Domestic Violence

by Jeremy Leaming

More than a decade ago federal lawmakers had little trouble coming together to pass a piece of legislation aimed at improving the lives of some the country’s most vulnerable. It was 1994 when Congress in sweeping bipartisan fashion passed the Violence Against Women Act (VAWA), extending government services to victims of domestic violence.

But reauthorizing that law is mired in what The Hill’s Russell Berman says is a “familiar Capitol dynamic – a political staring contest on stalled legislation that has historically enjoyed strong bipartisan support.”

While Berman paints an evenhanded picture – both parties are obstinate, can’t work together – a strong argument can be made that what is really going on here involves the intransigence of the Republican Party. The party has moved so far to the fringe, has become so hostile to helping the nation’s most vulnerable that it should come as no surprise that it does not want to work with the Senate to reauthorize VAWA.

The reason is straightforward: today’s VAWA would expand services for victims of domestic violence.

The measure the Senate passed in April would bolster services for immigrant women who are victims of domestic violence, it would strengthen the ability of Native American authorities to prosecute domestic violence, and it would ensure help the LGBT community.

House Republicans and right-wing lobbying groups have opposed the new services. Longtime right-wing activist Phyllis Schafly, for instance, called the Senate’s VAWA reauthorization a “slush fund for the feminist lobby.”

When the House passed its reauthorization of VAWA in May it did not include the Senate’s call for extension of services, but also sought to cut existing services. At the time the House Judiciary Committee’s Ranking Member Rep. John Conyers blasted the House version for rolling back “existing law” and failing “to protect some of the most vulnerable victims of violence.”

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By Karen Musalo, clinical professor of law and director of the Center for Gender and Refugee Studies at the University of California, Hastings College of Law.

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On August 4, 2010, in a closely watched case, an immigration judge granted asylum to Ms. L.R., a woman from Mexico. The grant in Ms. L.R.'s case came on the heels of a grant of asylum in another high-profile case, that of the Guatemalan asylum seeker, Rody Alvarado. What both cases had in common is that the women asylum seekers had fled brutal violence and abuse at the hands of their male partners in a situation where neither the police nor the courts responded to repeated calls for protection. Taken together the cases send a message loud and clear that domestic violence can be the basis for a successful claim to asylum. They also stand for the broader principle that women who suffer a range of violations of their fundamental human rights - from female genital cutting (FGC), to honor killings, to forced marriage or sexual slavery - are also entitled to protection as refugees.

Although the protection of women whose human rights are violated should not be a controversial proposition, it has been - and continues to be - and women have had to struggle for the recognition that "women's rights are human rights." Their activism over the years has resulted in the promulgation of a number of international human rights instruments, including the Declaration on the Elimination of Violence against Women that specifically address the human rights of women.

In the United States, these advances began to bear fruit in the refugee protection area with the 1996 grant of asylum to Fauziya Kassindja, a woman who fled female genital cutting [FGC]. The decision in Fauziya Kassindja's case (known as Matter of Kasinga) was issued by the Board of Immigration Appeals (BIA), the highest immigration tribunal in the U.S., and was the first precedent decision in U.S. law granting asylum to a woman who fled a gender-based form of persecution. Women's rights and refugee rights advocates celebrated the grant in Ms. Kassindja's case, seeing it as the opening of the door to protection for women fleeing gender-based violations.

However, the celebration was short-lived. Three years later the BIA denied asylum to Rody Alvarado, who sought asylum from more than a decade from what can only be characterized as torture at the hands of her husband, an ex-soldier in the Guatemalan military. Over the ten years of their marriage, her husband pummeled her with his fists, broke windows and mirrors with her head, woke her in the middle of the night with a knife to her throat, and threw machetes across the room at her. The police never answered her desperate calls for help, and a judge told her he wouldn't get involved in a "private" matter.

The denial of asylum in Ms. Alvarado's case was the opening shot in a 14-year-long battle to vindicate the principle that women's rights are human rights, and to hold the courts to the precedent exemplified by the grant of asylum in Matter of Kasinga. Ms. Alvarado was finally granted asylum in December 2009. To understand how this came about, it's necessary to return to where we began - the L.R. case, which the Obama Administration chose to be the vehicle by which it would articulate its position on the issue of asylum in cases such as these. Although one can only speculate, it is a good assumption that the Administration chose the L.R. case because its facts were not only compelling, but also representative of cases involving gender-based violence.