Domestic Violence Current Legal Status: Psychiatric Evaluation of Victims and Offenders.

Abstract

DEFINITION “Domestic Violence” (DV) is defined in the protection of women from DV act as “any act of commission or omission or conduct resulting in physical, verbal, emotional, sexual and economic abuse” and this can range from calling names, insulting, humiliating, controlling behavior, physical violence to sexual violence (PWD A, 2005).[1] Domestic violence is more than physical injury from a single incident of assault. It is a pattern of conduct that uses physical battering as a method to inflict trauma (Tripathy and Arora, 2014).[2] DV is often used as a synonym for intimate partner violence, which is committed by a spouse or partner in an intimate relationship against the other spouse or partner, and can take place in heterosexual or same-sex relationships, or between former spouses or partners (Ellsberg, 2008).[3] “DV” includes elaborately all forms of actual abuse or threat of abuse of physical, sexual, verbal, emotional, and economic nature that can harm, cause injury to, endanger the health, safety, life, limb, or well-being, either mental or physical of the aggrieved person (Choudary, 2013).[4] The person who is the abuser may be a man or a woman and the person who is being abused may be a spouse, a child, or a parent. However, most situations of DV involve violence of men against their wives or female companions. DV often involves sexual abuse and it may also be linked to economic deprivation of the wife or other dependent household members. This type of economic abuse coupled with repeated intimidation is a form of DV even if it does not involve physical aggression or harm. DV of men against women is much more common than the reverse, but we must be aware that we may occasionally encounter abused husbands (Ghosh and Choudari, 2015).[5] FORMS OF DOMESTIC VIOLENCE Most people think that DV involves only physical assault, harm, and injury. However, there is a need to recognize that DV includes many forms of abuse. Most of the time they occur together and sometimes, there is a progression from one to the other (Raj, 2019).[6] Physical abuse is the most obvious form of DV. The perpetrator assaults and injures his wife or other members of the family. He hits, pushes, kicks, pulls hair, and throws objects Sexual abuse may or may not be associated with physical abuse. It may involve pressuring or forcing the partner to have sex against her will, forcing the partner to perform certain sexual acts such as anal or oral sex against her will or intentionally inflicting pain during sex. Preventing the partner to use birth control or refusing to use a condom when the partner is concerned about a sexually transmitted infection such as HIV or gonorrhea is also a form of sexual abuse Psychological abuse comes in many forms. It may be difficult to recognize and to deal with. Often, there has been at least one instance of physical assault and injury. The perpetrator then uses this experience to intimidate his spouse. He may use threats of violence against her, to make her perform acts that are demeaning or dangerous. He may destroy family property, threaten to take the children away, or threaten the spouse with having her admitted to a psychiatric institution. Some perpetrators use repeated threats of suicide to pressure their spouses. This is also a form of psychological abuse Economic abuse or economic deprivation is even more difficult to recognize as a form of DV. It is, however, commonly found in DV situations. The perpetrator may hold back necessary household money, prevent his spouse from earning money, confiscate the money she may have earned, control all household spending, and spend money only to his own benefit. For most perpetrators, these forms of abuse are means of establishing control over his wife or partner. Most DV results from a person’s desire to exert control over another family member Spiritual abuse is by manipulating a person’s religious or spiritual beliefs to dominate or control them. It can include preventing someone from engaging in spiritual or religious practices, or ridiculing their beliefs or using these beliefs as a way to justify the abuse. DOMESTIC VIOLENCE EXTENT IN INDIA National Crime Records Bureau (NCRB) Report reveals that in every 33 min, one Indian woman is being abused by her husband. India’s National Family Health Survey-III, carried out in 29 states during 2005–2006, has found that a substantial proportion of married women have been physically or sexually abused by their husbands at some time in their lives. The survey indicated that nationwide 37.2% of women experienced violence after marriage (National Family Health Survey III, 2004–2005).[7] The NCRB has recorded an increase of 40% in the case of social harassment and 15.2% in cases of dowry deaths. The NCRB Report for the year 2011 further highlights some staggering statistics about the DV against women. The percentage share of DV against women in the cognizable crime has grown from 3.8% in 2007 to 4.3% in 2011. The cruelty by husband and relatives under IPC 498A comes at number four in the maximum incidences of cognizable crimes. As per information provided by the NCRB, a total number of 7803, 11,718, and 9431 cases of DV cases under DV Act 2005 were registered during the year 2009, 2010, and 2011, respectively, thereby indicating a mixed trend. The majority of cases registered under crimes against women out of total Indian Penal Code (IPC) crimes against women were under “Cruelty by Husband or His Relatives” (31.9%) followed by “Assault on Women with Intent to Outrage her Modesty” (27.6%) (National Crime Records Bureau, 2018).[8] National Family Health Survey-III reveals that 34% of all women aged 15–49 have experienced violence at any time since the age of 15 in India (IIPS, 2007).[9] In spite of low registration of crimes committed against women in India, the rate of such crime as per the figure released by the NCRB of Government of India has increased from 13.2% in 2003 to 52.24% in 2013 (National Family and Health Survey – IV, 2015–2016).[10] DV is recognized as a major but underreported public health and social problem among heterosexual and same-sex couples. SCOPE OF THE GUIDELINE Medical practitioners are often the first or the only professionals to come into contact with individuals in abusive situations. They have a unique responsibility and opportunity to intervene. Conventionally, health-care practitioners are not instructed in such intervention or in how to respond appropriately when DV affects their patient’s life. It results in injuries and other negative short-and long-term effects on the health of all the family members. Children and young people in families where DV has taken place are at risk of abuse and associated with detrimental health outcomes. DV not only has physical effects but also a lot of psychological effects too. Victims living with their perpetrators have been known to have high amounts of stress, anxiety, and fear. Depression and posttraumatic stress disorder are also quite common, leading to increased incidences of suicide. Even after the victim has left the dangerous situation, the trauma has a long-term psychological impact. Children exposed to DV during their upbringing have a negative impact on their development and psychological welfare. Medical professionals play a vital role in addressing these problems. Early identification can reduce its consequences and may help to prevent further violence. Unfortunately, health-care professionals do not engage with these issues and they do not routinely screen for health risks such as DV. There is a lot of reluctance among medical professionals regarding taking a history of DV. This can be attributed to either lack of knowledge or expertise about dealing with a case of DV; there is also fear of causing discomfort to the patient, or time constraints, no physical indication of violence; at certain times, the partner is present with the patient making it difficult to assess. Thus, set guidelines are required to guide the professional on how to deal with these situations. Guidelines will help in early recognition and intervention which can significantly reduce the morbidity and mortality that result from violence in the home. Intervention by a health-care provider has shown to make a difference in health and outcome. The DV has a very wide and deep impact in life of the victims. A proper medico-societal-legal environment must be built to make the houses safe and secure for the woman. India cannot prosper by keeping half of its population under distress. RECENT STUDIES ON DOMESTIC VIOLENCE IN INDIA Violence against women has become an increasingly salient issue in India, with women at risk for different forms of gendered violence. Table 1 summarizes the findings on research done in India for the last five years on Domestic Violence. There may be universal elements in the international phenomenon of violence against women, but it is a complex and multifaceted phenomenon that takes shape in a particular sociocultural context (Menon and Allen, 2018).[111213141516171819202122]Table 1: Summary of findings from India since last 5 yearsTHEORIES ON CAUSE OF DOMESTIC VIOLENCE A common understanding of the causes of DV can help therapist and judicial system. Early theories of DV that have focused on the biological/psychological aspects of the offense have highlighted the role of the individual (be that the offender or the victim). Biological and psychological approaches also explain the use of violence by the offender more generally. Alcohol, drug use, neurobiology, hormones, and genetically predisposed factors have been considered to be associated with an increased likelihood of committing DV. Similarly, psychological approaches explore DV through factors including personality traits, psychopathology, intelligence, and learned behavior.[23] Alternatively, sociological and feminist theories have examined the phenomenon of DV through the lens of social and political structures. Table 2 summarises the theories of causes of Domestic Violence.Table 2: Theories of causes of domestic violenceIntegrative models The socio-ecological model As depicted in Figure 1,[24] this model places individual characteristics within the family/relationship, community, and society. When this integrative model is applied to DV prevention, it allows for development of specific interventions.Figure 1#: Integrated model. #Heise LL. Violence against women: An integrated, ecological framework. Violence Against Women 1998;4:262 90Risk factors for domestic violence Studies generally agree that family violence is caused by multiple factors and that when these factors co-occur, risk is increased. Thus, one may need to intervene at multiple levels. Individual risk factors include: A history of childhood abuse or of witnessing violence in the home Being in a vulnerable situation, such as being a very young parent Sexist attitudes about the role of men and women. These are often communicated in the family of origin. Family risk factors include: Severe family dependency or disempowerment. Families that rely on social welfare systems for financial support may be at increased risk Families have a lack of practical, social, psychological, and financial support Families with a parental incapacity (e.g., psychological, intellectual), parental illness Control of wealth and decision-making within the family centered on one partner, most often the male One or both caregivers abuse substances of any kind. Community risk factors include: A lack of inclusive and nurturing communities. This factor may limit opportunities for intervention and the transmission of nonviolent norms of behavior. This could also contribute to the isolation and lack of social support for family members Peer groups in which violence is a norm Barriers that limit community participation (e.g., poverty, cultural alienation, and racism). These barriers often create or sustain the family’s social isolation. Societal risk factors include: Acceptance of violence as a means to settle disputes especially interpersonal disputes Reinforcement and glamorization of violence (such as through television, video gaming, etc.) Tolerance of physical punishment of women and children The lack of effective sanctions against violence within families Rigidly defined and enforced gender roles and norms Acceptance of masculinity as akin to toughness and dominance Tolerance for the idea of “ownership” of women, or that parents have ‘ownership’ of children Barriers to independence, participation, self- fulfillment, dignity and the resulting isolation and low self-esteem Cultural norms about women’s primarily role as family caregivers A lack of funding for family violence prevention programs. LEGAL ASPECTS Constitutional perspectives The Constitution of India has placed women equal to men. Article 14 guarantees equality before the law and equal protection of law. Article 15 provides nondiscrimination against any citizen on ground only of religion, race, caste, sex, place, or any of them. Article 16 forms a code of equality of women with men and forbid the state from discriminating women on the ground of sex alone. Article 21 (protection of life and liberty of every person whether male or female); Article 23 (prohibition of traffic in human beings whether male or female and his or her forced labour;) and Article 25 (freedom of conscience and free profession, practice, and propagation of religion to every men and women of any caste or creed) guarantee the fundamental rights irrespective of gender (Pandey, 1998).[26] Legal protection against domestic violence in India The laws in India that deal with DV are: The Dowry Prohibition Act (DPA), 1961 Section 498A of the IPC The Protection of Women from DV Act, 2005. The Dowry Prohibition Act In 1961, the Indian Parliament passed the DPA and later amendments were made in 1984 and 1986. The DPA is a criminal law that punishes any person who gives takes or abets giving or receiving of dowry. The term dowry is defined as any property or valuable security given or agreed to be given in relation with the marriage (DPA, 1961).[27] The penalty for giving or taking dowry is not applicable in case of presents which are given at the time of marriage without any demand having been made. The DPA is not a complete Act as certain provision of the IPC, such as Sections 304-B, 306, 300, 302, 405, 406, and 498-A (3) have been made applicable to it (Tripaty and Arora, 2004).[2] Indian Penal Code Section 498 (A) This section allows women to file criminal complaints against their husbands and husbands’ relatives for any “cruelty” suffered at their hands. This is a cognizable and nonbailable offense. Cruelty is defined as any willful conduct that “is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (mental or physical),” or harassment that involves “coercing the woman or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” Cruelty also refers to any conduct that drives a woman to suicide or causes grave injury to her life or health (mental health included) and also includes harassment in the name of dowry (Criminal law Act, 1983).[28] The Protection of Women from Domestic Violence Act The Parliament passed the Protection of Women from DV Act (PWDVA) in 2005. It is a civil law that provides protection to women in a household, from men in the household. This law not only protects women who are married to men but also protects women who are in live-in relationships, as well as family members including mothers, grandmothers, and other dependent women. Under this law, women can seek protection against DV, financial compensation, the right to live in their shared household, and they can get maintenance from their abuser in case they are living apart. This Act imposes positive obligations on the state to protect women from violence. The state is required to provide police officers with “periodic sensitization and awareness training” on DV issues. The act also empowers the state to pass protective orders (that the police must enforce) and to appoint special “protection officers” assigned to assist DV victims in obtaining medical care and in the filing of DV reports (PWDA, 2005).[1] Validity of law In Inder Raj v. Sunita, the Delhi High Court dealt with a challenge to the constitutional validity of Section 498Aon the grounds that it violated the right to equality under Article 14 of the Indian Constitution. The petition argued that Section 498A provides arbitrary powers to the police and that the definition of “cruelty” is constitutionally vague. The court upheld the provision, stating that the word “cruelty” is well defined in the law, and its interpretation would therefore not be arbitrary. In Krishan Lal v. Union of India, the High Court of Punjab and Haryana held that Article 14 of the constitution requires that all persons similarly situated be treated equally. However, the government may differentiate among people based on reasonable classifications. The domestic relationship must be established between the aggrieved person and respondent to invoke DV Act. The Madhya Pradesh High Court in the case Kuldeep Singh vs Rekha has held that if the wife leaves the share households with husband to establish her own household, the domestic relationship comes to an end therefore a complaint under DV Act cannot be maintained against husband or his parents. In Sadhana vs. Hemant Bombay High Court held that if at the time of filing of petition, the wife has already been divorced, there cannot be any domestic relationship and as such, a divorced wife cannot be entitled for protection under DV Act. The Malimath Committee Report on the criminal justice system concluded that Section 498A helps neither the wife nor the husband in a DV situation. Since it makes “cruelty” both a nonbailable and noncompoundable offense, innocent individuals are regularly arrested and imprisoned, leading to stigmatization and both mental and physical hardships. According to the Report, reconciliation or return to the marital home becomes practically impossible as a result (Malimath Committee on Reforms of Criminal Justice System Government of India, 2002).[29] Misuse of law In Sapneswar Dehuri v. State of Orissa, court observed that in a case where a young bride dies a natural death, eyebrows are raised and suspicion is immediately cast on the in-laws. In order to prevent misuse of the section 498A, Supreme Court came out with directives that every complaint received by the police must be referred to a Family Welfare Committee before the police can arrest the perpetrator (Live Law News Network, 2017).[30] It also stated that this provision frustrated the objective of the legislation since “perpetrators and abettors of DV” can be women too. Since then the words “adult male” has been struck down from the DV act. The supreme court of India in Kamlesh Devi v/s Jaipal and Ors case has opined that mere vague allegation is not sufficient to bring the case within ambit of DV act. The law only offers reliefs to women. Men in India cannot avail of a similar legal remedy to protect themselves from DV from either men or women. For men, even a simple relief of having a male or female aggressor stay away from them obtaining a restraining or protection order is not afforded by the current law (Abeyratne, Rehan, and Jain, 2012).[31] Other laws protecting women from domestic violence The Hindu Succession Act, after its 2005 amendment, recognizes in the ancestral properties of their families, women have an equal right. It offers a legal right that ensures the same share as their brothers may get (Hindu Succession [Amendment] Act, 2005)[32] The Equal Remunerations Act, 1976,[33] makes mandatory for the employers not to discriminate on grounds of sex when it comes to paying their employees. The Act prohibits discrimination in matters of promotion, training, transfer, and also mandates that employers cannot discriminate in matters of appointment on grounds of gender unless the employment of women for the job in question is prohibited by law (The Equal Remuneration Act, 1976) Law against sexual harassment at workplaces: As per this law, a woman can feel safe in their workplaces and can report any violations. It is also a provision to encourage the economic independence of women by ensuring they feel safe to come out of their houses to work (Sexual Harassment of Women at Workplace [Prevention, Prohibition and Redressal] Act, 2013).[34] IMPACT OF DOMESTIC VIOLENCE The impact of DV is huge and wide involving the whole family and society. It can be best described under following headings. Physical Injury Disability Chronic health problems (irritable bowel syndrome, gastrointestinal disorders, various chronic pain syndromes, hypertension, etc.) Sexual and reproductive health problems (contracting sexually transmitted diseases, spread of HIV/AIDS, high-risk pregnancies, etc.) Death. Psychological Effects can be both direct/indirect Direct: Anxiety, fear, mistrust of others, inability to concentrate, loneliness, posttraumatic stress disorder, depression, suicide, etc. Indirect: Psychosomatic illnesses, withdrawal, alcohol or drug use. Economic and social impact Rejection, ostracism, and social stigma at community level Reduced ability to participate in social and economic activities Acute fear of future violence, which extends beyond the individual survivors to other members in community Damage to women’s confidence resulting in fear of venturing into public spaces (this can often curtail women’s education, which, in turn, can limit their income-generating opportunities) Increased vulnerability to other types of gender-based violence Job loss due to absenteeism as a result of violence Negative impact on women’s income generating power. The impact on family and dependents Direct effects Divorce, or broken families; Jeopardized family’s economic and emotional development Babies born with health disorders as a result of violence experienced by the mother during pregnancy (i.e., premature birth or low birth weight) Increased likelihood of violence against children growing up in households where there is DV Collateral effects on children who witness violence at home (emotional and behavioral disturbances, e.g., withdrawal, low self-esteem, nightmares, self-blame, aggression against peers, family members, and property, increased risk of growing up to be either a perpetrator or a victim of violence). Indirect effects Compromised ability of survivor to care for her children (e.g., child malnutrition and neglect due to constraining effect of violence on women’s livelihood strategies and their bargaining position in marriage) Ambivalent or negative attitudes of a rape survivor toward the resulting child. The impact on the perpetrators Sanctioning by community, facing arrest and imprisonment Legal restrictions on seeing their families, divorce, or the breakup of their families Feeling of alienation from their families Minimizing the significance of violence for which they are responsible; deflecting the responsibility for violence onto their partner and failure to associate it with their relationship Increased tension in the home. The impact on society Burden on health and judicial systems Hindrance to economic stability and growth through women’s lost productivity Hindrance to women’s participation in the development processes and lessening of their contribution to social and economic development. Constrained ability of women to respond to rapid social, political, or economic change. Breakdown of trust in social relationships Weakened support networks on which people’s survival strategies depend Strained and fragmented networks that are of vital importance in strengthening the capabilities of communities in times of stress and upheaval. ASSESSMENT and EVALUATION OF DOMESTIC VIOLENCE Purpose Primary care physicians are often the first to come into contact with individuals in abusive situations. Here in this document, we are trying to compile a guideline to assess DV in clinical and health-care settings. The assessment and identification can help practitioners make appropriate referrals for both victims and perpetrators. Our assessment guidelines will include procedures for identifying and documenting DV, providing patient information about available resources, and educating clinicians on handling these patients. Guiding principles Treat patients with respect, dignity, and compassion and with sensitivity to age, culture, social situation, while recognizing that DV is unacceptable in any relationship It may be a long drawn out process Attempt to engage patients in long-term care within the available health-care system, to help them to attain greater safety and control in their lives Regard the safety of victims and their children as priority. It is a daunting task to conduct DV evaluation. The evaluator must have training in DV dynamics, screening protocols and assessment protocols specific to DV, risk assessment, and in safety planning, as well as experience in working with DV perpetrators, victims, and their children (Rathus and Feindler, 2004).[36] Table 3 enumerates some Do’s and Don’t’s while assessing for Domestic Violence.Table 3: Some Do’s and Don’ts while assessing domestic violenceMultiple evaluations There may be different types of evaluations involved in DV cases. Most often a case may be referred by the court of law and can consist of multiple and competing evaluations. In such instances, evaluation should not only assist judiciary process but also in assisting rehabilitation of both victim and perpetuator. Psychological evaluation techniques have been shown to be critical in assessing DV, which is a behavioral problem rather than a personality problem. Mental health or psychiatric evaluations The standard mental health or psychiatric evaluations focus on personality, motivation, cognitive psychological functioning, and use psychological tests and tools in addition to interviews. It also includes medical assessment or a detailed physical examination. Substance abuse evaluations The evaluation becomes incomplete without proper focus on assessing individuals (perpetuator) for substance abuse and or addition issues. The history can be corroborated from the victim of DV. The substance abuse evaluations can include both assessment tools and biochemical tests. Sexual deviancy evaluations This is similar to substance abuse evaluations in that the purpose is to focus on one issue. This may be an appropriate evaluation as an adjunct evaluation for the perpetuator when there are questions about a co-occurring issue of sexual deviancy. Parenting evaluations The primary focus of this evaluation is to assess the specific parenting capacities of specific parents of specific children. Traditional evaluation protocols on parenting do not routinely screen for DV and it only addresses the issue if parents alleged DV. Furthermore, they do not frequently integrate standardized DV assessment protocols in assessing and identifying DV in a case. Screening RADAR - The acronym “RADAR” summarizes action steps physicians should take in recognizing and treating victims of partner violence (Alpert, 2004).[37] Remember to ask routinely about partner violence in your own practice. Ask directly about violence. Document information. Assess your patient’s safety. Review options with your patient. Know about the types of referral options (e.g. shelters, support groups, legal advocates). Which patients to screen: A. All (male and female) patients who present with symptoms or signs of DV like multiple injuries in various stages of healing, etc. B. Children who present with symptoms or signs of DV C. Patients with history of substance abuse by themselves or their partners D. Patients with eating disorders, conversion disorders, chronic pain syndromes, prior history of trauma, etc. How to screen: A. Screen in a private and safe environment, separated from accompanying persons. The presence of a female assistant is a must while a male clinician is screening the female client. If this cannot be done, postpone screening for a follow-up visit B. We must use local language, in a comforting nonjudgmental way. Use your own words in a nonthreatening, nonjudgmental way C. Direct, specific, and easy to understand questions are preferable D. We must discuss confidentiality issues with the patient The patient may deny abuse if she is not ready to deal with the situation. We cannot force the issue with her. The decision to leave or take action needs to be hers Proper documentation including details if any should be done Lethality assessment: Assess any immediate danger to the patient before she leaves the clinic. Indicators of imminent danger: An increase in frequency or severity of the assaults Increasing of new threats of murder or suicide Threats to children Availability of weapon in the home. Acute incident History and physical exam should be recorded. The evaluator needs to explain to the patient the importance of documentation of present and past injuries for her benefit in event of future legal proceedings. Verbal consent needs to be taken before examination. Written consent should be obtained for photographs. History of present complaint Use the patient’s exact words and descriptions of events whenever possible Record significant or relevant past history and medical problems including hospitalizations and surgery, resulting from violence Has there been legal intervention in the past? During the physical examination, examine any scars with explanation of each Document scars, wounds, and bruises on anatomic drawing and with photo