Domestic Violence on Trial: No to the Use of Children to Abuse and Extort

2014-09-12    |   

Domestic Violence on Trial: No to the Use of Children to Abuse and Extort

After parliamentary debates in Lebanon mandated that a new law be issued for the protection of women and other members of the family, Lebanese Summary Affairs Courts (one of the judicial authorities responsible for issuing protective orders) were faced with the mission of defining “violence” and determining its forms. While consensus has prevailed when it comes to consolidating the concept of physical violence, this is not the case with the remaining forms of violence, such as psychological and economic abuse. Instead, these are distinguished by the multiple controversies that surround them, and the difficulties presented by a law that still falls short in combating these types of abuse.

It is in this context that a ruling issued on August 20, 2014 by Antoine Touma, a Summary Affairs judge in el-Metn, stands out. In the ruling, Touma goes beyond the principle establishing an authoritative concept of psychological violence against women. He also recognizes that one of its forms is reflected in the use of children who are the offspring of a married couple as a means to abuse and victimize one of the spouses.

The facts of the case are as follows: a married woman brought a claim to the Summary Affairs Court. She recounted that she had married her husband after converting from Islam to Christianity, and that since her marriage, she had been exposed to humiliation and insults on a continuous basis and in front of her two daughters. This abuse revolved primarily around her religious conversion, and secondarily around characterizing her as adulterous, neglectful, and thieving. In addition, after psychological pressures forced her to leave the conjugal home, she was prevented from seeing her daughters and accompanying them [when they left the house].

Her petition concluded with a request that the court require her husband to turn over the two daughters to her, and to pay an allowance to cover food, clothing, and housing expenses for her and the children. These claims were made in accordance with the statutes of the Lebanese law for the Protection of Women and Family Members Against Domestic Violence, on the basis that the husband’s actions constitute psychological abuse against the claimant and are inflicting psychological damage and harm upon the two daughters.

Accordingly, the ruling decreed the following: first, that both girls, who are minors, be taken from their father’s house and turned over to the mother. Second, that the husband pay a monthly allowance in the amount of US$1000 to the claimant for the daughters’ housing, food, and clothing expenses. Third, commissioning the association KAFA (Enough Violence and Exploitation) to designate whom it saw fit to monitor the two underage girls’ psychological state, attempt to reconcile the spouses’ points of view, and present a reporting letter to the court.

In arriving at this result, the ruling relied upon an equal consideration of physical, psychological, “and other forms of violence”. This was done through a reading of the definition of domestic violence as it appears in Article 2 of Law 293/2014, in the context of the principle of human dignity and the physical and mental safety of the individual. The court system has previously established these principles as top priorities in the legal hierarchy, with a ruling stating that “the human spirit [nafs al-insan]…has an absolute importance…and is the cornerstone of the rights established by laws and legislation in order to protect it, and to preserve its dignity”.

The ruling affirmed the emergence in Lebanese law of a general paradigm of the protection of the individual focused on the individual’s basic rights, starting with human dignity.[1] It also contributes to consolidating the trend of the judiciary’s “pioneering capacity in developing the legal text” when it comes to “committing to protecting women from psychological abuse”, after the legislature attempted to exclude [this form of protection] from inclusion among the crimes specified and addressed within the [domestic violence] law.

In the law’s first judicial application, a Summary Affairs judge in Beirut, Jad Maalouf, asserted that “violence is not just limited to physical aggression…the plaintiff was also subjected by her husband to various other forms of violence, no less severe than physical violence. He abused her verbally, insulted her to her face and humiliated her, in addition to preventing her from leaving the conjugal home except for a few hours per month, without any justification. This constitutes a violation of her most basic rights, which doubtless falls under the definition of domestic violence as stated in Law 293/2014. Indeed, what is meant by violence is that which causes psychological harm as well. One can only admit to the seriousness and severity of psychological harm resulting from restricting the wife’s freedom of movement without justification or verbally abusing her”.[2]

The Touma ruling takes a similar approach towards a definition of violence and its forms in terms of psychological abuse. Its particular significance is embodied in its definition of psychological abuse that encompasses cases in which a parent is prevented from seeing their child, and the child is incited into antagonizing one of the parents. To characterize such behavior as violence is to fight against a social behavior that constitutes, without the least doubt, an extremely effective means of extortion in family and marital disputes. Up to this day, this behavior ranks highest among means of subjugation and intimidation.

The Touma ruling also refocuses attention on the difficulty presented by sectarian laws’ linking of a child’s legal custody and guardianship to a specified age, without relying upon the best interests of the child. The ruling not only states that preventing a parent from seeing their child is a form of psychological abuse, an infringement against human dignity, and a violation of the physical and mental safety of the individual; it also constitutes a judicial intervention to put a stop to such a situation. In doing so, it is in complete accordance with efforts made by [the Court of Cassation’s general committee and juvenile judges] towards “consecrating a system that is binding upon sects”, limiting the scope of their powers so as to respect sectarian identity and characteristics, without infringing upon human dignity and the safety of the individual.[3] In other words, this ruling marks the convergence of two areas in which the civil courts can intervene in family affairs. The first is to set out the conditions that constitute domestic violence, and the second is intervention in the case of a child at risk. The hope is that together, these two areas can form a building block in the creation of a public system that transcends sects when it comes to the judiciary.

This article is an edited translation from Arabic.

[1] See: Youmna Makhlouf’s, “Summary Affairs Judiciary Insists: Principle of Safety of the Individual at Top of the Pyramid of the Lebanese Legal System”, The Legal Agenda, Issue No. 15, March 2014.

[2] See: Nizar Saghieh’s, “Interpreting Lebanon’s Law Against Domestic Violence: Jurisprudence as Legal Reform”, The Legal Agenda, June 30, 2014.

[3] See: Nizar Saghieh’s, “A Child at Risk: The Judiciary Consecrates a System Binding Upon Sects”, Al-Akhbar, August 13, 2009.

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