Women, Gendered Violence, and the Construction of the 'Domestic'

Abstract

This Chapter provides background material for conversations held at the 2020 Global Constitutionalism Seminar (a Part of the Gruber Program on Global Justice and Women’s Rights) at Yale Law School.

This Chapter begins with an examination of the centuries-long assumption that gender-based violence was a “private” issue meant that legislatures, law enforcement agencies, and courts were unresponsive. It then maps how social movements and critical lawyering reframed gendered violence as one form of subordination that is in fact a marker of inequality and provides examples of national and transnational law that debate the bases, contours, and implications of rights to be free from such oppression. Having explored what affirmative obligations governments have toward their own populations to protect against gendered violence, this Chapter considers whether international refugee law, humanitarian law, and jurisdictions’ own constitutional law require offering a haven for people escaping gendered violence. Across the world, many courts have read constitutions to require that law aim to provide protection against and safety from gendered violence. Such mandates for an active state presence (often through criminalization) contrast with traditional approaches in which courts have insisted that law not interfere when acts are marked as private, intimate, or domestic. This Chapter explores the demands on the state and the repertoire of remedies deployed when governments work towards achieving substantive equality.

Keywords: gender, gendered violence, violence against women, social movements, discrimination, remedies, constitutional law, comparative law, inequality, refugee law, asylum law, criminalization, domestic violence, crimes against humanity, war crimes, rape