Alissa Trotz is editor of the In the Diaspora Column
In a column penned two weeks ago as the horrific details of Neesa Lalita Gopaul’s murder emerged, I noted that the paradox in Guyana “is that we seem to be faced with a situation in which proliferating legislation appears to be accompanied by an increase in violence against women and children…one would expect that with more laws and visibility, rates of violence would start going down, but tragically the relationship seems to be in the opposite direction.”
This week’s column looks at an important and relevant book on this very same issue, Everyday Harm, written by Mindie Lazarus-Black, professor of criminal justice and anthropology at the University of Illinois. Drawing on extensive research in Trinidad and Tobago that included interviews with litigants, officers of the court, and analysis of court records, the book focuses on the implementation of the Domestic Violence Act (DVA), a critical piece of legislation that came into existence in 1991 as the result of a number of factors at both the local (women’s activism in particular) and international level (changing definitions of human rights, increasing attention to gender equality in international conventions). The study attempted to answer the following question: “Why is it that, in spite of laws to protect people from harm, so little results from that legislation? What happens in and around courts that makes it so difficult for people to secure their rights?”
In the case of Trinidad and Tobago, high expectations accompanied the passage of the DVA. Thousands of complainants filed for protection orders, with the Trinidad and Tobago Coalition against Domestic Violence noting that the numbers continued to rise annually. At this level, then, the DVA and public education programs around it could be seen as a success, in raising awareness among those subjected to violence that there was a place to go to for protection and support. It also showed that, as Lazarus-Black suggests, “given the opportunity to speak the truth about violence, survivors of domestic abuse will speak out; they will exercise newly acquired rights.” There was also a public perception, including among those in the legal profession, that people who went to court actually got the protection orders they sought. In fact the study, which examined court records, found that more than 75 per cent of the applications for protection orders against a violent family member were either withdrawn or dismissed altogether.
What accounted for so few cases making it through the system? There tends to be a widespread assumption that the law operates impartially and on the basis of the facts presented before it, which might lead one to conclude that sufficient evidence to adjudicate existed in just 25% of the cases brought before the courts. The study, however, is a sober reminder that the law and its application do not stand apart from society. If – as in the case of the DVA – it plays a positive and active role in reshaping our sense of what is no longer acceptable, might it be the case that, as Lazarus-Black asks, the law can also (whether intentionally or otherwise) be part of “the everyday harm that people experience?”
Structural deflection is the term that the book uses to capture the various ways in which legal changes are manipulated in order to undermine the apparent intent of the law. In other words, there is more investment in upholding the status quo than in transformation. So many applications for protection orders do not make it through because, far from being a space that empowers those seeking a life free from violence, the legal system throws up significant obstacles that are part of the legal process itself, and that “influence profoundly the history and outcome of every domestic violence case.”
Three kinds of roadblocks are identified. The first is ‘court rites’, which directs us to the interactions that in large part turn people off or prevent them from meaningfully exercising their rights through the courts. Over and over again, complainants described being silenced, confused, talked down to, humiliated, of overhearing comments that their cases would not be taken seriously or that they were wasting the court’s time, of having their experiences distorted. Here we can immediately see how these practices can reinforce certain kinds of inequalities, be it the big ones and the respect they are shown in court as a mark of class difference, the child who we assume should be seen and not heard or the woman we assume to be a victim who cannot represent herself properly. The book also found, as in other countries, that courts had ideas of deserving and undeserving victims. Women who simply did not conform to general ideas about how an abused and respectable woman should behave were far less likely to get taken seriously.
The second obstacle is ‘the use (and abuse) of time’, which has to do with the simple fact that it takes too much time to make one’s case in court. Long adjournments, case backlogs, the length of time taken by the police to serve a summons or to bring charges, and other delays that are a ‘normal’ part of how the law operates, make a nonsense of any expectation of a swift, fair and efficient resolution. And for the women seeking protection orders, who are also the ones in charge of families and all the caring work this entails, this second roadblock is particularly significant, since time is the one thing they have least to spare (for instance being forced as a mother of small children in the house into the impossible situation of having to travel to court again and again, because there is always another reason to postpone). The third obstacle the book identifies is ‘cultures of reconciliation’ which refers to wider beliefs about how families operate and women’s and men’s roles within them. How do these ideas influence the ways communities respond to incidents of domestic violence, as well as the way in which the law is interpreted and practiced? Cultures of reconciliation may prevent people from invoking the law in the first place (so the book deals only with those who exercised their agency by coming forward, but not with all those others who continue to face abuse without turning to the legal system for support). Even if we are less likely to believe, for instance, that ‘if meh man don’t beat meh he don’t love meh,’ we may still feel it is not our business to get involved, or that the family or couple in question should work it out. Lawyers, probation officers, police, magistrates may not take cases seriously, or may also tell people to go back and try to work it out, or when a complainant drops a charge they may be too quick to accept this at face value, as evidence that things have been worked out informally, instead of investigating the forces that led to the withdrawal.
This remarkable study, drawing on Trinidad and Tobago but with some clear lessons for other countries including Guyana, shows us clearly law’s uneven-ness. We may boast about how many laws we have passed and how progressive we are, but can this be an alibi for the status quo, a distraction from the fact that the more things change, the more they remain the same? What we see in the case of applicants for protection orders under the Domestic Violence Act in Trinidad and Tobago, is that overall the legal system was not a positive experience for subordinate groups, those who were supposed to be empowered by this legislation. Addressing this requires considering all of the micro-interactions that make up one’s experience – encounters with “courthouse staff, police, justices of the peace, probation officers, lawyers, witnesses, magistrates etc.” – as a first step to identifying and challenging the patterns of exclusion they add up to.
Finally, the book identifies the distance between formal equality (enshrined by Constitutions and laws and which look great on paper) and substantive equality. It suggests that law is not larger than life, and in fact is shaped by life itself. Can we go even further? We should pay attention not just to law’s implementation, but to contradictions in law’s framing as well. We need look no further than the Constitution of the Co-operative Republic of Guyana (although this is not confined to Guyana alone by any means). Tracy Robinson, law lecturer at the University of the West Indies has pointed out that the Guyana Constitution, which specifies that “women and men have equal rights and the same legal status in all spheres of political, economic and social life” and that “all forms of discrimination against women on the basis of their sex is illegal”, is also the same Constitution that opens by identifying Guyanese as heirs of the indomitable spirit and unconquerable will of our forefathers, the ones whose sacrifices bequeathed Guyana to us as our ‘inalienable patrimony’ (patrimony tends to refer to an inheritance handed down by one’s father). If it is our fathers/men (not women, not children) whose struggles have made Guyana possible, are we suggesting that they are more deserving citizens, or the ones who know best what is good for us all? Does this pre-empt or at the very least haunt the equality clause in the Constitution? How does this relate to ideas that men are natural heads of the family (circulated in statements made from the President of Guyana all the way down), and how does this also uphold particular ideas of women as less equal and as dependants? And how might we see domestic violence and the experiences of those seeking to exercise their agency by turning to the law for help, as related to, and arising out of, these very contradictions in the law and the Constitution itself, as a way of keeping people in their respective places?
