In 1999, Jessica Lenahan-Gonzales’s estranged husband took her three girls in violation of a permanent restraining order requiring him to remain at least 100 yards from her and her children. The police of Castle Rock, Colo., failed to enforce the restraining order — after multiple requests — and the three girls were murdered by the estranged husband. A legal case against the police force reached the Supreme Court and, in a 7-to-2 decision, the court ruled that Castle Rock and its police could not be sued for failing to enforce a restraining order. In 2011, the case reached the Inter-American Commission on Human Rights (IACHR), which found that the United States failed both to protect Lenahan and her daughters from domestic violence and to provide equal protection before the law. Further, said the IACHR, “all States have a legal obligation to protect women from domestic violence,” and this is “a problem widely recognized by the international community as a serious human rights violation and an extreme form of discrimination.”
Violence against women (VAW) is a pandemic, by any measure, and the repeated failures on the part of nations to provide meaningful recourse for victims of entrenched gender violence has led to growing calls by national and transnational actors alike for the adoption of stronger gender-violence legislation in all countries. Consequently, several important questions arise regarding the adoption and strength of domestic gender-violence laws, including:
- What laws protecting women from gender-based violence currently exist and how strong are these protections?
- What differences in gender-violence laws exist across countries?
- What influences the adoption and strength of gender-violence laws?
It is these questions, among others, we tackle in our new book “Violence Against Women and the Law.” While the way we approach these questions has roots in the research program studying whether being party to an international human rights instrument has any effect on state practice, it is our assumption that any effect international law may have on state human rights behavior comes via its effect on the creation and/or improvement of related domestic law. By identifying and understanding the strength of gender-violence laws, we can better understand the causes and consequences of variation in both the scope and strength of these laws.
For our analyses, we produced an original data set containing information about the adoption and strength of laws addressing four forms of violence against women – rape, marital rape, domestic violence and sexual harassment – for 196 countries from 2007 to 2010. A four-point measurement scheme was created to denote the strength of domestic legal guarantees against the four forms of VAW in these countries: nonexistent/discriminatory laws received a 0, incomplete/weak laws a 1, correlative laws a 2, and fully-provided-for legal prohibitions received a 3. Using these data, we examined the domestic and international factors explaining variation in the strength of gender-based violence legal protections as well as the role legal protections play in various gender-related outcomes.
The map at the top of this post shows the spatial distribution of countries’ overall level of VAW-related legal protections for the year 2010. The map is based on an additive index of rape, marital rape, domestic violence and sexual harassment legal protections, ranging from 0 (no protections for any of these four types of VAW) to 12 (fully-provided legal guarantees for all four).
Europe and North America display the strongest overall legal protections. To be cautious, it is important to recognize that, with regards to legal guarantees, “fully-provided-for” does not mean “perfect” or “in no need of improvement,” as no country would inhabit those categories. Further, it is also important to remember that the map reflects law, not practice. However, along with our legal data, we created data about each country’s level of actual enforcement. One of the findings in this regard was that where women possess greater economic decision-making power, law enforcement personnel appear to more-regularly enforce VAW-related legal protections.
The weakest legal protections are found in Western Asia, which accounted for 21 percent of the countries, worldwide, receiving a 0 for marital rape laws in 2010. It also accounted for 44 percent of the countries, worldwide, that received a 0 for legal protections against domestic violence in 2010. Western Asia’s share of these poor scores is even more remarkable considering that it comprises only 10 percent of the countries in our sample.
There exists, on average, a good deal of variation in legal protections against our four types of VAW and, over time, these levels of legal protections are quite stable. The figure below depicts the global average of legal strength scores, by type of VAW, in 2010. Rape receives the strongest legal protections, followed by domestic violence, sexual harassment and marital rape. In our book, we explore these differences, including possible cultural-based explanations, explanations based on the public-private sphere divide, and whether there is a general sequence in which gender-based violence laws are enacted.
The bars in the figure below come from stereotype regression analyses investigating the possible associates of legal prohibitions against domestic violence and sexual harassment, and they represent the change in the probability that a country has full legal protection against these forms of VAW (a score of 3 on our ordinal scale), given a one standard deviation change in the value of a given variable.
The figure reveals that women in government make a difference in the strength of their country’s legal protections related to gender-based violence. As the percentage of women in the legislature increases by about 10 percent (one standard deviation from the median), countries are about 10 percent more likely to adopt full legal protections against domestic violence and sexual harassment. This is a fascinating finding as various studies in comparative politics and international development argue that women in government are not likely to be representative of women writ large because they come from elite families, are not feminists (who are filtered out during nomination processes), and are token representatives without real power to affect the agenda, among various other arguments.
Second, increased economic globalization (measured as trade in merchandise as a percent of GDP) is associated with lower sexual harassment legal protections (an 8.7 percent decrease in the probability of adopting full sexual harassment legal protections). We suggest that perhaps because legal protections against sexual harassment are often enforced in the workplace, trade liberalization may encourage governments to avoid involvement in the private economic sphere. Further, this finding contributes to the debate over the influence of economic globalization on women’s rights/status. As well, this may be evidence in favor of the view that economic globalization can result in a type of individual-level race to the bottom where women are afraid to report cases of sexual harassment in order to remain competitive with other women for employment opportunities.
Interestingly, given recent debates, we also observe that international law can make a difference in the strength of domestic violence legal protections. As the time since a country has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) increases (by about eight years), countries are more (23.4 percent) likely to adopt full legal protections against domestic violence. Further, those countries who placed a full reservation on Article 2 – the centerpiece of CEDAW that charges parties to, among other things, “embody the principle of the equality of men and women in their national constitutions or other appropriate legislation” – were found to have reliably weaker domestic violence and marital rape laws. So, not only did international law show itself a reliable factor in advancing domestic legal prohibitions on violence against women, it did so even when simultaneously accounting for 12 other possible explanations of the strength of these laws.
Finally, strong laws matter. Countries with greater domestic legal protections against gender violence have less gender-based inequality, greater levels of human development and lower female HIV rates; again, simultaneously accounting for a dozen other possibilities that could affect these outcomes. In fact, not one of these dozen other possible alternative explanations was found to be associated with improvements in all three outcomes in our study: inequality, human development and reduction of female HIV incidence. This may be related to our finding that countries with stronger gender-violence laws had better enforcement of those laws; another link in the chain of international law’s indirect effectiveness.
These findings run counter to the propositions of critics of international law such as Eric Posner and Samuel Moyne, who argue that international human rights law such as CEDAW may be more than toothless, it may be pernicious. Rather, our findings are in sync with the work of Beth Simmons, who finds that social mobilization around women’s issues increases the longer a country is party to CEDAW. Such mobilization, most likely, goes a good ways toward explaining how CEDAW indirectly strengthens domestic gender-violence laws over time. This is a prime example of the kind of indirect, but very real, effect of international law that Posner’s zero-order empirics in “The Twilight of Human Rights Law,” for example, do not refute.
Further, we do not buy into the argument, also made in Posner’s recent book, that international human rights law can be seen as ineffective merely because if a law supporting one treaty is passed, the possibility exists policies may be made to the detriment of another treaty commitment. Damnation by such a puritanical standard reduces government responsibility for willful policy substitutions detracting from human dignity, is in defiance of the imperfect realities of how norms grow in complex polities, and invokes the famous aphorism warning us against making perfect the enemy of the good.
While it is, of course, necessary to accept the limitations of law, the gap between law and practice, and the challenge of victims’ access to available social services, law nonetheless represents an important step in ensuring protections for women. Unless we know what laws are in place and what factors contribute to their adoption and strength, we cannot hope to initiate legislative reform. We hope that the data and analyses in our book provide a basis for scholars and policymakers to further address important questions related to the elimination gender-based violence.
David L. Richards is associate professor of political science and human rights at the University of Connecticut. He is a co-founder of the CIRI Human Rights Data Project. Jillienne Haglund is a post-doctoral research associate at Washington University in St. Louis. Their new book “Violence Against Women and the Law” has just appeared from Paradigm Publishers.