Lebanese Court Affirms Women’s Right to Protection from Psychological Abuse

2014-04-14    |   

Lebanese Court Affirms Women’s Right to Protection from Psychological Abuse

On March 18, 2014, Ralph Karkabi, a summary affairs judge in Jdeideh el-Metn, issued a noteworthy ruling prohibiting a person from publishing photographs of his wife. The judge imposed a penalty in the amount of US$20,000 for each image of the wife that was published by the husband or leaked to any other party, through any means.

According to the details of the case, the claimant's husband of sixteen years had taken intimate photographs of her with her consent, given that he is her husband. When disputes arose between the two recently, the husband threatened to publish the photographs with the intention of damaging his wife's reputation and accusing her of adultery. This would have allowed him to annul their marriage contract, with the wife at fault. The plaintiff turned to the summary affairs court in Jdeideh el-Metn to prevent her husband from following through on his threat by means of an ex parte order, rather than a lawsuit, and the judge responded accordingly.

The ruling was significant in relation to the very definition of violence against women, and the judiciary's role in taking measures to protect women against different forms of violence. This is particularly in light of the legislature’s failure to do so.

For the first time, the ruling established a woman's right to protection from psychological abuse (or violence) alongside her right to protection from physical violence. To that end, the ruling stated that “violence against women is not limited to the physical violence that a woman may face from her partner or any other man; it includes psychological abuse (‘unf ma’nawi) from a man who engages in certain behaviors, affecting her dignity and her social, familial, and professional standing”.

Moreover, the ruling went so far as to say that psychological abuse causes women even more serious harm than physical violence, especially when a woman’s image is slandered and her future is threatened, as was the case with the subject of the ruling in question.

From this standpoint, this ruling is tantamount to a profound criticism of the draft law to protect women from domestic violence, which was referred by parliamentary joint committees to the general assembly of Parliament in July 2013. In its rationale, the draft law explicitly notes the exclusion of psychological abuse from the law’s definition of violence. The law also limits the scope of its application to the conditions or situations specified by law, without leaving room for expanding that scope and allowing for further interpretation, as has been discussed in detail elsewhere.

Thus, for activists working on issues of violence against women, the Karkabi ruling has given new impetus to the demand to reopen discussion in Parliament, for the purpose of revisiting the definition of violence that will be stipulated by the draft law once it is ratified. This would allow for the reintroduction of psychological abuse, including the coercion of a woman by her husband, acts of indecency, the compromise of a woman’s dignity, etc., as a part of that definition.

The second and equally significant feature of the Karkabi decision is its dedication to an entire section of the ruling to specify the role of the judiciary and to judicial interpretation in the absence of protectionist legal texts. Stating that “the Lebanese legislature has not, up to this date, enacted a law concerning the protection of women from violence”, the ruling goes on to indicate that “this is where the role of [judicial] interpretation -which is one of the sources of law- comes in, in order to fill a legislative vacuum on any given subject, and specifically in the matter of violence against women, [whereby the law would] establish appropriate psychological and physical protections for her until a law addressing the matter is issued”.

The judge deliberately underlined this last phrase and used boldface font, in a clear indication of his intent to declare a fundamental point regarding his conception of the nature and function of the judiciary. It follows that this position constitutes, in essence, both a commitment on the part of the judge to pursue judicial interpretation in this regard, and a call for his colleagues in the judiciary to do the same. It thus consecrates the role of the judiciary in relation to protecting women, as well as other disadvantaged or vulnerable social groups – something the legislature has been slow or reluctant to do.

Another similar position or ruling and the decisions derived therefrom, would present one confirmation after another of the possibility that the judiciary could be the means of making significant strides on similar issues. This would strengthen the relationship between the judiciary and different social groups, so that those groups could eventually become more willing, ready, and perhaps even eager to turn to the judiciary and present their issues and arguments within the judicial arena.

In fact, the above-mentioned Karkabi ruling comes pursuant to two previous rulings, also taken up by summary affairs judges in Jdeideh el-Metn (Karkabi and Antoine Touma), for the protection of a woman and her daughter from physical violence inflicted by the woman’s former husband. These two rulings eventually made their way to the Court of Cassation (i.e., the highest judicial authority in Lebanon), which approved the rulings’ consecration of a new legal principle calling for “the safety of the individual above all else”. Prima facie, this principle leaves the door wide open for the protection of women from violence.

These confirmations [of the potential role of the judiciary] are significantly being issued at a time when it appears that the legislature is sending the opposite message to these social groups. Recent actions by the legislature have betrayed its inability to respect the will of the public by responding to their issues and concerns in an appropriate manner. This was evident during the polarization and strife that characterized the draft law on protecting women from domestic violence. The law was eventually stripped of several key aspects. Another such example was the law addressing the issue of missing and forcibly disappeared persons. Whereas the State Council issued a decree on March 4, 2014, guaranteeing families of missing persons the “right to know” in plain and clear language, Parliament has avoided taking any steps to guarantee this right.

This article is an edited translation from Arabic.

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