Batterers-as-agents-of-the-state-challenging-the-publicprivate-distinction-in-intimate-partner-violencebased-asylum-claims

Abstract

Intimate partner violence has been recognized by asylum-providing countries as a form of persecution. Nevertheless, it has often been difficult for battered women to establish their eligibility for asylum. Frustratingly, it is often the public/private distinction that is the culprit in the failure of survivors of intimate partner violence to prove their asylum claims. Adjudicators of asylum claims often view intimate partner violence as a private matter: a husband harming his wife on account of personal reasons. This scenario stands in stark contrast to the more traditional asylum claim: an agent of the state harming a citizen on account of that citizen’s race, religion, nationality, political opinion, or membership in a particular social group. This paper asserts that intimate partner violence, when it occurs in countries that fail or refuse to protect women from it, is a form of state action. The goal of such a state is to oppress women in order to maintain the legal and societal dominance of men. The dominant members of society have articulated that goal by legislating female subordination and/or failing to legislate against female subordination. Intimate partner violence is one of the most brutal and obvious forms of relegating women to a subordinate status; abusive partners are thus agents of the statesponsored subordination of women. Intimate partner violence is also a form of persecution as that term has been defined by various courts and other legal entities. Because abusive partners are acting as agents of state-sponsored persecution, women who flee abusive relationships and who are nationals of countries that tolerate or promote the subordination of women, are entitled to refugee protection as a matter of law. The paper examines the societal and legal mores of two countries – Guatemala and Pakistan – that have a high rate of intimate partner violence and a legal system that places women in a subordinate status relative to men. Based on the assertion that the representative legal systems are specifically designed to maintain male dominance and the subordination of women, the paper argues that intimate partner violence is a state-sponsored form of persecution. Abusive partners thus act in much the same way as government officials who persecute minority groups that do not enjoy state protection. This article does not seek to minimize the effectiveness or viability of claims based on membership in a particular social group. Rather, it argues that in order for intimate partner violence-based claims to continue to succeed irrespective of who is currently serving as Attorney General, adjudicators must understand and accept the political nature of intimate partner violence. In countries where the dominant approach to intimate partner violence is to ignore and trivialize it, those who perpetrate the violence are supporting and advancing a state goal to maintain the dominance of men and the subordination 1 Associate Professor, Chapman University School of Law. The author thanks Sarah Brenes, Bridgette Carr, Nora Demleitner, Elizabeth Frankel, Tracie Hall, Jennifer Lee Koh, Fatma Marouf, Karen Musalo, Michele Pistone, Larry Rosenthal, Ronald Rotunda and Robin Wellford Slocum for their comments during various stages of this article; Patricia Eulloqui and Kristy Jones for outstanding research assistance; library liaison Tanya Cao; and Dean Scott Howe and Associate Dean Richard Redding for generous research support.