aristotles analysis of justice is the individual as opposed to a state of affairs.
Put another way, justice has been thought, primarily, the morally right assignment of good and bad things
(such as punishment, reward, respect, wealth etc.). For Aristotle, it is primarily the virtue of a person
who expresses or acts for that right assignment. Justice is placed at the top of the values pyramid, since
though other ethical standards (e.g. mercy, compassion, generosity, benevolence) may be valuable, they
are supererogatory rather than required. The man who is not just is the man who takes more than his
share of the things which are good in themselves, but not always good for a particular person i.e., external
goods such as wealth and honour (particular justice).
But justice, for Aristotle, is not only a value. Justice also means obedience to law. In fact, he thinks
that the law should control the whole range of human life. He proceeds to say that if a particular State
does this only partially that is because it is only a rough and ready adumbration of what law should be.
In his work Nicomachean Ethics, he concludes: by just we may mean (i) what is lawful or (ii) what is
fair and equal; these are universal and particular justice respectively (1129 & 3-1130). It is interesting
to note that the Greek equivalent of the word just (from the Latin word jus) is , which meant
observant of custom or rule (Cf. Hom. Od. 3, 52). In Attic law, (to do injustice) was the word
used to express any breach of law. Aristotle says: As the defendant in a civil suit is charged with wrong-
ing an individual, the prisoner in a criminal case is thought of as wronging the city.
From the above analysis, it becomes apparent that there are two types of justice. One that is attached
to the concept of the law and one that defines what is fair and equal we will call it fairness. Although
both should be valued-based, the former is more easily exposed to arbitrariness and human fault. The
latter is closer to the ideal, but is abstract.
THE RESEARCH FINDINGS
Looking at the Victims Directive, which was the focus of the aforementioned projects, it was introduced
with clear intentions that RJ can consistently be implemented throughout Europe through a top down
structure of government legislation and control (Gavrielides, 2015b). The Directives proposers and
drafters forgot or were unaware of the historical and philosophical roots of RJ as a community born ethos
(Gavrielides, 2007). They also ignored the fact that RJ is malleable to locality and the given circum-
stances of each victim and crime. This is not merely the authors assumption but the general conclusion
of the fieldwork findings.
For example, one of the most consistent findings of the research is how differently the concept of a
victim is perceived across Europe and internationally, and how much each national political and societal
circumstances influence the way RJ services are understood and prioritised by individual governments.
This cannot be taken lightly in the implementation of an EU-wide Victims Directive or indeed of any
international attempt for more rights for victims. For instance, if the concept victim is used by a Member
State too narrowly, this might be an obstacle for the enactment of the rules of the Directive.
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However, there is a long way to go before victim policy supports equally state-based and community-
based interventions. Fears are expressed that RJ provision is gradually becoming a state monopoly. For
instance, one of the themes that dominated the discussions at the UK RJE focus group with experts
related to the current development of RJ. The participants claimed that RJ is currently being promoted
by government and certain government funded organisations through top down structures that control
its agenda and forms of manifestations (quote from a practitioner). This was not thought to be in the
interest of the victim, while concerns were expressed about the need to first change the criminal justice
culture before the Victims Directive can be genuinely implemented.
Indeed, it is questionable whether yet another piece of legislation such as a Directive can encourage
implementation back to its original path and direction. In fact, it is troubling that in its very articles the
Directive encourages strict regulation and standardisation of RJ as if it is part of the same system that
the state owns and controls. The intention to protect victims overlooks the nature of RJ as a non-state
based intervention that falls outside of the traditional way of delivering justice. This, of course, does not
mean that RJ cannot be provided in parallel to the criminal justice system. It means that protection can
indeed be initiated but not through the same legal structures that the state provides for its own justice
methods (Gavrielides & Artinopoulou, 2013).
Interviewed practitioners agreed that RJ should be provided both within and outside of the criminal
justice system and that this should include partnerships with community and civil society organisations,
which seem to have taken the principal burden in the implementation and innovation of RJ in most EU
member states. RJE participants in the UK, the Netherlands and Germany also expressed the view that
there are already plenty and adequate legislative and institutional arrangements for the protection of
victims in the criminal justice and RJ process. Nevertheless, there is a considerable gap in the imple-
mentation of these intentions. This should serve as a lesson for the Directive and its implementation.
They also pointed out that the real challenge is not the passing of these regulations at the national level,
but their enforcement.
Our findings also indicate the significant role that civil society plays in the provision of RJ services.
Austria, Denmark, Germany, Italy, Latvia, Malta, the Netherlands, Poland, Portugal, Slovakia, Slovenia,
Spain, Sweden, and the UK see a number of key RJ services being provided through non-governmental
organisations and through partnerships with the community.
RJs historical and philosophical community-born roots must be considered. Legislation alone will
not suffice. A wider and inclusive debate is needed. This is also a debate for the wider international com-
munity and not just Europe. Our research points out that while the role of the state will continue to vary
across Member States in the provision, regulation and control of RJ services, RJ must be supported to
reposition itself as a community born ethos. Our research also points out that any Directive must respect
the context within which it is implemented.
It seems from the research findings that despite good intentions, the EU assumes that policy, legisla-
tive and institutional reforms will take place in Member States that will bring uniformity in the protec-
tion of victims rights in the criminal and RJ processes. I have concerns about this expectation for three
principal reasons. First, the cultural, societal and historical traits of our criminal justice systems are
factors that may hinder this intention. Second, Europe and the international community are faced with
a global financial crisis. Asking States to make reforms during a climate of financial austerity might
put additional pressure. Of course, this is not to suggest that reforms cannot help cut down the spiral-
ling costs of criminal justice. But this is not a narrative that has been developed by the EU, which will
need to first convince local politicians and community organisations. Thirdly, victim and RJ services
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exist largely in the community and are delivered not just by state based institutions, but civil society and
community-based organisations.
Looking at the UK as an example of national policy and legislative reforms, significant governmental
interest began in RJ in 2003, when the Home Office opened the RJ Unit and launched a consultation
on whether RJ should be included more formally into the adult criminal justice system. Despite over-
whelming support the interest soon waned and along with it the Home Office Unit and their policy and
legislative plans (Gavrielides, 2003).This interest was revived soon after the current coalition government
took power which published the first national strategy on RJ. However, the biggest development was
the passing of the Crime and Courts Act 2013 that inserts a new section 1ZA into the 2000 Act, which
makes it explicit that the courts can use their existing power to defer a sentence post-conviction to allow
for RJ activity to take place, by imposing a RJ requirement. Since December 2014, the courts have the
power to defer the passing of a sentence provided that all parties (i.e. both the offender and the victim)
agree. The Act also requires that anyone practicing RJ must have regard to the guidance issued by the
Secretary of State. No other formal requirement is stated.
Despite these developments, the current UK administration remains divided over its view of the
RJ practice for DV cases. In anticipation over the official support of RJ, the Home Office conducted a
consultation, RJ: The Governments strategy (2004). As Liebmann and Wooton (2010) highlighted,
although a question about RJ and DV was asked within the consultation, views were strongly polarised.
Subsequently, the publication Best Practice Guidance for Restorative Practitioners (2004), stated: the
use of restorative processes in DV cases is not agreed. There are also other sensitive and complex cases
where adequate risk assessment will show that the work needs to be particularly led by the victims
needs and wishes to avoid further harm (35). As a follow up, Best Practice Guidance for Restorative
Practice (2011) does actually not specifically mention DV cases, rather it uses the example of co-working
in as best practice in cases of gender violence. Additionally, RJ and its use with DV is mentioned in the
Code of Practice for Victims but only for victims of youth crime. Political parties wanting to show their
willingness to protect victims have taken are hard line.
Focusing on the projects research findings it is suggested that by widening the discussion of RJ and
DV, progress can be made about restorative practices usage and place for the therapy of both offenders
and survivors. By having a more open dialogue with groups who we perceive to be un-supporting of
RJ, we invite practitioners to become more open about their practice, especially in helping researchers
highlight cases with successful outcomes. The aforementioned two projects have been able to identify
pockets of RJ practices with VAW, but we cannot say that RJ for DV is an extensive practice in the UK
or internationally. This practice exists in the shadow of the law and without government backing. To sum
up, although the discussed practices lack consistent and scientific evaluations, word of mouth and the
limited qualitative research that we conducted as part of the EU funded programmes suggest important
benefits for victims, offenders and communities.
Some Normative Reflections
Looking at Aristotles work combined with the above empirical findings, the paper now asks: if we were
to test objectively the image of RJ for VAW cases, how satisfactory would the outcome be?
We tend to think of RJ as a notion that has, or should have, a physical or conceptual existence within
the real word. Some have attempted to explain its physical existence by defining it through process-based
descriptions and by giving real-life examples. Others have asserted that RJ may be more than a practice
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encompassing a set of principles or teachings. Therefore, they provide value-based understandings and
theories that may, or may not, be susceptible to testing and empirical verification.
Here, the researcher takes a bold step by stating that the struggles of the past of RJ are due to the
limited vision of its proponents. The author posits that RJ is indeed more than just a series of practices
or a set of values. He asserts that RJ is a comprehensive set of justifications of structures, or lack of
structures, for the pursuit of justice. When making this statement, the chapter bear two things in mind.
First, that we must respect what has already been developed, accepting and building on both the process-
based and value-based understandings of RJ. Secondly, we must be mindful not to propose anything that
can exist only instead of something (i.e., abolitionism).
Learning to Reconcile: The Two Models of Restorative Justice
It is clear from the research and Aristotles argument that the law alone cannot provide the holistic solu-
tions needed to root out the causes that lead to VAW. Legislation and top down structures are ill equipped
in understanding and indeed responding to the continuum and complexity of DV and other VAW cases.
This chapter has provided evidence whereby solutions (or at least alternatives) can be pursued outside
the formalized structures of the law. The evaluation and appropriateness of RJ has been hampered by an
inherent weakness. This relates to the nature of RJ as an alien methodology for criminal justice profes-
sionals let those be police officers, probation staff, judges or lawyers. The need to reconcile RJ with
the law is highlighted through the provided examples of the Victims Directive and the new legislative
reforms in the UK. These are opportunities that could maximize RJs applicability for DV and VAW
cases. Here, I propose two models of RJ in the hope that reconciliation can be achieved with the domi-
nant criminal justice system.
Model 1: Structured Restorative Justice for Violence Against Women
To understand the formal delivery system of justice, we only need to follow a laws journey from its
conception to its delivery. To deliver justice (the law) formally, first there needs to be an injustice done
to society, in this case we named it VAW. This needs to be identified and publicly condemned. It also
needs to be backed up by a pattern of unjust behaviour. Through this, the need for regulation arises.
This requires a mixture of skills and professions including politicians, the media, academia, market
research, economics, campaigners, and so on. Once a law has been produced to regulate this pattern
of injustice and conflict, then a further series of actors come into play to represent and deliver justice,
including lawyers, courts, judges, administrators, prosecutors, prison and probation staff. Once this law
is delivered, then a further chain of maintenance is observed encompassing educational institutions, the
media, campaigners, politicians etc. All these agents and institutions are engaged to contribute to the
formal system of justices delivery.
Structured RJ is placed within this machinery and organised sub-systems of pursuing, delivering
and maintaining justice after VAW has occurred. But these institutions are not equal and the agents
delivering or representing justice share various positions of power depending on their roles and place
in society. This creates the power imbalances. These power structures and imbalances are additional to
those that may lead to conflict in the first place. These types of imbalances are to be found within the
very machinery that is set up to address conflict and its underlying causes.
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To counterbalance this distortion, we have introduced legal standards. We called them rights or
human rights and placed them both within the international or individual spheres. In this case, rights
and human rights were understood as justiciable standards that are implemented by the very system that
they aim to correct. They are, of course, based on our common humanity and are informed by the living
experiences of those it aims to protect. But they do not have any significance until they take the form,
or have the protection, of the law. Thus, they must be introduced into the machinery of the structured
systems and sub-systems that have been set up to address injustice and conflict.
Chart 1 illustrates how this structured way of delivering justice and RJ works. Within this model,
VAW creates crime, offenders and victims. All three are placed within a funnel. Emptying the funnel
will bring peace. Exit from the funnel can be achieved through a legalised and structured justice system
that is served by structured institutions. The power imbalance that this structure creates is meant to be
contained by the outside layer of the funnel which is made of human rights as these are materialised
through the law. Structured RJ is one way of emptying the funnel and is part of many other structured
forms of delivering and maintaining justice and BRINGING peace.
Model 2: Unstructured Restorative Justice for Violence Against Women
To understand the informal delivery of justice, we need to put VAW within the context of harm doing
not the law. VAW in the form of harm causes a broken liaison between individuals, communities, the
individual and the community, the individual and the state or even between states. It also creates harmed
parties independently of whether these are labelled as victims or offenders. Under this model, it does
not matter who did what to whom. What matters is that VAW has caused harm and a broken liaison in
the pre-existent relationship of the harmed parties.
Figure 1. Structured restorative justice
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Going back to our funnel, this time, it is filled with different ingredients i.e., harm, broken social
liaison and harmed parties. Again to achieve peace we must empty the funnel. Only this time the
intervention of the law will not be enough. The community must intervene and various emotions must
be employed. This intervention can take various shapes and forms. RJ practice may offer one of such a
form. Unlike the previous funnel, here loose and bottom up mechanisms that aim to restore harm and the
broken social liaison are used. These are not dependent on formalised sub-systems. They use localised
and informal projects of bringing peace.
A common feature of both funnels is the power structures that are created through the mechanisms
of emptying them. Here, these powers are not observed within and between institutions. They are cre-
ated among those community representatives delivering justice. They can also be created between the
harmed parties themselves as their labels and roles are removed.
Another shared denominator between the two funnels and forms of delivering justice is the role of
human rights as restraining standards. In this case, human rights are not enforced as legal restrictions
but as a value-based code of behaviour and practice. Whether they are justiciable or not is irrelevant to
the community-led and bottom-up structures that are called to empty the funnel from harm, the broken
social liaison and the harmed parties. What these justice projects need, including unstructured RJ, is
the manifestation of value-based guidelines. These are the set of values that we often confuse with RJ.
Figure 2. Unstructured restorative justice
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CONCLUSION
VAW typifies our relationship with the criminal justice system whereby traditional justice seeks to
punish the offender on behalf of the state (the powerful) in somewhat of a disregard to the needs of the
victim (the powerless). In this process, the true therapy, healing and restoration of the affected parties
are missed. They are not key objectives; the primary goals and the driving force of traditional justice
remain in the notions of retribution, incarceration, just deserts and recidivism. This is not to suggest that
the state and its corresponding justice system are irrelevant in the pursuit of justice. Findings from our
research project indicate an alternative safe and effective approach that can hold the abuser accountable,
whether this be restoratively, punitively or both.
The paper highlighted a number of attempts that have been made at national and international levels
to regulate forms of justice, including RJ, for VAW cases. These attempts are honourable, but as our
findings conclude, it would be nave to think that any domestic, regional, national or local justice sys-
tem can bring uniformity in the way the norm of justice is represented in modern society. Moreover, it
would be nave to expect justices representation system to be a prefect reflection of its norm. Through
the teachings of Aristotle, this chapter has shown that though justice (including RJ) is objective, it is
split up into two components: the human construct of the law and ethically-based fairness. We can be
more demanding in terms of the representation of justice (the law), but have reasonable expectations
from the agents attempting to represent justice (the value).As many victims and practitioners said to us,
legislation alone will not do.
There can be no doubt that RJ is back on the agenda. Governments are becoming interested in its
propositions and are trying to find ways of using it more extensively and consistently. The delineation of
RJ by this chapter helps us understand that whether through a structured/top down system or one that is
bottom up and loose, RJ can still deliver. Whether we end up regulating RJ practice through legislation
or we leave it in the hands of localised and unregulated projects, it will still deliver. However, we must
remember that if the structured system is applied, then RJ will be emptying the funnel from crime,
victims and offenders. If we wish to achieve peace by empting the funnel from harm, the broken
social liaison and harmed parties, then a top down approach (such as legislation) will not be enough.
A value based system of community trust and care must be employed.
But this does not mean that one is better than the other or that the two cannot co-exist. It is also im-
portant to point out that one dependent on the other. For example, we do not need legislation in order for
value-based, unstructured RJ to be implemented. The examples of the old bear evidence to this claim.
Likewise, the cold letter of the law does not need warm hearts and value-based localised systems to
deliver structured RJ. This can still be applied by criminal justice agents such as the police, prosecution,
probation and prison staff. There are enough empirical studies bearing evidence to this claim. Enough
time has been spent defending our preferred practices. After all, much of the success of RJ is to be found
in its plurality, diversity and living nature as a continuously evolving system of justice and fairness.
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ENDNOTES
1
E.g. Declaration on the Elimination of Violence Against Women (A/RES/48/104) adopted by UN
General assembly in 1993; Convention on Elimination of All Forms Declarations Against Women
(CEDAW), adopted by the UN General Assembly on 1979.
2
E.g. UN Council Resolution E/CN.15/2002/L.2/Rev.1 Basic principles on the use of RJ programmes
in criminal matters.
3
www.iars.org.uk
4
http://iars.org.uk/content/RJandDV (accessed May 2016)
5
http://www.iars.org.uk/content/RJE (accessed May 2016)
120
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Chapter 8
Pornography and Global
Sex Trafficking:
A Proposal for Therapeutic Jurisprudence
as Court Innovation in the United States
Michael Pittaro
American Military University, USA & East Stroudsburg University, USA
ABSTRACT
The primary purpose of drawing international attention to this chapter is to truly understand and subse-
quently address the abhorrent role that pornography and prostitution play in transnational sex traffick-
ing operations. Pornography, especially when coupled with prostitution unquestionably perpetuates sex
trafficking particularly in the commercial sexual exploitation of women and girls across the world, yet the
exact role pornography and prostitution play remains largely misunderstood and mostly speculative within
the practitioner and scholar literature. This chapter will address those concerns as well propose plausible
recommendations based on the research to date in order to assist and support those who are dedicated
and committed to eradicating sex trafficking by infiltrating pornographers who create, disseminate, and
participate directly and indirectly in the sexual exploitation and abuse of women and children on a global-
scale. Also, this chapter will emphasize the need for TJ as a form of Court Innovation in the United States.
INTRODUCTION
Human trafficking is irrefutably one of the most proliferative and continuously evolving transnational
crimes of this century, preceded only slightly by gun and drug trafficking; yet if it remains on this current
and widespread destructive path which has been projected, it will soon surpass international gun and
drug trafficking for the first time in history. One distinctive, yet often under-identified and misunder-
stood, characteristic of human trafficking is forced criminality (Pittaro & Normore, 2016). For clarity,
human trafficking will be defined using the definition provided by the United Nations (2004) in Article
3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons. Therefore, hu-
man trafficking is:
DOI: 10.4018/978-1-5225-2472-4.ch008

Pornography and Global Sex Trafficking
the recruitment by means of threat or use of force or other forms of coercion, of fraud, of decep-
tion, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments
or benefits to achieve the consent of a person having control over another person, for the purpose of
exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or
other forms of sexual exploitation, forced labor or services
In a 2016 FBI publication, Pittaro and Normore emphasized that human trafficking serves as an
opportunistic crime targeting all types of people, with no age, gender, culture, or socioeconomic group
immune. To compound matters, this crime has reached worldwide epidemic proportions; therefore, no
country is impervious or outside the grasp of traffickers (Pittaro & Normore, 2016). This is a globally
facilitated crime where all borders are penetrable with children being the most vulnerable demographic
group (Pittaro & Normore, 2016). Additionally, there is a lack of reliable intelligence information re-
garding the true scope of human trafficking. One reason for this is the lack of systematic, empirical,
and methodologically rigorous research on trafficking in human beings (Kotrla, 2010). For the cases
of sex trafficking that are international, Kotrla (2010) suggests that some politically and economically
disadvantaged countries in particular have a culture of tolerance that supports sex trade markets with
wide-scale, rampant government corruption.
Since the definitions of human trafficking are not always clear or uniform from county to country, it
is difficult to collect accurate data about this phenomenon. Additionally, determining the actual profits
generated by human trafficking is considerably difficult due to the clandestine trafficking operations
remaining largely outside the scope of law enforcement. Anecdotally, estimates for human trafficking
range from $32 billion dollars to $150 billion dollars per year (Pittaro & Normore, 2016). As can be
imagined, human trafficking is undeniably attractive to criminals and as alluded, quite lucrative because
men, women, and especially children can be bought and sold countless times and are therefore, perceived
to be a valuable and quite profitable commodity for transnational crime groups (National Center on Sexual
Exploitation, 2011). Simply stated, human trafficking is modern-day slavery that entails forced labor,
child soldiering, suicide bombing, organ trafficking, and of course, sex trafficking to name a few. It is
a crime with no impenetrable borders, which means that every country, large and small, developed or
underdeveloped, is at-risk as both a source and destination country for human trafficking.
SEX TRAFFICKING
Unlike some traditional street crimes in which certain geographic areas are more prone to crime and
violence in comparison to other areas, sex trafficking transcends all countries, states, cities, and even
the smallest of villages worldwide and it is estimated to be one of the most profitable subdivisions of the
larger human trafficking (National Center on Sexual Exploitation, 2016). Therefore, all geographic land
boundaries are penetrable and the number of potential victims is limitless. Sex traffickers will employ
violence, threats of violence, manipulation, deception, trickery, and other forms of coercion and fraudu-
lence to acquire victims (National Center on Sexual Exploitation, 2016). Victims can be U.S citizens,
foreign nationals, men, women, children, and LGBTQ (Lesbian, Gay, Bisexual, Transgender, and Queer)
individuals. Those that are especially vulnerable are runaways, homeless youth, victims of domestic
violence, victims of sexual assault, those afflicted with addiction problems, those with psychological
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disorders, those living in countries of civil unrest, and those facing social or political discrimination and
persecution (National Center on Sexual Exploitation, 2016).
Sex trafficking occurs in a wide, yet diverse range of venues including massage parlors, escort
services, brothels, hotels, motels, and at truck stops to name a few. Globally, the International Labor
Organization (2016) conservatively estimated that there were 4.5 million individuals enslaved in sex
trafficking worldwide and some researchers, including this writer, would not hesitate to argue that the
actual number of enslaved victims is vastly higher. Contrary to what many believe, the United States is
both a source and destination country for sex trafficking; therefore, no state, city, or even the most rural
borough or town with the smallest populace is outside the potential grasp of traffickers. For example,
an Urban Institute study by Dank, Khan, Downey, Kotonias, Mayer, Owens, Pacifici, and Yu (2014)
estimated that the underground sex trafficking in prostitution ranged from $39.9 million in Denver,
Colorado to $290 million in Atlanta, Georgia. Once again, to emphasize, this is not to suggest that sex
trafficking within the United States is solely confined to large urban cities. The Polaris Project (2015),
one of the leading authorities in sex trafficking research, determined that sex trafficking has and will
continue to take place in urban, suburban, and even the most rural locations within all 50 states. Sadly,
there is no shortage of potential victims as well as perpetrators to feed into this insatiable global crime.
Victims
As mentioned, victims are often duped into the traffickers traps under some type of ruse using false
promises or under the guise of a well-paying career, financial stability, an education, or even fame that
comes with modeling or acting. While victims share the common trait of vulnerability, they have diverse
ethnic and socioeconomic backgrounds, varied levels of education, and may be documented or undocu-
mented citizens (Polaris Project, 2015).
Traffickers control victims by leveraging the non-portability of many work visas as well as the vic-
tims lack of familiarity with surroundings, laws and rights, language fluency, and cultural understanding
(Polaris Project, 2015). Traffickers may confiscate their identification documents and money, they may
not speak language, or they may not know where they are because they have been moved so frequently.
Furthermore, victims are prohibited from communicating with family and friends and victims may have
trouble trusting others, including law enforcement, due to the traffickers network of corruption within
the political, social, and even public safety arenas consisting of military and law enforcement personnel
(Polaris Project, 2015).
LGBTQ Youth: LGBTQ youth are particularly vulnerable to traffickers. Nearly 40% of homeless
youth identify as LGBTQ in comparison to 7% of the general population (Schmitt, 2016). These
youth may face homelessness as a result of family rejection, prior abuse or neglect, bullying in
school, or social discrimination and marginalization (Schmitt, 2016). Simply stated, youth lacking
safe shelter and strong social supports and ties to family and friends are at higher risk for traffick-
ing and exploitation and sadly, LGBTQ youth fit that profile (Schmitt, 2016). Traffickers exploit
the victims needs and vulnerabilities to compel them into sex labor trafficking. LGBTQ youth
may be trafficked by intimate partners, family members, friends, or strangers (Schmitt, 2016).
LGBTQ youth may fear the repercussions of reporting their situation, particularly if they are
concerned that others will mistreat or not believe them because of their gender identity or sexual
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orientation. LGBTQ youth service providers may be in a unique position to recognize specific
indicators of sex trafficking among the youth they serve and connect them with much needed ser-
vices (Schmitt, 2016). Education and awareness are important preventative measures to minimize
the likelihood of becoming a victim.
Traffickers
Like the victims, anyone can be a trafficker. There have been many well-documented cases involving
individuals from all socioeconomic groups, including doctors, lawyers, police officers, clergy, and
political figures. Traffickers recruit, transport, harbor, obtain, and exploit victims often through force,
threats of force, lies, and other psychological and physical coercive tactics (Polaris Project, 2015). Traf-
fickers employ a variety of control tactics, including physical and psychological abuse, sexual assaults,
confiscation of identification and money, isolation from friends and family, threats to harm or even kill
friends and family, and even renaming victims to create dependency within their victims and establish
anonymity (Polaris Project, 2015). As a result, victims become physically and psychologically trapped
and may fear leaving for what may happen to them or their loved ones if they attempt to flee or make
contact with the outside world. Often the traffickers and their victims share the same national, ethnic,
or cultural background, allowing the traffickers to better understand and exploit the vulnerabilities of
their victims (Polaris Project, 2015). Traffickers can be lone individuals, although not the norm, or be
part of an extensive criminal network whereby each individual involved has as a specific role to play in
the trafficking scheme. Pimps, gangs, family members, labor brokers, employers of domestic servants,
small business owners, large factory owners, doctors, and even law enforcement have all been implicated
and found guilty of human trafficking. Their common connection is a willingness to exploit other hu-
man beings for profit.
ISIS: Not necessarily surprising is the fact that ISIS (Islamic State of Iraq and Syria) and other
extremist groups that support terrorism and jihadism are also capitalizing on sex trafficking op-
erations. Social media sites used by Islamic State fighters in recent years have included numer-
ous accounts of the buying and selling of sex slaves, as well the promulgation of formal rules for
dealing with them (Warrick, 2016). Some of those guidelines cover such topics as whether it is
possible to have sex with prepubescent prisoners and how severely a slave can be beaten (Warrick,
2016). Until a recent May 2016 incident, there were no known instances of Islamic State fighters
posting photographs of female captives on social media sites as being offered for sale (Warrick,
2016). However, photos of two unidentified women recently appeared, albeit briefly, before being
deleted by Facebook, but the images were captured by the Middle East Media Research Institute,
a Washington nonprofit group that monitors jihadists social-media accounts.
In 2015, after initial denials, the Islamic State issued several statements acknowledging the use of
sex slaves and defending the practice as consistent with ancient Islamic traditions, if the women are
non-Muslims captured in battle or members of Muslim sects that the terrorist groups regard as defec-
tors (Warrick, 2016). The problems faced by such women appear to be growing worse as military and
economic pressure against the Islamic State increases (Warrick, 2016). Once again, this suggests that
traffickers, extremist groups, organized crime syndicates and other cyber criminals continue to evolve
and elude law enforcement by using the Internet for nefarious purposes.
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Terrorist groups have historically used social media sites like Facebook and Twitter to recruit sympa-
thizers and other jihadists, and to spread propaganda; however, American-owned social media companies
have fought back by blocking jihadist accounts whenever they are reported or discovered (Warrick,
2016). Unfortunately, with the current structure of social media, these militant groups can easily open
multiple new accounts as soon as the older accounts are shutdown making it at best, a fruitless effort.
We have repeatedly seen this type of activity when trying to shutdown child pornography sites. As one
is shutdown, others are created just as quickly.
PORNOGRAPHY: A LEGAL PERSPECTIVE
Pornography comes from the Greek words porne, meaning prostituted woman or prostitution, and
the word graphos, meaning writings. (Jenkins, n.d.). In its most rudimentary form, pornography can
be defined, at least generally, as the depiction of sexual behavior that is intended to arouse sexual excite-
ment in its viewers through a variety of online and print media, most of which can be accessed via the
Internet. What exactly is pornography? There has been a longstanding debate, which essentially started
in the twentieth century that entailed Americans fiercely deliberating as to whether pornographic ma-
terials should be legally protected under the U.S Constitution, namely the First Amendment, or banned
entirely. Legal rights proponents have vehemently argued that pornography should be safeguarded and
afforded the protections and constitutional provisions outlined within the First Amendment, particularly
the clause protecting freedom of expression, including sexual expression (Hudson, 2009). Alternatively,
pornography opponents have raised both legal and obvious moral concerns, arguing that the First Amend-
ment does not protect freedom of expression if it corrupts ones behaviors (Hudson, 2009). However, the
corruption of ones behaviors is highly subjective and therefore, subject to interpretation. Feminists in
particular have advocated for the suppression of pornography because it perpetuates gender stereotypes
of women as being sexually submissive, and in some instances, encourages and promulgates violence
against women.
Pornography has since been regulated by the legal standards that govern the legal concept of obscen-
ity, which refers to situations that society may consider disgusting, foul, or immoral. The U.S. Supreme
Court has clearly established that the First Amendment does not protect obscenity (Hudson, 2009).
However, the more troublesome dilemma has been in defining what is and is not, obscene. In 1957, the
U.S. Supreme Court in Roth v. United States, ruled that obscenity is utterly without redeeming social
importance and is therefore, not protected by the First Amendment (Hudson, 2009). The Roth test for
obscenity considers whether the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to a prurient [lewd or lustful] interest. (Hud-
son, 2009) However, the Roth test had proved challenging to apply because every term within the courts
legal opinion lacked a conclusive definition making the Roth test utterly ambiguous and the subject of
further legal interpretation.
Nevertheless, in 1966, the US Supreme Court incorporated additional language to the existing defini-
tion of obscenity when the court concluded that in order to establish obscenity, the material in question,
must be utterly without redeeming social value and patently offensive because it affronts contemporary
community standards relating to the description of sexual matters (Hudson, 2009). However, the phrase,
utterly without redeeming social value, inadvertently provided a legal loophole for pornographers.
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Experts were summoned and provided testimony that there exists a shred of social value in the depiction
of sexual behavior and social relations in pornography (Hudson, 2009).
A few years later, in 1973, the US Supreme Court in Miller v. California established the basic legal
standard for pornography (Hudson, 2009). Former Chief Justice Warren Burger stated, in Miller, that
pornographic materials could be classified as obscene if the materials in question met three specific
criteria. (1) the work, taken as a whole by an average person applying contemporary community stan-
dards, appeals to the prurient interest; (2) the work depicts sexual conduct in a patently offensive way;
and (3) the work, when taken as a whole, lacks serious literary, artistic, political, or scientific value
(Hudson, 2009). Burger further emphasized in Miller that only hardcore pornography could be desig-
nated as patently offensive. Burger listed examples of patently offensive descriptions or representations,
including representations of ultimate sex acts, masturbation, excretory functions, and lewd exhibition
of the genitals. (Hudson, 2009) Softcore pornography by definition involves depictions of nudity and
simulated sexual conduct, but is not as graphic or explicit as hardcore pornography; therefore, softcore
pornography is protected under the First Amendment.
In response to rapid technological advancements starting in the 1990s, namely the use of computer
bulletin boards and the Internet to internationally distribute pornography, led to the enactment of the
federal Communications Decent Act of 1996, which was established to ban obscene and indecent sexual
material in cyberspace (Hudson, 2009). However, the US Supreme Court in Reno v. American Civil
Liberties Union (1997) overturned a specific provision within the act prohibiting transmission of obscene
or indecent material by means of a telecommunications device (Hudson, 2009). The court held that the
provisions represented a content-based restriction, thereby, in violation of the Free Speech clause of the
First Amendment (Hudson, 2009).
Child Pornography: The Ultimate International Taboo
Theoretically speaking, citizens around the world, except for criminals involved in their exploitation,
would mostly agree that children must not be sexually exploited and that those who prey upon children
for that purpose must be punished to the fullest extent of the law. Nearly every country in the world has
established law prohibiting the sexual exploitation of children with varying degrees of criminal sentences
and accompanying sanctions. Although condemned within nearly every society, the commercial sexual
exploitation of children through pornography, prostitution, and child sex tourism continues with little to
no fear of apprehension, conviction, and punishment from the traffickers perspectives.
Nevertheless, child pornography, regardless of hardcore or softcore, is universally banned and there-
fore, illegal. The US Supreme Court in New York v. Ferber (1982) held that child pornography in any
form is not freedom of expression protected under the First Amendment to the Constitution (Hudson,
2009). The court ruled that the state of New York had a compelling interest in protecting children from
sexual abuse and exploitation in any form for pornographic purposes. In 1990, the Supreme Court went
a step further in upholding an Ohio state law in Osborne v. Ohio, prohibiting the possession and viewing
of child pornography (Hudson, 2009).
Pornography and Transnational Sex Trafficking
What role does pornography, adult and child, play in sex trafficking? The National Center on Sexual
Exploitation (2016) indicated that80% of sex trafficking victims reported that their captors made them
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view pornography to illustrate the kinds of sexual acts that they would need to perform for their custom-
ers. In addition to being compelled to view pornography, victims are repeatedly forced to participate
in the making of pornographic materials, which is intended to be shared with men and women across
the world (National Center on Sexual Exploitation, 2016). Even though adult males can be victims of
sex trafficking and forced to participate in the making of pornographic videos, victims are more likely
to be women and children, both boys and girls who are prepubescent and pubescent. The traffickers use
the victims compulsory participation in pornographic films as a means of psychologically controlling
and blackmailing victims in knowing that those images will likely remain indefinitely in cyberspace
(National Center on Sexual Exploitation, 2016).
One distinctly clear difference between drug trafficking and sex trafficking is that people, namely
women and children can be bought, sold, and used over and over again, whereas a drug no matter how
much you cut it down, can only be stretched so far before the drug in its original or altered state has
been entirely consumed (Walters & Davis, 2011). This is the reason why international organized crime
syndicates keep victims in captivity and under the traffickers complete control. However, what is even
more disturbing is if a girl becomes pregnant, sick, or arrested, she is easily replaceable and expendable
because she is seen as disposable, a damaged product, not as a person, particularly if no longer of use
to the traffickers.
There is no questioning the fact that pornography is a multibillion-dollar industry and is one of the
highest grossing industries in the United States. According to Terry (2013), every second: $3,075.64 is
spent on pornography; 28,258 Internet users view pornography; and 372 users are using search engines
to search for pornographic sites. Approximately 4.2 million websites (12 percent of all websites) with
420 million pages contain pornography and one quarter of all search engine requests are of pornographic
terms (Terry, 2013). The most common system for downloading pornography is through P2P networks,
which are responsible for 35 percent of all pornographic downloads (Terry, 2013).
Though the majority of pornography online consists of adult images, this medium has also allowed
for the escalating distribution of, and access to, child images. Child pornography is conservatively
estimated to generate $13 billion annually; however, since child pornography is illegal, the true figure
remains unknown (National Center on Sexual Exploitation, 2016). Most pornographic images of children
are available through discreet networks or groups, making it difficult to quantify the true extent of child
pornography on the Internet (Terry, 2013).Sexual photos and videos of the women and children in sexual
acts can be sold repeatedly in addition to forcing them into prostitution for even greater financial gain.
Another disturbing fact is that the younger the girls, the more expensive the photos and videos will be,
making the underground world of the child pornography industry one of the most lucrative markets for
sex traffickers (National Center on Sexual Exploitation, 2016). Since most of the transactions for pic-
tures and videos between the traffickers and buyers take place online, traffickers will use the photos and
videos to attract more customers. Much like the traditional marketplace, buyers like to see the product
before they commit to paying for the victims (Allen, 2015).
Pornography, especially when it involves child victims, is in and of itself a distinct subcategory of
sex trafficking. According to an international advocacy group, ECPAT, as many as 1.8 million children
are exploited through prostitution and pornography worldwide (2005). It is estimated that 80% of all
trafficking is for sexual exploitation in which more than 20% of the victims are children (ECPAT, 2005).
Child prostitution, which will be discussed in more depth later in this chapter, occurs when someone,
which in this case are the traffickers, profits from the childs sexual encounters with paying customers.
Child pornography is loosely defined as the representation of a child engaged in actual or simulated
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sexual activities, or any representation of a child primarily for sexual purpose. Since the advent of the
Internet, the sheer volume of online child pornography is enormous and child pornographys anticipated
growth is staggering despite the fact that it is banned worldwide.
Child Sex Tourism: Another area of significant concern is that of international child sex tourism.
Current estimates indicate that traffickers exploit more than 2 million children annually by means
of child sex tourism (CST), which involves deviant and often sadistic individuals who travel from
country to country searching for children recruited explicitly for sexual exploitation and victim-
ization (Pittaro & Normore, 2016). These so-called tourists often reside in wealthier countries and
travel to developing nations that often exhibit largely unbridled government corruption (Pittaro
& Normore, 2016). Traffickers or individuals who assist them by arranging for children to be
rented or sold coordinate and control international travel plans (Pittaro & Normore, 2016).
Simply stated, sex tourism, especially if it involves children, is an incredibly profitable underground
industry that literally spans the globe (Walters & Davis, 2011). Sex tourists that prey upon children
are no different from pedophiles and other sexual predators. Like all child sexual predators, child sex
tourists are motivated and driven by their own insatiable sexual needs at the expense of child victims.
Children in particular are increasingly being trafficked into prostitution and pornography networks that
are associated with criminal syndicates, particularly in countries or regions prone to poverty and civil
instability (Walters & Davis, 2011). Many of these areas are also strife with political corruption engulfed
in weapons and drug trafficking thereby making child sex tourism yet another illicit way to support
criminal operations, jihadism, and corrupt military / law enforcement processes.
The Internets ability to provide unlimited worldwide information contributes to the increase in
trafficking. Anonymity, accessibility, and availability make it the primary means of communication to
coordinate and execute most trafficking operations and fuel the increase and interest in CST (Pittaro &
Normore, 2016). Sex tourists use the Internets massive communicative abilities to exchange sexually
deviant stories; buy, sell, and trade child pornography; and arrange international travel plans to prey upon
innocent victims (Pittaro & Normore, 2016). Additionally, predatory child sex tourists communicate with
other pedophiles and sexual deviants via chat rooms, message boards, peer-to-peer file-sharing servers,
news groups, and illicit websites that cater specifically to CST activities (Pittaro & Normore, 2016). Even
more disturbing is the emergence of cyber-sex densrooms equipped with webcams so pedophiles can
watch live-streamed pornographic feeds of perpetrators abusing children (Pittaro & Normore, 2016).
Pornography as a Training Tool for Trafficking Victims
As briefly discussed, the National Center on Sexual Exploitation (2011) emphasized that pornography
is used as a training tool to groom victims, mostly women and children so that they (the victims) un-
derstand what to do when performing sexual acts. The National Center on Sexual Exploitation stressed
that in addition to pornography serving as training tool for new victims; it is also used to desensitize the
victims to the violence, degradation, and humiliation they will encounter at the hands of their captors
and buyers (2011). The younger victims tend to assume that porn sex is real-life sex and that everyone
is expected to perform this way. In other words, abnormal behaviors and actions become normalized due
to psychological conditioning. This altered sense of reality is not just the commonly held perception of
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trafficking victims but also porn users who become desensitized to the pornographic materials, leading
to the demand for much more violent and degrading acts. Traffickers have capitalized on this cognitive
influence and found that they can make more money and remain anonymous much easier by getting into
the business of creating porn, especially by capitalizing on the vast capabilities and reach of the Internet.
Running a virtual brothel is safer and easier for them than selling girls on the street.
The sexual acts between the prostituted victims and their buyers are often forced then filmed and
photographed so they could be shared elsewhere; therefore, increasing profits. With the undeniable vast-
ness of cyberspace, traffickers are able to connect anonymously with potential buyers using Craigslist,
Backpage and countless other websites, which can become virtual brothels to quickly locate and reel in
victims (National Center on Sexual Exploitation, 2016). In fact, there has been a rapid increase in the
availability of live porn as trafficked women and children are forced to perform on-demand in front of
web cameras as potential buyers and other porn users watch. In short, pornography fuels the global sex
trafficking criminal syndicates by driving the supply and demand for pornography into mainstream society.
Admittedly, the pornography industry is incredibly large, vast, and very powerful and through its very
existence creates the demand for prostitution and trafficking because at its very foundation, pornography
is a form of prostitution and trafficking (MacKinnon, 2005). As a form of prostitution, pornography
inherently fuels the continuous demand for women and children to be sexually exploited and abused,
many of whom are then trafficked to fill that ongoing demand (MacKinnon, 2005).
Conservative estimates range somewhere between 100,000 to 300,000 children are trafficked and
sexually exploited for profit within the United States every year (National Center on Sexual Exploitation,
2011). The United Nations further estimates that two million children worldwide are prostituted in the
commercial sex trade (National Center on Sexual Exploitation, 2011). Pornography therefore serves as
a persuasive and effective marketing scheme for sex trafficking, slavery, and tourism. One of the most
significant and persistent barriers to combating human trafficking is in distinguishing sex trafficking
from prostitution. If an individual is coerced, tricked, or manipulated into prostitution, they are victims
of sex trafficking (MacKinnon, 2005).
The common assumption is that pornography is mostly viewed by adult males, yet Allen (2015)
concluded that by age 10, 32% of children have been exposed to pornography; and 53% of boys and 28%
of girls (ages 12-15) access sexually explicit pornography via the Internet. Pornography of past years
pales in comparison to what is accessible today. Today, the content is increasingly extreme, graphic, and
often violent and degrades and humiliates girls in particular (Allen, 2015). Allen (2015) noted that 88%
of the top-rated porn sites featured physical aggression, 49% verbal aggression, with 94% the targets of
that aggression being female. Allen (2015) hypothesized that the number of free porn sites is fueling
this obsession with millions of visits per day.
Sexting: Much of the research on sexual images of children has focused on the commercial sexual
exploitation of children by adults. However, in the last decade, adolescents have begun creating
self-produced pornography, taking photos of themselves and texting them to friends, known
as sexting, or posting them online, which can draw attention from traffickers (Terry, 2013).
According to Terry (2013), sexting is not exclusive to adolescents, though this behavior is most
prevalent among adolescents and young adults. Sexting has emerged as a common practice among
adolescents and young adults along with the rise in the use of technology generally and peer net-
working in particular (Terry, 2013). The number of teens and young adults who have sexted is un-
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known, and research estimates vary depending on the source and the way in which it is defined and
measured, but it safe to assume that sexting is widespread, based upon surveys of law enforcement
agencies; yet the actual frequency with which sexting occurs is difficult to estimate (Terry, 2013).
Legally, states responses to sexting are still mixed, and there has been no clear response to this behavior
from the criminal justice system (Terry, 2013). In some states, sexting is a registerable sexual offense,
and both the sender of the photos and the recipients who later distribute the images may be charged with
criminal offenses (Terry, 2013). In fact, the sexting victims those whose child pornographic image
was distributed may be charged with crimes that carry the same penalty as the person who distributed
the photos (Terry, 2013). This is a unique type of offense in that the offender in the case may also be the
victim and may be charged with possession or distribution of child pornography (Terry, 2013). In some
states, there is little discretion about the sentences for offenders convicted of child pornography charges;
there are mandatory minimum sentences with no sentence reduction possible.
Therapeutic Jurisprudence as Court Innovation to Manage Human Trafficking
Therapeutic jurisprudence, (TJ) according to Wexler (2016), is the study of the role of law as a thera-
peutic agent. Perlin and Lynch (2016, p. 213) emphasized that the law should value psychological
health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and when
consistent with other values served by the law, should attempt to bring about healing and wellness. As
such, therapeutic jurisprudence takes into account the behavioral sciences by focusing on the laws influ-
ence on the psychological well-being of victims, which in the context of this chapter, human trafficking
victims. Until most recently, the legal process was not concerned with the emotional and psychological
aspects of the law (Wexler, 2016). From this perspective, the imposition of laws can have profound con-
sequences on crime victims. Therapeutic jurisprudence is therefore a framework for asking questions
and for raising certain questions that might go unaddressed (Wexler, 2016). Therapeutic jurisprudence
and its application to human trafficking laws, specifically how the existing laws influence trafficking
victims and how TJ can be a form of Court Innovation is discussed below.
An exceptional resource that would appeal to human trafficking practitioners and scholars for study-
ing therapeutic jurisprudence as it relates to human trafficking would be as a form of Court Innovation.
According to the Center for Court Innovation (2016), criminal justice practitioners are increasingly
recognizing that prostitution is often a form of human trafficking. Therefore, in response, the judiciary
and other criminal justice practitioners are continually developing new legal approaches, other than fines
and incarceration, to address the complexity and adverse consequences that violence, fear, trauma, abuse,
and drug addiction, which tend to keep many prostituted women, men, and children in that lifestyle
(Center for Court Innovation, 2016).
The United States recognizes that prostitution; chronic running away, homelessness, retail thefts,
substance abuse, domestic violence, and other criminogenic factors are potential red flags that the indi-
viduals involved may actually be trafficked victims (Center for Court Innovation, 2016). Sex trafficking
victims in particular share many risk factors, barriers to being identified, and challenges in accessing
help; therefore, by acknowledging this association, US courts can play a vital role in identifying human
trafficking victims, but also in linking them to specialized services (Center for Court Innovation, 2016).
First, US courts must recognize the duality of the victim-defendant. In other words, the individual ap-
pearing in court might be both a criminal victim and defendant. However, upon further investigation, it
130

may be revealed that the criminal defendant is actually a victim who has been forced into this criminal
lifestyle through fear and exploitation by the trafficker (Center for Court Innovation, 2016).
If the courts truly intend to make a positive difference in the lives of trafficked victim, the courts
must begin by acknowledging the terrific influence of chronic victimization (Center for Court Innova-
tion, 2016). Furthermore, the courts must begin to understand the multifaceted obstacles faced by this
special population; create meaningful alternatives to incarceration; and searching for legal dispositions
that support the deferment or dismissal of criminal cases and minimize the shame and stigma associated
with those crimes (Center for Court Innovation, 2016, p. 1). In response, the Center for Court Innova-
tion has devised a comprehensive guide or toolkit for US Courts to use in identifying and responding
to trafficking victims.
By implementing the steps within this systematic guide, US courts will have an opportunity to be true
leaders in the international effort to identify and connect trafficking victims to a variety of therapeutic
resources (Center for Court Innovation, 2016). Taken one-step further, by communicating, collaborating,
and cooperating with community-based government and non-governmental organizations, the judiciary
and other court officials can create positive outcomes for human trafficking victims (Center for Court
Innovation, 2016). As new research and interventions emerges, the US courts must continuously engage
in a process of self-reflection by identifying gaps, strengths and weaknesses in the process, and improve
the training needs of criminal justice practitioners who are intent on helping trafficking victims.
CONCLUSION
Not only does pornography have a detrimental effect on individuals and families, but it clearly been es-
tablished that it is a major factor in global sex trafficking. According to Covenant Eyes (2011), viewing
pornography and gratifying oneself with it ends up short-circuiting the sexual process, thereby creating
a drug-like addiction, which distorts the individuals view on sexuality. Furthermore, It also trains the
mind to expect sexual fulfillment on demand, and to continuously seek more explicit or violent content
to create the same physiological and psychological high (Covenant Eyes, 2011).
In response a number of laws and global partnerships have been introduced over the years to combat sex
trafficking, yet the most significant issue has not been addressed and that is the demand for pornography,
a key ingredient of sex trafficking. According to Westen (2015), the number one sex educator of boys
and young men today is pornography, which is increasingly violent and dehumanizing, and it changes
the way men view women and sex. As long as men are being trained to think that violent, disturbing
pornography is sexually acceptable, an enormous clientele for sex traffickers is being created every day
in homes, college dorms, and apartments across the nation (Westen, 2015).When pornography is the
source of sex education for our generation, the natural outcome is a culture of commercial sex and sex
trafficking (Westen, 2015). In closing, having understood the interconnectedness of pornography and
sex trafficking, we must, as a global society, resolve to acknowledge and accept the clear connection
between pornography and sex trafficking (Westen, 2015). Therefore, it is time to understand the reality
of pornography and act accordingly through education and awareness to reduce the demand for pornog-
raphy, which is fueling the global sex trafficking industry.
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Center for Court Innovation. (2016). Identifying and responding to sex trafficking: A guide for the courts.
Retrieved from http://dev.courtinnovation.org/sites/default/files/documents/DV_SJI_Risk Need_.pdf
Dank, M., Khan, B., Downey, P. M., Kotonias, C., Mayer, D., Owens, C.,... Yu, L. (2014). Estimating
the size and structure of the underground commercial sex economy in eight major US cities. The Urban
Institute. Retrieved from http://www.urban.org/research/publication/estimating-size-and-structure-
underground-commercial-sex-economy-eight-major-us-cities/view/full_report
Hudson, D. L. (2009). Pornography and obscenity. First Amendment Center. Retrieved from http://www.
firstamendmentcenter.org/pornography-obscenity
International Labour Organization. (2016). Forced labour, human trafficking, and slavery. Retrieved
from http://www.ilo.org/global/topics/forced-labour/lang--en/index.htm
Jenkins, J. P. (n.d.). Pornography. Retrieved from http://www.britannica.com/topic/pornography
MacKinnon, C. (2005). Pornography as trafficking. Retrieved from http://pornharmsresearch.com/2015/06/
pornography-as-trafficking/
National Center on Sexual Exploitation. (2011, April). Talking points: Pornography and sex trafficking.
Retrieved from http://pornharmsresearch.com/2011/04/trafficking/
National Center on Sexual Exploitation. (2016). Trafficking within the porn industry. Retrieved from
http://stoptraffickingdemand.com/trafficking-within-the-industry/
Perlin, M. L., & Lynch, A. J. (2016, January15). How teaching about therapeutic jurisprudence can be
a tool of social justice. Nevada Law Journal, 16(1), 209225.
Pittaro, M., & Normore, A. (2016, June 8). International efforts by police leadership to combat human
trafficking. Retrieved from https://leb.fbi.gov/2016/june/international-efforts-by-police-leadership-to-
combat-human-trafficking
Polaris Project. (2015). The facts. Retrieved from http://polarisproject.org/facts
Terry, K. J. (2013). Sexual offenses and offenders: Theory, practice, and policy (2nd ed.). Wadsworth/
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Walters, J., & Davis, P. H. (2011). Human trafficking, sex tourism, and child exploitation on the southern
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Warrick, J. (2016, May). ISIS fighters seem to be trying to sell sex slaves online. Retrieved from http://
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Westen, J. H. (2015, January 28). Want to stop sex trafficking? Look to Americas porn addiction. Retrieved
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edu/depts/upr-intj/intj-o.html
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Section 3
Issues of Workplace and
135
Chapter 9
Sexual Harassment of Women
in Workplace in India:
An Assessment of Implementation
of Preventive Laws and Practicing of
Therapeutic Jurisprudence in New Delhi
Amit Gopal Thakre

ABSTRACT
Therapeutic Jurisprudence is legal conscience seeking for a fully-functional system that involves col-
laboration of sensitized judiciary, academicians and practitioners, working in a congenial environment
which collectively facilitates in healing process of the victim. Similar to the principles of Therapeutic
Jurisprudence, preventive laws too aims for more humane approach with regard to legal matters. In fact,
preventive laws may also be viewed as pro-therapeutic jurisprudence. In a more comprehensive and
treatment oriented legal service system, prevention has to have prominence over healing goals. Laying
emphasis on preventive law does not negate the importance of healing objectives set forth by Therapeutic
Jurisprudence rather preventive laws supplements to the overall aim of enabling healing power of
law. An ideal system would be wherein preventive laws are implemented effectively and therapeutic
jurisprudence works efficiently. This chapter aims to assess the implementation of preventive laws and
practicing of therapeutic justice for victims of sexual harassment in New Delhi, India.
INTRODUCTION
Therapeutic Jurisprudence is legal conscience seeking for a fully-functional system that involves collabo-
ration of sensitized judiciary, academicians and practitioners, working to create congenial environment
which collectively facilitates in healing process of the victim. Therapeutic jurisprudence is personification
of law towards attaining more humane approach. It has emancipated from Wexler and Winicks (1991)
article stating therapeutic jurisprudence as a study of the laws healing potential. Healing has more to
DOI: 10.4018/978-1-5225-2472-4.ch009

Sexual Harassment of Women in Workplace in India
do with fixing inner being, mind and spirit (Zion, 2002). Behind the study of therapeutic jurisprudence
various social sciences are at play in reinforcing knowledge resource to its growth that has happened
over the past few years. In subsequent years, various researches viewed Therapeutic jurisprudence
in Practice from various perspectives. For example, Anleu and Mack (2006) in their study assessed
qualities of Magistrates in practicing of therapeutic jurisprudence in their respective courts. In their
study, the well being of victims was positively linked with job satisfaction of Magistrates. Erez et. al.
(2011) elaborated from victims angle. They are of the view that therapeutic jurisprudence will only be
meaningful if victims participate actively. Similarly, Bain (2013) in her thesis elaborated on practicing
therapeutic jurisprudence with mentally ill offenders.
The practicing of therapeutic jurisprudence has been a matter of lively discussions in various Inter-
national Conferences and academic gatherings alike. Recently, in such similar gathering, Wexler (2014)
metaphorically compared therapeutic jurisprudence with wine and bottles, wherein he stated that legal
framework (bottle) shapes the demeanor of legal actors; police, advocates, therapists and judiciary (which
he compared to wine). He further went on to weave pedagogy of therapeutic jurisprudence by describ-
ing contributions of various social sciences in evolution of therapeutic jurisprudence, exploring various
types of legal framework and finally elaborating on interaction between therapeutic jurisprudence and
legal framework. In practice, therapeutic jurisprudence has been acknowledged and suitably adopted
across various Criminal Justice Systems of the world. Globally, therapeutic jurisprudence has not been
mainstreamed yet in conventional courts but it has been employed by few countries in specialized treat-
ment courts. For example, 102 Mental Health Courts in North America roped in physicians and social
service providers along with legal actors for dealing with mentally ill accused persons (Schneider, et.
al., 2007). These Mental Health Courts are inspired from 2, 600 Drug Treatment Courts working across
US which placed more emphasis on rehabilitation than punishment. In these drug courts, treatment
committees are established with judge as its member. The follow up empirical researches showed that
recidivism rates of drug cases in US dropped significantly (Goldkamp, 1994). Similarly, the domestic
violence courts are also working in tandem with the principle of therapeutic jurisprudence to restore
family bonds in more humane way (Fritzler & Simon, 2000).
Similar to the principles of Therapeutic Jurisprudence, preventive laws too aims for more humane
approach with regard to legal matters. In fact, preventive laws may also be viewed as pro-therapeutic
jurisprudence. In a more comprehensive and treatment oriented legal service system, prevention has to
have prominence over healing goals. Laying emphasis on preventive law does not negate the importance
of healing objectives set forth by Therapeutic Jurisprudence rather preventive laws supplements to the
overall aim of enabling healing power of law. An ideal criminal justice system would be wherein preven-
tive laws are implemented effectively and therapeutic jurisprudence practiced optimally. The objective
of the chapter is to assess the implementation of preventive laws and practicing of therapeutic justice
for victims of sexual harassment in New Delhi, India.
BACKGROUND: INDIAN SCENARIO
In India, criminal procedure initiates with First Information Report followed by investigation, arrest and
trial in court. This whole criminal procedure is synergy of efforts between police (investigation), advocates
(professional pleader) and judiciary (passing fair verdict). As per World Justice Project Report of 2015,
136

India was ranked at 59 from total 102 countries in terms of quality of justice delivered. The WJP report
poorly rated Indias manpower resources devoted for criminal procedures. The same has been resonated
in report of UNODC, 2013, where, in terms of police to public ratio and staff allocated per unit area,
India ranked 67 out of 71 countries. The same situation applies to judicial system of India. Seemingly,
the situation is abysmal. Understaffed law enforcement, judges1 and heavy backlogs in courts tend to
have repercussions on efficiency of justice delivery mechanism. Also, looking back, the practicing of
therapeutic jurisprudence in India is limited to the accused, sidelining the rights and wellbeing of victim
in the process (Halder, 2015). In such scenario, the quality of criminal procedures also tends to suffer
adversely. The question arises, whether the healing process of victims is being compromised under the
pressure of clearing up of backlogs? Keeping view of the above grim situation, this chapter aims to
understand the healing nature of criminal justice for the victims in India. To narrow down the study,
secondary data source containing perceptions of the victims of sexual harassment and judiciary from
New Delhi region will be taken, analyzed and discussed to understand the implementation of preventive
laws and the extent of practicing of therapeutic jurisprudence in court of law.
The Nirbhaya Case (Gruesome rape and murder of a Physiotherapy student), December 16, 2012,
New Delhi reformed law by doubling the imprisonment term and criminalized the potential precursors
of sexual harassment incidents such as voyeurism and stalking. Also, the Indian Government, in order to
protect working women against sexual harassment enacted the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013. The Act also provisions for complaint and redressal
mechanism. In furtherance to it, the Ministry of Women and Child Development of Government of
India published a handbook on sexual harassment of women at workplace (prevention, prohibition and
Redressal) Act, 2013 published in November, 2015. The handbook is published for perusal of employers/
institutions/ organizations/ internal complaints committee/ local complaints committee for their practical
purposes. As per latest National Crime Record Bureau report of 2014, for all India, there were reportedly,
21, 938 incidences, 22, 019 victims with crime rate2 of 3.7. Whereas, New Delhi has the fourth highest
number of crime against women among all the State and Union Territories in India (29 States & 7 UTs).
As per NCRB Report, 2014, there were reportedly, 1186 incidences and victims of sexual harassment
in India. The crime rate of sexual harassment against women in New Delhi is 13.1 at present, which is
highest in the Country. As per a recent study in New Delhi,3 40 percent of women respondents reported
of facing sexual harassment in last one year at public place. The fear of being sexually harassed was
widespread among respondents and this was evident by the fact that 33 percent of respondents prefer to
avoid public places and 17 percent left their jobs due to facing sexual harassment at workplace (Madan
& Nalla, 2016). In other such similar recent survey, it was found that 33 percent of Indian Corporation
and 25 percent of Multi National Corporations in India were not adhering to the Sexual Harassment Act,
2013 (Panday, 2015). The implementation of laws in letter and spirit continues to remain a Herculean
task for the Government of India. Despite all these serious lacunas, this chapter aims to understand how
therapeutic is jurisprudence practiced in cases of sexual harassment cases against women in New Delhi.
This chapter consists of three parts. The first part is an assessment is made of implementation of
preventive laws in New Delhi. In the second part, a critical analysis of preventive aspect of Sexual Ha-
rassment of Women at Workplace Act, 2013 was done. The third part deals with solutions and recom-
mendations are given in terms of practicing of therapeutic jurisprudence in New Delhi. Further the rule
of law, legal procedures and the role of legal actors were also examined.
137

1. ASSESSMENT OF IMPLEMENTATION OF PREVENTIVE LAW
India ratified UN treaty on elimination of all forms of discrimination against women on 25th June, 1993
and in order to give effect to a domestic legislation the Sexual Harassment of women at workplace (pre-
vention, prohibition and redressal) Act, 2013 was enacted. The Act consists of eight chapters. Chapter
one covered definitions. Chapter two and three covers constitution of internal complains committee and
local complaints committee respectively. Chapter four and five covers complaint and inquiry. The du-
ties of employer are covered under chapter six whereas duties and powers of district officer are covered
under chapter seven. The eighth and last chapter is titled miscellaneous.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013
was institutionalized by the Parliament of India in December 2013. The Act aims to protect working
women. As per the Act, sexual harassment includes unwelcome acts or behavior (whether directly or
by implication) such as physical contact and advance, a demand or request for sexual favors, making
sexually colored remarks, showing pornography or any other such behavior. The need for such protection
from sexual harassment in India aroused due to 21st century upsurge in women joining workforce within
the social premises of patriarchal background. The Act mandates for all organizations with minimum
10 employees or more to establish an Internal Complaints Committee, to organize workshops and ori-
entations programs and enable Grievance Redressal Mechanism. Further to this, the employer needs to
provide support, requisite relief to the victim and act on the inquiry report from complaint procedure
within 60 days. The Act is further supported by the section 354 (A, B, C & D) of the Criminal Law
Amendment Act, 2013.
The preventive aspect of the Act is illuminated under chapter five wherein internal complaints com-
mittee or local complaint committee may recommend to the employer to provide protection to the ag-
grieved employee against any further harassment. Chapter Six and Seven states duties of employer and
district officer respectively. As a proactive measure, section 19A mandates employer to provide a safe
working environment, 19B states for displaying information charts in office on penal consequences of
sexual harassment, 19C necessitate for organizing workshops, awareness and orientation programmes at
regular intervals. Section 20 states that the District Officer shall engage NGOs for sensitization of all the
stakeholders on prevention of sexual harassment and rights of women. However, despite all the preventive
provisions, the recent surveys in New Delhi (as mentioned above in section B of this chapter) conducted
on respondents for understanding the extent of sexual harassment of women; it was found that there is
widespread fear of crime. There is a subculture of taking things for granted in working environment
for women in New Delhi where in employers have adopted reactive rather than proactive policies with
respect to the issue of sexual harassment. The employers in New Delhi are not considerate of ensuring
safe working environment, majority of workplace in New Delhi have not displayed information charts
regarding prevention of sexual harassment, seldom has the management board organized awareness/
sensitization/feedback programmes for employees. In absence of any monitoring body on governments
part, this clearly signifies poor implementation of preventive provisions prescribed in the Act.
In the landmark judgment of Vishaka vs State of Rajasthan (1997)4 given by the Supreme Court of
India and in the handbook on sexual harassment of women at workplace by Ministry of Women and Child
Development, both emphasized on prevention rather than punitive measures. The handbook suggested
that recognition of difference between welcoming and unwelcoming behavior is the first step to prevent
sexual harassment. This point towards sensitizing masses through conducting programmes at regular
intervals. The question arises, despite adequate proactive and preventive measures enshrined in the Act,
138

why the cases of sexual harassment against women are increasing? This needs to be investigated on the
ground level. Certainly, the anomaly lies in the poor implementation of the Act by the government and
the exact reasons could only be located in case laws and research studies covering various factors under
the purview of preventive law.
2. CRITICAL ANALYSIS OF PREVENTIVE ASPECT OF THE

SEXUAL HARASSMENT OF WOMEN AT WORKPLACE
(PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
1. Internal Complaints Committee (ICC): The ICC seems to have a discriminatory penal scheme
wherein the punishment is accorded as per the position of the perpetrator in the organization. This
creates scope for senior executives to moderate ICC sanctions to their advantage. The current pe-
nal scheme of the ICC does not seem to have an all round and distinct preventive effect on sexual
harassment at workplace.
Section 24 clause (b) of the SHWWP Act, 2013, states on formulation of training programmes for mem-
bers of local complaint committee by the appropriate government but theres no provision for orienta-
tion for members of Internal Complaint Committee. Majorly, ICC comprises of members without legal
background, the disposition from such committee may not always be just and fair. An ill-equipped ICC
shall not be able to prevent sexual harassment effectively.
Another major issue is that a large chuck of workforce is in private or unorganized sector. The manag-
ing board of such organizations are not investing time, training and resources in establishment of ICC or
adhering to the guidelines issued by the Supreme Court of India. Such reluctance weakens the impact of
preventive measures for sexual harassment and makes the workforce of private sector more vulnerable.
2. Duties of Employer:
a. To Provide Safe Working Environment: The Act failed to have preventive impact on some
of the male dominated profession. For instance, women working in agricultural sector and
armed forces are out of the ambit of the Act. It is especially in conventionally male dominated
profession where women workers need greater protection. Despite being a very specific Act,
covering prevention of sexual harassment of women at workplace, it has failed to protect all
women workers alike.
b. Display of Information and Conducting Workshops, Seminars, Conferences: For awareness/
sensitization.
Justice Verma Committee Report (2013) stated, the source of effective prevention of sexual harassment
is an enlightened employer. Apart having a functional Internal Complaints Committee in the organization,
the employer shall also proactively raise the issue, emphasize on disapproval of unwelcoming behavior
by all the members of organization, timely refine the sanctions internally to prevent reoccurrences of
incidents, spread awareness and sensitize employees.
There is a lot of proactive approach expected from employer part by the SHWWP Act, 2013, to
realize the effect of preventive law on ground. Being the Countrys capital and close to the ministries
and central government, the employers of New Delhi shall demand and utilize the resources to set an
139

example for other states to follow an effective crime preventive approach towards prevention of sexual
harassment, irrespective of government or private sector.
The legislation does not offer any better therapeutic effects at present. As pointed out by Halder
(2015), for the law to be pro-therapeutic there has to be usage of behavioral science in consistency with
legislation. This factor is ignored, summarily in the legislation. Hence, theres reduction in the scope
for improvement in victims psychological wellbeing. The room for discriminatory penal schemes and
lack of orientation programs of ICC (as discussed above), ignoring private/unorganized sector and lack
of monitoring of the responsibilities endowed on employers, cumulatively, makes the legislation anti-
therapeutic in nature.
3. SOLUTIONS AND RECOMMENDATIONS: PRACTICING

OF THERAPEUTIC JURISPRUDENCE
Wexler (2014) stated that practicing of therapeutic jurisprudence shall give a greater sense of legitimacy
of criminal justice system to both victim and offender5. Practicing of therapeutic jurisprudence to its
optimum shall require phase wise planning and implementation of TJ techniques, training of all the
legal actors involved in the process of TJ and finally bringing in the required legal reforms to enable an
amicable environment for practicing of TJ. The practicing of therapeutic jurisprudence can be divided
into three broad aspects (Wexler, 2014), which are enumerated as under:
1. Rule of Law: There is no specific mention of therapeutic approach in the Sexual Harassment of
Women at Workplace Act, 2013 as a remedial measure for psychological healing of the victim. This
negligence of victims wellbeing on part of legislation6 makes the Act anti-therapeutic in nature.
The Act failed to address the healing of victim issue and there is an emergent need to amend the
Act further to incorporate essence of therapeutic values in it.
2. Legal Procedures: Justice Lodha elucidated the need and importance of therapeutic intervention
while dealing with victims of sexual offences. His propositions were strongly supported by Justice
Verma in report stating that apart justice, the CJS shall ensure that victim needs to be healed psy-
chologically as well. The sole purpose of ensuring psychological therapeutic intervention is to
restore sense of self-affirmation in the victim. Halder (2013) furthered the importance of the need
of care giving7 to the victims of digital media crimes.8 The legal procedures shall be executed by
all the involved actors of justice system in such a manner that shall ensure victims psychological
wellbeing at all stages of case proceedings. One of the suggested ways is the practice of adopting
victim impact statement (VIS).9 It shall be recognized and promoted at all levels of judicial hier-
archy in India because this will ensure judges in delivering fair and just sentences by considering
the extent of harm suffered on victims part (Erez, 1999).
Another important factor is need for speedy justice. Speedy justice has been a constant part of criti-
cal literature addressing need for CJS reforms but it has become all the more necessary to embrace it,
especially in case of realizing therapeutic jurisprudence. Speedy justice shall enhance efficacy of law
that is also going to impact prevention of sexual harassment positively10.
Form the research point of view, the assessment of quality of therapeutic jurisprudence shall be mea-
sured right from the point a victims interacts with the police till the whole process of criminal justice
140

system terminates. This shall also cover prevention of re-victimization.11 The gaps and vulnerable points
for victim shall then be corrected to improvise future legal proceedings for better practice of therapeutic
jurisprudence. This would require a synergy of efforts between researchers, legal actors and law makers.
3. Role of Legal Actors: The quest of legal actors for winning the case by solely relying on legal
analysis often ignores the aspect of negative emotional consequences faced by the victim in the
long run (Korobkin & Guthrie, 1997). Also, the existing criminal justice system often detach vic-
tim from case proceedings which further aggravates secondary victimization. The victims active
participation12 and inputs at all the levels of criminal proceedings are important to facilitate their
healing. It is in the hands of legal actors to ensure prevention of secondary victimization. The mode
of operation of legal actors should be such that all that could happen to the victim is healing and
increased wellbeing.
Enlightening on the role of legal actors in Indian context, Justice Verma Committee Report (2013)
stated that people trusts police in prevention and investigation of offences. There is a need for restruc-
turing of policing strategies. The highhandedness of police force needs to transform to become more
of a friendly service with seeming Constitutional values and moral vision at its core of functioning. It
could be stated here that being friendlier on part of police is the first step towards adopting TJ on the
long haul. Apart police, Justice Verma Committee also recommended concerned state authorities to
rehabilitate victims of sexual abuse/exploitation with the help of psychotherapeutic intervention, pro-
viding education and re-uniting with family. All these steps are meant for healing and re-integration of
victim back into the society.
The conventional form of victims interview conducted by the police officers does not factor in the
psychological healing of the victim. The main motive of police interview being information collection,
which often leads to secondary victimization due to pressure and tension involved in the interview. This
adds to the victims torture arisen from crime. Fisher and Geiselman (2010) in their study proposed an
idea of conducting cognitive interview of victims by the police. The cognitive interview aims for healthy
information gathering technique. It not only helps in effective memory retrieval but also considers for
victims psychological health. Although, here, it may also be considered by the police, psychologists
and other legal actors involved, that in few cases cognitive counseling might not yield complete retrieval
of the incidents from the past because the trauma caused by sexual violence may lead to dissociative
amnesia13. There are clinical settings under creative psychological therapies (Somer, 2004) (like sculp-
turing and painting) that allow the victims to express even suffering from dissociative disorder but these
psycho-legal methods are yet to be mainstreamed in contemporary criminal proceedings of sexual assault
cases. If services of such psychological therapies are left unused, then the victim would certainly have
to undergo secondary victimization when he/she is forced to reiterate whole incidence during the police
interrogation or cross-examination in the court of law.
A sense of expressing feelings and trauma by the victim to the legal actors shall prevent post traumatic
stress disorders among victims (Shebar-Shapira, 2007). A traumatized victim may not be able to heal
properly even in a therapeutic setting (Coombs, 1993). In such situations, there has to be enough space
for allowing victim to unwind information as per their emotional ability. The process of patient listening
to the victims ordeal is very crucial in therapeutic setting.
The Delhi Bar Association shall consider emulating the American Bar Association (ABA), wherein
to meet its new standards, ABA laid greater emphasis on teaching of therapeutic jurisprudence and
141

preventive laws to its lawyers (considering the demand of evolving legal practice in conjugation with
modern times). Winick (2005) further enlightened on the set objective of ABA by stating that, in order to
keep up the pace of lawyers role with transforming of law, more humanistic approach with therapeutic
jurisprudence and preventive laws shall be practiced in resolving legal issues. It shall mean that the new
framework of law practice shall embrace the ethics of care towards victims and their wellbeing.
Psycho-legal counseling is another novice method, practiced by Jananeethi14. Agger et. al. (2008)
analyzed the rehabilitation abilities of psycho-legal counseling and found that it is therapeutic in nature.
This counseling method involves phase wise execution of counseling technique starting from approaching
victim with care, spending time with survivors of torture for building rapport, educating victims about
legal mechanisms and telling them how could it help to get them justice. In another such similar tech-
nique, Patry et. al., (1997) proposed an idea of practicing rewind exercise as a psychological tool from
prevention perspective. The client and lawyer together reconstruct the whole situation psychologically
and imagine what could the victim have done to avoid the problem or deal with it more effectively?
The lawyers approach under this ideology is always to negotiate, settle and prevent re-occurrences of
the problem. The lawyers working at all the level in New Delhi shall be trained and motivated to take
up such similar psycho-legal counseling techniques and make a positive difference.
CONCLUSION
Taking the Wexlers idea of therapeutic jurisprudence comparison to wine and bottle to another level,
the author of this chapter intends to highlight the importance of Carton. Carton support and protect
wine bottle. An appropriate carton will effectively help in minimizing harm to the wine bottle. Similarly,
the process of therapeutic jurisprudence in court of law needs support from the framework of CJS. The
carton here is made of a fiber matrix where each fiber is entangled strongly and holds the whole structure
intact. These fabrics represent effective implementation of preventive laws,15 strong information sharing
between the health experts and court, maintenance of confidentiality of victims identity, committed
and regular involvement of all the stakeholders in relation to victims progress with the trial. In order
to improvise the implement of preventive laws and practice therapeutic jurisprudence in New Delhi, all
the stakeholders need to consider the above mentioned factor seriously.
Therapeutic jurisprudence calls for sensitized attorney and client relationship and this shall be achieved
through greater psychological applications, enhanced soft skills, cognitive counseling techniques and
delicately handling emotional aspects of victim that are encountered during legal process.16 The need for
overall makeover of criminal justice system was also resonated in Rosenbergs (2008) study in which he
has strongly suggested for shaping our existing criminal process by the hands of therapeutic jurisprudence
to meet the demand of greater need for humanization of legal procedures. Wexler and Winick (1996)
suggested that looking at all the legal issues through the lens of therapeutic jurisprudence shall help in
shaping up the law in a manner which shall be practically become a healing mechanism.
Finally, a well balanced combination of effective implementation of preventive laws and practicing
of therapeutic jurisprudence shall comfort existing fallacies in operation of law. There are some empiri-
cally tested precursors17 of therapeutic jurisprudence that can be used in designing rehabilitative process
such as electoral reforms for electing lawmakers with impeccable integrity, sensitive police, medical
142

ethics, minimal court pendency, advocate perspective, etc and more of such significant variables need
to be identified through intense research with an aim to formalize therapeutic jurisprudence in Indian
laws and court proceedings.
LIMITATION AND FUTURE RESEARCH DIRECTIONS
The present chapter assessed Sexual Harassment of Women at Workplace (Prevention, Prohibition &
Redressal) Act, 2013. Similar other policies and related laws are not examined in terms of their preven-
tive and therapeutic value for the victim. This aspect may be examined by future researchers who are
interested in propagating the idea of TJ in Indian context. Also, this chapter is based on secondary source
of data,18 for more appropriate information on ground realities, case study method for collecting data
from victims and judiciary shall yield valuable findings.
The present chapters discourse is restricted to victims situation in terms of implementation of preven-
tive laws and practicing of therapeutic jurisprudence. The class of offenders and their court involvement,
therapeutic jurisprudence impact on offenders conduct and offenders response to preventive laws and
therapeutic jurisprudence is not addressed. Future studies may factor in offenders aspect as well for
giving the practicing of therapeutic jurisprudence a holistic perspective.
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ENDNOTES
1
As on May, 2016, there are 6 vacancies in Supreme Court and 433 overall in the High Courts of
India.
2
Crime rate is incidences of Crime per Lakh of Population.
3
Mathur (March 29, 2016). 40 per cent Delhi women faced sexual harassment in past year: Study.
Published online in International Criminal Justice Review.
4
AIR 1997 Supreme Court 3011.
5
When offenders inputs are also solicited to accept the sanctions imposed on him/her in form of
community service.
6
In the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013, section 15 mention about compensation to be decided by the internal complaints committee
with regard to trauma, pain or distress caused to the victim. There is no mention about ensuring
counseling/psychological healing or victims wellbeing. The Act is silent on therapeutic approach
towards victim of sexual assault.
7
Apart legal actors, the care givers consists of a team of NGOs, Researchers, Activists and Acade-
micians.
8
Halder (2013) suggested that for ensuring therapeutic procedures there shall be optimum utilization
of e-governance portals for better reporting of cyber crimes. These two concepts of e-governance
and cyber crime are very much contemporary. The ills of cyber crime can very well be addressed
through the huge intervention potential of e-governance.
9
A document furnished before judge, at the initial phase of trial, illustrating on physical, psychologi-
cal and financial harm caused to the victim due to the crime (Ashworth, 1993).
10
Speedy justice shall clear up the backlogs of cases pending in courts and will enable judiciary and
law makers to channelize resources in training of legal actors and help establishing and developing
infrastructure for prevention of sexual harassment.
11
A victim notification system similar to the one practiced in United States shall be emulated in India
as well.
12
Allowing victims to voice their opinion shall give them a sense of justice by expressing the wrong
happened to them (Coombs, 1993).
13
Forgetfulness or inability to remember/express personal details due to trauma.
14
A human rights organization in India that supports victims of torture to get healed by providing
legal aid and counseling.
15
To have a more distinctive preventive effect, the ICC needs to adopt more proactive role rather
than functioning solely as a grievance redressal mechanism. This may involve regular and random
interactions with all the employees of the organization and making surprise visits by patrolling
organization at regular intervals.
145

16
Emotional aspects of victim during legal process are also referred by Winick (2005) as psycholegal
soft spots (PSS). These PSS are specific situations that tend to arouse highly negative emotional
reactions in victim. The solution lies in understanding victims perspective, his/her needs & interests
and then acting accordingly.
17
As suggested by Topp (2002) that therapeutic jurisprudence shall not be embraced blindly by the
decision makers, rather academicians should empirically evaluate select few initiatives, compre-
hensively and then go ahead in phased manner.
18
Other important variables such as qualities associated with therapeutic jurisprudence approach in
Magistrates could not be covered.
146
147
Chapter 10
Procedural Remedies as
Continuing Violations and
as Best Practice to Prevent
Workplace Harassment
in the United States
Marta Vides Saade
Ramapo College of New Jersey, USA
ABSTRACT
The well-being of adversaries and witnesses participating in workplace gender and sex discrimination
actions filed under federal and state laws in the United States is generally not considered as important.
These actions are typically initiated within the personal workplace where the offending conduct pre-
sumably occurred, and proceed in an already tension filled atmosphere. The effect is that the procedure
itself becomes an additional violation harming claimants through overt and micro-aggressions. These
practices have focused on rule not relational principles. Conventional law and policy frameworks
inadequately address the harms these processes promote. This chapter will move from the limitations
of rights-based regulation to a jurisprudence of imperfect obligations and vulnerability, incorporating
therapeutic understandings of needs and relationships, as the more inclusive and equitable foundation
of institutional practices. It offers best practices models in therapeutic jurisprudence as alternatives
to resolve workplace conflicts.
INTRODUCTION
In the United States, people are protected by law from workplace race and sex harassment, including
by a body of federal statutes within Title VII of the Civil Rights Act of 1964 (Title VII), as well as by
state laws which, in some instances, expand federal protections and restrictions by what are known as
no tolerance provisions. Since 2012, the federal standards have been applied in cases involving gender
DOI: 10.4018/978-1-5225-2472-4.ch010

Procedural Remedies as Continuing Violations and Therapeutic Jurisprudence as Best Practice
identity, change of sex, and/or transgender status. These classes of workers have been generally considered
statutorily protected by Title VII as in, for instance, the Equal Employment Opportunity Commission
(EEOC) decision in Macy v. Holder Appeal No. 0120120821 (Apr. 20, 2012). Recent literature evidences
an emergent tension between the resolutions sought in workplace harassment claims made by women
and those fashioned in the contexts of the more recent claims made by transgender persons. Many of
the latter claims are rooted in the argument that the aggrieved belongs to two protected classes: sex and
gender. These claims are also making clearer the deficiency of remedies based solely on rights-based
practices rather than those based on therapeutic best practices.
International Impact of Adequacy of Remedies for

Workplace Aggression and Micro-Aggressions
The challenge of adequate remedies in dealing with violence against women is illustrated by the decades-
long revisions necessary to the Violence Against Women Act (VAWA). Implemented in 1994 as a federal
model statute in the United States, its purpose was to fund programs at the local level that would address
domestic violence against women. The term domestic violence is defined by VAWA by reference to
felony or misdemeanor statutory designations as violence committed by a current or former spouse or
intimate partner of the victim (VAWA, 2005). VAWA was lauded for facilitating the implementation
of mandatory arrest provisions that changed the way local law enforcement responded to reports of
domestic violence by allowing officers to use their professional judgment and observation to remove
the perpetrator from the situation regardless of the ambivalence of the abused person, based on the of-
ficers assessment of probable cause that violence occurred. The idea was to address the Post Traumatic
Stress (PTSD) of the victim in being fearful of causing more harm to herself by using legal action to
stop the violence, as well as to address ambivalence caused by economic effects due to removal of the
income-earner from a household. Funding through VAWA was made contingent on reports of manda-
tory arrest. And yet, over time, this proved to be a flaw because the impact of the law on the emotional
and psychological well-being of the parties was not considered. In a survey mining Federal Bureau of
Investigation Uniform Crime Reports from 1976 to 2003 in all 50 states, and the District of Columbia,
research demonstrated mandatory arrest laws increased intimate partner violence and homicide by 60%.
While the rate of women killing their partners dropped by 40% between 1995 and 2008, the rate of men
killing their women partners only dropped 7% for the same time period (Iyengar, 2007). Over time, the
absence of explicit protections for men as victims was addressed by current gender neutral language of
VAWA. The silence as to same sex domestic violence was remedied in the wording of the 2013 reautho-
rization of VAWA. Yet measures for funding remain based on legal sanctions, and the interests related
to well-being remain undervalued.
As of 2015, Amnesty International has been advocating for an International Violence Against Women
Act (IVAWA), also designed to create a permanent framework for local country funding by the United
States. Like VAWA it prioritizes women, although includes men and boys as victims. It addresses physical
and sexual violence, as well as other harmful practices such as honor killings. female genital mutila-
tion, and human trafficking. In the United States, this IVAWA proposal has been stalled in legislative
committees (Amnesty International, 2016). Like VAWA, it prioritizes legally enforceable sanctions to
protect human rights, and yet leaves local custom, cultural norms and human well-being unaddressed
Title VII protects women against biased behavior in the workplace that is based on their gender or
sex, without examples of such behavior. Like VAWA, Title VII procedures and remedies leave human
148

well-being unaddressed. The international applicability of Title VII remains in flux. The international
inapplicability of Title VII was decided upon by the United States Supreme Court in EEOC v. Arabian
American Oil Co. 499 U.S. 244 (1991), in a case considered by the highest court of the land arising from
the Fifth Circuit District Court. A divided United States Supreme Court (6:3) held that Title VII did not
apply extraterritorially. And yet, the Equal Employment Opportunity Commission (EEOC) takes the
position that Title VII applies extraterritorially, and all regional offices, except in the Fifth Circuit, adhere
to that position (Bellace, 1991, 2 note 2). In its enforcement policy document of October 20, 1993, which
remains in effect until rescinded or superseded, the EEOC makes agency guidance explicit. It applies
extraterritorial applicability of both Title VII and the Americans with Disabilities Act to American and
American-controlled employers abroad. It further prohibits the discrimination prohibited under each of
these statutes by foreign employers within the United States (EEOC, 2016, Enforcement Guidance on
Application of Title VII and the American with Disabilities Act to Conduct Overseas and to Foreign
Employers Discrimination in the United States). In light of the contemporary global economy, as well
as the emergence of employer emphasis on internal social responsibility, any gaps in Title VII procedure
that perpetrate continued violence against women either overtly or through micro-aggressions, must be
considered so the wrong may be righted at an international level.
The Title VII Process
Administrative procedures in gender harassment cases have, more often than not, been structured to
protect employers from any or further liability for their institutional practices, and not to foster healing
of the aggrieved, of others affected by the process, or of the workplace environment itself. While the
process allows employees to select other remedies, those choices present uncertainty for the employee
that has been described as hall of mirrors (Belt, 1995, p.149). The actions that are defined as harass-
ment do not include ambiguous interactions that might be considered micro-aggressions which function
to make daily work life stressful and harmful. Title VII includes a cumbersome claims process that may
foreclose other options due to mandatory arbitration. Recovery of damages against employers is subject
to a statutory cap limiting financial liability (Ehrenreich, 1999, 64 n. 21). The subsequent well-being of
the parties is not generally considered essential to the resolution of the conflicts in either federal EOC
actions or their state counterparts.
The seeking of legal protections commences procedurally at the administrative level within the
workplace upon the filing of a complaint. A fact finding investigation is usually undertaken by an officer
or an office authorized by the institution to conduct it. According to most institutional protocols, these
investigations are supposed to be conducted within the strictest cloak of confidentiality. That protocol
is designed to protect the aggrieved, to be sure, but it raises the issues of prejudices to the due process
rights of disclosure and the right to be heard on the part of the accused. The opacity of the process is
uncharacteristic of the adversarial common law legal system prevalent in the United States in its lack
of transparency to the parties.
This context for many of the remedies offered by Title VII is based on the written allegations made
in the complaint by the aggrieved party, the response by the party accused, and the witnesses or other
collateral evidence that might exist on either side. These pleadings and answers are filed with the insti-
tutional hearing officer and are never provided to the parties purportedly to preserve confidentiality.
Parties and witnesses are prohibited from discussing the matter, even to some facts to which they might
agree. The stress and divisiveness of this secretive, adversary, process quickly erodes trust, not only
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between the complainant and respondent, but among all other persons involved as witnesses or observ-
ers. Administrative actions attempt to proceed to resolution by primarily being focused on whether the
employer took actions to prevent the harm alleged, and not on promoting the harmony of the workplace
or the health of the participants.
The social distribution of an emphasis on rule orientation, and the information correspondingly
excluded by this approach, creates a gap for women participants when considering their relational ori-
entation. What is excluded from consideration are alternative ways of knowing and the effect it might
have on the continuing iterative work-related relationship. The voices of women are simply not heard.
The rule orientation in Macy interpreted Title VII gender discrimination as including transgen-
der discrimination. Further, the emerging legal developments of same sex marriage currently strongly
suggests a trend of attributing to these protections a Constitutional status in spite of the absence of any
decisive pronouncement of such status by the courts. The conflation of the legal decisions regarding
these same sex issues of lesbian, gay, and bisexual people with transgender workplace issues tends to
blur the authority of the sources in which these legal issues are rooted.
The doctrinal authority for Constitutional privileging of gender-related issues generally remains an
open question. Yet, it is worth noting that, to the present day, the rights of women have not been held to
be rooted in the Constitution, but have instead been statutorily created. Women are not yet among con-
stitutionally protected classes of people. Of course, the trend to a dominant rule orientation, which many
argue is rooted in Constitutional authority, for same sex and transgender rights, creates a corresponding
responsiveness on the part of the employer to seek to avoid legal liability without statutory guidance.
The argument has been made with greater frequency that this jurisprudential approach excludes women
and renders their status subordinate by law to newly emergent classes of people seeking protection when
no clear jurisprudential standards have been established.
Rights-based procedural remedies similarly discourage employers from adapting policies, proce-
dures, and best practices to bridge the gaps among competing interests that of the employer being
absolved of legal liability, that of the distresses of the aggrieved employee and others, and as well as
that of promoting the harmony of the workplace. Indebted to Onora ONeill, the author acknowledges
the Kantian foundation of rights-based procedures, and retrieves the notion of an imperfect obligation,
that includes nonreciprocal obligations based on our vulnerability and need, as the basis for a model of
best practices in approaching workplace discrimination because of sex and other categories included
in Title VII. A jurisprudence based on this full understanding of the Kantian imperative that a person
should act only on that maxim through which you can at the same time will that it should become a
universal law (Kant, 1956, 331-337) provides a more thorough understanding of the scope and limits
of rights and obligations. That understanding is consistent with the interdisciplinary understandings of
therapeutic jurisprudence based on relational psychology. Substantive theories of law based on privacy
rather than rights might also provide for a more inclusive view of remedies.
Therapeutic Jurisprudence as Best Practice
This chapter will present the framework of therapeutic jurisprudence (TJ) as a lens through which to
examine the scope and limits of Title VII procedural and substantive regulation. The author introduces a
jurisprudential bridge between TJ and mainstream jurisprudence to sustain a TJ approach. The background
of Title VII will include the history of actionable discrimination because of sex, the micro-aggressions
that elude remedy, as well as the harm cause by no tolerance enforcement of non-actionable behavior.
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The interstitial spaces where Title VII concerns of race, gender identity, and sex converge will reveal the
urgency for adoption of meaningful procedures and substantive remedies that do no harm when work-
place discrimination involves identity interests which differ in their legal and societal primacy. Finally
TJ models as best practices for approaching discrimination because of gender and because of sex that
promote harmony in the workplace are presented.
Therapeutic Jurisprudence: As if People Mattered
David Yamada proposes a relationship between employment law and therapeutic jurisprudence rooted
in human dignity. He cites David Wexlers definition of therapeutic jurisprudence as the study of the
role of law a therapeutic agent by focusing on the laws impact on emotional life and psychological
well-being (Yamada, 2009, p. 547). In considering what Title VII employment protections need in
order to be effective in a healthier and kinder way, it is necessary to heed the words of Michael Perlin:
Therapeutic jurisprudence recognizes that substantive rules, legal procedures and lawyers roles may
have either therapeutic or anti-therapeutic consequences and questions whether such rules, procedures
and roles can or should be reshaped so as to enhance their therapeutic potential while preserving due
process principles (Perlin, 2000, pp. 407-408).
The author is encouraged by Professor Yamadas invitation to jurisprudential analysis (Yamada,
2010, p 288) to suggest a bridge between traditional mental health law scholarship and mainstream jur-
isprudential analysis. Both the articulation of human needs, and relational psychology offer welcoming
starting points for how dignitarian principles can be applied to future employment law scholarship and
advocacy (Yamada, 2009, p. 523), as well as to therapeutic jurisprudence. While Professor Yamadas
concern to ameliorate the malicious harm of wrongful workplace behavior and the trauma of long-
standing, sometimes unresolved legal actions by training the individual actors, this author examines the
possibility of adjusting the systemic gaps.
Maslows hierarchy of human needs informs the necessary elements for healthy workplace. These
include: the physiological needs such as food, clothing, shelter, and sleep; the safety needs including
personal health, physical security, financial security; the love needs found in human relationships; and
esteem needs for belonging in society. Work allows people to obtain necessities of life, and in the best
workplace will facilitate well-being on every level of need (Yamada, 2010, pp. 262-263).
Professor Yamada reiterates his idea using relational psychology as providing an approach to assess
the benefits of a TJ approach to employment law. He observes that much of the conversation about
relational theory has been in the context of concerns specific to women (Yamada 2010, p. 551) and goes
on to set forth possibilities for a relational culture in the workplace. As he explains:
Relational psychology holds that relationships, not the individual as an isolated self, constitute the
primary basis of psychological development.... [and] that at least five good things happen to people
in growth-fostering relationships:
Each person feels a greater sense of zest (vitality, energy).

Each person feels more able to act and does act.
Each person has a more accurate picture of her/himself and the other person(s).
Each person feels a greater sense of worth.
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Each person feels more connected to the other person(s) and feels a greater motivation for connec-
tions with other people beyond those in the specific relationship. ( Yamada, 2010 , p. 264)
Imagine a procedure for accomplishing the purposes of Title VII in which good things happened
for the parties participating. While TJ discussions on the role of the lawyers and judges in these actions,
and training necessary for them to skillfully facilitate a therapeutic legal response, this chapter examines
the possibility for adjusting the legal procedure qua procedures.
RIGHTS AND OBLIGATIONS AS A BRIDGE TO

THERAPEUTIC JURISPRUDENCE
While some thinkers might find talk about human nature, natural law, and the corresponding effect on
the construal of rights and obligations to be out-dated by post-structuralism and post-modernism, that
is not where law and policy discourse is found, so this author meets the law where she is found and
proposes a via media (Vides Saade, 2006, p. 913). A TJ emphasis on human need and relationships
implicates moral principles. This turn presents its own challenges given that the relationship between
legal principles and moral principles is an uneasy one. Of course, Kant cannot have the final word
on the way his thought should be used in twentieth century legal debate, but should at least have the
first word.... The yearning for a union between Kants Moral and legal thinking remains unsatisfied
(Fletcher, 1987, pp. 534, 557). This remains true in the twenty-first century. Kants thinking cannot be
ignored when answering questions of legal philosophy in the United States where he has become part of
the liberal basis for interpretations of utilitarian, social contract and even libertarian policy arguments.
Yet, his thinking can be more fully retrieved (Vides Saade, 2006, pp. 914-920).
Kants categorical imperative of Universal Law (UL) is categorical in virtue of applying to us
unconditionally, or simply because we possesses [sic] rational wills, without reference to any ends that
we might or might not have (Johnson & Cureton, 2016, part 4). The Kantian constructivism of Onora
ONeill provides a bridge between rights-based jurisprudence based on an understanding of rights as
reciprocal, in the form of a contract. She begins with Kants formulation of the UL: that a person should
act only on that maxim through which you can at the same time will that it should become a universal
law (Kant, 1956, 331-337). For ONeill, the question of justice is a question of action, specifically
one of how we treat individuals. These actions are guided by universal maxims. She bases her claim on
Kants definition of duty as involving good will, not obligatory action. (ONeill, 1989, p. 141, note 32)
citing Immanuel Kant, Grundlegng Zur Metaphysik Der Sitten (1975).
ONeills is distinctive. It is a modest account. It avoids anachronistic reading of autonomy and
internal as equivalent to external freedom. While it contains more an affirmative command of justice,
it does not adopt liberal values of self-interest or the particularist approaches of discourse theory. Her
constructivism seeks to define an imperative of justice that is consistent with Kants accepted formulation
yet more inclusive of Kants ideas of what it means to affirmatively treat other persons as ends in them-
selves. ONeills approach allows for a more diverse response to justice that does not require re-writing
the legal philosophy of the United States and some of the western world. She provides the space for an
imperative of fundamental obligations that would sustain a TJ approach (Vides Saade, 2006, p. 914).
On the view reading the formulation of Universal Law and the formula of the End-in-Itself together,
ONeill reasons:
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It remains to consider more closely what it is to treat others as ends-in-themselves and whether doing so
is equivalent to acting on maxims that survive the contradiction in the will version of the [formulation
of Universal Law]. How does treating others as ends-in-themselves go beyond refraining from using
them as mere means? (ONeill, 2000, 139)
She supports her analysis in Kants words that:
[H]umanity could no doubt subsist if everybody contributed nothing to the happiness of others but at
the same time refrained from deliberately impairing their happiness. This is, however merely to agree
negatively and not positively with humanity as an end in itself unless everyone endeavors also, so far as
in him lies, to further the ends of others. (ONeill, 2000, p. 140, note 46)
According to ONeill these words of Kant lead to two principles of imperfect obligations: (1)that
we not show principled indifference, and (2) that we not neglect to develop some talents or abilities
that may be useful in pursuing our own or others ends (ONeill, 2000, p. 140). ONeill distinguishes
between perfect and imperfect obligations as follows:
[P]erfect obligations, [are] those fundamental obligations that specify completely both who is bound by
the obligation and to whom the obligation is owed in response to a corresponding right, and (2) imper-
fect obligations, [are] those fundamental obligations that are not universal, in the sense that they are
not owed to all others all the time but that connect persons to specific others as to when these will be
discharged. By imperfect obligations, she means incomplete obligations. Obligations can be imperfect
or incomplete in different ways. An obligation can be considered imperfect because the act description
does not completely specify what ought to be done. However, even in the case of perfect obligations
in which one party has a right to demand action, discretion as to application may be necessary. This
sort of indeterminacy alone does not define an imperfect obligation. ONeill proposes certain features
for the construction of more robust and reliable institutions to protect the weak. For ONeill, practical
principles, like rules, never provide complete guidance about the implications for a particular case.
Practical principles, like rules, do not eliminate moral conflict. This is especially true when multiple
principles converge to conflict in a particular case. (Vides Saade 2006, pp. 917-918)
Title VII is part of a body of statutes, based on laws that have been promulgated as part of a social
contract. It promotes a set of protections that are rights-based in this sense, not in the Natural Law sense
of the Stoic virtue, or of inalienable Constitutional rights. The legal rules and substantive procedures of
Title VII as currently enforced perpetuate precisely the reductionist view of Kants Universal Law that
ONeill critiques. A TJ approach that included an account of the needs and vulnerabilities of the persons
involved would be a more adequate approach, consistent with a robust understanding of rights, and yet
inclusive enough for TJ and a support of all the capabilities and dignity possible in human persons.
ONeill argues for an understanding of childrens rights as embedded in a wider account of fun-
damental obligations (ONeill, 1996 pp. 187-205). This understanding may be applied to responses
to criminal wrong-doing (Vides, 2007), or immigration policy (Vides, 2006). Here, the author applies
ONeills idea to the employers and employees who are bound together in the workplace as fellow hu-
man beings:
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Human beings are, however, not merely distinct rational beings: they are also vulnerable and needy be-
ings in the sense that their rationality and their mutual independence the very basis of their agency is
incomplete, mutually vulnerable and socially produced. Our agency is vulnerable to others actions in
multiple ways, and particularly vulnerable at certain stages of our lives.... A plurality of distinct rational
beings who are also needy cannot therefore universally act on principles of mutual indifference. If they
did, agency would fail or diminish for some, who then could adopt no principles of action, so that the
very possibility of action on principles that can be universally shared would be undermined. Rational
and needy beings cannot universally act on principles of refusing all help to one another or of doing
nothing to strengthen and develop abilities to act. (ONeill, 1996, pp. 198-199)
For ONeill, like Amartya Sen, individual capacities are traits of character and ability, distinct from
the capability to exercise them. When these capabilities are absent, they are vulnerabilities. For ONeill:
Capacities to act are constrained both by lack of knowledge and abilities and by commitments to others.
Institutional arrangements can disable agency both by limiting capacities to reason and act independently
and by raising the demands to meet the needs and satisfy the desires of others. (ONeill, 2000, p. 163)
The procedures for enforcement of Title VII purposes are such an institutional arrangement. When the
basic human needs of a party are not met and capability undermined or absent, these are vulnerabilities.
A re-prioritizing of the purposes of Title VII, integration of that prioritization into the procedures at
every level, and a consideration of the time it will take for clarity to emerge on substantive issues, would
remove some of the constraining features of Title VII legal procedures and substantive rules.
TITLE VII REGULATION
The Law
The Civil Rights Act of 1964 was controversial when enacted in the United States. Its stated purpose
was contained in its full title:
An act to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the
United States of America to provide injunctive relief against discrimination in public accommodations,
to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and
public education, to extend the Commission on Civil Rights, to prevent discrimination in federally as-
sisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.
(Civil Rights Act of 1964, title)
Of the eleven titles contained in the Civil Rights Act of 1964, Title VII, makes it unlawful for an
employer to discriminate against any individual regarding employment because of such individuals
race, color, religion, sex, or national origin (42 USC Section 2000e-2(a)(1)). The inclusion of sex
was an accidental one, presented by an eighty-year-old segregationist congressman, Howard Smith, who
proposed that the word sex be added after the word religion. He claimed to have been inspired by
a letter from a woman constituent asking the government to protect our spinster friends. While Con-
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gressman Smith claimed to be serious about this thing as reflecting real grievances and some real
rights to be protected, the proposal drew laughter and jokes on the House floor, such as about having
the last word at home, that being Yes Dear. Still, once the laughter was silenced by the twelve women
representatives, Congresswoman Martha Griffiths advocated for the amendment in earnest stating I
presume that if there had been any necessity to point out that women were a second-class sex the laughter
would have proved it. The amendment was added in a stunning strategic reversal of what was viewed
as mocking rhetorical attempt by Congressman Smith to block the passage of the Civil Rights Act of
1964 (Thomas, 2016, pp. 1-2).
As originally enacted, Title VII provisions protecting workers against job-related discrimination
because of sex included those based on reasons idiosyncratic to women such as pregnancy, child-
birth or related medical conditions (42 U.S.C. Section 2000e(k)). This basic provision was amended
by the Pregnancy Discrimination Act amendment to Title VII in 1978 to clarify as to formal equality
and accommodation required and legitimate differences in treatment of pregnant women, and has been
interpreted by case law such as Young v. United Parcel Service, Inc. 575 U.S. ___ (2015). The range of
protections described by the phrase because of sex has been redefined as interpreted by United States
Supreme Court opinions. These now include: protections on hiring and dismissal, such as, the absence
of justification for refusal to hire women with school age children absent a business necessity (Phillips
v. Martin Marietta Corporation 400 U.S. 542 (1971)); protections related to compensation, such as no
justification of differential in pension contributions based on sex (City of Los Angeles Department of
Water and Power v. Manhart 435 U.S. 702 (1978) upholding the Title VII violation yet disallowing
retroactive monetary remedy); protections against a new idea introduced in the updated 1980 EEOC
Guidelines on Discrimination Because of Sex, as sexual harassment based on acts that create a hostile
or abusive work environment, not limited to quid pro quo propositions (Meritor Savings Bank, FSB v.
Vinson 477 U.S. 57 (1986)) and, in Harris v. Forklift Systems 510 U.S. 17 (1993), clarifying that nei-
ther serious psychological injury or a detracting from the employees job performance was a necessary
effects of a Title VII violation when the conduct was so severe or pervasive that a reasonable person
would find the work environment hostile or abusive; protections against gender stereo-typing such as in
Price Waterhouse v. Hopkins concerning a promotion denial (490 U.S. 228 (1989)); protections against
bias in conditions of employment, such as in International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, et. al. v. Johnson Controls Inc. finding that prevent-
ing fertile women, yet not fertile men, from performing potentially hazardous work in the guise of fetal
protection policies (499 U.S. 187 (1991)); as well as establishing clear standards for what constituted
retaliation under Title VII as in Burlington Northern & Santa Fe Railway Company v. White 548 U.S.
53 (2006) which expanded the definition of what constituted retaliation beyond economic harms to
include any adverse action by an employer that would have dissuaded a reasonable worker from mak-
ing or supporting a charge of discrimination such as the oppressive scheduling changes in this case
(Burlington Northern at 68).
Enforcement Procedures
Occasionally, state equal employment opportunity laws provide greater protection than those afforded
by Title VII, and these have been upheld as consistent with Title VII federal law, such as in the Cali-
fornia Federal Savings & Loan Association v. Guerra case in which the United States Supreme Court
upheld a California Fair Employment and Housing Act provision requiring employers to provide leave
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and reinstatement to employees disabled by pregnancy on the reasoning that Title VII was a minimum
requirement that did not prohibit additional state protections (479 U.S. 272 (1987).
The choice between federal and state legal options, and required administrative proceedings that pre-
cede resolution of Title VII complaints, creates a harsh confusion that raises the urgency for a therapeutic
jurisprudence response. It has been called a hall of mirrors reflecting a system for vindicating indi-
vidual rights in the employment context [that] is currently in a state of disarray (Belt, 1995, p. 152). The
struggle to reconcile the purpose of the system with its operational reality is as true now as it was twenty
years ago, although clearly progress has been made in improving the quality of life in the workplace.
The rationale for the Title VII procedural system may considered as guided by four interrelated and
sometimes incommensurable principles: (1) authority should not be centralized and that there be co-
operation between state and federal systems as well as between administrative and judicial systems in
order to provide speedy resolution; (2) the system should be understandable and accessible to untrained
claimants in light of the initial internal filings; (3) conciliation is favored over litigation; (4) Title VII
is ultimately enforced by individual litigants so choice of remedies should not foreclose a claimant
from pursuing others; and (5) provide remedies on a two-front approach first to deter employers from
engaging in discriminatory practices and secondly to compensate those who have suffered violations
(Belt, 1995, pp 160-161).
Before an employee may bring their complaint of discrimination or harassment because of sex to
either the federal Equal Employment Opportunity Commission (EEOC), or a local state equal employ-
ment opportunity office, the employee must make a complaint to the employer. This requirement serves
to give notice to the employer that the violations may have taken place, and allows the employee to bring
a later legal action against both the offender and the employer company. Company policies are usually
contained in human resources handbook. The company investigates itself internally. The potential conflict
of interest is patently clear. If this internal action is not responsive to the employee concerns, they may
move on to filing a federal or state action.
Companies typically maintain complete confidentiality and non-disclosure as a protocol in their inves-
tigations. Arguments have been adduced that this protocol forecloses any opportunity for the complainant,
the purported offender, and the witnesses to discuss the factual allegations advanced in the investigation.
This foreclosure is usually under girded by a warning that failure to follow the confidentiality policy
could result in discipline, including termination.
In a local case in Buffalo, NY, the Equal Employment Opportunity Commission (EEOC) character-
ized such policies as a flagrant violation of Title VII. The EEOC explains that a policy so broad could
be construed to prohibit an employee from contacting the EEOC...[and] reminded the employer that
complaining to anyone whether to management, the union, other employees, or the local media is
protected opposition and, therefore, its restraint violates Title VII (Ehrenburg, 2012 paras. 2, 3). This
local warning is not enforceable at a federal level so these practices continue, contributing to an early
adversarial tone that becomes pervasive in a coercive process that often includes a remedy in which
employees continue to work in the same company with the same co-workers who participated as com-
plainants, respondents, and witnesses.
Under the Federal EEOC, the employee must file an administrative Equal Employment Opportunity
(EOC) complaint with the agency within 180 days of the date of the alleged violation, and well before
filing a lawsuit. The employee is required to exhaust its administrative remedies before proceeding to a
federal court. This is similarly true for most state procedures: deadlines vary from 180 days to 300 days
from the date of the violation. After the findings are completed and the ruling made, the federal or state
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agency will provide notice to the employee that the investigation did not establish a violation of the law,
usually in the form of a letter called a Dismissal and Notice of Rights. This letter is informally referred
to as a right to sue letter, and it advises the party that it has the right to file a lawsuit in federal or state
court within 90 days of receipt of the letter. If the agency has reasonable cause to believe a violation
has occurred, it will issue a Letter of Determination inviting the parties to join the agency in resolv-
ing the charge through an informal and confidential process of conciliation ((U.S. Equal Employment
Opportunity Commission What you should know, 2016, paras 2-3).
In 2015, the 26,396 Title VII charges filed with the EEOC grounded in sex harassment constituted
29.5% of the total complaints made. Complaints of racial discrimination and the 31,893 retaliation
charges filed under Title VII constituted 35.7% of the total number of complaints filed (EEOC Charge
Statistics FY 1997 Through FY 2015). Remedies available under Title VII were originally limited to such
injunctive relief as to place the employee in the same position as they found itself before the violations,
including back pay, benefits and in some cases attorney fees, expert witness fees, and court costs. The
Civil Rights Act of 1991 was amended to include compensatory damages for out-of-pocket expenses
such as cost of job search or medical expenses, as well as punitive damages to punish a particularly
malicious employer (42 U.S.C. 1981).
Regulation and Impact on Women: A Case Study
In her personal account of the Price Waterhouse v. Hopkins case, Ann Hopkins described her view of
the process as a litigant:
Had I been less accomplished, my firm less prominent, my family less involved, my attorneys less bril-
liant, the trial judge less insightful, the appeals panels less liberal, my predecessors less sympathetic,
and others in the civil rights community less committed, the outcome could have been dramatically dif-
ferent. I might have become a nut case. (Hopkins, 2005 p. 367)
According to Conley & OBarr, analyzing legal problems in terms of social relations contains an
assumption of shared knowledge while rule orientation assumes no such prior knowledge. Relational
orientation points to the story behind the story although not always completely, while rule orientation
limits itself to facts and the issues at hand. The social distribution of power in rules orientation would
favor the law, and the powerful, while, according to their thesis, the social distribution of power in
relationships orientation would favor the powerless (Conley & OBarr, 1990). If the substantive provi-
sions of Title VII are rule-based in their orientation, perhaps the necessary changes for balance in those
provisions are more procedural in nature.
From a Rules Perspective: Price Waterhouse v. Hopkins 490 U.S. 228 (1989)
From a rules perspective, the story had a happy ending. Ann Hopkins succeeded in her complaint against
her employer Price Waterhouse after a nearly decade-long legal battle. The legal significance of the
opinion by the United States Supreme Court was to affirm a prohibition against gender stereotyping as
included within the range of actions that constituted a discriminatory violation because of sex under
Title VII with implications for the contemporary expansion of the actionable violations under Title VII.
At the same time, the high Court lowered the standard of proof by which an employer could show that
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the employment decision would have been the same had there not been discrimination because of sex
from clear and convincing evidence standard to a preponderance of the evidence one.
Ann Hopkins began her career at the Big Eight accounting firm of Price Waterhouse in 1978, ad-
vancing to a position of senior manager. She spent her first five years positioning herself for partnership
working in an Office of Government Services (OSG) leadership position securing roughly $40 million in
contracts from the United States Departments of State and Agriculture. In April 1983, the firm Admis-
sions Committee recommended a hold on her candidacy which meant she would be able to reapply in
the following year. This quickly changed when two of the reviewing partners abandoned their support
of Ann Hopkins, and a second application would not be successful.
The reason first given was that she had consistently irritated senior partners of the firm. Ann
Hopkins soon discovered negative partnership reviewers had offered critical and negative comments
such as that she needed a course in charm school, and was overly aggressive, unduly harsh, difficult
to work with and impatient with staff, and that she overcompensated for being a woman, and came
across as macho (Thomas, 2016, pp. 129-130). The head partner of OGS, and one of her mentors,
indicated to her that her professional problems would be solved if she would walk more femininely,
talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry
(Price Waterhouse v. Hopkins, p. 302). This began a series of events that led to a legal battle that would
end in December 1990, and the return of Ann Hopkins to rejoin Price Waterhouse as a partner in 1991
(Thomas, 2016, pp. 127-130).
Ann Hopkins retained a lawyer, and filed her EEOC complaint. The lawyers for Price Waterhouse
contended Title VII did not apply to partnership decisions based on a case concerning law firm partners,
Hishon v. King & Spaulding, then pending before the U.S. Supreme Court. The EEOC issued a Dismissal
and Notice of Rights letter six months after the hold on the partnership decision, with Hishon v. King
& Spaulding still undecided.
In light of the uncertainty of the legal jurisdiction of Title VII, Ann Hopkins, through her attorney,
filed a lawsuit in the D.C. court alleging a violation of the D.C. Human Rights Act. A hearing of this
federal district lawsuit could have been delayed in resolution because of a crowded court schedule. As
it happened, Hishon v. King & Spaulding 467 U. S. 69(1983) was soon decided holding that Title VII
applied to the selection of partners by a law firm partnership.
With jurisdiction settled, the legal issues at the trial level became (1) Whether sexual stereotyping
had occurred, and the role of the employer in consciously using a partnership evaluation system that
allowed unconscious sexual stereotyping to form the basis for the decision. The trial court found the
employer had consciously allowed such a system. And (2) what the burden of proof should be when
mixed motives were present as the basis for the decision, given that some complaints about her behavior
as senior manager were justified by the employees conduct. The District Court trial judge placed the
burden on the employer to show by clear and convincing evidence, that is, that it was highly probable,
that the same partnership decision would have been made without discrimination because of sex. And
(3) correspondingly what remedy Ann Hopkins should receive. Judge Gesell, the trial judge ruled Price
Waterhouse had unlawfully discriminated against Hopkins on the basis of sex by consciously giving
credence and effect to partners comments that were rooted in sex stereotyping, that according to the
expert testimony of a social psychologist included both overt remarks as well as gender-neutral remarks
by partners who only knew Ann Hopkins slightly, and that Price Waterhouse failed to show by clear and
convincing evidence that it would have made the same decision to place Hopkins candidacy on hold
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absent that stereotyping and therefore could avoid equitable relief. Judge Gesell (Price Waterhouse, pp..
235, 237). The Court of Appeals affirmed that District Court ruling yet differed in the analysis of the effect
of that a clear and convincing evidence showing would have, holding that if the employer could present
such proof, the employer would not be considered to have violated Title VII (Price Waterhouse, p. 237).
The United States Supreme Court ruled in a plurality decision that the factual determination on
discrimination because of sex due to sexual stereotyping was not a determination about whether the
employee was nice, but about whether the partners reacted negatively to her personality because she was
a woman. Justice Brennan writing for the four justice plurality including Justices Marshall, Blackmun
and Stevens, wrote:
We are beyond the day when an employer could evaluate employees by assuming or insisting that they
matched the stereotype associated with their group.... An employer who objects to aggressiveness in
women but whose positions require this trait places women in an intolerable and impermissible catch
22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of
this bind. (Price Waterhouse v. Hopkins, p. 251)
Justices White and OConnor wrote separate concurrences agreeing with the holding of the plurality,
yet differing on the effect of the burden of proof and its effect. Justice Kennedy dissented, based on statu-
tory interpretation of the language of Title VII and the actions that would constitute violations, joined
by Chief Justice Rehnquist and Justice Scalia. The Court also reversed the Court of Appeals judgment
of liability against Price Waterhouse, and remanded the case back to that court for further consideration
using the standard of proof of preponderance of the evidence, that is more likely than not, or more
than 50%, to assess whether the partnership decision would have been the same absent discrimination
because of sex (Price Waterhouse v. Hopkins p. 293).
Upon retrial before the same trial judge, Judge Gesell found that Price Waterhouse could not show
the partnership decision would have been the same absent discrimination because of sex, even by a the
lowered standard of preponderance of the evidence. And in a never before issued remedy, the remedy
would be partnership for Ann Hopkins, because a reconsideration would be futile and unjust given the
[T]he deck is stacked against her. Price Waterhouse plainly does not want her and would not voluntarily
admit her (Thomas, 2016, p. 145). Price Waterhouse appealed that decision and lost. Then offered Ann
Hopkins up to $1 million if she would agree to not return to the firm on condition she not speak ill of
the firm. Ann Hopkins refused the offer and rejoined Price Waterhouse as a partner.
From the Relationships Perspective:

Price Waterhouse v. Hopkins 490 U.S. 228 (1989)
From the perspective of Ann Hopkins, the person, success was measured by her survival:
Discrimination cases tend to get very personal, very fast. My life became a matter of public record. At-
torneys pored over my tax returns. People testified about expletives I used, people I chewed out, work
I reviewed and criticized, and they did so with the most negative spin they could come up with. Im no
angel, but Im not as totally lacking in interpersonal skills as the firms attorneys made me out to be. So
there is a personal side to success: how did I survive the personal onslaught? (Hopkins, 2005 p. 366)
159

At the time Ann Hopkins received the hold on her partnership decision, the law was not clear on
whether Title VII was applicable. She wanted to quit Price Waterhouse immediately given the adver-
sarial atmosphere that she perceived she had created. She had listened in horror as the firms senior
partner, Joe Connor, read the remarks of reviewers who had recommended denying or putting a hold on
her application for partnership. None concerned the business she had generated or the clients she had
managed (Thomas, 2016, p. 329). Her attorney advised her that she had to file a claim with the EEOC
to get permission to file a lawsuit, and insisted that she should keep working at the firm until he could
make an argument for constructive discharge.
Meanwhile the firms attorney delayed the EEOC process asserting the EEOC had no jurisdiction
because partnership decisions were not included in the employment decisions covered by Title VII. After
about six months, the EEOC issued its Dismissal and Notice of Rights letter notifying Ann Hopkins
of her right to sue in state or federal court (Hopkins, 2005, p. 368). In October,1983, the United States
Supreme Court decided Hishon v. King & Spaulding 467 U.S. 69 (1983) related to law firm partnerships
and after nearly a year of what Ann Hopkins perceived as diddling around with the EEOC and the
DC Superior Court, her lawyer was able to go forward with a federal court action under Title VII. Ann
Hopkins found out from Betsy Hishon that the legal battle to resolve her issue of law partnership jurisdic-
tion under Title VII had commenced in 1978. She was both grateful that issue had been resolved for her
benefit, and noted she hoped her own case would not last as long. It lasted two years longer. Over that
time, Betsy Hishon and Ann Hopkins developed a friendship that Ann Hopkins acknowledges cheered
me up and boosted my morale regularly over the years of litigation. Hopkins commented I wonder
who helped her. I never asked (Hopkins, 2005, p. 368-369).
At the District Court trial, Ann Hopkins attorney, Doug Huron, made three accusations: discrimi-
nation, retaliation and harassment, and constructive discharge.... Hopkins writes of attorney Huron:
[H]e strongly discouraged me from seeking to be made a partner as remedy for discrimination. As the
first case since Hishon, I was already on the bleeding edge of the law. He doubted that any judge would
order a partnership to admit me. In spite of his reservations, as remedy, he asked that Price Waterhouse
make me a partner retroactive to July 1, 1983, compensate me for lost wages, and pay my attorneys fees
and court costs. He also asked that Price Waterhouse be enjoined from discriminating or retaliating in
the future. (Hopkins, 2005 p. 370-371)
Ann Hopkins recalls that when she testified in the District Court, Judge Gesell was grappling with
partnership as a remedy:
Im just talking to you as a person and trying to understand. Not trying to say theyre right at all, but
theyre all sitting here to keep you out of the partnership and youre an intelligent woman, youve got a
lot of experience and youve got - youve shown you make a living on your own. Youve probably shown
they were wrong, so what is the point of wanting to put yourself into a position of future friction?
Thats what I find so difficult to deal with because my responsibility here is an equitable responsibility.
Its a matter of trying to understand and be fair and you It just seems to me that Ive got two people
that have got their minds made up. Theyre going to butt heads together and I have to say to you that if
you go back to the partnership, and you may as a result of these proceedings, Im not saying one way or
160

the other about that, but well be back in here again and again on problems relating to your relationship
with these people that dont want you. Now thats my trouble and I cant get an answer.
All I could say was I may be deluded, but I feel that there are people there who would be happy to
practice with me and there certainly are lots of them there that Id be happy to practice with. (Hopkins,
2005 pp. 392-393)
Interestingly, Judge Gesell seemed to be well aware of the potential for harm in the fashioning of
remedies. He perceived and pressed questions to ascertain the perspective of the Title VII claimant in
order to cognize the second agenda (Angell, 2009). And yet, these valiant efforts could not avoid some
harm to the person Ann Hopkins inherent in the procedure itself.
When Ann Hopkins did return to Price Waterhouse as a partner, she first tried to avoid returning to
the same OGS group and colleagues, and instead asked to be assigned to private sector clients, which
she did not find rewarding, and ultimately she transferred back to her former group. She writes: I was
bored and frustrated professionally. But I had brought it on myself when I negotiated the terms of my
return to Price Waterhouse and asked to be assigned to the private sector practice rather than OGS
(Hopkins 2005, p. 409). Upon her return, she was reminded of her struggle by a colleague who refused
to shake her hand at a new partner training, and another who referred to her years of pitched litigation as
a sabbatical (Thomas, 2016, p. 146). And, after the Price Waterhouse merger with Coopers & Lybrand,
she attended a Coopers & Lybrand womens partner meeting at which a display calendar significant
events related to women in the firm. She writes: I wasnt on it (Hopkins, 2005, p. 413).
As Ann Hopkins looked back on her years as a Price Waterhouse partner she writes:
I have no regrets I was a Price Waterhouse partner for only seven years. I lost about nine years of my
career when time spent at the firm after a failed candidacy, in litigation, and wasted in the private sec-
tor practice is added together. I have wondered what might have happened if I had been partner during
those lost years... What I do know is I never compromised on what I valued or believed. I didnt always
get it right, but I did it my way. (Hopkins, 2005, p. 410)
Rights-based entitlements are the basis of existing legal protections in Title VII. Such entitlements
privilege a rule-based orientation, particularly in the orientation of the employer seeking to comply with
the statute and avoid liability for actions considered a violation. And, yet, this focus does not address
the personal stories of the employees who often remain in the workplace, together, long after the fury
of the onslaught described by Ann Hopkins is a historical business event.
Conciliation as Ideal
When the EEOC has reasonable cause to believe a violation of Title VII has occurred, the Letter of De-
termination issued invites the parties to join the agency in its preferred form of resolution, conciliation.
This might seem surprising given that the internal employer investigative process that precedes the fil-
ing of a complaint is often tainted by its coercive non-transparent nature. As in most third-party neutral
dispute resolution, the process is voluntary, and parties cannot be required to accept any particular terms.
Parties are free to decline conciliation and to proceed with litigation on their own if the EEOC decides
161

not to proceed on behalf of the employee. Conciliation is a requirement before the EEOC will consider
litigation on behalf of the employee claimant (EEOC, What you should know, 2016).
In 2015, investigations resulted in findings of no reasonable cause in 16,790 cases (constituting 62.1%
of all filed sex discrimination cases), with a finding of reasonable cause in 1009 cases (constituting 3.7%
of all sex discrimination cases. But some 2458 cases (or 9.1% of all sex discrimination related cases)
settled outside of conciliation. Merit resolutions, those cases which do not settle or resolve by concilia-
tion numbered 5240 or 19.4% (EEOC Sex-based Charges FY 1997-2015).
The ideal of conciliation leaves a gap in the process. The EEOC provides the option in cases where it
finds a reasonable cause that a violation exists and needs to be resolved. Left unaddressed are every day
micro-aggressions which are not actionable under present legal standards. These include the insults and
dismissiveness that while not overtly aggressive are rooted in unconscious bias and tend to undermine
the credibility of the person as a member of the group. For example: Yes, you plan the new partner
party, women are so much better at that sort of event planning. Or, talk-stopping during a meeting in
which statements made by women are not heard until a man makes the same point, or are dismissed as
unnecessary Yes, we all know that. If an employers efforts at reducing discrimination because of sex
in the workplace are limited to compliance with Title VII requirements, such actions which affect the
workplace climate are either ignored, or subjected to an overly broad no tolerance standard. State and
local policies, by their silence or lack of clarity, permit workplace interactions to become a blood sport.
This is particularly true for persons whose identity exists in intersectionality, defined as membership
in various identity groups: a Latina woman described as spicy or feisty, or an African American
woman categorized as angry in the way First Lady Michelle Obama experienced in the early days
of her husbands first Presidential term. Would the same comments be made of a Latino man? Or an
African American man?
The economic consequences of simply finding another job are similar to those consequences of a
domestic violence victim who is subjected to a remedy, such as mandatory arrest, that leaves her without
a domestic partner and without an income. It is in these details of workplace behavior that harsh experi-
ence is found. As Margaret Montoya has noted, the question of who decides the normative style is one
about power. The answer to the question of who must mask her inner self as a defense against cultural
judgments that will undermine her capabilities, or result in an administrative or personnel action is the
person who is pushed to the margins, or lives in the interstitial spaces. The existing gender harassment
procedures seem insufficient for meeting the competing needs that are found in these interstitial spaces
(Montoya, 2013).
The ideal of Title VII of the Civil Rights Act of 1964, as amended and interpreted, in discouraging
discrimination because of sex, has fallen short. In the words of Ann Hopkins:
I have listened to hundreds of litigants or potential litigants describe their situations in the work place
and ask for advice about what to do.... I offer advice reluctantly. That said, I suggested to most of the
potential litigants that they ask themselves: If I win, will the prize be worth the price? At what cost is
litigation worth it? Is one more grade or step in the civil service hierarchy worth a year of life strug-
gling through internal administrative processes and the EEOC? Whats the human cost in time lost to
self, family, and career? Considered in the greater context of life, is this the hill to die on? In my case,
I failed to consider any of these questions until it was too late. (Hopkins, 2005, p. 413)
A better way is necessary and possible.
162

Interstitial Spaces
The Urgency
Following the Price Waterhouse v. Hopkins opinion and its affirmation of sexual stereotyping as a Title
VII violation of discrimination based on sex, at least two federal appeals courts have ruled that gender
stereotyping applies to transgender employees. With the Macy v. Holder (Appeal No. 0120120821 (Apr.
20, 2012), and the extension of Title VII protections against discrimination based on sex to gender
identity, change of sex, and/or transgender status, the need for a Title VII processes which considers the
needs of people in the workplace primary in relation to those of immunizing employer liability becomes
increasingly urgent. As an administrative decision, Macy v. Holder is not binding on other administrative
courts or the federal courts, yet in December 2014, Attorney General Eric Holder, without legislation
or binding legal rulings, took the position that Title VII protection extends to discrimination based on
an individuals gender identity, including transgender status. Gender identity is now part of the EEOC
considerations for discrimination because of sex (United States Department of Justice, 2014).
Most recently, in the context of North Carolina state law regarding constraints on the use of bathrooms
by transgender individuals, Attorney General Loretta Lynch, has publicly reiterated gender identity as
a category of discrimination falling under the jurisdiction of Title VII, and characterized it as part of
the civil rights struggle. Her assertion was made without the guidance of legislation or national case
law, causing what some legal observers consider to be confusion (Tucker, 2016). With gender identity
now part of the EEOC listing of categories subject to Title VII protection against discrimination, men,
women, and transgender persons are in equally protected categories with regard to Title VII violations.
In addition to the sua sponte rhetoric of Attorney General Lynch, two of thirteen federal district courts,
specifically the Sixth and Eleventh Circuits, have upheld claims of sex stereotyping consistent with
Price Waterhouse v. Hopkins, 40 U.S. 228 (1989) and/or the Equal Protection Clause. In addition, the
First, Ninth, and Tenth Circuits have indicated, although not ruled that Price Waterhouse is applicable
to transgender discrimination (Beyer, Weiss & Wilchins, 2014). If workplace discrimination against
women and transgendered persons are prohibited as discrimination based on sex or gender identity, the
consequence is to consider men, women, and transgender persons in an equal consideration with regard
to Title VII violations. Constitutional protections based on inalienable Natural Law rights dominate rights
created by social contract by statute. If transgender persons are entitled to Constitutional protections
based on inalienable rights of Natural Law, such as Equal Protection, which has been the case in federal
appeals court rulings since Price Waterhouse v. Hopkins, protection of those rights would dominate in
workplace legal actions to the detriment of claims made by women pursuant to Title VII. The right of
women to be free of discrimination as a matter of Natural Law is not Constitutionally recognized in the
United States. The resulting clashes in a rule-based system about which rationale and identity category
dominates could be devastating to women. The wry comment of Congresswoman Griffiths when sex
was added to Title VII that the mocking tone of the men of the House confirmed that women were a
second-class sex would have to be amended now to third-class sex.
Intersectionality has demonstrated itself to be a challenge to application of Title VII protections. If
the Title VII discrimination is because of race, that is considered a violation. If the Title VII discrimina-
tion is because of sex, that is considered the basis for a violation. When these two identities interlock,
the discrimination and oppression suffered is based on the convergence of these identities. However, if
the Title VII discrimination asserted is because of race and sex, the rule-based approach is confused.
163

In Rogers v. American Airlines 527 F. Supp, 229 (1981), the District Court of New York is, as Paulette
M. Caldwell has written a classic example of a case concerning the physical image of black women
(Caldwell, 1991, Part D). It is about hair in the workplace, and a challenge made by Renee Rogers to
workplace restrictions prohibiting the wearing of braids in the workplace. In the opinion, the court
considered the Title VII claims of race and sex in the alternative only. The court dismissed a cause of
action under the Thirteenth Amendment on the grounds that the claimed violation did not constitute
a badge or incident of slavery. The court found that Renee Rogers had failed to state a claim on either
ground. Because the policy was even-handed in that it prohibited the style to both sexes, and was a
grooming style that applied to all races (Rogers v. American Airlines, p 231-232). The court failed to
recognize that Rogers claim was based on the cumulative effects of race and gender. The court subor-
dinated the assertion of Renee Rogers that braided hair had a cultural significance to Black American
women to the claim of American Airlines that Renee Rogers had only adopted the hairstyle after it was
popularized by a white actress in the film 10 (Rogers v. American Airlines, p. 232). In the words of
Paulette M Caldwell:
The very use of the term popularized to describe Bo Dereks wearing of braids in the sense of render-
ing suitable to the majority specifically subordinates and makes invisible all the black women who for
centuries have worn braids in places where they and their hair were not overt threats to the American
aesthetic. (Caldwell 1991, Part D)
Intersectionality makes the simplistic Title VII workplace training videos designed to demonstrate
employer compliance with Title VII requirements of conscious efforts to eliminate discrimination insuf-
ficient. Typically these videos offer scenarios asking the viewer: If this happened to you, what would
you do? and then go on to make clear reporting requirements and employer resources for seeking more
assistance, always favoring the rule-based orientation and generally stressing confidentiality. And, yet,
the answer might not be so clear if an employee was faced with a complex scenario containing three
competing and intersecting identities.
Scenario: A supervisor is approached by an African-American woman who states that she is repeat-
edly interrupted and her point undermined in a meeting by a transgender woman, and she cannot seem to
stop this person by speaking to her directly, woman-to-woman. The same supervisor is approached by the
transgender woman who states that the African-American woman has made comments the complainant
considers micro-aggressions directed at transgender status framed as suggestions what hair products the
transgender woman should use in her hair to make it more manageable and attractive. What would you
do? Bracketing reporting requirements and details, course of events would you prefer to initiate? One
option: Imagine that both parties in this scenario file an internal complaint requiring investigation. The
investigation proceeds in a closed and confidential manner. In fact, the parties often are unaware of the
precise behavior on which the investigation is based or the witnesses involved. No option for therapeutic
resolutions such as mediation or talking it out, or mutual accommodation are required to be offered
before this decimation takes place. The residual workplace toxicity is unhealthy for all participants. Trust
is broken. Understanding is never achieved. The emphasis is on rule orientation when the history of Title
VII claims when intersectionality is a factor is not promising. The lack of relational orientation results in
the filing of an EEOC claim by the employee who believes she has the more dominant claim. Another
option: Recommend informal proceedings within the workplace including mediation. A third option:
164

Use any available relational options, yet be assured that the fallback EEOC procedures would operate
as if people mattered, and could be invoked before the parties were polarized by the procedure itself.
Following the idea of imperfect obligations as a grounding for TJ in Title VII resolutions, ONora
ONeill recommends deliberation on each particular case including consideration of ways to avoid pos-
sible contingent conflicts between important principles. Deliberation also includes exercising practical
judgement to assess whether there are ways of acting that might satisfy the claims of significant but
conflicting principles (Vides Saade, 2006, p. 918). Imperfect obligations sustain a TJ procedure that
is more expansive than a rules-based, and takes into account the needs, relationships, capabilities and
vulnerabilities of the parties.
The urgency to prevent cruelty and promote well-being becomes more pointed when considering that
according to Gillian Thomas: Historians have come to believe that Smith was sincere, [in inclusion of
sex in Title VII legislation] if only because he feared that an employments rights bill that protected
against race but not sex discrimination would place white women at a disadvantage in the workplace
(Thomas, The Record, 2016 p.2). Women whose experience was lived in the interstitial spaces of race
and sex were not meant to benefit from Title VII. The question becomes as to the intersectionality of
race, sex, and now gender identity in a range of interpretations, who will be pushed to the margins? Who
will need to mask their inner self?
Models
The author proposes the following changes as practices to Title VII procedure consistent with the
four interrelated, and sometimes incommensurable, principles that guide that system referenced in the
Enforcement Procedures discussion above:
First: Establish a dual-track system that encourages meaningful conciliation beginning at the
level of employer investigation. A dual-track model would promote both the principle of meaning-
ful cooperation between state and federal systems, as well as administrative and judicial systems,
and the principle favoring conciliation. The early conciliation process would include a separate
set of claim forms and reasonable guidelines regarding confidentiality, and sharing of documents,
that would bind the third-party neutral, and the parties similar to those well-established in media-
tion processes. The design of such early intervention would encourage all opportunities to involve
workplace individuals who might be affected by the behavior, and prospective sanctions, similar
to those addressing the needs of community stake-holders in Restorative Justice (RJ) processes.
The dual-track would extend to the federal EEOC and state agency level, providing one procedure for
employees who have attempted prior conciliation, and provide another procedure for employees who have
declined the process. The latter could be similar to the existing EEOC Alternative Dispute Resolution
(ADR) provisions. The design would be continue to address the workplace issues in the a deliberative
approach for the purpose of resolving all conflicting views without resort to punitive sanctions in an
action where the participants will continue to interact in the same workplace.
Second: Clear guidelines on resolution of Title VII involving intersectionality. Claims involving
possible discrimination due to more than one of the categories currently listed in EEOC guidelines
165

would be resolved according to these guidelines. Currently those categories include, discrimina-
tion because of race, color, religion and sex (including gender identity, sexual orientation, and
pregnancy), national origin, age (40 or older), disability, or genetic information.
While the legal rules are unclear in that these remain indeterminate as a matter of statute or defini-
tive court decision, the EEOC would prepare guidelines according to the existing court decision, with
a detailed exposition of how to manage decisions presenting individuals with more than one category
listed in the because of Title VII protections. These guidelines would be clear on consideration of the
alleged violations as they pertain to each of those categories, as well as to the accumulated discrimina-
tion experienced because of the convergence of those categories. These guidelines would, of course, be
subject to judicial review, yet these would be a starting point for federal and state findings.
In general, these best practices would encourage cooperation among federal and state agencies,
including the administrative and court, for the purpose of conciliation process that would do less harm
to the participants. These would shift the existing principles to privilege deliberation over speed. The
obstacles to authentic de-centralization and the overwhelming intake work of the EEOC would be
somewhat ameliorated responding to critique of structural flaws (Modesitt, 2010). The emphasis on
conciliation would capture some of those behaviors that create a toxic workplace yet fall in the interstitial
spaces. All legal options would remain available and not foreclosed, yet as a last resort. Remedies would
include available solutions beyond the rule oriented legal rules, and accounting for imperfect obligations
of persons to one another. Employers would be deterred from allowing workplace discrimination at the
level of community well-being, and not in response to a prima facie avoidance of liability that is too
often meaningless for the needs of those persons interacting in the workplace.
CONCLUSION
Contemporary workplace law for the purpose of to eliminating discrimination because of sex has pro-
vided benefits to change the lives of women in the workplace since its legislation as Title VII of the
Civil Rights Act of 1964 in the United States. In light of expanding categories included in the meaning
of discrimination because of sex, such as gender identity and sexual orientation, the need to reshape the
procedures to provide well-being for the parties involved in the process becomes more urgent. Changes to
the substantive rules of Title VII, even when expanding to become more inclusive, will cause unintended
harm if these are not mindful of the challenges presented by intersectionality. The author contributes
this granito de arena (Transl. grain of sand) to the conversation in the hopes this call to action generates
more contributions, as well as actual policy changes. Time is of the essence.
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Yamada, D. C. (2010). Employment Law as if People Mattered: Bringing Therapeutic Jurisprudence
into the Workplace. Florida Coastal Law Review, 11, 257.
Young v. United Parcel Service, Inc. 575 U.S. (2015)
KEY TERMS AND DEFINITIONS
Gender Identity Discrimination: Biased behavior because of a persons gender identity towards
an applicant or employee, perpetrated by an employer or with an employers acquiescence giving rise
to an action under Title VII that has been interpreted to include gender orientation, and most recently
transgender bias, and categorized as part of the general prohibition of bias because of sex.
Imperfect Obligation: A non-reciprocal duty that is not owed to another person because that person
has a right to demand it, and is based on human need and vulnerability of that person.
Intersectionality: A term introduced by Kimberl Crenshaw describing how different groups of
people may encounter varied forms of discriminatory behavior based on the intersection of two or more
identity categories. It recognizes that power, privilege, disadvantage, and discrimination are the result
of interlocking identities.
Interstitial Spaces: Ethical no-mans land beyond perfect obligations or rights.
Micro-Aggressions: Verbal or non-verbal exchanges that contain subtle, often unconscious, put
downs that are an incessant and cumulative assault on a persons identity.
Perfect Obligations: A reciprocal duty, owed to another person, because of some entitlement or
right that person has to demand it.
Prima Facie: Latin meaning At first look as in on its face it looks like a good policy but is actu-
ally meaningless when closely examined.
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Quid Pro Quo: Latin meaning This for That, as in submit to my sexual advances, and you will
receive that promotion.
Restorative Justice (RJ): A theory of justice that takes into account the interests of three categories
of principle stakeholders with the purpose of repairing the relationships between them: The Offended,
the Offender, and the Community, so in the case of Title VII this would be the Claimant, the Offending
Employee/Employer, and the entire community of those interacting in the Workplace.
Sex Discrimination: Biased behavior towards an applicant or employee, perpetrated by an employer
or with an employers acquiescence, because of a persons sex giving rise to an action under Title VII
that was originally interpreted to refer to women, then expanded to include pregnancy, and discrimina-
tion against men, as well as the range of Gender Identity discrimination.
Sexual Harassment: Biased behavior towards an applicant or employee, perpetrated by an employer
or with an employers acquiescence, because of that persons sex, which includes unwelcome sexual
advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. It can
include offensive remarks about a persons sex, or persons in that category generally in order to offend
a particular woman.
170
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Chapter 11
Female Victims of Labor
Exploitation Vis--Vis Labor
Courts in the Southern
Tamil Nadu, India:
Therapeutic Jurisprudence Solutions for
the Prevention of Secondary Victimization
R. Rochin Chandra
K. Jaishankar
ABSTRACT
The exploitation of young female workers is rampant in the spinning and textile units of southern Tamil
Nadu, India, under the notorious Sumangali Scheme, which has features similar to bonded labor.
Until now, an increasing number of studies have been conducted to examine the characteristics of this
abusive scheme, including the patterns of victimization and its subsequent effect on the physical health
of sumangali workers. Yet, very little is known as to how legal procedures, and the roles or actions of
legal actors within industrial courts, commonly known as labor courts, impacts the emotional life and
psychological well being of these female laborers. In this chapter, we claim that sumangali victims of-
ten experience secondary victimization as a result of their contact with labor courts, and most often,
due to their relative failure to access labor courts. We aim to address these issues from TJ perspectives
and provide suitable solutions that may reduce the incidence of secondary victimization (among the
sumangali victims).
DOI: 10.4018/978-1-5225-2472-4.ch011

Female Victims of Labor Exploitation Vis--Vis Labor Courts
INTRODUCTION
Therapeutic Jurisprudence (TJ) originated two decades ago in the field of mental health law (Erez,
Kilchling, Wemmers, 2011, p. ix). Later, its application was expanded to cover criminal law, as the
scholars began focusing on the rehabilitation of criminal defendants (Wemmers, 2011, p. 68). It is only
recently that TJ has taken the next developmental step, that is, to bolster the position of victims within
therapeutic jurisprudence research agenda. This emphasis on victims, indeed, resulted in wide array
of TJ work, amongst which, much of the research focused primarily on crime victims participation in
criminal justice around the world; the relevance and contribution of TJ for victims of labor exploitation,
however, lacked the presence on centre stage. Against this backdrop, this chapter is an effort to pioneer
the conceptual framework of TJ in the realm of female victims of labor exploitation (FVLE). Since,
this chapter revolves around the notion of secondary victimization experienced by female laborers in
labor courts; we crucially chose to address the well-being of young sumangali workers in Southern Tamil
Nadu, India from TJ perspectives.
A growing body of TJ literature on victims participation in justice system suggests that victims suffer
a tremendous amount of emotional distress due to their failure to understand how prosecution process
and court works (Winick, 2011, p. 8). That is to say, victims do not have critical knowledge of law and
procedures of justice system. The justice system may appear complex and overwhelming to victims who
encounter it for the first time (CRCVC, 2007, p. 2). They may not know whom to approach for informa-
tion to file their legal petition and perhaps more importantly, how to draft a petition in a right manner.
This lack of information about the process may further exacerbate the harm that victims suffer following
the personal violation and might produce strong feelings of fear, anxiety, stress and depression in them.
While, TJ literature stresses the importance of legal actors, who apply the law - in generating thera-
peutic outcomes for the victims, it would be greatly unfair if we examine the above issue, merely in light
of discussions that relates to legal literacy among victims. In other words, the role of court personnel
- to supply desired information to the victims and to express a willingness to answer their question is
an equally important aspect that begs exploration, when needs and interest of the victim becomes an
agenda (Winick, 2011, p. 8).
The emergence of Victimology, as an academic discipline, increasingly promoted the status of
victims in the justice process (Kury & Kilchling, 2011, p.43). While, it emphasizes on fortifying the
victims right to protection, its relative concept of preventing secondary victimization as a result of
victims interaction with key actors in justice proceedings has received significant attention from legal
professionals around the world. Therefore, what began as a victimological concept, soon translated into
legal practice, and eventually became a core agenda for legal reforms in TJ literature. The protection of
victims during preliminary proceedings and trail seems fairly compatible with the role of prosecution
(Kury & Kilchling, 2011, p. 57). In other words, the degree to which prosecution assists victims during
legal proceedings is directly proportional to reduction in risks of their secondary victimization. There-
fore, victim lawyers can play a significant role in allowing the victims to achieve psychological benefits
otherwise referred to as therapeutic outcomes.
A substantial body of research on perceptions of legal actors with regard to victim protection indicates
that victim lawyers can give clients a better feeling of control and help restore their sense of security
(Kury & Kilchling, 2011, p. 53). This is to say that, victim lawyers can appreciably reduce the clients
feelings of helplessness and hopelessness (incapacity) in a court room: by providing them emotional
support; informing them of their rights; giving them increased information regarding the proceedings
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and the background of the trail and, perhaps most importantly, by protecting them against attacks by
the defense counsel (Kury & Kilchling, 2011, p. 53). Besides this, we firmly believe that the mere pres-
ence of victim lawyers during proceedings might affect the willingness of the defense counsel to treat
the victims with more respect and dignity (Erez; Kilchling & Wemmers, 2011, p. xii). And that, such
respectful treatment can have mitigating effects on the victims. Hence, one can deduce from the above
discussions that the entire idea of protecting the victims, or preventing their re-victimization during jus-
tice process, rests primarily in the hands of victim lawyers or any victim support worker for that matter.
The physical difficulties experienced by the victims due to territorial jurisdiction of the labor courts
for filing complaints/legal petition have, so far, not gained scholarly attention in TJ literature. However,
this is not to say that TJ lacks the potential to contribute to this area. To the contrary, the researches, till
date, have been overwhelmingly focused on examining in the first place, the feasibility of TJ concepts
with respect to issues that demands urgent attention. For example, Winick (2011) offers insights on how
Therapeutic Jurisprudence can help the legal system to minimize the secondary victimization. With the
greater prevalence and incidence of secondary victimization (Campbell & Raja, 1999; Condry, 2010;
Halder & Jaishankar, 2011) of the crime victims within criminal justice system across the globe, sec-
ondary victimization was and still an important topic to address. Hence, there may be as much to gain
in ameliorating the physical difficulties of victims as there is to gain in ameliorating their secondary
victimization (Campbell & Raja, 1999; Condry, 2010; Halder & Jaishankar, 2011); though it is crucial
to understand that the physical difficulties arising due to arbitrary rules of law - like court attendance,
hearing and territorial jurisdiction of the labor courts for filing the cases, may be broadly considered as
a subject matter that essentially falls within the purview of secondary victimization (Campbell & Raja,
1999; Condry, 2010; Halder & Jaishankar, 2011).
This chapter will explain the characteristics of sumangali scheme, including different types of viola-
tions faced by female laborers employed under this scheme. It will also discuss how sumangali victims
experience secondary victimization, as a result of their contact with labor courts, and often, due to their
relative failure to access labor courts. In this connection, we have identified three major issues typically
encountered by sumangali victims viz., i) inability to file legal petition in the labor court; ii) lack of
victim lawyers/advocates to support in legal proceedings; and iii) the physical difficulties arising due to
territorial jurisdiction of the labor courts etc. These problems, however, will be thoroughly discussed in
the context of secondary victimization (Campbell & Raja, 1999; Condry, 2010; Halder & Jaishankar,
2011). Following this, an attempt will be made to address these problems from TJ perspectives. In es-
sence, this chapter will offer constructive TJ approaches or solutions, so that, secondary victimization
(faced by sumangali victims) can be appreciably minimized.
1. SUMANGALI SCHEME: SLAVERY FOR DOWRY
Sumangali Scheme was introduced in the late 90s by the garment and textile manufacturers in the dis-
tricts of Coimbatore and Tirupur in Tamil Nadu, India. Soon, it became widespread throughout south-
ern and central Tamil Nadu, as garment industries began recruiting and employing young females on
a large-scale (SOMO & ICN, 2011). Currently, several hundred thousand workers are employed under
this scheme. Under the Sumangali scheme, factories generally hire recruiters, who visit impoverished
villages in Tamil Nadu to approach the families with daughters between the ages of 14 and 21, or even
younger. The families are told that their daughter will be looked after for three years, will live in a
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comfortable place where they will get three nutritious meals a day, and time for leisure and educational
activities (Sharma, 2011). In addition, they are promised a decent monthly wage, and a lump sum rang-
ing from Indian Rupees (Rs). 30,000 to 50,000 at the end of the three years (SOMO & ICN, 2011, p.
10). This proposition, however, is very appealing for these poor families, of whom more than half are
from Scheduled Castes (underprivileged section in India) (Sharma, 2011) and as is often the case, the
families sign their daughters up for the employment, hoping that they could use this lump sum toward
their dowries, when the girl attains the marriageable age.
Notably, marriages entail sizeable expenses in the Indian context. It is customary for the brides
parents to give reasonable gifts, often referred to as dowry to the bridegrooms family, for the happy
and contended life of their daughters after marriage (Solidaridad, 2012, p. 7). It is in this sense that a
lump-sum payment of Rs. 30,000 - 50,000, that the workers are promised to be paid after three years, is
seen as a big assistance by many families to arrange their daughters marriage, often including dowry
(SOMO & ICN, 2011). The payment of dowry, although legally abolished, is still prevalent in rural
parts of India, for which, families often incur high debts (SOMO & ICN, 2011, p. 3). Hence, Sumangali
Scheme is fittingly named as, Marriage Assistance Scheme (FWF Report, 2011). Notably, one of the
key aspects which is not immediately visible to the parents here is that, that they are actually facilitating
the trafficking of their own daughters. The recruiters pay an advance of Rs. 20,000 to the families, in an
effort to buy the girl child for work in textile industries. Not surprisingly, this small amount of money,
however, often wins the confidence of these families, as they send their daughters to work on scheme.
Thus, the practices under Sumangali scheme, in many respects, is likened to soft trafficking (Ambeth
Selvi & Madhava Soma Sundaram, 2008), a less explicit form of human trafficking.
According to the fact finding reports, the reality of working under the Sumangali Scheme, however,
stands in sharp contrast to the attractive picture that is presented to the poor families, when they sign
on (SOMO & ICN, 2011, p. 3). That is to say, sumangali workers are often forced to work overtime and
are remunerated well below the legally set minimum wage. Besides this, issues like restricted freedom
of movement, unhealthy and unsafe working conditions, lack of access to grievance mechanisms or re-
dress, limited privacy, blank contract and abusive supervisor are the universal features of working and
employment conditions under this scheme (SOMO & ICN, 2011, p. 3).
In similar vein, it may be argued that the exploitative practices under Sumangali scheme constitute
child labor and bonded labor. This is especially true of this scheme as it is estimated that around a fifth of
workers are children below 14 years (Mander, 2016); it not only destroys their childhood but also violates
the constitutional right to free and compulsory education. Alternatively, there is enough evidence that
parents are paid an advance of Rs. 20,000 to send their children to work. And thereafter, the children
are unable to leave the employment.
According to Mander (2016), these children continue to suffer in the employment because they are
paid a very small part of their wages for monthly survival, whereas, the major portion of their wages,
that is, the promised lump sum, is withheld by the employer until the end of the contract. Therefore,
Sumangali Scheme is not the straight forward case of bonded labor; it may be regarded as Reverse
Bonded Labor System a form of modern slavery. Furthermore, the employers also do not leave any
opportunity to take advantage of the low and vulnerable social position of young female workers. To
circumvent the lump sum payment, they deliberately fire the workers before they finish the three-year
contract and suspend their contract. Thus, in light of above facts, it is reasonable to say that sumangali
scheme exemplifies unacceptable standards of employment and labor conditions, even with bonded
labor (SOMO & ICN, 2011, p. 3).
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2. PROBLEMS FACED BY SUMANGALI WORKERS
2.1 Problems in Filing Complaints at the Labor Courts
Lack of legal literacy is not limited only to the general victims of crime, but expands to apply anyone
who feels violated and comes in contact with the court of law, regardless of the nature of their case. Yet,
when we speak of sumangali victims, the problem of filing a legal petition assumes a different dimen-
sion. That is, the female laborers who are recruited under sumangali scheme, generally fall between the
ages of 14 18 or even younger, which, leave no scope for legal knowledge among these adolescent
girls. This is especially true of young sumangali workers, who are generally not aware of the competent
authority to file their legal petition and to recognize the violation of their labor rights. This explains the
precarious situation of sumangali victims and calls for a solution that offers them support services like
legal information, advice and counseling.
2.2 Lack of Victim Lawyers/ Advocates/Support Worker
Nonetheless, it is surprising to note that the concept of victim protection is far from practice in the labor
courts-cum- industrial tribunals in India. Ideally, the labor courts dealing with industrial disputes do not
offer free accessory aid to the victims. Instead, it normally requires victims to hire a lawyer/ prosecutor at
their own expense. Under this background, the situation of sumangali victims seems quite depressing, as
majority of adolescent girls who sign on this scheme, hail from poor economic conditions. In other words,
sumangali victims often fail to afford a lawyer to represent themselves legally in labor courts. Given this
situation, it is reasonable to say that in the absence of competent lawyer/advocate, sumangali victims are
more likely to be the target of defense lawyer, instead of being treated with respect and human dignity.
2.3 Physical Difficulties and Jurisdictional Issues
As far as sumangali victims are concerned, the labor courts empowered to try industrial disputes do not
entertain cases over which they lack territorial jurisdiction. In other words, sumangali victims otherwise
residing within a defined territory cannot file petition in labor courts outside the jurisdiction of the com-
pany/factory also referred to as place of occurrence of incident, where they worked. As a consequence,
they are forced to travel long distance, most often across districts for attending court hearings in the face
of desperate financial crisis. In addition to this, the lawyers (representing sumangali victims) and the judge
presiding over labor court proceedings also present a number of anti-therapeutic responses to sumangali
victims. For example, many a times, the lawyers fail to communicate their inability to be physically
present on the day of court hearing, for which, sumangali victims typically bear significant travel costs
apart from lodging and food expenses. This essentially explains the feelings of frustration and anger that
might stem among them as a result of sleepless nights and physical exhaustion from over-night travel.
In a similar vein, we cannot concede that the judges at times do not preside over cases due to per-
sonal reasons, and that, on days of regular proceedings, the sumangali victims, however, wait longer for
their turn in court, and they are not able to afford to use the toilet for five minutes. Incidentally, if the
victims are called upon during this time gap of five minutes (relieving period) and supposedly, they fail
to confirm their presence before the judge at this call; their case is usually heard at the end of the day,
a punishment of sorts. Hence, from the above discussion, it is safe to say that the physical difficulties
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faced by sumangali victims, due to legal actors in the labor court, the rules of law and the territorial
jurisdiction issues, increasingly exacerbates their sufferings (primary victimization) and adds to their
levels of physical and emotional distress.
3. SOLUTIONS FROM THERAPEUTIC JURISPRUDENCE PERSPECTIVES
3.1 Solutions for Issues of Filing Complaints at the Labor Courts
Sumangali victims encounter a series of unfortunate experiences during their period on scheme. Much
of these experiences relate to the harm that they suffer at physical, psychological and emotional levels.
Sumangali victims should be encouraged to share these unpleasant incidents with their family members.
In doing so, they will have an opportunity to describe what happened to them, and how they felt about it,
which they may not otherwise clearly reveal when confronted by lawyers due to ever increasing fear and
anxiety. Moreover, airing the emotions and telling the story of trauma is believed to help victims gain
sympathy and understanding by their close ones (Winick, 2011, p. 5). Thus, asking sumangali victims
to express their feelings of pain and distress may not only facilitate re-framing of experiences but also
provide them with psychological benefits, one of the leading remedies to post-traumatic stress disorder.
Following this, sumangali victims may approach the local NGOs actively involved in advocacy on
labor rights issues, especially Sumangali Scheme. Ideally, NGOs championing the fight against this
scheme, offers free and competent legal services to sumangali victims. They generally have an impres-
sive network with legal practitioners, with competency in labor law. These lawyers, however, may either
file a complaint/case in labor court or a PIL (Public Interest Litigation) in the High Court, on behalf
of sumangali victims. In essence, sumangali victims, otherwise unable to gain access to legal advice,
counseling and legal representation in labor courts through litigation, may consult NGOs tasked with
combating this nefarious scheme. Also, such specialized NGOs may provide sumangali victims with
critical knowledge of legal provisions and processes, alongside skills to use this knowledge to realize
their rights. In other words, victims may feel less terrified and confused about the legal proceedings,
given the support of these NGOs. Indisputably, NGOs could serve as a capable therapeutic agent for
sumangali victims.
Again, the above therapeutic function may be carried out by trade unions that generally represent the
rights and interest of the employees. The trade unions have growing potential to legally empower the
victims of sumangali victims. Not only could they supply information regarding various stages of legal
process, but also help the victims draft legal petitions. Similarly, trade unions could be helpful to move
the petition in labor courts and judicial commissions, as and when required.
In order to write an effective legal petition, one should have an intimate understanding of what exactly
should go into it; and indeed, how the case could be solidified in favor of the petitioner. As such, in the
case of sumangali victims, drafting a petition could be very critical. After all the abuse and violence
sumangali laborers go through, it becomes essential that the petition includes precisely all the violations,
in terms of rights, resulting from such mistreatment. In essence, a petition should not lose any crucial
piece of information and the lawyers attached to specialized NGOs can ensure the inclusion of all the
facts, circumstances and related violations. Nonetheless, the question that immediately follows is: how
lawyers could extract this information from sumangali victims? Listening to sumangali victims (as they
express their unfortunate incidents) may afford the lawyers to readily capture these details, while also
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helping the victims achieve a sense of satisfaction. This satisfaction, nevertheless, relates sympathizing
with them, and understanding their grievances and resentment, which is precisely, what we believe could
accomplish therapeutic goals for sumangali victims. Furthermore, it may generate in them a sense of
hope, trust and confidence towards justice system and legal actors at large.
In similar vein, free legal aid services available at District, Taluk and Magistrate Court level could
be of some support to victims of sumangali scheme. These legal resource centers, for example, may
render victims critical knowledge of how to file a legal petition and could possibly guide them with
respect to the competent authority to which this petition must be dropped.
Can law students potentially offer legal knowledge to sumangali victims and help them to understand
the legal proceedings? Can law students assist sumangali victims file a legal petition? These are some
of the inciting questions that demand our attention from TJ lens. Wexler (2011) noted that student af-
filiated with law school clinic could offer capable and legally knowledgeable accompaniment to victims
who may need help to understand the proceedings (p. 89). It is this proposition from Wexler which gave
TJ literature a new meaning and of course an avenue for social scientists to explore further. However,
before conforming, it would be worthwhile to scrutinize the feasibility to accommodate his TJ approaches
in case of sumangali scheme. Here, to draw an assessment, we intend to highlight the dismal situation
of lawyers, currently practicing labor law in India. One good example in this connection is the impact
of privatization and globalization on lawyers throughout the country. In simple words, the steadily de-
creasing number of lawyers (victim based/labor oriented) to fight cases on behalf of labors, is the sad
reflection of our time that lawyers are heavily inclined towards management sides (multinational and
insurance companies) which pay them hefty sum of money. And, this explains the rapid digression of
lawyers away from labor rights and the declining standards of competency among legal professionals, as
a consequence. Therefore, Wexlers proposal of viewing law students as therapeutic agent does not seem
to materialize in case of sumangali victims and if it had to, by any chance, then law students should be
attached with specialized NGOs (fighting against sumangali scheme) and function rigorously as a part
of fact finding team, besides, receiving legal inductions from lawyers working for these NGOs, either
as an intern or trainee etc.
3.2 Solutions for the Issue of Lack of Victim

Lawyers/Advocates/Support Worker
Prior to discussing the alternatives that could help sumangali victims achieve protection during proceed-
ings and trial in Labor Courts, it is vital to understand the nature of sumangali scheme, as duly recog-
nized under Indian legal system. While industrial dispute cases are generally considered to be civil in
nature, sumangali scheme is an exception and therefore cannot be looked as a totally different sphere.
In other words, sumangali scheme encompasses a combination of violations that are equally consistent
with the features of civil, criminal and labor cases. For instance, a young female worker, who decides
to labor under sumangali scheme, goes missing after one year and the factory owner refuses to take the
accountability of her whereabouts. In such cases, girls parents can file a writ petition under habeas
corpus Article 226 of Indian Constitution in the High Court, stating that their daughter worked under
sumangali scheme for one year and since then she has gone missing; kindly take needful actions to trace
her. In the above example, the petition filed could neither be considered civil nor be treated labor. But
then, the most obvious follow-up question is: which case could be treated as labor? The rights guaranteed
to the labor section under labor laws both national legislations and ILO conventions should be used as
177

the yardstick here. Lets say: non-payment of salary, forced over-time, no week-offs and so on. It is,
however, the violation of these rights which amounts to cases of industrial disputes; commonly referred
to as labor cases. Hence, the above discussion pushes the idea that before addressing the problem of
victim protection (in the case of sumangali scheme) from TJ viewpoint, it is quite imperative to remove
the misconception attached as to the nature of cases ensuing from sumangali scheme.
As far as the protection of sumangali victims (from secondary victimization) is concerned, it is worth
recalling that labor courts do not grant them free accessory aid like lawyers /advocates/prosecutors for
legal representation. In other words, labor courts trying cases of industrial disputes normally require
victims to hire lawyers/advocates at their expense in order to present their case. It is this proposition,
that offers more worry than hope, as it leaves sumangali victims of any worthwhile chances to derive
psychological benefits otherwise possible due to presence of victim lawyers (by their side) in a court
room. However, even as this situation becomes challenging to attain therapeutic goals for sumangali
victims, we strongly believe that NGOs fighting to abolish sumangali scheme and free legal aid set
up at the district and taluk level could offer reasonable assistance to sumangali victims to prevent re-
victimization, occurring as a result of stress-provoking behaviors of the legal actors within labor courts.
As mentioned earlier, the specialized NGOs (advocating against sumangali scheme) can play an
essential role in protecting the young sumangali workers from feelings of re-victimization in the labor
court process. That is to say that the lawyers attached to these NGOs may assist sumangali victims in
many ways during proceedings. Be it in form of emotional assistance, transfer of information regarding
procedure and trials, or protection against the aggressive and intrusive behavior of the counsel from
management side etc. Therefore, an active assistance of lawyers (from specialized NGOs) can consider-
ably mitigate unnecessary pressure and burden for the victims, thus allowing them to achieve emotional
relief and protection inside and outside labor court (Kury & Kilchling, 2011, p. 62). Accordingly, given
the paucity of other competent sources for legal assistance, we recommend that reaching to the NGOs
seems very feasible and reliable alternative for sumangali victims.
While NGOs may seem to be the best option to seek therapeutic outcomes in regards to protection
of sumangali victims, the next better option that could be counted is: free legal aid services, available at
district and taluk level. These apparatus could be helpful for sumangali victims, who do not have access
to specialized NGOs in their locale. In simple words, free legal aid may at least provide momentary relief
(if not therapeutic) to sumangali victims in absence of NGOs advocating against sumangali scheme.
But, on the flip side, this option has couple of limitations too. One: Although free legal aid is open to
the poor and weaker section of the society; sumangali victims are not aware of the availability of such
welfare services. Two: the lawyers attached to these settings generally do not have specialization in any
one area of legal practice, but possess an elementary knowledge of legal principles and its applications.
This way, the theoretical and practical grasp of these lawyers with respect to labor law is always open
for contention.
In light of above discussion, the ineptitude of the lawyers (attached to legal aid set up) to draft com-
plaints for sumangali victim, is perhaps an apt example. In more detail, a victim of sumangali scheme,
aged about 14 years, hailing from scheduled caste background may generally seek justice and protection
under a minimum of five central acts of parliament viz., Bonded Labor System (Abolition) Act (1976),
The Protection of Children from Sexual Offences Act (POCSO Act) (2012), Child Labor (Prohibition &
Regulation) Act (1986), Minimum Wages Act (1948), Factories Act (1948), and The Scheduled Castes
and Tribes (Prevention of Atrocities) Act, (1989). Thus, in order to effectively respond to such cases, a
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lawyer must have in-depth knowledge of these acts; besides having the competence of connecting them
with perceived violations that sumangali victims undergo. Unfortunately, the situation is dismal in case
of lawyers attached to free legal aid set up as they do not have the requisite skills to clearly identify and
capture all the violations that occur under sumangali scheme (in relation to above acts) into a complaint
draft, thereby loosing crucial information helpful for the victims to fight the case favorably. Hence, it is
clear from the above discussion that free legal aid services more often than not lead to anti-therapeutic
impacts on victims due its inherent deficiencies and hence cannot replace the therapeutic role of NGOs
in victim protection during legal proceedings.
3.3 Solutions for Physical Difficulties and Jurisdictional Issues
The existing rules of law (followed within labor courts) seem largely unreasonable, for it does not take
into consideration, the needs and interests of sumangali victims. Besides physical difficulties, it also
contributes to excessive delay in administration of the final judgment, which nevertheless, relegates the
victims to physically and psychologically precarious situations. In this sense, the given condition of
sumangali victims, calls for some flexibility in laws, so that, it can prove welfare legislation for these
hapless young female workers. Therefore, in an effort to effectively address the above problem from TJ
lens, we intend to propose an alternative legal remedy, notwithstanding the rule of law that mandates
filing of legal petition (in labor courts) only at the place of occurrence of incident in this case the cotton
and spinning mills.
The adoption of victim welfare measures as contained in Motor Vehicle Act, (1988), could be very
helpful to address the issue of territorial jurisdiction in case of sumangali victims. As such, a part of this
Act, provides for speedier remedy to victims of road accident by motor vehicle. Here, the term speedier
remedy refers to the jurisdictional options that are available to the aggrieved (victims) for filing their
accident cases. In simple words, a victim of road accident by motor vehicle is duly allowed under this act
to file his/her complaint in three jurisdictions across India viz., a) the residential area of the victims; b)
the place of occurrence of the accident; and c) at the branch offices of the vehicles insurance company.
Therefore, even if a person meets with an accident at a place outside his residential area (alien land),
he/she may still consider the option to file the complaint/case in his residing territory or at the nearest
branch office to which his vehicle is insured. In this sense, the victim could be spared from undesirable
physical difficulties like traveling to the place of accident for case hearing and need not wait longer to
get redressed from civil courts. Even though, it is worth noting that unreasonable delay in dispensation
of justice is directly linked with the jurisdictional issues.
From the above discussion, one can arguably deduce that welfare legislation such as the Motor Ve-
hicle Act, (1988) may greatly facilitate the reduction of physical difficulties typically encountered by
sumangali victims due to jurisdictional issues. In other words, given the option to file complaints/cases
in the labor court that fall within the residential territorial jurisdiction of sumangali victims, the labor
courts could not only avoid victims from physical sufferings but psychological strains like frustration,
anger and resentment.
Notably, even as these suggestions emanates from the Motor Vehicle Act, (1988), we believe that
there is a pressing need for rigorous examination of the so called speedier remedies contained in the
former act in light of Therapeutic Jurisprudence, to estimate its restorative effect on the victims of road
accident. Such inquiries, in particular, should aim at gauging the satisfaction level of the victims of
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road accident with the existing jurisdictional options for filing complaints and the degree to which the
flexibility of these welfare measures facilitates psychological benefits to them. Further, it is essential to
recognize that sumangali scheme is a problem unique to Tamil Nadu, and hence, the above suggestions
shall materialize, only if a special act is constituted to regulate this scheme.
CONCLUSION
This chapter provides a number of suggestions drawn from therapeutic jurisprudence that are tailored
to minimize the secondary victimization of young sumangali victims by the labor courts in the southern
state of Tamil Nadu, India. These suggestions are somewhat practical and largely based on lead authors
personal experience of working with sumangali victims. Whether these proposals would be successful in
facilitating therapeutic effects to sumangali victims and avoiding anti-therapeutic effects of labor courts
requires further research. There are very few empirical studies in this area (Ambeth Selvi & Madhava
Soma Sundaram, 2008). Social scientists interested in industrial disputes, labor courts and plight of
sumangali victims are encouraged to conduct empirical researches on perceptions of victims and lawyers
(working in labor courts), as to what victims want and need and how juridical responses can be improved
to facilitate physical, psychological and emotional well-being of sumangali victims.
REFERENCES
Ambeth Selvi, A., & Madhava Soma Sundaram, P. (2008). No Law, Low-Enforcement Trap: A Glimpse
of Victimization of Girls through Soft Trafficking In Crime Victims and Justice: An Introduction to
Restorative Principles (pp. 308-319). New Delhi: Serials Publications.
Campbell, R., & Raja, S. (1999). Secondary victimization of rape victims: Insights from mental health
professionals who treat survivors of violence. Violence and Victims, 14(3), 261275. PMID:10606433
Condry, R. (2010). Secondary Victims & Secondary Victimization. In International Handbook of
Victimology (pp. 219- 245). Boca Raton, FL: CRC Press, Taylor and Francis Group. doi:10.1201/
EBK1420085471-c8
Erez, E., Kilchling, M., & Wemmers, J. (2011). Therapeutic Jurisprudence and Victim Participation in
Justice: An Introduction. In E. Erez, M. Kilchling, & J. Wemmers (Eds.), Therapeutic Jurisprudence
and Victim Participation in Justice (pp. ixxii). Durham, NC: Carolina Academic Press.
Fair Wear Foundations Report. (2010). Retrieved from http://www.fairwear.org/ul/cms/fck-uploaded/
documents/companies/FWFdocs/fwf-india-sumangalischeme.pdf
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parative Analysis of US, UK and India. Victims & Offenders, 6(4), 386398. doi:10.1080/15564886.2
011.607402
Kury, H., & Kilchling, M. (2011). Accessory Prosecution in Germany: Legislation and Implementation.
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Mander, H. (2016). Child camp coolies in Tamil Nadu. Retrieved from http://www.livemint.com/
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Wemmers, H. (2011). Victims in the Criminal Justice System and Therapeutic Jurisprudence: A Cana-
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NC: Carolina Academic Press.
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Chapter 12
Toxic Workplace Environment
and Its Impact on Women
Professors in the United States:
The Imperative Need for
Practices in Higher Education
Roslin Growe
University of Louisiana Lafayette, USA
William A. Person
Alabama State University, USA
ABSTRACT
Higher education, often referred to as the ivory tower, gives the grand illusion of an environment of
learned individuals with intellectual agendas and pursuits. This specialized environment is not a resis-
tance-free fortress immune from toxic behaviors and unfair internalized institutional structures. In this
chapter, the authors provide some theoretical perspectives of a toxic workplace environment. Then the
authors focus on a review of literature on toxic leadership; the conceptualization of workplace bullying;
the prevalence of academic mobbing; and the effects of toxicity on women professors in the academy.
The final sections of the chapter include a discussion of implications for policy development in a toxic
workplace; implications for research on toxic university environment; and concluding remarks.
INTRODUCTION
A toxic work environment is an unhealthy work environment. The dynamics of hostile attitudinal be-
haviors are being manifested in the workplace on a regular basis and in extremely intrusive manners.
Toxic behaviors often create a hostile work environment that easily escalates into harassment, stress,
verbal aggression, discrimination, unrealistic expectations, emotional abuse, bullying, intimidation,
DOI: 10.4018/978-1-5225-2472-4.ch012

Toxic Workplace Environment and Its Impact on Women Professors in the United States
personal insults, incivility, and other types of counterproductive negative actions (Sutton, 2007). When
a workplace allows misconduct to exist, inevitably, destructive emotional and mental repercussions will
develop. When this type of environment continues to exist, Namie and Namie (2009) and Einarsen, et
al. (2003) describe this as an epidemic of bullying in the contemporary workplace.
BACKGROUND
Structural determinants of toxicity in higher education will be explored. Demoralizing, dehumanizing,

devaluing, bullying and uncivil behaviors are used to describe the processes by which systematic or-
ganizational structures within the academy are sanctioned and allowed to perpetuate toxic or hostile
workplace environments. The undeniable contribution of women professors in this field, the undermining
of their role as instructional and administrative leaders, and the overall lack of research on this aspect of
academia indicates further investigative exploration on the topic of women in academia and the impact
of a toxic workplace environment on their job performance and morale.
The authors propose establishing a foundational understanding of what factors contribute to an en-
vironment becoming toxic and how this toxic workplace environment impacts women professors in the
academy. As research studies cited in this chapter indicate higher education or, as many would like to
call it, the ivory tower, is not immune from but mirrors the corrosive, decisive, and damaging impact
these negative behaviors have on the lives of targeted individuals.
THEORETICAL PERSPECTIVES OF A TOXIC WORKPLACE ENVIRONMENT
During the course of our lives, no environment, in which we exist, claims as many of our waking hours
as the workplace. For instance, if we assume that a typical individual works 40 hours per week or ap-
proximately 2080 hours per year for 40 years, the total number of hours worked would be 83,200. Con-
sequently, many of our waking hours are spent at work. Since many hours are spent in the workplace
with many individuals, the numbers of human interactions are multiple and constantly changing. In other
words, there are constant opportunities for toxicity to occur among and between individuals. How can
this phenomenon be better understood and explained? What factors contribute to individuals working
together in positive and constructive ways? What factors contribute to individuals developing a very
toxic and hostile relationship in the workplace? What factors contribute to individuals basically taking
a neutral position in their relationship with their colleagues in the workplace?
Many theoretical perspectives have been offered for several years to help us understand this psychoso-
cial behavior in the workplace environment. Perspectives by Herzberg, Mausner and Snyderman (1959),
McGregor (1960), Bandura (2002), Zimbardo (2004), Koehn (2007), Madan (2014), and Gilbert, Carr-
Ruffino Ivancevich, and Konopaske (2012) are discussed to provide various possible explanations of this
phenomenon. In the mid-20th century, Herzberg and his colleagues attempted to describe the relationship
between job satisfaction and dissatisfaction (Herzberg et al., 1959). The two part theory included hygiene
factors and motivation factors. The hygiene factors were found to be those that were external to workers
and expected by the worker, such as organizational policy, salary, work conditions, and relationships with
subordinates and peers. As a consequence, the absence of these factors was found to lead to job dissatis-
183

faction; however, the presence of these factors did not result in job satisfaction. For instance, increasing a
workers salary could result in less job dissatisfaction, but not in greater job satisfaction.
On the other hand, motivation factors were found to be internal to the worker such as job responsi-
bility, recognition, achievement, advancement, and the work itself. The presence of these motivation
factors were found to lead to greater job satisfaction. The worker, according to Herzberg, has an in-
trinsic motivation or drive to achieve, to increase his work responsibility, and to be recognized. When
the aforementioned entities coincide, the worker experiences greater job satisfaction. The primary role
that hygiene factors play is to reduce the level of external impact of job dissatisfaction by making sure
that those factors are provided in the workplace. Herzbergs Motivation-Hygiene Theory parallels with
Abraham Maslows hierarchy of needs, which range from the basic physiological needs for food, safety,
and shelter to the highest need for self-actualization (1954). Maslows position is that once the lower
needs are satisfied, they are no longer important to the individual. The next need in the hierarchy then
becomes the dominant need to be satisfied.
During the same period of time, Douglas McGregor (1960) published his book titled The Human
Side of Enterprise to offer his Theory X and Theory Y explanation of how individuals behave in the
workplace. Theory X assumes that the worker inherently does not like to work. As a consequence, the
worker must be instructed, controlled, or threatened to work hard. This means that management is ex-
pected to be strict and unkind with very rigid controls and negative consequences to get the job done.
There is very little opportunity for creativity in a Theory X workplace environment. On the other hand,
Theory Y assumes that the worker is fully committed to the vision and mission of the organization. The
worker is creative, seeks responsibility, and tends to focus on solving work related problems. If the as-
sumptions of Theory X and Theory Y are accepted as plausible, then the clear need to be careful in the
personnel selection process cannot be overstated. An extreme Theory X manager or superordinate paired
with an extreme Theory Y subordinate or peer would probably result in much turmoil in the workplace.
Albert Banduras introduction of the Social Learning Theory in the 1960s is significant in helping
to further understand how a toxic workplace environment could be perpetuated. The Social Learning
Theory indicates that as a cognitive process, learning occurs in a social context which may happen pri-
marily through direct instruction or observation (Bandura & Walters, 1963; Bandura, 1977). When an
individual is placed in a toxic workplace environment and has an opportunity to observe toxic behavior on
a frequent basis, it is likely that this social context provides a significant opportunity for the individual to
develop an insatiable appetite for corruption and workplace toxicity (Bandura, 2002; Zimbardo, 2004). In
this context, the individual may feel powerful over subordinates in the workplace and get great satisfac-
tion over pushing subordinates or peers around and humiliating them. Such behavior can be observed,
learned, and practiced as an appropriate and acceptable way to interact with subordinates and peers in
the workplace environment (Madan, 2014; Koehn, 2007). The ultimate result is the perpetuation of a
toxic workplace environment.
Koehn (2007) further described the learned toxic behavior as a self-centered disconnect from hu-
manity and a subsequent severing of empathetic ties to others. Such self-centered behavior can lead
to an excessive focus on self-gratification in the workplace environment, which can result in a serious
violation of the rights of others or in abuses of control, bullying, and exploitation. Furthermore, Koehn
(2007) stated: Our illusions so consume us that we are not able to feel compassion toward others (p.
3). Consequently, a toxic workplace is perpetuated. According to Gilbert, Carr-Ruffino, Ivancevich, and
Konopaske (2012), the workplace environment could be described as a cohesive entity or community.
In such an environment, superordinates, subordinates, and peers are (a) surrounded by mutually sup-
184

portive persons; (b) guided by policies and procedures that are fair and equal; and (c) supported by col-
leagues who are engaged in the process of self-development. Such a community ennobles all workplace
participants at all levels of the organizational hierarchy.
Overall, the theoretical perspectives introduced in this section were not intended to be exhaustive.
The intent was to briefly describe some selective perspectives of various workplace environments. The
focus of the next section of this chapter is on a review of literature on toxic leadership; the conceptualiza-
tion of workplace bullying; the prevalence of academic mobbing; and the effects of toxicity on women
professors in the academy.
Toxic Leadership
George Shea, author of Your Job Survival Guide with co-author Robert Gunther, state that an unyield-
ing job market tends to encourage the growth of toxic environments. Every so often a toxic relation-
ship develops from a misguided belief of this kind of behavior leading to better job performance. The
authors further contend that leaders can get perplexed trying to distinguish between being demanding
and inappropriately handling people in an unsuitable manner (Shea & Gunther, 2009; Knowledge @
Wharton, 2015).
Toxic leader behaviors oftentimes create a toxic environment. Toxic leaders act without any regard
to integrity or honor. Their behaviors are not intended to uplift rather to display shrewdness, deliberate
agony, anguish, disgust, while constantly portraying a demeanor of superiority. These actions benefit
no one. Toxic dispositions are detrimental and dangerous to any organization. These types of nega-
tive behaviors are aimed at subordinates putting them in a position of helplessness and hopelessness.
Destructive leader behaviors may and do affect the physical and mental health of the employee (Dyck
& Roithmayr, 2001). From an overwhelming assault on the mind and emotions (Fisher-Blando, 2008),
many targets perhaps suffer from a mental disorder (Namie & Namie, 2009). This alarming condition
requires the target to seek professional assistance in trying to cope with the unfortunate and uncalled
for life altering event.
Dodds (2014) depicts toxic leadership as a multidimensional construct that includes elements of
abusive supervision. As debilitating as abusive supervisory behaviors are, evidence of other injurious
dynamics still take place involving those under attack. Other tendencies include (a) physical and mental
distress (b) increased absenteeism and tardiness, (c) reduced productivity, and (d) resignation or trans-
fers. Toxic leaders possess characteristics that are: unethical, self-promoting, abusive with oppressive
supervision, hostile toward others, display of destructive behaviors, and narcissism with authoritative
tendencies (Dobbs, 2014; Schmidt, 2014).
The Conceptualization of Workplace Bullying
Andrea Adams coined the phrase workplace bullying based on her 1988 investigation of The Mis-
treatment of Employees in a Bank (as cited in Namie & Namie, 2009; Fisher-Blando, 2008). A Brit-
ish broadcaster and journalist, she was the first person to recognize the significance of bullying in the
workplace in Britain and its overwhelmingly destructive influence on peoples lives and personalities
(Adams, 1994; Gravois, 2006; Schmidt, 2014).
Workplace bullying has been referred to in the research area as harassment, psychological terror,
emotional abuse, and victimization (Needham, 2003; Fisher-Blando, 2008). Bullying in the workplace
185

is far too pervasive in so many aspects including in higher education. It has been described as the silent
epidemic (McAvoy & Murtagh, 2003). With an epidemic of this nature come unimaginative casualties.
Workplace bullying has become a major problem bringing with it severe anti-social behaviors (ODriscoll,
et al., 2011), which have been recognized as unacceptable workplace behaviors (Olsen, 2010; Samnani,
& Singh, 2012). Research in the investigation and findings on workplace bullying related to women
professors in the academy tend to far exceed workplace bullying among their male counterparts.
Negative and hurtful behaviors seek to encourage injury, jeopardize the targets job and profession,
and obliterate interpersonal relationships. Andrea Needham (2003) gives an illustrative account of bul-
lying in the workplace, not only from the standpoint of a researcher, but also a target. The 2007 U.S.
Workplace Bullying Survey reported that 45% of bullied targets displayed stress related health problems
as a result of being bullied (Workplace Bullying Institute [WBI], 2007). Health problems such as anxi-
ety, depression, fatigue, irritability, difficulties in concentration and sleeping, low morale, and lack of
job satisfaction are all examples of the emotional and physiological impacts of stress (Babcock, 2003).
The health factor alone is negatively impacted by stressful working conditions, which in and of itself is
a major problem.
So much of the research has revealed a positive correlation between health consequences and bully-
ing. The abnormality and dysfunction that surround successive or chronic bullies ultimately affect the
entire organization (Needham, 2003). Kitt (2004) and (Fisher-Blando, 2008) note that the compulsion
to act aggressively is highlighted in the bullys constant demands for respect and consideration, hardly
ever reciprocating the same treatment to others. The tendency to exert power, although painful to others
being the subject of such demonizing, is easily justified in the mind and actions of the bully. Unthinking
managers may misconstrue intimidating, aggressive bullying as good management or generating healthy
competition among employees (Fisher-Blando, 2008; McCormack, et al., 2007). Reasons such as these
make the case for the closely monitoring of workplace behaviors of those in leadership roles.
Quantifiable statistics are associated with employees being bullied. According to Namie and Namie
(2003), 82% of employees who had been bullied left their workplace either for health reasons (38%) or
because they were victims of a low performance appraisal controlled by a bullying supervisor to show
them as incompetent (44%). Another study by Namie and Namie (2009) revealed that women were
targeted excessively, with 71% of women reporting having been bullied by women and 46% of women
reporting having been bullied by a man. Because of bullying, 40% of the targets resigned and 24% targets
were fired. Unfortunately, 44% of the time the organization did nothing to provide any type of relief for
the targets. In 18% of the cases, the situation got worse for those being bullied once maltreatment was
reported (Nealey, 2009). Bullying leaves lasting repercussions.
Interestingly, Keashly and Neuman (2010) point out that since a significant amount of research has
been completed on workplace aggression and bullying over the past two decades, universities have paid
little attention to bullying in their own institutions. Although bullying can be substantiated in the work-
place, there is currently no legislation in the United States to assist the person being targeted or unfairly
treated. A glimmer of hope, however, appears to be in a Massachusetts 2013 Healthy Workplace Bill
designed to address workplace bullying. Robert Maurers (2013) article Workplace Bullying Laws on
the Horizon found on the Workplace Bullying Institutes site that twenty-five states since 2003 have
proposed anti-bullying legislation that would allow for a victim of bullying to sue their employer for
harassment without proving discrimination. Presently, bullying by itself does not violate Title VII or any
other anti-discrimination law (Workplace Bullying Institute, 2013).
186

Sweden was the first nation to have a law to protect victims in the workplace (1994). It is ironic that
Sweden and Norway were the first countries with specific bullying legislation (Einarsen et al., 2003).
However, other nations appear to be addressing the matter with more exuberance. Some of the countries
are: Australia, Belgium, Canada, Denmark, Finland, France, Germany, Ireland, Korea, Luxembourg,
Netherlands, Norway, Portland, Serbia, Spain, Sweden, Turkey and the United Kingdom (Barnes, 2016).
Apparently, the sense of urgency has not rattled the United States to the point of recognizing the value
of employees in terms of worth, dignity, safety, health, and overall well being.
Workplace bullying is an unfortunate reality that has escalated to a point where suicide appears to be
the only recourse for some not finding an ally or a meaningful course of action that will bring positive
results. This was the path chosen by Kevin Morrissey, a well-acknowledged managing editor who com-
mitted suicide near the University of Virginia campus. The aspiring 52 year-old professor, employed at
the University of Virginia since 2003, had allegedly been bullied by his boss there, had grown weary and
depressed, and shot himself in the head near the campus (Wilson, 2010). This was and is not an isolated
incident but nonetheless distressing.
In the academic realm, over the years, the Chronicle of Higher Education has published articles on the
topic of bullying within the walls of the academy. Some examples are; Jones (2013), Is There a Bully in
Your Department?; Scranlon (2016), Halting Academic Incivility (Thats the Nice Word for It); Female
Science Professor (2014), Talking About a Toxic Environment; Fog (2008), Academic Bullies;June
(2009), Mobbing Can Damage More Than Careers, Professors Are Told at Conference;Gravois (2006),
Mob Rule;Schmidt (2010), Workplace Mediators Seek a Role in Taming Faculty Bullies;Ower
(2004), Mississippis Climate Unhealthy for Academics;Chapman (2010), Academic Cyberbully Is
Sentenced to Jail in Dead Sea Scrolls Case; Robert J. Sternberg (2015), Coping With Verbal Abuse;
and Wilson (2010)What Killed Kevin Morrissey? How the Death of an Editor Threatens the Future of
the University of Virginias Prestigious Literary Review.
Bullying is extremely insidious in higher education and may be prevalent in cases such as promo-
tion, tenure, teaching assignments, merit assignments, salary increases, limitations that have nothing
to do with ability, qualifications, talents, or contributions to the organization, race and/or gender, being
socially excluded, ignored in meetings, because of power imbalance difficulty in defending oneself,
continual insults, and being humiliated and/or ignored. Such actions are usually covert until brought to
the attention of upper administration. Unfortunately, then, nothing is resolved and many times no relief
is in sight because those who serve in superordinate positions have a propensity to side with the bully.
When this occurs, mobbing becomes apparent.
Prevalence of Academic Mobbing
Frequently, a leader or someone in authority empowers a secretary, assistant, fellow staffer, or someone
with a lower ranking to exercise his or her delegated authority. While the leader is not directly showing
hostility or antagonism, their power is indirectly advanced through an appointed subordinate (Hollis,
2012). The responsibility of that person is to wreak havoc and to inflict continued agony on the targeted
individual in an attempt for that person to succumb to deliberate mean and inhumane treatments. Rather
than the victim dealing only with the leader or the person in authority, now others are involved in ad-
ministering punishment to the person treated as an outcast. Mobbing and bullying at the workplace
are terms describing how co-workers, superiors or subordinates attack a persons dignity, integrity and
187

competence, repeatedly, over a number of weeks, months or even years. A person is being subjected to
emotional abuse, subtly or bluntly, often falsely accused of wrongdoing, and is persistently humiliated
(Zanolli, 2002).
German-born Swedish psychologist and medical scientist Heinz Leymann, identified the behavior
of mobbing as psychological terror which involves unethical and hostile communication systemati-
cally directed by one or more individuals towards a specific target (Zanolli, 2002). These behaviors
were grouped into five categories: attacks on self expression and communication; attacks on a persons
social relations; attacks on a persons reputation, attacks on the quality of a persons professional and
life situation and direct attacks on a persons health (Elliott, 2011). Examples of the 45 typical mobbing
behaviors identified by Leymann were withholding information, isolation, badmouthing, constant criti-
cism, circulation of unfounded rumors, ridicule, yelling, etc. (Zanolli, 2002). While these behaviors are
negative, they have a profound effect on the individual being targeted. In so many instances, the organi-
zation ignores or chooses not to get involved which gives the impression of condoning such behaviors.
The victim is being tortured from all angles without any meaningful relief in sight.
Mobbing practices are common against employees having superior work related qualities (Davenport
et al, 2003). Because of their innovative ideas, productive employees are more subject to mobbing and
are perceived as a future threat to their superordinate bully (Davenport et al, 2003). Nola Zanolli in her
publication When Conflict in the Workplace Escalates to Emotional Abuse argues that mobbing often
starts with a conflict and little regard for the size or type of the conflict. It does not matter how hard an
individual may try to resolve an issue, the matter does not get resolved. The person seeks a remedy, but
none seems to exist. The problem then does not go away, but rather proliferates to a point of no return
(Zanolli, 2002). Three reasons are given for organizations not getting involved. One is that mobbing
behaviors are overlooked, tolerated, misinterpreted or actually instigated by the company or the organi-
zations management as a deliberate strategy. The second reason is that this behavior has not yet been
recognized as a workplace behavior different from sexual harassment or discrimination. Thirdly, the
victims are usually worn down and left with feelings of exhaustion and incapable of defending them-
selves (Zanolli, 2002).
Mobbing in higher education is no different than in any other workplace. Academic mobbing is de-
fined by the Chronicle of Higher Education (11 June 2009) as: a form of bullying in which members
of a department gang up to isolate or humiliate a colleague. The Chronicle continues: If rumors are
circulating about the targets supposed misdeeds, if the target is excluded from meetings or not named
to committees, or if people are saying the target needs to be punished formally to be taught a lesson,
it is likely that mobbing is under way (Petrina, 2014).
Cabaros and Rodrigues (2006) conducted a study on mobbing in the Universities of Santiago de Com-
postela, Vigo and Coruna in which 7,432 administrative, service, educative and investigative personnel
were surveyed. Interestingly, 54% of mobbing victims were female. This also confirms research findings
by Stokes and Klein (2008) that according to the Academic Freedom and Tenure Committee, women
are the victims of 75 to 80% of the mobbing cases at universities. A noteworthy finding of Cabaros and
Rodrigues that aligns with research on mobbing at universities in the United States is that females do
not have enough protection in the workplace (Hollis, 2012; Cobb, 2011).
In summary, the impact that academic mobbing, academic bully, and toxic leadership has on university
workplace environment is clearly represented by Figure 1.
188

Figure 1. The impact of toxic behavior on the workplace environment
The Effects of Toxicity on Women Professors in the Academy
The Digest of Education Statistics for 2012-2013 reports that postsecondary institutions awarded a larger
number of Bachelors, Masters and Doctors degrees to females than their male counterpart (National
Center for Education Statistics, 2014). However, they continue to be relegated to low paying jobs in
disciplines other than the engineering and sciences (National Center for Education Statistics, 2014). It
stands to reason that professors from underrepresented groups, and women professors in some academic
disciplines, particularly in the sciences and engineering, experience some special sensitivities to a toxic
workplace environment in some universities. For instance, Female Science Professor, the pseudonym
of a professor in the physical sciences at a large research university (February 16, 2014), reported in
The Chronicle of Higher Education, that if a woman professor complains about a toxic workplace
environment, it could be construed that women professors tend to cause problems in the academy. As
a consequence, women professors would probably be reluctant to explain why they were leaving that
environment, especially if they believe that the toxic or subtle hostile treatment could follow them to
their new workplace environment.
As women professors enter the academy, their anticipated contributions and enthusiasm are breath-
taking. However, as many of them continue their intellectual endeavors, they are faced with unforeseen
challenges. Eddy and Ward (2015) unveiled statistics that were inexcusable. Women represent half of
new faculty with a promising career as a faculty member. At the beginning of their career with repre-
sentation and experiences varying by discipline, particularly in the science and engineering areas, males
at the same level are placed above the women at all ranks. An appalling assessment is surmisedthat
women still face inequity in every aspect of the higher education. Mary Ann Mason (2011) poignantly
makes the case that in higher education, there are far fewer women than men at the top of the academic
hierarchy and those women are paid somewhat less than men. At the bottom of the academic hierarchy,
in the adjunct and part-time positions, there are far more women than men in those positions with women
receiving the lowest wages in the academy.
Scott Jaschik, on June 12, 2008, in Quiet Desperation of Academic Women shares the results of
interviews with 80 female faculty members at a research university. According to Jaschik, a significant
number of women in careers were profoundly frustrated by a system they believe undervalued their work
189

and denied them opportunities for a balanced life. Although many of the concerns involved more subtle
deeply entrenched inequities, the largest qualitative study of its kind found some overt discrimina-
tion in the form of harassment or explicitly sexist remarks. While there are scholarly deliberations and
discussions about women in the academy, little has been done in this area (Monroe, Ozyurt, Wrigley &
Alexander, 2008). An overview of the same study pointed to gender disparities among positions with
higher salaries and greater powers; employment patterns in the academy mirroring the patterns practiced
in the professional world where positions with higher status, power, and compensation are generally
dominated by males; tenured professors are generally four times more likely to be male; and little re-
sults when women pursue legal mechanisms discovering that overt forms of political action evoke stern
reprisals for the agitator.
Implications for Policy Development in a Toxic Workplace
There are many factors that bring superordinate, subordinates, and peers together in a workplace envi-
ronment. Usually, there are various levels of educational attainment, years of professional and technical
experience, demographic variations such as age, gender, ethnicity, race, religion, and levels of disabil-
ity. When such a vast array of individuals come together, it is quite likely that problems will occur at
all relationship levelssuperordinate, subordinate, and peer. In order for a workplace environment to
function at an optimal level there must be a well-developed strategic plan including a vision and mission
statement, clear goals, and objectives that are measurable for assessment of progress toward goal attain-
ment. A well-defined set of policies and procedures must be in place to help the workplace environment
maintain its organizational health and remain focused on fulfilling its strategic goals and objectives.
The policies and procedures related to the superordinate levels of the workplace environment and the
selection of leadership personnel are critically important. It would appear that a workplace environment
that values the worth and dignity of each of its members would serve itself well to evaluate each policy
and procedure using that human criteria. Superordinates set the tone for how peers and subordinates
interact with each other and the superordinate as well. Insults, bullying, subtle and overt disrespect,
not acknowledging a colleague as a full member of the office team, and creating an inner circle within
the office are classic examples of fostering an unhealthy or toxic workplace environment. Policies and
procedures related to the selection of subordinate and peer members of the workplace team are also
very important. It is critical that applicants be appropriately vetted with background checks, follow-up
with references, and others who have objective knowledge of the applicants background, demeanor,
and work ethic.
In addition to having appropriate policies at all levels of the organization, small focus group discus-
sions should be conducted with participants throughout the workplace environment across organizational
units and at all levels (superordinate, subordinate, and peer) of staff relationships. In other words, a vice
president, dean, department head, faculty member (both male and female), professional staff, and non-
exempt staff persons should make up the focus group, since no direct report relationship would exist
between the participants. This agreement should allow for a more candid discussion of concerns among
all members of the focus groups.
In summary, the university workplace environment should strive to become a model place to work
since its primary function is human capital development. It should have ways of continuously assessing
its organizational health and making adjustments to maintain a healthy organization. It should commu-
190

nicate a clear message that a toxic workplace environment will not be tolerated under any circumstance.
It should always value the dignity and self-worth of each member of its organization regardless of the
members hierarchical status.
Implications for Research on Toxic University Environment
As stated earlier in the chapter under the assumption that many individuals will spend most of their
waking hours in a workplace environment for approximately 40 years or 83,200 hours, it is imperative
that their environment be a supportive and positive place to work. They should feel encouraged to use
their creative skills, to assume more responsibility and to seek recognition and achievement for a job
well done. They should never be demeaned or put down in any way at any time.
It would appear that in order for a nontoxic workplace environment to exist, deliberate and consis-
tent actions such as those identified previously must be operational at all times. It would also appear
that research questions need to be posed and studied to better inform our decision-making regarding all
aspects of the workplace.
To be better informed of organizational health of the university workplace environment, surveys
should be conducted annually and their assessment results should be used to troubleshoot problem
areas. Multi-level evaluations of individuals at the peer, subordinate, and superordinate levels should
complement the survey results to provide more information for addressing problematic areas through-
out the university. For example, it could be determined that the junior faculty members in an academic
department who happen to be primarily women tend to receive a disproportionate number of service
committee assignments. It could also be determined that female faculty members in another academic
department tend to have lower faculty rank and higher teaching loads than their male counterparts in
the department. These are two classic examples of how female professors are not valued or respected in
some universities workplace environments. Sometimes the ultimate result is no promotion in rank and
no tenured appointments.
Qualitative studies should be broadly conducted in order for scholars and researchers to gain more
insight and understanding of the university toxic workplace environments impact on various groups,
especially women and minorities. Research results through interviews, focus groups, observations and
document analyses could address many questions related to this phenomenon; therefore, providing
practical strategies for improvement in the university workplace environment.
Additional quantitative research studies by university type, region, academic colleges and/or depart-
ments, demographics among administrators, faculty, and professional and nonexempt staff should be
conducted. In their own best interest of doing a superb job of developing human capital, universities
should partner with each other and commission studies to continuously focus on improving their brand
of desired academic community.
CONCLUSION: IMPERATIVE NEED FOR THERAPEUTIC JURISPRUDENCE
Workplace bullying or harassment of women in higher education deserves much more attention or ap-
plication of the concept of therapeutic jurisprudence than it has previously received. Women represent
a substantially large percentage of the current workforce in the United States. A recent report indicates
that women represent approximately 47 percent of the total workforce in this country (Catalyst, 2016;
191

Warner, 2015). More specifically, women represent a large portion of the higher education workplace as
well. However, women tend to be concentrated at the lowest ranking positions in higher education. For
instance, in 2015, it was reported that women held approximately 57 percent of all instructor positions,
which are considered among the lowest ranking positions in the academy. In that same report, women
held only 38 percent of the tenured faculty positions (Catalyst, 2015). Therefore, the dominant presence
of women in the United States workforce, in general and specifically in higher education, would seem
to indicate the need for creating a workplace environment that is healthy for all its participants.
Women professors in a toxic work environment that have been treated inhumanly recognize imme-
diately that they have been singled out as a target. Being treated differently in a negative way does not
promote productivity. As a matter of fact, it stifles not only productivity but is like a venomous snake
that spreads poison throughout the system. The female professor experiences innumerable biases and is
forced to survive in a stressful, exclusionary, hostile, and unyielding workplace. While insurmountable
time is spent working on projects, preparing for classes, participating in research, and other obligations
on a college or university campus, many professors spend a large part of their life in a hostile and toxic
work environment. When the environment becomes toxic, there is no easy way of escape. To make
matters worse, a toxic work environment tends to cultivate a workplace culture that fosters incivility,
male dominance, favoritism, and other behaviors not conducive to a system with honorable intent and
integrity. The truth remains that, as women attempt to rise to positions of authority, they encounter many
difficulties overcoming a tradition of servitude rather than leadership. What can be done when a female
professor is the victim in a toxic academic workplace?
Trahan and Growe (2012) reexamine their beliefs and values on how society and human experiences
can drastically impact an individuals core being. As they reflect on cultural meanings and historical
events, they were able to form a deeper appreciation of the power of demoralizing messages and how
sexual-social arrangements have their basis in certain, identifiable conditions. However, it remains in-
conceivable as to how, at every chance possible, those who could overpower seemingly did so without
a second thought. We often wonder how one can morally and psychologically justify discriminatory
and repressive practices (p.9).
In this 21st century with unlimited knowledge and technology at our finger tips, there is no justifiable
reason for universities to allow their workplace environment to be toxic to any of its members, especially
women and minorities. The university workplace environment should be a place where all participants
students, nonexempt staff, professional staff, faculty members, academic and nonacademic department
heads, academic and nonacademic, deans, associate and assistant deans, vice presidents, associate and
assistant provosts, the university provost, and the university presidentshould feel that they are valued
and respected members of the academic community. Each member should be appropriately recognized
and acknowledged for their contribution to the vision, mission, goals and objectives of the academy.
They should never be demeaned or insulted in any way by any member of the academy nor should the
academy tolerate such toxic behavior. Therefore, the application of therapeutic jurisprudence practices
in higher education should be used to help create a positive workplace environment that is conducive
and supportive of all participants in the organizational hierarchy.
The technological tools, gadgets, and processes [E-Mail, Facebook, Twitter, Instagram, etc.], that we
readily have at our disposal should never be used for bullying, insults, or character assassinations. They
should be used to document character, recognize positive achievements, and show respect for our fellow
human beings. Emphatically, a toxic workplace environment has no legitimate place in the university.
192

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Academic Mobbing: The prevalence of extreme negative behavior toward certain targets in an
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Academy: A postsecondary organization [community college, four- year institution, regional uni-
versity, research university) with the primary purpose of human capital development.
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Dysfunctional Leadership Behaviors: Behaviors by leaders that are not supportive of a healthy
workplace environment.
Hostile Workplace Environment: A workplace environment that is unpleasant and distasteful to
the participants.
Incivility: A lack of behavior that shows mutual respect and appreciation for others.
Peer: A relationship among equals in an organizational hierarchy.
Subordinate: A relationship in an organizational hierarchy that has a direct report to an immediate
supervisor.
Subtle Hostile Treatment: A negative act or relationship toward an individual that is not blatant or
obvious.
Superordinate: A relationship in an organizational hierarchy that has immediate supervisory re-
sponsibility over a subordinate.
Toxic Behavior: The prevalence of behaviors that are destructive and lack mutual respect and ap-
preciation for others.
Toxic Leadership: Leadership behaviors that are demeaning, show disrespect and are destructive
to an organization.
Toxic Workplace: A workplace with the prevalence of destructive and demeaning behavior at all
hierarchical levels of the organization.
Uncivil Behavior: The prevalence of behaviors that lack mutual respect and appreciation for others.
University Workplace Environment: The workplace environment of an academy that has several
colleges and schools.
Women Professors: Female faculty members in the academy with a full time tenure track position.
Workplace Bullying: The prevalence of frequent destructive and demeaning behaviors by some
members of the workplace toward other members.
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Chapter 13
Sexual Violence in the
University Campuses
of Delhi, India, and
for Justice to Victims:
A Qualitative Study
Hina Kousar
YWCA Dallas, USA
ABSTRACT
This chapter explores the existence of therapeutic jurisprudential approach in the present laws and
guidelines that may address sexual harassment in the university campuses in Delhi, India. It has been
seen that sexual harassment in the college campuses has often been overlooked as courtship problems
between young adults. In this course, the trauma and victimization of women had also been overlooked.
This chapter suggests that university campus sexual harassment may be exhaustive and it may include
various forms of harassment including physical touching, verbal sexual bullying to even graver offences
like molestation. This chapter researches on several forms of sexual harassments which are prevalent in
the university campuses and which may defy the existing regulations due to the patriarchal social setup.
It further researches on needs of therapeutic jurisprudence to deal with such problems.
INTRODUCTION
Sexual violence is a form of gender-based violence which is a threat to womens health and safety. Being
a victim of sexual violence is a violating experience difficult to endure or express and can cause im-
mediate, as well as long-term consequences. Sexual violence is an act of patriarchal control and power,
persist as global epidemic at alarmingly high levels effecting women physically, sexually, economically
DOI: 10.4018/978-1-5225-2472-4.ch013

Sexual Violence in the University Campuses of Delhi, India
and socially. Although it is a gross violation of womens human right but it is present in all social and
economic class, every religion, race and ethnicity. Sexual violence is a broad term which includes a
wide range of victimizations which not only include rape or attempted rape but also any kind of sexual
assault. Sexual assault includes sexual harassment, verbal abuse, groping, acid attacks, stalking and
cyber crime. These can include completed or attempted acts generally involving nonconsensual sexual
contact between the victim and harasser.
Indian patriarchal Society is apathetic in understanding the pain of women victims of sexual vio-
lence. For them sexual harassment is a simply male female courtship behavior or a love affair turning
sour. They explain sexual harassment as the result of misunderstanding or conflict caused by differing
sexual strategies of men and women. The second perspective is that sexual harassment is one of the way
in which men keep women distinct from competing with them in the economic and political spheres.
This is a firm view holed by many feminist Catharine Mackinnon and Drucilla Cornell. According to
MacKinnon (1979), sexual harassment is a manifestation of the basic inequality of men and women as
men and women are constructed in our society. She argues that the very meanings of men and
women carry with them the notion that men are dominant and women subordinate.
A substantial body of research on sexual violence in India is sparse, every day sexual violent inci-
dents proves that data are needed to help document the current magnitude of the problem to know the
extent to which certain subpopulations are impacted. One subpopulation that is often believed to be at
elevated risk for sexual assault is college students. The objective of this research has been to gather data
on sexual harassment experience of women in academics and about acceptance of sexual harassment in
day to day life as it is so ingrained in the social fabric that it goes unrecognized.
DEFINITION
Sexual violence is an Umbrella term which includes wide range of behaviors which can occur in varying
circumstances and settings. It is the forcing of sexual behavior by a man over the women. These include
sexual harassment, sexual assault, and coerced sex in marriage and dating relationships, molestation by
strangers, rape, sexual abuse of children, sexual abuse of people with disabilities, forced prostitution and
sexual trafficking, forced abortion and any kind of violent acts against the sexual integrity of women,
including female genital cutting. Sexual violence must be recognized, many definitions are arrived at
through cultural, socio-political, and geographic lenses.
The United Nations Declaration on the Elimination of Violence against Women (Article 1) defines
violence against women to include: Any act of gender-based violence that results in, or is likely to result
in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion
or arbitrary deprivations of liberty, whether occurring in public or private life. Article 2 of the United
Nations Declaration further specifies that violence against women should include, but not be limited to:
Acts of physical, sexual and psychological violence whether they are in family or in the community.
The acts of violence specified in this chapter include: spousal battering, sexual abuse of female
children, dowry-related violence, rape including marital rape, traditional practices harmful to women
such as female genital mutilation, non-spousal violence, sexual harassment and intimidation, trafficking
in women, forced prostitution, and violence perpetrated or condoned by the state such as rape in war.
The World Health Organization (2011) defines sexual violence as: Any sexual act, attempt to obtain
a sexual act, unwanted sexual comments or advances, or acts to traffic or otherwise directed against a
199

persons sexuality using coercion, by any person regardless of their relationship to the victim, in any
setting, including but not limited to home and work. Coercion can encompass: varying degrees of force,
psychological intimidation, blackmail or threats (of physical harm or of not obtaining a job/grade etc.).
In addition, sexual violence may also take place when someone is not able to give consent for instance,
while intoxicated, drugged, asleep or mentally incapacitated.
In US Sexual violence is a form of sexual harassment and discrimination under Title IX of the Educa-
tion Amendments of 1972. National institute of justice (2010) state that sexual Violence takes many forms
as the term sexual violence refers to a specific constellation of crimes including a) sexual harassment,
b) sexual assault, and c) rape. The perpetrator may be a stranger, acquaintance, friend, family member,
or intimate partner. Researchers, practitioners, and policymakers agree that all forms of sexual violence
harm the individual, the family unit, and society and that much work remains to be done to enhance the
criminal justice response to these crimes.
1. Sexual Harassment: Ranges from degrading remarks, gestures, and jokes to indecent exposure, be-
ing touched, grabbed, pinched, or brushed against in a sexual way as stated by Hill, C., and E. Silva
(2006). MacKinnon (1979) stated that Sexual harassment... refers to the unwanted imposition of
sexual requirements in the context of a relationship of unequal power. Central to the concept is the
use of power derived from one social sphere to drive benefits or impose deprivations in another....
When one is sexual, the other material, the cumulative sanction is particularly potent. Title VII of
Civil Right Act 1964 of USA. The definition of Sexual harassment is as follows: Harassment is a
form of; it could be unwelcome advances request for sexual favor, or other physical and expressive
behavior of a sexual nature.
a. Submission to such conduct is made either explicitly a term or condition of an individual.
b. Submission to or rejection of such conduct by an individual is used as the basis for academic
or employment decision effecting the individuals.
c. Such conduct has the purpose or effect of substantially with an individual academic or pro-
fessional performance or of creating and intimidating, hostile or offensive employment or
educational environment.
Harassment takes number of forms:
Visual: Leaning, making sexually explicit gestures, displaying sexually explicit objects, pictures,
posters.
Verbal: Derogatory comments, epithets, jokes, unwelcome advances, demand for favor comments.
Physical: Unwanted touching, pinching, hugging, brushing against, kissing, fondling, assault.
Womens experience of sexual harassment can be divided into two forms which merge at the edges
and in the world: A) Quid pro quo: The term quid pro quo, in which sexual compliance is exchanged, or
proposed to be exchanged, for an employment opportunity or bribed; B) Hostile work environment: This
arises when sexual harassment is a persistent condition of work. C MacKinnon calls sexual harassment
as a condition of work was later termed hostile environment sexual harassment.
2. Sexual Assault: Can be broadly defined as sexual actions and words that are unwanted by and/or
harmful to another person is given by (Report of the Minnesota Interagency Task Force on Domestic
200

Violence and Sexual Assault Prevention, 2005) further state that terms like sexual abuse and sexual
violence are often used interchangeably with sexual assault. Another broad term is sexual coercion,
which refers to situations in which someone uses verbal or physical means to obtain sexual activity
without the other persons consent. Sexual assault covers a wide range of unwanted behaviorsup
to but not including penetrationthat are attempted or completed against a victims will.
3. Rape: Gordon and Riger (World Health Organization, 2013) state that rape is narrowly defined
term while sexual assault and sexual coercion may or may not involve penetration, rape gener-
ally refers to sexual penetration without consent. The definitions vary by state and in response to
legislative advocacy. Most statutes currently define rape as nonconsensual oral, anal, or vaginal
penetration of the victim by body parts or objects using force, threats of bodily harm, or by taking
advantage of a victim who is incapacitated or otherwise incapable of giving consent. Incapacitation
may include mental or cognitive disability, self-induced or forced intoxication, status as minor, or
any other condition defined by law that voids an individuals ability to give consent. Elaborated by
Randall (2008) Sexual assault is an inclusive term, which encompasses a range of sexual crimes
including penile or manual penetration, oral or anal sex, the insertion of any object into a womans
vagina, the insertion of a penis into a womans mouth, and other acts that expose a womans and/
or a mans genitals. Conventionally, the term implies physical contact of some kind. While it lacks
specificity in some situations, it is useful in other contexts precisely because it allows research to
proceed without limiting the scope of sexual violence. It also allows research on sexual violence
to proceed in contexts where rape and sexual harassment are yet to be fully recognized as forms of
sexual violence (for example, marital or acquaintance rape).
The differences between sexual harassment, sexual assault and rapes influence the way people un-
derstand the issues. It is important to keep in mind which terms are used in each study or information
source, and how the researchers define these terms.
SEXUAL VIOLENCE ON CAMPUS
Rape, sexual assault and sexual harassment are the most common forms of violence against women,
although sexual violence rarely occurs in isolation from other forms of violence. This is most evident
where sexual violence occurs in intimate relations also. The common characteristic shared by all forms
of sexual violence is lack of consent, including where women are unable to resist or verbalize their
resistance due to fear of the physical consequences of sexual violence and fear of the secondary conse-
quences of resisting such violence (Heise et al. 1999).The prevalence rate of sexual violence as given by
Garca-Moreno, Jansen, Ellsberg, Heise, & Watts, (2005) revealed, between 6 and 59 percent of ever-
partnered women experience sexual violence (whether by a partner or non-partner) in their lifetimes.
Abrahams (2002) bring out the percentage of women reporting having been a victim of sexual assault
ranges from less than 2% in places such as La Paz, Bolivia (1.4%), Gaborone, Botswana (0.8%), Beijing,
China (1.6%), and Manila, Philippines (0.3%), to 5% or more in Tirana, Albania (6.0%), Buenos Aires,
Argentina (5.8%), Rio de Janeiro, Brazil (8.0%), and Bogota, Colombia (5.0%).
Although data sources related to sexual violence are poor, there is compelling evidence that forced
sex and rape is less frequent between strangers, and most common among family members, courtship
partners, acquaintances and spouses (Berger, 1996; Eskow, 1996; Garcia-Moreno, 1999; Heise et al.,
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1995; Jasinski & Williams, 1998). A great deal of this prevalence data is summarized in the World Health
Organization Violence Against Women Database (2000), which includes measures of the prevalence of
violence against women by an intimate male partner, the prevalence of physical violence against women
and the prevalence of sexual violence against women.
Research conducted in educational settings about sexual violence provides high rates among college
students (Black et al., 2011; Fisher, Cullen, & Turner, 2000). Studies of college samples measured sexual
assault rates at 21 to 42 percent among female samples (Combs-Lane & Smith, 2002; Easton et al., 1997;
Fisher, Cullen, and Turner, 2000; Gross et al., 2006; Kalof, 2000a; Nasta et al., 2005; Synovitz & Byrne,
1998; Krebs et al., 2007). Finally, one prominent large-scale study has estimated a national prevalence
for rape or attempted rape of women at approximately 18 percent (Tjaden & Thoennes, 2000). A 1987
study of 3,000 college women surveyed indicated that more than 50 percent reported being sexually
victimized and 15 percent were victims of rape. The statistics were re-affirmed by subsequent 1997 and
2006 studies (Franiuk, 2007).
Sexual harassment in universities remains a serious problem, with 20-75 percent of college women
being the target of some form of sexual harassment (McKinney, 1994). Dziech and Weiner (1990),
Rubin and Borgers (1990) estimated that 30 percent of female graduate and undergraduate students
were sexually harassed sometime during their college career. A wealth of studies on sexual harassment
in higher education analyzed the perceptions of undergraduate students, graduates and faculty across
culture, ethnicity and race. These studies considered the gender differences on how sexual harassment is
perceived and found that women are most likely than men to view an act as harassment (Dietz-Uhler &
Murrell, 1992; Marks & Nelson, 1993; Popovich, Gehlauf, Jolton, Somers & Goldinho, 1992). Sampson
(2003) provides important statistics about rape of college students. Included in these statistics are total
numbers of women who have been raped, the percentage of these women who knew their attacker, and
how many reported the incident to the police. Sanday (2007) presented a unique analysis of college
fraternities and how they not only condone but also create this rape supportive culture. Schwart, Martin
and DeKeseredy (1997) provide extensive information about the impact of rape myths and a rape sup-
portive culture on both men and women.
In India, annual report of National Crime Record Bureau states a total of 3, 37,922 cases of sexual
violence against women were reported in India, in 2014. Causing shame to the Delhi Police, the report
says 1,813 rape cases were reported from the capital city, the highest number registered in the country.
However, experts claim that the actual number of instances of rape is far from being recorded since the
unreported number of cases is extremely high (Human Rights Watch: Dec 29, 2012). As per University
Grant Commission, there were 295 cases of sexual harassment that have been reported during 2014-15
in various prestigious institutes of higher learning in India.
The above account has mapped the fields of current inquiry into sexual violence against women, it has
been noted that the literature is weighted towards the west. Conversely, we know little of the pervasive,
diffuse and corrosive forms of sexual violence that occur on an everyday to which women everywhere
are subjected epidemically and routinely. Educational institutions in Indian culture are considered as
temple of learning, has not remained unaffected by the issue of sexual violence. In academic setting, the
situation is even worse. However, because the victims are often powerless students, who undergo sexual
harassment for better grades and face risk of sexual violence in hostile environment.
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Present Study: Methodology
This research was an attempt to provide the full examination of sexual violence in education, the issues
raised by the definition given by the student and faculty respondents of the three universities of Delhi.
An exploratory research on sexual violence is made in the three elite Universities of Delhi X, Y,
Z. The data for such is to determine the scope and incidence of various types of unwanted sexual be-
haviors experienced by four groups of women on campus: undergraduate women; post graduate women;
research scholars; women faculty members all in age group of 18 to 65 years. The Universe of study
has been National Capital Territory (NCT) of Delhi. The National Crime Record Bureau reports also
justify Delhi as being first among Union territory to have highest number of sexual harassment cases
from year 2008 to 2010. On July 22, 2015 Human Resource Development Minister in a written reply to
a question in the Lok Sabha, said universities in India reported 75 cases of sexual harassment in 2014-
15, with universities in Delhi topping the list with 27 cases of harassment.
The purpose of this research is to explore the nature, kind and types of sexually violent behavior
experienced by women in each group; the occurrence of each type of behavior. The major objective
was to examine the responses of the victims to any kind of sexual violence; to study the role of civil
societies / supporting networks and associations. The rationality of this research finding will be of value
in two ways as to contribute to greater understanding of the occurrence of unwanted sexual behaviors
among Women College and university students and women faculty and secondly to provide university
administration with information which could be used in designing program preventing sexual violence.
In consultation with Women Studies Centre of each university, selection of departments was based on
the complaints of sexual harassment cases in various departments. The sample is purposively selected
because researcher needs to reach a targeted sample. Therefore sampling was on recommendation of
Women Studies Centre and it is applicable to all the three universities. In this study, semi-structured in-
terview was used, which was conducted with a fairly opened framework based on themes to be explored.
Study has been directly taken from 400 subjects in campus by a semi-structural interview consisting of
open ended questions. There were three interview tools prepared for the different sample sets, the first
tool was for the students and covered major domain like perception, nature, kind, incidence, impact
etc. Second tool was for faculty members and the major domain were work culture, hierarchy, power
differential, preventive aspect etc. And the third tool was for Director, Sexual harassment committee,
NGO representative and student union members, this included questions on role of sexual harassment
committee, NGO, union and University policy related to confidentiality and protection from retaliation.
In the first place a brief concept outlining the research intent and plan was prepared. During the process
of data collection, the researcher first began by interviewing the director of sexual harassment commit-
tee, with the deliberate view to enhance an overall understanding about the frequency of the problem.
After couple of session with the director, researcher also took interview of committee members. During
the course of this interview the researcher identified the member of collaborating system (NGO, union
members, and support groups) in the campus as well as those NGOs who are the members of the sexual
harassment committee. All the interviews were tape recorded with MP3 device. In order to interview
the students, the researcher visited colleges, faculty, departments and hostels. Data was presented both
qualitatively as well as quantitatively. Analyzed qualitative data was integrated with library work and
report was documented.
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Studying the kinds of behavior which falls in the category of unwanted sexual behavior includes
various conducts, whether they are verbal, visual, or physical, and are severely sexual in nature. In the
same context, we disclosed from the analysis of data from the three universities, the kinds of sexually
harassing behavior perceived as well as experienced in university campuses or in college environment
by under graduates, post graduate students, research scholars and faculty members. It is noticed that
women are not able to classify sexual violence experience hence called it unwanted sexual behavior.
This is because such acts are defined in terms of seriousness, and some women may not think their own
experiences are serious enough. This is potentially problematic for research which seeks to clarify the
prevalence of the problem and raise methodological questions.
RESEARCH FINDINGS
According to the data, the maximally experience data was sexual looks followed by - Sexual looks,
staring, teasing in abusive language (calling a women doll, babe, sweetie etc.), stalking, SMS, placing
comments with sexual overtone, personal gifts, making difficult for girls to come to the university by
gang of boys, making a love proposal and exerting pressure to accept it, facial expression, touching,
pinching, grabbing, holding, rubbing. Dirty words written on toilets and on T-shirts or on any other
places, sexually colored conversation, jokes, letters, phone calls, Email, vulgar gesture, unwanted at-
tempt to stoke or fondle or kiss. Sexist comments which degrade women status (e.g. women cry more,
suggesting that women should be barefoot and pregnant etc.), teachers discussing sex in class room (out
of context), taking photograph for blackmailing or video voyeurism, attempted rape and sexual assault
(hitting on breast).
The above data depict Sexual behaviors conceptualized as a continuum - including non-physical forms
of abuse such as sexual attention, threats and intimidation, verbal slander, unwanted sexual advances,
stalking, and sexual humiliation - as a lesser form of violence, with rape and physically severe forms of
sexual violence at the extreme end of the continuum.
To know extensiveness of un-wanted Sexual behaviors students narrated about their experiences related
to different forms of sexually violent misconduct: sexual assault, sexual harassment, stalking, intimate
partner violence, rape. The large majority of respondent narrated several different sexually harassing
behaviors: like sexual remarks or told jokes or stories that were insulting or offensive to them or made
inappropriate or offensive comments about their body, appearance or sexual activities, said crude or
gross sexual things to them and also tried to get them to talk about their personal sexual matters.
Around 80 percent acknowledged mailed, texted, tweeted, phoned, or instant messaged offensive
sexual remarks, jokes, stories, pictures or videos. Large number of students of three universities called
it cyber stalking which is also known as on-line harassment or electronic stalking. This form of stalking
involves offensive, threatening communication through the Internet, via email, chat rooms, or instant
messaging or through other electronic means, such as cellular telephones or pagers. About 20 percent
said that they were continued to ask to go out, get dinner, have drinks or have sex. About 70 percent
of total sample acknowledged that they were sexually assaulted (like groping). A very small percent 2
percent acknowledged of being attempted raped. About 89 percent of undergraduate accepted that they
underwent stalking by strangers, ex-boyfriend or by neighborhood boys. Data revealed that about 60
percent experienced sexual assault from stalker. The stalking behavior reported by students were; someone
unknown made unwanted phone calls, sent emails, voice, text or instant messages, or posted messages,
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Figure 1. Sexual violence experience
pictures or videos on social networking sites in a way that were scary for their personal safety, showed
up somewhere or waited for them when they did not want that person to be there, spied on, watched or
followed either in person or using devices or software in a way that made them afraid for their personal
safety. On denying the demands of stalker, of not getting into relationship they were sexually assaulted.
Sexually violent behavior were series of behaviors that interfered with the victims academic or pro-
fessional performances, limited the victims mobility to come alone to college and ability to participate
in an academic program in evening. Many respondent of university X stated that sexually unwanted be-
haviors in campus created an intimidating, hostile or offensive social, academic environment especially
for science students who are working late hours in science laboratory. The student respondents of the
three universities confessed sexual violence which they had never reported those embarrassing attacks in
solidarity with some reliable person. An undergraduate said And yes, Ive been sexually assaulted in the
toilet of metro train but never reported it because of the stigma. Another student said If all women in
majority whove been sexually harassed or assaulted should step out of our shame and share, we would
make the stigma go away. A faculty member said,
There are some cultural norms that support sexual violence. In certain communities people talk about sex
as a commodity and women as things that you get, and its a lot easier to assault women because theres
no empathetic connection. In that way it [verbal harassment] really supports a rape culture, the idea of
masculine being unfeeling and barbaric only perpetuates the negative sexual atmosphere in society.
A undergraduate stated that being sexually assaulted was horrible and then trying to report it made
me feel more embarrassing as I was being made to feel that it was my fault, that was even more worse.
Another student of university Y said I had already lost my virginity and my self-worth, and still I didnt
want to lose my self-esteem anymore. Another student of university Z narrated the incident
It was a rainy day, I couldnt deny lift in his car to drop me home. Unfortunately he took advantage and
molested me, I reached home saw my grandmother she had back turned, and her voice was cold. I was
19 years old and just thinking to end my life. I put away the pills and walked into the kitchen, sobbing
205

and shaking. I told my grandmother I needed to tell her something. But, I didnt have to say it, because
she already knew from my condition that I am being molested.
In the WHO multi-country study, by Garcia-Moreno (2005) women reported that their first sexual
intercourse was forced, at rates ranging from less than 1% in Japan to nearly 30% in rural Bangladesh.
Although women are susceptible in almost any situation, a college campus has unique elements that
contribute to higher rates of sexual assault (Franiuk, 2007).
The undergraduate and postgraduate narrated their stories of sexual harassment in campus, especially
in science laboratory, sports ground, and in National Cadet Corps (NCC) ground meetings. Comments
on the profile of harasser where taken from the respondents of the three universities (While moving in
the campus) the responses were intertwined some said they were middle aged men in cars and on two
wheelers, pedestrian in all age group as well as strangers. Related to harasser in quid pro quo situation
and where did it occur, the people who were named were professor, supervisor, faculty member, non-
teaching staff and the places where it occurred were - Classroom; Library; Canteen; Educational tour;
Professors cabin; NCC camp; Science laboratory; and Sports ground.
Findings reveal that college campuses represent potential threats to womens safety. Victims gave a
number of reasons for not reporting their victimizations to law enforcement or to university administration.
Some reasons indicated are that they are ashamed to narrate these incidents and did not trust authorities
that they will take any action. The students and faculty respondents of the three university stated that
there were many strategies by which they protected their victimization. About 70 percent respondent
said that they lock their room in hostel before sleeping. 50 percent said that before starting for university
they plan their route for safety purpose or to avoid crowd of boys. 20 percent said that they checked the
back seat of their parked car before sitting. 20 percent said that they dont party at late night hours. And
40 percent of the respondent carries chili powder and other spray for self-defense.
The faculty member of three universities in majority called sexual violence as a barrier in economic
independence and emphasized that sexual harassment is not about sex; its about sexism and power
because it looks upon womens ability with suspicion. A temporary lecturer of University Z said, A
Figure 2. Preventive steps from victimization
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male colleague told me that I dont need to worry about extending my job contract as a guest faculty,
as I am a beautiful woman. There are also stereotypical views of women which pose serious risks for
women. A faculty member stated that
when harassment comes in academics, women research scholars are profoundly affected in their
performance and their ability is totally affected, as men and women perceive the existence of sexual
harassment differently; constant fear of harassment for women may also involve the potential risk of
physical harm.
The scenario in three universities related to Quid pro quo type of harassment that occurs when some
kind of benefit is made contingent on sexual favors in some capacity. Hence in order to know from the
respondents that if they have or any of their known person come across such behavior where directly or
indirectly they were being told by anybody on campus that sexual relation can give better grades, treat-
ment, selection for sports extracurricular activities or completion of research thesis for research scholars.
Every second person knows a person who is sexually harassed in the campus and about more than half
admit that they had an offer of quid pro quo (this for that) irrespective of full majority of respondents
who have undergone hostile form of harassment especially on the streets of campus. The sports person
acknowledged harassment in selection to sports team. And many student respondents state harassment
is frequent in National Cadet Corps (NCC) by army officers in republic day camps.
Present study revealed that in Quid pro quo situation where sexual relations were demanded by senior
professors for a particular professional benefit. The victims in these situations were research scholars
/ M Phil, ad-hoc teachers and contractual employee are major target of the unwanted sexual harassing
behavior. The research scholars in majority said that they were asked by their research guide for sexual
relation in return of completion of thesis. Most of the proposals of compromises were received by
young temporary or guest lecturers of the three universities. The permanent faculty members denied in
majority about any kind of sexually harassing behavior other than less severe form of harassment like
sexual looks. As far as gender harassment is concerned, the faculty member of three universities stated
instances of gender harassment which are more in number in University Z.
The majority of faculty member admitted that a woman is more vulnerable at initial stage of career,
harassment of a subordinate by superior and the period of probation or temporary in the department
pave way to harassment. The factors which increase the vulnerability of women to harassment which are
unprofessional work environment where there exist power differences between men and women, cultural
norms, power structure, job insecurity, male form in group and women taken as out group.
To summarize study point out unwanted sexual behavior at three levels (a) by teachers, guides and
superiors, (b) by peers and (c) on the campus and on the streets of the university due to lack of security.
The first category involves a teacher or someone in authority threatening, intimidating or victimizing a
student because she did not respond to his sexual advances. The second category involves male students
making unwanted sexually explicit comments or comments with sexual undertones, whistling, ogling,
leaching, staring, singing suggestive songs, molesting girls, sending unwanted messages, making jokes
sexual innuendoes and sexual touching and thereby generally creating a hostile environment. The third
category relates to the unsafe situation for women on the campus and the internal streets. There have
been numerous reports of men gathering outside women hostels, of rapes and molestation in these areas,
both the students and outsiders who visit the campus especially for this purpose.
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To implement sexual harassment policies in universities, Committees are formed in every university
for the purposes of gender sensitization and to conduct enquiries into complaints of sexual harassment.
Related to sexual harassment policy large number of student respondents of three Universities are not
aware of their University Sexual Harassment Policy. The faculty is aware of them but majority have not
read the University policy on sexual harassment. Among the three universities, respondents of University
Z are quite satisfied with their policy and the way cases were handled. The problem area notified by
University X respondents is in disposal of sexual harassment cases which is the discretionary privilege
of disciplinary committee over complaint committee. The study shows the nullifying efforts regarding
enforcing sexual harassment policies.
Most of the respondents stated that there should be visibility of complaint center because even the
website of Women Studies Centre doesnt give much guidance to the victim regarding filling a complaint.
Majority of women on campus claim that Universities policy has not done reasonable effort to protect
victim from retaliation after filling complaint and to preserve confidentiality of complaint process. The
present study explored the role of NGO, which as a member of Sexual Harassment committee has ample
of scope as they are supportive to victim provide legal aid, counseling and moral support to the victim
but none of the three Universities has any NGO on the campus except in University X. In University
Z, student support group with NGOs play active role. This addresses the question of sexual harassment
and violence in public spaces, faced by all women irrespective of class, age and profession. The cam-
paign against harassment includes both awareness and information rendering to workplaces regarding
their legal obligation with regard to sexual harassment. NGOs develop networking with all sectors for
referral service - other NGOs, law enforcement agency, trade union, student union, etc.
The present study revealed that poor awareness among students related to Vishaka guidelines, com-
plaint center, sexual harassment policy, legislation and NGOs on campus shows that outreach to students
and teachers borders are pathetic. Very less respondents were aware about University sexual harassment
committee, legislation and policy. The majority of respondents are not at all interested in using legal
system not even through the aid of women studies center; they believe that they will be hurt by Police
who rarely act on these complaints. A faculty member said that most of these dispute are traditionally
been regarded as trivial, domestic, or private and hence not worthy of legal intervention.
This lack of trust in the system shows that there are many social, economic, cultural, and legal re-
strictions as well as hardships, which deter women from seeking relief from law. For those women who
dare to overcome these barriers and do access the system, there are other problems to solve in order to
obtain legal relief. The multifaceted obstacles create anti-therapeutic effects for victim, by decreasing
their current and future use of the legal system. Therapeutic jurisprudence framework, proposes a series
of policy recommendations and interaction strategies for working with victim of sex abuse in culturally
appropriate, empowering ways. There is a requirement for changes to criminal justice system proce-
dures and require collaborative working relationships among legal practitioners, the professionals, and
advocates who work with sexually abuse women. We argue that a therapeutic jurisprudence approach
endorsed by all parties involved may enhance victims willingness to access the justice system, lesser
the systems anti-therapeutic effects, and more its therapeutic impact.
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RECOMMENDATIONS
After psycho-social assessment of the problem, researcher attempts to suggest certain intervention de-
rived from social work knowledge which are to be taken up at various levels in society in general and
in academic institutions in particular. Social work interventions are combinations of skills applied by
practitioners, their clients, and collateral participants (e.g., small groups, NGOs) therefore rationale is that
these are implemented for the purpose of reducing symptoms, resolving problems, enhancing adaptive
capabilities, and improving the overall psychosocial well-being of the client. These models are framed
with the understanding of social workers operate at many different levels in society with individuals,
families, groups (NGOs) and communities. The recommendations make a clear distinction between
primary prevention defined as eliminating the root causes of sexual violence and stopping sexual
violence before it occurs and secondary prevention defined as focusing efforts on specific groups at
risk for perpetration or victimization.
In order to reduce the level of sexual harassment, it has been realized that sexual harassment on
campus need to be a multi-dimensional level which need to addressed at multiple level both at 1) Macro
level, 2) Meso level and 3) Micro level.
1. Macro Level: Macro level social work intervention is provided on large scales that affect entire
communities and systems especially Macro social work may also involve organizing institutional
efforts, leading community development initiatives or planning interventions to reduce crime
against women, increase literacy or end human trafficking. The first step in solving a problem is
to name it and know its severity; campus climate survey is the right step in this direction. College
campuses can begin to take steps to implement sexual violence prevention strategies based on
the best available research evidence which reveal its extend. Rigorous evaluation of prevention
strategies with college-aged students is needed to better understand the nature of sexual violence
on their campus. And women will be able to label and categories the unwanted sexual behavior. It
is required to include using existing data on reports of sexual violence or harassment, information
from student surveys or focus groups, or other innovative approaches to gather or identify the most
relevant risks and needs. Data can inform the selection of prevention strategies that best address
the needs of students and key risk indicators. Data sources could also be used to assess the impact
of implemented prevention strategies.
2. Meso-Level: Meso-level social work focuses on neighborhoods, small groups and institutions.
Mezzo social work happens on an intermediate scale, involving neighborhoods, institutions or other
smaller groups. NGOs should take up social media campaigns as a prevention strategy designed to
raise awareness and change social norms related to sexual violence as victim support services. Some
examples of the campaigns of America are the Red Flag Campaign, the White Ribbon Campaign,
and Walk a Mile in Her Shoes. The second most common strategies being implemented are bystander
interventions. Resident assistants, faculty, staff, fraternities, sororities, and athletes are the likely
campus-based groups trained on bystander interventions. Workshops should be implemented for
the entire campus community to sensitize and educate staff, faculty, and administrators. Gender
sensitizing is about changing the behavior of men and instilling the empathy into their views that
they hold about the two sexes. It helps people in examining their personal attitudes and beliefs and
questioning the realities they thought they know.
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3. Micro Level: Micro level social work is the most common practice, and happens directly with
an individual client or family. Rape prevention and education programme for victim should be
major initiative to end sexual violence at micro level. The various activities often target specific
student groups that may be at higher risk for sexual violence victimization and perpetration, such
as students from north east, research scholars, NCC cadets; incoming freshers and sports persons.
The requirement at this level is educating women of her appropriate reaction to Unwanted Sexual
behavior as well as victim should be taught to document the incident of harassment or violence.
Victim should be protected from all kind of retaliation after filing a complaint further Counseling
services be provided for victim. At micro level services relating to sexual assault and relationship
violence will be approached from a victim/survivor advocacy perspective. Advocacy consists
of responding to immediate, crisis driven needs, safety, and requests for services from the campus
and community.
CONCLUSION
Sexual assault survivors often need a variety of services, both immediate and long-term, to help them
regain a sense of control and safety. While some universities may be able to provide comprehensive
trauma-informed services on campus, others may need to partner with community-based organiza-
tions. An effective policy will vary in scope and detail, but an inclusive process is common to all. The
university should bring all the key stakeholders to the table including students, dean, gender experts,
campus security team, law enforcement, and resident in hostels, student union, on-campus NGOs, and
local victim service providers.
This chapter has examined sexual violence from the experience of its respondents at different levels,
its role in prevention, and in offering protection and support for victims. Therefore it is required that
Universities in partnership with local police, UN agencies, civil society organizations and other social
welfare institutions of the city should advocate for ending violence, increase awareness of the causes
and consequences of violence and build capacity of partners to prevent and respond to sexual violence.
FUTURE RESEARCH DIRECTIONS
Despite the importance of the findings presented here, this study is not without limitations. The major
limitation of this research is being exploratory in nature, generate qualitative information and interpreta-
tion of such type of information is subject to bias. These types of studies usually make use of a modest
number of samples that may not adequately represent the target population of three universities. The
research design does not aim to provide the final and conclusive answers to the research questions, but
merely explores the research topic with varying levels of depth. Theme for further research using big-
ger sample and include female staff is recommended. Much more research is needed to understand the
scope and extent of academic sexual harassment and identify the best possible solutions or avenues of
redress by the help of civil societies. There is certainly a need for greater research into the prevalence
rates and scope of academic sexual harassment in India, such as research into its occurrence and impact
as experienced by specific groups, including research scholars, foreign students and temporary lecturers
in universities as well as a broader range of items to represent constructs like guardianship, target attrac-
210

tiveness, and proximity to potential offenders. There is also scope to work on the study of compliance
of recent laws on sexual harassment.
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Rubin, L. J., & Borgers, S. B. (1990). Sexual harassment in universities during the 1980s. Sex Roles,
23(7-8), 397411. doi:10.1007/BF00289228
Sampson, R. (2002). Acquaintance Rape of College Students. Washington, DC: U.S. Department of
Justice, Office of Community Oriented Policing Services. doi:10.1037/e375052004-001
Sanday, P. (2007). Fraternity Gang Rape. New York: NYU Press.
Schwart, M., & DeKeseredy, W. (1997). Sexual Assault on the College Campus. SAGE Publications.
Smith, M. D. (2004). Encyclopedia of Rape. Greenwood Press-US Smith.
Ward, , Chapman, K., Cohn, E., White, S., & Williams, K. (1991). Acquaintance Rape and the College
Social Scene. Family Relations, 40(1), 65. doi:10.2307/585660
World Health Organization Report. (2011). Violence against women Intimate partner and sexual vio-
lence against women. Geneva: World Health Organization.
212
Section 4
Modern Practices and
214
Chapter 14
International Criminal Justice
and the New Promise of
Therapeutic Jurisprudence:
Prospects and Challenges in Conflict-
Related Sexual Violence Cases
Jean de Dieu Sikulibo

University of Strathclyde, UK
ABSTRACT
For centuries, rape and other forms of sexual violence have always been an integral aspect of warfare.
Even so, it is rather recently that these practices have been recognized as crimes and prosecutions un-
dertaken by international criminal tribunals. Whilst the ad hoc international tribunals for the former
Yugoslavia and Rwanda did not take an integrative approach to victims in the criminal justice process,
the Rome Statute of the International Criminal Court (ICC) took a victim-centred approach by setting
out some provisions allowing victims to actively participate in proceedings beyond their traditional
role of witnesses. This chapter sets out to critically examine the effectiveness of the ICC victims rights
framework in achieving this objective in sexual violence cases. Drawing on the complex nature of expe-
riences of victims of such crimes, this chapter engages with the various aspects of the relatively recent
approach of victims participation in international criminal justice process to highlight prospects and
challenges in facilitating the healing process of victims of such crimes.
INTRODUCTION
In many conflicts across the globe, rape and other brutal acts of sexual violence are used as part of
military strategies aimed at civilian population to spread terror, inflict trauma and public humiliation.
The fact that widespread and systematic sexual violence often serve as a weapon of war is now widely
acknowledged. Despite growing awareness and constant global condemnation of rape and other acts of
DOI: 10.4018/978-1-5225-2472-4.ch014

International Criminal Justice and the New Promise of Therapeutic Jurisprudence
sexual violence in conflict situations as well as significant strides made in international criminal justice
in this regard, these crimes continue to be used as a weapon in conflict situations around the world.
In its Resolution 1820 (2008) on acts of sexual violence against civilians in armed conflicts, the
United Nations(UN) Security Council noted that women and girls are particularly targeted by the
use of sexual violence, including as a tactic of war to humiliate, dominate, instil fear in, disperse and/
or forcibly relocate civilian members of a community or ethnic group.1 A growing body of empirical
studies and reports of the UN and international nongovernmental organisations reveal how a wide range
of cruel sexual violence-based practices have become a viable part of military strategies.2 In support of
this position, the ICC recently found Jean Pierre Bemba, the former Congolese vice-president, guilty in
its first case to focus on rape as a war crime.3 Through the Jean Pierre Bemba emblematic case, the ICC
has built on the jurisprudence pioneered by the ad hoc International Criminal Tribunals for the former
Yugoslavia (ICTY) and for Rwanda (ICTR) which made significant contribution to the international
criminal prosecution of these crimes to throw a spotlight on the prevalent use of sexual violence as a
weapon of war.
Despite the fact that victims of crimes have for too long been considered as forgotten parties in the
criminal justice process (Doak, 2005; Martsui, 2011), significant strides have been made over the recent
years which culminated in the victims rights to redress in the context of international criminal justice.
In fact, due to a growing recognition of the impact of mass crimes on victims, the victims right to jus-
tice and redress has become an important consideration in the international criminal justice discourse.
As such, in addition to victims rights to be treated with respect and dignity, right to information about
the proceedings and measures to protect their physical and psychological wellbeing,4 the ICCs victim
rights framework enshrined an important right for victims to present their views and concerns in the
course of the criminal proceedings,5 and the right to reparations.6 It is important to note that the need and
significance of providing victims the right to participate in the criminal justice process is also enshrined
in the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.7
Although the relatively recent victim-centred approach in the international criminal prosecution
represents a positive advance in adopting a healing approach towards the victims of mass crimes, it also
presents the Court with significant challenges. Particularly, given the nature of international criminal
justice, the complex realities of victims of sexual violence in conflict situations provide a unique range
of challenges in addressing their needs within the context of victim participation at trial proceedings.
While Article 68(3) of the Rome Statute and rules 89 to 93 of the Rule of Procedure and Evidence (RPE)
set out key principles in relation to victims participation in proceedings before the ICC, wide discretion
was vested with the Courts judges to develop appropriate modalities of victims participation within the
context of international criminal justice.
This chapter sets out to critically analyse the effectiveness of victim participation in international
criminal justice process in addressing the needs of victims of conflict-related sexual violence. In so do-
ing, the discussion in this chapter begins by examining the nature of these crimes and their victims as
well the context in which such crimes are committed in order to understand the extent of the challenge
posed by the systematic use of sexual violence in conflict zones. The chapter further looks at the pro-
cedural, legal and practical aspects of victims participation in international criminal justice process to
highlight its potential for therapeutic jurisprudence and challenges to the effectiveness of this approach
in addressing the harm suffered by victims of these crimes. In so doing, the discussion first examines
the shortcomings of the previous international criminal tribunals in accommodating the victims of rape
and other acts of sexual violence. Secondly, it takes a critical approach to the ICCs victim participation
215

scheme in addressing the needs of victims of such crimes and contributes to the victims healing process.
The chapter finally offers critical insight into ways forward to ensure effective redress for the victims
suffering in light of the unique nature of rape and other forms of sexual violence during conflict situations.
1. THE NATURE AND SCALE OF CONFLICT-RELATED

RAPE AND OTHER ACTS OF SEXUAL VIOLENCE
The systematic use of sexual violence in conflict situations is by no means a recent phenomenon. For
so long considered an inevitable by-product of war (Snyder, Gabbard et al., 2006), rape and other acts
of sexual violence in conflict situations are now widely addressed as a weapon of war. The last two
decades witnessed important progress in addressing these crimes at the UN institutional level with the
Secretary Generals creation of the Special Representative on Sexual Violence in 2010 coupled with
landmark strides in the international criminal prosecution of these crimes. Building on progress made
by the previous tribunals, these crimes have been included in the ICC Statute.8 More significantly, rape
allegations are included in various cases currently before the Court, and these can be dealt with as po-
tentially amounting to war crimes9 or crimes against humanity.10 Although remarkable development in
this regard has been made by the international criminal tribunals, the inclusion of rape and other acts
of sexual violence in the ICCs legal framework, as a permanent court, represents a milestone in the
international prosecution of these crimes.
However, despite the many advances in the international criminal prosecution of rape and other acts
of sexual violence, these crimes continue to be inflicted on a massive scale during conflict situations.
This is supported by evidence as highlighted in the recent 2015, 2014 and 2013 UN Secretary-General
Reports on Conflict-Related Sexual Violence11 and the 2013 UN Security Council Resolution 2106 on
sexual violence in armed conflicts.12 This Security Council Resolution follows well documented crimes
of sexual nature in the UN Secretary-Generals reports on sexual violence in conflicts. Furthermore,
the recent Declaration on Preventing Sexual Violence in Conflict adopted by G8 foreign ministers in
London highlights the fact that these crimes continue to be inflicted on massive scale and in most cases
at the appalling levels of brutality.13
In most conflicts, rape and other acts of sexual violence are systematically perpetrated against the
civilian population to advance military or political goals (Baaz & Stern, 2013; Roth, 2012; De Brouwer,
2005; Skjelsbaek, 2001). As such, the use of systematic sexual violence as means of ethnic cleansing
and/or genocide has been documented in various armed conflicts. In this sense, the systematic rape of
Muslim or Croat women during the conflict in Bosnia-Herzegovina and Tutsi women during the genocide
in Rwanda clearly exemplifies the use of these appalling acts as means of ethnic cleansing and genocide
(Russell-Brown, 2003).
It is estimated for instance that up to 60,000 Bosnian Muslim or non-Serbian women were raped in the
Serbian plan to create an ethnically homogenous Bosnia-Herzegovina (Sharlach, 2010). As consequently
noted by the ICTY in Prosecutor v. Kunarac et al. case, sexual violence was systematically used by the
Bosnian Serb armed forces as an instrument of terror as part of their ethnic cleansing campaign.14 Equally,
the UN Special Rapporteur of the Commission on Human Rights on Rwanda estimated that between
250,000 and 500,000 Rwandan Tutsi women were raped as a component of the genocide against Tutsi
in 1994.15 Similarly, while the exact number is not known, the special Court for Sierra Leone (SCSL)16
found that rape was systematically committed during the armed conflict in Sierra Leone. During the
216

Sierra Leones decade-long conflict between 1991 and 2002, characterised by an extraordinary level of
human rights abuses, estimates suggest that up to 200,000 people were subjected to some form of brutal
acts of sexual violence (Keen, 2005). Equally, victims of rape during conflict situations were estimated
to be over 40,000 in the Liberia civil war from 1989 to 200317, tens of thousands in the Darfur conflict18
and more than 200,000 Bengali women in Pakistan (Gottschall, 2004), to name but few. These instances
of sexual violence during conflict situations, though perpetrated with significant variation of the scale
and character (Wood, 2006), exemplify how such practices have become the defining characteristics of
armed conflicts over the last years.
Despite the recent global efforts in combating the use of sexual violence in conflict zones as noted
earlier, these crimes have been a central component in some recent conflicts. In the Democratic Repub-
lic of the Congo (DRC), which was described by some scholars as the rape capital of the world19 or
the worst place to be a woman (Grayson, 2012), rape and other acts of sexual violence have become
notorious weapons of war.20 In her study on atrocities committed in times of war in DRC, Kathryn Farr
observes that rape and other acts of sexual violence have been inflicted on Congolese women on a scale
never seen before, and to make matters worse, the majority of victims have been raped several times in
different places by different armed forces (Kathryn, 2010). In this regard, Amnesty International docu-
mented many instances of collective rape, in which combatants physically violate multiple victims at
once.21 The Human Rights Watch, in reference to the high level of sexual violence in the DRC conflict,
described the extent and cruel nature of these crimes as the war within the war or sexual terrorism.22
Furthermore, the deteriorating security situation in many war-torn countries such as the Central African
Republic and Syria has created a context ripe for organised sexual violence by armed forces. In the context
of the Syrian crisis for instance, the UN23 and a number of advocacy groups such as the International
Rescue Committee24 highlighted that sexual violence has been a persistent feature of the conflict since
the beginning of the crisis in 2011.
As earlier noted, the use of sexual violence in conflict situations is no new phenomenon. Whilst
the war in the former Yugoslavia and the genocide against the Tutsi in Rwanda marked a turning point
regarding the prosecution of these crimes (Bassiouni, 1999), these practices have always been used as
a military tactic. According to Kelly Dawn Askin, rape and many other forms of sexual violence were
termed S.O.P (standard operating procedure)as they were rife and commonly perpetrated by all sides
during World War II (Askin, 1997). Estimates suggest for instance that over 20,000 Chinese women were
subject to acts of rape during the Nanking Massacre by Japanese troops (Chang, 1997).
It is important to note that the acts of sexual violence are perpetrated in conflict zones with significant
variation of the scale and the methods used depending on the overall objectives of the perpetrators. While
the precise nature and scale of sexual violence in conflict situations cannot be easily determined (Wood,
2010), some common acts of sexual violence in conflicts have been established. As noted in the recent
Report of the Office of the UN High Commissioner for Human Rights, sexual violence in war includes
rape, sexual abuse, forced pregnancy, forced sterilization, forced abortion, forced prostitution, traffick-
ing, sexual enslavement, forced circumcision, castration and forced nudity.25 It also involves the use of
objects such as guns and knives in womens vaginas to perform non-penetrating sexual assault such as
sexual mutilation (Manjoo & McRaith, 2011). In such settings, it is explicitly intended for sexual torture
to terrorise, prove absolute power over a population, and as a result destroy the social fabric of affected
communities.26 Sexual violence is also used in some conflicts purposely as a weapon to reinforce policies
217

of ethnic cleansing or genocide by forcibly impregnating women or perpetrating other brutal acts such as
forced miscarriages.27In fact, acts of sexual violence in conflict zones are often used against the civilian
population in furtherance of political or military objectives rather than an attempt to satisfy sexual desire.
2. WHO ARE THE VICTIMS AND PERPETRATORS OF SEXUAL

VIOLENCE DURING CONFLICT SITUATIONS?
The fact that women and girls make up the majority of victims and that men comprise the majority of
perpetrators is undisputed. However, reports of brutal acts of sexual violence against males have emerged
from many conflicts. It should be noted that despite being the subject of various types of sexual violence
in armed conflict such as rape, enforced sterilisation, genital mutilation, enforced nudity and masturbation
(Sivakumaran, 2007), sexual violence against males during conflict situations has received relatively
little attention. Scholars such as Sivakumaran and Dustin Lewis observe that some international instru-
ments almost exclude men in the category of potential victims of these crimes or often included in the
general category of abuse or torture rather than sexual violence (Sivakumaran, 2007, Lewis, 2009).
The lack of attention to acts of sexual violence against men in conflict settings stem from various
reasons such as gender stereotypes and other social norms that often hinder the accurate assessment of
the violations. Although the UN Resolution 1820 (2008) on acts of sexual violence against civilians
in armed conflicts holds that these acts affect primarily women and girls, it stresses that men and boys
are also targets.28 In its recent report on rape and other acts of sexual violence in conflict situations, the
Office of the UN High Commissioner for Human Rights demonstrates that men are also the subject of
these violations, although the number of the victims continue to be disproportionally women.29 For
instance, in the context of the war in the former Yugoslavia in the early 1990s, some men were compelled
to perform oral sex upon other men while other male detainees bit off their testicles in detention camps
(Vojdik, 2013), yet others were castrated or otherwise sexually mutilated (Stemple, 2009).30
It is important to note that the ICTY made key contributions in the international prosecution of these
crimes by shedding light on the use of various cruel acts of sexual violence against men during the
former Yugoslavia crisis. This paved the way for further study on such crimes in many other conflicts.
In the Prosecutor v. Duko Tadi case, the first international war crime trial involving charges of sexual
violence,31 the accused was found guilty of different charges that include a wide range of acts of sexual
violence toward men. The ICTY Trial Chamber noted that Prosecution witnesses gave evidence that a
particular victim was made to jump into the pit with other victims and Witness H was ordered to lick
his naked bottom and G to suck his penis and then to bite his testicles.32 Similarly, that various forms
of sexual violence have been perpetrated against men has also been upheld in a number of other cases
such as the Prosecutor v. Zejnil Delali et al.33 for sexual crimes committed in the elebii prison-camp,
and the Prosecutor v. Ranko ei34 case before the ICTY, as well as the Prosecutor v. Issa Hassan
Sesay et al. before the SCSL commonly known as the RUF case.35 Though, the main victims of wartime
sexual violence remain women (Askin, 2012), these findings indicate that systematic sexual violence
as a weapon in war is not just a female issue.
It is also relevant to note the way in which rape and other forms of sexual violence are also increas-
ingly being committed during conflict situations against children. These acts often occur by way of
abduction of children for purposes of sexual slavery. For instance, studies conducted on conflict related
sexual violence in DRC indicate that girls and women of all ages, including those under one and those
218

older than eighty, are victims of rape (Maedl, 2011). This reflects the way in which these acts are being
used as a strategy of belligerence to intimidate and humiliate the communities (Eirienne, 2009; Pratt &
Werchick, 2004),
An important point which, arguably, makes the systematic use of sexual violence as a weapon of war a
considerably more complex problem, is the fact that women and men are not only victims of these crimes
but also perpetrators. While women remain the majority of victims, and men the majority of perpetra-
tors, sexual violence against men has been documented, often implicating women as perpetrators with
some of the most devastating forms of violence such as genital mutilation or sexual violence on other
women with objects such as guns and knives (Cohen, 2013; Linos, 2009). In that context, cruel forms of
sexual violence are used during conflict situations as instruments of terror which, in some cases, result
in death of the victims. In the aftermath of conflicts, the harm suffered by victims of systematic rape and
other acts of sexual violence is compounded by the long-lasting effects of these crimes on their social
circumstances. Indeed, the enormity and dehumanising nature of these crimes lead to more extensive
needs for the victims compared to ordinary crimes.
While the ad hoc International Criminal Tribunals for the former Yugoslavia and its sister for Rwanda
as well as the hybrid tribunals such as the Special Court for Sierra Leone have significantly contributed
to the development of a conceptual legal basis under which sexual violence can be prosecuted, they
have been less successful in providing redress to the victims. When these tribunals were established,
no provision was made for victims outside of their support and protection as witnesses during the trial
proceedings. However, unlike its predecessors, the ICC recognises an additional objective of international
criminal justice to give a voice to victims through participation in the trial process, and offer them a
forum of redress for the harm suffered. While this approach indeed represents a significant component
of comprehensive victim-focused responses within the context of international criminal justice, the
complex realities of victims of sexual violence during conflicts provides a unique range of challenges
in ensuring therapeutic benefits for the victims.
3. VICTIMS OF CONFLICT-RELATED RAPE AND OTHER ACTS OF

SEXUAL VIOLENCE BEFORE INTERNATIONAL CRIMINAL TRIBUNALS
3.1 Shortcomings of the Ad Hoc International

Criminal Tribunals and Hybrid Courts
Due to the nature of rape and other acts of sexual violence, the criminal proceedings may cause psy-
chological harm to the victims involved rather than addressing their needs (Patterson, 2011, Campbell
and Raja, 1999). Scholars such as Patterson (2011), Campbell and Raja (1999) argue that such crimes
victims negative experience with the criminal proceedings can make them feel like a second rape.
Indeed, fear of re-victimisation makes victims of such crimes sceptical about the usefulness of the crimi-
nal justice handling of their situation, and reluctant to report subsequent crimes. The victims negative
experience with the criminal justice process can even make them reluctant to pursue their cases through
the later stages of the criminal justice process (Bacik, et al., 1998). This understandably affects the ef-
fective prosecution of such crimes, since effective cooperation of victims and witnesses is crucial to the
determination of the guilt or innocence of the accused.
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As noted above, despite the fact that victims of crimes have for too long been considered as forgotten
parties in the criminal justice process, the development of victims rights in the criminal justice process
across different domestic systems has informed the progressive development of victims friendly mea-
sures in international criminal proceedings. It is worth noting that the objective ofInternational Military
Tribunal proceedings at Nuremberg and Tokyo after World War II was purely punishment based almost
entirely on documentary evidence, with no mention of victims of crimes (Danieli, 2006). As noted above,
recent developments in the international criminal tribunals procedural rules embody progressive provi-
sions that allow victims to actively participate in the international criminal justice process. However,
victims were not afforded any personal right to participate in the criminal justice process beyond their
traditional role of witnesses before both the ICTY and the ICTR. During the course of the proceedings
before both these ad hoc international criminal tribunals, victims can only participate at the request of
the prosecution and defence counsel.
Despite not featuring prominently in their Statutes, the ICTY and the ICTR have demonstrated that
there is real need for protective and support measures for victims and witnesses to ensure their effec-
tive participation in the process. A closer review of the practice of both tribunals reveals that a wide
range of measures to protect and support victims and witnesses involved in sexual violence cases have
progressively been developed. This protection runs during the course of all phases of the tribunals
proceedings. As such, both tribunals allow Trial or Appeals Chambers to hold an in camera proceed-
ings if circumstances so require in order to protect victims from exposure in the media or to facilitate
their testimony.36 In addition to the possibility of holding closed hearings whenever necessary,37 the ad
hoc Tribunals allow the use of pseudonyms, image and voice alteration devices or deleting names and
other witnesses identifying information from the Tribunals public records.38 Aside from these general
provisions aimed to ensure the safety of witnesses or their families, the ad hoc Tribunals also recognised
concerns for measures to avoid re-traumatizing victims, particularly in cases of sexual violence. In this
way, the Tribunals Rules of Procedure and Evidence tasked their respective Victims and Witness Units
with ensuring that victims summoned to appear as witnesses receive relevant support, including physical
and psychological rehabilitation, and provide counselling and support for them, in particular in cases of
rape and sexual assault.39 Moreover, the Rules of Procedure and Evidence of the ICTY and ICTR have
also recognised the sensitive nature of sexual violence by mandating these tribunals to adopt a gender
sensitive approach to victims and witnesses protective and support measures.40 In this regard, the ICTY
and ICTRs Rules of Procedure and Evidence explicitly demand the inclusion of qualified women in the
appointment of staff within Victims and Witnesses Support Units.41
Indeed, the ICTY and ICTR have recognised the gravity and sensitive nature of conflict-related sexual
crimes, and made significant strides in an attempt to support and protect victims who appear before the
Tribunals as witnesses. The overall objective of the various processes and mechanisms established by
the ICTY and ICTR as well as the subsequent mixed courts42 was to ensure victims of sexual violence
can testify in safety and security, and that the experience of testifying does not result in secondary victi-
misation for them. It should be noted, however, that these tribunals confronted a myriad of challenges in
addressing such victims needs and protecting them from further harm. The challenges that such victims
encountered in giving testimony left them with hurtful experiences, and often exposing many victims
to re-traumatisation. Illustrating this point, Michael Bachrach aptly notes that the ad hoc international
criminal tribunals provisions relating to victims were much easier to read than to see implemented
(Bachrach, 2000). This argument resonates with Anne-Marie de Brouwers view, who deplores that
frequently victims of sexual violence felt victimised all over again as a consequence of the trial pro-
220

ceedings (De Brouwer, 2005). For instance, though the ICTY and ICTRs founding instruments require
controlling the questioning of a witness to avoid harassment,43the report of the International Fact-Finding
Mission sent by the International Federation for Human Rights (FIDH) to the ICTR and in Rwanda, to
collect information on the role and position of victims before the ICTR, reveals many instances of hurt-
ful questions on their experiences.44 Referring to the findings of this report, De Brouwer appropriately
noted that many questions that the victims of such crimes faced coupled with the defences questioning
methods were causes for potential secondary victimisation (De Brouwer, 2005).
The FIDHs Fact-Finding Mission Report, for instance, indicates that many times rape victims
encountered questions intended to upset the witness, rather than to provide the necessary points of
evidence.45After interviews with rape victims who appeared before the ICTR as witnesses about their
experiences during the Tutsi genocide in Rwanda, the report similarly points out that no consideration
was given to the mental exhaustion of victims, and judges rarely intervened to stop the treatment which
victims considered degrading.46 Illustrating this argument, De Brouwer states instances of upsetting and
very intimate questions to victims of sexual crimes on their experiences such as did you take pleasure
in the act?, why did you not interrupt the act if you did not find pleasure in it?, did you touch his sex
organ?, how was it introduced into your vagina?, are you able to tell the judges of this Chamber whether
he (the accused) was circumcised or not? (De Brouwer, 2005). In a similar line, Carla Del Ponte, then
Chief Prosecutor for the ICTY and ICTR, expressed concerns over judges laughing during testimony
of a victim of multiple rapes. Also, Madeleine Rees, former Chief of Mission in Bosnia for the Office
of the High Commissioner for Human Rights, lamented the case of a judge asking a victim whether
she was a virgin at the time of the alleged rape. Such treatment of victims has led to many witnesses to
experience traumatic experiences and, as a result, some victims refused to testify about their traumatic
experiences during the genocide in Rwanda, claiming the lack of faith in its victims protection mecha-
nisms and inappropriate treatment during the proceedings (Henry, 2009).
While the ICTY and the ICTR as well as the mixed tribunals such as the SCSL and Extraordinary
Chambers in the Courts of Cambodia (ECCC)47 have significantly contributed in the creation of a con-
ceptual legal basis under which rape and other acts of sexual violence can be prosecuted, they have been
less successful in providing justice and redress to such crimes victims. While there are some positive
developments as noted above, the tribunals practice provided some negative lessons in the protection
and support of victims of such crimes. Lack of comprehensive and specific legal provisions addressing
specific sexual violence related issues resulted in many challenges and obstacles for the tribunals to
ensure therapeutic benefits for the victims of rape and other acts of sexual violence.
For instance, the Offices of the Prosecutors methods of investigation for sexual violence cases led to
many challenges in collecting evidence for the successful prosecution of sexual violence. In fact, lack of
effective account for these crimes often led to inconsistent rape indictments, which resulted in prosecu-
tors dropping rape cases or few successful prosecutions. Equally, the lack of appropriate mechanisms for
witness protection at the ad hoc tribunals exposed the victims of sexual violence to further trauma in
dealing with investigators and prosecutors in the collection of evidence. In this connexion, some studies
indicate that the protection techniques used by the ad hoc international tribunals in the investigation of
sexual violence often led not only to many challenges in collecting evidence needed to prove cases but
also to intense psychological strain for victims (Oosterveld, 2005). In this context, the ICTRs Office of
the Prosecutor noted for instance in the recently published Best Practices Manual for the Investigation
and Prosecution of Sexual Violence Crimes in Post-Conflict Regions, that often investigators ignore the
cultural implications and the stigma associated with being a victim of sexual violence in most societies.48
221

Indeed, the social ramifications of effects of these crimes make the victims often reluctant to discuss
their traumatic experiences (Beltz, 2008).
Nevertheless, despite the many challenges and obstacles in ensuring therapeutic support for victims
of sexual violence, the ad hoc tribunals made some significant developments in the protection of victims
of such crimes. For instance, some rules aimed at addressing particular challenges facing rape witness-
victims during the criminal proceedings have been developed. Keeping with Rule 96 of the ICTY and
ICTRs RPE, the ad hoc tribunals held for instance that, in the prosecution of sexual crimes, the cor-
roboration of the witnesss evidence is not needed in order to convict the accused49, the prior sexual
behaviour of the victims is irrelevant during the trial,50 and the consent of the victims cannot be used
for the defence of alleged perpetrators.51 The tribunals aptly held that war sexual crimes are perpetrated
under so coercive circumstances as to negate any possibility of consent and victims are therefore not
required to show evidence of permanent and lasting resistance and simultaneous use of force or threat
by the alleged perpetrators.52
Despite limited supportive measures to victims, making evidence of victims prior or subsequent
sexual behaviour generally inadmissible into evidence, the non-corroboration requirement of the victims
testimony and the findings that coercive circumstances are inherent in armed conflicts represent a posi-
tive development in the protection of such crimes victims. In fact, the context of war makes consent
irrelevant to the prosecution of sexual crimes. According to some scholars, such an approach reflects
the sensitive and coercive nature of sexual violence in armed conflicts (De Brouwer, 2005; Fitzgerald,
1997). Ultimately, these measures prevent such crimes victims from being harassed or embarrassed
by defendants during the courts proceedings, thereby boosting their willingness to participate in the
criminal justice process. These developments can be considered as positive elements in the protection
of victims of rape and other acts of sexual violence before the ICTY and ICTR.
In sum, notwithstanding significant developments were made in the international criminal prosecu-
tion of sexual crimes before the ad hoc international tribunals, these tribunals encountered a myriad of
challenges in providing therapeutic support to the victims. However, considering how very little attention
was paid to war crimes of sexual nature in the history of international criminal justice, it is not surprising
that the ad hoc tribunals afforded limited protective and support measures to victims, particularly those
of sexual crimes. Accordingly, given the history of silence on conflict-related sexual violence and little
role of victims in international criminal justice process, the development of some legal mechanisms
to protect victims of rape and other sexual crimes in the ad hoc tribunals procedures was certainly a
turning point in this regard (Henry, 2009). Such protective measures to rape victims developed by the
ICTY and ICTR have been incorporated in the ICCs Statute and Rules of Procedure and Evidence with
significant strides built on the ad hoc tribunals challenges.
It is worth noting that the ICC has provided for a wide range of sexual related offenses under its
jurisdiction as amounting to crimes against humanity53 or war crimes in both international and internal
armed conflicts.54 Building on the previous tribunals achievements, the ICC also referred to evidence
of sexual violence allegedly committed as factual basis in furtherance of the crime of genocide, and
has issued indictments accordingly.55 Indeed, the experiences of the previous tribunals advanced the
international awareness of the complexity and breadth of the experiences of victims of conflict-related
sexual violence. Accordingly, the procedural mechanisms to protect and support such crimes victims
contained in the ICCs founding instruments mirror in many respects those of the ICTY and ICTR, with
significant developments aimed at addressing the previous tribunals shortcomings.
222

3.2 The ICCs Victims Protection Scheme for Victims of Rape

and other Acts of Sexual Violence: A Step Forward?
The negative and positive precedents of the previous international criminal tribunals provided invaluable
lessons which assisted in the framing of the Rome Statute and its subsidiary instruments. As such, the
challenges with respect to victims of rape and other acts of sexual violence helped the drafting process of
the ICCs Statute, to progressively improve the victims/witnesses protection framework. It is important
to note that the Rome Statutes provisions are complemented by the Rules of Procedure and Evidence56
and the Elements of Crimes.57 The ad hoc tribunals experience was considered as first-hand experience
of running complex trials during the drafting of the ICCs Statute (Nerlich, 2008). Accordingly, the
ICCs founding instruments have taken further strides in the protection and support of victims of rape
and other acts of sexual violence.
With respect to investigations for instance, like the previous tribunals, the Rome Statute requires the
Prosecutions Office to take appropriate measures to ensure the effective investigation and prosecu-
tion of crimes within the jurisdiction of the Court.58 This is considerably important since, as the late
judge Hans-Peter Kaul, former president of the ICCs Pre-Trial Division has convincingly noted,
effective investigations are the fuel for the entire Court (Kaul, 2007). The Rome Statute has however
taken a more significant step in this regard by providing that the investigation must respect the interests
and personal circumstances of victims and witnessesand take into account the nature of the crime,
in particular where it involves sexual violence, gender violence or violence against children.59Article
42 of the ICC Statute further requires the Prosecutions Office to recruit expert advisers on issues such
as sexual violence. This suggests that the collection of testimonies in crimes of sexual nature can pose
unique challenges since the victims find it difficult to discuss their traumatic experiences.
Furthermore, while the ICTY and ICTRs Victims and Witnesses Units do not require staff with
expertise in sexual violence issues, Article 43 of the Rome Statute stresses that the Courts Victims and
Witnesses Unit should include experts in trauma such as that resulting from sexual violence.60 Also,
in an effort to address the challenges faced by the ICTY and ICTR in accommodating victims of these
crimes, the ICCs Rules of Procedure and Evidence incorporate additional in-court protective measures
for victims. Such measures include allowing a psychologist or a family member to attend during the
testimony of the victim upon request of Prosecutor or the defence, a witness or a victim or his or her
legal representative.61 Equally, Article 88 of the Rule of Procedure and Evidence stress that judges con-
trol the manner of questioning a witness or victim so as to avoid any harassment or intimidation, paying
particular attention to victims of sexual violence.62
A close look at the ICC practice reveals that various protective measures for victims have been ap-
plied in different cases. In Prosecutor v. Thomas Lubanga Dyilo case for instance, the ICC allowed
a family member, psychologist or legal representative to accompany witnesses during testimony, if a
witness is also a victim or for child witnesses.63It is worth stressing that, special protective measures to
some victims should not be granted at the expense of the accused, and hence the Court is under obliga-
tion to define the breadth of those measures in light of the defendants rights. This suggests that, as the
ICC has stressed, victims support and protective measures cannot be applied as a matter of course, but
could only be offered as exceptional measures after the Courts analysis of the necessity of the requested
protective measures, the availability of alternatives as well as their overall impact on the rights of the
accused.64 Along the Courts onus to take all necessary steps to protect victims/witnesses, there is also
an obligation to ensure the fairness of the proceedings.65
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Indeed, as earlier noted, though the ad hoc tribunals were clearly criticised for lack of active and inde-
pendent engagement of victims in proceedings, hence their inability to ensure therapeutic jurisprudence,
these tribunals contributed to a richer understanding of the enormity of war-related sexual violence and
the complexity of the victims experiences. As a result, in many respects the ICCs legal texts incorpo-
rate much of the previous tribunals advances, making important step forward in the advancement and
protection of victims rights in the international criminal justice system.
More significantly, the Rome Statute of the ICC affords victims of international crimes with un-
precedented rights to participate and present their views and concerns in the criminal justice process,
independent of their role as witnesses.66 Similar provisions were included in the Statutes of the Extraor-
dinary Chambers in the Courts of Cambodia67 and the Special Tribunal for Lebanon (STL)68 established
as hybrid tribunals. On this basis, victims can have a separate voice in international criminal proceedings
at appropriate stages of the proceedings where their personal interests are affected, without prejudice
to the accused. This commendable progress flows from the increasing domestic and international legal
bases underpinning the improvement of the plight of victims in the criminal justice process, and the
growing awareness of the victims right and need for redress for their suffering (Pena & Carayon, 2013).
Accordingly, victims role in the criminal justice proceedings enhances the international criminal sys-
tems efforts to end impunity for the most serious crimes and address the victims needs with a view to
facilitating their healing process.
While the new victim-centred approach in addressing international crimes represents a positive advance
in the recognition of victims rights, it also presents the ICC with significant challenges. Particularly,
given the nature of international criminal justice, the complex realities of victims of sexual violence
in conflict situations provide a unique range of challenges in addressing their needs within the context
of victim participation in the criminal justice process. In other words, not withstanding the presumed
benefits of victim participation in the criminal justice process to ensure the victims recognition and
have their suffering addressed, whether and how victims participation at trial process can generally have
therapeutic effects for the victims of conflict-related sexual violence is by no means a straightforward
process. The remainder of this chapter critically examines the procedural, legal and practical aspects
of the growing trend of victims participation in international criminal justice process, to highlight the
potential and challenges in ensuring therapeutic outcomes for victims of conflict-related rape and other
acts of sexual violence.
4. PARTICIPATION OF VICTIMS OF RAPE AND OTHER ACTS

OF SEXUAL VIOLENCE AT THE ICC TRIAL PROCESS: A
THERAPEUTIC JURISPRUDENCE PERSPECTIVE
4.1 Overview of the ICC Victim Participation Framework
As stated in this chapters introduction, unlike the ICTY and the ICTR, the ICCs founding instrument-
sprovide victims the right to participate in the criminal justice process beyond their traditional role of
witnesses. According to the Rome Statute:
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where the personal interests of victims are affected, the Court shall permit their views and concerns
to be presented and considered at stages of the proceedings determined to be appropriate by the Court
and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and
impartial trial.69
While Article 68(3) of the Rome Statute and rules 89 to 93 of the Rule of Procedure and Evidence
set out key principles in relation to victims participation in proceedings, the ICCs judges are tasked
with developing modalities of participation in a manner that is responsive to the victims needs, and
consistent with the accused rights to a fair trial. According to the Rome Statute and Rules of Procedure
and Evidence, participation of victims also consists of the right to make representations. This suggests
that victims views and concerns may be presented by the legal representatives of the victims where
the Court considers it appropriate. In so doing, and in line with the Rules of Procedures and Evidence,
victims can choose a common legal representative or representatives where there are a number of victims.
Legal representatives of a victim or common legal representatives of victims are entitled to attend and
participate in the hearings, unless the court is of the view that the representatives intervention should
be confined to written observations or submissions.70
While the ICC Statute and the Rules of Procedure and Evidence do not clearly address the closing
stage of the proceedings(especially as regards the content of the closing statements), a close look at the
ICC practice shows that victims may make opening and closing statements.71 The ICC Rules of Procedure
and Evidence vaguely provides that after the presiding judge declares when the submission of evidence
is closed, s/he shall invite the Prosecutor and the defence to make their closing statements.72 While
this Rule does not mention victims or their legal representatives, this issue has been extensively dealt
with by the Court. In the Lubanga trial, the Court held that victims may be allowed to present closing
statements despite the fact that participating victims are not specifically mentioned under Rule 141.73
This is in accordance with the Rule of Procedures and Evidence that allows the Chamber to specify the
proceedings and ways in which participation can be deemed appropriate, which may include making
opening and closing statements.74
Indeed, providing victims the right to participate at the trial process before the ICC can be hailed as
a significant step in the development of victims rights since previous international criminal tribunals
paid little attention to victims. Since the adoption of the Rome Statute, a number of scholars and prac-
titioners have considered the challenges and complexities facing the ICC in accommodating victims of
mass atrocity into the trial process beyond their normal role of witnesses (Moffett, 2014; Bonacker &
Safferling, 2013; McGonigleLeyh, 2011; Markus Funk, 2010; Baumgartner, 2008). Whilst there has
been much dissention among scholars, the bulk of research on this approach contributed to highlighting
a wide range of complex legal and practical issues and their implications for the procedural fairness of
the criminal justice process in light of the unique nature of international criminal justice. Significantly,
the ICC has thus far made important jurisprudential developments, considering numerous issues raised
by victims participatory scheme embodied in the Courts governing instruments.75 Along with the
growing recognition of the importance of such participation both for victims and for the Court, there are
procedural constraints as well as various limitations and challenges to achieving intended objectives. The
remainder of the discussion in this chapter analyses the prospects and challenges of the victim-centric
approach of the ICC in addressing the needs and interests of victims of conflict-related sexual violence.
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4.2 Therapeutic Aspects of Victims Participation at the ICCs Trial Proceedings
The integration of victims as active participants in the prosecution of international crimes is of the utmost
importance, and can be an effective instrument of the victims redress within the context of interna-
tional criminal justice. This is crucial to the ICCs role in not only curtailing impunity of mass atrocity
but also providing the foundation for the rebuilding of affected societies. It is often argued that victims
get therapeutic benefits from participating in criminal justice proceedings (Wemmers, 2010). Scholars
such as Thomas Antkowiak, for example, refer to the ICC victims rights regime as a unique system in
which the elements of retributive and restorative justice aim to be reconciled (Antkowiak, 2011).This
suggests that, in addition to assisting in the public exposure of the truth, providing victims an active role
into the international criminal justice process can be an effective way of ensuring acknowledgement of
the victims suffering, thereby facilitating their healing process. Indeed, as Simon Robins rightly ar-
gues, the involvement of victims in the justice process opens up avenues for victims perspectives, and
provides a window of opportunity for recognizing and addressing the harm suffered by the victims of
mass atrocities (Robins, 2011).
This approach is even more significant in the context of post-conflict situations for the international
criminal proceedings to empower victimised communities, in both promoting accountability for mass
human rights violations and addressing the effects of international crimes on victims. With reference to
serious crimes committed during the conflict in Timor-Leste,76 Robins rightly observes that the active
inclusion of victims in justice processes holds potential to mend the harm sustained on the victims indi-
vidual level but could also facilitate the victims healing and reconciliation in affected societies (Robins,
2012).This resonates with Juan Carlos Ochoa-Sanchezs observation that providing victims an active
role in the ICC trial proceedings was greatly influenced by the intention to achieve restorative justice
in the international criminal justice process (Ochoa-Sanchez, 2013). This suggests that the victims
participatory rights at trial proceedings before the ICC can add restorative values into the international
criminal process, thereby facilitating the victims healing. This point resonates with the ICCs Revised
Strategy in Relation to Victims adopted in 2012 which stressed that the ICC has not only a punitive
but also a restorative function.77 Along these lines, given the nature of international crimes, taking into
consideration the victims views and concerns further contributes to a richer understanding of the context
in which these crimes were committed, and can play a positive role in bringing closure to the victims.
Some would argue that widespread and systematic sexual violence during conflict situations result
in irreparable psychological and physical devastation to victims (Grimaldi, 2013; Vidale-Plaza, 2011).
Whilst this assertion can hardly be disputed, some studies show however that a restorative justice-based
alternative would alleviate the consequences and boost victims satisfaction with the criminal justice
system (Naylor, 2010). This line of thought suggests that providing victims the opportunity to express
their experiences brings recognition to the harm suffered and may also be a way of empowering them
and mend their suffering. Despite the perceived therapeutic benefits of the participation of victims in
the criminal justice process, ensuring an effective participation of victims of sexual violence in by no
means a straightforward process. One empirical study on victims of sexual violence during conflict in
the former Yugoslavia, for instance, found that many victims of such crimes choose to remain silent
about their experiences (Skjelsbaek, 2006). Similarly, the ICC found that victims of rape and other acts
of sexual violence are reluctant to discuss their experiences in explicit terms.78 This is quite under-
standable considering the sensitive and invasive nature of conflict-related rape and other acts of sexual
violence as well as the socio-cultural contexts in which these crimes are often committed. The experi-
226

ence of such victims in the criminal justice process may therefore be particularly damaging so as to
cause the second injury to victims of these crimes rather than satisfying their needs (Naylor, 2010;
Orth, 2002). Indeed, depending on the nature of victimisation, some procedural aspects of the criminal
justice process may have negative ramifications to the victims recovery process.
In the context of victims participation at the ICC trial proceedings, commentators express concerns
over some challenges that hinder the effective delivery of justice both for victims and the accused (Mc-
GonigleLeyh, 2011; McDermott, 2009; Van den Wyngaert, 2011). Illustrating the limited restorative
effect of the ICC victims participatory regime, McGonigleLeyh argues that active and direct participa-
tion of victims at trials could not be the best way to address the victims suffering (McGonigleLeyh,
2011). Due to the nature of international crimes, the current modalities of victims participation before
the ICC offer nothing more than symbolic recognition for the victims (Van den Wyngaert, 2011).With
respect to conflict-related sexual violence in particular, the complexity of the victims experiences can
provide a unique range of challenges in ensuring therapeutic benefits for victims, a point to which the
discussion now turns.
4.3 The ICCs Victim Participation Scheme: Challenges in Ensuring

Therapeutic Outcomes for Victims of War Sexual Violence
Whilst the Rome Statute and Rule of Procedure and Evidence provide little details on victims partici-
pation at the ICC trial process, the Court has thus far made important jurisprudential development on
modalities for this approach. One of the biggest challenges to victims participation in international
criminal justice process is the large number of victims of mass crimes, constraining the ICC to limit the
extent and scope of participation. Accordingly, modalities of victims participation developed by the
Court includes what McDermott calls a two-pronged approach (McDermott, 2009), through which
the Courts Chamber assesses whether the applicant satisfies the formal definition of a victim before
establishing the victim personal interests and the appropriateness of participation. In other worlds,
in addition to qualifying as a victim pursuant to rule 85 of the Rules of Procedure and Evidence,79 the
applicants must demonstrate that their personal interests could be affected at the stage of the proceeding
with respect to which participation is sought. Further, the Court must establish the appropriateness of
their participation at that particular stage, and especially that their participation will not jeopardize the
fairness requirement of the criminal justice.80 Assessment is made on a case by case basis, and participa-
tion is limited to issues that directly affect the victims personal interests. This practice puts responsibility
on victims to justify that their personal interests are sufficiently engaged to justify their participation in
proceedings. It is important to note that the harm sustained by victims for the purpose of participation
need not to be direct but must be personal81 and victims must prove the causal link between harm suf-
fered and charges faced by the accused.
Moreover, despite lack of a consistent approach to victims participation at the ICC (Mouthaan, 2013),
modalities of participation developed also comprises a victim collective representation, an approach
whereby victims are placed into groups and assigned common legal representatives to undertake the task
of presenting their victims views and concerns.82 In fact, as will be discussed below, the current modali-
ties of victim participation in the ICC involve a burdensome process that can be frustrating for victims
who have been through traumatic experience such as victims of rape and other acts of sexual violence
during conflict situations. This suggests, as Mouthaan rightly argues, that some procedural aspects of
victim participation at the ICC could be unnecessarily intrusive for victims of such crimes (Mouthaan,
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2013), and as a result weaken the victims engagement in the proceedings due to the complexity of their
victimisation. In fact, the ICCs victim participation framework involves complex aspects unlikely to
address the needs of victims of sexual violence but could rather undermine their participation in the
proceedings, and ultimately impede the attainment of potential therapeutic outcomes.
4.4 Status of Victims and Arduous Process of Applications

for their Participation in Proceedings
It is useful to emphasise that not all victims of the conflict will be granted the status of victims for the
purpose of victim participation at trial proceedings before the ICC. Although the Rule of Procedure
and Evidence of the ICC provides a broad definition of victims,83 the status of victims for the purpose
of participation at trial process is narrower. This is not only due to the choice of situations and charges
by the prosecutor but also on the interests of justice and the interests of victims taking into account
all the circumstances, including the gravity of the crime.84This suggests that victim participation at trial
proceedings is dependent on the prosecutors choices of crimes to prosecute. Significantly, as earlier
noted, the potentially affected victims interests further play an important role in deciding whether to
allow victims to participate at trial proceedings.85The applicants personal interests in taking part in the
Court specific proceedings against a particular person must therefore be established and recognised by
the judges.
Such participation of victims at trials proceedings based on the selection of crimes and events to
prosecute have led to the limited recognition of some victims. This is particularly true for victims of
sexual violence despite the prevalence of these crimes in situations of conflicts. In this connexion,
scholars such as Mouthaan argue that the victims of rape and other acts of sexual violence in situations
of conflicts can be a forgotten category due to the prioritisation of victims based on prosecutorial
selection of situations, perpetrators and charges (Mouthaan, 2013). It is indicated, for instance, that
in Prosecutor v. Thomas Lubanga case, the prosecutions focus was on charges of child soldiers to the
detriment of widespread rape and other systematic acts of sexual violence.86 Despite the widespread
allegations of systematic rape, sexual enslavement and other forms of sexual violence by the Union des
Patriotes Congolais pour la Reconciliation et la Paixmilitary group (UPC) in the Ituri region of the DRC
led Lubanga, the charges before the ICC made no mention of these crimes, thereby closing the door for
victims to take part at criminal proceedings (Kurth, 2013). Indeed, the disillusionment of victims of rape
and other acts of sexual violence in this case highlighted the potential limited recognition of victims of
these crimes due to the prosecutions selection of charges.
Moreover, whilst the ICC has issued a number of decisions which made important developments with
respect to the implementation of the victims participatory rights, some aspects pertaining to the extent
to which victims can take part in proceedings are still under development. Indeed, the ambiguity govern-
ing the ICC victims participatory system in the ICCs founding instruments gives different Chambers
of the Court a broad discretion in this regard. In this connexion, the ICC ruled in Germain Katanga and
Mathieu Ngudjolo Chui case, that the regime governing victim participation at the ICC varies from case
to case.87 In fact, each Chamber of the Court has the discretion to define the appropriate modalities for
victim participation depending on different factors such as the number of victims seeking to take part
in the proceedings and the nature of charges.88
It goes without saying that, given the nature of international crimes, the proceedings before the ICC
involve a large numbers of victims wishing to participate in the proceedings and this could affect the
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efficiency of the trials and potentially make the system unfeasible. Besides, the negative impact on the
procedural fairness, allowing all victims to participate at trial proceedings would not even serve any
useful purpose for victims whose interests are not affected by the actual case.89This requirement therefore
serves the Court to ensure that victims make a correct use of their right to participate at trial process
by limiting participation to issues directly affecting their personal interests at the appropriate stages of
proceedings as opposed to the general interests shared by all victims of a situation (Donat-Cattin, 1999).
Indeed, this process of determining who is a victim for the purpose of participation is critical to the
effectiveness of this approach by ensuring that only victims with potentially affected interests are allowed
to take part in specific trial proceedings. However, the complex and arduous process to formal recogni-
tion as victims for the purpose of participation at the ICC may create enormous challenges for victims
who have been through traumatic experience such as victims of conflict-related sexual violence. In this
connexion, in its Report on the Review of the System for Victims to Apply to Participate in Proceedings,
the ICC recognises that victims of sexual violence find it difficult to tell their stories,90due to the com-
plexity of their experiences and related risks in their communities. In post-conflict settings, the victims
of rape and other acts of sexual violence have to contend with a myriad of social challenges obstructing
their ability to speak about their ordeals. This is not only due to intense physiological effects of their
victimisation but also the social ramifications of rape and other acts of sexual violence in many societies.
Accordingly, besides the difficulties in identifying victims and collecting information about their victi-
misation, the long and complex process to the status of victims for the purpose of participation can prove
daunting.91Particularly, this process can put victims in a potentially re-traumatising situation.92Going
through the complex process of proving that their personal interests are affected may not only undermine
their chance of participation at trial process, but also jeopardizing the potential therapeutic outcomes of
the process. It is worth noting, as the ICC held in the Lubanga case, that the procedure for application
for the victim status is necessarily fact-dependant and victims personal interests in the case must go
beyond a general interest in the outcome of the proceedings.93 Although this may be done through legal
representatives as discussed below,94 if victims of conflict- related rape and other acts of sexual violence
are to go through this long and arduous process, this approach could lead to a sense of disillusionment with
the international criminal justice for victims of such crimes rather than effectively addressing their needs.
4.5 Victims Participation through Common Legal Representation:

Potential Challenges in Creating a Collective Narrative of
Events in Conflict-Related Sexual Violence Cases
While there are understandable reasons for common legal representation of victims seeking to participate
at trials before the ICC, this process raises concerns for the challenges in creating a collective narrative in
conflict-related sexual violence cases within the context of international criminal justice. Van den Wyn-
gaert, a judge at the ICC, in her analysis of how meaningful the ICCs victims participation regime can
be for victims, argues that victims who expect to find a forum where they could personally and publicly
express their grief and thus have a platform to expose their feelings will probably be disappointed(Van
den Wyngaert, 2011). This argument is based on the fact that, in practice, the ICC has developed a system
whereby victims perspectives are in most cases presented by common legal representatives. In so doing,
victims are placed into groups based either on geographical location95 or victims common interests,96
and assigned common legal representatives to undertake the task of representing them over the course
of the criminal justice proceedings.
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For instance, in Lubanga trial, victims were placed into two groups with a common legal representative
for each group, and at the same time the Office of Public Counsel for Victims (OPCV)97 was authorised
by the Trial Chamber I to represent the remaining group of victims with dual status as victims and wit-
nesses.98 This approach of appointing common legal representatives to appear in court for the participating
victims was subsequently adopted in many other cases such as the Prosecutor v. William Samoei Ruto
and Joshua Arab Sang99 and the Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta,100
whereby all victims admitted to participate in the cases have been assigned to a single common legal
representative. While Article 68 (3) of the Rome Statute vaguely provides for the possibility of legal
representation in proceedings for participating victims, rule 90 of the Rule of Procedure and Evidence
and the Regulations of the Court101 explicitly provide that victims have the possibility to choose freely
legal representatives, or consult with victims in the appointment of a common legal representatives or
representatives of victims. The Registrars choice of a legal representative is also a possibility where the
interests of justice so require and after consultation with the victims.
Given the widespread nature of international crimes and, as a result, the sheer number of victims
expected to participative in proceedings, common legal representatives can act as a point of contact for
victims admitted to participate in cases. Common legal representatives of victims therefore convey the
victims views and concerns before the Court, and especially play an active role on behalf of the victims
throughout the proceedings. This approach may well be appropriate for the ICC to permit meaningful
participation of a large number of victims of mass crimes, while complying with the Courts obliga-
tion under the Rome Statute to ensure that participation of victims in proceedings is not prejudicial to
the rights of the accused.102 In fact, organising victims into groups for the purpose of collective legal
representation aims to ease the practical challenges facing the ICC regarding victims participation in
accommodating a large number of victims in the criminal justice process without hindering the fairness
and expeditiousness of the proceedings.
However, while the common legal representatives system would seem appropriate, given the number
of victims expected to participate in the criminal justice proceedings, it raises some critical questions as
to whether it is appropriate in furtherance of the objectives of the victim participatory regime. Specifi-
cally, it is questionable whether the appointment of common legal representatives to voice the interests
of all victims would be effective under the conditions of victims of systematic rape and other acts of
sexual violence in conflict settings. Arguably, this approach could potentially weaken the engagement
of victims of such crimes with the international criminal justice rather than enabling the Court to ef-
fectively address their needs and interests.
A number of aspects with respect to the nature of conflict-related sexual violence and especially the
conditions of victims during and after conflicts give rise to this argument. First, the enormity and sensitive
nature of conflict-related sexual violence coupled with the socio-cultural contexts in which these crimes
are often committed lead to a myriad of social challenges for victims in post-conflict settings. As the UN
Secretary General Ban Ki-Moon recently insisted, these crimes not only inflict great suffering on victims
but they also destroy communities and tear the social fabric of the entire affected nations.103In the above
mentioned Report on the Review of the System for Victims to Apply to Participate in Proceedings, the
ICC recognises the potential challenges in creating a collective narrative of the experiences of victims
of conflict related sexual violence within the context of victim participation. It points out how victims
of gender-based crimes cannot be part of a collective action.104 It is useful to note that, at present, there
are a variety of different approaches to collective victims participation before the Court. While in some
cases victims have been grouped for the purpose of common legal representation, in other cases a single
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common legal representative was appointed to advance the views and concerns of all victims in spe-
cific cases. Anushka Sehmi, the Case Manager for the Legal Representative for Victims in the Kenyatta
case, argues that the development of a collective victims participation approach suggests the treatment
of victims as a mass and homogenous in victimisation during conflicts situations (Sehmi, 2013). As
the Victims Rights Working Group rightly argues the identification of the legitimate voice within a
mass of victims will run into significant challenges.105 This is particularly true for those victims who
have been through traumatic experiences such as rape and other sexual crimes in situations of conflicts.
It is important to note that rape and other acts of sexual violence in conflict situations generally follow
distinct patterns and serve strategic purposes, with short- and long term effects on victims. Consider-
ing the fact that common legal representation is arranged before victims are accepted in take part in
proceedings, a collective approach victims representation could have negative effects on the victims
willingness to engage with the criminal justice process. Moreover, as Redress has noted in their observa-
tions to the Pre-Trial Chamber I of the ICC pursuant to rule 103 of the Rule of Procedure and Evidence,
there can be challenges for victims of sexual violence to speak to common representative about their
ordeals besides other crimes.106In other words, a common legal representation of victims could lead to
a prioritisation of other crimes to the detriment of the sexual-related harms suffered by the victims. In
fact, while common legal representation of victims may well serve the ICC to avoid undue delays of
the proceedings, the Court could face many challenges in creating a collective account of the victims
experiences events in war-related sexual violence cases.
4.6 Insufficient Recognition of the Harm Suffered: The

Potential Under-or Misrepresentation of the Real Experiences
of Victims of Conflict-Related Sexual Violence
The task of accommodating victims of conflict-related sexual violence in the international criminal
justice process remains a colossal task due to the complexity of the victims experiences. As earlier
pointed out, this task is rendered more challenging by the direct social effects of these crimes on vic-
tims in post-conflict societies that often compound their victimisation. The social ramifications of these
crimes often amplify significant barriers the victims effective engagement with the criminal justice
process. As Dyan Mazurana and Kristopher Carlson rightly argue, due the challenges in accommodating
victims of conflict-related sexual violence, the jurisprudence of the international ad hoc tribunals rarely
adequately captured their realities during conflicts (Mazurana & Carlson, 2009). In fact, the victims of
such crimes not only encountered myriad difficulties in telling their stories before international criminal
tribunals, a reality that hinders the effective investigation and collection of the necessary information
about their victimisation.
Indeed, as earlier noted, significant strides have been made by the ICC in the protection and treatment
of victims of sexual violence over the course of the criminal process. However, the Court faces a unique
range of challenges of not only protecting the victims of such crimes as witnesses but also address the
victims needs within the context of its innovative victim participation framework to ensure effective
redress for the harm suffered. In other words, the ICC is meant to provide greater recognition of voices
and experiences of victims of rape and other acts of sexual violence than was possible before the ad hoc
international criminal tribunals. Notwithstanding significant progress thus far made by the international
criminal tribunals in accommodating victims of sexual violence, and especially address their needs,
there are still significant challenges to ensure effective recognition of the victims experiences within
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the context of international criminal justice. To a large extent, the persistent challenges in accommodat-
ing victims of sexual violence stem from the very nature of these crimes in situations of conflicts, and
especially to the socio-cultural context in which these crimes are often committed.
Without full consideration of the social ramifications of effects of sexual violence on victims, there
would be a persistent shortcoming in addressing the victims needs within the context of international
criminal justice. As some studies have highlighted, in many contexts, the systematic use of sexual violence
arises from a set of complex circumstances often deeply rooted in local contexts (Trenholm,2013). It is
therefore fundamental to draw upon the complex contextual dynamics of conflict-related sexual violence
to ensure effective participation of the victims in the international criminal justice process. Failure to do
so will lead to the ICC facing the same limitations that the ad hoc international criminal tribunals faced
in ensuring effective redress for the victims of rape and other acts of sexual violence.
CONCLUSION
Unlike the international criminal tribunals for the former Yugoslavia and Rwanda, the ICCs Statute
hasprovided victims the right to participate in criminal proceedings beyond their traditional role of
witnesses. The regime of victim redress enshrined in the Rome Statute represents one of the greatest
advances made by international criminal justice system over the recent years. This chapter has sought
to examine prospects and challenges of the relatively recent approach of victims participation in inter-
national criminal justice process in ensuring therapeutic outcomes for victims of conflict-related sexual
violence. The discussion offers a critical analysis of the procedural aspects of the relatively recent right
of victims to participate in international criminal justice process beyond their traditional role of wit-
nesses. A comprehensive account of continuing challenges of the ICC in accommodating victims of
conflict-related sexual violence to ensure effective recognition of the victims experiences within the
context of victim participation draws on the unique nature of such crimes and its implications for the
victims needs in post-conflict settings. The focus has rested on the procedural, legal and practical aspects
of victim participation in international criminal process currently under development before the ICC
to provide a picture of the confines of its potential and challenges in ensuring therapeutic outcomes for
the victims of such crimes.
While Article 68(3) of the Rome Statute and rules 89 to 93 of the ICCs Rule of Procedure and
Evidence set out key principles in relation to victims participation in proceedings, wide discretion was
vested with the judges to develop modalities of such an approach within the context of international
criminal justice. Despite many challenges and inconsistency due to the nature of international criminal
justice, the ICC jurisprudence has thus far laid down a number of decisions on the procedural aspects
of victim participation in criminal process.
The analysis presented in this chapter shows that some procedural aspects of victim participation
in international criminal proceedings may prove of little benefit to victims of conflict-related sexual
violence, and ultimately dilute their engagement with criminal justice process rather than satisfying
their needs. Essentially, the discussion reveals that given the complex ways in which these crimes are
experienced in conflict situations, accommodating the victims of these crimes and ensure effective rec-
ognition of the victims experiences within the context of victim participation in proceedings remains a
highly challenging task. First, these challenges stem from the very nature of these crimes which result
in intense psychological harms for the victims. Secondly, conflict-related rape and other acts of sexual
232

violence results in direct social consequences for the victims that obstruct the victims ability to engage
with the criminal justice and speak about their ordeals.
In fact, the challenges for victims of these crimes to engage with the international criminal tribunals
or their inability to provide a comprehensive picture of their stories at these tribunals result in under
representation of their real experiences during and after conflicts. Accordingly, the author argues that the
relatively new victim-centred approach in international criminal justice process indeed holds potential
for therapeutic benefits for the victims of international crimes. However, the complex realities of victims
of sexual violence in conflicts and the challenging social ramifications of their victimisation impede its
effectiveness in ensuring therapeutic outcomes in sexual violence cases. In other words, although victim
participation in proceedings is integral to the purpose of the ICC in ending impunity and providing redress
for the victims of mass crimes, there is a need to draw upon the dynamics and complex social dimension
of sexual violence as a weapon of war to ensure effective recognition of the victims real experiences.
This will improve the international criminal tribunals therapeutic effects for the victims of such crimes,
and ultimately make significant contribution to the victims recovery process.
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ENDNOTES
1
See the Preamble of the UN Security Council Resolution 1820 (2008) on Acts of Sexual Violence
against Civilians in Armed Conflicts adopted on 19 June 2008, (S/RES/1820 (2008).
2
See, for example, the 2015 UN Secretary-General Report on Conflict-Related Sexual Violence
submitted to the UN Security Council on 13 April 2015 (S/2015/203).
3
See Prosecutor v. Jean Pierre Bemba, Case noICC-01/05-01/08, Judgment Pursuant to Article 74
of the Statute, 21 March, 2016.
4
See Art. 68(1) of the Rome Statute.
5
See Art. 68 (3) of the Rome Statute. See also Rule 23 of the Internal Rules of the Extraordinary
Chambers in the Courts of Cambodia (ECCC) and Art. 17 of the Statute of the Special Tribunal
for Lebanon (STL).
6
See Art. 75 of the ICC Statute and Rule 85 of the Rules of Procedure and Evidence adopted on 09
September, 2002.
241

7
See Art. 6(b) of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse
of Power, adopted by the General Assembly Resolution 40/34 of 29 November 1985, (UN Doc.
GA Res.40/34 (1985).
8
See Art. 7 (1) (g) and 8(2) (b) (xxii); (e) (vi) of the Rome Statute.
9
See Art. 7 of the Rome Statute.
10
See Art. 8 of the Rome Statute.
11
See the 2014 UN Secretary-General Report on Conflict-Related Sexual Violence submitted to the
UN Security Council on 13 March 2014 (S/2014/181); The 2015 UN Secretary-General Report
on Conflict-Related Sexual Violence submitted to the UN Security Council on 13 April 2015
(S/2015/203); The 2013 UN Secretary-General Report on Sexual Violence in Conflicts of 14 March
2013, (A/67/792 - S/2013/149).
12
The UN Security Council Resolution 2106 on Sexual Violence in Armed Conflict adopted on 24
June 2013, S/RES/2106 (2013).
13
Declaration on Preventing Sexual Violence in Conflict, Adopted in London on 11 April 2013.
Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/185008/
G8_PSVI_Declaration_-_FINAL.pdf (Accessed on 12 January, 2016).
14
See Prosecutor v. Kunarac, Kova and Zoran Vukovi, Case No IT-96-23/1, Judgement of 22 Feb-
ruary 2001.
15
See Rene Degni-Segui: The UN Special Rapporteurof the Commission on Human Rights, Report
on the Situation of Human Rights in Rwanda, 16, (U.N. Doc. E/CN.4/1996/68, January 29, 1996).
16
See Prosecutor v. Sesay, Kallon & Gbao, Case No SCSL-04-15-T, 2 March 2009, 1153, 1353-
54.
17
See the Final Report of the Truth and Reconciliation Commission of Liberia, Volume 1: Preliminary
Findings and Determinations, available at http://trcofliberia.org/resources/reports/final/volume-
one_layout-1.pdf. (Accessed on 12 January 2016).
18
See the Human Rights Watch World Report 2007 on Sudan published on 11 January 2007, p. 47.
Available at: http://www.refworld.org/docid/45aca2a72.html (Accessed 6 February 2016).
19
M. Clark, Congo: Confronting Rape as a Weapon of War, The Christian Science Monitor of 4
August, 2009. Available at http://www.csmonitor.com/World/Africa/2009/0804/p17s01-woaf.html
(Accessed on 20 January, 2016).
20
See The 2014 UN Secretary-General Report on Conflict-Related Sexual Violence, Supra note 11,
27.
21
See Amnesty Internationals Report on the Democratic Republic of Congo: Mass Rape; Time for
Remedies, published in October2004, p. 20.Available at http://www.amnesty.org/en/library/asset/
AFR62/018/2004/en/63b10028-d57f-11dd-bb241fb85fe8fa05/afr620182004en.html. (Accessed
on 15 February 2016).
22
See Human Rights Watch, The War within the War: Sexual Violence Against Women and Girls
in Eastern Congo, Report published in June 2002. Available at http://www.hrw.org/reports/2002/
drc/Congo0602.pdf (Accessed on 15 January 2016).
23
See for instance the Report of the Independent International Commission of Inquiry on the Syrian
Arab Republic, submitted to Human Rights Council: Twenty-third session 4 June 2013, p. 16 (A/
HRC/23/58).
242

24
The International Rescue Committee Commission on Syrian Refugees Report on Syria: A regional
Crisis published in January 2013, at p. 6. Available at http://www.rescue.org/sites/default/files/
resource-file/IRCReportMidEast20130114.pdf (Accessed on 15 February 2016).
25
See The Analytical Study Focusing on Gender-Based and Sexual Violence in Relation to Transi-
tional Justice, Report of the Office of the UN High Commissioner for Human Rights submitted to
UN General Assembly on 30 June 2014, 3, (A/HRC/27/21).
26
Human Rights Watch, Sexual Violence Crimes during the Rwanda Genocide, June 2004, Avail-
able at http://www.rwandadocumentsproject.net/gsdl/collect/mil1docs/archives/HASHc834.dir/
doc52025.pdf (Accessed on 10 May, 2016), at p. 4.
27
See Prosecutor v. Jean Paul Akayesu, Case No ICTR-96-4-T, Judgment of September 2, 1998,
731. For details on the use of rape in genocidal plan see U. Kaitesi (2014), Genocidal Gender
and Sexual Violence: The Legacy of the ICTR, Rwandas Ordinary Courts and Gacaca Courts,
(Intersentia 2014), Vol. 17.
28
The UN Security Council Resolution 1820 (2008) on Acts of Sexual Violence against Civilians in
Armed Conflicts, Supra note 1, 3-4.
29
See the Report of the Office of the UN High Commissioner for Human Rights submitted to UN
General Assembly on 30 June 2014, Supra note 25, 5.
30
See also the Final Report of the United Nations Commission of Experts Established Pursuant to
Security Council Resolution 780 (1992) on Sexual Assault Investigation, Submitted to the UN
Security Council on 28 December 1994, 20, 179-180 and 183, (S/1994/674/Add.2, Vol. V, An-
nex IX).
31
Prosecutor v. Duko Tadi, Case No IT-94-1-T, Trial Chamber Judgment of May 7, 1997.
32
Ibid., 206.
33
Prosecutor v. Zejnil Delali et al.,CaseNoIT-96-21-T, Trial Chamber Judgment of 16 November
1998, 26.
34
Prosecutor v. Ranko ei, Case NoIT-95-10/1-S, ICTY, Judgement of11 March 2004, 13-14.
35
See Prosecutor v. Issa Hassan Sesay et al., Case No SCSL-04-15-T, Judgment of 2 March 2009,
1067.
36
See Rule 75 (B) of the ICTY and ICTRs Rules of Procedure and Evidence.
37
Ibid. Rule 79.
38
Ibid. Rule 75 B (i).
39
See Rule 34 A (ii) of The ICTY and ICTRs Rule of Procedure and Evidence.
40
Ibid. (B).
41
Ibid.
42
These tribunals are alternatively called Hybrid International or International(ised) Tribunals as
they are characterised by a mix of national and international components and were established
not under Chapter VII of the UN Charter, but rather based on an agreement between the national
government concerned and the UN.
43
See Rule 75 A (ii) of the ICTY and ICTRs Rule of Procedure and Evidence.
44
See FIDH, Victims in the Balance: Challenges Ahead for the International Criminal Tribunal for
Rwanda, Report on of the Fact-Finding Mission sent to the ICTR, and to Rwanda to collect infor-
mation on the role and position of victims, Report No 329/2 of November 2002.
45
Ibid. p. 8.
46
Ibid. pp. 8-9.
243

47
The ECCC were created to prosecute the senior leaders of the Khmer Rouge and other people most
responsible for atrocities committed in Cambodia from 17 January 1979.
48
See the Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes
in Post-Conflict Regions: Lessons Learned from the Office of the Prosecutor for the International
Criminal Tribunal for Rwanda published by the ICTRs Office of the Prosecutor on 30 January
2014, available at http://www.unictr.org/portals/0/English/Legal/Prosecutor/ProsecutionofSexual-
Violence.pdf (accessed on 26 July 2016), at p. 37.
49
See Prosecutor v. Duko Tadi, Case No IT-94-1-T, Opinion and Judgement of 7 May 1997,
537-539.
50
See Prosecutor v. Delali et al., Case No IT-96-21-T, Decision on the Prosecutions Motion for the
Redaction of the Public Record, Trial Chamber II, 5 June 1997, 58.
51
See Prosecutor v. Miroslav Kvoka et al., Case No IT-98-30/1-A, Appeals Chamber Judgment of
28 February 2005, 129, 130 and 132. See Prosecutor v. Anto Furundija, Case No IT-95-17/1,
Trial Judgment of 10 December, 1998, 162.
52
See Prosecutor v. Miroslav Kvoka et al., Supra note 51, 393 and 395. See also Prosecutor v.
Zejnil Delali, et al., Case No IT-96-21, Trial Judgment of 16 November, 1998, 494.
53
See Article 7 (1) (g).
54
See Articles 8(2) (b) (xxii) and 8(2) (e) (vi) of the Rome Statute.
55
See for instance Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No ICC-02/05-01/09, The
Pre-Trial Chamber I, The Second Decision of the Prosecutors Application for a Warrant of Arrest,
12 July, 2010, 30.
56
The Rules of Procedure and Evidence were adopted on09 September 2002 by the Assembly of
States Parties to the Rome Statute pursuant to Article 51 (1) of the ICCs Statute. See ICC.Doc.
ICC-ASP/1/3 (Part II-A).
57
The Elements of Crimes were adopted by the Assembly of States Parties to the ICCs Statute on 9
September 2002pursuant to Article 9(1) of the Statute. See ICC-ASP/1/3, (Part II-B).
58
See Article 54 (1) (b).
59
See Article 54 (1) (b).
60
See Article 43 (6) of the Rome Statute.
61
See Article 88 (2) of the ICCs Rules of Procedure and Evidence.
62
Article 88 (5) of the ICCs Rule of Procedure and Evidence.
63
Prosecutor v. Thomas Lubanga Dyilo, Decision Regarding the Practices Used to Prepare and Fa-
miliarise Witnesses for Giving Testimony at Trial, Case No ICC-01/04-01/06, 30 November 2007,
24.
64
Prosecutor v. Thomas Lubanga Dyilo, Case No ICC-01/04-01/06, Decision Issuing Confidential
and Public Redacted Versions of Decision on the Prosecutions Request for Non-Disclosure of the
Identity of 8 Individuals Providing Rule 77 Information of 5 December 2008 and Prosecutions
Request for Non-Disclosure of Information in 1 Witness Statement containing Rule 77 Information
of 12 March 2009, 24 June 2009, 47.
65
Ibid. 48.
66
67
See Rules 12, 23 of the ECCCs Internal Rules (Revision No 8) adopted on 3 August 2011.
68
See Article 17 of the Statute of the STL, Attached to Resolution 1757 adopted by the UN Security
Council at its 5685th meeting on 30 May 2007.
244

69
Article 68(3) of the Rome Statute.
70
See Rule 91 (2) of the Rules of Procedure and Evidence.
71
See the Prosecutor vs. Thomas Lubanga Dyilo, The Decision on Victims Participation (ICC-01/04-
01/ 06-1119), Trial Chamber, Decision of 18 January 2008, 117.
72
See Rule 141(1 & 2) of the Rule of Procedure and Evidence.
73
See The Prosecutor v. Thomas Lubanga Dyilo, Supra note 71, 117.
74
See Rule 89(1) of the Rule of Procedure and Evidence.
75
See, among others, The Prosecutor v. Joseph Kony et al., Case No ICC-02/04, Decision on Vic-
tims Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06
and a/0111/06 to a/0127/06, Situation in Uganda, Pre-Trial Chamber II, 10 August 2007;The
Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Case No ICC-01/09-01/11, Decision
on the Request to Present Views and Concerns of Victims on their Legal Representation at the
Trial Phase, Trial Chamber V, 13 December 2012; The Prosecutor v. Charles BlGoud, Case
ICC-02/11-02/11, Situation in the Republic of Cte dIvoire, Decision on Victims Participation
in the Pre-Trial Proceedings and Related Issues, Pre-Trial Chamber I, 11 June 2014; Prosecutor v.
Germain Katanga and Mathieu Ngudjolo Chui, Case No ICC-01/04-01/07, Decision on the Modali-
ties of Victim Participation at Trial, Trial Chamber I, 22 January 2010; Prosecutor v Francis Kirimi
Muthaura et al., Case No ICC-01/09-02/11, Trial Chamber V, Decision on Victims Representation
and Participation, 3 October 2012; Prosecutor v Laurent Gbagbo, Case No ICC-02/11-01/11-138,
Decision on Victims Participation and Victims Common Legal Representation at the Confirmation
of Charges Hearing and in the Related Proceedings, 4 June, 2012; Prosecutor v. Laurent Gbagbo,
Case No ICC-02/11-/01/11-138, Second Decision on Victims Participation at the Confirmation of
Charges Hearing and in Related Proceedings, 6 February 2013.
76
This led to the creation of the hybrid tribunal, the Special Panels for Serious Crimes in East Timor
in 2000 by the United Nations Transitional Administration in East Timor.
77
See the ICCs Revised Strategy in Relation to Victims, adopted on 5 November 2012, 2. Avail-
able at http://www.icc-cpi.int/iccdocs/asp_docs/ASP11/ICC-ASP-11-38-ENG.pdf (Accessed on
15 August 2016).
78
Prosecutor v Jean-Pierre Bemba Gombo, Case No ICC-01/05-01/08, Decision on 772 Applications
by Victims to Participate in the Proceedings, Trial Chamber III, 18 November 2010, 57.
79
According to rule 85 of the Rules of Procedure and Evidence, victims:
(a) Means natural persons who have suffered harm as a result of the commission of any crime
within the jurisdiction of the Court;
(b) May include organizations or institutions that have sustained direct harm to any of their property
which is dedicated to religion, education, art or science or charitable purposes, and to their historic
monuments, hospitals and other places and objects for humanitarian purposes.
80
81
See Prosecutor v. Thomas Lubanga Dyilo, Supra note 71, 39.
82
According to Article 80 (2) of the Regulations of the Court, in appointing legal representatives of
victims, the Chamber may appoint counsel from the Office of Public Counsel for Victims (OPCV).
The Regulations of the Court adopted by the judges on 26 May 2004, (ICC-BD/01-03-11).
83
See Rule 85 of the ICCs Rule of Procedure and Evidence.
84
See Article 53 (1 (c) and (2) (c) of the Rome Statute.
85
245

86
Prosecutor v. Thomas Lubanga Dyilo, Case No ICC-01/04-01/06, Pre-Trial Chamber I, Decision
of the Confirmations of charges, 29 January, 2007.
87
Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No ICC-01/04-01/07, Decision
on the Modalities of Victim Participation at Trial, Trial Chamber I, 22 January 2010, 53-54.
88
Ibid.
89
See Prosecutor v. Thomas Lubanga Dyilo, Decision on Victims Participation, Supra note 71,
95.
90
See the ICC, Report of the Court on the Review of the System for Victims to Apply to Participate
in Proceedings published on 5 November 2012, ICC-ASP/11/22, 46-47, Available at http://
www.icc-cpi.int/iccdocs/asp_docs/ASP11/ICC-ASP-11-22-ENG.pdf (Accessed on 1 June 2015).
See also Prosecutor v. Jean Pierre Bemba Gombo, Case No ICC-01/05-01/08-1017, Decision on
772 Applications by Victims to Participate in the Proceedings, Trial Chamber III, 18 November
2010, 57.
91
See Redress Trust (2012), The Participation of Victims in International Criminal Court Proceed-
ings: A Review of the Practice and Consideration of Options for the Future, p. 16. Available at
http://www.redress.org/downloads/publications/121030participation_report.pdf (Accessed on 10
June 2016).
92
The Report on the Review of the System for Victims to Apply to Participate in Proceedings, Supra
note 90.
93
The Prosecutor v. Thomas Lubanga Dyilo, Supra note 71, 96.
94
See Article 68 (3) of ICC Statute and Rule 90 of the ICC RPE, Regulations 79-80 and 82 of the
Regulations of the ICC adopted on 26 May 2004 and amended on 18 December 2007 (ICC-
BD/01-01-04). See also Regulation 112 of the Regulations of the ICC Registry adopted on 6 March
2006 (ICCBD/030106Rev.1).
95
See Prosecutor v. Jean Pierre Bemba Gombo, Case No ICC-01/05-01/08, Decision on Common
Legal Representation of Victims for the Purpose of Trial, Trial Chamber III, 10 November 2010,
18-20.
96
See Prosecutor v. Bosco Ntaganda, Case No ICC-01/04-02/06, Decision Concerning the Organisa-
tion of Common Legal Representation of Victims, Pre-Trial Chamber II, 2 December 2013.
97
See Art. 80 (2) of the Regulations of the ICC about the appointment of legal representatives of
victims.
98
See Prosecutor v. Thomas Lubanga Dyilo, Case No ICC-01/04-01/06-2842, Judgment Pursuant to
Article 74 of the Statute, 14 March 2012, 20.
99
See Prosecutor v. William Samoei Ruto and Joshua Arab Sang, Case No ICC-01/09-01/11-249,
Decision on Victims Participation at the Confirmation of Charges Hearing and in the Related
Proceedings, Pre-Trial Chamber II, 5 August 2011, 65.
100
See Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, ICC-01/09-02/11-267,
Decision on Victims Participation at the Confirmation of Charges Hearing and in the Related
Proceedings, Pre-Trial Chamber II, 26 August 2011, 91.
101
Regulation 79 (2) of the Regulations of the ICC.
102
103
The UN Secretary-Generals remarks at Security Council open debate on Sexual Violence in Con-
flict, New York, 25 April 2014. Available at http://www.un.org/sg/statements/index.asp?nid=7621
(Accessed on 10 June, 2016).
246


104
The ICCs Report on the Review of the System for Victims to Apply to Participate in Proceedings,
Supra note 90.

105
Victims Rights Working Group, International Criminal Court at 10: The implementation of Vic-
tims Rights, Issues and Concerns Presented on the Occasion of the 11th Session of the Assembly
of States Parties, 14-22 November 2012, The Hague, at p. 8. Available at http://www.vrwg.org/
VRWG%20Documents/201114_VRWG_ASP11-ENGLISH-VERSION.pdf (Accessed on 10 June
2016).

106
Prosecutor v. Laurent Gbagbo, Case No ICC-02/11-01/11-62 16-03-2012, REDRESS Trust Ob-
servations to Pre-Trial Chamber I of the International Criminal Court Pursuant to Rule 103 of the
Rules of Procedure and Evidence, 16 March 2012, 34.
247
248
Chapter 15
Can Therapeutic Jurisprudence
Improve the Rights of
Female Prisoners?
Helen Crewe
Independent Researcher, UK
ABSTRACT
Women offenders may suffer from numerous violations of basic rights within the prison system. They are
vulnerable for sexual assaults including rape, molestation and sexual bullies. They may also lack basic
medical and hygienic amenities. While international conventions and rules like United Nations Rules for
the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules,
2010) offers guidelines for protection of the rights of women prisoners, still there has been no research
which explores the therapeutic jurisprudential values of such rules. This chapter suggests that the thera-
peutic jurisprudential approach of the domestic and international laws, conventions and guidelines must
be understood by the practitioners, activists and other stakeholders who may in turn; make use of the
therapeutic jurisprudential values to improve the condition of women prisoners.
INTRODUCTION
Little is known about the potential of therapeutic jurisprudence (TJ) for improving the rights of female
prisoners. Halder and Jaishankar (2017-forthcoming) explained that whilst there has been a multi-
dimensional growth of TJ, this must be addressed from the perspective of womens rights. Womens
rights activists claim that female prisoners have few rights and these are difficult to access (Kilroy &
Pate, 2010). The position of activists and those who represent the interests of female prisoners is complex
and contradictory; however, there is a consensus that female prisoners need to be empowered
Initially, TJ presented a new look at mental health law and did not use a rights-based approach (Wex-
ler, 2013, 1999). Since the 1990s TJ has influenced work in specialist contexts such as problem-solving
courts. The premise of TJ is that the law influences emotional life and psychological well-being (Winick
& Wexler, 2003). With this approach, legal values and due process are not undermined but used so that
DOI: 10.4018/978-1-5225-2472-4.ch015

Can Therapeutic Jurisprudence Improve the Rights of Female Prisoners?
the therapeutic effect of legislation is maximised and the anti-therapeutic effect is minimised (Spencer,
2014). Scholars using the TJ approach have been critical of the criminal process (Gal & Wexler, 2015)
and considered the work of practitioners in prisons (Birgden, 2015). Significantly, David Wexler has
developed a metaphor and methodology, which is designed to support practitioners and scholars with
exploring the potential of TJ and this, is promoted through a blog called Mainstreaming Therapeutic
Jurisprudence.
The importance of this chapter is its consideration of international non-state legislation which has
been designed to improve conditions of women in prison. Prisons provide a textbook example of anti-
therapeutic conditions (Perlin, 2014). Implicitly anti-therapeutic conditions have been recognised within
the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women
Offenders (Bangkok Rules, 2010). The Bangkok Rules are unique because they protect the rights of
women and are the first international instrument devoted to addressing the needs of children in prison
with their parent. These rules are significant with their recognition that women in prison are at high
risk of rape, sexual assault and humiliation in prison (Penal Reform International, 2013). They further
international human rights for female offenders and provide a framework for ensuring that practitioners,
stakeholders and activists recognise the rights of female prisoners. Whilst TJ scholars have mentioned
forms of international non-state legislation in their studies or frameworks (Perlin, 2015; Birgden &
Perlin, 2008), this type of law has not been the main focus of any previous studies using a TJ approach.
This chapter will be applicable for activists, practitioners and stakeholders who want to understand
the potential of therapeutic jurisprudence for improving the rights of female prisoners. The three objec-
tives for this chapter are:
1. To identify the potential of therapeutic jurisprudence for activists, practitioners and stakeholders.
2. To understand the extent international non-state legislation can meet the goals of therapeutic
jurisprudence.
3. To suggest ways that therapeutic jurisprudence can be used to improve the rights of female prisoners.
BACKGROUND
Violence within prisons has many forms and can lead to the death of prisoners. In the ten years between
2004 and 2014 2,110 men, women and children died in detention around the world and out of these there
were 704 self-inflicted deaths, 18 homicides and 2 deaths caused from restraint (Coles, 2014). Prison-
ers can experience visible physical violence to subtle acts of emotional, psychological and personalised
harm. All prisoners have rights; however, these can be interpreted in many ways and even re-defined as
privileges (Scraton & Malloch, 2009). If rights were respected for prisoners, then it is possible that a
message would be conveyed to everyone that regardless of circumstance, race, gender, religion or social
status people could be treated with dignity and respect (Zinger, 2006).
All prisoners have enforceable human rights, which protect them against cruel, inhuman or degrading
treatment or punishment. The Universal Declaration of Human Rights (1948), and the Vienna Declaration
and Program of Action (1993), states that the foundation of freedom, justice and peace means recognising
the inherent dignity and inalienable rights of all individuals (Birgden & Perlin, 2009). International human
rights for all prisoners are safeguarded through covenants such as the Convention Against Torture and
Other Cruel Inhuman or Degrading Treatment or Punishment (1987) which gives freedom from torture
249

or cruel, inhuman or degrading treatment. This universal legislation, in conjunction with regional and
domestic legislative frameworks must guide the work of activists, practitioners and other stakeholders
to support the human rights of people in detention.
Overcoming violence against women is an international issue, which is relevant for female prisoners.
During the past decade, there has been a rise in the number of women in prison, internationally. Latest
figures show there are approximately 10.35 million prisoners who are distributed between 223 prison
systems and an estimated 6.5% of the worlds prisoners are women (Walmsley, 2016). While nation-
states may eschew violence against women, violations are multi-levelled. In many jurisdictions around
the world, there is evidence that international human rights for female prisoners have been violated.
For example, it has been documented how there have been legal cases where women in prison have
been fed rotten food or had no assistance when giving birth in their cell (Van-Gundy & Bauman-Grau,
2013). Whilst violations of human rights for female prisoners have been upheld in some jurisdictions, it
is claimed that the international human rights discourse over-simplifies complex inequalities for women
(Walby, 2011). Advocates of a women rights perspective explain that women need to be empowered
through humanitarian appeals, global pressures and innovation (Brysk, 2013).
The starting point for exploring the potential of TJ improving the rights of female prisoners has been
to find an area of common ground between TJ and a womens rights perspective regarding the rights of
female prisoners. This has involved an act of judgement, which is explained in the first section of this
chapter. The second section uses the Bangkok Rules (2010) to illustrate the intricate relationship be-
tween legal actors application (Therapeutic Application Law) and the design of international non-state
legislation (Therapeutic Design Law). The third section approaches the normative layer of TJ in order to
analyse possible solutions and future-orientated legal practices. Finally, there is a brief exploration of a
framework, which makes suggestions about the potential of TJ improving the rights of female prisoners
based on current understandings about the use of social media as well as differentiating between the
work of activists, practitioners and stakeholders.
IMPROVING THE RIGHTS OF FEMALE PRISONERS
Violence against women and violations of human rights are associated with the conditions and treatment
of prisoners. It has been claimed that conditions in prisons across the world can shock and in some in-
stances are so bereft of humanity that they challenge the notion we are a civilised society (Perlin, 2014).
Scholars have questioned the applicability of individual rights by claiming that rights are not translated
into a reality and a feminist transformation needs to occur if human rights are going to respond to womens
needs (Barberet, 2014; Tiefenburn, 2012 ; Walby, 2011).
Using a womens rights perspective, it is claimed that conditions for women in prison can be associ-
ated with the implementation of programmes which fail to challenge the underlying health, social or
welfare issues for women (Carlen & Tombs, 2006; Carlton & Baldry, 2013). Female prisoners are widely
acknowledged to represent a population who have had a lifetime of discrimination, and are dispropor-
tionately represented by women who have been victims of abuse, poverty, substance misuse or have
mental health problems (Corston, 2007; Knight & Plugge, 2005; Van Gundy & Baumann Gau, 2013). In
particular, feminist perspectives are critical of interventions, which have claimed to be therapeutic or use
this terminology. In order to explore the potential of a womens rights perspective taking into account TJ
the question to be posed is, to what extent has TJ potential for improving the rights of female prisoners?
250

The TJ approach promotes an insight about how the law is lived and with law in action. The focus
of this chapter will be concerned with how this approach can be adapted by feminist scholars who are
critical of medicalised, paternalistic and coercive therapeutic interventions within prisons. In order to
illustrate the potential of therapeutic jurisprudence the starting point has been to identify an area of
common ground between TJ and womens rights. Whilst the Bangkok Rules (2010) are not enforceable
and could be regarded by lawyers as soft law, these rules are significant with their provision of explicit
protection for women in criminal justice systems around the world. The Bangkok Rules (2010) provide
an ideal starting point for exploring the potential of TJ overcoming violence against women because
there have been concerns raised about their compliance and very little research about their implementa-
tion (Barberet, 2014; Van Gundy & Bauman-Grau, 20103; Walby, 2011).
The United Nations Rules for the Treatment of Women Prisoners and
Non-Custodial Measures for Women Offenders (Bangkok Rules 2010)
The origins of the Bangkok Rules (2010) can be traced to criticisms of universal human rights and the
recognition from a womens rights perspective that there is a need for improved access to justice for
women within criminal justice systems. In 2005 at the 11th United Nations Congress on Crime Prevention
and Criminal Justice in Bangkok, Kim Pate and Deborah Kilroy requested new legislation to address the
needs and rights of criminalised and imprisoned women (Kilroy & Pate, 2010). Initially these womens
rights activists were involved with an expert group set up to develop a first draft; however, they did not
participate in further drafts. Kilroy and Pate (2010) explain that subsequent draft rules were too narrow
and biologically driven.
Officially, her Royal Highness Princess Bajrakityapha of Thailand initiated the Bangkok Rules
(2010). For some activists and scholars who use a womens rights perspective, the Bangkok Rules 2010
have given hope for the improving prison regimes around the world and potential to improve the rights
of female prisoners (Barberet, 2014; Carlen, 2013; Cain, 2015; Van-Gundy et al, 2013). Whilst the
Bangkok Rules (2010) are not legally binding they provide recommendations such as: the development
of sentencing alternatives to prison; provide rules which mean womens individual histories should
be taken into account and they are an important framework for overcoming violence of women within
criminal justice systems.
The Bangkok Rules (2010) are classified as international non-state legislation, which is often referred
to as soft law. Whilst there is no legally binding authority for states to implement this legislation, ad-
vocates explain that soft law today can become hard law tomorrow (Dupuy, 1991). It is suggested that
in order to understand the hard and soft law dichotomy there is a continuum where laws compliment
rather than compete against each other (Bailliet, 2012; Attaapaatu, 2012). These rules were created with
the intention of supplementing international human rights legislation, which is legally enforced as well
as other international soft law such as The Tokyo Rules (General Assembly Resolution 45/110, 1990)
and the United Nations Standard Minimum Rules for the Treatment of Prisoners (SMR). Significantly,
in December 2015 a revised SMR were ratified, introduced new international standards and were re-
named the Nelson Mandela Rules (General Assembly Resolution 70/175, 2016). The Nelson Mandela
Rules, (2015) took five years of negotiations and have recognised their relationship with the Bangkok
Rules (2010). This framework of international non-state legislation should be implemented alongside
domestic legislation and is not enforceable in the same way as other conventions, or treaties, associated
with human rights (Follesdal et al., 2014; Nash, 2009).
251

The Bangkok Rules (2010) are important for recognising and promoting a rights respecting culture
for female prisoners. They were created using evidence of victimisation of women in prison, covert
abuse such as the restrictions of healthcare access, and evidence of revoked visits for women within the
prison setting (Van-Gundy et al, 2013). In particular, the Commission on Crime Prevention and Criminal
Justice (CCPCJ) in Resolution 18/1 (2009) highlighted areas for attention including the need to be mind-
ful of General Assembly Resolution 61/143 which urged state to develop policies that address violence
against women in detention. Whilst there is potential for creating an enabling environment for women
to access their rights, some womens rights activists have had concerns relating to the legal form of the
Bangkok Rules (2010), language used and these rules could be easy to defeat (Barberet, 2014; Gullberg,
2013; Pate & Kilroy, 2010). Furthermore, to overcome violence against women in prison it is important
to recognise that international legislation could be implemented in ways, which has anti-therapeutic
consequences (Halder & Jaishankar, 2017-forthcoming).
MAINSTREAMING THERAPEUTIC JURISPRUDENCE
In order to consider the extent TJ has the potential for improving the rights of female prisoners the
examination of international non-state legislation will consider the two main aims of TJ. First, there
will be an analysis of the first aim, which is the consideration of the intricate relationship between the
therapeutic design of law (TDL) and the therapeutic application of law (TAL). Secondly, the normative
layer promotes problem-solving and future-orientated practices with a TJ and interdisciplinary sensitivity
(Gal & Wexler, 2015; Richardson, Spencer & Wexler, 2016).
The methodology suggested by Wexler (2014) takes into account how influences on legal actors are
different and metaphorically explains these as vineyards. Understanding influences on legal actors is
particularly important for examining the potential of TJ with improving the rights of female prisoners
and implementing a rights respecting culture within prisons. The next three sections examine the role
of activists who represent the rights of women, practitioners who work in prisons and other potential
stakeholders.
The Role of Activists
The unique issue for examining international non-state legislation which is relevant for female prisoners
concerns the range of potential legal actors. Significantly, the duty bearers of the Bangkok Rules (2010)
include individuals from non-governmental organisations, local communities and the voluntary sector.
Individuals and organisations involved with activism are duty bearers of the Bangkok Rules (2010) and
have an important role for identifying issues relating to the effects of prison rules, domestic, regional and
international legislation for women in prison. From a womens rights perspective, some activist groups
seek international legalisation to gain advantage in domestic politics, a process which Margaret E. Keck
and Kathryn Sikkink (1998) calls the boomerang effect. The work of activist groups does not only relate
to the promotion or creation of legislation but also this work has the potential to create an awareness
and name or shame instances where there have been violations of human rights (Risse & Roppe, 2013).
Since the mid-1990s when violence against women was given special prominence at the UN Confer-
ence on Women in Beijing, this issue has influenced womens rights activism. Whilst non-governmental
organisations focus on issues relating to violence against women and work with women who are survivors
252

of violence, there is less activism relating to the violence of women in detention. Activists involved with
women in prison often have a dual role by running prison programmes, offering alternatives to imprison-
ment and providing services, which support well-being through methods such as advocacy (Barberet,
2014). It is possible that activists could provide an insight, which would benefit the application of TJ
principles and these legal actors, could also be involved with influencing or reforming legal structures
and local cultures so they are TJ friendly.
The Role of Practitioners
Practitioners have the potential to improve the rights of female prisoners using TJ principles, which aim
to empower, enhance rights and promote well-being (Perlin, 2014). Using the TJ lens means practitioners
have a role that is therapeutic rather than anti-therapeutic. TJ scholars have encouraged therapeutic prac-
tice from practitioners who work in prisons and have made recommendations for specific interventions
affecting forensic psychologists (Birgden & Perlin, 2009), parole (Wexler, 2013) or drug rehabilitation
programmes (Birgden, 2005). Through their role and responsibilities as therapeutic agents practitioners
have potential for implementing TJ. In order to maximise the therapeutic effects of legislation they will
need to work within a culture and correctional setting which is conducive to rehabilitation of offenders
(Birgden, 2004). Whilst practitioners working within the prison setting have potential for improving
conditions for prisoners, their responsibility towards implementing TJ is not straightforward, especially
in relation to international non-state legislation. By reading the Bangkok Rules, (2010) alongside other
international non-state legislation such as the Mandela Rules it is possible to understand how this frame-
work compliments a human rights based approach. The human rights based approach was advocated by
the United Nations and recommends that there are dynamic interpretations of international conventions
and treaties.
Example: In 2002, a Scottish place of detention, which focused on treating patients in a secure hospital,
made a decision to adopt human rights based approach. The solution for this hospital was to com-
bine knowledge from human rights, sociology and social policy research (Hosie & Lamb, 2013).
Practitioners were trained and a rights respecting culture for all staff was developed. This study
provided several areas of best practice and an approach which could be adopted within womens
prisons (Hosie, 2013). It was recommended that by practitioners being aware of international hu-
man rights and its associated principles, it is possible to change practices, decision-making and
consider anti-therapeutic consequences for families and children of women in prison.
The Role of Stakeholders
A stakeholder can be defined as an individual, group or network of people involved with, or having inter-
ests in, or affected by a particular activity (Duke et al, 2014). TJ has the scope to address a full range of
legal actors, lawyers, parole officers and corrections professionals (Gal & Wexler, 2015). Traditionally
TJ has been advocated for the application of domestic legislation; however other studies have explained
how a range of stakeholders such as forensic psychologists could relate to TJ through applying other
forms of law such as professional ethical codes (Dickie, 2008; Birgden & Perlin, 2009) or human rights
(Birgden, 2015; Birgden & Cucolo, 2011; Birgden & Perlin, 2008; Perlin, 2015, Winick, 2002). In rela-
tion to the implementation of the Bangkok Rules it is possible to identify how other stakeholders such as
253

policy-makers, non-governmental organisations or researchers also have a role with their implementation
of the Bangkok Rules (2010).
Whilst the Bangkok Rules (2010) have the potential to improve access and rights for female prison-
ers, stakeholders will need to translate them for local communities and cultures. It has been suggested
that translations by stakeholders who are involved with institutions of global governance could be useful
because they empower local populations who are politically and economically marginalised (Nash, 2014).
There is potential for stakeholders translating international legislation so that it is relevant and understood
in local contexts, however, the womens rights perspective criticises the content of international legisla-
tion for not being culturally relevant. Advocates for womens rights explain that barriers for improving
rights and overcoming violence against women include the need to be able to translate international law,
which privileges lawyers and legal expertise (Keck & Sikkink, 1998). The TJ approach aims to improve
the therapeutic application of legislation, acknowledges that stakeholders have different influences with
their work and it is explained by David Wexler (2014) not all wine is good wine.
The Compatibility of the Bangkok Rules for TJ
David Wexler (2015) has developed a metaphor and methodology, which enables an analysis of the
relationship between the Therapeutic Design of Law (bottles) and Therapeutic Application of the Law
(wine). The premise of this approach is to examine whether TJ wine can be poured into bottles (Wexler,
2014). This means analysing whether legislation allows for TJ friendly wine and if not there is a need to
reform legislation. If the analysis of legislation shows that it is TJ friendly, then problems with imple-
mentation would signify areas for developing legal actors.
Within the prison or correctional setting a consideration would be whether practitioners or stakehold-
ers identify that they have a responsibility for implementing TJ. Studies which have focused on practi-
tioners or stakeholders have focused on their need to be responsible for implementing TJ by taking into
account their ethic of care (Birgden, 2004; Dixey, 2008). In recognition that practitioners also need an
appropriate legal landscape, Wexler (2012) proposes that there needs to be attentiveness to both legal
actors and legislation.
Using the metaphor developed by David Wexler (2014), the Bangkok Rules (2010) can be understood
as a bottle and this metaphor refers the Therapeutic Design of Law (TDL). A number of documents are
relevant for analysing the therapeutic design of law (TDL) and these include an analysis of international
guidelines, official documentation, policies, guidance and other documentation from sources includ-
ing the websites of relevant organisations. The next two sections examine two main points relevant for
bottles, these are firstly, the shape and contours of the bottle (Wexler, 2012) and secondly, their durability
or fragility (Wexler, 2014).
The Legal Landscape for Restraining Pregnant Women in Prison
First, the shape and contours of the Bangkok Rules (2010) are unique because there is no legal enforce-
ment for them to be incorporated into local contexts and practice. This section will approach this issue
by analysing the legal landscape, which is relevant for improving the rights of pregnant women in prison.
Restraining pregnant women in prison can illustrate local interpretations of the Bangkok Rules (2010)
and the potential for anti-therapeutic consequences through the use of legal loopholes and cultures, which
deny the rights of female prisoners.
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There are 70 rules included within the Bangkok Rules (2010) and restraining pregnant women is an
issue they are clear and specific about. Rule 24: instruments of restraint shall never be used on women
during labour, birth or immediately after birth (United Nations General Assembly, 2011).
There are different ways that the Bangkok Rules (2010) can be implemented and interpreted within
jurisdictions around the world. For example, in the United States there is evidence that Rule 24 has been
incorporated into legislation that is relevant for each state. In 2014 21 states had domestic legislation that
restricts the use of restraints on pregnant women in certain circumstances. Not all states are formally
using the Bangkok Rules, and there is evidence that within states with domestic legislation pregnant
women in prison have been restrained (Kraft-Stolar, 2015).
In the United Kingdom, restraining pregnant women during childbirth has been prohibited in Eng-
land and Wales through Home Office Policy introduced in 1996. Currently, Rule 24 is included within
the standards for inspections called Her Majestys Inspectorate of Prisons Expectations (2014). Despite
national policy frameworks and official recognition of Rule 24, a governor has recently claimed, shack-
ling during labour is now extremely unlikely but is not actually forbidden (Ginn et al., 2013).While
it is acknowledged that giving birth in shackles is now most often in the past (Abbott, 2015), this does
not mean that the practice does not exist in earlier pregnancy or during transportation. This provides
evidence that whilst the shape and contours of the Bangkok Rules (2010) allows for flexibility with their
implementation in local contexts, they do not necessarily encourage the well-being for all women due
to local interpretations or lack of awareness.
International Interpretations of the Bangkok Rules (2010)
It is claimed that the durability or fragility of legislation depends upon where they stand in the hierarchy
of constitution, state, regulation, governing policy directives and other standards or codes of practice
(Wexler, 2014). This understanding is particularly relevant for analysing whether the Bangkok Rules
(2010) can meet the goals of TJ because the legal landscapes associated with these rules are complex. In
recognition of the hierarchy of international legislation, advocates from non-governmental organisations
and policy pronouncements often give helpful interpretations of the treaty (Perlin, 2015).
Example: In early 2016, a report to the Human Rights Council by the Special Rapporteur on torture, Juan
E. Mendez, focused on the multiple discrimination and obstacles for women in detention accessing
justice. This report was significant for recommending that there is a swift and full implementation
of the Bangkok Rules (United Nations General Assembly, 5 January 2016). In particular, this report
highlighted Rule 24 of the Bangkok Rules (2010) and explained that the use of restraints for all
pregnant women in prison should be interpreted as a form of punishment, which discriminates and
threatens the health of women. This international interpretation of Rule 24 is significant because
it has widened the scope of the Bangkok Rules by associating them with the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In particular, the Spe-
cial Rapporteur has claimed that the practice of restraining women during any stage of pregnancy
amounts to torture or ill-treatment.
International legislation and interpretations of its frameworks can improve the visibility of issues such
as restraining pregnant women in prison. Despite this, international interpretations do not necessarily base
their recommendations following consultations of local populations. It has been claimed that evidence of
255

anti-therapeutic practice can be minimised by international interpretations as well as the specific ways
that informal cultural, religious and economic norms influence the context in which the law operates (Des
Rosiers, 2002). The Bangkok Rules (2010) are within a hierarchy of other legislation and whilst these rules
appear to enhance the rights of female prisoners, this does not mean they will be implemented.
The Extent TJ Could Improve Rights for Female Prisoners
There is an intricate relationship between the therapeutic design of law (TDL) and the therapeutic appli-
cation of law (TAL). It should be clear that TJ scholars could begin to take into account different forms
of international legislation, even though some of this is often described as soft law. Whilst the Bangkok
Rules are not legally enforceable, they have been created with the intention of being implemented along-
side domestic legislation and other international human rights frameworks.
The Bangkok Rules (2010) have been a significant development due to their acknowledgement of
specific issues, which are relevant for all prisoners, women in prison and the sentencing of women.
Whilst female prisoners have rights within international non-state legislation such as the Bangkok Rules
(2010), this is not enough. The design of international non-state legislation has potential to allow for TJ.
Despite this, there is also potential for anti-therapeutic consequences because female prisoners cannot
easily assert their rights and legal actors may not be aware of what is assumed to be international soft law.
Even when domestic legislation appears to recognise specific issues such as restraining pregnant women
in prison, these rights for women are not necessarily implemented within a rights respecting culture.
Duty holders within international soft law include practitioners or stakeholders who have responsibil-
ity for implementing TJ whilst carrying out their work in the prison setting. Exactly how this range of
legal actors are responsible for implementing TJ means considering their professional obligation, role or
practices, ethical codes as well as wider issues. External factors can also influence the implementation
of TJ for example in the juvenile justice system in Puerto Rico, it was found that financial issues, staff
shortages and a lack of experience negatively impacted the implementation of TJ and led to practice or
techniques being TJ unfriendly (Hernandez, 2015).
Regarding the application of TJ, it is possible that the methodology and metaphor developed by
Wexler (2014) could enable legal actors to take into account strategies, areas for change and support
informed decision-making. Furthermore mainstreaming TJ could assist with understanding the poten-
tial of international non-state legislation, contribute towards the creation of a rights respecting culture
within local contexts, or promote alternative sentencing options for women within courts. In order to
explore the extent TJ has potential for improving the rights of female prisoners it is important to take
into account that TJ is considered by many scholars as a philosophy with a normative goal which does
not accept anti-therapeutic consequences (Birgden, 2015).
SOLUTIONS AND RECOMMENDATIONS
In order to explore the potential for TJ promoting problem-solving and future-orientated practices,
David Wexler (2014) recommends that a new type of professional who specializes in the Therapeutic
Application of Law could support and convey important material to busy legal actors. The following
framework also takes into account how activists, practitioners and stakeholders could make the Bangkok
Rules (2010) visible using social media.
256

Activists
Activists could be useful for exploring local interpretations, implementation issues and areas for develop-
ing future-orientated solutions for improving the rights of female prisoners. For example, international
non-state legislation such as the Bangkok Rules (2010) have been criticised by activists who claim they
are easy to defeat with a lack of resources (Gullberg, 2013; Pate & Kilroy, 2010).
The emergence of social media such as blogs, open forums and other digital awareness camps (Halder
& Jaishankar, 2012) provide a platform for campaigns and the provision of information to a wide audience.
Whilst there are negative aspects associated with the use of social media, such as the potential for cyber
crime against women (Halder & Jaishankar, 2012), this platform offers an ideal way of raising aware-
ness of international non-state legislation such as the Bangkok Rules (2010) and its application within
local contexts. Through the use of social media, it is possible that TJ scholars and activists for womens
rights could highlight the therapeutic and anti-therapeutic consequences for criminalised women as well
as raise awareness about the potential for the Bangkok Rules (2010) improving female prisoners rights.
Practitioners
TJ has the potential to empower a range of practitioners which could lead to the creation of a culture
which is rights respecting as well as improving the conditions and treatment of women within criminal
justice systems. In order for this potential to be realised, it is possible that social media could be used to
develop innovative developmental and training opportunities through using the latest methods such as
webinar sessions that are interactive.
There have been very few studies about the extent practitioners within prisons can relate to TJ, and
it has been suggested that in reality judges within courts are more likely to relate to the concept of a
helping professional than correctional staff (Birgden, 2015). Despite this it is possible that techniques
developed by TJ such as publishing accessible information or developing a form reform (Richardson
et al, 2016) where bureaucracy is simplified could improve the rights of female prisoners.
Stakeholders
There are two issues for stakeholders of international non-state legislation to consider when relating the
principles of TJ to their work. Firstly, the use of international non-state legislation has been criticised
by many, including legal experts and others who use a womens rights perspective. Despite these broad
criticisms there is evidence that womens rights activists were involved with detailed negotiations about
the content of the Bangkok Rules (Pate & Kilroy, 2010) and the Nelson Mandela Rules (2015) have been
introduced following years of negotiation from international legal experts and scholars. In order to apply
TJ the challenge for stakeholders would be to become aware that this form of legislation has potential to
be implemented and has been designed to improve the rights of female prisoners. It is suggested that a
new type of professional with expertise in the Therapeutic Application of Law could support the promo-
tion and potential future-orientated practice using social media and create awareness of the potential of
international non-state legislation for a range of stakeholders.
Secondly, it has been suggested that stakeholders such as judges, lawyers, mental health profession-
als, probation officers as well as correctional staff could acknowledge their position as duty bearers
and implement strategies that will support offender rights using a humanistic approach (Birgden, 2015;
257

Perlin, 2015). In particular a study has explained how stakeholders such as public policy makers could
relate to TJ by changing ethical codes and guidance so that sex offenders are treated as part of the moral
and political community (Birgden & Cucolo, 2011). With regards to international non-state legislation
relating to female prisoners there is evidence of the impact of this legislation within politics. For ex-
ample, within a month of the Nelson Mandela Rules being ratified, the Prime Minister from the United
Kingdom announced a review about the conditions of women with a specific focus on babies in prison
(BBC, 8 February, 2016). This illustrates that in order for the potential of TJ being realised, TJ needs
to consider how influences on legal actors from politics as well as other areas such as managerialism
can affect the intersection between the therapeutic design of law and the therapeutic application of law.
FUTURE RESEARCH DIRECTIONS
There is potential for scholars, practitioners, activists and other stakeholders to collaborate and use both
a TJ and a womens rights perspective. A crucial aspect of this collaboration would be for legal actors
to engage with implementing changes that are humane and improve psychological well-being. Whilst TJ
has not originated from a rights-based approach to law, it is claimed that the normative aim of TJ is to
promote problem-solving and future-orientated practices with an interdisciplinary sensitivity (Wexler,
2015). This aim has merit, particularly for exploring the potential of TJ improving the rights for female
prisoners. Consider two overlapping issues in this context: first the use of a multi-disciplinary analysis
as a method and secondly empirical studies as the source of knowledge. Together these issues illuminate
the extent TJ could improve rights for women in prison and collaborate with advocates of womens rights.
Multi-Disciplinary Analysis
TJ encourages an interdisciplinary sensitivity (Gal and Wexler, 2015). Feminist scholars also advocate an
approach, which is multi-disciplinary in order to explore how women involved with the criminal justice
system have intersecting issues. For example, feminist scholars explain that there is a need to examine
issues relating to economic, social, physical, emotional and patriarchal societies that women exist within
(Carlen, 2013; Van-Gundy, 2013). An interdisciplinary sensitivity would enable an approach, which
could suggest innovative solutions for improving the rights of female prisoners, and the potential of TJ
would be its focus on encouraging the dignity of human beings as well as encouraging insights for how
the law is applied (Perlin, 2014). In particular, advocates from a womens rights perspective value the
voice of women in their understandings about how issues affect women. The therapeutic application of
legislation also encourages a sense of voice, validation of being listened to and voluntary participation
that is not coercive (Ronner, 2002). Importantly, the Bangkok Rules (2010) encourage these principles
and it is possible that a multi-disciplinary analysis could indicate specific enablers or barriers as well as
solutions, which would encourage their compliance and implementation.
Empirical Studies as the Source of Knowledge
TJ and womens rights scholars value existing research, however studies that have focused on issues relat-
ing to women in prison have only started increasing since 2000. The lack of detailed data and evidence
from research that has used qualitative methods is a problem addressed by the Bangkok Rules (2010).
258

Research that has focused on issues relating to criminalised women can be divided between research that
prioritises the experiences of women and studies which have focused on a particular process, policy or
outcome (Carlton & Baldry, 2013). Whilst there is a need for more research, it is impossible to achieve
changes that improve the rights of female prisoners unless the connection between the design of legisla-
tion and its application is taken seriously. Scholars, activists, practitioners and other stakeholders must
begin research that explores therapeutic and anti-therapeutic consequences in order to improve rights
of female prisoners.
CONCLUSION
The metaphor and methodology developed by Wexler (2014) provides potential to influence local practice
and raise awareness of a range of legislation including international non-state frameworks. Concerns from
scholars and activists using a womens rights perspective relate to how the rights of female prisoners
are managed and taken into account within the prison setting. Whilst the introduction of the Bangkok
Rules (2010) and the Nelson Mandela Rules (2015) appear to have given hope that the anti-therapeutic
conditions for prisoners could be eradicated, the reality for creating a rights respecting culture in prisons
across the globe is complex. In practice, the aim of human rights and its associated frameworks have
shifted from a safety net for the protection of prisoners rights to an inventory framework against which
to measure organisation reputation and the use of procedures (Hannah-Moffat, 2014).
This chapter has sought to create a connection between TJ and a womens rights perspective. Based
on the implementation of the Bangkok Rules (2010) it is apparent there are a range of legal actors who
could potentially prioritise models that prevent further crime, incarceration and the negative outcomes
for all involved (Gal & Wexler, 2015). Such an approach would be timely and appropriate; however,
this will involve improving the visibility and evidence of therapeutic or anti-therapeutic consequences
in order to recognise the potential of TJ improving the rights of female prisoners.
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Activists: Activists can have many roles or positions. These can involve local communities with grass
roots campaigning or be involved with transnational advocacy networks.
Anti-Therapeutic Consequences: these are the effects once legislation is implemented. This con-
cept recognises that the application of the law does not necessarily promote well-being or has a positive
impact on peoples lives.
Bangkok Rules: The shortened name for the United Nations Rules for the Treatment of Women
Prisoners and Non-custodial Measures for Women Offenders.
International Non-State Legislation: This legislation has been ratified at an international level.
This legislation is often referred to as soft law.
Legal Landscape: This is the term, which recognises that legislation does not exist in a vacuum, but
intersects with many other forms of policy, regulation or legislation.
Local Context: The recognition of local cultures, communities and networks.
Nelson Mandela Rules: In recognition of Nelson Mandela, the revised Standard Minimum Rules
for Prisoners were given this name in December 2015.
Stakeholders: For the purpose of this chapter, stakeholders can be a wide range of professionals,
policy-makers, scholars or others such as politicians.
Therapeutic: This term has many meanings from medicalised treatment or interventions to promot-
ing the psychological health and well-being of people. The chapter explains how this term has had a
negative resonance with interventions for female prisoners.
263
264
Chapter 16
Women and the Impact of
the Shifting Jurisprudence
in New Delhi, India:
How Therapeutic for Urban
Slum-Dwellers?
Divya Priyadarshini
University of Delhi, India
ABSTRACT
Through an ethnographic research in the resettlement colonies of Delhi, India, the present study aims
to address the effect of the judicial pronouncements in the lives of the evicted population with main
focus on the women residing in such colonies. This study aims to understand from the perspective of the
various judgements and the victims of evictions, the healing effect it has had on the victims if any. An
analysis of the shifting jurisprudence in case of the urban poor will help us better understand the gaze
with which they are seen. Also, whether women and issues of violence and violation of rights of women
are understood, expressed, prevented and healed or not needs to be understood.
INTRODUCTION
Slums have become a major urban phenomenon throughout the world. A vast population of the urban
poor lives in slums or slum like conditions (UN Habitat, 2003) Slums in the global south began as a result
of the changing political and economic circumstances in post-colonial countries with industrialisation
and urbanisation (Basu, 1988; Davis, 2006; Datta, 2012). The alarming trend in the growth of slums
worldwide, especially in the megacities of Asia, Africa and Latin America is reported to have reached
926 million in 2003 (about 31 percent of the worlds urban population) and it is increasing exponentially
(UN Habitat, 2003). The slum as a problem has gained the attention of urban planners, states, policy
makers and development agencies in the last four decades but a concrete solution to it has yet not been
formulated (Basu, 1988; Datta, 2012; Davis, 2006).
DOI: 10.4018/978-1-5225-2472-4.ch016

Women and the Impact of the Shifting Jurisprudence in New Delhi, India
What is evident is that the existence of a slum has always attracted the attention of the planners.
Though slums have been addressed from different angles, ranging from displacement to relocation and
in situ up-gradation, no solution to their reappearance has been found as yet. Davis (2006) forcefully
argues that slums are enmeshed within the larger urban structure. These slums present the informal and
illegal image of a human settlement in official terms (Datta 2012) which goes along with the unofficial
practices in such settlements.
Many large and middle-sized cities in the world have areas of impoverished urban exclusion (UN
Habitat 2003) surrounding small areas of urban wealth. The city has become the preferred residential
location of a majority of any countrys citizens and the disconnection between the policies to address the
urban issues and the actual scenario has resulted in the rise of slums. In the following analysis, I would
like to describe a slum as a settlement of low income groups characterized by overcrowding, substandard
and informal housing and the prevalence of unhygienic conditions. The slum-dwellers are viewed as
encroachers and symbolise dirt, filth and hurdle to citys beautification (Bavisker, 2003; Ghetner, 2011;
Gupta, 2016). The slums and the urban poor therefore are dealt with in different ways by the state func-
tionaries by implementing various policies and laws in this regard. At instances it has been noted that
the judiciary has also taken interest into resolving the urban problems and its judicial pronouncements
in this regard have been flexible and changing. The shift in interpretation of nuisance from objects or
things to groups and individuals by the courts has further led to disparity in judgements and thus shifting
it jurisprudence towards unjustified pronouncements. Women being the vulnerable part of the society,
are not addressed to in the policies and plans concerned with displacement and relocation of slums.
Even when the judiciary has been observed participating in instances of demolitions and evictions, its
perspective has been more generalised focussing on larger groups of the urban poor. Women being the
worst effected in instances of eviction, relocation and displacement do not appear in the policies or laws
or judgements that are formulated to address the issue.
The following chapter is divided into four parts which will discuss the policies related to slums and
their resettlement. It tries to understand with what gaze the judiciary views the existence of slums. It
tries to observe whether the jurisprudence has had any relieving effect on the urban poor in matters of
displacement and resettlement or not. The first part recounts how the issue of slums has been tackled in
Delhi during 1947-1974. This section briefly outlines some of the measures and initiatives undertaken
by the state in Delhi and their impacts. Part II turns to slum policies delineated from 1975 to present.
The subsections discuss the policies and the master plans formulated by the state. The third part of the
chapter discusses the judicial interventions which have played a role in deciding Delhis urban future
time and again. Next, in part IV, I have tried to focus on the implementation of the existing polices and
how the women have failed to appear in the policies, laws and rulings by the court. It tries to analyse
that in the absence of humanitarian approach while passing judgements the judiciary has overlooked the
gender aspect of displacement and resettlement thus making the vulnerable group prone to victimisation.
THE FIELD AND METHODS
This chapter is based on primary data collected mainly by ethnographic study supplemented by field
surveys and interviews with residents of Savda Ghevra, representatives of organisations in the field and
government officials. Focus group discussions enabled me to probe the major issues around water and
livelihoods. A part of the research method was also directed at observation of a non-participant kind.
265

This was useful in exploring the power play that was not verbalized. Written reports produced by the
government on aspects pertaining to resettlement colonies were also analysed.
The field work was carried out in Savda Ghevra, a resettlement colony in the north-west border of
Delhi. This colony was developed in 2006, prior to the 2010 Common Wealth Games hosted by the
city. The colony is inhabited primarily by former residents of what are called jhuggi-jhompri clusters or
slums. Most clusters were primarily located in the central parts of the capital such as Nizamuddin, Khan
Market, Nehru Stadium, Dev Nagar, Yamuna Pushta and Vikas Marg while the others were dispersed in
locations such as Shahadara, Nangal Dairy and Raghuveer Nagar. However, for all the relocated slum-
dwellers, the new settlement at Savda Ghevra was nearly 30-40 kms away from their former abodes. The
study is an outcome of ethnographic field work carried out in the still-evolving colony of Savda Ghevra
during 2012-14. In order to corroborate the findings, the field was visited again in April and May 2016.
1. THERAPEUTIC JURISPRUDENCE AND TACKLING SLUMS
The advent of the slum problem was accompanied by various measures intended to offer solutions or
alternatives. In the last few decades especially, the importance of the study and planning of such settle-
ments has been widely recognised (Basu, 1988; Batra, 2005; Datta, 2012; Davis, 2006). Countries have
come up with policies and measures to reduce the number of such settlements around the world. The
developed regions house only 6% of the worlds slum population while 94% is concentrated in the de-
veloping countries (Basu, 1988; Davis, 2006; UN Report, 2003). Policies for slums range from methods
adopted to demolish them without plans for resettlement to the ones in which the slum inhabitants are
displaced and resettled. The approach to deal with the slum issues is seen more as a social welfare issue
than having any therapeutic effect on the well being of the ones victimised.
Therapeutic effect of any policy or legislation would mean it has an overall rehabilitative impact on
the ones victimised due to any violation of law and human rights. Therapeutic jurisprudence is an in-
terdisciplinary approach which tries to deal with situations of judicial crisis and victimisation by taking
help from behavioural sciences and other social sciences. Its consistent efforts lie into reshaping and
forming law and legal processes in a way that can improve the psychological functioning and emotional
well-being of the individuals affected (Wexler & Winick, 2008-15). As Wexler and Winick (2003) notes
that therapeutic jurisprudence embodies within its bound problem solving approaches, therefore its scope
must be exercised since the inception of any policy or legislation.
When analysed and understood, the concept of therapeutic jurisprudence expands to all spheres of
life and must be incorporated into all aspects of justice processes. When we talk of the procedural and
policy related measures taken to solve the problem of slum then we observe half hearted efforts of the
state. These policies lack in terms of providing therapeutic and restorative effects to the victims. To
tackle the issue effectively thus restoring all displaced, the states initiative lack in several parameters
including those affecting displaced slum women. While policies have evolved over time but not much
has been learnt from past experiences. The Delhi specific policies outlined below are also not impressive.
Gita Diwan Verma (2002) in her monograph Slumming India clearly depicts how a single policy cannot
work for everyone. The policies, she notes, never assess the rationale behind the prevailing conditions
and instead just offer haphazard solutions in the form of schemes/legislations. The viability and the
reliability of such policies are rarely considered prior to implementation and so what reproduces over
time in rehabilitated and resettled spaces is the slum itself. Verma (2002) underscores the point that the
266

worlds biggest democracy differentiates a privileged section of the population while others become less
equal (ibid: p. 4) and does not feature significantly in policy making and implementation. In her view this
makes for the chaos that is urban development (ibid: p. 6), an idea that is also echoed in Bhans (2013)
argument of the failure that is planning. He argues that and I quote, ..planning remains a site that is
critical for urban politics. Urban practitioners in a city like Delhi have no choice but to engage with the
plans because precisely of the continuing relevance of its failure (ibid: p. 60). Verma (2002) reiterates
that what should make us rethink slums is not the fact that slums exist as eyesores or unhygienic spaces
but our collective and moral contribution to their continuity.
From the literature available on slum displacement and resettlement drives in Delhi, it became ap-
parent that the major waves of displacement and resettlement occurred in three important time periods.
The first time period which begins with the citys attempt to solve the squatting problem through its
master plan was passed in the year 1962. It resulted in the formation of 18 resettlement colonies relo-
cating approximately 57 thousand families. The period between 1975-77 marks the second major slum
displacement drive that marked the city. This was the period known as the Emergency during which
most of the poor living in Delhi were targeted in the mass slum clearance and sterilisation drives. The
third time-period is the post liberalisation era starting after the 1990s which aimed at the slum clear-
ance through displacement. Below, I try to review Delhi specific slum policies during these three main
time-periods and see its working in the context of Savda Ghevra.
1.1 Slum Policies in Delhi (1947-1974)
Since independence, Delhi has been an area of prime importance since it is the capital of the country.
Planning for Delhi has often presented itself as a model for planning for other cities across the country.
The advent of planned urban growth in Delhi has existed ever since the large-scale influx of the refugee
population after the Partition in 1947. In addition, the increase in the population of Delhi can also be
attributed to the increasing movement of in-migrants from various Indian states in search of work op-
portunities (Basu, 1988; Verma, 2002). The service system was strained, the population increased and
that is when the problem of housing became acute and the encroachment on vacant lands began (Basu,
1988; Bhan, 2008; Ghetner, 2008). What followed were policies and formulation of schemes for the
planned urban growth of Delhi.
The Governments first response to slum settlements was initiated by the considered view that slums
were bad spots (Basu, 1988, p. 55). It led to the passing of The Slum Areas (Improvement and Clear-
ance) Act in 1956. The main thrust of this legislation was to improve the physical and environmental
conditions within the slum areas. The improvement was to be done by the owners of the property and
in cases where improving was not viable, demolition of the structure was declared permissible. The Act
also came up with provisions of re-housing of affected families but this clause had conditions attached
to it. Only those families could avail the option whose income did not exceed Rupees (Rs) 250/month or
who did not have registered, pucca (mortar-and-brick) dwellings in their own names. The scheme under
the Act provided an area of 1000-1200 square feet which included latrines, kitchen area and garbage
dumping area. The initial investment for benefitting from this scheme was Rs 3000-4000 which by 1983
had risen to Rs 17,000 (Basu, 1988).
The scheme, however, failed to have an impact on the rising slum population and their deteriorating
conditions. This happened because the ones who were displaced squatted on other vacant land and also,
a few families did not in receive the entitlements of the scheme which were manipulated to benefit the
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other favoured families (Basu, 1988; Mishra & Gupta, 1981). In the sixties, the policy makers gave a
mandate to town planners to formulate the Master Plan of Delhi (MPD 1962-1981) for a period of twenty
years wherein the major thrust was on land-use planning and zoning regulations. The MPD (1962-1981)
also envisioned ways to tackle the slum and housing issue of Delhi. It included initiatives such as:
The relocation and removal of squatter and slum settlements. These two were the basic pro-
posals suggested for solving the slum1 problem in the overall programme of urban renewal and
redevelopment;
The reservation of sites nearer to the place of work for relocation;
Areas to be earmarked for resettlement should not be near the periphery and areas to be developed
in situ;
It also provided for resettlement to be part of a larger composite neighbourhood consisting of
groups belonging to all income brackets (ibid.).
The Delhi Development Authority (DDA) was constituted for the proper and immediate implemen-
tation of the Plan. The Authority would also oversee infrastructure development of the city. It favoured
the creation of a large amount of permanent housing structures by the DDA, whereas only a few for the
lower income group and the poor. Planning and its implementation on the ground could not harmonize
and the desired results could not be attained in the stipulated period.
Along with the physical planning of the city and the formulation of the Master Plan, several other
policy and action programmes were adopted in Delhi to tackle the problem of squatters/slums. The
Jhuggi-Jhompri Removal Scheme (JJRS) of 1960 and the Environmental Improvement Programme
of the National Five Year Plan (1974-1979) were other such polices that were implemented in Delhi.
Addressing the need of squatter settlements/slums in Delhi, the JJRS scheme was approved in 1960.
Under this scheme vacant plots of 80 square meter size were allotted on lease of 99 years. The plots had
pre-constructed toilets, pre-fitted water taps and plinth on which the families could build structures ac-
cording to their needs. The implementation of the scheme revealed difficulties like the underhand sale
of allotted plots that encouraged further squatting. Subsequently, the ownership element was eliminated
and open developed plots or constructed units were given out on rent. At the same time, the terms of
eligibility and ineligibility were narrowed. By 1964, the Government decided to allot 25 square meters
of camping sites to the ineligible squatters in far-off colonies on payment of full rent as compared to
subsidized rent from the eligible ones. This, again, led to further squatting and hence, the facility was
withdrawn in 1965.
Through reviews of this policy and simultaneous failures of its proper implementation, the JJR
Schemes were transferred from the Municipal Corporation of Delhi (MCD) to the DDA in 1968 which,
again, made certain modifications. It now provided for 25 square meters plots only to the pre July-1960
squatter settlers with amenities like toilets, water supply, and schools, for instance. For the ineligible
ones, these provisions were declined and they were given small plots at faraway camping sites with
minimal basic amenities.
Under the supervision of MCD and DDA, 18 resettlement colonies2 were developed by 1975 in Delhi.
All these colonies were developed with different rationales and policy features such that some benefitted
while others had to be at the losing end. It well depicted that since the time slums started appearing in
the policy, it was seen as a problem, rather than providing for a more comprehensive approach to reduce
housing shortage.
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The review, along-with highlighting therapeutic insufficiency, pin-points the negligence of the state
towards slum women who did not feature as a separate community needing some therapeutic and restor-
ative attention. The policy was dissolved over the larger slum community and the main thrust during the
period immediately after independence has been to somehow remove slums. The policy failures led to
gentrification of the resettlement colonies and thus new slums came up.
2. SLUM POLICIES IN DELHI (1975-PRESENT)
2.1 Slum Clearance Drive during the Emergency
In the year 1975, Indira Gandhi the Prime Minister of India, had declared a period of Emergency. Such
a declaration not only led to the silencing of the opposition and the imposition of censorship but also
to the introduction of schemes of reform (Tarlo, 1995, 2003) which included the draconian drive of
slum clearance and forced sterilisation in the name of family planning. During the Emergency many the
of countrys policies and laws had ceased to be democratic (Dupont, 2008). The relocation operations
during the Emergency became controversial and haphazard (Basu, 1988). The official thinking during
those days was that demolition and resettlement was the solution to the slums. More than 16 resettlement
colonies3 came up within a time-span of two years (1975-1977) in Delhi, some of which lay outside the
urban limits4 mentioned in the Master Plan Delhi (MPD) 1962-1981 and were justified in the name of
rehabilitation (Basu, 1988; Bhan, 2013; Dupont 2008). These included Gokalpuri, Kichripur, Kalyanpuri,
Sultanpuri and Trilokpuri. These were developed on the land which was designated as green and marshy
in the MPD 1962 (Mishra & Gupta, 1981). These areas today are well within the limits of the city.
The discourse on development which provided the logic for the mass displacement of some 700,000
people to marginal spaces beyond the borders of the city in 1975-77 did not guarantee either security or
entitlement to the displaced. And although the means by which the urban poor negotiated provisional land
rights during Emergency were specific and stringent, the eligibility criteria mandated for all who could
receive resettlement plots was to undergo sterilisation and produce the slip for the same. The fact that
they had to bargain with politicians and bureaucrats for the basic amenities of everyday life reveals that
the urban poor were forcefully subdued and their rights were under threat. Such continuities of exploita-
tion and forceful demolitions are all too apparent in the recent re-emergence evident in Delhis politics
of Jagmohan, the man who had been charge of slum clearance and resettlement during the Emergency.
As the Union Urban Development Minister in 1991, Jagmohan renewed his stringent efforts to clean
up the city by enforcing the closure of thousands of non-conforming industries and removing illegal
squatters from the capital.
2.2 Slum Policies Post Liberalisation/1990s
With the advent of new economic policies and the wave of liberalisation, Delhi witnessed changes in its
infrastructural development. It was now necessary for it to come up as a world class city and its beau-
tification and planning became even more crucial/significant (Baviskar, 2003; Bhagat, 2014; Dupont,
2008; Verma, 2002). The Delhi Government in order to deal with slums during 1990-91 adopted the
Three pronged strategy which was approved by the DDA in 1992. It included the following strategies:
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In situ up-gradation for the clusters whose encroached land pockets were not required by the
concerned landowning agencies for another 15-20 years for any project implementation (MCD
2000).
Relocation of JJ clusters that were located on land required to implement projects of greater
public interest.
Environmental Improvement of Urban Slums (EIUS), based on the provisions of basic amenities
for community use, in other clusters irrespective of the status of the encroached land.
The in situ up-gradation strategy was only rarely put into use and the prevalent strategy in Delhi was
the removal of squatter settlements and their relocation- or rather conditional relocation (Dupont, 2008,
2014). The thrust has evidently been on resettlement and relocation strategy in order to deal with squat-
ter settlements. Under this strategy, the ones who meet the eligibility criteria (which are decided by the
MCD and now DUSIB) are allocated plots which in most of the cases of resettlement in Delhi have been
in the outskirts of the city- Bawana, Narela, Savda and Bhalaswa (Bajpai, 2009; Menon-Sen & Bhan,
2008; CPR Report, 2014). Allocation of plots are made strictly to those who are able to provide proof of
residence within the cut-off dates (Bajpai, 2009; Menon-Sen & Bhan, 2008) which has been extended
to 20075 by the DUSIB Act (Amendment Bill, 2013). It has been shown in various studies (Menon-Sen
& Bhan, 2008; CPR Report, 2014; HLRN, 2010) that the number of people who are resettled remains
less than the number of people who are displaced. Also, the strategy of resettlement does not speak of
complete rehabilitation in terms of livelihood, basic facilities and other compensation for losses incurred
by the evicted population.
2.3 Master Plan Delhi 2001 and 2021
The DDA website (2015) states:
A master plan is the long term perspective plan for guiding the sustainable planned development of the
city. This document lays down the planning guidelines, policies, and development code and space re-
quirements for various socio-economic activities supporting the city population during the plan period.
It is also the basis for all infrastructural requirements.6
The Master Plan Delhi 2001 was promulgated on 1st August, 1990. The MPD 2001 was prepared for
a projected population of 12.8 millions in 2001. However, the Census 2001 reported Delhis population
to be 13.85 millions. The DDA proposed to develop 83804 hectares of land as urban area within the
framework of MPD 2001. As the MPD 2001 for slums shows re-housing an indicative target of 3 percent
of the total housing target were proposed. The modification in the Plan had led to 25 square meter of
plot size to be allotted as part of the resettlement strategy to slum-dwellers. The sites for relocation and
resettlement were located at far off places such as Dwarka, Rohini, Narela, and Bakarwala. In addition,
the Plan 2001 also issued NOCs for the acquisition and development of land for Slum and JJ rehabilita-
tion at Bawana, Holambikalan, Bhalaswa, Savda Ghevra and Kadipur. All of these were developed as
resettlement sites eventually. The Slum and JJ wing of MCD was responsible for the development of
the area of resettlement and for providing it with basic amenities and other infrastructure at the sites.
Dupont (2008) has highlighted the relevant feature of the Delhi JJ resettlement scheme as stated in the
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MPD 2001 wherein re-housing was not emphasised but relocation on developed plots in resettlement
colonies was the focus.
Apart from MPD 2001, the government in Delhi initiated a regularisation wave in the year 1993. It
invited applications wherein all unauthorised colonies were to be regularised and would obtain the en-
titlements of other planned, regularised and legal (Bhan 2013: 58-63) residential colonies of Delhi.
The spatial and land use pattern as planned seemed to beat stake. The areas envisaged for development
was often already occupied and hence chaos existed. Also, not much could be achieved in respect to the
just and proper rehabilitation of evicted slum-dwellers. The ones resettled at the fringes strived hard to
obtain the basic rights and amenities like education, water, space, sanitation etc.
To overcome the ambiguities existing in the policy and its implementation, the Government of Delhi
extended the Master Plan for 20 more years. A new Master plan with some continuation and little modi-
fication was promulgated on 7th February, 2007. This is the Plan up till the year 2021 and hence called
Master Plan Delhi 2021 (MPD 2021). The MPD 2021, under the goal of ensuring Shelter for All,7 aims
to ensure effective housing and shelter options for all citizens, especially for the vulnerable and the poor.
The MPD 2021 provides certain modifications. These are:
Instead of providing vacant plots, the Plan proposes resettlement on built-up accommodations of
25 square meter with common areas and facilities;
A cooperative resettlement model with adequate safeguards is favoured along with tenurial rights
provided through co-operative societies;
The provisions of accommodation should be based on cost with suitable arrangements for fund-
ing/financing, keeping in view the aspect of affordability and capacity to pay;
In case of relocation, the sites should be identified in a manner that they can be integrated with the
overall planned development of the area, particularly keeping in view the availability of employ-
ment avenues in the vicinity. Very large resettlement sites could lead to a phenomenon of planned
slums (ibid.).
The Plan also provides for suitable arrangements for temporary transit accommodation for families
to be rehabilitated. In addition, it emphasises the sites to be at or near the former location. Moreover, in
instances of in-situ up-gradation, the scheme implementation should be in a manner that not much loss to
the dwellers is incurred and the utilization of the spaces is synchronized with the phases of implementation.
2.4 DUSIB (Delhi Urban Shelter Improvement Board)
Until 1990s, the responsibility of slums and providing resettlement in Delhi lay with the Delhi Develop-
ment Authority (DDA Slum Clearing Wing). Its focus and agenda was to accommodate the elite class
of the Capital and envision a slum free Delhi. In practice this meant massive evictions and relocation.
As already mentioned, even in situ up-gradation did not help in the policy implementation (Bhan, 2013;
Dupont, 2008; Baviskar, 2003). In 2010, the Delhi Urban Shelter Improvement Board (DUSIB) Act was
passed to deal with housing and resettlement of the urban poor. The Slum and JJ Department which was
transferred back and forth between DDA and MCD until 1992, was now brought under the purview of
DUSIB after the enactment of DUSIB Act. DUSIB is now the agency responsible for resettlement and
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upgrading the settlements in the city. Apart from this, DUSIB also plays a crucial role of looking after
the Jhuggi-Jhompri squatter settlements and provides civic and social amenities to them. Along with
issuing the policy guidelines for relocation, rehabilitation and allotment of flats to slum-dwellers and
JJ clusters. It has also made changes in the cut-off dates and eligibility criteria. It extended the cut-off
dates for allotment of land or flats from 1998 to 2007. In addition, it has provided recognition to tenants
in such dwellings thus making them eligible for any kind of resettlement schemes.
In 2013, the government made amendments to the policy and issued new guidelines that are sum-
marized below:
The slum/JJ dweller should be occupying the jhuggi on or before June 2009, i.e. the date of an-
nouncement of Rajiv Awas Yojana8 by the government;
A notice to conduct surveys of all eligible allottees has to be pasted at conspicuous places in JJ
clusters at least one month in advance. Active dissemination of the notice shall also be made
through loud speakers. In addition, the survey should ensure that none of the dwellers and their
family members are left out from the survey;
It defined the eligibility criterion with certain specifications like the beneficiary of resettlement
had to be an adult citizen of India with an annual income of the family of Rs 60,000 or less9;
The allotment of a flat to the slum-dweller cannot be a matter of right;
The allotment of the flats will be on a license basis, initially for 15 years, which may be extended.
The license is not transferable in any manner neither can it be transformed;
DUSIB has the sole right to cancel any allotment in case the stipulated terms and conditions are
violated by the allottee. In such scenarios the allottee cannot claim any compensation, whatsoever.
Discrepancies10 between the guidelines of DUSIB and those laid in the Master Plan 2021 are evident.
The Master Plan speaks of providing tenurial rights whereas DUSIB focuses on the leasehold scheme.
Also, since DUSIB is the modal agency for resettlement and relocation of slums, it is in the driving seat.
But discrepancies between DUSIB and the Master Plan add to the confusion of former slum-dwellers
on the subject. Judicial interventions of Delhi have undermined the policy further in the past few years
(Dupont, 2008; HLRN Report, 2010). Despite the fact that the slum policy in Delhi has tried to look
into the concerns of the slum population, petitions and verdicts passed by the esteemed courts have
sometimes proved to be against the interests of the slum-dwellers (Baviskar, 2003; Dupont, 2008). Also,
the continuously changing and ad-hoc laws have led to victimisation of the vulnerable groups especially
the urban poor.
Amidst all the reforms taking place in the policies and legislations, one common problem that persists
is the inevitable existence of slums. The idea to relocate and rehabilitate the slum-dwellers is politically
motivated and shows ad-hoc or temporary solutions. Such interventions of the state which is supposedly
for the larger welfare of the ones living in settlements that are not suited for habitation, renders another
section vulnerable during and after the implementation of the policy (Datta ; Menon-Sen and Bhan
2009). The above analysis affords a point of departure on the issue of the rights of the women as none
have tried to address displacement and resettlement through gender perspective. The interventions by
the judiciary have also been stringent and shifting in its perspective to provide for therapeutic effect to
the ones under the purview of being victimised.
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3. INTERVENTIONS BY THE JUDICIARY
Some legal judgements by Indian courts have been path breaking. They have tried to address the issues
of eviction, relocation and displacement and how these phenomena victimises the community as well
individuals. In 1985, in its landmark judgement in Olga Tellis versus Bombay Municipal Corporation,11
the Supreme Court recognised that the Right to Livelihood is an important facet to the Right to Life
and stated that the eviction of the pavement dwellers will lead to deprivation of their livelihood and
consequently to the deprivation of life. In K. Chandru versus State of Tamil Nadu (1985), the Court ruled
out that alternative accommodation is to be provided to slum-dwellers before they are evicted. These
acts of the judiciary have provided for a therapeutic effect on the ones being victimised by the state and
the powerful. These rulings by the court recognised the right to life of the slum and pavement dwellers
as important and thus the jurisprudence showed empathy towards the vulnerable.
However, the intervention by the judiciary since 2000 especially in relation to Delhi has shown great
disparity and disconnect with the previous pronouncements. Amidst the hosting of the Commonwealth
Games and representation of India in the international arena, the courts began making widespread
mention of Delhi as a showpiece, world-class, heritage, and capital city (Ghertner, 2015). In a
landmark judgment from 2000, the Supreme Court stated:
In Delhi, which is the capital of the country and which should be its showpiece, no effective initiative
of any kind has been taken by the numerous governmental agencies operating there in cleaning up the
city. Instead of slum clearance there is slum creation in Delhi. This in turn gives rise to domestic
waste being strewn on open land in and around the slums. This can best be controlled by preventing
the growth of slums.
In democratic India, the Judiciary plays various leading roles. Gupta (2016) notes that through the
history of development, the judiciary has worked to allocate resources towards certain groups especially
in matters that relates to city planning and urban renewal. Interventions by the judiciary in the last de-
cade have redefined slum policy to a large extent. Ghetner (2008, 2011) notes the shift in the judicial
interventions to make Delhi a world class city (Master Plan Delhi, 2021, p. 2), motivated by emerging
bourgeois environmentalism (Baviskar, 2003, p. 90) which typifies the middle-class concerns about
the degrading environment (Mathur, 2011). The role that is played by the civil society12 (Chatterjee,
2008) is crucial to determining the class identity of the political class13 (Chatterjee, 2008).
Judgements, in the landmark Almitra Patel case (2000) and the Okhla Factory Owners Association
Case (2002), have countered the obligation of the state to provide resettlement alternatives to evicted
families. A PIL (Public Interest Litigation) filed by Almitra Patel in 1996 in the Supreme Court of India
regarding the environmental degradation in cities catalyzed the policy of the eviction and relocation of
slums in Delhi and other cities. The judgement in the Almitra Patel case said that offering resettlement
location to the displaced slum-dweller was equivalent to rewarding a pickpocket and hence no provision
should be granted.
Subsequent to the judicial orders of the apex court of the country, the High Court of Delhi in its
judgement in 2002 too initiated the closure of all polluting and non-conforming industries in Delhi
(Okhla Factory Association Case, 2002). The High Court also ordered the removal and relocation of
all squatter settlements in Delhi. The judgement of the court made it very clear that the planned devel-
opment of Delhi was being hampered by those who had squatted and trespassed on public land and
refused to move (High Court of Delhi 2002). It stated encroachment to be an injury to public property
and argued that resettlement was encouraging further squatting. The orders and actions resulted in the
273

unemployment of around two million employees while evictions rendered another three million people
homeless (Baviskar, 2003). Thus the judiciary intervened acknowledging environmental degradation
without clearly stating measures to be adopted for just relocation and rehabilitation of the ones who
were to face its consequences.
Along with forming a committee to assess the environmental cleanliness of the cities, the apex court
directed government authorities in Delhi, to keep the city reasonably clean. The authorities saw slums as
the main causes of environmental degradation and hence the government announced procedures for their
demolition and relocation to other places far away. Without planning and justifiable steps for relocation,
relocation was undertaken and slum-dwellers were forced to the fringes.
However, other interventions of the judiciary had favourable consequences. It is argued that our law
is flexible and relies on evidences (Ramanathan, 2006). It can be interpreted in numerous ways and
some interventions of the judiciary have also been in favour of resettlement and rehabilitation. These
can be interpreted in a positive way. A judgement of the High Court of Delhi in 2010 in the case of
Sudama Singh and others vs Government of Delhi and Anr14 lays down clearly that the Master Plan is
to be treated as law.
It stated: 46... It is now well settled that a plan prepared in terms of a statute concerning the planned
development of a city attains a statutory character and is enforceable as such.... The judgement of the
Delhi High Court in the Sudama Singh et al case also emphasised the duty of the state to protect the
right to housing and rehabilitation. It states: The denial of the benefit of rehabilitation to the petitioners
violates their right to shelter guaranteed under the Constitution15. In these circumstances, removal of their
jhuggies (Huts) without ensuring their relocation would amount to gross violation of their Fundamental
Rights. What is very often overlooked is that eviction and relocation of jhuggies denies each member a
number of rights ranging from right to livelihood, to shelter, to health, to education, to access to civic
amenities and above all, the right to live with dignity.
The court ordered that within a period of four months from today (February), each of those eligible
among the petitioners, in terms of the relocation policy, will be granted an alternative site as per MPD-
2021 subject to proof of residence prior to cut-off dates.
Everywhere, the access of the poor to urban space remains the larger issue at stake. Delhis slum poli-
cies since 1990s have provided only ad hoc and inadequate solutions, which were, moreover, suspended
by the intervention of the judiciary in 2000 and 2002. The changing laws, their interpretations and the
interventions of the judiciary have prevented the emergence of a law that summarises the various poli-
cies and incorporates them into one mandating law governed by a modal body. What can be inferred
here is that the urban jurisprudence of Delhi has been ruled by the ideology of the aesthetics of city
(Ghertner, 2015) which has influences of the dominant class civil society. The idea of a therapeutic
governance which Wexler (2008, 2015) and Winick (2008, 2015) marks has healing effects has rather
led to inconsistencies and vulnerabilities.
4. WOMEN AND THE IMPACT OF THE SHIFTING JURISPRUDENCE
Marginalisation and neglect of women is an inevitable phenomenon all around the globe. The mere em-
phasis on formulations of women favouring policies and giving them reservations in various bodies and
organisation well depicts their low representation everywhere. It is also manifested in the urban related
policies and legislation in relations to slum settlements. Since displacement and relocation of slums is
274

a traumatic experience for the slum population, it affects women differently and to a greater extent. All
the processes involved in displacement and relocation are neither gender sensitive nor addresses to issues
related to women. Instead at every level, women have been unnoticed to and only through interaction
from the field; it became apparent that women are the ones to be at the receiving end. The negligence
of the jurisprudence and the policies is evident from the very fact that the places where resettlement has
taken place lie far from the thick and thins of the city affecting the women the most.
Sushma, a resident from the field of study quotes:
When the first lot of the evicted population was brought to the Colony, no infrastructural facilities were
provided to us. To add to our difficulties, land on which we were thrown was muddy, dry and full of dirt
and dust. We were to live with insects and worms which made us sick and destroyed our food whether
cooked or uncooked. Though we were all suffering from the trauma of relocation, the least we expected
was to have a space where we could have settled. Instead, the complete lack of planning for our welfare
and the hurriedness with which we were relocated made conditions worse.
The laws have not taken into notice the impact on women, their livelihood and health, instead are
primarily motivated by the fact to enhance the aesthetics of the city (Ghertner, 2011). Ghertner (2008,
2011) notes which is also a thought that is echoed in Baviskars (2003) concern for increasing environ-
mental activism is the increasing judicial intervention over Delhi being a world-class city. The urban
poor have been stigmatised as nuisance which needs to be dealt at the earliest. The jurisprudence over
the citys beautification and re-development has overlooked the women residing in these localities. The
orders of the courts to carry out demolitions have had traumatic effect on the community worsening
conditions for women. The post 2000 era has seen massive displacements and resettlements. Many of
them have occurred in a spur of movement and the courts have also provided a cold shoulder to the peti-
tions filed by the affected communities where prior notices were not served supposedly.
Almost 65% of the community said no notices were served to them prior to demolitions and evic-
tions. Most of them did not get enough time to salvage their belongings. The demolitions took during
the day time when most of the men were out for work and so the brunt of the forceful demolitions was
on the women and children.
Vimla underscores the experiences of the Raghuveer Nagar demolitions:
We were forcefully evicted from Raghuveer Nagar. I remember, it was a sunny Tuesday afternoon when
all of us were taking rest after finishing our daily chore. Children were in school and our men out for
work. All of a sudden there was chaos in the colony and noises travelled through the lanes. Bulldozers
had come to demolish out houses. Mostly women were present in the colony then but the authorities
were adamant no to postpone the demolitions. All our furniture, documents, household material etc were
destroyed. The state did not even take notice of the elderly and the unwell. Also there were hardly any
lady police officer while we were evicted. I dont think they have any humanity...
This experience found resonance in narratives by other women of the community as well. They found
themselves amidst chaos, hopelessness and getting victimised because of the resurgence of demolitions
and evictions. As Anand and Tiwari (2006) have found in a similar study that forced evictions take away
peoples livelihood opportunities, their bond with the land and their belonging to a community. The
ones to suffer the most and whose rights are commonly violated from displacement and resettlement are
275

those belonging to the poorer section, the hapless, women, ethnic and religious minorities and the ones
lacking security of tenure (Anand & Tiwari, 2006)
The involvement of the courts and the bourgeois environmentalism and activitism (Baviskar, 2003,
p. 90) have acted as catalyst to the demolition drives and the rulings have affected resettlement and al-
lotments, since the aesthetics of the city needs to be kept in mind. The most prevalent non-therapeutic
attitude of the state and jurisprudence is evident from the fact that the already marginalised urban poor
have been further marginalised by relocating them to the fringes. Available literature on urban displace-
ment has majorly focussed on its impacts on the slum community as a whole. A review of the existing
studies reveals that more information regarding displacement and relocation is available also on the
human rights violations. But less attention to the gender dimension of displacement and relocation of
slums has been addressed to.
Nearly 56% of women who did home-based work (both piece-rate for a contractor and their indi-
vidual enterprises) were affected as a result of displacement and relocation. Women preferred to find
work near their place of residence since they were constrained because of household responsibilities.
Formerly, women in this resettlement colony were engaged either as domestic labour in affluent homes
or in home-based occupations such as leather-work, tailoring, embroidery and beauty treatment. Almost,
44% of the women still commuted to the places where they worked prior to resettlement. There were no
formal provisioning to help them rebuild their livelihoods in Savda Ghevra.
Sangeeta was among the few, who went back to work at a distant location as domestic help. Aged 43
years, she still goes to work as a domestic help in a distant location. She says:
I did not leave my job because I would have been unable to find a requirement for domestic help any-
where in the new settlement since there are no middle class residential colonies around. I think that for
a woman like me who lacks educational qualifications, domestic work is safe and secure. I dont have
any options. I have to support my family since my husbands earnings in the butcher-shop do not suffice
for our needs. I know that I am now giving up on the time spent with my family and children but this is
what is necessary to maintain a certain standard of living.
The precariousness of livelihoods is evident in several accounts of residents of this resettlement

colony. Also, since livelihoods in the new location are less profitable, the condition of the displaced
slum-dwellers has deteriorated and not improved. Women in Savda Ghevra complain that unlike other
resettlement colonies, Savda Ghevra and its location provided for little or no livelihood opportunities.
The resettlement Colony was in the outskirts of the city, there were no industrial set-ups around, the
closest residential colony was at a distance of 10-12 kilometres and the area around Savda Ghevra was
barren farm land. The residents of the Colony too, belonged to different slum settlements across Delhi
and hence lack cohesion. The livelihood crisis in Savda Ghevra was especially acute for women.
The resettlement site that were developed on account the demolitions and eviction drive lack in basic
infrastructural facilities. Initial years of relocation did not provide for any basic services to the once
coming to the colony. Women were the worse affected by the ignorance of the authorities especially in
matters of privacy and safety. They had to defecate in the open as only large barren land was made avail-
able to them without any infrastructure. Also, sanitation developed latter are in form of community paid
toilets and lack privacy. Women avoid going to these as this takes a major share of their family earnings.
Water provisioning is also inadequate in the colony. The formal provisioning of water by the state
government for Savda Ghevra is through water tankers. It is unpredictable and limited in scope. Various
276

informal practices and strategies have come up in the colony to cope with this lack. The Delhi Water
(JAL) Board tankers are required officially to ply to the colony to meet the water requirements of homes.
The gendered division of labour is evident in water-collection practices. Here, the collection, storage
and management are the responsibility of the women. The accounts above highlight that it is mostly the
women who provide the family with water and men come into the picture only when everyday arrange-
ments break down. As Thapan (2009, p. 133), too, observes: the imprints of gender differences are
best shown in the individual stories constructed by women.
Bhan (2008) and Menon-Sen (2008) in a similar study on Bawana16 have shown that women here, too,
continue to travel long distances to do home based work. Like Bawana, women in Savda give up their
free time and devote it to continue their wage work. They feel that whatever time they spent relaxing or
communicating with neighbours can be given up for the sake of the family. Moreover, if one wishes to
compensate for the past losses because of displacement and relocation then they have to work in the pres-
ent. The jurisprudence on which we rely does offer some sought of therapeutic effect in some instances
but can it generalise our legal system to be therapeutically organised remains to be delved into. The ad
hoc solutions have proved to be devastating on the vulnerable group of the slum community especially
the women. All the rulings and verdicts have not taken into account the impact of demolitions on the
ones facing it rather it has acted onto impulses of removal of slums which are a nuisance to the city.
Influenced by the middle-class environmentalism and activism, the courts have shown non-therapeutic
effect for the women as they have to undergo violence in their everyday life.
CONCLUSION
A city belongs as much to the ones who are its makers as it belongs to the ones who modify it. The two
components are the citizens and the state. Citizens have within its bound all the rich, poor, men, women
and children while the state is the elected government. The infrastructure of the urban space is to be
planned and developed in a way that it is able to support and nurture all that form the part of the city.
Delhi has a long history of migration be it after the partition, during emergency or in recent times in
search of a better lifestyle. The citys infrastructure has not been able to support the huge influx and so
these temporary informal settlements in form of slums have formed a part of the cityscape. The shift-
ing nature of law, judiciary and the state policies have only looked into the matter hitherto and lacked
in providing for a complete solution to it. The situation is such that the slum- dwellers who are already
marginalised do not receive any therapeutic or rehabilitative attention from the state or justice system.
At the national level, it took India about 60 years to put together the resettlement and rehabilitation
policy but is still argued upon. The arguments and dissension result in updating the policy and hence
leave a scope for its improper implementation. According to Cernea (1999) policies tend to close the gap
between the forward looking theory and the real life situation (Cernea, 1999, p. 3) and thus provide a
platform on which plan and practice co-exist. Resettlement policies in Delhi have tried to do the same but
instead of filling the gap it has widened it. From the discussion of policies on slums in Delhi, it becomes
apparent that the lacunae in the policies have resulted in the failure of planning due to which the slums
and slum-dwellers are still seen as encroachers belonging to the outside of the city.
The policies are influenced by a view that slums are eyesores. The government and other authorities
addressed slums as a disgrace to the country and as an acute problem. It is given lopsided attention.
The priority is given to making cities beautiful and the provision of basic amenities to the people is not
277

considered. Another major lacunae, which is not taken care of is the remoteness of resettlement locations
as most of the people wanted to resettle in nearby urban populations. Most of the policies are made as
and when required based on the situations. When there is a need for land the people are vacated and
sent to far off locations, as was evident during the Emergency (Tarlo, 1995, 2003). Recently during the
2010 Commonwealth Games (Menon-Sen & Bhan 2008) large scale demolitions took place again and
the slum-dwellers were forced to the periphery of Delhi. The focus is always on to relocating slums to
distant locations and thus imposing upon them the identity of being migrants to the city (Baviskar,
2003, p. 96).
The strategy of resettlement does not speak of a complete rehabilitation in terms of livelihood, basic
facilities and other compensation for losses incurred by the evicted population. Also, the most recent
DUSIB Act treats resettlement as state sponsored support to the poor and not as a rights based issue
thus keeping many out of its bounds and forcing them to give away their claims over the city. Planning
is based on limited information as there is lack of comprehensive data available on slum populations,
which requires an exhaustive initial survey before framing any slum related resettlement policies.
Planning and policy in Delhi has evolved through a process of imagining the city in multiple ways
(Baviskar, 2003, p. 91). Certain urban phenomena have come up as unintended consequences and have
changed the use of space (Bhan, 2013). Demolitions and displacement have been a consequence of mak-
ing Delhis geography inflexible by the planners and policy makers. Attempts to control the space as
depicted in the various master plans have acted as resource for the state officials and political leaders to
broker deals for slums to stay. In the span of 15 years the judgements in various cases have contradicted
and thus advocated removal of slums or resettlement to the fringes. Thus, from the perspective of urban
governance the judgements and orders by the courts are alarming. These contradict policies drawn upon
at the national level and second they exclude the poor from the city. Women have not and do not form
part of the judicial rulings and are neglected even in the policies and laws. They are not recognised while
passing any type of law and hence become more vulnerable.
Including them in the policy formulation and also taking them into regards as the ones most affected
by the space and location aspect, the judiciary should pass judgements favouring them at least in the new
colony. A more comprehensive survey of the demolitions could lead to incorporations of the aspirations
of women and the elderly as well. Small things should be taken into account while any judgement that
might influence the policy is being passed. Not negating the larger context of public and state welfare,
the judiciary should make efforts for proper and just resettlements especially for the women, elderly and
children. Providing for basic infrastructure at the new site must be assured by the judiciary and other
state authorities.
By way of a conclusion that echoes my thoughts, I will end with what Gita Dewan Verma reiterates
in Slumming India: What should make us rethink slums is not the fact that slums exist as eyesores or
unhygienic spaces but our collective and moral contribution to their continuity. The approach towards
slums and the people residing in it should be more humanitarian and humble. Also, the idea to treat
policies and legislations with gender sensitive perspectives and scope should be incorporated within the
initiatives of the law keepers and justice givers. An over arching therapeutic effect can only be attained
when the policies become more encompassing, permanent, research based and at the same time take
into account the needs of all the components of the community.
278

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ENDNOTES
1
Slum, in the official term during the 1960s were called Bustee (Girish K Mishra, Rakesh Gupta,
1981, Resettlement Policies in Delhi, Centre for Urban Studies, IIPA, New Delhi)
2
According to Delhi Development Authority (1981), the resettlement sites developed at different
locations of Delhi were- Seelampur, Srinivaspuri, MotiBagh, Najafgarh Road, Sahadara, Wazirpur,
Madangiri, Sunlight Colony, Nanraina, Pandunagar, Hastal, Nangloi, Madipur, Seemapuri, Tigri,
Ranjeet Nagar, Kalkaji and Garhi.
3
According to DDA (1981) some of the sites were- Welcome, Seelampur Complex, Patparganj,
Khanpur, Gaukhandi, Gokulpuri, Nandnagari etc.
4
According to the MPD 1962, for development till 1981, certain urban limits were identified. These
were to be developed as industrial spaces or later in future.
5
The previous date for allocation of plot was decided for 1998.
6
Delhi Development Authority Website dda.org.in/planning/master_plans.html
7
Keeping in view the socio-economic composition of the population, it is estimated that around
50-55% of the housing requirements would be for the urban poor and the economically weaker
sections in the form of the house of two rooms or less.... (Ch 4, Para 4.1 Master Plan Delhi 2021)
280

8
Rajiv Awas Yojana (Ray) came as a component of JNNURM (Jawaharlal Nehru Urban Rural
Mission) which came into existence in 2005. JNNURM aimed to encourage reforms and fast track
planned development of identified cities. In addition RAY was announced in 2009 and envisaged
the mission of Slum Free India with inclusive and equitable cities where all have access to basic
civic amenities, social amenities and decent shelter. It was launched for a period of 10 years with
a vision to work towards urban Indian poor. By 2022 it aims to move ahead in this regard.
9
Income is very confusing with regard to the slum-dwellers. The family income is not same for all
and in fact from the field it came out that certain families have more income than that mentioned
in the Act. They prefer staying in slums because of the close proximity to the work place and also
the promise of resettlement to a new site.
10
Even in the case of Savda, certain parameters have been worked upon within the purview of the
MPD 2021 like allotment of land at an alternative site to the evicted population, provision of basic
services like community toilets, dispensaries, schools etc. But according to the DUSIB act, the
land has been allotted on a leasehold basis for a period of ten years on the completion of which the
residents are clueless about it extension.
11
Olga Tellis vs Bombay Municipal Corp., (1985). 3 S.C.C (India)
12
Civil Society as explained by Chatterjee (2008) is constituted of the upper middle class who seeks
to be congruent with the normative models of bourgeois civil society and represents the domain
of capitalist hegemony.
13
Political Society on the other hand is constituted of the larger rural population and the urban poor.
They represent the model who negotiate with government over rights through temporary, contextual
and unstable arrangements. They are not treated a proper citizens (Chatterjee, 2008).
14
Sudama Singh and others vs Government of Delhi and Anr, (2010). WP 8904/2009, High Court
of Delhi (India)
15
Article 21 of the Indian Constitution: Protection of life and personal liberty, Right to live with
human dignity, Right to shelter, Right to privacy, Right to education, Right against inhuman treat-
ment.
16
Bawana is also a resettlement Colony in the north of Delhi. It came into existence before Savda.
281
282
Chapter 17
Revenge Porn Against Women
and the Applicability of
Therapeutic Jurisprudence:
A Comparative Analysis of Regulations
in India, Pakistan, and Bangladesh
Debarati Halder
Centre for Cyber Victim Counselling (CCVC), India & Unitedworld School of Law, India
ABSTRACT
It must be noted that the modern legal history of India, Pakistan and Bangladesh may show that all these
three countries have framed their penal laws from colonial British Penal laws which was the governing
law of the Indian peninsula in pre-independence era (prior to 1947). As such, the present criminal laws
of these countries including those dealing with violence against women (including physical and online)
may have similar features. This chapter argues that South Asian countries including India, Bangladesh,
and Pakistan do not have focused laws on dealing with the issue of revenge porn targeting women.
Further, the socio-economic conditions of these countries being quite the similar, it may be noted that
women victims of revenge porn may neither prefer to seek police help due to fear of reputation damage.
This chapter therefore aims to research as whether the application of Therapeutic Jurisprudence in such
cases may benefit the victims.
INTRODUCTION
The recently published Report by the United Nations Broadband Commission for Digital Development
Working Group1 pointed out that cyber violence against women and girls (Cyber VAWG) is a growing
phenomenon all over the world. The UN Broadband Commission explained the term cyber violence
against women and girls as including hate speech (publishing a blasphemous libel), hacking (intercept-
ing private communications), identity theft, online stalking (criminal harassment) and uttering threats.
It can entail convincing a target to end their lives (counselling suicide or advocating genocide).2 It also
DOI: 10.4018/978-1-5225-2472-4.ch017

Revenge Porn Against Women and the Applicability of Therapeutic Jurisprudence
stated that the Internet also facilitates other forms of violence against girls and women including traf-
ficking and sex trade. Not only does commercialized sex on the Internet drive the demand for the sex
industry overall, it also allows traffickers to use the legal aspects of commercial sex on the Internet as
a cover for illegal activities.
Prior to this explanation, this author in her earlier monograph titled Cyber Crime and the Victimiza-
tion of Women: Laws, Rights, and Regulations. (Halder & Jaishankar, 2011), defined the term cyber
crime against women as Crimes targeted against women with a motive to intentionally harm the victim
psychologically and physically, using modern telecommunication networks such as internet and mo-
bile phones. The operational definition provided by Halder and Jaishankar (2011) of the term Cyber
crimes against women may show the different types of crimes that may be included in this definition:
the operational definition says Cyber crimes against women are:
Crimes done through and/or with the help of telecommunication and information technology, that are
committed against women inclusive of all age group and such crimes
Can be either sexual or non sexual in character;

include online crimes like hacking, morphing, spoofing, obscene publication, cyber stalking, cyber
pornography, internet voyeurism, forceful invasion of privacy, cyber defamation, cyber bullying,
e-mail harassment, cyber blackmailing and threatening, emotional cheating by impersonation in
the internet and intimate partner violence through internet and abetment of such offences;
May not be contended to economic cyber crimes like severe phishing or identity theft;
Done with a criminal motive of intentionally harming the reputation of the victim or causing
physical harm to the victim either directly or indirectly;
The offender and the victim may or may not have prior emotional involvement;
Includes those cyber behaviors which leave the victim traumatized, shocked, even socially se-
cluded and may also cause physical harm;
Can be done by male or even female perpetrator; however, the targeted victim group is adult
women. (Halder & Jaishankar, 2011 )
As it may be seen, the 2015 explanation provided by the UN Broadband Commission of the term
Cyber Violence against women is quite similar to that of the 2011 functional definition of the term
Cyber crime against women as provided by Halder and Jaishankar. Hence considering that the term
cyber crime against women as defined by Halder & Jaishankar (2011) may include the inherent meaning
of cyber VAWG as has been used in the UN Broadband Report, the term cyber crime against women
is used in this chapter as inclusive of both the connotations. As the operational definition and explana-
tions above suggest, the online violence targeting women may include several interpersonal cyber crimes
including cyber stalking, cyber sexual defamation, morphing, creation of fake avatars (Halder, 2013) for
revenge etc. The last of these crimes, i.e., creation of fake avatars for revenge, may include several other
offences including hacking personal computers or mobile phones or social media accounts, unauthor-
isedly accessing digital data, copyright violation regarding personal photographs, creation, production
and distribution of sexually explicit materials or obscene materials online, digital defamation etc.
As the UN Broadband Commission report shows, revenge porn has become one of the major patterns
of online violence against women in the world, especially in India, Pakistan and Bangladesh where inter-
net penetration is higher but awareness about cyber safety and cyber etiquette among men and women is
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comparatively lower.3 It is ironical to note that while some of these offensive cyber behaviors targeting
women may have been recognised by laws of different jurisdictions; some may still remain unattended
by laws. For example, while cyber stalking or creation/distribution/production of child pornography may
have found legal sanctions in laws of several countries, the issue of revenge porn, gender based troll-
ing, adult bullying etc, have not been addressed by laws of many countries including India or Pakistan
or Bangladesh. As such, even though some elements of creation of revenge porn by way of creation of
fake avatars online may have been addressed by laws in India, Pakistan and Bangladesh, revenge porn
as a separate crime still has not been properly addressed by any laws in these three countries. This ar-
ticle argues that with the existing legal setup, women victims may hardly get benefit in all these three
countries because of their patriarchal social setup and trivialisation of such issues by the criminal justice
mechanism (Citron, 2013). Women are often blamed by the police on a preconceived notion of victim
participation in creation of such sort of risky situation for themselves. It is so, mainly because of the
ignorance among the criminal justice officials including the police officials, lawyers and the judges may
themselves be ignorant regarding the issue and also due to lack of Therapeutic Jurisprudential approach of
the laws that are presently being used to deal with cyber violence against women in these three countries.
For this chapter, India, Pakistan and Bangladesh are chosen mainly because of the historical origin
of their general penal laws. Post 1947 when India and Pakistan emerged as two separate nations, both
had their respective penal laws which had common colonial legacy (Baxi, Rai & Ali, 2006). Later when
Bangladesh emerged as a separate country independent from Pakistan, it also had its penal laws based on
the sub-continental colonial legacy. With the development of socio-legal-economic situations in all these
three countries, they had developed their own domestic laws for governing various issues. Internet and
digital communication technology (ICT and DCT) were no exception. All three countries have their own
sets of laws either independently or within general laws to deal with e-commerce, ICT and DCT related
issues including cyber terrorism. Given this common origin of the penal laws, it becomes interesting
to note that neither of these countries have any specific law to deal with cyber crimes against women.
While in India, a bunch of laws including the Information Technology Act, 2000 (amended in 2008),
specific provisions of Indian Penal Code (as inserted by Criminal law amendment Act, 2013), Indecent
Representation of Women Prohibition Act, 1986, Protection of Women from Sexual Offences Act at
Workplace Act, 2012 and the Protection of Children from Sexual Offences Act,2012 are often used to
address various cyber crimes targeting women and girls, Pakistan relies mostly on its Penal Code since
the dissolving of its Internet law;4 Bangladesh again, has several scattered provisions like Bangladesh
Penal Code, Information Technology Act,2006, Pornography Control Act etc, to deal with the issue. But
none of these laws have addressed the issue of revenge pornography by way of creation of fake avatars.
Further, while this author had addressed the problem of revenge porn by way of creation of fake avatars
as a mechanism of online violence targeting women in India, the issue has not been researched from
TJ perspectives in Pakistan or Bangladesh. This chapter aims to fulfil this gap. The two main questions
that this chapter aims to address are:
1. Whether the existing laws in India, Pakistan and Bangladesh are sufficient to deal with the problem
of revenge porn targeting women by way of creation of fake avatars from Therapeutic Jurisprudential
perspectives?
2. How far the application of Therapeutic Jurisprudence be beneficial for women victims in such
cases?
284

This chapter is dived into two parts. The first part broadly explains the problem revenge porn targeting
women by way of creating fake avatars and whether the same is addressed by laws in India, Bangladesh
and Pakistan. The second part addresses the question as why laws dealing with online victimisation by
way of creating fake avatar needs to have TJ values and whether the same is existing in the laws of these
three countries.
PART I: REVENGE PORN TARGETING WOMEN BY

WAY OF CREATION OF FAKE AVATARS
Revenge Porn, also known as non-consensual pornography by some scholars, still waits for a globally
acknowledged definition from socio-legal perspectives. However, one of the earliest definitions of revenge
porn was provided by Halder and Jaishankar (2013) which defined the term as follows:
It is an act whereby the perpetrator satisfies his anger and frustration for a broken relationship through
publicizing false, sexually provocative portrayal of his / her victim, by misusing the information that
he may have known naturally and that he may have stored in his personal computer, or may have been
conveyed to his electronic device by the victim herself, or may have been stored in the device with the
consent of the victim herself; and which may essentially have been done to publicly defame the victim.
Citron and Franks (2014, p. 346) explained the term revenge porn from the perspective of non-
consensual pornography in the following words:
Non-consensual pornography involves the distribution of sexually graphic images of individuals with-
out their consent. This includes images originally obtained without consent (e.g., hidden recordings or
recordings of sexual assaults) as well as images originally obtained with consent, usually within the
context of a private or confidential relationship (e.g., images consensually given to an intimate partner
who later distributes them without consent, popularly referred to as revenge porn). Because the term
revenge porn is used so frequently as shorthand for all forms of non-consensual pornography, we
will use it interchangeably with non-consensual porn.
The 2015 UN Broadband Report explained the term as follows: Revenge porn consists of an indi-
vidual posting either intimate photographs or intimate videos of another individual online with the aim
of publicly shaming and humiliating that person, and even inflicting real damage on the targets real-
world life (such as getting them fired from their job) (UN Broadband Report, 2015, p. 22). All of the
above definitions and explanations of revenge porn may show that revenge porn consists of an image
of the victim which provides embarrassing and maligning information about her, which may be false in
the present day context. This author in her previous research termed this as fake Avatar, which is an
inherent part of revenge porn. Fake Avatar is defined as:
A false representation of the victim which is created by the perpetrator through digital technology with
or without the visual images of the victim and which carry verbal information about the victim which
may or may not be fully true and it is created and floated in the internet to intentionally malign the char-
acter of the victim and to mislead the viewers about the victims original identity. (Halder, 2013, p.188)
285

As Halder (2013) further explains, fake avatars can include stalking (for gathering information about
the victim as well as to create threat to the victim), creation of sexually explicit, obscene and defamatory
materials and can be made either to take revenge for jilted love affair or for professional sabotage. As
such, victimisation by way of creation fake avatar is necessarily connected with revenge porn targeting
women and girls (Halder & Jaishankar, 2013). It is pertinent to note that in all the three countries of
India, Pakistan5 and Bangladesh (Preetha, 2015). Fake avatars, which are also essential parts of cyber
sexual harassment including revenge porn, may also necessarily; be used for ruining the reputation of
women (Halder, 2013; Citron, 2014). Of late, victimisation by way of creation of fake avatars has also
become a trend to create threat for feminist writers, bloggers, politicians and activists. This is particularly
evident in the 2014 report titled Technology driven violence against women: country report, Pakistan
prepared by A Bytes for all (B4A), Pakistan.
In all these three countries (India, Pakistan and Bangladesh) this particular pattern of cyber sexual
harassment of women and girls occur mainly due to easy access to internet and digital communication
technology and social media platforms like the Facebook and Twitter and also WhatsApp (UN Broad-
band Report, 2015). Neither India, nor Pakistan, nor Bangladesh has any official statistics for online
victimisation by way of creating fake avatars to create revenge porn. However, India has official list
of crime reports published yearly by National Crime Records Bureau, which has a specific column for
online sexual harassment of women, but not particularly focussing on revenge porn. Neither the UN
Broadband report provided any consolidated statistics about the numbers of the victims of revenge porn
in these countries. Noticeably, women victims of this pattern of cyber sexual harassment from all these
three countries have a common reason for not to report the crimes, i.e., fear of social taboo not only
for the victim herself, but also for the family as a whole (UN Broadband commission report, 2015).
Further, women victims of these countries have also suffered common trend of secondary victimisation
in the hands of criminal justice administration (including the police and the courts) largely because of
the ignorance among the police and lack of focussed laws (UN Broadband commission report, 2015;
B4A, 2014; Preetha, 2015; Halder & Jaishankar, 2012). Women victims who may have suffered cyber
sexual harassment due to creation and circulation of fake avatars, have also experienced victim blaming
by the police (Halder & Jaishankar, 2012), which have further discouraged them to proceed with their
complaints to the courts.
1. Situational Analysis of Laws in India
In India, Information technology Act, 2000 was brought in by the government in the year 2000 to regulate
e-commerce related issues. Even though this particular provision had a few provisions for regulating
cyber crimes including unauthorised access to computer network, data etc and pornography, including
child pornography, it did not cater the need of regulating online harassment against women fully. It was
only in 2008 when the revamped Information Technology Act, 2000 (amended in 2008) was introduced,
some of the offences including identity theft, cyber terrorism, creation/production/distribution of sexu-
ally explicit materials, obscene materials and child pornographic materials, violating the privacy of the
by body of the individuals etc were recognised under chapter XI of the Information Technology Act,
2000(amended in 2008). However, creation of fake avatars for the purpose of revenge porn or revenge
porn as a whole was not recognised as an offence under this amended version of the law. Any act of
revenge porn was generally categorised as a sexually explicit material as described under S.67 of the
286

Information Technology Act, 2000 (amended in 2008), which should also be booked under S.66E of
the Information Technology Act, 2008 (amended in 2008), which regulated violation of privacy. The
later provision states as follows:
Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any
person without his or her consent, under circumstances violating the privacy of that person, shall be
punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees,
or with both. Explanation attached to this provision further states: (a) transmit means to electronically
send a visual image with the intent that it be viewed by a person or persons;(b) capture, with respect
to an image, means to videotape, photograph, film or record by any means; (c) private area means the
naked or undergarment clad genitals, pubic area, buttocks or female breast; (d) publishes means re-
production in the printed or electronic form and making it available for public; (e) under circumstances
violating privacy means circumstances in which a person can have a reasonable expectation that (i)
he or she could disrobe in privacy, without being concerned that an image of his private area was be-
ing captured; or (ii) any part of his or her private area would not be visible to the public, regardless of
whether that person is in a public or private place.
While the above provisions are gender neutral, S.354B of the Indian Penal Code, introduced vide
Criminal Law Amendment Act, 2013 made voyeurism a woman specific offence where the gender of
the harasser has been limited to males. This provision states that:
Any man who watches a woman engaging in a private act in circumstances where she would usually
have the expectation of not being observed either by the perpetrator or by any person at the behest of
the perpetrator shall be punished on first conviction with imprisonment of either description which shall
not be less than one year, but may extend to three years and with fine, and be punished on a second or
subsequent conviction with imprisonment for either description for a term which shall not be less than
three years but may extend to seven years and also with fine.
The first explanation to the provision explains private act, by including usage of the lavatory and
engaging private sexual activities. The second explanation to the provision states that misuse of the im-
ages of private sexual acts captured with the consent of the victim by any man would be considered as
an offence. It may be noticed that while this particular provision has been used in numbers of occasions
for violating privacy of women, the latest being the case of a police constable, who was caught capturing
images of his woman colleague when she was taking rest in a womens rest room in Madurai, Tamil Nadu
(Special correspondent, 2016) the provision is also used to loosely cover revenge porn, even though the
term revenge porn still remain unrecognised in Indian laws. However, it must also be mentioned here
that this particular provision does not mention the motive behind creation of revenge porn, i.e., to take
revenge. This author has noticed that in several occasions, several resource persons including the police
tend to rely on S. 503 of the IPC which deals with criminal intimidation (read with S.506 IPC which
provides punishment for criminal intimidation, that may include jail term extending to two years or fine
or both) to regulate revenge porn.
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2. Situational Analysis of the Laws in Pakistan
Similar like India, Pakistan does not have any specific laws to regulate creation of fake avatars for the
purpose of revenge porn or revenge porn as a crime against women as a whole. However, Pakistan had
promulgated Prevention of electronic crimes Ordinance in 2007 and then again in 2008. In this law S.13
defines cyber stalking, which broadly includes obscene, vulgar communication, harassment, taking and
distribution of pictures without consent, threatening, displaying or distribution of information and con-
tents which may be harmful for the victim etc.6 it may be noted that even though this provision is aimed
to cover cyber stalking, it has elements for regulating revenge porn also since it prohibits distributing
images or contents, which are harmful for the victim. But as this author understands, this ordinance has
not yet passed as a full fledged law still now.7
Pakistan Criminal code on the other hand, may offer some solace through traditional provisions in-
cluding Ss.293 (punishment for sale etc of obscene contents, books etc), 506 (punishment for criminal
intimidation), 507(punishment for criminal intimidation by anonymous communication), 509 (word,
gesture etc uttered or published to harm the modesty of women) etc (Bytes for all (B4A) (2014). Further,
a provincial law, namely the Punjab Protection of Womens Act, Bill, 2015 also offers remedy for the
issue of stalking and online harassment of women, which broadly includes stalking and cyber crimes
within the definition of violence committed against women in S.2(r). This Bill is further mention worthy
as it provides for protection order under S.7 of the Act which includes restraining the harasser/defendant
from approaching the victim, restraining from committing or abetting the commission of the offence etc.
But in spite of these, the Bill may not cater the needs fully as it does not particularly address the issue
of creation of fake avatars for the purpose of revenge porn.
It is unfortunate to note that there is lack of laws in Pakistan to regulate interpersonal cyber crimes
including creation of fake avatars for taking revenge or revenge porn. Even though several other Bills like
Prevention of Electronic crimes Bill, 2015 had tried to address some issue like identity theft or misuse
of digital data, neither the Bill has been passed as a law, nor has the civil society approved the Bill as a
fitting response by the government to the emerging cyber crimes.
3. Situational Analysis of Laws in Bangladesh
Similar to India, Bangladesh had implemented Information and communication Technology Act, 2006
to recognise issues related to information and communication technology and also to provide establish
regulations for secured networks and regulating online offences. Even though this law does not recognise
revenge pornography as a separate offence, it recognises creation of fake contents with the help of infor-
mation communication technology for defamatory, obscene purposes. S.57 of this Act, which prescribes
for punishment for publishing fake, obscene or defaming information in electronic form, thus states that:
(1) If any person deliberately publishes or transmits or causes to be published or transmitted in the website
or in electronic form any material which is fake and obscene or its effect is such as to tend to deprave
and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear
the matter contained or embodied in it, or causes to deteriorate or creates possibility to deteriorate law
and order, prejudice the image of the State or person or causes to hurt or may hurt religious belief or
288

instigate against any person or organization, then this activity of his will be regarded as an offence. (2)
Whoever commits offence under sub-section (1) of this section he shall be punishable with imprisonment
for a term which may extend to ten years and with fine which may extend to Taka one crore.
It may be noted that this provision does not exclusively prohibit publication of fake contents for realis-
ing interpersonal revenge over women. But it rather broadly covers the issue of creation of fake profiles
or contents which may be used for various motives including defaming, instigating offences or disturb-
ing internal peace or security. From the wordings of the section, it may be assumed that this provision
is more applicable towards creation of offensive contents which may have socio-political ill motives
and not exclusively harassment of women online. However, Bangladesh has also brought in strict laws
to regulate pornography vide Pornography control law, 2012, which was specifically created to prohibit
production, dissemination of pornographic materials engaging children, men and women whose images
may or may not have been captured without their consent and which may be used to gain illegal profit
as well as may be sexually explicit in nature, obscene etc against the societal norms. Even though this
law neither addresses creation of fake avatars for revenge porn purposes, this author feels that the scope
of this law may be extended to regulate revenge porn related issue that this chapter addresses. However,
this must also be noted that similar to India and Pakistan, Bangladesh Penal code also offers several
provisions including punishment for criminal intimidation (S.506), criminal intimidation by anonymous
communication (S.507) punishment for words. Gestures etc to harm the modesty of women (S.509) etc.
Since there is no specific law for regulating creation of fake avatars and revenge porn, it is understood
by this author that these provisions may be broadly used to regulate the issue.
PART II: WHY DO THE LAWS NEED TO BE THERAPEUTIC TO

DEAL WITH REVENGE PORN TARGETING WOMEN?
According to Wexler, the proponent of modern concept of Therapeutic Jurisprudence,
Therapeutic Jurisprudence (TJ) concentrates on the laws impact on emotional life and psychological
well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal
actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does
not suggest that therapeutic concerns are more important than other consequences or factors, but it
does suggest that the laws role as a potential therapeutic agent should be recognized and systemati-
cally studied.8
As such, from the above discussions about revenge porn and fake avatars as component part of revenge
porn, it may be understood that revenge porn is an emotional crime, which is done on the impulse of
anger and frustration and also affects the emotional wellbeing of the victim. But as the above discussion
suggests, it may be seen that the available laws in all the three countries do not cater the needs to regulate
creation of fake avatars for the purpose of revenge porn fully from the TJ perspectives. The existing laws
are retributive in nature prescribing jail term or monetary fines. It may be understood that in the US,
revenge porn has been recognised as an offence in several provinces (Citron, 2014). But simultaneously,
attempts are also being made to address the issue in a restorative way. In this regard the efforts made
by Cyber Civil Rights movements must be mentioned. This particular movement aims towards resolv-
289

ing the issue of revenge porn by several thought provoking restorative process including application of
restraining orders by the courts, which may prevent the harasser from approaching the victim as well as
misuse the information already shared by the victim, ordering the perpetrator to take efforts to remove
the contents from the websites and involving the web companies to take down the offensive revenge porn
materials. Further, Professor Daniele Citron, one of the forerunners of the cyber civil rights movements,
had also proposed for positive Google bombing, which will ensure only positive information about the
victim may surface on the internet eclipsing the negative information. Neither in India, nor in Pakistan,
nor in Bangladesh have such initiatives been adopted by either the lawmakers or the courts.
The existing laws which are retributive in nature may only prevent the harasser from uploading or
further dissimilating revenge porn materials especially when the perpetrator is ordered for a jail term.
But what the laws in all these three countries have failed to note is, there is no effective mechanism
to pull down the offensive contents fully from the internet to provide total solace to the victim. Even
though the procedural laws in all these three countries do prescribe for police to contact the websites for
further details and the web companies also provide their own mechanism to cooperate with the police
and criminal justice machinery of particular countries, practically it may never provide full satisfaction
to the victim. As has been discussed in the above paragraphs, there may be several reasons for this,
including lack of knowledge on part of the police and reluctance of the victims to report the matters or
proceed in the formal criminal procedural methods.
This author feels, these particular issues in the laws of all the three countries not only make inefficient
to regulate the issue of revenge porn, but also anti-therapeutic. As Professor David Wexler, the proponent
of Therapeutic Jurisprudence (TJ) had explained, the principles of Therapeutic Jurisprudence sees laws
as healing instruments for harms committed to victims. TJ involves several actors including the lawyers,
the judges, the victims, social workers and also in certain cases, the perpetrator to resolve the issue in
a way which may have restorative effects (Wexler 2012). In this framework, the courts may consider
applying the laws, especially procedural laws in all the three countries towards effective management
of revenge porn cases. it must be understood that unlike the US, India, Pakistan and Bangladesh have
more orthodox societies where existing laws may fail to help the victims unless they and their families
cooperate with the criminal justice machinery. Reporting of the crime may enable the police to initiate
the investigation, but inefficient laws may not be able to prescribe right solution for the issue. The vic-
tims may prefer to end the proceedings at the police station itself with police mediation. In such cases,
this author has observed that the police may simply warn the perpetrator and ask him to remove the
contents from the websites. But the existing laws do not specifically prohibit storing of revenge porn
materials in ones devices.
The criminal justice machinery as a whole, must interpret the laws in its broadest form to make the
perpetrator realise the primary offence, i.e., to create threat in the minds of the victims by storing the
contents which may be misused in future to take further revenge. It may be noted that Pakistan had at-
tempted to enforce laws such as laws ordering restrainment, which may have TJ effect. But only when
such laws are brought into existence, the effectiveness of the same may be experimented in cases of
revenge porn if and when victims prefer to cooperate with the courts. Further, it must be understood
that when laws prescribe jail term for creation of fake avatars for revenge porn, it not only makes the
sentencing an example for the society as what can be the result, but also for the criminal to understand
mental pain, anger of victim. But at the same time, the question is, can the criminal really understand
the pain of the victim? Such realisation may be reached only when there is a victim-offender interaction
session mediated by the courts and other important actors including volunteers and counsellors who may
290

help the victim to explain exactly what sort of traumatisation she had gone through and how it should
be resolved. But while doing this, the courts must not allow the accused criminal to compensate the
victim with a lump sum with no promises to not to repeat the offence in future. Here comes the courts
role to play as a TJ agent to effectively plan for rehabilitation of the offender and also the victim. The
existing laws of all the three countries prescribe for monetary fines. The courts can effectively use this
to award victim compensation especially when the victim has lost her job or when her marriage has
broken making her in a critical financial position where she may have to support not only herself, but
also her children. Further the existing laws in India and Bangladesh especially also prescribe for bail for
online offences, the scopes of which may be broadened to cover revenge porn. Similarly, the existing
provisions of Pakistan criminal code, which may be used to regulate the issue loosely in the absence of
focussed laws, also prescribe bails. But this must be understood that in cases of revenge porn, order for
bail may create threat in the minds of victim since there always remains a possibility of attacking the
victim again under anonymous veil by the harasser. In such cases, the courts must consider applying
conditional bails restraining the harasser from engaging in any such activities.
CONCLUSION
It needs to be noted that neither India, nor Pakistan, nor Bangladesh has laws focussing on regulating
revenge porn exclusively. While in India, the issue is loosely managed with laws regulating sexual of-
fences on internet including voyeurism, Pakistan does not have any law to regulate online crimes target-
ing women and Bangladesh offers little respite through limited scopes of pornography laws. Also, in
India, some researchers and activists are working towards spreading awareness regarding effectiveness
of application of TJ principles in regulating online harassment including revenge porn targeting women
among the police and judicial officers (see Halder & Jaishankar, 2013), this author could not find such
initiatives in Pakistan and Bangladesh. It is expected that if the governments of these three countries
consider creating laws focussing on online harassment including revenge porn targeting women, the
courts may consider testing the TJ effects of the same.
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ENDNOTES
1
See http://www.broadbandcommission.org/Documents/reports/bb-wg-gender-discussionpaper2015-
executive-summary.pdf.
2
See p 6 ibid.
3
ibid
4
See Bytes for all (B4A) (2014). Technology driven violence against women: country report, Paki-
stan. Available @ www.http//content.bytesfarall.pk/node/191.
5
See ibid
6
See S.13 of the Pakistan had promulgated Prevention of electronic crimes Ordinance.
7
For more information on this see pg 4, Bytes for all (B4A)(2014), Technology driven violence
against women: country report, Pakistan.
8
See https://law2.arizona.edu/depts/upr-intj/.
292
335
About the Contributors
Debarati Halder, PhD, is an Advocate and legal scholar. Currently, she is Research Officer, Unit-
edworld School of Law, Ahmedabad, Gujarat; Honorary Managing Director of the Centre for Cyber
Victim Counselling (CCVC), India (www.cybervictims.org). She received her LLB from the University
of Calcutta and her masters degree in international and constitutional law from the University of Madras.
She holds a PhD degree from the National Law School of India University (NLSIU), Bangalore, India.
She has co-authored two books titled Cyber Crime against Women in India (Sage, November 2016)
and Cyber Crime and the Victimization of Women: Laws, Rights and Regulations (IGI Global, July
2011). She has published many articles in peer-reviewed journals and chapters in peer-reviewed books.
Her work has appeared in scholarly journals, including the British Journal of Criminology, Journal
of Law and Religion, Victims and Offenders; Murdoch University E-Journal of Law; ERCES Online
Quarterly Review; TMC Academic Journal (Singapore); Temida and Indian Journal of Criminology &
Criminalistics; and edited volumes, Crimes of the Internet, Trends and Issues of Victimology, Cyber
Criminology. She has presented her research works at many international conferences including the
Stockholm Criminology Symposium held during June 1113, 2012 and the International Conference on
Social Media for Good, held during May 15-16, 2015 at Istanbul, Turkey. She was a resource person in
various programmes conducted by the National Commission for Women, unicef, Facebook, Kerala State
Commission for Protection of Child Rights, Rajiv Gandhi National Institute for Youth Development,
Women Christian College (Kolkata & Chennai), Loyola College, North Eastern Police Academy, Assam
State Child right protection council and Manonmaniam Sundaranar University, Tirunelveli. Debaratis
research interests include constitutional law, international law, victim rights, cyber crimes and laws.
K. Jaishankar (Jai), PhD, is presently the Professor and Head of the Department of Criminology
at the Raksha Shakti University (Police and Internal Security University), Ahmedabad, Gujarat, India.
Prior to this present position, Professor Jai served as a faculty member at the Department of Criminol-
ogy and Criminal Justice, Manonmaniam Sundaranar University, Tirunelveli, Tamil Nadu, India. He is
the recipient of the prestigious National Academy of Sciences, India (NASI) SCOPUS Young Scientist
Award 2012 Social Sciences and ISC S. S. Srivastava Award for Excellence in Teaching and Research
in Criminology. Professor Jai was a Commonwealth Fellow (2009-2010) at the Centre for Criminal Jus-
tice Studies, School of Law, University of Leeds, UK, and has completed a research project on victims
of cyber crimes. He is the founding Editor-in-Chief of the International Journal of Cyber Criminology
(www.cybercrimejournal.com) and Editor-in-Chief of International Journal of Criminal Justice Sci-
ences (www.ijcjs.com). He is the founding President of the South Asian Society of Criminology and
Victimology (SASCV) (www.sascv.org) and founding Executive Director (Honorary) of the Centre for

Cyber Victim Counselling (CCVC) (www.cybervictims.org). He was a member of the UNODC (United
Nations Office of Drugs and Crime) Core Group of Experts on Identity-related Crime (2007-08). He
is a member of the Membership and Advancement Committee, World Society of Victimology (WSV);
International Advisory Board for the Center for the Research and Development of Positive Criminology,
Department of Criminology, Bar Illan University, Israel; Advisory Board for the Center for Cybercrime
Studies, John Jay College of Criminal Justice, New York, USA; the International Cybercrime Research
Centre, Simon Frazer University, Vancouver, Canada; and the Scientific Commission of the International
Society of Criminology (ISC); as well as Fellow of the African Center for Cyberlaw and Cybercrime
Prevention. He was a discussant in the Opening Discussion: Focusing on Victims of Crime Com-
paring Crime Patterns and Improving Practice, Researchers Advice to Policy of the 2012 Stockholm
Criminology Symposium, and responded to questions of Beatrice Ask, Swedish Minister for Justice,
and Paula Teixeria da Cruz, the Portuguese Minister for Justice. He was a Keynote Speaker at the 15th
World Society of Victimology Symposium held July 2015, at Perth, Australia, and at the 14th World
Society of Victimology Symposium held in May 2012, at The Hague, The Netherlands. He was recently
appointed as an International Ambassador of the British Society of Criminology (BSC). He is founder
of the academic discipline, Cyber Criminology (2007), and is the proponent of the Space Transition
Theory of Cyber Crimes (2008). His areas of Academic Competence are Victimology, Cyber Criminol-
ogy, Crime mapping, GIS, Communal violence, Policing, and Crime prevention.
***
Johnson Oluwole Ayodele is a lecturer and faculty member, Department of Sociology, Lagos State
University, Nigeria. He holds a PhD in Sociology from the University of Ibadan, Nigeria. His research
interests include Criminology, Victimology, Social Problems, Social Work, Sociology of Education and
Sociology of Mass Communication. He is passionate about victims crime reporting practices to both
informal structures of crime control and the police. He has done extensive work on these in Lagos, some
in Ogun, Oyo and Osun states of Nigeria. His work focuses on social responses to victimization, police
attitudes to victims, women as victims of widowhood, fuel subsidy withdrawal injustice and marital
rape. Ayodele has some of his works published in reputable local and scholarly international journals.
R. Rochin Chandra is an MPhil Candidate in Criminology at the Institute of Research and Develop-
ment & Department of Criminology, Raksha Shakti University, Ahmedabad, Gujarat, India. He received
his Masters degree in Criminology & Criminal Justice Science from Manonmaniam Sundaranar Uni-
versity, Tirunelveli, Tamil Nadu, India. In his Masters degree, he received the prestigious Prof. Stanley
Yeldell Gold Medal and he was recognized as a Young Change Maker in India. He also serves as an
editorial assistant of the International Journal of Criminal Justice Sciences and the International Journal
of Cyber Criminology.
Helen Crewe is a Criminologist, consultant and independent researcher. She is qualified with a Mas-
ters Degree in Forensic Psychology and Criminology. She is the founder of an international network
and blog which aims to support researchers and practitioners with issues relating to women in prison.
She has worked as a teacher within male and female prisons in England. This experience has motivated
her to explore ways that the conditions and treatment for women in prison can be improved.
336
Theo Gavrielides, PhD, is the Founder and Director of The IARS International Institute and the
Founder and co-Director of the Restorative Justice for All Institute (RJ4All). He is also an Adjunct
Professor at the School of Criminology (Centre for Restorative Justice) of Simon Fraser University as
well as a Visiting Professor at Buckinghamshire New University. Professor Gavrielides is the Editor-
in-Chief of the peer-reviewed International Journal of Human Rights in Healthcare, as well as of the
Youth Voice Journal and the Internet Journal of Restorative Justice. Professor Gavrielides is a Trustee
of the Anne Frank Trust, an Advisory Board Member of the Institute for Diversity Research, Inclusiv-
ity, Communities and Society (IDRICS) and a Member of the Scrutiny and Involvement Panel of the
Crown Prosecution Service (London). Previously, Professor Gavrielides was the Chief Executive of Race
on the Agenda, a social policy think-tank focusing on race equality. He also worked at the Ministry of
Justice as the Human Rights Advisor of the Strategy Directorate. There, he led on the Human Rights
Insight Project, which aimed to identify strategies that will further implement the principles underlying
the Human Rights Act 1998 and improve public services. He also advised on the Ministrys Education,
Information and Advice strategy. Professor Gavrielides has published extensively on social justice issues,
restorative justice, equality and race equality, human rights and youth justice and he is currently working
on two books. Race, Power & Restorative Justice: The dialogue we Never Had and The Routledge
Handbook of Restorative Justice (Ed.) (Both forthcoming, Routledge, 2018).
Roslin Growe, PhD, is presently a Full Professor at University of Louisiana at Lafayette, USA. Profes-
sor Growe earned a Bachelor of Science in Education degree in Speech/Drama and Library Science in
l972 from Ouachita Baptist University, a Master of Science in Secondary Education degree in 1975 from
Ouachita Baptist University, a Master of Library and Information Science degree from the University
of Mississippi, and a Ed.D degree from Mississippi State University in Educational Administration and
Supervision in May 1986. She accepted a position as assistant professor at the University of Louisiana
at Lafayette in August 1986 where she taught education and educational leadership courses, supervised
student teachers, published and presented research on the state, regional, national and international level.
In the fall of 2003 she was appointed department chair of Educational Foundations and Leadership and
remained in that position for eleven years. In 2015 she received the Frank T. Hawkins Distinguished
Scholar award in Washington, D. C. Professor Growe is the past president of the Louisiana Council of
Professors of Educational Administration, and she serves on the executive board of the Research As-
sociation of Minority Professors and is on numerous editorial boards. Her scholarly pursuits are in the
areas of women in education and leadership; toxic and uncivil work environments in higher education;
and race, gender and class issues in education.
Martine Herzog-Evans, PhD, (aka Herzog-Evans) is a Law Professor at the University of Reims,
France where she teaches law and criminology. She has also taught at the Universities of Paris II
(Panthon-Sorbonne), and Nantes. She is still an assistant professor at Bordeaux IV/National Prison
Academy. Her majors are criminal law, sentences, probation, prisons and re-entry. She has published
extensively (see http://herzog-evans.com). Her latest books are Droit de lexcution des peines, Dalloz,
Paris, 2016, 5th ed. (Sentences implementation law), French reentry courts and rehabilitation: Mister
Jourdain of desistance, Paris, lHarmattan (in French, 2013 and English, 2014); and (edited), Offender
release and supervision: The role of courts and the use of discretion, Nijmegen, Wolf Legal Publishers,
2015. She is a member of the European Society of Criminology and works with three of its subgroups:
Community Sentences and Measures; Sentencing; and Prisons. She regularly trains CJS practitioners
337
(probation officers, reentry and release judges and prison staff). The main focus of her research is pro-
bation, prison, and supervision practitioners, with legitimacy of justice-procedural justice, therapeutic
jurisprudence, and desistance as theoretical compasses. She was a working group leader with the U.E.
COST Action ISE1106 Offender Supervision in Europe (2013-2016). She has consulted with the
French National Assembly, the Senate, the law commission of the National Assembly, the National Hu-
man Rights Commission (Prime Ministers services), and the French Prison Services and worked for
the Council of Europe (as a co-redactor of the Recommendation CM/Rec(2012)12 of the Committee of
Ministers to member States concerning foreign prisoners).
Hina Kousar, PhD, studied social work and did her Doctorate from Jamia Millia Islamia, New
Delhi, India. She has experience in academia and NGO activity. Presently she is employed with as vic-
tim advocate in DARCC, Dallas. She has also worked as researcher in YWCA Dallas on many research
projects ranging from breast cancer to micro-credit financing among women. She has been associated
with international organizations like Taxes Muslim women foundation and Galveston women studies
center of university of Taxes at Dallas. Her research interests are mental health, trafficking, substance
abuse, and women empowerment.
Yomi Rasul Olukolu, PhD, is a Lecturer, Department of Jurisprudence & International Law, and
Sub-Dean, Faculty of Law, University of Lagos, Lagos, Nigeria. He attended the University of Lagos,
Lagos, Nigeria and graduated LL.B Hons (Second Class Upper) and Master of Laws (LL.M). He also
obtained a Master of Public & International Affairs (MPIA) from the same University. He received his
M. Phil and Ph.D Degrees both in International law from the Obafemi Awolowo University, Ile Ife,
Nigeria. Prior to his teaching position, he had worked as the Assistant Manager, Legal Services with
UAC of Nigeria Plc and as a Legal Counsel with Conoil Plc. He was also a Legal Practitioner in one of
the biggest commercial law firms in Lagos, Dr. G. Elias (SAN) & Co. He had also served as the Senior
Special Assistant to the Governor of Lagos State, Nigeria. His research areas include international humani-
tarian law, public international law, Immigrations law, Conflict of laws, Jurisprudence, and Islamic law.
William A. Person, PhD, received his bachelors degree from Johnson C. Smith University in Char-
lotte, North Carolina, and his masters and doctoral degrees from the University of Georgia in Athens.
For several years, he served on the faculty of Mississippi State University in the Department of Cur-
riculum and Instruction and held rank of Assistant, Associate, and Professor of Curriculum and Instruc-
tion. In addition to his teaching and research responsibilities, Professor Person served the university as
a graduate school administrator for over 20 years (1991-2011). In 2011, Professor Person assumed the
position of Dean of the Graduate School at Alabama State University and Professor of Curriculum and
Instruction. Professor Person has served as President of the Conference of Southern Graduate Schools
(CSGS); President of the Research Association of Minority Professors (RAMP), a national organiza-
tion of interdisciplinary research scholars; and, currently, he is serving as President of the Council of
Historically Black Graduate Schools (CHBGS). His research focus for several years has been in the area
of incivility in the university workplace.
Michael Pittaro, PhD, is a 28-year criminal justice veteran, highly experienced in working with
criminal offenders. Before pursuing a career in higher education, Dr. Pittaro worked in corrections ad-
ministration; has served as the Executive Director of a county outpatient drug and alcohol facility; and
338
as Executive Director of a county drug and alcohol prevention agency. Dr. Pittaro has been teaching at
the university level (online and on-campus) for the past 15 years while also serving internationally as
an author, editor, presenter, and subject matter expert. Dr. Pittaro holds a BS in Criminal Justice (Whos
Who Among University Students 1989); an MPA in Public Administration (Summa Cum Laude); and
a PhD in criminal justice (4.0 GPA Magna Cum Laude). Dr. Pittaro has contributed to nearly 50 book
and scholarly journal publications and serves on three International Editorial Advisory Boards, including
the International Journal of Criminal Justice Sciences, the International Journal of Cyber Criminology,
and Elsevier Publishing. He has also served for the past three years as a program committee member for
the International Conferences of the South Asian Society of Criminology and Victimology (SASCV)
and as a federal grant peer reviewer for the United States Department of Justice and National Institute
of Justice. Dr. Pittaro also serves as a corrections subject matter expert with Pearson publishing, Savant
Learning, McGraw Hill, Cengage Learning, and countless others. He is a regular contributor to In Public
Safety, Corrections One, the Huffington Post, and is often interviewed on Tier Talk Internet radio. Dr.
Pittaro is a full time faculty member with American Military University, an adjunct professor with East
Stroudsburg University and Northampton Community College, and serves as an adjunct professor with
Bethel University teaching Police Officers and Corrections Officers. He has presented at the International
Conference to Combat Human Trafficking, the Academy of Criminal Justice Sciences Conference, the
Southern States Correctional Association Conference, the New Jersey American Corrections Associa-
tion, and in November 2016, at the North Carolina American Corrections Association. He resides in
Nazareth, Pennsylvania, USA with his two sons (Dakota and Darrian).
Divya Priyadarshini is a Guest Faculty at Maitreyi College and Hindu College, University of Delhi
in the Department of Sociology. She was a UGC-Senior Research Fellow at the Department of Sociol-
ogy, Delhi School of Economics, University of Delhi and is awaiting thesis defense for her Doctoral
thesis titled A Study of Displacement of Slum-Dwellers in the Delhi Region. Hailing from a Crimi-
nology background, she has been into research since 2010 and has worked on issues relating to women,
urban jurisprudence, slums, policy research and deviancy. She has presented at various national and
international seminars and conferences and also been awarded a Silver Medal for a best research paper
at the Scientific Session of the 34th All India Conference of Criminology (February, 2011) of the Indian
Society of Criminology (ISC). She has worked as a Research Assistant in association with Housing and
Land Rights Network, New Delhi on a report to highlight the myriad complexities and human rights
violation that occur in the name of evictions and resettlement. The report has been published under the
title Forced to the Fringes. Her recent publication Connotations of Relocated Slums on Drug Abuse,
Alcoholism: A Sociological Study of Delhi tries to delve into the impact eviction and relocation has
over tendencies of Drug abuse and other deviant behavior. She is an ethnographer and criminologist, and
her future aspiration is to contribute to the field of academia and do practical works relating to women,
urban and environmental jurisprudence and policy.
Sawsan El Sherif, PhD, is a Social and Educational Expert and an Associate Researcher at the so-
cial research center, American University at Cairo, Egypt. She has a PhD in Education foundation, with
experience in building learning city certified from UNESCO. She is a Consultant to a number of NGOs
working in the areas of social development, womens issues (economic empowerment, social, personal
status), childrens issues (child rights, child protection, street children, child labor). She has vast experi-
ence in designing and implementation of research projects in the fields of humanities, and in the field
339
of Islamic studies. She is a specialist in qualitative researches, data analysis, training, monitoring and
evaluating, and fund raising. She is a Board member of the Human Future Society, and the Eve future
Association, member in the Arab Net work for literacy and adult education, and member of the Egyptian
Association for Mental Health. She won awards and recognition from the Society of Ahmed Bahaa Eddin
Friends in 2005-2006, for the book Scientific Research Utopia: Academic Freedom.
Jean de Dieu Sikulibo, PhD, currently is a Senior Associate at Bona Fide Law Chambers, Kigali-
Rwanda. Dr. Sikulibo received his PhD in international law from the University of Strathclyde, UK in
2016, his LL.M in international law from the University of Cape Town, South Africa in 2010 and his
LL.B from the National University of Rwanda (now University of Rwanda) in 2007. In addition to his
teaching, Dr. Sikulibo engages in scholarship on recent developments in international criminal law, with
an emphasis on the jurisprudence of the international criminal tribunals and courts in relation to inter-
national crimes, rights of the victims and accused, procedural and evidentiary issues. He has served as
a legal assistant at the Supreme Court of Rwanda and as a legal officer in the department of access to
justice at Lawyers without Borders Mission in Rwanda. He also served as a visiting lecturer at the Kigali
Independent University and the University of Lay Adventists of Kigali in Rwanda. During his doctoral
studies, he also served as a Tutor of Law and Society at the University of Strathclyde, UK.
Cheri Tarutani, MSW, LCSW, is a Practice Coordinator with the School of Social Work Distance
Education program, University of Hawaii Manoa (UH) and an Instructor at the Myron B. Thompson
School of Social Work, University of Hawaii Manoa, USA. As a faculty member, she is responsible for
practicum and teaching practice courses to graduate social work students on the neighbor islands. She
has developed classes, trainings and resources using online modalities. Prior to joining the staff at UH,
she was a Child and Adult Protection Specialist for Child Welfare Services for 6 years. During that time,
she was the designated Family Drug Court worker and was part of the Family Drug Court team that
was awarded the Natural Collaborative Leader Award in 2004 from the Mediation Center of the Pacific.
Ms. Tarutani has also been a court appointed custody evaluator for the last 8 years. Ms. Tarutani has a
Bachelor of Arts in Womens Studies from the University of California, Los Angeles and a Masters in
Social Work from the University of Hawaii, Manoa. Her Interests are Forensic social work practice and
restorative justice.
Amit Gopal Thakre is presently working as a Trained Criminologist (Consultant) in the Depart-
ment of Criminology, Raksha Shakti University, Ahmedabad, Gujarat, India and providing consultancy
services to the Ahmedabad City Police. Prior to the present position, he served as Research Consultant
at the National Human Rights Commission of India, New Delhi, India. He was a UGC - Junior Research
Fellow at the Department of Criminology and Criminal Justice System, Manonmaniam Sundaranar Uni-
versity (MSU), Tamil Nadu and he is awaiting thesis defense for his research on Community Policing.
He is an alumna of LNJN National Institute of Criminology and Forensic Science, New Delhi. Earlier
to joining Doctoral Program as JRF in MSU, he was lecturer in Institute of Forensic Science, Nagpur
University and Guest Faculty in Bihar Judicial Academy. His research interests are crime prevention
and innovative interventions.
340
Marta Vides Saade, PhD, is currently Associate Professor, Law and Society, Ramapo College of
New Jersey where she has served since 2004, and Member, California Bar State Bar Association, inac-
tive, in good standing. During her time at Ramapo, she served as Director, College Honors Program,
Ramapo College of New Jersey, (2008 to 2012). Her additional work includes as time as Lecturer in
Law, Stanford Law School/Gould Negotiation and Mediation Program, 1996-2004, where she also served
as Coordinator of Teaching Methodology, for the Building Legal Capacity in Latin America Project, a
joint project of Stanford Law School and Centro de Investigacin y Docencia Econmicas Divisin
de Estudios Jurdicos, sponsored by Hewlett Foundation from 2002-2004. Her work also includes legal
practice in human rights such as class action prison reform litigation as Directing Attorney of the Public
Interest Law Firm in San Jose, CA, from 1988-1991, and representing children as Managing Attorney
of Legal Services for Children in San Francisco, CA, from 1987-1988. Dr. Vides Saade holds a Master
of Divinity (M.Div.) and served as a federal Contract Chaplain from 1993 -1995. Dr. Saade in her long
career has received several awards such as Small College Website Award, First Place, National Colle-
giate Honors Council, Director, College Honors Program (2011), Women Leaders of RCNJ, Beta Kappa
Sigma, Black and Latina Sorority (March 2007), John Minor Wisdom Professionalism and Public Interest
Award, American Bar Association, Litigation Section, Chicago, IL (1991), and Public Interest Lawyer
of the Year Award, Santa Clara University, School of Law (1991).
Lorenn Walker, JD, MPH, is a public health educator and restorative lawyer who develops, imple-
ments, researches and publishes the results of social learning processes using restorative justice and
solution-focused approaches. She has extensive educational, social service and legal experience. Lorenn
uses a public health approach with organizations and individuals in finding positive solutions for dif-
ficulties and increasing performance. Lorenn is an expert in designing and facilitating effective learning
programs. Her recent work has focused on reentry for incarcerated people, substance abuse, violence
prevention, and reconciliation for people harmed by wrongdoing and social injustice. She is on the Ful-
bright Specialist roster until 2018 for international peacemaking training, administers Hawaii Friends
of Justice and Civic Education, and teaches speech courses for the University of Hawaii Honolulu
Community College. More about her works can be seen at www.lorennwalker.com.
341
342
Index
A D
Academic Mobbing 182, 185, 187-188, 195-196 displacement 264-265, 267, 269, 272-278
academy 57, 102, 182-183, 185-187, 189-190, 192- domestic violence 10, 12, 15, 37, 40, 45-46, 60, 65-68,
193, 196-197 70-71, 74-80, 82, 84-87, 94, 98-105, 107-110, 119-
activists 20, 75, 145, 248-253, 256-259, 261, 263, 120, 122, 130, 136, 144, 148, 162, 167, 200, 211
286, 291 Dysfunctional Leadership Behaviors 182, 197
anti-therapeutic consequences 130, 151, 248, 252-254,
256-257, 259, 263, 289 E
B Evidence-Based Practices 85, 98
Bangkok Rules 248-259, 262-263 F

Bangladesh 206, 239, 282-286, 288-292
fake avatars 282-286, 288-290
C France 54, 85-87, 90, 92-94, 99, 187
child sex tourism 126, 128 G

children 3-8, 11-12, 14-15, 30, 32, 35, 40-42, 45, 49,
51, 53, 57-58, 65, 67, 69, 72-73, 81, 83-84, 87, gender 3, 25, 28-29, 33, 40, 44-46, 50-51, 53, 57-62,
90, 94-95, 97, 100, 102-103, 121-122, 126-130, 67, 69, 73, 75, 77-80, 85, 87-88, 93, 97, 99, 103,
132, 153, 155, 174, 178, 199, 218, 223, 235, 241, 106-107, 109-110, 114, 119, 122-123, 125, 144,
249, 253, 275-278, 284, 289, 291 147-151, 155, 157, 162-170, 180, 187, 190, 195-
Convention on the Elimination of all forms of 196, 202, 207-212, 218, 220, 223, 235, 243, 249,
Discrimination against Women 1-2 260, 265, 272, 275-279, 284, 287
crime 9, 38, 45-50, 52, 54, 56-61, 65-66, 68-77, 79- Gender Identity discrimination 169-170
82, 86, 89, 97, 100-101, 104, 110, 112, 114, 116,
118-124, 127, 130, 132, 137-138, 140-141, 144- H
145, 148, 172-173, 175, 180-181, 199, 202-203,
209, 215, 218, 222-223, 228, 236, 241-242, 245, honour killing 30-32, 38
251-252, 257, 259-260, 283-284, 286, 288-291 Hostile Workplace Environment 182, 197
culture 3-4, 7, 24-25, 28, 35, 40, 44, 48, 51, 53-54, 61, human dignity 53, 147, 151, 169, 175, 281
75, 87, 90, 94, 102, 113, 122, 131, 151, 192, 194, human trafficking 121-122, 124, 129-132, 148, 174, 209
196, 202-203, 205, 252-253, 256-257, 259, 263
Cyber Violence against women 282-284, 292
Index
I P
Imperfect Obligations 147, 150, 153, 165-166, 169 Pakistan 217, 282-286, 288-292
incivility 183, 187, 192, 194-195, 197 peer 82, 129, 184, 190-191, 197
India 30-35, 37-42, 135-140, 144-145, 169, 171-175, perfect obligations 153, 169
177, 179-181, 198-199, 202-203, 210-211, 264, policies 5, 9-10, 50, 74, 83, 89, 106, 138, 143, 150,
266, 269, 272-273, 277-286, 288-292 155-156, 162, 185, 190, 208, 217, 252, 254, 264-
international criminal justice 59, 144-145, 214-215, 267, 269-270, 272, 274-275, 277-280
219-220, 222, 224-227, 229-233, 241 pornography 121, 125-132, 138, 283-286, 288-289, 291
international non-state legislation 248-253, 256-258, Price Waterhouse v. Hopkins 147, 155, 157-159, 163,
263 167-168
Interpersonal Violence 78-79, 85-86, 101, 103-104, Prima Facie 166, 169
211-212, 236 problem solving courts 30, 37, 39-40
Intersectionality 75, 147, 162-166, 169 prostitution 45, 121-123, 125-130, 199, 217
interstitial spaces 147, 151, 162-163, 165-166, 169 Pyrrhic Victory 44
Interstitial Spaces Microaggressions 147
intimate partner violence 63, 65, 67-69, 72, 74-75, Q
77, 79, 82, 84, 101, 103-105, 148, 198, 204, 283
intimate partners 44, 123 quid pro quo 155, 170, 200, 206-207
J R
judiciary 95, 130-131, 135-137, 143, 145, 264-265, rape 4, 10-12, 46, 52, 58, 86, 137, 144, 180, 199-202,
272-274, 277-278 204-205, 210-212, 214-224, 226-236, 239, 241-
243, 248-249
L reproductive rights 1-3, 7-10, 12-13
Restorative Justice (RJ) 37, 44, 47-50, 54-63, 65, 69-
Legal Landscape 254, 263 84, 106-107, 110, 115-120, 144, 165, 169-170,
Local Context 248, 263 226, 233
love marriages 30-39 retributive justice 37, 44, 48-49, 52
revenge porn 282-292
M
S
mandatory arrest 65-66, 74-75, 83, 85, 148, 162
micro-aggressions 147-150, 162, 164, 169 sex discrimination 5, 147, 162, 165, 168, 170
sex trafficking 121-124, 126-127, 129-133
N sexting 121, 129-130
sexual assault 10-11, 45, 67, 108, 122, 141, 143-145,
Nelson Mandela Rules 248, 251, 257-259, 261, 263 199-202, 204, 206, 210-212, 217, 220, 236, 240,
Nigeria 1-6, 8-14, 44-47, 49-62 243, 249
sexual harassment 12, 45, 108, 135-140, 143-145, 155,
O 170, 188, 198-204, 206-212, 286, 292
Sexual Harassment Complaint Committee 198
offenders 37, 44, 46-52, 54-57, 60-61, 63, 65, 67, 69-75, sexual harassment policy 198, 208
88-91, 93-98, 101, 103, 105, 109, 111, 114, 116, sexual violence 68-69, 83-84, 105, 108-109, 141, 148,
118-119, 130, 132, 136, 143, 180, 211, 248-249, 198-206, 209-212, 214-236, 239-244, 246
251, 253, 258, 260, 262-263 slavery 41, 108, 121-122, 129, 132, 164, 173-174, 218
343
Index
slum-dwellers 264-266, 270-274, 276-278, 281 V

slums 264-274, 276-281
social healing 44, 56 victims 16, 37, 39-40, 44-54, 56-57, 59, 61, 63, 65,
stakeholders 31, 38-39, 48, 52-54, 72, 99, 138, 142, 67-75, 77, 79, 83, 87, 89-93, 95-97, 99, 104,
170, 210, 248-250, 252-254, 256-259, 263 108-116, 118-119, 122-124, 126-131, 135-137,
stalking 86, 95, 137, 144, 198-199, 204, 282-284, 140-145, 148, 171-173, 175-181, 186-188, 198-
286, 288 199, 202-203, 206-207, 210, 214-243, 245-247,
subordinate 3, 150, 184, 187, 190-191, 197, 199, 207 250, 264, 266, 282, 284, 286, 290
Subtle Hostile Treatment 189, 197 victims of crimes 70, 214-215, 220
superordinate 184, 187-188, 190-191, 197 violence 3-5, 8, 10, 12, 15-16, 24-25, 27, 30, 34, 36-37,
39-40, 44-46, 50-54, 57-58, 60-63, 65-90, 93-95,
T 97-110, 114-116, 119-122, 125, 128, 130, 136,
141, 144, 148-149, 162, 166-168, 176, 180, 198-
terrorism 79, 87, 89, 92, 103, 124, 217, 236, 284, 286 206, 208-212, 214-236, 239-244, 246, 249-254,
therapeutic 1-2, 9, 13-16, 24, 27, 30-31, 35-37, 40-41, 261-262, 264, 277, 279, 282-284, 286, 288, 292
74, 79, 106-107, 121, 130-133, 135-137, 140- violence against women 3, 5, 15-16, 27, 30, 45-46, 52,
148, 150-152, 156, 164, 169, 171-173, 176-182, 58, 60-63, 65, 69-77, 79, 81-86, 100-101, 103-
191-192, 198, 208, 214-215, 219, 221-222, 224, 106, 108, 115-116, 119-120, 125, 148-149, 166,
226-229, 232-233, 238-239, 248-254, 256-264, 168, 199, 201-202, 211-212, 235, 242, 250-252,
266, 269, 272-274, 277-278, 280, 282, 284, 254, 261, 282-284, 286, 292
289-290, 292 vulnerability 122-123, 147, 150, 169, 207
therapeutic jurisprudence 1, 9, 13-16, 24, 30, 40-41,
79, 106-107, 121, 130, 132-133, 135-137, 140- W
147, 150-152, 156, 169, 171-173, 176, 179-182,
191-192, 198, 208, 214-215, 224, 248-249, 251- Weapon of War 214-216, 219, 233-236, 239, 242
252, 260-263, 266, 280, 282, 284, 289-290, 292 women 1-16, 19-31, 34-36, 38-40, 44-46, 48-54, 56-65,
toxic behavior 182, 184, 189, 192, 197 67-77, 79, 81-90, 92-94, 96-97, 99-106, 108-109,
toxic leadership 182, 185, 188, 193, 195, 197 115-116, 119-122, 124-125, 127-131, 135, 137-
toxic workplace 166, 182-184, 189-194, 197 140, 143-145, 148-151, 155, 157, 159, 161-166,
168, 170, 182-183, 185-186, 188-194, 196-212,
U 215-220, 233, 235, 239, 241-242, 248-266, 269,
272, 274-278, 282-289, 291-292
Uncivil Behavior 197 women professors 182-183, 185-186, 189, 192, 197
university workplace environment 188, 190-192, 197 Workplace bullying 182, 185-187, 191, 193-197
344

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Therapeutic Jurisprudence

and Overcoming Violence

A volume in the Advances in Public Policy and

British Cataloguing in Publication Data

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Public Sector Entrepreneurship and the Integration of Innovative Business Models

Global Perspectives on Development Administration and Cultural Change

Handbook of Research on Managerial Solutions in Non-Profit Organizations

Achieving Open Justice through Citizen Participation and Transparency

Emerging Strategies in Defense Acquisitions and Military Procurement

Comparative Studies and Regionally-Focused Cases Examining Local Governments

Theoretical Foundations and Discussions on the Reformation Process in Local Governments

701 E. Chocolate Ave., Hershey, PA 17033

Compilation of References................................................................................................................ 293

About the Contributors..................................................................................................................... 335

Compilation of References................................................................................................................ 293

About the Contributors..................................................................................................................... 335

NEW FRONTIERS IN THERAPEUTIC JURISPRUDENCE

OBJECTIVE OF THE BOOK

Contents of This Edited Volume

Traditional Practices and Therapeutic Jurisprudence

Restorative Justice, Violence Against Women, and Therapeutic Jurisprudence

Issues of Workplace and Therapeutic Jurisprudence

Modern Practices and Therapeutic Jurisprudence

Yomi Rasul Olukolu

HARMFUL TRADITIONAL PRACTICES AND

Accordingly, the Womens Conference held in Vienna, 1993 posits that:

Types of Harmful Traditional Practices

1. Female Genital Mutilation (FGM)

Effects of Female Genital Mutilation (FGM)

2. Nutritional Taboos and Other Pregnancy Related Practices

1. Consumption of Porridge Made with Potassium (Kunun Kanwa): As a part of a womans

Effects of the Violation of Reproductive Right of Widows

THE LAW AND HARMFUL TRADITIONAL PRACTICES IN NIGERIA

Abortion and Reproductive Rights

1. Prevent risk to life of the pregnant woman.

Therapeutic Jurisprudence and Reproductive Rights of Women

1. Rights within Marriage

1. The same right to enter into marriage

2. Divorce and Custody

3. Economic and Social Rights

5. Right to Physical Integrity

African Charter on Human and Peoples Rights.

1. ISLAMIC JURISPRUDENCE: A DEFINITION

1.1 Islamic Sharia and Jurisprudence (Fiqh)

1.2 Jurisprudential Differences

2. THE JURISPRUDENTIAL DIFFERENCES BETWEEN RENEWAL AND IJTIHAD

2.1 When Is Ijtihad Needed?

2.2 The Conditions for Ijtihad

3. JURISPRUDENTIAL AND WOMENS RIGHTS MOVEMENTS:

3.1 Definition of Islamic Feminism

3.2 Why Islamic Feminism in Egypt?

3.3 Jurisprudence and the Islamic Feminist Movement

4. ISLAMIC APPROACH AS A PREVENTION AND

So how does Islam Protect and Help Women?

4.1 Islamic Sharia as a Law

4.2 Islamic Sharia as a Socio-Cultural Change Tool

Abu-Bakr, O. (2001, Winter/Spring). Islamic Feminism? Whats in a Name? Preliminary Reflections.

Al Ashqar, O. S. (1982). History of Islamic Fiqh. Al Falah Library.

PART I: LOVE MARRIAGES, HONOUR KILLING AND

PART II: LEGAL MANAGEMENT OF AFTER EFFECTS OF

husband (step-great-grandfather) 7. Fathers mothers father 8. Fathers mothers mothers husband

1. INSTANCES OF GENDER VIOLENCE AGAINST WOMEN IN NIGERIA

2. REASONS FOR VIOLENCE AGAINST WOMEN IN NIGERIA

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