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Thursday, 25 June 2020 14:34
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Access to justice by women subjected to domestic violence in Vietnam - Barriers and suggestions

(LLCT) - Based on the theory and results of reviewing the current legal documents, one can see that in principle, Vietnamese women have almost no difficulty in pursuing a life of equality and freedom. However, reality shows that there are many barriers that women, especially women subjected to domestic violence, face in accessing justice when solving their cases. This article analyzes the situation of the access to justice by women who experience domestic violence in Vietnam, thereby suggesting some solutions to improve the situation and better support this vulnerable group of women. 

Keywords: domestic violence, gender-based violence, access to justice, women, gender equality.

Domestic violence is a relatively common violation of the rights of women in Vietnam. According to the results of the National Research on Domestic Violence in Vietnam in 2010, 1 out of every 3 women was beaten, sexually assaulted, or subjected to other forms of abuse(1). Among domestic violence prevention and control measures, access to justice by women who suffer from domestic violence is an important condition to ensure women’s rights, end domestic violence, promote gender equality, and eliminate all discriminations against women.

1. Access to justice by women subjected to domestic violence – a huge gap between theory and reality

A number of previous studies have shown that, through laws and other channels of justice practice, individuals who have access to appropriate resources are able to act freely and autonomously(2). In the opposite direction, research evidence also shows that it is the gender bias frameworks and legal procedures that are a key factor hindering progress in eliminating gender inequalities. Therefore, changes in these legal frameworks and procedures are also identified as one of the main causes (along with an increase in women’s political voice and economic power) leading to the change towards a better gender equality(3).Therefore, increasing access to justice is essential in the process of eliminating all discrimination against women, promoting gender equality and achieving development goals(4).

Vietnam is one of the countries that have promulgated many progressive policies on gender equality in general and on domestic violence prevention in particular. Nationally, the Vietnamese Government has always affirmed its commitment to gender equality. Equality between men and women has been recognized continuously beginning with the first Constitution of Vietnam (1946) to subsequent Constitutions in 1960, 1980, 1992 and 2013. Along with the Constitution, the Vietnamese government has issued a number of legal documents related to women and gender equality. The Gender Equality Law (2006) recognizes and gives legal effect to addressing important gender issues, including gender inequality. The revised Law on Marriage and Family 2014 also affirms the equal rights between men and women and prohibits gender-based discrimination in all areas of social life. The Law on Domestic Violence Prevention and Control was also promulgated in November 2007.

Internationally, as a member state of the CEDAW (Convention on the Elimination of all Forms of Discrimination against Women) since 1982, Viet Nam has shown its full commitment to eliminating all forms of discrimination and abuse of women’s rights. These commitments have been specified in many effective documents implemented at both national and local levels. It can be said that in general, Vietnam has a relatively adequate institutional framework for promoting gender equality in general and protecting vulnerable women in particular. However, in reality, the struggle for justice of women who suffer from domestic violence using legal instruments still faces many difficulties for many objective and subjective reasons.

In general, the research results show that there is still a large gap between the content of the formal legal framework and the reality of access to justice for female victims of domestic violence in Vietnam. Contrary to the fact that there are many legal documents on the implementation of gender equality goals, particularly those pertaining to domestic violence prevention and control, in fact, victims of domestic violence have very little effort to seek support from institutions and legal entities. A common situation that exists in all study sites is that most of the victims choose to be silent and suffer from domestic violence. A significant proportion of women who experience violence have never had any demands on justice, for a variety of reasons. Only a few female victims feel the need and have actually used the legal system to seek justice for themselves. However, most people who have access to the legal system to resolve their domestic violence case are victims of physical violence, with quite serious and clear consequences. In the case of mental, sexual or economic violence, very few people have ever sought legal tools to resolve the case. The content of repeated interviews - even after nearly half a decade - still clearly shows this trend.

2. The barriers of victims of domestic violence in accessing institutions and legal subjects

* The prevalence of silence, endurance

Research results show that female victims have less access to the formal legal system when dealing with domestic violence. In general, they often choose to remain silent or only access informal assistance if the violence is still within their tolerance and determine to continue living with their husbands.

In fact, domestic violence can have serious consequences for women but there are still many people who accept the option of solving the case by themselves behind a “closed door” or remaining silent and enduring the violence without seeking legal assistance to claim justice. Information obtained from the in-depth discussions and interviews of both studies in the study sites indicates that it is the traditional cultural values that formulate the acceptance and tolerance of violence among women.

The silence and violence of female victims are rooted in the traditional beliefs and values about the position and role of women in the family. The majority of women interviewed still think that women need to be gentle, soft, patient, and discreet. After getting married, a woman who comes to her husband’s home must respect, yield to, and submit to her husband because the husband is the head and the face of the family. Therefore, some people believe that violence in some cases is acceptable, such as in a spousal relationship. The wife must submit to the husband, so if the wife is at fault or if she does not fulfill her husband’s wishes, the husband can resort to violence to teach his wife. The “faults” that many victims have mentioned are “talking too much”, “failing to meet the sexual needs of the husband,” and “not making as much money as her husband”, which shows that distorted social pressure is still on women.

Information from the study sites shows that, whether the place of residence is urban, rural or mountainous, women are always expected to be the main person responsible for maintaining family happiness. Therefore, when domestic violence occurs, the woman herself often feels ashamed and blamed for not fulfilling her role of “keeping fire”. Social pressure from the fear of being known as “not knowing to be a wife”, “not knowing how to indulge a husband”, and “being an unhappy woman” is the reason why many domestically abused women do not dare to speak up their problems. The obsession with the risk of being defamed is not limited to individual female victims. Many women do not want to speak out about the violence because they want to save the face of the family; they do not want to adversely affect other family members, or do not even want to affect the image of the husband who has treated them badly. Therefore, many victims have had to make up stories to explain the injuries or bruises that the husbands leave on their bodies such as “falls”.

Similarly, for the cases of economic and mental violence, there were many respondents in all study sites who said that women who experienced violence should be silent because “shaming the husband means shaming the wife herself”, and they fear “making children embarrassed in front of their friends”, “losing the husband’s dignity”, “losing the husband’s image”, and “making the husband even angrier”. In particular, most women who have experienced sexual violence choose to remain silent because they perceive that “sex is a private matter only between husband and wife”, “sex is taboo, it should not be mentioned”, and more than that, “satisfying the husband is the responsibility of the wife, so it is embarrassing to speak about it”.

Some victims believe that keeping quiet is a safe solution for women themselves, for a variety of reasons. With traditional stereotypes, many people think that sharing a husband’s mistreatment with their biological parents and siblings - the closest and most reliable people - does not solve the situation. Therefore, there are still cases in which many female victims are determined not to tell relatives despite frequent violence. Some women are afraid that talking in the house to outsiders, even with competent people, will not solve their problems and may even make the husband angrier and behave worse, totally breaking their family. Other victims chose to remain silent because they do not believe that the police or the judicial system or authorities are able to stop the violence or help and protect them.

Thus, keeping silent and tolerating violence are the way some women choose to preserve family happiness. This is a negative solution because it does not address or change the cause of the violent behavior. The nature of violence is often to be in control of power, so once a husband wants to assert his higher position over his wife, he is likely to continue violent acts. Many women say that without a valid reason, a husband can still beat them. Therefore, even though they are silent and endure, the violent acts do not end. On the contrary, such misbehaviors continue to recur.

* Weakness in supporting access to legal institutions

Institutional and non-state entities, including family, neighbors, friends, and reputable people in the community, are often first approached by victims to seek sharing and assistance. After the occurrence of domestic violence, the access to these subjects is the easiest and most convenient. Information collected from all study sites shows that families and relatives are the most reliable support for domestic violence victims, because these relationships are formed based on biological and legal bonds. However, due to the notion that “a woman after getting married is already a member of the husband’s family”, the help of biological parents and siblings faces many barriers. Because of this, women often report and seek assistance from their husbands’ families more often, and rarely seek help from their own biological parents and siblings. They also often delay notifying their biological family of the situation because they do not want their parents and siblings to be sad, worried, or have a bad reputation of “defending their children”. Additionally, because of their location, easy access and available support, neighbors are also one of the groups that victims of domestic violence ask for help when violence occurs.

In particular, in cases where violence becomes dangerous and life-threatening and families and relatives are not near, women tend to find a way to inform their neighbors first to get timely help. Friends are also the object of the victim’s seeking and sharing, but this usually happens only after a violent incident has happened for a certain period of time. Additionally, in some cases, especially in highly cohesive communities, after the violence happens, the female victims also find reputable people in the community such as the village elders, head of family, or parish priest to ask for advice and help.

Institutions and entities under the State and State legal system (e.g., socio-political organizations) that are able to provide more solid and comprehensive assistance are not the first and immediate choice for female victims of domestic violence, for a variety of reasons. The official laws of our country clearly define the responsibilities and measures that competent individuals, agencies and organizations need to take to ensure justice for women who experience violence. However, the information obtained from the research sites shows that the unwillingness to reach out to the subjects of the state legal system is still quite popular. Women tend to only reach out to subjects of the state legal system when violent acts are repeated, cause serious consequences and are beyond the scope that they can resolve. Regarding the order of subjects accessed, the victims seek assistance from non-state institutions and entities, such as families and relatives first and then from subjects belonging to the non-state system (such as the head of a residential area, the president of a local Women’s Union, a member of a mediation team, etc.). Finally, they only approach the institutions and subjects of the state legal system to seek justice for themselves.

The head of a residential area is the representative of the grassroots authorities, responsible for grasping and intervening in violent acts in the area in a timely manner. In a residential area, they are voted by the people as trustworthy, knowledgeable and responsible for the common work. Therefore, female victims of domestic violence often approach them to ask for help, especially at the stage when victims begin to seek official support to resolve their situation. However, through the research results, gender barrier is a relatively large issue that makes this approach harder and less convenient, because most of the heads of the residential sector are male.

The president of a local Women’s Union is an advocate of women’s rights at the grassroots level and is often a member of grassroots conciliation teams, so they are often informed by women subjected to violence and are the people from whom such women seek support both during and after violence. However, the number of grassroots officials in Women’s Union in localities is relatively small while the workload they undertake is huge. Perhaps that is why many women say they do not want to report their domestic violence.

The police and the Chairman of People’s Committee of the commune/ward have the highest authority to handle domestic violence at the grassroots level, playing an important role in protecting women from violence. Therefore, in order to seek justice, women who experience violence must notify and seek assistance from authorities and police both during and after the violence. However, the women who sufferfrom violence are very afraid and do not want to ask the government and the police for help, fearing their reputation will be that of “a wife who sues her husband” and fear of continualviolence if the support does not bring her the results as expected. Usually, when a woman has written a petition to the police and the authorities intervene, it also means their problem has become serious and the victim cannot continue to endure or resolve it herself.

Judicial staff, with the role of providing and disseminating documents, information, legal knowledge and monitoring and inspecting law enforcement in the locality(5), is a subject that women need to come to seek support and ensure access to justice. However, this subject was rarely mentioned in group discussions and in-depth interviews in all study sites. This is a phenomenon of concern, especially in areas where the majority of women are ethnic minorities – with limited social awareness and awareness of the law – and need legal support, as in the case of Duong Phong commune (Bac Kan province).

Health workers in the community have the ability and responsibility to provide health care and medical advice to victims of violence, but the research results show that some female victims of domestic violence have not been able to access the staff yet. In Duong Phong (Bac Kan province), the victims said that they had not received any medical care and advice from grassroots health workers, although there were cases of serious violence among women in the area, including being hurt by the husband and having to be admitted to a district hospital for emergency treatment; being physically abused by a husband to the point of suffering from obsession, pain, and mental torment; or suffering simultaneously 4 types of physical, mental, sexual and economic violence from a husband who is addicted to drugs and HIV infected. Many of the victims interviewed, without realizing all their problems, said that health workers were not involved, and therefore they did not intend to seek medical staff for assistance.

For other departments in the local government, the access of female victims is also very limited. Although the Law on Domestic Violence Prevention and Control stipulates that representatives of relevant departments and agencies such as Culture, Labor, War Invalids and Social Affairs are responsible for providing assistance to women who suffer from domestic violence, the opinions of all parties in interviews and group discussions indicate that there are very few people seeking support from different agencies. This is particularly evident in Duong Phong commune, where no domestic violence prevention and control project has been implemented.

The study results also show that much fewer female victims of domestic violence had access to sources of assistance from the state legal system at higher levels such as police, justice, and courts at the district and provincial levels. In Duong Phong (Bac Kan province), among the case files managed by local authorities, no case of domestic violence was brought to the district court.

In Nghi Hoa (Nghe An province), although a large number of domestic violence cases had requests to intervene, only one case was brought to the superior court. Women tend to have access to higher legal entities only when it is mandatory, such as domestic violence leading to divorce or land and property disputes. Reasons often cited include complex legal procedures and the costly and time-consuming pursuit of such legal procedures. In particular, if the trial on domestic violence does not lead to divorce, the wife often has to pay the costs when the husband is required to serve the punishment. As a result, victims often do not want to push their cases to a higher level.

3. Some recommended solutions to improving the accessibility to justice by women subjected to domestic violence in Vietnam in the coming time.

One can see that the access to justice for female victims of domestic violence still faces many difficulties and obstacles. In order to promote the access to justice by female victims, solutions are needed to break their silence and suffering, and to find ways to address the challenges and barriers that make them afraid to seek help. Therefore, it is necessary to synchronously implement many solutions, involving the participation of stakeholders, namely:

Firstly, women’s social understanding and legal awareness need to be raised to promote access to justice.

- Continue to increase awareness-raising activities on gender equality, domestic violence and the Law on Domestic Violence Prevention and Control, especially on the rights of women against domestic violence. Particular attention should be paid to the development of these activities in ethnic minority communities.

- Strengthen the training that improves legal knowledge, counseling skills and support for grassroots officials and establishes a network of women involved in protecting domestic violence victims at the grassroots level.

- Develop and expand the operation of domestic violence clubs to raise awareness about domestic violence, provide counseling and legal support to women who have experienced violence, create conditions for women to share experiences, learn how to deal with domestic violence, provide emotional support, and develop community-based family response plans.

- Promote the role of the mass media, increase communication on the law on gender equality and the Law on Domestic Violence Prevention and Control, increase the transmission of messages condemning violent acts in all forms, guide people on how to seek support in case of need, and expand communication to eliminate gender stereotypes.

Secondly, legal aid services should be strengthened to address the difficulties of women subjected to domestic violence in accessing justice.

- Improve legal knowledge and legal support skills for grassroots legal support officials, especially for ethnic minority communities where female victims are in need of legal assistance.

- Expand the scope of legal counseling and support to help domestic violence victims overcome difficulties while pursuing justice. Legal aid services should provide information and advice to women about their rights to property and land or custody, as well as other issues to help them overcome barriers in the process of seeking justice.

- Encourage community participation in legal aid activities to address difficulties when the need for legal aid is huge while the state resources for legal support services are limited.

Thirdly, the legal framework should be continuously revised and improved to promote the effectiveness of addressing and handling domestic violence.

- Continue to research and improve the legal procedures to make it easier for victims to remember so that they can implement them. The procedures also need to be adjusted to be more flexible so that timely interventions can be implemented and close coordination among individuals and authorities is strengthened to resolve domestic violence cases.

- Continue to develop a specific penalty framework for acts of violence that currently do not have sanctions, such as emotional, sexual, and economic violence. Additionally, it is also necessary to adjust unreasonable sanctions. For example, it is advisable to stop using fines (administrative sanctions) and replace them with legal prosecution, impose stricter punishments for cases of violent acts that cause injuries at less than 11% and have been dealt with many times but still recur.

- Add additional sanctions for cases of competent individuals and organizations that fail to perform or fully perform functions and tasks as prescribed when resolving domestic violence cases.

Fourthly, the efficiency of grievance and complaint settlement activities of functional agencies should be improved.

- Commit to the implementation of domestic violence prevention and control at all levels of government, and develop and use the domestic violence prevention and control index as a criterion for assessing the performance of individuals and functional departments.

- Promote communication activities to eliminate gender stereotypes and improve the capacity of grassroots officials to resolve complaints. Additionally, training activities on how to intervene and deal with domestic violence should also be organized.

- Promote multi-sectoral cooperation in domestic violence prevention and control and develop a common plan on domestic violence prevention and control, which clarifies how to coordinate domestic violence prevention and control among departments, sectors and mass organizations in the locality.

Fifthly, the effective participation of socio-political organizations should be promoted

- Enhance the participation of grassroots socio-political organizations, continue communication to eradicate gender prejudice, and raise legal awareness on gender equality and the prevention of domestic violence. Expand the training to improve reconciliation capacity and legal support for grassroots mass organizations.

- Continue to improve capacity and create opportunities for female officials to participate in leadership positions in the grassroots government. It is necessary to promote the creation of conditions for female officials to participate and supervise the process of investigating and adjudicating violations related to domestic violence against women.

- Promote the initiative of the women’s union at all levels in supporting female victims to access justice through specific activities such as assisting the women’s union agency in documenting, monitoring, and managing violations related to domestic violence against women at all levels.

Sixthly, the participation of the community, especially the participation of men should be increased.

- Raise community awareness, especially among men, about gender equality and prevention of domestic violence. Particular attention should be paid to the implementation of communication and advocacy activities to raise awareness of the implementation of the Law on Domestic Violence Prevention and Control for men and towards gender prejudice elimination in the community.

- It is necessary to establish clubs for men who engage in violent acts to help them raise their knowledge and change their behavior, focusing on issues such as increasing understanding of gender equality laws and prevention of domestic violence, learning and practicing life skills in the family, and encouraging equal behavior.

______________________

Endnotes:

(1) General Statistics Office: “Suffering is death” - Results of a National Study on Domestic Violence against Women in Vietnam, Hanoi, 2010.

(2) Martha Nussbaum (1999), “Women and Equality: The Capabilities Approach”, International Labor Review, 138 (3), pp. 227-245; Amartya Sen (2009), The Idea of Justice, Harvard University Press.

(3) UNDP: Power, Voice and Rights: A Turning Point for Gender Equality in Asia and the Pacific, Macmillan Publishers India Ltd, 2010.

(4) Evalyn G. Ursua: Access to Justice for Women in Plural Legal Systems in South East Asia, UN Women, Bangkok, 2014.

(5) Ministry of Justice - Ministry of Home Affairs: Joint Circular No. 01/2009/TTLT-BTP-BNV of April 28, 2009, guiding the functions, tasks, powers and organizational structure of the Department of Justice under province, district, and commune People’s Committee, 2009.

Assoc. Prof., Dr. Le Thi Thuc

Academy of Politics Region I

Dr. Le Thuy Hang

Ho Chi Minh National Academy of Politics

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