It should be seen as a rights issue not only a women’s issue

by Noraida Endut

Citizens must be educated to respect these fundamental rights

In the wake of news about a spate of brutal sexual assaults and murders of women in the country recently, it is perhaps time again to ponder on how we should construct issues of violence against women for the purpose of finding inroads into understanding and, hopefully, solving the problem. Violence against women does not only occur in public by strangers, as in the case of the recently reported rapes. A significant number of incidents of violence occur within the privacy of the home and the less public spaces of the workplace and are perpetrated by people known to the victims. Rape by acquaintances and family members, domestic violence and sexual harassment are examples of these incidents.

Rape, domestic violence and sexual harassment are forms of gender-based violence. This refers to violence that affects women, either exclusively or overwhelmingly and for which the perpetrators are most prevalently men or their agents. Rather than looking at gender-based violence as a women issue, to be taken up by female advocates at state or civil society levels, it is perhaps more exigent to now consider it in the light of a fundamental rights issue for which the state plays a compulsory role to guarantee and provide redress. When seen as a rights issue and not just an issue that affect only a particular section of the community, violence against women may be more consciously and comprehensively dealt with.

Male violence against women can be argued to be a breach of the rights to life and personal liberty of citizens and related constitutional rights. Article 5 (1) of Malaysia’s Federal Constitution provides that no person shall be deprived of her/ his life and personal liberty except in accordance with law. Traditionally, these rights have only been seen as rights of individuals not to be slain, incapacitated or illegally detained by agents of the state in a manner not according to law. This view should be extended. They must now also include the rights of citizens to be safe from actions of non-state actors, whether or not condoned by the state, and the state must assume the responsibility for upholding them. Failure to provide such guarantees must be constitutionally and administratively actionable against the state.

In Malaysia, avenues for getting remedies for a breach of Article 5, where perpetrators are state agents, are relatively clear and accessible. On the other hand, where these rights are being violated by private citizens, against women, in public or in the privacy of their homes, legal guarantees leave a lot to be desired.

Victims Mainly Women

Although rape, domestic violence and sexual harassment may be perpetrated against victims of all sexes, statistics collated by governmental and non-governmental organizations in Malaysia have shown that victims of these forms of violence are solely or disproportionately women. Causes of violence are deeply rooted in the cultural conceptions about gendered roles of women and men in society although other factors such as alcoholism, drugs, mental health and stressful lifestyle may be argued by some researchers to trigger or intensify specific acts or incidents of violence.

Rape is an act that uses sexual violence to assert power and control. Humiliating and dominating the victims become the actor’s primary goal, urged by his feelings of inadequacy and the need to reaffirm authority of his self. Because women are seen as more powerless, they become easy prey for coping with such feelings. Many women were raped within the context that sees women as subordinate to men. In the case of rape by family members or people known to the victims, for example, female children are seen as chattels of their male parents or close relatives and female employees are seen to be subservient and vulnerable to their male employers. Stranger-rapists, on the other hand, see women as objects to vent their anger and to regain their sense of power. Stalkers who rape their victims may have been refused previous sexual advances by those or other women. They may have felt that women should not have the right of refusal and felt justified in punishing them with sexual assaults. All this reflects views about the position of women in society.

Rape has tremendous psychosocial impact on individual victims and members of society. Its detrimental effects on victims are quite well-documented. At a wider level, rape has implications on the issue of rights of women. When public spaces and, in many circumstances, homes, become unsafe places for women, they lose personal freedom and the freedom of movement. The former is a freedom under Article 5(1) and the latter is guaranteed by Article 9(1) and (2) of the Constitution. Moreover, victim-blaming, a frequent reaction to violence against women is often translated into opinions and policies about how women should behave to prevent rape. Reactions to rape by various sectors of society have included suggestions for curfews on women to accusation that women who dress in certain ways invite rape. If these reactions are heeded, women’s freedoms under the relevant articles will be further jeopardised.

Domestic violence affects the physical and mental integrity of the female victims. Thus, other than Article 5, it potentially violates a series of other accepted human rights and fundamental liberties of a person. Wife abuse is the most common form of domestic violence and emanates from patriarchal views about the role and expectation of women as wives. Resulting problems from violence caused to women in the homes range from the displacement of women and children from the matrimonial homes to the decreased productivity of women in the workplace resulting from their physical and/or mental incapacitation. These problems deny women equal and substantive access to development. Victims of abuse lose social and economic opportunities to develop themselves when they have to give up friends, relatives, employment and rightful assets to escape violence. They lack bargaining powers in making decisions about their lives because decisions that involve dealing with the perpetrators of violence will always be underlined by a sense of fear. All this concerns fundamental rights issues.

Sexual harassment also affects more women than men. The risk factor is being female. Incidents of harassment are usually laden with issues of gendered power. Women are forced to endure harassment because of their subordinate positions within the social and economic structures of employment and the perpetrators are encouraged to continue with the harassment because of the resulting helplessness of the victims. Victims lack emotional, social and structural support because blame-the-victim attitude is rife in sexual harassment cases. As for rape there is a prevailing, belief that only women who dress or act in certain ways attract harassment from men and that in such cases, the women deserve the treatment. This makes it an uphill task to convince the authorities that sexual harassment is a serious violation of a citizen’s rights and must be duly dealt with.

A Rights Issue

Advocacy for issues of gender-based violence has so far very much been left to efforts of women activists and members of the administration in charge of women’s affairs. Issues are not treated as public issues that require conceptual and structural changes in all sectors of government and the wider community. As long as violence against women is seen as a women’s issue as opposed to a rights issue, legal remedies that seek to redress it may continue to fall short of helping women.

Gender-based violence must be looked at as a violation of a citizen’s rights to the enjoyment of basic human freedoms. The state must assume responsibility for guarding these rights from being violated by state or non-state actors. It must ensure that citizens at risk are provided with effective protection from violation of their rights. Citizens, on the other hand, must be educated to respect these fundamental rights and not encroach upon them to the detriment of others.

All sectors of government must be involved in ensuring that the rights are upheld. The problems must not be the sole concern of the criminal justice agencies, after the fact. Their prevention must be considered from the point of view of, for instance, early and continuing education about equal respect between women and men and about abhorrence of violence. Research into the psychosocial underpinnings of specific violence that are unique to Malaysia must be initiated and supported. Their findings must be made known to the public and relevant agencies. This helps in eradicating stigma about particular violence so that victims will not be hesitant about seeking help from justice agencies. Furthermore, it may also serve to inform bodies responsible for policy and legislative reforms in their work.

Agencies responsible for education, health, employment, welfare and belief systems must all play significant roles. Inter-agency cooperation is crucial. Proposals for law reform concerning the specific forms of violence must be dealt with in a considered but expedient manner. The legislature must take upon itself to understand the various dynamics of the violence in proposing, debating and adopting new laws. The judiciary, on the other hand, must not hide behind the guise of neutrality while actually upholding patriarchal views in deciding cases involving violence against women. It must take into account the complex power-structure issues prevalent in society about male-female relationship to be able to decide on the issue of violence in a fair and just manner. Only in this way will citizens be able to enjoy equal and substantive opportunities to the fundamental freedoms guaranteed under the Constitution.

Noraida Endut teaches Law in the Social Work Programme in Universiti Sains Malaysia.

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