Resisting Domestic Violence

Abstract

This article analyses the jurisprudence on domestic violence in international refugee and human rights law. It identifies and offers an original response to shortcomings in both bodies of law. Drawing on the work of Michelle Madden Dempsey, its focus is on domestic violence in its ‘strong’ sense: violence that sustains or perpetuates patriarchy. Decisions on women’s claims for international protection from domestic violence have generated strands of case law which contradict each other, as well as the Refugee Convention’s object and purpose. Decision makers have delineated overly restrictive social groups and ignored, identified, or imputed a range of political opinions. A disproportionate focus on ‘private’ motives has also obscured the nexus between persecution and the Convention ground(s). Similarly, issues left unresolved by the European Court of Human Rights have resulted in the European Convention on Human Rights’ prohibition of discrimination being applied inconsistently, and recently, not at all, in cases involving domestic violence. These deficiencies are traced to a lack of conceptual and legal clarity as to the nature of domestic violence. A response is offered that understands such violence as political and discriminatory. The article concludes by arguing that victims of domestic violence, properly understood, have experienced unlawful discrimination and are members of the ‘simple’ particular social group of ‘women’. It also answers calls within the literature for gender-sensitive approaches to the political opinion ground, offering an analysis that recognizes women’s resistance to violence, including in cases where commitments to gender equality are not expressed. Overall, the article contributes an improved understanding of domestic violence that could be relied on to ground principled decision making on discrimination, persecution, and the Convention grounds.