Justice and safeguards against men who perpetrate gender-based violence
The system for the administration of justice frequently resorts to psycho-socio-educational mechanisms when dealing with aggressors[i] in causes of gender violence. These programs, which fail short in their response to the existent demand, make up a heterogeneous group of services and spaces, governmental and non-governmental, which differ from each other in approaches, objectives, expected results, and duration. There is no exhaustive study or record of these programs in Argentina, but thanks to the information provided by 14 of these programs[ii], it is possible to outline some proposals aimed at strenghtening the justice/mechanism relationship, all with a main purpose: to significantly increase the safety of those affected and prevent new and more serious aggressions. According to the European Network for Work with Perpetrators of Domestic Violence[iii], this has to be the central objective of the mechanisms, though this is not registered in any of the consulted[iv].
In addition to the fact this common goal is not shared, the programs do not identify concrete and measurable results. This prevents the creation and establishment of systems -internal and external- for monitoring and evaluating results, processes that are in themselves extremely complex[v] and require specific funding[vi]. In fact, the lack of conclusive results on the effectiveness of these devices has led to the opinion that they cannot be proven either effective nor ineffective[vii]. This situation prevents the justice system from establishing reasonable expectations for the referrals that are made.
The lack of definition of this central objective also impacts on other elements of these programs’ architecture. For instance, the fact that a person continues to exercise gender-based violence while participating in the program is not mentioned as an exclusion criterion[viii], except in one of the devices.
There are also no common criteria for risk assessment. It is not clear whether what is being evaluated is the risk of repeating violent behavior towards the complainant, towards new partners, or the risk of lethality. Additionally, there is no reference to the use of specific standardized instruments or to specific evaluation times, except in some cases where the admission phase is actually indicated.
Instead of specific assessment instruments, in general, semi-structured professional judgment is used. In any case, although it has already been proven that the predictive capacity of risk assessment instruments is superior to that of clinical judgment, they are not completely reliable, especially in the first 15 months after the complaint, which in many cases constitutes the moment where the programs intervene[ix]. They should therefore be used in conjunction with information provided by various sources, and especially with that provided by women themselves in situations of violence. Their voices are the most reliable source when it comes to predicting the risk to which they are exposed, but for that to be effective it is necessary to establish specific protocols that indicate who and when can be contacted and what procedure to follow if an increased risk is detected. Sometimes, faced with a situation of a specific hazard, such as when an aggressor leaves the program, the victim is warned, but the modality used differs from one program to the other. This contact can be done not directly, but through care services for women in situations of violence, which is a very positive experience implemented by some programs. This way, it is guaranteed that it is lead by specialized teams that, in many cases, already have previous contact with those women.
The analysis of the information provided by the programs also makes it possible to analyze the narratives on gender violence that run through their operation. That the aggressor acknowledges and takes responsibility for the violence is one of the most important objectives. Its relevance lies in the fact that aggressors, in general, use speeches that exonerate them or even blame the victims. However, this contradicts the emphasis on providing them different tools -to manage conflict, to improve communication skills, to manage anger or emotions in general, to control impulses, to acquire greater tolerance for frustration- that cover up the core of patriarchal violence[x]. Gender-based violence is not caused by a lack of dialogue, by uncontrollable impulses, or by unmanageable emotions. All this justification only dissolves the political character of gender-based violence and reinforces a set of false and highly effective beliefs that sustain the patriarchal system. On the contrary, violence is a mechanism of social control of women -though not only of women- whose function is to reproduce and keep male domination untouched: it is a question of power. This conception of the problem, which appears in many of the programs, is diluted in a proliferation of tools that have nothing to do with it.
In order to increase the safety, protection and support of women and others affected by patriarchal violence, it is therefore necessary to rethink, among others, the issues raised here. But this is not a task to be done, each device in isolation. It is essential to understand that the action of these devices, regardless of who manages them, is part of a set of public policies that respond to gender violence and, in particular, those provided by the administration of justice, and integrate them into a system that also includes services for the care of women in situations of violence and children, the local executive powers, the police and the justice system, this way establishing clear mechanisms for coordination, communication and action.
This understanding entails a profound change in the role of justice, which can no longer simply, as often happens, refer the case -without even knowing in detail how the programs operate-, and receive a report at the end of the process. Judges should be directly involved in the continuous monitoring of compliance with the guidelines of conduct[xi] to motivate a positive change in the aggressors and give a strong message of non-impunity. Among other practices, it is recommended to: organize the hearings in such a way that the aggressors observe the judge interacting with those who fail to comply; impose certain requirements on devices -for example, duration-, in order to be able to receive referrals from justice; develop a single format of periodic progress reports and design specific policies for high-risk offenders. The intensive and coordinated articulation between the justice system and the interventions aimed at the aggressors will make progress possible in the haste and urgent eradication of one of the cruelest and most common human rights’ violations that characterize our contemporaneity: gender violence.
Ana Casal holds a Master's degree in Gender Equality and a degree in Psychology. She is the current Secretary of Institutional Affairs of the Council of the Magistracy of the City of Buenos Aires, and formerly Undersecretary of Strategic Planning of the Ministry of Justice of Argentina. She is a member of the Women's Network for Justice.
[i] I use the term aggressors, even if they are cases of accused complying with a pattern of conduct ordered by the justice in cases where the suspension of the trial is done.
[ii] Casal, A., Narrativas de los dispositivos dirigidos a agresores de género, online publication, Editorial Erreius, Buenos Aires, June 2021.
[iii] European Network for Work with Perpetrators, Guidelines to develop standards for programmes working with perpetrators of domestic violence, Version 3, 2018.
[v] Arce, R. et al., "Are Interventions with Batterers Effective? A Meta-analytical Review", at Psychosocial Intervention, 29(3), 2020, pp. 153-164.
[vi] One of the common problems of these programs is precisely not having adequate funding, a situation that must be solved urgently, yet not at the expense of resources directed at women in situations of violence.
[vii] Heise, L., What Works to Prevent Partner Violence? An Evidence Overview, Working Paper, Version 2.0, 2011, p. xii.
[ix] In DGPG, The suspension of trial in cases of gender violence, Public Prosecutor's Office, Buenos Aires, 2020, p.36, it is established that the average period elapsed between the date of the complaint until the suspension of the trial process is 8 months and 10 days.
[x] Here I follow what bell hooks poses: "The term ‘patriarchal violence’ is useful because [...] it continually reminds the listener that domestic violence is linked to sexism and sexist thinking, to male domination". See: hooks, b., Feminism is for everyone, Tinta Limón/Traficante de sueños, Madrid, 2017, pp. 17-18.
[xi] Davis B., Compliance Monitoring in Domestic Violence Cases. A Guide for Courts, Center for Court Innovation, New York, 2019, p. 2.