On 26 November 2018, ten MPs submitted a bill to amend the 2014 Law on the Protection of Women and Family Members Against Domestic Violence at the initiative of the organization KAFA (Enough) Violence & Exploitation. The organization resorted to a parliamentary initiative after the government of the time entered a caretaker phase before it could discuss the bill, which had been referred to it via then minister of justice Salim Jreissati on 7 April 2017.[1] The bill’s rationale revolves around the need to correct the 2014 law in light of its practical applications. In this article, I will perform a critical reading of the amendments and their dimensions, thereby reinforcing efforts to protect women and vulnerable groups in the hope of curbing abuse and discriminatory practices against them.

The Definition of a Family: Domestic Workers Lack Protection

The bill makes an important amendment to the definition of a family, adding “divorcee” to the list of people encompassed by the law. This addition addresses a number of instances where men have perpetrated violence against their ex-wives, usually amid a custody dispute, and the latter were unable to request protective measures.

On the other hand, the proposed definition is still based on legal ties of marriage and filiation and ignores the notion of a family formed outside of such ties, such as one arising from cohabitation or stable intimate relationships. Although one summary affairs judge in al-Matn (Antoine Tohmé) ruled to expand the concept of a family to include a (foreign) domestic worker as she “leaves her country to stay in her employer’s home to provide him service for a given wage, [does not] depart said home, attends to the needs of the family members (especially the children), and lives with that family day and night”, the amendment now ignores this group. Irrespective of the arguments for or against incorporating this group within the family definition, the result is that the worker is excluded from family protection under the pretext that she is a worker while also already excluded from the Labor Code’s protection on the pretext that she works within a family. This excludes her from all protection. From this perspective, the state would again be failing to take the measures needed to protect this group from any act of violence it may face.

Defining Violence: Breaking Free of the Principle That No Violence Exists Without a Legal Text Specifying It

This is the most important dimension of the bill as one of the current law’s main weaknesses is the definition of violence. While the parliamentary micro-committee that drafted the law in 2013 justified narrowing this definition on the basis of limiting the instances in which a civil judge can intervene in family affairs in order to preserve families and the powers of the religious courts, in practice it ultimately restricted the definition to the cases involving penal offenses that it assesses to be “violent”, such as murder, injury, threats, adultery, and prostitution. Hence, the law followed Lebanese legislation’s tradition of separating the penal realm (to be examined by the state and regular judiciary) from the realm of personal status (which, under Article 9 of the Constitution, the sects may regulate for their own members). Moreover, it responded to the religious authorities’ stated concern that any flexible definition of violence could lead to results akin to those that juvenile judges reached based on the definition of “at-risk children”.[2][3]

Consequently, the definition of violence in the current law seems deficient in comparison to the internationally adopted definition. It also lacks consistency as it excludes forms of violence just as serious (or perhaps even more so) than the forms it encompasses. One of the gravest consequences is the exclusion of forms of violence justified by traditions, which had also remained outside the bounds of criminal law. Such forms include forcing a daughter to marry, preventing a wife from leaving the house, insults and degradation, and marital rape. Meanwhile, the law characterizes certain acts as violence in and of themselves irrespective of their effect on family members, including acts that traditionally constituted pretexts for committing violence against women, such as adultery.

Focusing on Violence Justified By Tradition

After the law came into effect, summary affairs judges did not wait long before adopting bold stances that break free from the principle of “no violence without a text” on the basis that it makes no sense not to apply the law to moral violence as it is just as serious as physical violence, if not more so.[4] Hence, the proposal accords with the dominant judicial trend by expanding the adopted definition of violence to include “any action, inaction, or threat thereof… that is committed by a family member against one or more family members… and results in murder or physical, psychological, sexual, or economic harm”. Subsequently, if the legislature adopts the bill, it will retreat from the principle of no violence without a text and officially open the door for court jurisprudence. Note that this general definition of violence is accompanied by a few detailed stipulations on certain forms. For example, there are texts on the concept of economic harm, which includes “deprivation from financial resources, deprivation from the family’s basic needs, and the crimes of fraud, theft, and usurping a person’s signature”.

Adultery Does Not Constitute Violence in and of Itself

Just as important as the bill’s expansion of the aforementioned definition to include instances of violence sanctioned by traditions, it also trims the law of forms of violence that have often constituted a traditional justification for committing various acts of violence against women. Such forms include adultery, incitement to debauchery and corruption (Article 523 of the Penal Code), and prostitution. The bill removes these acts from the scope of violence per se, thereby allowing the judge to decide on a case-by-case basis to what extent the elements of violence are met given the aforementioned definition. Thus, the bill appears to be working to correct another flaw in the current law, namely its consideration of any deviation from public morals by either spouse to be an act of violence against the other spouse irrespective of the act’s effect on the latter.

No Violence Without Authority?

Despite the importance of the proposed expansion, it can be criticized for its addition of the condition that violence must involve “abuse of authority within the family with physical or other force”. This condition is based on an indeterminate concept, and it virtually replaces the principle that there is no violence without a text with the principle that there is no violence without authority.

The first question that this addition poses is the nature of “authority”. Does it refer to the authority of one family member derived from a legal text, such as one of the many sectarian personal status laws that declare the man to be the “head of the family”? Or is it de facto authority that the judge should identify based on the circumstances and dynamics within each family? In the former, more probable case, this condition would enshrine the concept of traditional authority within the family – whether patriarchal or spousal – in a civil text, just as the current domestic violence law did when it enshrined the concept of a “right to intercourse”. The condition would also open the door for debate about the extent to which abuse of authority is present and to the invocation of all the sectarian legal texts that refute or corroborate it. While the bill’s drafters probably intend via this addition to return the spotlight to the law’s original purpose, namely to protect women subject to men’s traditional authority, the fear is that in practice, it could lead to the justification of several forms of violence under the exigencies of authority, and that the definition will therefore ultimately re-tighten the conditions for protection instead of loosening them. Hence, it may be best to re-examine this condition.

Crime and Punishment

The Penal Code includes acts that society deems so dangerous to it or its members that it is necessary not only to make the perpetrators compensate the people harmed, but also to employ a penal punishment in order to do justice for the victims and society, and deter anyone tempted to commit them in future. The punishments should be greater the more serious the acts are pursuant to the principle of proportionality between punishment and crime. From this standpoint, the amendment seeks to re-evaluate acts perpetrated within the family based on the hierarchy of values adopted by its drafters.

While this approach seems justified by the intent to strengthen social deterrence to the phenomenon of violence against women, it generally needs to be more precise to avoid any negative effects on protective measures and the possibility of mending the problem within the family. The bill’s main amendments in this regard include:

Domestic Violence is a Distinct Crime

This amendment aims to make all instances of “violence” liable to penal punishment, including forms not considered a crime under the current law. Besides the importance of this proposal for deterring acts of violence, especially discriminatory violence, it may also constitute a necessary step for overcoming social and ideological factors that still prevent the protection of women and marginalized groups from some of the most serious forms. Accordingly, one of the main results of criminalizing “violence” in and of itself is that it allows the implicit criminalization of marital rape on the basis that it causes psychological and sexual harm and therefore constitutes violence under the bill’s definition. It is also a gateway for punishing “whoever incites, participates, or is complicit in the crime of domestic violence” even if they are not a member of the family. One blatant example is a customer who pays a woman for sex while knowing that her prostitution is the result of domestic violence perpetrated against her.

However, irrespective of the benefits of expanding the criminalization to encompass all instances of violence, more scrutiny is needed to bring it in line with the principles of criminal law. Criminalized acts must be defined precisely so as not to violate the principle of legality, i.e. the principle that no crime exists without a legal text defining it. Here, the concern is twofold:

Firstly, the criminalization of “acts of violence” of all kinds could push judges to narrow the definition of violence and employ extreme caution when evaluating evidence of its occurrence in order to comply with the aforementioned principles and the principles of evidence in the penal realm. This result would be completely contrary to what the principles of interpreting laws on protecting fundamental rights require, namely to encourage judges to broaden the instances in which they intervene to protect these rights and, subsequently, to expand on the definition of violence.

Secondly, the criminalization of “acts of violence” could discourage people suspected of perpetrating or practicing violence from cooperating with the judiciary, particularly when it comes to voluntarily and productively undertaking anti-violence rehabilitation courses, which is a protective measure included in the bill to correct the 2014 law. From this angle, the fear is that the criminalization of violence will eliminate the benefits of rehabilitation from it.

Without downplaying the importance of criminalizing some acts of violence in and of themselves (e.g. marital rape, complicity in forcing a wife into prostitution by being the customer, and other extremely serious acts), it could be appropriate to rethink the criminalization of less serious instances of violence or at least link their prosecution to the abusive family member’s willingness to undergo treatment or a rehabilitation course. For example, pledging to undergo these measures could be grounds for halting prosecution for the crime of “violence”. Thus, the criminalization of violence could be a stick whose mere brandishing would hopefully lead to a rearrangement of family relationships (particularly those that cannot be dissolved legally, such as paternity, fraternity, and filiation). In this case, we should draw inspiration from the drug law’s enshrinement of the principle of treatment as an alternative to prosecution and punishment for the crime of drug use.

Broadening Human Trafficking?

While the bill aims to tighten the punishments in several instances (such as violence that causes the death of a family member unintentionally, disfigurement, or any permanent physical disability), it goes as far as to deem all instances of sexual exploitation and incitement to prostitution or beggary against any family member to be human trafficking. Though important, this stipulation could broaden the scope of this crime in a manner that leads to the prosecution of the most vulnerable groups for the offense of human trafficking, which in principle exists to protect them. The result could thereby converge with an unfortunate trend appearing in most cases pending before the judiciary, as the Legal Agenda’s work in this area has established.

Domestic Violence Prevents Kin from Being Exempted from Punishment

Finally, another extremely important proposed amendment is the revision of the principle of justifying certain crimes, particularly crimes against another person’s property, with kinship. While Article 674 of the Penal Code exempts a series of acts (theft, fraud, breach of trust, bad checks, using someone else’s things without any right, and extortion) from punishment if the perpetrator commits them against an ancestor, descendant, parent, adopted son, or spouse not legally separated, the bill excludes this article if the crimes it encompasses constitute domestic violence offenses. While this proposal puts an end to the impunity of all such perpetrators, making punishment contingent on proving the presence of violence could allow the dispute to be complicated and prolonged. In this area, it may be best to remove the exemption from punishment altogether, provided that the public prosecution is only initiated following a personal prosecution.

Abolishing the Criminalization of Adultery

While the bill expands the criminalization of acts of violence and tightens the punishments applied to them in all the various instances mentioned above, it abolishes the criminalization of adultery. Although the 2014 law featured equality between men and women with regard to the conditions required for the crime of adultery and its punishment while deeming it violence in and of itself, the amendment abolishes the criminalization of adultery after removing it from the scope of the definition of violence, as mentioned above. This approach is justified by the difficulty of guaranteeing actual equality in this regard because of the general economic disparity among spouses and the fact that some personal status laws allow polygyny and discriminate between spouses when it comes to the ability to initiate a divorce. These factors generally make women more adversely affected by the crime of adultery than men.

Who Benefits from Protective Measures?

In this regard, the amendment restricts protection orders to women, thus repeating KAFA’s 2007 demand that the goal of this law be to protect the group exposed to chronic violence and inequality (i.e. women) as general law is sufficient to protect the other family members.

The restriction of “protection” to women in principle complements the restriction of “violence” to men by linking it to abuse of authority within the family, as previously explained. While this discrimination is justified by traditions that have created a reality where women are routinely discriminated against and by the legitimate fear that men could exploit this law to consolidate their authority, it ignores, in its absoluteness, all the other traditions that cause violence against family members just as vulnerable as women, such as elderly, disabled, and LGBT+ family members.

One positive in this regard is that the amendment also includes all minor children in the protective measures, whereas the current law grants protection only to children in the age of legal [maternal] custody according to the personal status laws and the other laws in effect.

Specialization Across Judicial Bodies

Regarding the institutional framework for applying the law, the bill expands the judicial specialization – previously limited to specialized Public Prosecution offices – such that it also encompasses the investigating judges and trial courts. While specialization in theory improves judges’ performance, it is feared that expansively adopting it in a given area (such as the protection of women or the environment or combating corruption) in small countries like Lebanon could narrow the domain of the regular and natural (universal) judiciary, thereby undermining guarantees of a fair trial. In this regard, instead of the adoption of comprehensive specialization, it may be better for judges to undergo training or awareness-raising courses in this area as part of their initial or ongoing training.

Conclusion

Just as was the case when the 2014 law was debated, the definition of domestic violence is the pivotal issue in this bill. The bill aims to free this definition from the principle that no violence exists without a text and thereby broaden it to encompass all instances and forms of violence, in line with international standards in this area.

This approach, in addition to many of the articles that improve the law’s application (such as the placement of timeframes on judicial bodies, the inclusion of all minors in protective measures, the punishment of deprivation of liberty and marital rape, and the abolishment of the crime of adultery), is necessary from a rights perspective in order to tackle forms of violence sanctioned by traditions (such as depriving women of their liberty, forcing them into marriage, and marital rape) and hence to satisfy the law’s purpose. Nevertheless, the bill is open to four main criticisms:

The bill limits protection to women while limiting violence to men. While this approach is understandable given the bill’s effort to curb chronic discrimination against women and violence justified by traditions, it marginalizes groups no less vulnerable and susceptible to discrimination and traditional violence.

The bill is overly zealous toward the law’s punitive aspect, which culminates in the rendering of spousal violence per se a distinct offense, the increase of the punishment for a number of crimes, and, most importantly, the abolishment of the tolerance for a number of financial crimes when committed among kin. This aspect is also evident in the expansion of the definition of human trafficking to include any family exploitation in begging, prostitution, or similar acts. The fear is that this approach could push judges toward applying the definition of violence in fewer instances in order to avoid the penal effects and, in practice, lead to an outcome diametrically opposed to the intention of the bill’s drafters, namely depriving women of protective measures. Moreover, this approach could cause the law’s punitive dimensions, which expand rifts within families, to be given precedence over or eclipse all its steering and reparative mechanisms, including the rehabilitation courses stipulated in the bill.

The bill ignores many of the real obstacles to guaranteeing women’s protection. While it takes into consideration economic violence (such as depriving women of financial support or restricting their financial rights), it does not address the issues that arise from the economic disparity between spouses when protective measures are adopted. The bill also includes no clear mechanisms for activating the fund established to help human trafficking victims, which remains empty since the law’s issuance in 2014.

The bill is keen to spread specialization in the realm of domestic violence to all judicial authorities, including investigating judges and the trial courts. This could negatively impact guarantees of a fair trial and proper judicial organization.

These are the main comments on the bill to amend the domestic violence law, which we hope will soon make its way to debate. Let’s continue watching.

This article is an edited translation from Arabic.

Keywords: Lebanon, Violence, Domestic Violence, Family, Law,

[1] “Itlaq Muqtarah Ta’dil al-Qanun Raqm 293/2014 al-Muta’alliq bi-l-‘Unf al-Usariyy”, website of KAFA (Enough) Violence & Exploitation.

[2] Nizar Saghieh, “Mashru’ Qanun li-Himayat al-Usra Yu’idu Ta’rif al-‘Unf: Fard al-Taqalid ‘Anwatan Laysa ‘Unfan, al-‘Unf fi al-Khuruj ‘Anha”, The Legal Agenda, is. 11, September 2013.

[3] Nizar Saghieh, “al-Tifl fi Hal al-Khatar, al-Qada’ Yukarrisu Nizaman Mulziman li-l-Tawa’if”, Al Akhbar, 13 August 2009.

[4] Nizar Saghieh, “Awal Tatbiq li-Qanun Himayat al-Mara’a min al-‘Unf al-Usariyy fi Lubnan: Aw Hina Ijtahada al-Qadi Tashihan li-Qanun Mabtur”, The Legal Agenda, 9 June 2014.