Part I discusses the treatment of domestic violence as a human rights issue under international law, focusing on the shift in the conceptualization of violence against women from a private matter to a human rights issue. By framing gender-based violence as a means to perpetuate the social, economic, and political inequality of women, the international community has imposed positive obligations upon the state to not only punish but to prevent gender-based violence and to eliminate its root causes. In Parts II and III, I contrast the approaches of the highest courts of the United States and South Africa. Part II analyzes the conceptualization of domestic violence as a private crime by the U.S. Supreme Court and its refusal to constitutionalize a right to be free of gender-based violence. By framing gender-based violence within the framework of formal equality, the Supreme Court erases the relationship between intimate violence and women's full and equal enjoyment of their fundamental constitutional rights and benefits. The refusal of the Supreme Court to conceptualize intimate violence as an issue of equality threatens the potential of criminal justice reforms to obligate the state to eradicate gender-based violence. The criminalization of intimate violence sends a strong normative message that such conduct violates important social norms and will not be tolerated by the state. Focusing on criminal justice reforms that punish perpetrators, however, can reinforce the traditional notion that intimate violence is the result of individual deviance rather than the systematic subordination of women in society. Part III analyzes the approach of the South African Constitutional Court, which has explicitly conceptualized intimate violence as a means of gender subordination that denies women equality, self-determination, and access to fundamental rights and liberties. The Court has held that the South African Constitution imposes affirmative obligations on the state to prevent and rectify intimate violence. In construing violence against women as a violation of the right to equality, the Court repeatedly has emphasized that the Constitution guarantees substantive rather than formal equality. The Court also has recognized the inter-relatedness of the rights guaranteed by the Constitution, holding that rights to equality, liberty, and dignity are meaningless in the absence of the fulfillment of basic socioeconomic rights. The Court's jurisprudence, therefore, has tremendous potential to transform both the legal and the socioeconomic subordination of women that reflect and perpetuate violence against women.
Valorie K. Vojdik,
Conceptualizing Intimate Violence and Gender Equality: A Comparative Approach,
31 Fordham Int'l L.J. 487
Available at: http://ir.lawnet.fordham.edu/ilj/vol31/iss2/4