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A CRITICAL RACE FEMINIST CONCEPTUALIZATION
OF VIOLENCE: SOUTH AFRICAN
AND PALESTINIAN WOMEN
Adrien Katherine Wing*
944
I. INTRODUCTION ................................
II.
CRITICAL RACE FEMINISM
.......................
.
A. ConceptualizingViolence Using a CriticalRace
Feminist Approach: Outside/Inside Dichotomy and
Spirit Injury ..............................
III. SOCIAL AND LEGAL CONDITIONS ...................
A. South Africa ..............................
1. Violence ...............................
B. Palestine .................................
1. Violence ...............................
IV.
951
954
954
957
959
964
INTERNATIONAL LAW: CONVENTION ON THE ELIMINATION
OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN ...
V. DOMESTIC LAW OF SOUTH AFRICA AND PALESTINE .....
A. South Africa ..............................
B. Palestine .................................
VI.
946
CONCLUSION .................................
965
968
968
973
974
* Professor of Law, University of Iowa College of Law. A.B., Princeton University, 1978;
M.A., UCLA, 1979; J.D., Stanford Law School, 1982.
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944
Albany Law Review
I.
[Vol. 60
INTRODUCTION
Until very recently, violence against women was not thought of as
a proper subject for international human rights law. There were
three interrelated reasons for this exclusion: traditional concepts of
state responsibility under international and domestic law that
exclude the private sphere of the family and home; misconceptions
and ignorance about the prevalence of such violence; and inattention
and unwillingness to extend legal notions of equality and antidiscrimination to the area of equality between the sexes.'
This Article seeks to conceptualize violence against women, under
both international and foreign domestic law, from the perspective of
critical race feminism. "Violence against women exists in various
forms in everyday life in all societies. Women are being beaten,
mutilated, burned, sexually abused and raped. Such violence is a
major obstacle to the achievement of peace."2 Global statistics
demonstrate that the very act of "being female is life threatening."3
For purposes of this Article, "violence against women" will be defined
as the United Nations defined it in the Declaration on the
Elimination of Violence Against Women:4 "any act of gender-based
violence that results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including threats of such
acts, coercion or arbitrary deprivation of liberty, whether occurring
in public or in private life."5
For discussion of these reasons, see Michele E. Beasley & Dorothy Q. Thomas, Domestic
Violence as a Human'Rights Issue, in THE PUBLIC NATURE OF PRIVATE VIOLENCE: THE
DISCOVERY OF DOMESTIC ABUSE 323 (Martha A. Fineman & Roxanne Mykituk eds., 1994)
[hereinafter THE PUBLIC NATURE OF PRIVATE VIOLENCE].
2 Forward Looking Strategies of Implementation for the Advancement of Women and
Concrete Measures to Overcome Obstacles to the Achievement of the Goals and Objectives of the
UnitedNations Decadefor Women, para. 181, U.N. Doc. A/Conf.116/PC/21 (1984). See generally
DAVID LEVINSON, FAMILY VIOLENCE IN CROSS-CULTURAL PERSPECTIVE 31 (1989) (indicating
that "[w]ife beating is the most common form of family violence around the world"). There are
apparently a few societies which are relatively free of family violence (e.g., Fox, Iroquois,
Papago, Ona, Siriona, Pemon, Toba, Javanese, Ifugao, Trobriands, Bushmen, Andamans,
Central Thai, Kurd, Iraqi Bedoiun, and Lapps). See David Levinson, Societies Without Family
Violence, in DOMESTIC VIOLENCE LAW: A COMPREHENSIVE OVERVIEW OF CASES AND SOURCES
109 (Nancy Lemon ed., 1996) [hereinafter DOMESTIC VIOLENCE LAW].
Women and Violence, 19 WOMEN'S INT'L NETWORK NEWS 47, 47 (1993).
Declaration on the Eliminationof Violence Against Women, G.A. Res. 104, U.N. GAOR,
48th Sess., Supp. No. 49, U.N. Doc. A/RES/48/104 (1994).
5 Id. at art. 1.
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Critical Race Feminist Conceptualization of Violence
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This Article will feature two different groups of women: Black
South African women6 and Palestinian women in the West Bank
and Gaza Strip.7 Both groups of women have faced violence from
multiple sources-external violence from the state and internal
violence from the home. "In the ongoing struggles against violence
in the family, society and the State, we recognize that the State is
one of the main sources of violence and stands behind the violence
committed by men against women in the family, the work-place and
the neighborhood."'
South African women, face the legacy of
legalized racism known as apartheid which the South African
government abolished only a few years ago.9 South African women
also simultaneously deal with domestic violence ° at the hands of
their own men, who themselves remain victims of apartheid.
Palestinian women currently living in the West Bank and Gaza Strip
must deal with the ongoing Israeli occupation that still affects almost
all of them." Additionally, they must silently endure violence at
the hands of their own men, who also remain victims of the Israeli
occupation.
Part II of this Article describes critical race feminism, a
jurisprudential addition to both critical race theory and feminism.
Part II also presents a conceptualization of violence that will then be
applied throughout the rest of the Article. Because critical race
feminism believes in evaluating women within their own concrete
circumstances, Part III provides a brief overview of the social and
legal condition of South African and Palestinian women and the
6
I leave to others to focus on the plight of white, Coloured, and Asian women, who of course
face discrimination as well.
7 This Article will focus on the nearly two million women who live in the formerly occupied
territories of the West Bank and Gaza Strip, much of which is still under direct occupation.
This area will be referred to as Palestine, consistent with the preference of the inhabitants.
However, this Article will not cover those Palestinian women who live in Israel proper or in
the diaspora.
8 GAIL OMVEDT, VIOLENCE AGAINST WOMEN: NEW MOvEMENTs AND NEW THEORIES IN INDIA
1 (1990).
' See Adrien Katherine Wing, Towards Democracy in a New South Africa, 16 MICH. J. INT'L
L. 689, 691-92 (1995) (discussing the victory of the African National Congress in the 1994 elections).
10 This Article will use the term "domestic violence" because it is the most well-known
characterization. Some feminists call for a re-characterization of the concept to "terrorism" or
some other more powerful, less "benign"concept. See, e.g., Isabel Marcus, Refraining"Domestic
Violence": Terrorism in the Home, in THE PUBLIC NATURE OF PRIVATE VIOLENCE, supra note
1, at 11.
" See INGELA BENDT & JAMES DOwNING, WE SHALL RETURN: WOMEN OF PALESTINE 15 (Ann
Henning trans., Zed Press 1982) (1980) (discussing the condition of Palestinian women during
the occupation).
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[Vol. 60
types of violence that affect them. Part IV highlights the possibilities of international law empowering South African and
Palestinian women, and specifically discusses the Convention on the
Elimination of All Forms of Discrimination Against Women.' 2
Because international law is insufficient and unlikely to be of much
practical assistance, Part V performs a comparative law analysis by
examining how the domestic laws of each jurisdiction presently help
or hinder in dealing with violence against women. This discussion
will be enhanced by reference to the involvement of the author in
advising on the drafting of the interim constitution of South Africa"
and the Basic Law of Palestine."' In conclusion, the Article calls for
a "world traveling" 5 approach by the international community in
order to work with South African and Palestinian women to improve
their legal and social status within their societies.
II.
16
CRITICAL RACE FEMINISM
Critical race feminism (CRF) is the latest offshoot in the
jurisprudential framework that began with critical legal studies
(CLS),"7 and includes feminism 8 and critical race theory (CRT). 9
The CLS theorists have been a group of predominantly progressive
or radical white male academics that have critiqued traditional
positivist or realist legal jurisprudence. These CLS theorists
embrace several premises, including postmodern critiques of the
inviolability of laws and hierarchy in Western society. Additionally,
one primary method of their analysis is deconstruction which
12
Convention on the Elimination of All Forms Of DiscriminationAgainst Women, G.A.
Res.34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 194, U.N. Doc. A/34/830 (1979).
13 S. AFR. CONST. (1993) (interim).
14 BASIC LAW OF PALESTINE (1996) (9th draft) (translation of draft on file with author).
This
Article focuses on the ninth draft of the Basic Law of Palestine which is also known as the first
reading. As of this writing, the Basic Law of Palestine has still not been adopted.
"' Isabelle R. Gunning, Arrogant Perception,World Traveling,and MulticulturalFeminism:
The Case of Female Genital Surgeries, in CRITICAL RACE FEMINISM: A READER 352 (Adrien
Katherine Wing ed., 1997) [hereinafter CRITICAL RACE FEMINISM].
16 Part II draws from the introduction to CRITICAL RACE FEMINISM, supra -note 15. at 1-4.
'7 For further discussion of critical legal studies (CLS), see generally CRITICAL LEGAL
STUDIES (James Boyle ed., 1992); MATTHEW H. KRAMER, CRITICAL LEGAL THEORY AND THE
CHALLENGE OF FEMINISM: A PHILOSOPHICAL RECONCEPTION (1995).
18 For further discussion of feminist legal theory, see generally FEMINIST LEGAL THEORY
(Frances E. Olsen ed., 1995); FEMINIST LEGAL THEORY: FOUNDATIONS (D. Kelly Weisberg ed.,
1993).
" For further discussion of critical race theory (CRT), see generally CRITICAL RACE THEORY:
THE CUTTING EDGE (Richard Delgado ed., 1995); CRITICAL RACE THEORY: THE KEY WRITINGS
THAT FORMED THE MOVEMENT (Kimberle Crenshaw et al. eds., 1996).
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Critical Race Feminist Conceptualization of Violence
947
involves the critique of allegedly neutral concepts to expose the
actuality of the socially constructed contingent power relationships.
Many progressive scholars, including white women and people of
color, were attracted to CLS because it exposed various aspects of the
nature of domination through law within American society. Yet their
analysis was incomplete as there was a lack of attention to the
sexual and racial aspects of legal domination.
CRT embraces the CLS deconstruction methodology to challenge
racial orthodoxy. CRT draws from intellectual traditions such as
liberalism, law and society, Marxism, postmodernism, pragmatism
Furthermore, CRT is skeptical of
and cultural nationalism.
traditional legal theories that support hierarchy, and so-called
neutrality, objectivity, color blindness, meritocracy and ahistoricism.
In areas as wide ranging as hate speech, affirmative action and
Federal Indian law, CRT questions the ability of traditional legal
strategies to deliver racial and social justice.
Women of color within the legal academy noted that there was
sufficient inattention within CRT and traditional feminist
jurisprudence to the legal and social plight of the most oppressed
groups within American society-African-American, Latina, Asian
and Native-American women. Traditional rights jurisprudence
seemed to be based on white middle class reasonable man standards,
while traditional feminism was based upon reasonable white middle
class woman standards. Even much of CRT seemed to present the
essentialist term "minority," when it really meant African-American
men.
With respect to the issue of violence against women, traditional
rights jurisprudence was silent. This sort of violence was not
perceived as a problem for the reasonable man. Feminists have
defined five traditional categories of violence against women:
"battering, sexual harassment, rape, prostitution, and pornography."2" These categories do not incorporate racialized violence
against women. While CRT focuses on the missing racial aspect, it
pays insufficient attention to the gendered aspect of racial violence.
A thorough search of the literature shows that there are more than
one hundred law review articles dealing with the intersection of race,
class and gender. Many of these articles appear in an anthology
21 BEVERLY BALOs & MARY LOUISE FELLOWS, LAW AND VIOLENCE AGAINST WOMEN: CASES
AND MATERIALS ON SYSTEMS OF OPPRESSION 183 (1994).
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edited by the author.2 ' Jurisprudentially, CRF has much in
common with CRT. CRF regards racism as an ordinary and
fundamental part of American society rather than an aberration. It
utilizes the well-known narrative technique to construct alternative
visions of reality and identity. CRF also adopts feminist notions
focusing on the oppressed status of women within society. Furthermore, both CRF and CRT are concerned with practice as well as
theory.
CRF adds to CRT and feminism by placing women of color at the
center rather than in the margins or footnotes of the analysis.22
CRF attacks the notion of the essential woman (i.e., the white middle
class woman) and explores the lives of those facing multiple
discrimination on the basis of their race, gender, and class, revealing
how all of these factors interact within a system of white male
patriarchy and racist oppression.23 CRF seeks to explore and
celebrate the differences and diversity within women of color and
articulate how the law might improve their status.2 4 Thus, while
CRF is concerned with theoretical frameworks, it is very much
centered on praxis, seeking to identify ways to empower women
through law and other disciplines. With respect to the issue of
violence against women, CRF focuses on the gendered and racialized
aspects of such violence, and how we can design solutions to help
women of color.25
21 See CRITICAL RACE FEMINISM, supra note 15, at 477. The phrase "critical race feminism"
was borrowed from Richard Delgado. The seven units featured in CriticalRace Feminism are:
anti-essentialism, life in the academy, mothering, sexual harassment, criminality, working and
international issues. The featured authors include: Lani Guinier, Anita Hill, Kathleen Cleaver,
Angela Harris, Patricia Williams, Anita Allen, Dorothy Roberts, Cheryl Harris, Jenny Rivera,
Regina Austin, Celina Romany, Maria Ontiveros, and Rachel Moran. For example, Professor
Ontiveros wrote a fascinating piece on the treatment of Rosa Lopez in the O.J. Simpson case,
and Jenny Rivera explored domestic violence against Latina women.
' See Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black
FeministCritiqueof AntidiscriminationDoctrine,Feminist Theory andAntiracistPolitics,1989
U. Cmi. LEGAL F. 139, 166 (arguing for an integration of feminism and Black liberation
politics).
' See Angela Harris, Race and Essentialismin FeministLegal Theory, 42 STAN. L. REV. 581,
585 (1990) (arguing that gender essentialism ignores "the experience of black women.., both
in feminist theory and in legal theory").
' See Mari J. Matsuda, When the FirstQuail Calls:Multiple Consciousnessas Jurisprudential Method, 14 WOMEN'S RTS. L. REP. 297,298 (1992) (indicating that "specific experiences and
histories are relevant to jurisprudential inquiry").
2' See, e.g., Sharon Angella Allard, RethinkingBattered Woman Syndrome:A Black Feminist
Perspective, 1 UCLA WOMEN'S L.J. 191, 195 (1991) (calling for scholars to analyze battered
woman syndrome through the intersection of race and gender); Kevin Brown, The Social
Construction of a Rape Victim: Stories of African-American Males About the Rape of Desiree
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Critical Race Feminist Conceptualization of Violence
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CRF goes beyond the domestic focus of the United States that is
typical of most scholarship on CLS, feminism, and CRT. CRF
embraces a global analysis as well,26 taking the narrow United
States notion of race, and expanding it to look at the legal treatment
of women of color, whether they are living in the developing or
developed world. After all, women of color in the United States
originate and often have continuing links with developing world
societies, which themselves play a subordinate role within a postCold War unipolar world in which the United States dominates.
CRF also enhances the development of twentieth century international law, which is a field that has developed based upon
principles enunciated first by American and European white male
power elites. Men of color from the developing world did not become
Washington, 1992 U. ILL. L. REV. 997, 998 (discussing racism in the context of rape); Kristin
Bumiller, Rape as a Legal Symbol: An Essay on Sexual Violence and Racism, 42 U. MIAMI L.
REV. 75, 86 (1987) (discussing the "apparent conflict between antiracist and antisexist
interests"); Martha Chamallas, Jean Jew's Case:Resisting Sexual Harassmentin the Academy,
6 YALE J.L. & FEMINISM 71, 73 (1994) (discussing "how race and sex discrimination intersect
to create distinctive burdens for women of color"); Kimberle Crenshaw, Mapping the Margins:
Intersectionality,Identity Politics,and Violence Against Women of Color, 43 STAN. L. REV. 1241,
1252 (1991) (discussing the "failure of antiracist and feminist discourses to address the
intersections of race and gender"); Jenny Rivera, Domestic Violence Against Latinas by Latino
Males: An Analysis of Race, National Origin and GenderDifferentials, 14 B.C. THIRD WORLD
L.J. 231, 234 (1994) [hereinafter Rivera, Domestic Violence Against Latinas] (arguing that
"[riacial and cultural differences are critical considerations in analyzing and responding to the
crisis of domestic violence"); Jenny Rivera, Puerto Rico's Domestic Violence Prevention and
Intervention Law and the United States Violence Against Women Act of 1994: The Limitations
of Legislative Responses, 5 COLUM. J. GENDER & L. 78, 82-83 (1995) [hereinafter Rivera,
Domestic Violence Prevention] (arguing that legislators should focus domestic violence
legislation on the "safety and autonomy of women"); Celina Romany, Killing "theAngel in the
House": Digging for the Political Vortex of Male Violence Against Women, in THE PUBLIC
NATURE OF PRIVATE VIOLENCE, supranote 1, at 285 (discussing gender and race in the context
of violence against women of color); Jennifer Wriggins, Rape, Racism, and the Law, 6 HARV.
WOMEN'S L.J. 103, 117 (1983) (discussing the rape of Black women); Leti Volpp,
(Mis)identifying Culture:AsianWomen and the "CulturalDefense", 17 HARV. WOMEN'S L.J. 57,
58-59 (1994) (discussing the "interplay of racism and sexism in the experiences of women of
color"); James W. Zion & Elsie B. Zion, Hozho' Sokee--Stay Together Nicely: Domestic Violence
Under Navajo Common Law, 25 ARIZ. ST. L.J. 407, 417 (1993) (arguing that "racist
stereotyping of Indians and ... male dominance in societal arrangements" foster domestic
violence in the Navajo community).
2 The global issues unit in CRITICAL RACE FEMINISM, supra note 15, contains an article by
Sharon Horn on female infanticide in China. Also in the global issues unit, a pathbreaking
article by Isabelle Gunning and an article by Hope Lewis discuss female genital mutilation.
Furthermore, an article by Janet Calvo reviews the immigration and the mistreatment of
immigrant women, while an original essay by Devon Carbado tells the story of the patriarchal
bargain his Jamaican mother made when raising nine children in England. Finally, in the
global issues unit, I co-authored an article with Eunice de Carvalho on Black women in South
Africa.
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involved until their respective nations gained independence or
sufficient collective clout in entities like the United Nations. Their
voices are still muted, but often rise in discussions of cultural
relativism and international human rights. European and American
women have only very recently become involved in attempting to
reconceptualize international law from a feminist perspective.27
Once again, the viewpoints of women of color have been absent,"
a manifestation of their continued legal and social subordination on
multiple grounds, including ethnicity, class, religion, and gender,
both within and outside the developing world. CRF adds to the
development of international law by focusing on women of color in a
theoretical *and practical sense. With respect to violence against
these women, this Article hopes to make a contribution to a small,
but growing body of literature.29
27 See generallyWOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES
(Julie Stone Peters & Andrea Wolper eds., 1995) (discussing the rights of women under
international law). For sources on violence against women, see generally Moira L. McConnell,
Violence Against Women: Beyond the Limits of the Law, 21 BROOK. J. INT'L L. 899 (1996).
' Several scholars have noted that in the international women's rights movement, the
voices of middle class European and American women are the loudest. See Adetoun 0.
Ilumoka, African Women's Economic, Social and Cultural Rights-Towarda Relevant Theory
and Practice,in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 307,
320 (Rebecca J. Cook ed., 1994) [hereinafter HUMAN RIGHTS OF WOMEN] (stating that "[tihe
international women's rights movement. . largely projects the concerns of privileged women");
Julie Mertus & Pamela Goldberg, A Perspective on Women and InternationalHuman Rights
After the Vienna Declaration:The Inside/Outside Construct, 26 N.Y.U. J. INT'L L. & POL. 201,
218-19 (1994) (arguing that women who have experienced human rights abuse "are essential
to the theoretical development of women's human rights discourse"); Celina Romany, On
SurrenderingPrivilege:Diversity in a Feminist Redefinition of Human Rights Law, in FROM
BASIC NEEDS TO BASIC RIGHTS 543, 548-50 (Margaret Schuler ed., 1995) (arguing that women
of the third world should be included in the formation of a women's human rights agenda).
' For a sample of the literature discussing violence against women of color, see Janet Calvo,
Spouse Based Immigration Laws: The Legacy of Coverture, 28 SAN DIEGO L. REV. 593, 595
(1991) (arguing that immigration laws incorporate the notion that "awife is subordinate to her
husband and under his control"); Celina Romany, Black Women and GenderEqualityin a New
South Africa: Human Rights Law and the Intersection of Race and Gender, 21 BROOK. J. INT'L
L. 857, 864-69 (1996) (discussing the effects of apartheid on Black women in South Africa);
Adrien Katherine Wing & Eunice P. de Carvalho, Black South African Women: Towards Equal
Rights, 8 HARV. HUM. RTS. J. 57, 58 (1995) (discussing the "task of creating a non-sexist South
Africa"); Adrien Katherine Wing & Sylke Merchan, Rape, Ethnicity & Culture: Spirit Injury
from Bosnia to Black America, 25 COLUM. HUM. RTS. L. REV. 1, 7 (1993) (arguing that "spirit
injury has been a contributing factor to the ravaging of Black American culture").
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Critical Race Feminist Conceptualization of Violence
951
Conceptualizing Violence Using a CriticalRace Feminist
Approach: Outside/Inside Dichotomy and Spirit Injury
In attempting to use a critical race feminist construct to conceptualize violence affecting South African and Palestinian women, this
Article will utilize two concepts: the outside/inside dichotomy and
spirit injury. With respect to the first concept, I posit that under
conditions of the "outside" violence of colonialism, neocolonialism,
apartheid or occupation, the men of an oppressed group are not
allowed to be "men" in the culturally constructed use of the term. In
effect, they are not allowed to dominate in the outside public sphere
of government and business because of the influence and control of
outsider men. One of the few areas where the oppressed men can
exert some limited expression of their maleness is through oversight
of their own women in the "inside" or private sphere. As one
Palestinian man said, "What is left for us? We don't have land,
homes or identity-at least let's have our honor." ° The only sphere
where the "emasculated" men can take out their frustration is the
private one affecting their own women and children. Thus, their
families are going to be disproportionately subject to domestic
violence as they bear the brunt of frustration of male high
unemployment and political impotence."' Ironically, the oppressed
male's ability to dominate even in the private sphere may be limited
because the oppressor's police or army can intrude into this realm as
well. 2
Custom, culture and religion become psychological refuges for the
oppressed against foreign penetration, 3 providing the bases to at
least try to survive the violent incursions. The most ancient, and in
many cases the most repressive, patriarchal traditions may be
glorified in order to restore and maintain a sense of manhood for the
embattled men. Many women, as well as men, view these customs
as "desirable, one area where their own culture [is] reaffirmed," even
30 PAUL COSSALI & CLIvE ROBSON, STATELESS IN GAZA 38 (1986).
3' See HILDA BERNSTEIN, FOR THEIR TRIUMPHS & FOR THEIR TEARS: WOMEN IN APARTHEID
SOUTH AFRICA 23 (1985) (discussing the common occurrence of domestic violence in South
Africa).
32
See HUMAN RIGHTS WATCH, VIOLENCE AGAINST WOMEN IN SOUTH AFRICA 21 (1995)
(arguing that the effects of apartheid on traditional patriarchal systems limit the ability of men
to maintain households).
33
See NAWAL EL SAADAWI, THE HIDDEN FACE OF EVE: WOMEN IN THE ARAB WORLD 4 (Sherif
Hetata ed. & trans., 1980) (discussing the effects of religion and culture on Islamic women).
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though this results in female subordination. 4 Most women, subject
to the multiple burdens of their ethnicity and gender, would not even
think of going to outsiders, i.e., the police or other officials, to seek
relief from repressive practices or to report their own men for abuse.
This would make the women collaborators or traitors.35 Thus, they
suffer in silence, perhaps unaware of the "patriarchal bargain" they
have made in their own subordination.36 When evaluating their
multiple oppression, many politically aware women in the developing
world realize that even though they may join guerrilla movements,
work outside the home, and enter politics, at the end of the day they
are still inferior to men, fighting to be second or third class
citizens.37
The multiple effect of violence on these women, simultaneously
coming from outside and inside their culture, constitutes a "spirit
injury" to women, and thus on the entire culture. Spirit injury is a
critical race feminist term which contemplates the psychological,
spiritual, and cultural effects of the multiple assaults on these
women." Spirit injury "leads to the slow death of the psyche, of the
s Adrien Katherine Wing, Custom, Religion and Rights: The Future Legal Status of
PalestinianWomen, 35 HARV. INT'L L.J. 149, 157 (1994) (discussing how women often support
their own subordination, "especially in the context of foreign occupation").
" Jenny Rivera has written about this "double bind" in the context of Latina-American
women abused by Latino men, and concludes that women are fearful of reporting men to the
police. See Rivera, Domestic Violence Against Latinas, supra note 25, at 234. Kimberle
Crenshaw has written about Black American women's hesitance to involve the police in
domestic disputes, and the general unwillingness of people of color in the United States, as
racially subordinated people, to subject their private lives to public scrutiny. See Crenshaw,
supra note 25, at 1257. For early pieces of literature discussing Black women, see Soraya M.
Coley & Joyce 0. Beckett, Black Battered Women: PracticeIssues, in DOMESTIC VIOLENCE LAW,
supra note 2, at 158; Beth Richie, Battered Black Women: A Challenge for the Black
Community, in DOMESTIC VIOLENCE LAW, supra note 2, at 154.
The United Nations
Declaration on the Elimination of Violence Against Women expresses its concern that minority
women may be especially vulnerable to violence. See Declaration on the Elimination of
Violence Against Women, supra note 4, at art. III.
"6 Devon W. Carbado, "Motherhoodand Work in CulturalContext: One Woman's Patriarchal
Bargain", in CRITICAL RACE FEMINISM, supra note 15, at 339. Critical race feminist Devon
Carbado uses the term "patriarchal bargain" to refer to the bargain his Jamaican mother made
while raising nine children in England and working both inside and outside the home. See id.
"7 See generally MIRANDA DAVIES, THIRD WORLD-SECOND SEX (1987) (discussing women
in the workforce, warfare, and politics).
3 See Adrien Katherine Wing, BriefReflections Toward a MultiplicativeTheory and Praxis
of Being, 6 BERKELEY WOMEN'S L.J. 181, 190 (1991) (illustrating the concept of spirit injury).
In another article, I characterize the combination of the physical and psychological effects of
the Bosnian rapes as a spirit injury on the individual women and the entire Bosnian culture.
See Wing & Merchan, supra note 29, at 1. Patricia Williams has previously characterized the
psychological impact of racism as "spirit murder." Patricia Williams, Spirit-Murdering the
Messenger: The Discourse of Fingerpointingas the Law's Response to Racism,'42 U. MIAMI L.
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Critical Race Feminist Conceptualization of Violence
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soul, and of the identity of the individual." 9 Women come to
believe in their own inferiority, and that there is justification for the
violence against them, because "[a] fundamental part of ourselves
and of our dignity is dependent upon the uncontrollable, powerful
external observers who constitute society."40 If society places a low
value on certain members, they in turn will perceive themselves as
having a lesser worth in that society. Because they are devalued by
both the outside society of the oppressor and the inside society of
their own culture, as well as by the intimate inside of their own
family, women cannot help but be profoundly silenced and experience
a loss of her self-actualization. The spirit injury becomes "as
devastating, as costly, and as psychically obliterating.., as robbery
or assault."4 1 On the group level, the accumulation of multiple
individual spirit injuries can "lead[] to the devaluation and destruction of a way of life or of an entire culture."42 Neither international
nor domestic law adequately remedies the spirit injuries that
oppressed women or men face on an individual or group basis.
In another article, I have discussed the components of spirit injury
in the context of rape.4 3 Some of these same components apply to
outside/inside violence in this context as well. Outside/inside
violence consists of the following symptoms: defilement, silence,
sexuality, trespass, and emasculation." The violence waged by the
oppressor is a deliberate defilement of the culture of the oppressed.
The oppressed men attempt to protect their women from that
defilement as much as possible, usually by further restricting them
to the private sphere of the home or culture and glorifying patriarchal traditions that espouse these ideas. Women must bear their
restrictions in silence, often paying a heavy social or physical cost if
they dare to speak out for themselves.
The item that must be protected and controlled by men at all costs
is female sexuality. Once again, the consequence of this protection
and control is severe limitation on a female's ability to self-actualize.
Finally, the extent to which the violence of the oppressor is able to
trespass on the culture and family of the oppressed man represents
With limited outlets for the
an emasculation of that man.
REv. 127, 129 (1987).
39 Wing, supra note 38, at 186.
"o Williams, supra note 38, at 151.
41 Id. at 129.
42 Wing & Merchan, supra note 29, at 1.
43 See id. at 1-2.
See id. at 29-36.
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frustration of emasculation engendered by the oppressor, violence
against group females is often the result.
This Article will now use this critical race feminist approach on the
outside/inside dichotomy and spirit injury to conceptualize violence
in two concrete applications. By placing Black South African women
and Palestinian women at the center of the analysis, we can
specifically examine how international and domestic law helps and
hinders any improvement in the social and legal status of the
women. Because CRF believes in evaluating women in their own
cultural context rather than "essentializing" them as the universal
woman, this Article next provides background on the current status
of South African and Palestinian women.
III.
SOCIAL AND LEGAL CONDITIONS
A.
South Africa45
Black South African women, who constitute more than thirty-six
percent of the South African population,4 6 are the most oppressed
group in South Africa.47 Even though legal apartheid has ended,
Black South African women are still victimized on a de facto basis by
whites, both male and female, on the account of their race. White
males still constitute the vast majority of employers or potential
employers of Black women as well as professional service providers
to these women.48 White women are also employers, especially of
domestics-a profession almost exclusively employed by Black
females.4 9 Additionally, Black and white men victimize Black
women on the basis of gender. Because almost all Blacks are still of
"
Part III.A draws heavily from Wing & de Carvalho, supra note 29, at 87-90 (discussing
discrimination against Black South African women).
" See Sharon Fonn, Working Women's Health, in WOMEN'S HEALTH AND APARTHEID: THE
HEALTH OF WOMEN AND CHILDREN AND THE FUTURE OF PROGRESSIVE PRIMARY HEALTH CARE
IN SOUTHERN AFRICA 20, 29 (Marcia Wright et al. eds., 1988). White women make up
approximately eight percent of the South African population, while Coloured women make up
approximately five percent and Indian women make up less than two percent. See id.
47 See Romany, supra note 28, at 860-69 (noting that Black South African women bear the
double burden of being subjected to sexual as well as racial discrimination). See generally
UNITED NATIONS DEP'T OF PUB. INFO., THE PLIGHT OF BLACK WOMEN IN APARTHEID SOUTH
AFRICA (1991) (detailing the oppression of Black South African women).
See Romany, supra note 28, at 865.
"
See Wing & de Carvalho, supra note 29, at 68 (finding that approximately "one million
black women ...work[] as domestic servants" in South Africa). Black women make up 86%
of domestic workers-an occupation not subject to minimum wage. See Romany, supra note
28, at 865.
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poor or working class backgrounds, 0 Black women are also oppressed on the basis of class. This oppression is perpetrated
predominantly by whites, but also by Coloured, Asian, and a few
Black employers."' Coloureds and Asians constitute a middle class
of employers and service providers.5 2
A mere three years into Black majority rule, the legacy of
apartheid is still deeply entrenched." A brief summary of how
apartheid oppressed all Blacks is necessary to contextualize the
oppression of Black women. Legal segregation imposed separation
and "a badge of inferiority in all areas of life, including housing, land
ownership, education, health care, employment, judicial administration, freedom of speech, freedom of association, public
accommodations, and marriage." 4 Black women were often left to
raise children alone in barren bantustans,5 5 while their men worked
in urban centers. Those women in urban centers were often left to
scrounge, working as domestics if they were lucky. Because women
were usually living illegally, they could be arrested, have their
houses demolished, have their children left alone, have their men
missing, and have their men arrested.
Despite a new constitution that grants equality to women, 6 Black
women are still affected by sexist presumptions found in African
60 See HUMAN RIGHTS WATCH, supra note 32, at 14-15.
See Wing & de Carvalho, supra note 29, at 61.
See Charles R. Lawrence, III, Race, Multiculturalism,and the Jurisprudenceof Transformation, 47 STAN. L. REv. 819, 832 (1995) (describing the racial hierarchy and economic
positions of Asians and Coloureds in South Africa).
"3 See Daisy M. Jenkins, From Apartheid to Majority Rule: A Glimpse into South Africa's
Journey Towards Democracy, 13 ARIZ. J. INT'L & CoMP. L. 463, 479 (1996) (discussing the
continuing process of reversing the legacy of apartheid in South Africa). The continuing legacy
of apartheid in South Africa should not be surprising because the United States is still dealing
with the legacy of de jure slavery and racial segregation at the end of the twentieth century.
I Wing & de Carvalho, supranote 29, at 60. Among the apartheid laws were the following:
Bantu Homelands Citizenship Act 57 of 1970; Promotion of Bantu Self-Government Act 55 of
1959; Natives (Abolition of Passes and Coordination of Documents) Act 67 of 1952; Group Areas
See RIGHTS AND
Act 41 of 1950; and Population Registration Act 30 of 1950.
CONSTITUTIONALISM: THE NEw SOUTH AFRICAN LEGAL ORDER 132-36 (Dawid van Wyk et al.
eds., 1994) [hereinafter RIGHTS AND CONSTITTrIONALISM] (discussing the laws of South Africa
that were in force before 1990). The government passed a wide variety of laws designed to
suppress Black political activity, including the Unlawful Organization Act 34 of 1960; Criminal
Law Amendment Act 8 of 1953; Public Safety Act 3 of 1953; and Suppression of Communism
Act 44 of 1950. See RIGHTS AND CONSTITUTIONALISM, supra, at 292-94, 377-78 (discussing
freedom of assembly and association in South Africa prior to 1990).
See infra note 103 and accompanying text (discussing the creation of bantustans).
66 See infra notes 184-92 and accompanying text (discussing the Constitution of South
Africa).
61
62
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customary law57 as well as the Afrikaner, British, Coloured, and
Asian patriarchy of the employers of Black women.58 The customary law of each Black ethnic group 9 affects marriage, divorce,
guardianship, succession, contractual power, and property rights in
that group. Women remain "perpetual minors and lifelong wards of
their fathers, husbands, brothers, or sons.... [W]omen [cannot]
engage in contracts of any kind, acquire property, inherit, or marry
without .. permission. "' °
Thus, women are literally and
figuratively male property.
Additionally, men customarily pay a bride price or lobolo.6 ' Some
South Africans have characterized this practice as a sale of a bride,
while others have regarded it as insurance in case of divorce, 62 or
merely a symbol of agreement between families. 3 Many women
view lobolo as a "public measure of their worth," a legitimation of
their status in the community, and not as a practice that oppresses
Black women.64
Under customary law, polygamy is legal, i.e., a man may have
more than one wife, but a woman may only have one husband. 5
While civil law only recognizes monogamous marriage, many Blacks
still marry under customary law.66 Thus, most Black women
still
67
fall under the patriarchal presumptions of customary law.
Customary law may also be referred to as "indigenous law," "tribal law," "black law" or
"traditional law."
68 For survey coverage of South African family law, see generally June Sinclair, Family
Rights, in RIGHTS AND CONSTITUTIONALISM: THE NEW SOUTH AFRICAN LEGAL ORDER 502
(Dawid van Wyk et al. eds., 1994); P.J. VISSER & J.M. POTGIETER, INTRODUCTION TO FAMILY
LAw (1994).
', The Black ethnic groups include the Zulu, Xhosa, Swazi, Tswana, Sotho, and Ndebele.
'o Wing & de Carvalho, supra note 29, at 64.
" Lobolo is the payment of money from a man to the father of the bride. See J.C. BEKKER,
SEYMOUR'S CUSTOMARY LAW IN SOUTHERN AFRICA 150-71 (1989) (discussing the origin,
purpose, and importance of lobolo). For further discussion on lobolo, see Ian Currie, The
Future of Customary Law: Lessons from the Lobolo Debate, in GENDER AND THE NEW SOUTH
AFRICAN LEGAL ORDER 146 (Christina Murray ed., 1994).
2 See Sandra Burman, Capitalizingon African Strengths: Women, Welfare and the Law, in
PUTTING WOMEN ON THE AGENDA 107-08 (Susan Bazilli ed., 1991) (arguing that South Africa
should update the practice of lobolo in order to conform to its original purpose of providing a
safety net for women and their children in times of need).
63
See DIGBY SQHELO KOYANA, CUSTOMARY LAW IN A CHANGING SOCIETY 5 (1980)
(characterizing lobolo as a symbolic and traditional marriage custom).
"
See T.W. BENNETT, A SOURCEBOOK OF AFRICAN CUSTOMARY LAW FOR SOUTHERN AFRICA
198 (1991).
's
See id. at 224.
See Wing & de Carvalho, supra note 29, at 87.
See BEKKER, supra note 61, at 126 (discussing the status of women under the system of
polygamy). Since 1988, men in customary marriages cannot subsequently contract a civil
66
67
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On a class basis, Black women do the majority of domestic
cleaning and child care work for all the other ethnic groups, and the
bulk of rural agriculture as well.6" They remain the lowest paid
group in the country, and hold positions guaranteeing little security
and requiring the lowest amount of skill.6 9 Thus, Black women
remain subject to whites, Coloureds, Asians, and a few Black
employers, male and female, who exploit them on a class basis.
1. Violence
South Africa's culture of the outside violence of apartheid has
contributed to male and female acceptance of domestic violence in
the private sphere as a fact of life.7" South African women have
experienced a great deal of abuse as a result of both rape and
domestic violence. 7 ' One study estimates that, in 1991, ninety-five
percent of rapes were unreported, and that ninety-five percent of all
rapes were committed against Black women.72 Some estimates say
as many as one-third of the Black South African women will be
raped, and as many as one-sixth of the women are in abusive
relations.7 3 Additionally, the legal definition of rape excluded
spousal rape until the enactment of the Prevention of Family
Violence Act.74 However, the definition of rape still excludes samesex rape.7 5 Thus, any sexual acts between people of the same sex,
such as oral sex, anal sex or the use of objects other than a penis,
marriage. See § 1 of Marriage Act 3 of 1988 (amending § 22 of Black Administration Act 2 of
1980), reprintedin BENNETT, supra note 64, at 457. However, this does not affect the millions
of pre-1988 marriages. See id.
8
69
See HUMAN RIGHTS WATCH, supra note 32, at 16-17.
See CHERBYL WALKER, WOMEN AND RESISTANCE IN SOUTH AFRICA 5 (1991) (discussing the
impact of apartheid on women in the workforce).
70 See Robert Shepard, Working to Fix a Violent Culture, CHI. TRIB., Aug. 28, 1994, at 1
(discussing the prevalence of domestic violence in South Africa).
See Wing & de Carvalho, supra note 29, at 72.
72See John Carlin, After Violation, There is Only Fear,INDEP. (London), May 30, 1992, at
14 (citing a survey conducted by the National Institute for Crime and Rehabilitation of
71
Offenders).
71 See Paula Johnson, Law, Culture and Violence Against Women in the United States and
South Africa, 1 IOWA J. GENDER, RACE & JUST. (forthcoming 1997).
71 See § 5 of Prevention of Family Violence Act 133 of 1993. For a brief discussion of this
Act, see Vivienne Goldberg, South Africa: PrivateLaw in Transition/The Effect of the New
Constitution,33 U. LOUISVILLE J. FAM. L. 495,499-500 (1995) (discussing the attempt by South
Africa to protect the family as a unit).
" See § 5 of Prevention of Family Violence Act 133 of 1993.
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remain outside the scope of the law.76 Also excluded from the Act
are incidents between people not living together.77
Although the high prevalence of rape and abuse may be partially
attributable to the outside violence of apartheid, customary law plays
a role in domestic violence as well. Because customary beliefs
include the idea that women are the property of males, many men
believe that they have the right to batter and rape women.7 ' These
patterns have continued despite the adoption of the Constitution of
South Africa in 1993. One recent study exposed the shocking fact
that seventy percent of disabled women became disabled as a result
of domestic violence. 9
Female victims of domestic violence are unable to obtain much
assistance from doctors, counselors or the police. 0 They must
undergo abuse from the legal system which doubts their credibility
as well.8 ' In the courtroom, women must deal with traditional
stereotypes that depict women as seductive sex objects that men
cannot resist. s2 They must deal with the spirit injury that results
when insinuations of promiscuity are made in brutal crossexaminations. 3 Prosecutors infer that such promiscuity leads to
rape, which the victim must have resisted to the utmost to prove her
non-consent.8 4
See id.
See id.; Goldberg, supra note 74, at 499 (discussing the provisions of the Prevention of
Family Violence Act).
78 See Carlin, supra note 72 (interviewing Lloyd Vogelman, the head of the Project for the
Study of Violence at University of Witwatersrand, who suggests that "'[t]here's a general sense
76
7
[in South Africa] ...
71
80
81
that it's men's right to rape women').
See Cindy Shiner, The Silent Struggle, AFR. REP. July-Aug. 1994, at 44.
See id.
See Carlin, supranote 72, at 14 (discussing the inability of the legal system to effectively
punish rapists).
82
See Navi Pillay, Judges and Gender: Wife Battery and Child Abuse, 16 AGENDA 62, 63
(1993) (discussing the myths perpetrated by the South African criminal justice system).
83 See Fatima Meer, Women in the Apartheid Society, in THE STRUGGLE FOR LIBERATION IN
SOUTH AFRICA AND INTERNATIONAL SOLIDARITY: A SELECTION OF PAPERS PUBLISHED BY THE
UNITED NATIONS CENTRE AGAINST APARTHEID (E.S. Reddy ed., 1992) 160, 169-71 (discussing
the difficulties which women face in trials before the courts of South Africa).
84 See Pillay, supra note 82, at 65. Stereotypes about the link between female promiscuity
and rape are well entrenched even in children. For example, one study of adolescents in Natal
province found that they believed that "'it is women who are cheeky who get raped."' Lloyd
Vogelman & Gillian Eagle, Overcoming Endemic Violence Against Women in South Africa, 18
SOC. JUST. 209, 219 (1991) (quoting D. Gould, Rape Ideology in Newlands East (1988)
(unpublished masters dissertation, University of Natal (Durban))). See generally LLOYD
VOGELMAN, THE SEXUAL FACE OF VIOLENCE: RAPISTS ON RAPE (1990) (discussing the typical
scenario after a rape, including the indifference of the South African criminal justice system
towards women).
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The combination of the outside/inside violence of apartheid and
customary practices constitutes a massive spirit injury for Black
South African women.
The symptoms of defilement, silence,
sexuality, trespass, and emasculation are present. Since the legacy
of apartheid has resulted in continued high unemployment and
disempowerment for many Black males, these men continue to feel
emasculated by the trespass on the control over their families and
culture, even in the new South Africa. These men may take out
their frustrations on their women."5 "'Men's experience of racism
and economic deprivation often causes a reactionary backlash within
the family-to the detriment of women-rather than opening up the
space for resistance to race and class oppression.'"86
Thus, the women are defiled by the multiple levels of
abuse-abuse from the outside violence of the apartheid legacy,
inside violence from their own men, and a legal system that re-rapes
them if they attempt to seek justice. These women may prefer to
suffer in silence as their men attempt to totally control their lives,
including their sexuality.
Fortunately, there are a number of organizations dealing with
domestic abuse," as well as some hotlines. Additionally, there is
the Wynberg Sexual Offenses Court, and the acceptance of the rape
trauma syndrome by courts in the Western Cape.8 8 The Prevention
of Family Violence Act 89 is now in operation as well. These developments may hold substantial potential for the future.
B.
Palestine
Palestinian women in the West Bank and Gaza Strip have lived
under occupation for centuries.9 0 Ottoman Turks ruled the area for
500 years, until World War I when they were ousted by the Allied
Forces.9 1 Then, the British tried to govern an increasingly fractious
"' See Vogelman & Eagle, supra note 84, at 214 (discussing the psychological effect of the
political economy of South Africa on Black men).
" Id. at 214 (quoting C. Campbell, The Township Family and Women's Struggles, 6 AGENDA
1, 14 (1990)).
" See HUMAN RIGHTS WATCH, supra note 32, at 4 n.7 (1995) (listing non-governmental
organizations that exist in South Africa to help victims of rape and domestic violence).
8 See Johnson, supra note 73.
89 Prevention of Family Violence Act 133 of 1993.
"o For a discussion of the history of the occupation of the West Bank and the Gaza Strip, see
Adrien Katherine Wing, Legal Decisionmaking During the PalestinianIntifada: Embryonic
Self-Rule, 18 YALE J. INTL L. 95, 100-27 (1993).
91 See id. at 106-07.
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region where Arab nationalism confronted Jewish Zionist
nationalism.92 After the formation of the state of Israel, the West
Bank came under the jurisdiction of Jordan, and Egypt took over the
administration of the Gaza Strip.9
In 1967, Israel started its military occupation.94 During the
occupation, many women were among those arrested, imprisoned,
and tortured.9" When their men were taken into administrative
detention for long periods, the women became the bulwarks of the
large and extended families. Many women worked only in the home
and did not earn money to support the family. Many women and
women's organizations, played an increasingly visible and prominent
role during the six-year uprising known as the intifada.6 As the
current Minister of Higher Education, Professor Hanan Ashrawi
notes that "[i]n every confrontation, committee, project, or enterprise
women took the initiative, stood up and stood out. Neither kitchen
nor prison could contain or intimidate them. The first person
pronoun was no longer the sole domain of the masculine."97
Professor Ashrawi is best known as the spokesperson for the
Palestinians during the Madrid peace talks with Israel.
The peace process that started in 1993 has resulted in a high level
of frustration among the Palestinians, and the October 1996
violence is the most recent manifestation of this collective feeling. 9
Although the new Palestinian National Authority (PNA) government
92
See id. at 108.
9 See id. at 108-09.
See id. at 110-11.
9' For more on the role of women before and during the intifada, which is the term used to
describe the Palestinian revolt against the Israeli occupation, see Wing, supra note 34, at 18398.
" For further discussion of the role of Palestinian women during the uprising and the
intifada in general, see INTIFADA: THE PALESTINIAN UPRISING AGAINST ISRAELI OCCUPATION
155-69 (Zachary Lockman & Joel Beinin eds., 1989) (discussing the expanded role of Palestinian women in governmental and social areas); F. ROBERT HUNTER, THE PALESTINIAN
UPRISING: A WAR -BY OTHER MEANS 23-25 (1991) (discussing the role of women in informal
committees); ANDREW RIGBY, LIVING THE INTIFADA 22 (1991) (same); Richard A. Falk & Burns
H. Weston, The Relevance of InternationalLaw to PalestinianRights in the West Bank and
Gaza: In Legal Defense of the Intifada, 32 HARV. INT'L L.J. 129, 150-56 (1991) (describing the
Palestinian resistance as a movement toward self-government).
97
HANAN ASHRAWI, THIS SIDE OF PEACE 47 (1995).
" For a discussion of the effect of the peace process on women, see Andrea E. Bopp, The
Palestine-IsraeliPeace Negotiations and Their Impact on Women, 16 B.C. THIRD WORLD L.J.
339, 352-57 (1996).
' See Joel Greenberg, Arafat Tells His Police Force to Never Shoot Israeli Troops, HOUS.
CHRON., Oct. 9, 1996, at 1 (discussing the lingering effect that the peace process is having on
Palestinians).
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of President Yasser Arafat now controls seventy percent of the Gaza
Strip, it only controls three percent of the entire West Bank. 100
Thus, a large number of Palestinian women and men remain under
direct occupation, and the remainder under indirect occupation.
There have been periodic closures, total and partial on the area,
which have resulted in Palestinians being unable to leave or enter
Palestinian areas without difficult-to-obtain permits. 101
Many
Palestinians have characterized the Gaza Strip as a virtual prison
for its nearly one million denizens. 102 The Israelis have also
occasionally cordoned off the various Palestinian cities in the West
Bank from each other, which is reminiscent of the South African
apartheid bantustan strategy. 0 3 One Palestinian author has called
these little patches of Palestinian controlled territory "arabistans." °4 The net result of the violence of "peace" is an economy
in shambles 0 5 and a peace process in tatters. Many frustrated
Palestinians are calling for a return to the days of the uprising which
included violent demonstrations, riots and civil disobedience in areas
still controlled by the Israelis as well as those now controlled by the
0 6
new, but relatively ineffectual, Palestinian government.
In addition to the external oppression of the outsider, Palestinian
women face multiple burdens from the customary and Islamic
heritages.0
7
Customary practices predate the introduction of
Islam in the seventh century, yet current custom and Islam have
100 See Chandra Muzaffar, Israel: The Root Cause of Violence, NEW STRAITS TIMES
(Malaysia), Apr. 15, 1996, at 12 (discussing the presence of the PNA in Gaza and the West
Bank).
"o'See David Makovsky & Jon Immanuel, Ross Failsto Move Hebron Talks, THE JERUSALEM
POST, Dec. 23, 1996, at 1 (reporting that "Palestinian cities [have] become virtual prisons due
to difficulties in obtaining permits to enter and leave them").
102 Interviews with Palestinians in West Bank and Gaza Strip (May, June and Aug. 1996).
103 The South African Promotion of Bantu Self-Government Act of 1959 established eight socalled "nations," more commonly known as bantustans, and attempted to restrict Blacks to
becoming citizens of their particular bantustan. See Wing & de Carvalho, supra note 29, at
62 (detailing the history of Black South African townships and the establishment of the
"nations"). Ultimately, there were ten of these bantustans. See id. Influx control laws limited
the access of Blacks to urban and industrial areas. See id.
104 Mouin Rabbani, PalestinianAuthority, Israeli Rule: From Transitional to Permanent
Arrangement, MIDDLE EAST REP., Oct.-Dec. 1996, at 2, 6.
105 See Eugene Bird, Since Oslo, U.S. Has Provided $17 Billion to Israelis, $50 Million to
Palestinians,WASH. REP. ON MIDDLE EAST AFF., Oct. 1996, at 13 (describing the stagnation
of the economy of the Middle East during the peace process).
1o6Interviews with Palestinians in the West Bank and Gaza Strip (June and Aug. 1996);
Telephone Interviews with Palestinians (Oct. 1996).
107See Wing, supra note 90, at 102 (discussing customary law and Islamic religious
heritage).
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mutually influenced each other.'
Both custom and Islam have
also been affected by the various occupations.
Under current custom, women are considered repositories of family
and clan honor.0 9 Female chastity and purity must be maintained
or the family will be disgraced."0 There is also the tradition of
honor killings, in which male family members are justified in killing
any female family member that they feel has besmirched the family's
honor. Crimes for which women could be punished for are dating,
premarital sex, leaving home without permission, or marrying
outside the faith or to someone not approved by the family. One
human rights group estimates that nearly all of the 107 women
killed as suspected Israeli informers during the uprising were in fact
victims of honor killings."' Women activists see these killings as
a means to prevent women from rebelling against a system in which
they are2 dominated by male patriarchy from the cradle to the
grave."
Male children are preferred, and upon birth the mother becomes
known as Umm (mother of) her oldest son's name." 3 Girls are still
likely to be married off in arranged marriages when they are
teenagers. Thus, their completion of secondary school may not be a
priority. As one woman said, "[i]f a family cannot educate all the
children, the man must be chosen, because he will be the breadwinner and the head of the household.""'
A bride price mahr is paid by the groom's family to the girl, for her
own use. If divorce occurs, the woman goes back under the jurisdiction of her father or other male relatives. There is no independent
living as there is in the United States. While these customs are
more likely to be followed in rural or less well educated families,
108See id.
109 See
PHILIPPA STRUM,
THE WOMEN ARE MARCHING:
THE SECOND SEX AND
THE
PALESTINIAN REVOLUTION 26 (1992) (discussing the role of Palestinian women under current
customs).
110 See id. at 27 (discussing the perception of Palestinian women prior to marriage and after
marriage).
. See Scheherezade Faramarzi, Sins Cost Druse Women Their Lives, ROCKY MOUNTAIN
NEWS, Dec. 24, 1995, at 25A (discussing a finding by the Betselem, an Israeli human rights
group, during the six-year Palestinian uprising).
112 See id.
"I See ANGELA BENDT & JAMES DOWNING, WE SHALL RETURN: WOMEN OF PALESTINE 89
(1980) (discussing the historical treatment of Palestinian women and the feelings that such
treatment has generated).
114 COSSALI & ROBSON, supra note 30, at 35.
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they have surprising resonance even in highly educated, elite
families as well." 5
The Islamic heritage that began in the seventh century was seen
as an improvement over custom. Polygamy was limited to four wives
in the shari'a,"6' which is the Islamic law as found in the Koran.
Now, women are allowed to divorce on limited grounds, and obtain
17
maintenance.
Women also gained the right to own and inherit
8
property."
Despite these improvements over custom, shari'a sanctions
differential treatment for women. Women's inheritance share is
limited to one half of a male's share."' Only men can have more
than one spouse, and men can freely divorce. 2 0 Muslim men can
marry a Muslim, Christian, or Jewish woman, while a Muslim
woman can only marry a Muslim.' 2 ' Furthermore, custody of
children is only awarded to the wife when children are young.'22
Most importantly for the purposes of this Article, shari'a permits
men to beat their wives if they do not submit, and the wives must
endure the punishment. 2 ' The Jordanian Personal Status law,
which codifies many shari'a principles for the West Bank, makes
clear that the wife has the duty to obey the husband (taa).'24 The
net effect is that women are well aware of and feel their subor1 25
dination, regardless of their age or educational status.
"-
See AMAL KAWAR, DAUGHTERS OF PALESTINE 20 (1996) (discussing the prevalence of
traditional customs among educated Palestinian families). The author has had numerous
conversations with Palestinian women who are lawyers, professors, and other highly educated
individuals, who say these customs bind them (i.6, they cannot openly date, they must live at
home, etc.).
...See, e.g., Abdullahi An-na'im, The Rights of Women and InternationalLaw in the Muslim
Context, 9 WHriTIER L. REv. 491, 493-97 (1987) (discussing the development of the system of
Islamic law known as shari'a).
.. See id. at 495 (arguing that the improvements, although minimal from a Western
perspective, are significant).
118 See id. (discussing specific rights given to women by sharia'a).
l See Abdullahi Ahmed An-na'im, Human Rights in the Muslim World: Socio-Political
Conditions and Scriptural Imperatives, 3 HARV. HUM. RTS J. 13, 39 (1990) (reviewing the
differences in treatment among men and women under shari'a).
120 See id. at 39.
12 See Ann Elizabeth Mayer, Law and Religion in the Muslim Middle East, 35 AM. J.COMP.
L. 127, 144 (1987) (discussing the persistent influence of Islamic law over marriage).
122 See id.
121 See An-na'im, supra note 119, at 39 n.112 (discussing Koran verse 4:34 which allows a
husband to chastise his wife to the point of physical abuse).
124 See Jordanian Personal Status Law, Temporary Law No. 61/1976, Official Gazette No.
2668 of Dec 1, 1976, at arts. 36, 66, 67.
125 See generally Palestinian Women's Perspective Vis-a-vis Gender Issues (Mar.
1995) (on
file with author) (discussing a study conducted by Bisan Center for Research and Development
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1. Violence
The symptoms of spirit injury manifest themselves in the area of
violence among the Palestinians as well. Unfortunately, the silence
of spirit injury is so profound that there are no reliable statistics on
domestic violence or other violence against women, and public
discussion on such issues is still relatively muted.'26 Alarming
rates of domestic violence have been found in the West Bank.'27
According to one provider, domestic violence is also endemic in Gaza:
"'[Mien have a lot of aggression and very few channels for ventilating
it.... Men... use women to ventilate, and beating is part of the
culture.""2 Wife beating continues because of patriarchy and the
way males are socialized to view women from an early age, and
because of the custom of noninterference in domestic disputes.'29
Reports have uncovered a few cases of classic torture in which men
mimicked Israeli torture techniques that were used against them in
prison. 13 For example, one husband covered his wife's head with
a sack and beat her with pipes and cable.'
He was
arrested, but
132
released eighteen days later without being charged.
Victims feel the spirit injury of silence because they dare not speak
in order not to hurt family honor. Many of them are blamed for the
"shame" they have caused-that is, they are defiling the family honor
if they complain. In the one major survey of women's attitudes,
women indicated that they preferred to handle the situation within
the family, rather than seek outside assistance. 133 In a recent
and Oxfam-Quebec).
126
See UNITED STATES DEP'T OF STATE DISPATCH, OCCUPIED TERRITORIES HUMAN RIGHTS
PRACTICES 1995 § 5 (Mar. 1996) (reviewing human rights issues of women living under military
occupation). There are few empirical studies in the Arab world. See Jamileh Abu-Duhou,
Report on Services Available for Victims of Violence and the Attitude of Service Providers: In
the West Bank/Palestine 1995-1996, at 11 (on file with author).
127 See M. AL-HAJ YAHIA ET AL., BISAN CENTER FOR RESEARCH AND DEVELOPMENT,
ATTITUDES OF PALESTINIAN GIRLS AND WOMEN CONCERNING THE ISSUES OF DOMESTIC
VIOLENCE 3 (1995), cited in Abu-Duhou, supra note 126, at 11.
128 Esther Hecht, Therapy for Society, THE JERUSALEM POST, July 26, 1996, at 11
(quoting
Dr. Mustafa Masri, a psychiatrist at Gaza Community Mental Health Program).
'" See Abu-Duhou, supra note 126, at 9.
130 See Hecht, supra note 128, at 11 (describing instances of torture).
131See id.
122
See id.
See AL-HAJ YAHIA ET AL., supra note 127, at 12. For example, an Arab clinical
psychologist in the United States, Dr. Nuha Abudabbeh, has testified in an Immigration and
Naturalization Service deportation proceeding that it is a cultural norm for Arab women in the
Arab world not to go to the police to report abuse since wife beating is a private matter. See
133
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study, 35.2% admitted to psychological abuse, and 4.3% even
admitted to being raped by their fathers. 34 When presented with
hypothetical situations involving psychological and physical abuse,
significant numbers of men and women blamed the woman as well
as the man for the situation. 135 Large numbers of men (fifty
1 36
percent) felt that disobedience by a woman would justify battery.
In addition to the spirit injury, there are three major problems
facing these women: continued economic dependence on the spouse;
lack of protective services or shelters; and lack of legal protection. 3 7 It simply is not a crime to beat one's spouse, and the legal
system is unwilling to trespass on "inside" matters. Such interference would represent an emasculation of the men in the family,
who would be seen as being unable to control female sexuality.
Women's rights advocates claim that government and society are not
interested in providing counseling or outreach. 138 There are only
two hot lines and one counseling service in the entire West
Bank. 3 9 Now that this Article has provided a social and legal
background about the two cultures and the nature of outside/inside
violence and spirit injury that affects them, this Article will now
discuss the remedial treatment for these women and their societies.
IV.
INTERNATIONAL LAW: CONVENTION ON THE ELIMINATION OF
ALL FORMS OF DISCRIMINATION AGAINST WOMEN
40
While there are many human rights agreements, the Convention
on the Elimination of All Forms of Discrimination Against Women
(CEDAW) represents a holistic approach to women's civil, political,
economic, social, and cultural rights. More than 140 nations have
ratified the CEDAW.' 4' Several sections of CEDAW may have
In the Matter ofA and Z (U.S. Dep't of Justice, Office of the Immigration Judge), in DOMESTIC
VIOLENCE LAW, supra note 2, at 808.
134 See AL-HAM YAHIA ET AL., supra note 127, at 12.
135 See id. at 30.
...See id. at 35.
137See id. at 28.
138 See UNITED STATES DEP'T OF STATE DISPATCH, supra note 126, § 5.
See Abu-Duhou, supra note 126, at 25.
Part IV will only discuss the Convention on the Elimination of All Forms of
Discrimination Against Women, supra note 12. However, there are other applicable
conventions.
14 See Declarations, Reservations, Objections and Notifications of Withdrawal of
Reservations Relating to the Convention on the Elimination of All Forms of Discrimination
Against Women, Committee on the Elimination of Discrimination Against Women, U.N. Doc.
CEDAW/SP/1994/2 (1994).
13
140
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some relevance to the situation of violence against women in South
Africa and Palestine. Article 2 calls upon states to modify or abolish
laws or practices which discriminate against women. 142 Another
article calls upon states to
modify the social and cultural patterns of conduct of men and
women, with a view toward achieving the elimination of
prejudices and customary and all other practices which are
based on the idea of the inferiority or superiority of either of
the sexes or on stereotyped roles for men and women. 4 '
The CEDAW also calls for men and women to have equality before
the law'" and to eliminate discrimination in all areas "relating to
marriage and family relations." 45 These provisions could be
interpreted to call for an end to domestic abuse on the patriarchal
grounds of women's property status.
Because of the vagueness of the above provisions with respect to
violence against women, the Committee on the Elimination of
Discrimination Against Women, which is the body charged with
oversight of CEDAW, endorsed an explicit resolution on this point in
1992.146
This resolution recognized that violence against women
is a form of discrimination. 47 The Committee interpreted CEDAW
to make explicit that gender based violence is a violation of several
articles. 148 The Committee's action was followed up in 1993 when
the United Nations General Assembly adopted the Declaration on
the Elimination of Violence Against Women,
which defines violations
49
of women's human rights to equality.1
South Africa has signed and ratified the CEDAW, without lodging
any reservations to it.'
Unfortunately, CEDAW's enforcement
See Convention on the Eliminationof All Forms of DiscriminationAgainst Women, supra
note 12, at art. 2 (indicating that states should adopt appropriate legislation that will protect
the rights of women).
143 Id. at art.
5.
144See id. at art. 15 (commanding that any legal documents that restrict the legal capacity
of women will be deemed null and void).
'45 Id. at art. 16 (discussing the inclusion of similar rights upon dissolution of marriage).
146 See General Recommendation No. 19: Report of the Committee on the Elimination of
Discrimination Against Women, 11th Sess., Agenda Item 7, U.N. Doc.
CEDAW/C/1992L. 1/Add.15 (1992).
147 See id. at para. 1. This declaration was a basis for the recognition that the issue received
at the 1993 World Conference of Human Rights.
142
148
See id. at para. 8.
See Declarationon the Elimination of Violence Against Women, supra note 4, at art. 3
(indicating several areas where women have a right to equality).
10 The former regime signed the CEDAW on January 29, 1993. See Rebecca J. Cook, State
Responsibility for Violations of Women's Human Rights, 7 HARv. HUM. RTS. J. 125, 158-69
'4
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mechanisms are known to be notoriously weak,' 5' and thus South
African women would be well advised to look to their own new
constitution, which is more comprehensive in scope.
With respect to Palestine, the ninth draft of the Basic Law of
Palestine explicitly states that "[tihe Palestinian National Authority
shall work, without delay, to join the regional and international
declarations and covenants that protect human rights."'
While
the Authority, as an autonomous entity does not have the status of
independent statehood and thus cannot join these agreements, it is
highly significant that it is committing itself to these principles. An
earlier draft of the Basic Law of Palestine specifically listed
numerous conventions, including the CEDAW.'53 The enumeration
of all the conventions was eliminated for the sake of simplicity, while
the author was present as a foreign advisor at the deliberations of
15 4
the Legal Committee of the Palestinian Legislative Council.
At this point, international law in the form of the CEDAW has
very limited direct applicability for either South Africa or Palestine.
It is highly significant, however, that both societies agree to be
bound by this important convention, something the United States
has not yet committed to do. Since CRF is concerned with improving
the status of women in a real world sense, it is important to look
(1994) (examining state responsibility in light of the CEDAW). Many countries have signed
with reservations that often eviscerate the Convention. More than 20 of the signatory states
have made substantive reservations. See Sarah C. Zearfoss, Note, The Convention for the
Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or
Reactionary?, 12 MICH. J. INT'L L. 903, 925-26 (1991) (discussing the number of countries
making reservations to the CEDAW and their reasons for doing so).
. 151 See THEODOR MERON, HUMAN RIGHTS LAw-MAKING IN THE UNITED
NATIONS: A CRITIQUE
OF INSTRUMENTS AND PROCESS 212-13 (1986) (discussing the need for a United Nations human
rights tribunal). There are also critiques about the convention itself. Some of the critiques
focus on its male-centered emphasis of the public sphere (i.e., the economy, law, education, etc.)
as opposed to the private sphere where most women live out their lives. See Hilary Charlesworth, "What are Women's InternationalHuman Rights"?, in HUMAN RIGHTS OF WOMEN,
supra note 28, at 67 (arguing that the male-centered public sphere ideology fosters the
inequality of women); Shelly Wright, Human Rights and Women's Rights: An Analysis of the
UnitedNations Convention on the Eliminationof All Forms of DiscriminationAgainst Women,
in HUMAN RIGHTS IN THE TWENTY-FIRST CENTURY: A GLOBAL CHALLENGE 75, 77 (Kathleen E.
Mahoney & Paul Mahoney eds., 1993) (arguing that male-dominated language in international
documents marginalizes women).
"" BASIC LAW OF PALESTINE art. 10 (1996) (9th draft) (translation of draft on file with
author).
153 See BASIC LAw OF PALESTINE art. 8 (1994) (4th draft) (translation of draft on file with
author). Ironically, the English version of the draft omitted mention of CEDAW.
' The author was hired as an independent contractor by the United States Agency for
International Development to serve as a legal advisor in May and June 1996.
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next at the areas with the most potential to effect real change in the
area of violence prevention-the domestic law of the jurisdictions.
V.
DOMESTIC LAW OF SOUTH AFRICA AND PALESTINE
A. South Africa
The 1993 interim constitution of South Africa provided a positive
step forward in improving the legal and social status of black
women.15 5 The Equal Protection Clause guarantees that: "Every
person shall have the right to equality before the law and to equal
protection of the law."' 5 6 Additionally, the interim constitution
goes beyond the Constitution of the United States by outlawing
discrimination on a wide range of grounds: "race, gender, sex, ethnic
or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, or language."5 7 The entire human
rights chapter binds all legislative and executive organs, but is not
directly applicable to private parties.'
Both individual women
155 See S. AFR. CONST. (1993) (interim). For sources on South
African constitutionalism, see
DION BASSON, SOUTH AFRICA'S INTERIM CONSTITUTION: TEXT AND NOTES (1994) (providing an
annotated version of the interim constitution of South Africa); T.W. BENNETT, HUMAN RIGHTS
AND AFRICAN CUSTOMARY LAW: UNDER THE SOUTH AFRICAN CONSTITUTION (1995) (discussing
the interim constitution of South Africa and customary law); Jack Greenberg, South Africa and
the American Experience, 54 N.Y.U. L. REv. 3, 10-15 (1979) (comparing the American civil
rights movement with the South African civil rights movement); Nathaniel M. Masemola,
Rights and a Future South African Constitution:The Controversialand the Non-Controversial,
21 COLUM. HUM. RTS. L. REV. 45, 50-61 (1989) (considering the development of human rights
and freedoms under a new South African constitution); Albie Sachs, The ConstitutionalPosition
of White South Africans in a DemocraticSouth Africa, 18 SOC. JUST. 1, 1-2 (1991) (discussing
how white South Africans adjusted to the new constitutional system); Albie Sachs, A Bill of
Rights for South Africa: Areas of Agreement and Disagreement,21 COLUM. HUM. RTS. L. REV.
13, 15-26 (1989) (comparing the Bill of Rights in the United States Constitution to the interim
constitution of South Africa); Robert B. Seidman, Perspectives on Constitution-Making:
Independence Constitution for Namibia and South Africa, 3 LESOTHO L.J. 45, 45-50 (1987)
(reviewing the principles of a South African constitution); Johan D. van der Vyver,
Constitutional Options for Post-Apartheid South Africa, 40 EMORY L.J. 745, 761-834 (1991)
(discussing the directions in which South Africa may take after apartheid); Adrien Katherine
Wing, Communitarianismvs. Individualism:Constitutionalismin Namibia and South Africa,
11 WISC. INT'L L.J. 295, 316-26 (1993) (analyzing individualism, group rights and communitarian heritage in South African constitutionalism).
156 S.AFR. CONST. art. 8(1) (1993) (interim).
"5 Id. at art. 9. The Equality Clause found in the Constitution of South Africa is Article 9.
See S. AFR. CONST. art. 9 (1996). The Constitution, which was adopted in December 1996,
expands coverage to permit no discrimination on the additional grounds of pregnancy, marital
status and birth. See id. at art. 9.
IssSee S. AFR. CONST. art. 7(1) (1993) (interim).
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and women's associations have standing to seek legal relief.'5 9 Additionally, under the interim constitution, a Gender Commission is
created whose function is to advise and make recommendations to
Parliament about laws and proposed legislation. 60
In order to avoid the question of reverse discrimination that has
plagued discussions in the United States about equality,'6 ' the
interim constitution contains an affirmative action clause: "[The
Equal Protection Clause] shall not preclude measures designed to
achieve the adequate protection and advancement of persons or
groups or categories of persons disadvantaged by unfair
discrimination, in order to enable their full and equal enjoyment of
all rights and freedoms."162 The government has proceeded to
implement affirmative action measures.
Unfortunately, the
apartheid and customary legacies result in few Black women having
the requisite educational and employment prerequisites to benefit
from affirmative action programs.
The interim constitution affirms the right to have one's dignity
respected and protected, as well as the right not to be subjected to
torture of any kind.6 6 Hopefully, the Constitutional Court would
interpret these clauses to include both physical and mental or
emotional torture. 6 4 Unfortunately, the clauses are limited in
their impact to the public sphere, since they only bind the executive
and legislative branches. Most such violence occurs in the private
sphere, leaving the physical and spirit injuries unaddressed. Thus,
the interim constitution protects the traditional liberal dichotomy
between the public and private sectors, perpetuating the gendered
oppression.
Additionally, the government's reconstruction and
development plan does not mention the creation of any, programs in
the areas of domestic violence.
"
See id. at art. 7(4)(b)(i)-(ii).
See id. at art. 119.
"' I was involved in these discussions as an advisor to the African National Congress
Constitutional Committee from 1991 to 1993. I co-organized a conference on Constitution
Making in South Africa, held at the University of Western Cape in March 1991. This
conference brought nearly 30 Americans together to present papers on various aspects of
160
United States and comparative constitutionalism.
The conference was co-sponsored by the
National Conference of Black Lawyers and National Lawyers Guild (USA) and the National
Association of Democratic Lawyers of South Africa.
162 S. AFR. CONST. art. 8(3)(a) (1993) (interim).
163 See id. at arts. 10-11(2).
164
Rhonda Copelon calls for domestic violence to be viewed as a form of torture. See Rhonda
Copelon, Recognizing the Egregious in the Everyday: Domestic Violence as Torture, 25 HuM.
RTS. L. REV. 291, 297-98 (1994).
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There is an internal tension in the interim constitution between
the goals of equality and customary law. The Bill of Rights in
chapter three'65 and Traditional Authorities in chapter eleven'66
acknowledge a role for customary law. Article 31 stipulates that
"every person shall have the right to use the language and participate in the cultural life of his or her choice."' 67 Since cultural
practices condone treating women as property, subject to being
beaten, 6 ' this would seem to sanction domestic abuse. On the
other hand, article 181 makes clear that "[i]ndigenous law shall be
subject to regulation by law." 6 9 Thus, the government would seem
to have the ability to outlaw such practices. Additionally, since
traditional leaders are not necessarily part of the executive or
legislative branches, their activities are not subject to chapter three
provisions. 70
To deal with some of the perceived inadequacies of the interim
constitution, the Women's National Coalition (WNC) adopted a
Charter,' which they hoped would influence the drafters of the
permanent constitution, i.e., the newly elected Parliament sitting in
its dual role as constituent and assembly.'72 Going far beyond the
interim constitution, the Charter has specific provisions on sexual
and physical violence.' 73 Article 10 declares that "[v]iolence in all
its forms is endemic to South African society. Both sexual and
domestic violence are pervasive and all women live under the threat
of or experience violence."'
Article 10 also affirms the
constitutionally protected right to security and integrity of the
person, which is the "right to be free from all forms of violence in the
home, in communities, in the workplace and in public spaces."' 75
Futhermore, the state must provide facilities, public education and
training for police, judges and others.'76 Article 6 of the Charter
See S. AFR. CONST. ch. III. (1993) (interim).
id. at ch. XI.
167 Id. at art. 31.
168 See BENNETT, supra note 155, at 121 (discussing the abuse of women of South Africa).
169 S. AFR. CONST. art. 181(2) (1993) (interim).
170 See Wing & de Carvalho, supra note 29, at 86 n.216.
165
166 See
171 WOMEN'S CHARTER FOR EFFECTIVE EQUALITY (1994).
172 See
Brigette Mabandla, Change in South Africa-Advance for Women?, in OURS BY
RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS 19, 22 (Joanna Kerr ed., 1993) (discussing the
interim constitution).
1
See WOMEN'S CHARTER FOR EFFECTIVE EQUALITY art. 10 (1994).
174 Id.
175 Id.
176 See id.
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demands the provision of accessible social welfare services,'
which of course would greatly benefit women who suffer abuse.
Since a prime area where women suffer abuse has to do with sexual
activity and men's patriarchal presumptions about women's duty to
submit, the Charter states that "[w]omen must have the right to
decide on the nature and frequency of sexual contact within marriage
and intimate relationships." 78
The Charter dealt specifically with the relationship between
customary law and constitutional rights. The Charter calls for
equality in areas of family life and partnerships, as well as equal
access to decisionmaking, 179 all areas which are under the sole
authority of the husband under customary law. It makes clear that
cultural and religious practices should be subject to the Equality
Clause.'
Interestingly, the Charter does not address the
extremely controversial issue of bride price.' 8 '
Those women who are married under civil law will have the
protection of the new constitution as well as civil law, which
abolished the husband's ability to be sole administrator of family
assets and maintained women as legal minors.8 2 Unfortunately,
most black women still marry under customary law.8 3
In May 1996, a permanent Constitution was adopted by the new
Parliament sitting in its role of constitutional assembly.'
This
Constitution was revised by the assembly in response to criticisms
by the Constitutional Court, and subsequently ratified in December
1996.185
Most of this Constitution will come into effect in
177
See id. at art. 6 (stating that "[slocial services should be a right and not a privilege").
17' Id. at art. 8.
171 See id. (providing for greatly expanded equality for women in both
marriage and day-today life).
"' See id. at art. 9 ("Custom, culture and religion shall be subject to the equality clause in
the Bill of Rights.").
181 For discussions in favor of and against retaining bride price, see BENNETT, supra note
155, at 118-19. Surveys indicate many "remain deeply attached to the institution." Id. at 119.
182 The Matrimonial Property Act of 1984 was extended through the Marriage and
Matrimonial Property Amendment Act of 1988 to Black women married under civil law. See
New South African MarriageLaw Gives Black Women More Rights, REUTERS NEWS SERVICE,
Nov. 29, 1988, available in LEXIS, Nexis Library, REUTERS TEXTLINE file.
18 See Jerelyn Eddings, Fightingthe Next Battle, U.S. NEWS & WORLD REP., Mar. 28, 1994,
at 53 (discussing the dominance of customary law in the lives of Black African women).
's See M.S. Prabhakara, S. Africa's New Constitution Comes into Effect, THE HINDU, Feb.
5, 1997, at 11, available in 1997 WL 7216963 (discussing the new Constitution).
185
See S. Africa's Final ConstitutionPuts into Effect, XINHuA ENGLISH NEWswm, Feb. 3,
1997, availablein 1997 WL 3741125 (discussing the replacement of the interim constitution
with the new Constitution of South Africa).
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1997.186 The new article 8 now makes clear that the Bill of Rights
provisions will be binding on private persons as well as the
government.18 7
In its September 1996 review of the new
Constitution of South Africa, the Constitutional Court specifically
rejected a challenge that claimed article 8 had the effect of nullifying
the protection accorded to indigenous law in chapter 11.'88 The
court reiterated the language of article 211(3), which states that
"indigenous law, like common law, shall be recognized and applied
by the courts, subject to the fundamental rights contained and
legislation dealing therewith."'8 9 Article 8 thus may have profound
implications for women suffering abuse, since they will now be able
to go after private actors, no longer having to endure in silence.
Since legal apartheid is over, and the police are now controlled by
the government of President Mandela, more women may feel able to
report abuse to the authorities. They will no longer be considered
traitors when seeking relief from the oppressor.
Additionally, the revised article on freedom and security of the
person, article 12, now makes clear that everyone has a right "to be
free from all forms of violence from either public or private sources"
as well as a right not to be tortured in any way. 9 ° The revised
article on language and culture now states that while everyone has
the right to participate in the culture of their choice, no one can do
so "in a manner inconsistent with the Bill of Rights."' 9 ' Finally,
the new Constitution clarifies that courts must consider international
law when interpreting the Bill of Rights. 9 2 These revised articles
should augment the constitutional protections available to abused
women.
id.
S. AFR. CONST. art. 8(2) (1996). Article 8(2) states that "[a] provision of the Bill of
Rights binds natural and juristic persons, if, and to the extent that, it is applicable, taking into
account the nature of the right and of any duty imposed by the right." Id.
188 Constitutional Court of South Africa Case CCT 23/96, Certification of the Constitution
of the Republic of South Africa, 1996, Judgment decided Sept. 6, 1996., para 53. After rejecting
several provisions of the May 1996 constitution, the constitutional assembly revised the
document, and resubmitted it to the court, which approved the revisions and therefore the
entire Constitution on December 10, 1996. See S. Africa Final Constitution Puts into Effect,
supra note 185 (reviewing the process of the enactment of the Constitution).
189 S. AFR. CONST. art. 211(3) (1996).
190 Id. at art. 12 (1)(c).
191Id. at art. 30.
192See id. at art. 39(b). Article 35 of the interim constitution was a bit ambiguous as to this
point, indicating that the courts "shall, where applicable, have regard to public international
law." S. AFR. CONST. art. 35 (1993) (interim).
186 See
187See
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Palestine
The ninth draft of the Basic Law of Palestine contains fundamental rights and freedoms that may assist women in the struggle to
lessen domestic violence. The Equality Clause states that everyone
is equal before the law without regard to "race, sex, color, religion,
political opinion, or disability."'9 3 Another article makes clear that
no person shall be subjected to coercion or torture."" This article,
however, is located in a series of provisions pertaining to criminal
due process rights,'9 5 so it may ultimately be found inapplicable in
the domestic violence context. Additionally, the Constitution states
that Islam is the official religion."9 Since Islamic shari'a law
permits the beating of a wife,"9 there is an inherent contradiction
and tension with the Equality Clause.
In 1994, the General Union of Palestinian Women published a
Declaration of Principles on Palestinian Women's Rights,'9 8 which
goes beyond anything proposed in the Basic Law of Palestine. Its
general provision on civil rights states that "the law should stand
next to the women to protect her family from violence and practices
that infringe on any of her guaranteed rights,... by guaranteeing
her right to go to a court as a citizen with full rights.""9 Could
this be interpreted to protect her from domestic violence? The
provision on economic, social and cultural rights "affirms the
importance of equality in social welfare ... and the guarantee of her
full equality regarding issues pertaining to personal status."2 0
Palestinian police have begun to go after the perpetrators of honor
killings,2 ' but there are still no battered women's shelters in the
West Bank and Gaza Strip.20 2 Perhaps as the new government
"' BASIC LAW OF PALESTINE art. 9 (1996) (9th draft) (translation of draft on file with
author).
'9 See id. at art. 13.
"'
See id.
196
See id.
197 See
supra notes 123-25 and accompanying text (discussing shari'a and arguing that
shari'a subordinates women).
...Declaration of Principleson PalestinianWomen's Rights, reprinted in 24 J. PALESTINE
STUD. 137 (1994); see KAWAR, supranote 115, at 124 (discussing the genesis of the Declaration
of Principles on Palestinian Women's Rights).
"" Declaration of Principleson PalestinianWomen's Rights, supra note 198, at para. 7.
2o
Id. at para. 4.
See Faramarzi, supra note 111, at 25 (discussing the police's pursuit of perpetrators of
honor killings in Gaza).
202See id.
"
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gains legitimacy and gains control over more of the territory, it will
expand its outreach into a sensitive area like domestic violence.
Right now, the government is still fundamentally concerned with
outsider violence perpetrated by the Israeli government, Israeli
settlers living in the West Bank and Gaza, and Islamic fundamentalists. If the situation normalizes in the future and the Palestinian
police gain respect along with a reconstituted court and legal
profession, more women would dare to think to approach authorities
with their domestic concerns.
VI.
CONCLUSION
We can assist the women of Palestine and South Africa with their
legacies of inside/outside violence and spirit injury if we adopt a
"world-traveling" methodology.2" 3
This critical race feminist
approach allows us to identify our interconnectedness, even as we
respect the independence of others.2" 4 We must first see ourselves
in our own historical context, and then see ourselves as another
might see us. Finally, we must see the other in her own cultural
context20 5 and offer humble thoughts. As an African-American
critical race feminist, who comes from the United States-a nation
that has often sided with oppressors of South Africans and Palestinians-I must be careful in my assessment. I do not want to be
seen as a cultural and legal imperialist, blindly accepting the ancient
customs of my white male international and comparative law
colleagues that have often called for adopting a Western, specifically
American, approach to problem-solving. Nor do I want to be seen as
my white feminist colleagues often are-culturally insensitive to the
views of women in the developing world and their concrete life
experiences. Thus, in formulating my opinion, I have humbly sought
out the opinions of my sisters in both countries, who must live out
their choices on the ground.
With these thoughts in mind, I offer some policy recommendations.
Because the problem of violence against women is affected by
multiple sources, the solutions must be multiplicative as well. No
single solution is the solution, and it is critically important that
women, especially women who have been abused, be involved in
'o' Maria Lugones, Playfulness, World.Traveling and Loving Perception, 2 HYPATIA 3, 3
(1987).
204 See Gunning, supra note 15, at 353.
205 See id. at 358.
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crafting the solutions. °6 I realize that South Africa is further
along in its transformation process than Palestine, and thus may be
able to consider some of these ideas at an earlier point than
Palestine.
With respect to the legal arena, both South Africa and Palestine
could seek to implement some of the proposals of the United Nations
Declaration on the Elimination of Violence Against Women.2 °7
These proposals include developing adequately funded national plans
of action to promote the protection of women against any form of
violence. 0 '
Such plans should include collecting data and
promoting research in the area as to "the causes, nature, seriousness
and consequences" of such violence, as well as the effectiveness of
preventive and remedial measures.2 9
Additionally, specific constitutional provisions could be drafted in
each country to deal with domestic violence. South Africa could
consider such changes, when its recently approved constitution comes
into effect. Palestine has the ability to consider such provisions
immediately as part of the current drafting process to govern the
autonomy period. Two Latin American countries provide examples
for South African and Palestinian drafters. Brazil has a provision
which states that "[tihe State shall assure assistance to the family
in the person of each of its members and shall create mechanisms to
suppress violence in the ambit of family relationships."2 10 Colombia goes a step further. Its constitution provides that, "[flamily
relations are based on the equality of rights and duties of the couple
and on the reciprocal respect of all of its members. Any form of
violence in the family is considered destructive of its harmony and
unity, and will be sanctioned according to law."21 '
Equality between men and women cannot remain a paper right
found only in constitutions. Thus, changes in the various personal
status laws are required in both societies so that these laws conform
with the new constitutions. Also, changes in penal laws are needed
to ensure that domestic abuse is recognized as a crime and that
batterers are arrested, tried, convicted, and sentenced.
The
20' See Wing, supra note 38, at 190.
207 See Declarationon the Elimination of Violence Against Women, supra note 4; see also
DOMESTIC VIOLENCE LAw, supra note 2, at 110 (discussing violence against women in the
context of the Declaration)
208 See Declarationon the Elimination of Violence Against Women, supra note 4, at art. 4.
" Id. at art. 4(k).
210 CONSTrrUTIQAo FEDERAL [Constitution] [C.F.] art. 226, § 8 (Braz.).
211 CONsTrrucI6N POLITICA DE COLOMBIA art. 42.
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improved South Africa Prevention of Family Violence Act is a step in
the right direction, one that Palestine might consider at some future
time.
A critical race feminist humbly realizes that law is only one facet
of problem-solving. Thus, with respect to education, there is a
profound need to train police, judges, lawyers, teachers, and medical
professionals in both societies. Community education is also needed
in schools, religious places, women's centers and so forth, so that
men, women, and children learn that violence against women is
inappropriate behavior for the twenty-first century. There is also the
need for sensitive individual and family therapy in societies that
shun this alien Western approach.
The batterer must not be left out of the counseling loop.
Anonymous hot lines and shelters are essential as well, so that
women may dare to think of leaving violent situations. Shelters may
be a particularly difficult option for Palestine since there is no
cultural norm that permits women and children to live independently, outside the context of a male-headed family. All of these
suggestions are mere band-aid solutions unless women are given
sufficient economic and educational opportunities to enable them to
have realistic options if they do decide to leave abusive relationships.
There also must be programs that focus not only on domestic
violence but on the legacy of outsider violence that affects women,
who have been the mothers, wives, and daughters of prisoners and
martyrs, as well as prisoners themselves during the liberation
struggle. The controversial Truth Commission of South Africa is an
attempt to deal with the cultural spirit injury of outsider violence.
The Commission permits human rights violators from the apartheid
era to confess their crimes. If a violator's effort is viewed as genuine,
a pardon may result. At some point far in the future, Israel and
Palestine might consider such a Commission as an attempt at
mutual healing.
Finally, responsible United States foreign aid might support some
of the above endeavors to make up for past American support of
outsider violence against the South African and Palestinian peoples.
Perhaps this sort of aid might begin a process of addressing our own
spirit injuries, leading to bilateral spirit healing and spirit warming.
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