The Domestic Violence Act which was passed last year has received a lot of bouquets and brickbats from the expected quarters. The act is deeply controversial due its insistence that firstly, the person who commits domestic violence is always a male, and secondly, that on being accused, the onus is on the man to prove his innocence.
The second point is what I shall focus on more here. When the onus is on the accused to prove his innocence, it means that he is automatically considered a criminal on being charged. The person doing the charging is not obliged to first prove the guilt. In short, guilty unless proven innocent. The problem is obvious: a woman can blackmail her husband with the Damocles Sword of the DVA, since it is his headache to get the proof that he did not indulge in DV.
Many feminists support this law, not realising, perhaps, that it is eerily similar to Pakistan's Hudood Ordinance which puts similar guilt by default on women.
Let me make my stand clear on Domestic Violence first, before someone misunderstands. Domestic Violence on women is a crime, committed by weak, witless so-called men who bring a bad name to all men. A real man does not hit a woman¹, whatever provocation may exist. Thus, I fully support a law against domestic violence. However, that does not mean I support the law that has been passed.
That is not a contradictory stance. I do support laws against murder, but I would not support a law which demands no evidence to prove that the accused has committed the murder.
I have discussed this issue with some feminists and have come across with arguments which I shall try to counter here. I do not believe the feminist friends I have spoken to support the DVA out of any misandry, but because they sincerely believe the act is good, and see the problems mentioned as minor loopholes. With all due respect to them, I believe that the act is neither good, nor are the problems loopholes and nor are they minor.
But first, a few of the most common arguments made by the feminists in their justifications for the law.
1. "Yes, the law will be misused by unscruplous women, but this will be a minority"
This is the most common assertion made to support DVA. I call this "the numerical argument". It says that there will be unscruplous women, but very few. The numerical argument is also invoked to explain why the law does not hold that men can also be victims of DV. Because there are very few men who will actually be victims of DV.
Firstly, this is a very major assumption they are making, which in turn is based on the greater assumption that women are somehow more truthful than men and hence will not misuse the law much. Clearly a sexist assumption. Had it been asserted instead that men are more trustworthy, feminists would have opposed it, and rightly so. But this is still the lesser problem with the numerical argument.
The numerical argument sounds reasonable when you first hear it. But then the more you think about it, the more you realise that it doesnt make any sense at all. Even if we do assume that the cases of DV on men are lesser, it does not mean they do not deserve justice.
Similarly, just because the misuse will be lesser (another assumption) it does not mean that the misuse is tolerable, nor that it should be ignored. This relates to my response to their second argument.
To turn the question around to feminists, would Domestic Violence be any less heinous if the crimes on women were much lesser than they are right now?
2. "Which law is not misused?"
This argument rests on the premise that a lot of laws are misused. And that is true. Due to our poor law enforcement and corrupt society, it is possible to fabricate evidence, or bribe your way out, and that does undermine the system a lot.
Hence this statement is true. But it also makes for a very lazy argument.
While it is true that laws are misused, that does not mean that laws should be misused, or that we should make provisions in the law that increase the chances of its misuse. Nor that we should make it easier and more lucrative to misuse the law.
Instead, we should be trying to reduce the chances of misuse here, eliminating those provisions that may throw innocents into prison. And the first requisite for that is proof of guilt. The accuser should be required to provide evidence of the guilt of the accused. This is not something extraordinary; it happens in all criminal cases.
Consider how the DVA can become a tool of terror. It defines even shouting as a form of DV. (It is completely ignored that even women can shout at their husbands, thus constituting DV, but lets leave that for now)
Say a woman accuses her husband of shouting at her in private. Remember the onus is on him to prove his innocence. Is there any earthly way for him to prove he did not shout at her? Surely not.
Consider another situation: a wife shouts at her husband, and it is not DV. Getting angry when being shouted at is a common human tendency. In his anger, if he shouts back, it becomes DV. Now he has no recourse to the law and is instead considered a criminal for doing no more than what his wife had done.
Of course, in both these cases, the man can try to manufacture evidence, to cook up something. However, as Shiv Khera once remarked "a corrupt system is something that forces an honest person to do something dishonest to achieve an honest objective." That is precisely the problem here.
3. "It is difficult to get evidence for DV"
This argument is most easily countered. Referring to my first example about the shouting situation, the accused too has no way of getting evidence for his innocence. How can a system that holds a person guilty by default, and then gives him no way to prove his innocence, how can such a system be termed "just"?
Besides, just because getting evidence is tough, does not mean we can forego the need for evidence. Evidence may hard to come by even in a murder case. The judge would not respond to that by waiving the requirement for evidence.
4. "Evidence can be manufactured"
This is again true. But then, evidence can be manufactured in cases of murder too. That never stopped us from requiring evidence for murder in the first place, did it?
5. "But a law is needed"
I agree that a law is needed to counter DV. DV is a crime, as I said, committed by inferior men (I have no regrets for using that word - it describes them most aptly). I fully support a law against it. However, I contend that this particular law is not the law for it. If the law were to state that the wife must first provide incontrovertible evidence for the DV, I would support it.
The emancipation of women is not going to come about by labelling men as villains and proclaiming a law for it. If you are a feminist reading this, bear in mind that we are in a democracy and you need the support of people for emancipation of women. In this regard, image counts for a lot. And blatantly one-sided laws like the DVA only spoil that image by making it look like feminists dont really want equality, but want to turn the tables on men. It doesnt help, either, when feminists go on to oppose the Hudood, which puts on women the very same "guilty-by-default" burden that DVA puts on men.
Betty Friedman, the famous feminist, once said, "It is better for a woman to compete impersonally in society, as men do, than to compete for dominance in her own home with her husband". Those supporting the DVA may take note and analyse whether the DVA is not really doing exactly that.
¹ obviously, this does not include hitting a woman in self-defence. Also, it applies both ways. A real woman would also not see any need to hit a man except in self-defence.
The second point is what I shall focus on more here. When the onus is on the accused to prove his innocence, it means that he is automatically considered a criminal on being charged. The person doing the charging is not obliged to first prove the guilt. In short, guilty unless proven innocent. The problem is obvious: a woman can blackmail her husband with the Damocles Sword of the DVA, since it is his headache to get the proof that he did not indulge in DV.
Many feminists support this law, not realising, perhaps, that it is eerily similar to Pakistan's Hudood Ordinance which puts similar guilt by default on women.
Let me make my stand clear on Domestic Violence first, before someone misunderstands. Domestic Violence on women is a crime, committed by weak, witless so-called men who bring a bad name to all men. A real man does not hit a woman¹, whatever provocation may exist. Thus, I fully support a law against domestic violence. However, that does not mean I support the law that has been passed.
That is not a contradictory stance. I do support laws against murder, but I would not support a law which demands no evidence to prove that the accused has committed the murder.
I have discussed this issue with some feminists and have come across with arguments which I shall try to counter here. I do not believe the feminist friends I have spoken to support the DVA out of any misandry, but because they sincerely believe the act is good, and see the problems mentioned as minor loopholes. With all due respect to them, I believe that the act is neither good, nor are the problems loopholes and nor are they minor.
But first, a few of the most common arguments made by the feminists in their justifications for the law.
1. "Yes, the law will be misused by unscruplous women, but this will be a minority"
This is the most common assertion made to support DVA. I call this "the numerical argument". It says that there will be unscruplous women, but very few. The numerical argument is also invoked to explain why the law does not hold that men can also be victims of DV. Because there are very few men who will actually be victims of DV.
Firstly, this is a very major assumption they are making, which in turn is based on the greater assumption that women are somehow more truthful than men and hence will not misuse the law much. Clearly a sexist assumption. Had it been asserted instead that men are more trustworthy, feminists would have opposed it, and rightly so. But this is still the lesser problem with the numerical argument.
The numerical argument sounds reasonable when you first hear it. But then the more you think about it, the more you realise that it doesnt make any sense at all. Even if we do assume that the cases of DV on men are lesser, it does not mean they do not deserve justice.
Similarly, just because the misuse will be lesser (another assumption) it does not mean that the misuse is tolerable, nor that it should be ignored. This relates to my response to their second argument.
To turn the question around to feminists, would Domestic Violence be any less heinous if the crimes on women were much lesser than they are right now?
2. "Which law is not misused?"
This argument rests on the premise that a lot of laws are misused. And that is true. Due to our poor law enforcement and corrupt society, it is possible to fabricate evidence, or bribe your way out, and that does undermine the system a lot.
Hence this statement is true. But it also makes for a very lazy argument.
While it is true that laws are misused, that does not mean that laws should be misused, or that we should make provisions in the law that increase the chances of its misuse. Nor that we should make it easier and more lucrative to misuse the law.
Instead, we should be trying to reduce the chances of misuse here, eliminating those provisions that may throw innocents into prison. And the first requisite for that is proof of guilt. The accuser should be required to provide evidence of the guilt of the accused. This is not something extraordinary; it happens in all criminal cases.
Consider how the DVA can become a tool of terror. It defines even shouting as a form of DV. (It is completely ignored that even women can shout at their husbands, thus constituting DV, but lets leave that for now)
Say a woman accuses her husband of shouting at her in private. Remember the onus is on him to prove his innocence. Is there any earthly way for him to prove he did not shout at her? Surely not.
Consider another situation: a wife shouts at her husband, and it is not DV. Getting angry when being shouted at is a common human tendency. In his anger, if he shouts back, it becomes DV. Now he has no recourse to the law and is instead considered a criminal for doing no more than what his wife had done.
Of course, in both these cases, the man can try to manufacture evidence, to cook up something. However, as Shiv Khera once remarked "a corrupt system is something that forces an honest person to do something dishonest to achieve an honest objective." That is precisely the problem here.
3. "It is difficult to get evidence for DV"
This argument is most easily countered. Referring to my first example about the shouting situation, the accused too has no way of getting evidence for his innocence. How can a system that holds a person guilty by default, and then gives him no way to prove his innocence, how can such a system be termed "just"?
Besides, just because getting evidence is tough, does not mean we can forego the need for evidence. Evidence may hard to come by even in a murder case. The judge would not respond to that by waiving the requirement for evidence.
4. "Evidence can be manufactured"
This is again true. But then, evidence can be manufactured in cases of murder too. That never stopped us from requiring evidence for murder in the first place, did it?
5. "But a law is needed"
I agree that a law is needed to counter DV. DV is a crime, as I said, committed by inferior men (I have no regrets for using that word - it describes them most aptly). I fully support a law against it. However, I contend that this particular law is not the law for it. If the law were to state that the wife must first provide incontrovertible evidence for the DV, I would support it.
The emancipation of women is not going to come about by labelling men as villains and proclaiming a law for it. If you are a feminist reading this, bear in mind that we are in a democracy and you need the support of people for emancipation of women. In this regard, image counts for a lot. And blatantly one-sided laws like the DVA only spoil that image by making it look like feminists dont really want equality, but want to turn the tables on men. It doesnt help, either, when feminists go on to oppose the Hudood, which puts on women the very same "guilty-by-default" burden that DVA puts on men.
Betty Friedman, the famous feminist, once said, "It is better for a woman to compete impersonally in society, as men do, than to compete for dominance in her own home with her husband". Those supporting the DVA may take note and analyse whether the DVA is not really doing exactly that.
¹ obviously, this does not include hitting a woman in self-defence. Also, it applies both ways. A real woman would also not see any need to hit a man except in self-defence.
