When intimate partner violence becomes femicide1456258/...When intimate partner violence becomes...
Transcript of When intimate partner violence becomes femicide1456258/...When intimate partner violence becomes...
When intimate partner violence becomes femicide
A socio-legal analysis of the Romanian legal framework in light of the Istanbul Convention
Author: Anamaria Tunduc
Spring Semester 2020
Thesis in Law (15 hp)
Master’s Programme in Law, Gender and Society (60 hp)
Supervisor: Lena Wennberg
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Table of Contents
Abstract………………………………………………………………………………..3
Abbreviations………………………………………………………………………….4
INTRODUCTION……………………………………………………………………..6
Background information…………………………………………………...…..6
Aim and Research Questions…………………………………………………..8
Definitions and Limitations……………………………………………………9
Method and Materials………………………………………………………...10
THEORETICAL FRAMEWORK……………………………………………………12
A basic feminist theory……………………………………………………….12
Feminist legal theory…………………………………………………………13
Socio-legal feminist theory…………………………………………………...14
The concept of femicide………………………………………………………14
ANALYSIS…………………………………………………………………………..17
The Council of Europe Convention on preventing and
combating violence against women and domestic violence…………………..17
The Romanian Legal Framework in relation to the Istanbul Convention……..21
DISCUSSION……………………………………………………………………..…26
CONCLUSIONS……………………………………………………………………..29
Works cited…………………………………...……..………………………………..31
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Abstract
Violence against women is a worldwide phenomenon that is mostly found in the private
sphere, yet, laws from the public sphere can work towards the ultimate goal of eliminating
gender-based violence. This research paper is conducted through a socio-legal analysis from a
feminist perspective on the issue of femicide as the most extreme consequence of intimate
partner violence in Romania, as this country has the one of the highest rates of femicide cases
across Europe. The analysis is done in relation to Romania’s ratification of Council of Europe’s
Istanbul Convention in 2016, and it aims to examine the way the country adapted its legal
framework to comply with the provisions of Convention. At the same time, it analyses the way
femicide is addressed from a socio-legal perspective.
Key words: intimate partner violence, femicide, socio-legal, Istanbul Convention
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Abbreviations
EU
GREVIO
Istanbul Convention
European Union
Group of Experts on Action Against
Violence Against Women and Domestic
Violence
Convention on preventing and combating
violence against women and domestic
violence
ANES National Agency for Equal Opportunities
between Women and Men
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Turning a blind eye will not make the problem go away
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INTRODUCTION
“Each femicide should be carefully examined to identify any failure of
protection, with a view to improving and further developing preventive
measures. In addition, a “Femicide watch” by its mere existence would
increase awareness about femicide and other forms of gender-based violence
against women and galvanise actions for its prevention. State should
increase their efforts to use all available global and regional women’s
human rights instruments and experts’ mechanisms to put in place effective
systems to prevent and end femicide and gender-based violence against
women and girls.”
Dubravka Šimonović,
UN Special Rapporteur on violence against women, its causes and consequences
Background information
Violence against women is not at all a new phenomenon. Nonetheless, it is a major
societal issue that, contrary to beliefs, affects women regardless of age, race and ethnicity in
all countries around the world, and which takes place mostly in the private sphere. It is a
“global, systemic” phenomenon characterized by “power imbalances and structural
inequalities between men and women” (UNODC, 2011, p. 57). Violence against women is a
structural phenomenon of gender inequality. It is a subject of interest not only from a human
rights or gender violence perspective, but also from a social, legal and cultural one, or even as
a public health related matter.
According to statistics, it is said that approximately 35 per cent of women have
experienced physical or sexual violence at some point in their lives, frequently committed by
a male intimate partner (UN Women, 2019). In the past years, there seems to have been an
increase in the number of cases of intimate partner violence across Europe, which often leads
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to femicide/feminicide, generally defined as the intentional killing of females based on their
gender, making this a woman-centred social problem. It is estimated that seven women die
daily because of male domestic violence (PES, 2014), and despite Europe having the lowest
rate of femicides compared to the rest of the world, the numbers are still staggering.
Since it is believed that many of the problems faced by women are caused by social,
economic, cultural and political contexts, hence, “the personal is political” (Hanisch, 2006, p.
1), it is needless to say that demanding actions and solutions at a policy level has been the
obvious next step in order to hold the perpetrators accountable. Therefore, given these
circumstances, the Council of Europe paved the way in 2011 with the first regional preventive
and legally binding instrument, the Convention on preventing and combating violence against
women and domestic violence, otherwise known as the Istanbul Convention, which interprets
violence against women as a violation of human rights and through which several forms of
violence against women are defined and criminalised. In relation to this, the ratifying countries
adapted their gender-neutral or even male-centred national legislation to one including the
concept of gender-based violence.
It has been said that the measures taken to end violence need statistical evidence that
shows whether violence is increasing or decreasing in order to prove their effectiveness
(Walby, et al., 2017, p. 17). Despite the implementation of legal frameworks and the efforts
made to eliminate violence against women, the available statistics show that there is a
significant and continuously increasing rate of cases of violence against women across Europe.
Consequently, femicide is one of the most precarious acts of violence that women can
experience.
At the time of writing, the global pandemic of COVID-19 has affected most of the
population of the world, with almost half being under lockdown. In the context of strict
confinement rules imposed by governments and according to currently emerging data, this
appears to have resulted in increased levels of domestic, sexual and gender-based violence
(CoE, 2020), which in turn makes this an issue of greater concern.
Based on the above, there is no doubt that women suffer violence and die
disproportionately at the hands of their partners in any country at any time. Romania, currently
a member of the European Union and the Council of Europe, has been experiencing domestic
violence as a widespread social problem for a long time before being addressed in legislation
(Wimmer & Harrington, 2008, p. 624). According to Eurostat statistics, although it is not the
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country with the highest number of female deaths in Europe, Romania has the highest
percentage of femicides. In this country, there is a rate of 4.3 intentional homicide victims
committed by an intimate partner or a spouse per million inhabitants (Eurostat, 2020; Blunt,
2019).
With Romania’s ratification and entry into force of the Istanbul Convention, it would
be of wide interest to analyse Romania’s legal developments in relation to the Convention, but
also to address the gender inequality and social aspects that lead to femicide from a feminist
perspective.
Aim and Research questions
The main aim of this research paper is to examine from a feminist socio-legal
perspective how the problem of violence against women, more specifically the issue of
femicide as a consequence of intimate partner violence, has been addressed by the legal
framework in Europe to begin with and subsequently, in Romania. The analysis will be done
in relation to the Council of Europe Convention on preventing and combating violence against
women and domestic violence, hereafter the Istanbul Convention or the Convention. It is
necessary to shed light and to raise awareness, especially now in light of the current pandemic,
about domestic violence no matter the forms it takes and to look at whether it can be prevented
or not through legal measures. It is equally important to keep in mind, however, that intimate
partner violence is one of the most prevalent forms of violence against women, which is a
matter often perceived as invisible, and that femicide is the most extreme form of intimate
partner violence.
In order to achieve the aims of this research paper, the following research questions
should be answered:
• How does the legal framework fulfil its role in protecting women against gendered
violence in Romania in light of the Istanbul Convention?
• How is femicide placed and addressed in a socio-legal context/perspective?
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By examining the above-mentioned issues which lead to answering the research
questions, this paper seeks to address a more comprehensive view on the effects of the
legislative measures linked to the Istanbul Convention and also to raise awareness about the
invisibility of femicide in society since there is little discussion and research done on this matter
from a socio-legal and gender perspective in a Romanian context.
Definitions and Limitations
Domestic violence is primarily described as a form of gender-based violence and it is
defined by the Istanbul Convention as “all acts of physical, sexual, psychological, or economic
violence that occur within the family or domestic unit or between former or current spouses or
partners, whether or not the perpetrator shares or has shared the same residence with the victim”
(Art. 3, b).
According to the World Health Organisation, intimate partner violence is defined as the
“behaviour within an intimate relationship that causes physical, sexual or psychological harm,
including acts of physical aggression, sexual coercion, physiological abuse and controlling
behaviours. This definition covers violence by both current and former spouses and partners”
(WHO).
As it can be observed, both the definitions of domestic violence and intimate partner
violence are very similar. Therefore, the terms are to be used interchangeably throughout this
research paper. However, it is important to note that the terms used to define the above-
mentioned issues are gender neutral from a linguistic point of view. Nevertheless, the Istanbul
Convention further defines violence against women, as well as gender-based violence against
women, therefore, highlighting the gender dimension of the problem.
Although intimate partner violence affects both heterosexual and same-sex couples, the
scope of this research will be limited to studying intimate partner violence against women in
heterosexual relationships since they are considered to be the majority of domestic violence
victims. Therefore, in line with the violence against women tradition, in this paper men are
considered to be the main perpetrators of intimate partner violence.
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Method and materials
As previously mentioned, this research paper aims to follow a socio-legal approach
from a feminist perspective in order to address its aims and research questions. To begin with,
socio-legal research saw its development as “the study of the law in its social context”, among
others (Feenan, 2013, p. 4). Therefore, since the main purpose is to examine intimate partner
violence through law, the main legal point of interest in this paper is represented by the Istanbul
Convention and the effects following its implementation in Romania.
While the socio of the socio-legal generally represents “an interface with a context
within which law exists” (idem, p. 5) there is a part where this law deals with women’s
experiences of gendered lives (Hunter, 2013, p. 205). Under such circumstances, the feminist
socio-legal thought emphasizes “the gendered nature of the socio” (idem). For the purpose of
this paper and in line with a feminist, gendered socio-legal approach, intimate partner violence
and femicide are to be considered the gendered socio. In order to approach this issue, feminist
socio-legal theory will be used.
By using the law-in-context approach, which will allow an analysis of “legal rules in
their social context and enable an understanding to be developed of how legal rules worked”
(Feenan, 2013, p. 7) the goal is to show how the Istanbul Convention has been enacted in the
Romanian socio-legal context.
In pursuing its goals, this research paper will make use of both primary and secondary
sources. As previously noted, the Istanbul Convention plays a key role in the legal analysis that
is conducted together with other traditional sources of law, such as the appropriate criminal
provisions of the Romanian Penal Code and other Romanian legislative texts related to
domestic violence. These sources have been acquired from the official websites of the
concerned institutions. To highlight the problems posed by intimate partner violence and
subsequently femicide and to present the various perspectives on the matter, secondary sources
have been represented by scholarly texts and expert reports, among others. These have been
consulted mainly through online access to Umeå University’s library, as well as other
institutions’ websites.
To sum up, the chosen method and materials go hand in hand with the theory.
Consequently, this allows for a socio-legal approach to be conducted, which will highlight the
context in which the law is enforced. This is because in a socio-legal approach the law is
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interconnected with “the analysis of the social situation to which the law applies” and observes
how the law maintains or changes the situation (Schiff, 1976, p. 287).
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THEORETICAL FRAMEWORK
To begin with, feminism may be broadly defined as an effort directed at challenging
and changing existing power and gender relations between men and women in society (Ferree
& McClurg Mueller, 2004, p. 577; Weedon, 1987, p. 1). On the other hand, intimate partner
violence is a phenomenon that brings the attention to the interdisciplinary nature of feminist
thought (Levit & Verchick, 2016, p. 204). The need for understanding why domestic violence
occurs and what are its consequences on the society gave rise to feminist explanations that use
concepts of patriarchy, gender, and power. Feminist insights on violence against women
provide a theoretical basis for this research paper.
A basic feminist theory
Feminist theory, quoted as being “the patriarchal perspective” (Taylor & Jasinski, 2011,
p. 342) considers the problem of intimate partner violence as having its roots in gender
inequality and views it as a brutal consequence of the patriarchal domination of men over
women, and therefore as being “oppressive and lethal for women” (Corradi, Marcuello-Servos,
Boira, & Weil, 2016, p. 979). Women’s subordination, therefore, gender inequality is closely
linked to patriarchal beliefs. Researchers say that these beliefs exist in all societies, yet they
vary according to the type of society in which they occur (Mansell, Meteyard, & Thomson,
2004, p. 82). Nevertheless, the unequal power distribution between women and men highlights
the fact that violence is a tool of keeping women under control, hence, in the benefit of the
perpetrator. The gendered power relations are at the core of patriarchy. Feminists pinpoint the
source of intimate partner violence on the societal level and they argue that “oppressive views
of women are not only culturally sanctioned but also embedded in and expressed through all
social institutions” (Taylor & Jasinski, 2011, p. 342). In order to analyse and understand how
intimate partner violence and femicide occur, it is essential to understand how the patriarchal
system and the gender relations work in a specific context. Not only may the social institution
of marriage and family, for example, promote and support men’s physical violence against
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women, in a context where the criminal justice system enforces light sanctions against
perpetrators, but also “the refusal of the state to intervene effectively in terms of welfare
provision and criminal justice responses to support women is part of the problem” (Wendt &
Zannettino, 2014). It is nonetheless important to mention that while using the patriarchal
concept, feminists avoid blaming the female victim and do not focus on whether she provoked
or not men’s acts of violence.
Feminist legal theory
Feminist legal theory developed from (the basic) feminism in general and it highlights
“the role of law in describing society and in prescribing change” (Levit & Verchick, 2016, p.
9).
Dominance theory, otherwise known as radical feminism, a part of feminist legal
theory, was first introduced by Catharine MacKinnon. It aims at the liberation from men by
focusing on the power relations and power difference between women and men. According to
this theory, men are privileged by the social institutions and the women are subordinated.
Women fear violence against them. Law is complicit in portraying women as inferior and at
the same time, it provides inadequate responses to violence against women while reinforcing
male domination (idem, p. 20-21). According to MacKinnon, male violence against women
reflects inequality and women’s subordination. Additionally, she claims that law fails to
address the conditions that contribute to male violence (Weisberg, 1996, p. 282).
Another contribution of the feminist legal theorists is that they reframed intimate
violence from a private issue into “a manifestation of a social system” of male power
dominance. Relying on criminal justice measures was a way of the feminist approach to bring
the private violence into a public realm. At the same time, to view domestic violence as a public
matter posed challenges because it has profound implications for societies. They drew
awareness about “the prevalence, effects, and gendered nature of intimate violence and the
cultural norms that shape current legal responses to it” (Levit & Verchick, 2016, p. 193).
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Socio-legal feminist theory
Turning to a socio-legal feminist theory, it is important to mention that socio-legal
theorists are equally interested in the social experience and effects of law as the feminist legal
researchers. Yet, one major concern was the lack of a connection between women’s
experiences and law. Thus, from a socio-legal perspective, this had to be tackled.
One the one hand, feminist theory of international law points out that, similarly to all
legal systems, the human rights system and the international criminal law are created primarily
by men. This resulted in protecting humans from violations which predominantly men are
likely to suffer from and therefore, gender-based violence against women was not a relevant
issue (Gebhard, 2018, p. 172). Thus, it can be said that “legal gender-blindness disadvantages
women” (Hunter, 2013, p. 210) since laws don’t address their experiences. On the other hand,
introducing a gender dimension into a legal discourse would result in the “constitution of
subjects and of the social” (idem, p. 211). Furthermore, the feminist approach to socio-legal
studies focuses on the implications of gendered power relations in law and society (Hunter,
2020, p. 260). In relation to all this, feminist socio-legal and criminological researchers
demanded reforms in the legislative context of gendered violence, for example, homicide and
laws criminalising violence against women, as it was considered that the legal system is the
best way to accommodate women’s experiences in relation to men’s acts of violence. Despite
the fact that the effectiveness of legal measures is highly contested, “recourse to the law
remains one of the central planks of policy responses” on preventing violence against women
(Walklate, Fitz-Gibbon, & McCulloch, 2018, p. 116).
The concept of femicide
Since femicide as a consequence of intimate partner violence represents a point of
discussion in this research paper, it is essential to draw attention to the fact that femicide is an
increasing phenomenon. Some might even argue that it needs to be distinguished from similar
forms of violence, “as a crime that is not only homicide, it is femicide” (Bandelli, 2017, p. 73).
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The current use of term femicide emerged in the feminist discourse of the 1970s. To
begin with, femicide was considered to be “the misogynous killing of women by men”
(Radford & Russell, 1992, p. 3). This has later been adapted to “the killing of females by males
because they are females” in order to emphasize the inequality of gender relations and the
concept of male power and domination over women (PATH, MRC, WHO, & Intercambios,
2008, pp. 8-9). Throughout time, feminist scholars have defined the concept of femicide in
various ways, yet today’s commonly accepted definition asserts that it involves the “intentional
murder of women because they are women” (WHO & PAHO, 2012). While the term femicide
is not a legal one, it is steadily being introduced into the social and legal discourse on violence
against women, and its use and understanding have been narrowed down to be a gender-related,
intentional killing of women. Despite the emerging use of the term femicide at European level,
for the scope of this paper, it has to be mentioned that femicide (femicid) does not exist in
Romanian language as a term of itself, although it has been used in academic research and
other studies.
From a legal perspective, femicide is a phenomenon part of homicide investigations
where the use of the term murder, as well as the use of the legal term homicide are gender
neutral, therefore, making invisible the gender-related characteristics of femicide as a social
and legal phenomenon concerning women. In other words, from a neutral perspective, femicide
means homicide of a female while highlighting the gender of the victim without implying any
motive or context. On the contrary, from a political perspective, the use of the term femicide
implies the motivations behind the killing as being related to the victim’s gender. Currently,
the term is generally used when describing the intentional killing of a woman, regardless of the
relationship with the perpetrator.
The introduction of the gender dimension in the intimate partner violence discussion
and highlighting the fact that women are killed because they belong to a specific gender
category is a necessary step in the efforts to eliminate this phenomenon. This is because,
according to patriarchal terms, it means allowing to see the woman as inferior, and therefore,
killing a woman would be an acceptable situation.
Additional attention was given to this matter in 2013 through the Vienna Declaration
on femicide, which offered a broad definition of femicide and the different forms it takes. For
example, femicide can appear as the murder of women as a result of intimate partner violence,
or as the torture and misogynist slaying of women, among others. In addition to this, it was
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called for the full compliance with national and international legal instruments of countries in
order to put an end to femicide (Laurent, Platzer, & Idomir, 2013, p. 4).
Femicide typically happens both in intimate partner relationships and domestic
relationships. It is true that the social, cultural and economic context, the pattern of gender-
based violence in a specific community or country can be used to explain why femicides take
place. However, although some might argue that femicides need to be addressed in their own
specific contexts it is important that they are not treated as isolated incidents.
Feminism is the most appropriate perspective to explain femicide due to its “emphasis
on sociostructural oppressive views of women”, in addition to the fact that “heterosexual
relationships provide a culturally sanctioned perceived right on the part of men to assert and
maintain power and control” over women (Taylor & Jasinski, 2011, p. 354). Moreover, it
deploys a gendered aspect in the social interpretation of femicide through the feminist critique
of inequality in a patriarchal context.
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ANALYSIS
The Council of Europe Convention on preventing and combating violence against
women and domestic violence
Throughout the years, several measures were undertaken in order to protect women
from violence across Europe. One of these measures is the Council of Europe Convention on
preventing and combating violence against women and domestic violence, hereafter the
Istanbul Convention, that was open for signature on 11 May 2011 and which entered into force
on 1 August 2014. As its name says, this treaty aims at protecting women from violence in
both the public and private sphere (Art. 4, para.1) preventing and prosecuting acts of violence
against them, while ultimately eliminating this phenomenon through a human rights-based
approach (CoE, 2011, p. 6). Once all the European Union member states give their approval,
the EU can ratify the Istanbul Convention, and this will become EU law.
The Istanbul Convention acknowledges that all forms of violence affect women
disproportionately. At the same time, it understands violence against women as a structural
phenomenon and “a manifestation of historically unequal power relations between women and
men”, which is in line with the feminist thought on patriarchy and gender inequality. The
Istanbul Convention also emphasizes the gender dimension by using a dual focus on women
and on domestic violence (Walby, et al., 2017, p. 24).
In order to monitor the effective enactment of the Istanbul Convention by the signatory
states, an independent expert body was created. The Group of experts on action against
violence against women and domestic violence, hereafter GREVIO, is responsible for
monitoring, issuing reports as well as recommendations regarding the legislative measures
taken by the signatory parties (Chapter IX).
The Istanbul Convention aims to achieve its purposes through prevention (Chapter III),
protection and support (Chapter IV), prosecution (Chapter V, VI) and integrated gender-
sensitive policies and data collection (Chapter II). Furthermore, it is a significant document of
criminal law as it addresses a range of criminal offenses committed against women, such as
physical and psychological violence, sexual violence and harassment, and forced marriage,
among others. Yet, for the scope of this research paper, it is important to note that the Istanbul
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Convention does not refer to femicide, nor does it use this term in its content. Although, by
making reference to criminalising acts of physical (Art. 35) and psychological (Art. 33)
violence intentionally committed against a person, it can be implied that, domestic violence in
general, and femicide (as per definition) as a form of intimate partner violence are addressed
by the Convention.
Considering that this research paper undertakes a socio-legal analysis, looking into
substantive law is the most apposite choice since it rules the way people in a society are to
behave (Legal Dictionary, n.d.). At the same time, criminal law provisions are necessary in
order to achieve the effective prosecution and punishment of the perpetrators and to protect
women. For this reason, one of the steps is to conduct a legal analysis of the substantive
provisions related to criminalising gender-based violence against women, intimate partner
violence and thus, femicide, where the relevant provisions of the Istanbul Convention state
that:
“Article 35 – Physical violence
Parties shall take the necessary legislative or other measures to ensure that the
intentional conduct of committing acts of physical violence against another person
is criminalised.
Article 46 – Aggravating circumstances
Parties shall take the necessary legislative or other measures to ensure that the
following circumstances, insofar as they do not already form part of the constituent
elements of the offence, may, in conformity with the relevant provisions of internal
law, be taken into consideration as aggravating circumstances in the determination
of the sentence in relation to the offences established in accordance with this
Convention:
a. the offence was committed against a former or current spouse or partner
as recognised by internal law, by a member of the family, a person
cohabiting with the victim or a person having abused her or his authority;
b. the offence, or related offences, were committed repeatedly;
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c. the offence was committed against a person made vulnerable by particular
circumstances;
d. the offence was committed against or in the presence of a child;
e. the offence was committed by two or more people acting together;
f. the offence was preceded or accompanied by extreme levels of violence;
g. the offence was committed with the use or threat of a weapon;
h. the offence resulted in severe physical or psychological harm for the victim
i. the perpetrator had previously been convicted of offences of a similar nature.”
As it can be observed, the above-mentioned criminal law provisions of the Convention
are introduced in a gender-neutral way. In other words, neither the sex of the victim nor of the
perpetrator should be an essential element of the crime and this should not hinder the
introduction of gender-specific provisions by the signatory countries (CoE, 2011, p. 28).
The Explanatory Report of the Istanbul Convention highlights the fact that physical
violence encompasses violence resulting in the death of the victim (idem, p. 32), thus, such a
provision is extremely important as it can be applied to femicide as the intentional killing of a
woman. Through Article 46 and the mentioned circumstances (a – i) it is reinforced that in
establishing the penalty these circumstances can be considered as aggravating, however, they
are not compulsory to be taken into account in the context of a court case. Nonetheless, in case
of intimate partner violence and femicide, the first of the aggravating circumstances covers the
various circumstances of the relationship between the victim and the perpetrator, for example,
as former or current marital or non-marital partner, but also as family member, regardless of
the household cohabiting conditions (idem, p. 40).
Furthermore, under certain circumstances, the addition of the Article 42 of the
Convention can prove valuable. This is due to the fact that its provisions state that “any of the
acts of violence covered by the scope of this Convention, culture, custom, religion, tradition,
or so-called ‘honour’ shall not be regarded as justification for such acts”. This means that these
elements cannot be used as a justification for the perpetrator’s behaviour in the case of a
criminal offence, such as violence against women.
When it comes to procedural law, the Convention calls for the immediate response of
the responsible authorities in cases of violence, without delay and by offering adequate and
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immediate protection to the victims, and even restraining and protection orders in order to
protect the victims from further violence. This is illustrated as following:
“Article 53 – Restraining or protection orders
1. Parties shall take the necessary legislative or other measures to ensure that
appropriate restraining or protection orders are available to victims of all forms
of violence covered by the scope of this Convention.
2. Parties shall take the necessary legislative or other measures to ensure that the
restraining or protection orders referred to in paragraph 1 are:
- available for immediate protection and without undue financial or
administrative burdens placed on the victim;
- issued for a specified period or until modified or discharged;
- where necessary, issued on an ex parte basis which has immediate effect;
- available irrespective of, or in addition to, other legal proceedings;
- allowed to be introduced in subsequent legal proceedings.
3. Parties shall take the necessary legislative or other measures to ensure that
breaches of restraining or protection orders issued pursuant to paragraph 1 shall
be subject to effective, proportionate and dissuasive criminal or other legal
sanctions.”
As it can be observed, the main role of the restraining or protection order is to prevent
immediate and further acts of violence, with the overall aim to protect the victim. Each
signatory country can choose the appropriate legal regime to issue such orders (CoE, 2011,
p.45).
Apart from legislative measures, another important aspect in achieving the purpose of
the Convention is provided by the requirement of the signatory states to adopt the necessary
measures in order to ensure the protection of the victims through general and specialised
support services, by setting up shelters and helplines, and by offering assistance for complaints,
among others. Last but not least, adequate data-collection is considered to be “an essential
component of effective policy-making in the field of preventing and combating all forms of
violence covered by the scope of this Convention” (idem, p. 14). This means that an accurate
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data-collection on the number of femicide cases could sensitize the society on the issue of
domestic violence as well as contributing to policy changes, for example.
There is no doubt that requiring member states to create national legal tools through
substantive and procedural provisions, to offer protection and to make efforts to prevent
violence against women from happening, the Istanbul Convention aims to protect women from
all forms of violence. However, the main question is, if and how are the signatory countries
implementing all the legal and social measures in order to protect women from intimate partner
violence and consequently, femicide, since the Convention has been criticised for its criminal
law provisions as they “do not succeed in challenging national criminal laws” (Niemi, Peroni,
& Stoyanova, 2020).
The Romanian Legal Framework in relation to the Istanbul Convention
Romania is the 14th state that ratified the Istanbul Convention and the document entered
into force on 1 September 2016. Since then, according to Romania's Government first report
on the implementation of the Council of Europe Convention on preventing and combating
violence against women and domestic violence (Istanbul Convention) the country “embarked
on an ambitious and comprehensive reform of domestic violence legislation” in order to
implement the Convention’s provisions (2020, p. 1). In other words, the country has to comply
with taking all the necessary measures imposed by the Covention so as to respond to the
problem of gender-bassed violence and domestic violence.
First and foremost, the concept of gender equality is recognised as a principle of human
rights through the Constitution of Romania.
Since the purpose of this paper is to look into the way Romania adapted its legal
framework to prevent and protect victims from domestic violence in the first place in
accordance with the Istanbul Convention, it has to be mentioned that the main sources of gender
equality law are to be found in the national legislation and international treaties that the country
has ratified. Prior to the ratification, the pre-existing legal framework “was only part in
compliance with the obligations under the Convention” (Ionescu, 2020, p. 52). Thus, among
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the most important measures taken by the Romanian Parliament with regard to preventing and
combating domestic violence are the following legislative acts that have recently been updated:
• Law no. 174/2018 amending and supplementing Law No. 217/2003 on Preventing and
combating violence within the family, which introduces a victim-centred perspective
and additional measures to prevent domestic violence and to support victims that suffer
from domestic violence, for example, the protection order. At the same time, this law
brings modifications regarding the unacceptable justification of criminal acts, which
brings it in line with Article 42 of the Istanbul Convention.
• Law no. 178/2018 amending and supplementing Law 202/2002 on Equal opportunities
and treatment between women and men, otherwise known as the Gender Equality Law,
in which the most important aspect is the one regulating the concept of gender-based
violence against women, or men, depending on the situation, according to Article 3, d
of the Istanbul Convention (ANES).
Initially, The Romanian Penal Code was amended by Law no. 197/2000 that was setting
sanctions for perpetrators of acts of violence against family members that cause physical and
psychological suffering. Later on, the Penal Code was amended by Law no. 286/2009 that
brought the following changes in the Special part:
Title I – Crime against individuals, Chapter III – Offenses against a family member
Article 199 Domestic violence1
(1) If the acts set by Art. 188, Art. 189, and Art. 193-195 are perpetrated against a
family member, the special maximum term of the penalty set by law shall be
increased by one fourth.
(2) In case of offenses set by Art. 193 and Art. 196 perpetrated against a family
member, a criminal action may be initiated also ex officio. Reconciliation shall
eliminate criminal liability.
1 The version in English of the articles may differ depending on the various unofficial published translations of the Romanian Penal Code. (Romania - Law on the Criminal Code)
23
On the one hand, Art. 188 refers to homicide/murder and the perpetrator’s punishment
with imprisonment, while Art. 189 establishes a different punishment under certain
circumstances of an aggravated first degree (qualified) murder. On the other hand, through the
Art. 193-195 battery and other acts of violence, bodily injury and death-causing battery or
injuries are being punished.
As it can be observed, there is a higher punishment in the case of some of the offenses
in the Criminal Code depending on the nature of the relationship between the victim and the
perpetrator. Therefore, the provisions of the Romanian Criminal Code regarding domestic
violence are in line with the Article 46 of the Istanbul Convention that mentions the aggravating
circumstances.
With regard to other substantive provisions of the Istanbul Convention, the Criminal
Code of Romania recognizes all the forms of violence referred to in the Convention as criminal
offences, with the addition of the domestic violence definition in the Law no. 217/2003 as
following:
“Article 3
domestic violence refers to any action or omission to act intended by physical,
sexual, psychological, economic, social or spiritual violence, which occurs in the
family or domestic environment or between spouses or former spouses, as well as
between current or former partners, regardless of whether the aggressor lives with
or lived with the victim.”
Through the introduction of this definition into the Romanian law, despite the fact that
intimate partner violence is not recognised as a specific offence other than domestic violence,
and since femicide does not exist as term nor it is a criminal offence recognised by law, in
connection with the recognition of a gender-related motive for committing a crime, this has
been a major step in creating the legal context for prosecuting male perpetrators who kill
women.
Another major step to be enforced through the Istanbul Convention is the one
concerning the restraining or protection orders, which in the case of Romania was not an easy
task. Initially, authorities believed that such an order would violate the constitutional right to
24
property of one of the partners, thus back then a criminal complaint against the abusive partner
would only give her the option to return under the same roof as the perpetrator or leave with
the risk of being found and abused again (Sandu, 2019). In 2011, Romania was the only
remaining country of the EU not to have implemented the protection order. After a series of
protests and unfortunate events of femicide, the discussion on the protection orders resurfaced.
It was only in 2012 that the Law no.217/2003 was amended with the mention of a protection
order. With the ratification of the Istanbul Convention, the same Law no. 217/2003 was
amended in 2018, by regulating the provisional protection order, therefore, giving immediate
rights to the Police to act upon the complaint depending on certain circumstances.
The protection order is of course not the only legal instrument to protect victims, but it
is the most visible one, and in the Romanian context it could be considered a successful effect
of the Istanbul Convention.
According to statistical data from the justice sector on the victims of family violence
for 2018, there is a total of 1647 victims and 1360 indicted defendants of various domestic
violence offences, from which 207 are murdered victims and 199 indicted defendants as per
Article 188 and Article 189 of the Criminal Code. The total numbers have slightly decreased
compared to 2017, when there was a number of 213 murdered victims and 206 indicted
defendants (Public Ministry). At the same time, Police statistics for 2019, show an increased
number of 244 cases that ended up in murder. It is important to add that these number do not
indicate the sex of the victim and of the perpetrator or the relationship between them. On the
downside, Romania does not provide data on women victims of intentional homicide by an
intimate partner or family member (EIGE, 2019). The only statistical data with public access
are general, as seen above, and provided by the Public Ministry. Although there is available
collected data by the Police and the justice sector that records the sex of the victim and the
perpetrator, as well as their relationship, this is available only upon official request (EIGE,
2018).
It is needless to say that the lack of in-depth national statistical data regarding domestic
violence, victims and perpetrators and thus, femicide, hinders the capacity to get a real and
comprehensive understanding of these phenomena. Through the Romanian National Strategy
for the Promotion of Equal Opportunities and Treatment for Women and Men and Preventing
and Combating Domestic Violence for the Period 2018-2021 the country commits to launching
an integrated system to follow, report and prevent all forms of domestic violence by
25
strengthening the legislative framework, developing support and protection measures for
victims, as well as preventing domestic violence overall.
In order to implement the National Strategy and oversee the execution of a gender equal
perspective in all national policies and programmes, a government institution was given this
responsibility.
The National Agency for Equal Opportunities between Women and Men (Agenția
Națională pentru Egalitatea de Șanse între Femei și Bărbați) created in 2002 was re-
transformed into an Agency in 2015 after having previously been downgraded into a
Government Department for Equal Opportunities between Women and Men due to the
economic crisis. Its responsibilities consist of developing and applying policies related to equal
opportunities between women and men, developing the legal framework in accordance to
international conventions, ensuring the integration and implementation of a gender perspective
in the national policies, and of course, fighting domestic violence among others (Law no.
202/2002). Despite its responsibilities according to law, unfortunately, ANES is considered to
be “a decorative institution” that has little competence to enhance the implementation of the
public policies related to domestic violence and gender equality (Ionescu, 2020, p. 59). Its role
can undoubtedly be questioned in a context where research show that “almost half of
Romania’s population is not aware of the existence of a legal instrument that regulates domestic
violence” (Safta, Stan, Iurea, & Suditu, 2010, p. 2035).
Taken together, the adoption of new laws and measures to combat and prevent domestic
violence and the development of the Romanian legal framework in accordance with the
Istanbul Convention can be seen as a fundamental step towards achieving greater gender
equality. It is also well known that law is the “accepted mechanism for resolving social and
individual problems and conflicts” (Smart, 2002), therefore, one could assume that law is
enough to solve the problem of femicide. But is law really enough?
26
DISCUSSION
Since this research paper aims to conduct a feminist socio-legal discussion, it is
essential to underline the need of a social framework “in order to gain a full understanding of
both the facts and the law” (Hunter, 2020, p. 265). For this reason, a short insight into the
Romanian social context must be taken into account.
Following the fall of communism 30 years ago, it is said that in Romania, “from a
liberal point of view, the personal was never political for women” and that women’s inequality
is justified “by nature” (Miroiu, 2006, p. 84). Gender equality remains to this day a somewhat
alien concept in practice for the majority of the country’s population despite having had
implemented gender equality related legislation “on paper”, over the span of time. The
explanation for this social reality of gender inequality is based on the traditional and patriarchal
cultural norms that are deeply entrenched in people’s way of living and behaving in Romania
(Oprica, 2008, p. 29) and where both women and men still believe in the folkloric expression
that “beating comes from heaven” (Roman, 2001, p. 58).
It is frequently said that intimate partner violence, or domestic violence in no matter
the form it takes, have their roots embedded in the social and cultural beliefs about gender roles
and that they are supported by the patriarchal ideology and practices. It seems that the social
and cultural acceptance of domestic violence is prevalent worldwide (Wimmer & Harrington,
2008, p. 625). Romania is no exception.
The general gender based violence discourse “affirms that men are violent towards
women intentionally for the sake of controlling and re-establishing male superiority against
women’s violation of patriarchal gender norms, and that this behaviour is culturally encouraged
or accepted” (Bandelli, 2017, pp. 52-53). Similarly, a gender discourse of violence claims that
men kill women for the same reasons that induce them to commit other forms of violence, such
as rape. This is justified once again by the support from their culture to express control over
women (Bandelli & Porcelli, 2016, p. 1076).
In Romanian culture, women are usually presented within the gender politics of
patriarchy (Roman, 2001, p. 60) and men believe they are entitled to exert their power on
women, and in consequence, they are considered killable. Nevertheless, on a societal level, the
debate that takes place puts a spotlight on the ubiquity of domestic violence, but less on its
27
causes, and more on the ineffectiveness of the protection measures for victims of domestic
violence. This is most prevalent in cases where the authorities, police for example, know about
the history of violence against women who are later killed by their aggressors (Sandu, 2019).
Domestic violence, in general, in Romania, is a phenomenon that is under-reported and
because of this, there are many more chances of it leading to femicide, the intentional killing
of a woman. It is well known that intimate partners are the most frequent perpetrators.
“Intentional” in the case of a violent crime usually means that “the victim was targeted by the
perpetrator either in the heat of the moment or as a result of some degree of planning”, whereas
in the case of femicide, “there can be a more narrowly targeted meaning” (Walby, et al., 2017,
p. 64).
As previously mentioned, the law is thought to be the means to resolve social problems,
while, it is also acknowledged that the more women resort to law, the more hostility is
generated. Clearly, the criminalisation of violent behaviour and acts of violence against women
is sending a strong message about what is acceptable or not, yet, an important role that prevents
women from reporting violence against them is played by shame, humiliation and fear. If the
lack of a protection order used to be a problem in the Romanian legal context, as previously
mentioned, after its introduction, the problem that arose was the withdrawal of the criminal
complaint by the victim. On the one hand, this is a consequence of threats from the perpetrator,
which aim to provoke fear in most cases. For this reason, it is important to keep in mind that
lethal acts of violence against women in intimate relationships are usually preceded by ongoing
verbal and emotional abuse, acts of physical violence and threats, which could be prevented
with the right measures. Another reason could be simply blamed on the economic factors that
would not allow women to carry on with a criminal case. On the other hand, the issue concerns
the lack of trust in the responsible authorities to protect victims from domestic violence.
Women seem not to be believed and listened to, or even judged by the same authorities that
should help them (Sandu, 2019).
The fact that women are reluctant to report their partners for violence committed against
them, not only perpetrates the problem of intimate partner violence, but also contributes to
unfortunate consequences, such as femicide. At the same time, the under-reporting of domestic
violence cases prevents this issue to gain more visibility on a nation-wide level. Given this
context, it can be added that the lack of accurate statistical information on gender-based
violence limits the research on the matter as well as a general awareness raising.
28
The enclosure of the sex of the victim and the sex of the perpetrator, as well as
establishing the relationship between them is necessary in the issue of intimate partner
violence, and subsequently femicide, since this is important data to the analysis of the gender
dimensions of violence (Walby, et al., 2017, p. 62). In this way it can be established, among
others, if there is a gendered motivation that resulted in femicide.
29
CONCLUSIONS
Undoubtedly, violence against women is gender-based violence and a human rights
violation and it is a widespread phenomenon, or as it has recently been called, “a widespread
pandemic without borders” (Simonovic, 2020). Therefore, first and foremost, having
conducted this research, it can be concluded that violence against women, regardless of the
forms it takes, is indeed a complex socio-legal phenomenon that requires a multidimensional
approach.
It is also needless to say that violence against women has deep consequences for society
at large and that victims of gender-based violence suffer lifelong consequences from intimate
partner violence. For this reason, it is of outmost importance to address this woman centred
social problem of intimate partner violence, and subsequently, femicide, that is generally
looked at from a male-centric perspective of the law.
Thanks to (feminist) legal measures, femicide is increasingly being perceived not only
as a social problem, but also as major problem in legal terms. It has been discussed that a
successful prevention of violence against women and femicide could be achieved through legal
measures and equality between women and men in society. However, can the social context
predict if an individual will kill? Most probably not. But together with the legal framework,
the right measures and by raising awareness on this major social problem, this phenomenon
can be prevented, if not, at least women can be protected from suffering further violence caused
by an intimate partner.
This research paper began from a need to understand how Council of Europe’s Istanbul
Convention is enacted in a specific socio-cultural context. This context was represented by
Romania.
The first question that was asked sought to determine the way the Romanian legal
framework fulfil its role in protecting women against gendered violence in light of the Istanbul
Convention. Contrary to expectations, the analysis shows that, with the ratification of the
Istanbul Convention, Romania’s legislation in the field of domestic violence substantially
improved, and therefore, the country has clearly put the effort in complying with the provisions
of the Istanbul Convention and it is on the right path towards a better protection of women
against gendered-based violence. It will be of great interest to see what the GREVIO
30
recommendations will be as it plans to carry out an evaluation in the Autumn of 2020 “in order
to assess the situation of the ground” (GREVIO, 2020). There is of course room for
improvement, and although a proper intimate partner violence analysis is incomplete due to the
lack of a systematic data collection, it is important to understand that improvements in data
collection are absolutely necessary in order to better address this issue.
This brings into discussion the second question to be answered, which was related to
how femicide is placed and addressed in a socio-legal context/perspective. Despite the current
lack of relevant data on the exact numbers of femicide cases in Romania, it can be
acknowledged that femicide is nevertheless a serious problem. Unfortunately, Romanian
patriarchal cultural norms and the lack of appropriate education contribute to propagating
violence against women, including intimate partner violence, among others. Due to the former
communist background of the country, once its fall happened, people found themselves with
other major problems to focus on rather than gender equality, thus, gender inequalities can be
found in all social, economic and legal structures of society. Obviously, if also the authorities
have a prejudiced and stereotyped perspective on female victims of intimate partner violence,
the law will not be able to improve the problem.
Despite the fact that from a feminist perspective it could be argued that working towards
achieving gender equality would decrease femicide rates as men would lose control over
women, conversely, it is said that “laws intended mainly to protect women from abuse seem to
expose them to a greater risk of lethal violence” (Gauthier & Bankston, 2004, p. 116).
Although, intimate partner violence and femicide are acts of violence that occur within the
home and family context, thus a private context, and since they are challenging issues to solve,
it is essential to allow the public context, in this case the law, to at least contain the problem, if
not solve it.
On a final note, in the context of the COVID-19 pandemic, states must not forget that
the Istanbul Convention is a powerful legal instrument in order to fight against all forms of
violence against women and it is more relevant than ever. The more awareness there is on the
issue, the more women will be able to ask for help.
31
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