The proposed law on domestic violence has been crippled by new provisions—added by the Council of Ministers and not sufficiently altered by a National Assembly commission—that pervert the bill’s intent, women’s advocates say.
Most striking, the current draft of the law appears to allow husbands to force their wives to have sex and to allow women who complain about abuse to be taken away from their homes and families by the authorities.
“Without correction of these… mistakes, the law would actually be a dangerous step backward,” states a set of recommendations to the law prepared by a recent workshop of officials from more than 30 human rights, women’s and children’s NGOs.
The current draft of the law is exasperating to advocates who have worked for years to alleviate violence against women. Unless the law is amended by the Assembly, where it is tentatively scheduled to be debated later this month, they face the unhappy choice of either a bad law or no law at all, these NGOs say.
The draft law was passed by ministers in July with several major changes. The Assembly’s Commission on Health, Social and Women’s Affairs then corrected any problems, according to Minister of Women’s Affairs Mu Sochua.
But the NGOs say the law remains unclear and problematic.
In Article 28 of the law, the Council of Ministers added a sentence “which appears to say that rape law should not apply between husband and wife,” the recommendations state.
“If it were to remain in the law, it would prevent a perpetrator from being punished for rape but allow him to be punished for a punch in the face. For the past twenty years, rape law worldwide has become clearer and clearer that a woman does not agree to be raped when she agrees to marry.”
Mu Sochua said on Sunday that this assertion was a misinterpretation of the text of the law, which is intended to state that consensual sex under the age of 18 is allowable only within marriage.
Article 28 states that family members cannot rape each other, and “family members” are defined earlier in the law to include spouses, relatives and even non-blood relations living under the same roof, the minister said.
But this isn’t clear-cut enough, said Sun Sothy, acting director of the Cambodian Women’s Crisis Center. “The law should say clearly that husbands cannot rape wives,” she said.
Also alarming to advocates is Article 7, which the Council altered to read that authorities should intervene by removing the victim, rather than the perpetrator, of domestic violence from the scene.
The Assembly commission has since changed the article so that authorities can remove either the victim or the perpetrator. But advocates say the law should be more specific.
“The perpetrator, not the victim, should be removed from the house,” Sun Sothy said. “The wife usually takes care of the children. If you remove her, she will worry about her children and property” remaining in the hands of her abusive husband.
The NGO recommendations note, “Whenever the police interrupt any crime as it is happening, it is the perpetrator—not the victim—who is taken away.
“In [domestic violence] cases it is even more important to do that because in families where, for example, the drunken husband beats the wife, he frequently also beats the children. If the police stop him from beating the wife by taking her out of the home, the children will be left with no protection.”
Mu Sochua said that since domestic violence takes many forms, the law must have built-in flexibility. “You cannot presume that the woman is always the victim,” she said. “Sometimes it is a child being beaten, and removing the child is the best solution.”
The authorities who implement the law must judge situations individually, she said. “If the child or even the wife needs shelter or emergency care, what are you going to do, leave the victim there?”
The Council also added several punitive provisions to the draft law, some for amorphous offenses that the law should not criminalize, the NGOs say.
The draft law combines two functions—preventing violence and protecting victims on one hand, outlining and penalizing criminal acts on the other. But the current draft confuses these two areas, the NGOs say.
The law’s preventive procedures, unique in Cambodian law, are its most important aspect, said Dr Dagmar Oberlies, a legal adviser on women’s rights for the German technical cooperation agency.
“It’s like traffic law—you can regulate traffic before it happens…because you anticipate problems” by, for instance, stopping people from driving drunk or speeding despite the fact that they haven’t yet injured themselves or others.
These regulations are civil, not criminal, provisions that empower local authorities, including both police and commune officials, to intervene when they judge that danger is imminent.
Thus, the draft law allows authorities to step in when a husband intimidates or demoralizes his wife, or controls her financially, because these behaviors can precipitate violence.
The problem, the NGOs say, is that the Council added criminal penalties for such acts of verbal and emotional abuse, “[creating] a series of new crimes which are badly defined and which really do raise the fear that some police or prosecutor will be confused and believe they are obligated to begin a prosecution because an angry spouse has come and complained about an argument,” the recommendations state.
Mu Sochua said the penalties are appropriate. “It depends on the severity,” she said. “It’s up to the police to determine” whether non-physical acts constitute criminal domestic violence.
Police and other authorities will need training to understand and properly utilize the wide latitude the proposed law would give them, she said.
Sun Sothy said that despite its flaws, the law should be passed. “At least we can have something to protect woman—now we have nothing,” she said. “Whether [the Assembly changes] it or not, it should happen in the near future.”