Domestic Violence and the Prohibition of Torture and Ill-Treatment

Thematic Consultations of the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Domestic violence happens every day to millions of children, women and men everywhere in the world. It constitutes a major obstacle to the universal fulfilment of human rights and to the achievement of the 2030 Agenda for Sustainable Development, and it severely damages the physical, sexual, emotional, mental and social well-being of countless individuals and families. Domestic violence occurs across all generations, nationalities, cultures, and religions and on all socio-economic and educational levels of society, albeit in different forms and frequency. In essence, domestic violence refers to physical, sexual, psychological, emotional or economic abuse happening within the home or between family members, including former spouses or partners.1 Based on this generic understanding, domestic violence includes a wide range of abusive conduct, from coercive or excessively controlling behaviour aiming to isolate, humiliate, intimidate or subordinate a person, to various forms and degrees of physical violence, sexual abuse and even murder. In terms of severity, the pain or suffering caused by domestic violence often fall nothing short of that inflicted by torture and other cruel, inhuman or degrading treatment or punishment.

In quantitative terms, UNODC estimates that, in 2017 alone, approximately 78000 individuals (64% female/36% male) were killed by intimate partners or family members,2 a gruesome “tip of the iceberg” pointing towards a far greater number of victims being beaten, raped, threatened and humiliated in their own homes every day.

Indeed, it has been estimated that, depending on the country, between 15 and 70% of the female population, and a worldwide average of 30% of women, have suffered intimate-partner violence at some point in their lives,3 and that between 50 and 75% of children worldwide (up to 1 billion) experience physical, sexual, or emotional violence at home. 4 These staggering numbers are exacerbated by the fact that the exposure of victims to domestic violence generally continues for many years and often lasts an entire lifetime. Contrary to some perceptions, therefore, domestic violence is neither an exceptional occurrence nor a mere ‘bagatelle’ of lesser importance, but represents one of the predominant sources of violence, humiliation and death worldwide – roughly on a par with all of the killing and abuse caused in a given period of time by all of the world’s armed conflicts taken together.5

Similar to war, domestic violence is a veritable “scourge” of inhumanity, traumatizing countless children, women and men on a daily basis, and brutalizing human society for generations to come. Contrary to war, however, domestic violence is still largely considered to be a “private matter”, a social taboo to be dealt with at the discretion of the perpetrator in the perceived legal “black hole” of the home. As long as a substantial part of the world’s population is oppressed, abused and even murdered with impunity by their own family members, the promises of the Universal Declaration of Human Rights and the Sustainable Development Goals will remain a far cry from reality. Consequently, though domestic violence may occur in the private sphere, it must be regarded as a global governance matter of inherently public concern.

At the same time, the particular context in which domestic violence occurs, and the wider environment in which patterns of domestic violence are embedded, give rise to particular challenges in terms of prevention, intervention and redress, which must be taken into account. In particular, the domestic context of the family and the home is largely withdrawn from the purview of the State and protected, to a certain extent, by the right to privacy, resulting in considerable difficulties with regard to the effective detection and identification of victims, perpetrators and situations of risk. Moreover, societal indifference to, or even support for, the subordinate status particularly of women and children, together with the existence of discriminatory laws, and patterns of State failure to prevent and redress abuse, may create conditions under which victims are subjected to severe forms of domestic violence for prolonged periods of time, despite their apparent freedom to resist. Finally, in most cases, the relationship between perpetrators and victims is marked by factors such as legal and/or economic dependence, social expectations, or strong emotional ties, which add further complexity to the identification and implementation of adequate preventive and protective measures in line with the human rights and best interests of the victims.

In light of these observations, the Special Rapporteur deems it timely and appropriate to conduct a careful and sober analysis into the phenomenon of domestic violence from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. In his upcoming report on this topic to the General Assembly, the Special Rapporteur aims: (1) to apply the substantive elements of the definition of torture and other cruel, inhuman or degrading treatment or punishment to a broad range of practices commonly understood to fall within the notion of domestic violence; (2) to analyze the legal obligations arising for States under the prohibition of torture and other cruel, inhuman or degrading treatment or punishment with respect to domestic violence, and (3) to make recommendations with a view to improving the protection against torture and other cruel, inhuman or degrading treatment or punishment in the context of domestic violence.

In order to inform the work on this report, the Special Rapporteur seeks to conduct wide expert and stakeholder consultations, including through the circulation of the following questionnaire.

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1/ Article 3 of the Istanbul Convention defines domestic violence as ‘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’.

2/ UNODC, Global Study on Homicide: Gender-related Killing of Women and Girls (2018), p. 11.

3/ WHO, Multi-country study on women’s health and domestic violence against women (Garcia-Moreno et al., 2005).

4/ UN Special Representative of the Secretary General on Violence against Children,
Toward a world free from violence: Global survey on violence against children (2013); UNICEF, Child Disciplinary Practices at Home: Evidence from a Range of Low- and Middle-Income Countries (2010) e; UNICEF, Hidden in Plain Sight: A statistical analysis of violence against children (2014), p. 165-6.

5/ Small Arms Survey, Global Violent Deaths 2017:Time to Decide (Claire McEvoy and Gergely Hideg, 2017), p. 10.