Managing or combating domestic violence? Penal mediation in Greece

2015 marks the 20th anniversary of the Beijing Platform for Action, which amongst other initiatives attempted to bring violence against women to the forefront of UN’s action on gender equality.

Twenty years later the situation remains grim. Despite the enactment of a series of domestic laws that focused on violence against women and more specifically domestic violence, statistics confirm pessimists’ intuitions. In late 2013 the World Health Organisation reported that ‘35% of women worldwide have experienced either intimate partner violence or non-partner sexual violence in their lifetime’ while ‘as many as 38% of murders of women are committed by an intimate partner.’

Despite Orientalist stereotypes, there is no data that confirm the commonly held belief that Western states are doing better than the rest of the world on this front. Hence, in this brief note I will try to provide a brief account of the Greek legislative framework on domestic violence, and more specifically of the system of penal mediation. Two interrelated concerns will be discussed: firstly, that the system of penal mediation perpetuates and indeed accentuates the public/private divide which is constitutive of women’s systematic subjection to domestic violence. Secondly, I will attempt to situate the provision within the wider framework of international human rights law scrutinising the CEDAW Committee’s response to the legislation and to argue that the Committee systematically underestimates the adverse effects of the provision on gender equality in Greece.

The domestic framework

Domestic violence was first specifically penalised in Greece in 2006 thanks to the decades-long mobilisation of feminist organisations and, crucially, due to international pressure. For readers to acquire a fuller picture of gender (in)equality in Greece it needs to be noted that it was the same law (3500/06: Available here in Greek) which criminalised marital rape for the very first time.[1]

I stress the importance of international pressure because New Democracy, which governed Greece at the time, opted for a law that would ‘satisfy’ international demand, while interfering as little as possible with ‘traditional values’ and ‘family, peace and stability’. The new law criminalised marital rape ,designated intimate relationships as aggravating circumstances in cases of violent crimes, and finally, enabled the Public Prosecutor to prosecute the perpetrator without the victim pressing charges even in the case of misdemeanours. It was this latter provision that was deemed overly ‘intrusive’ to family life to the extent that it questioned the sharp division of public and private life, which for feminists is one of the determining circumstances of women’s oppression in modernity.

Therefore, the Ministry of Justice, being determined to undertake the minimum action possible, introduced a system of penal mediation in cases of domestic violence misdemeanours. According to the relevant provisions (Arts 11-14 3500/06) the prosecutor is under an obligation to investigate the possibility of penal mediation in cases of misdemeanours. Practically, the prosecutor asks the victim whether she wants charges to be suspended for three years provided that the perpetrator: a) promises that he won’t repeat the offence and will leave the house if the victim wishes him to do so, b) agrees to attend a therapeutic program, and c) immediately restores any damage caused to the victim. If after three years no further offences are reported the criminal claim of the State is eliminated. (For a summary in English see here).

The drawbacks of the provision are evident. Practically, penal mediation formalises and legitimises the standard practice of the Greek state – be it the police or the judiciary – to ignore, manipulate or even ridicule women who attempt to prosecute their violent partners. The law acknowledges that domestic violence is of a different quality, but this difference is linked to privacy and family stability and not gender inequality. In fact, the law did not identify domestic violence as a form of discrimination against women, but opted for a gender-neutral approach, and elevated the maintenance of family stability to one of its primary objectives.

Importantly, this is not just a feminist critique to implicit intentions, but it became crystal clear during the parliamentary debate. Τhe (male) Minister of Justice of the day responded to the concern that women will be subjected to pressures to consent to the process as follows: ‘In the course of the formulation of the institution of mediation care was taken so that neither of the two parts would benefit from the process – that the process is neutral. But of course, it is possible, as it was stressed by Mr Venizelos, that pressure will be placed on the victim to consent to the process. But why is this necessarily a bad thing?’ (Parliamentary Hansard, translation is mine). Hence, it becomes evident that the system does not even intend to strike an (impossible) balance between women’s rights and the unity of the (violent) family, but it clearly prioritises the latter. Moreover, the provision ignores (or even worse, it duplicates) the behaviour patterns of abusive men, who after the abusive incident promise not to repeat the deed and exhibit unusually kind and affectionate behaviour (see condition a), but do turn violent again. Indeed, their violence tends to escalate. Hence, penal mediation sends the abused woman back home exposing her to risks of greater abuse and in extreme cases even death.

CEDAW Committee: A reluctant guardian

To feminists’ great disappointment the stance of the CEDAW Committee has not been particularly helpful in this instance. Greece has been the subject of two periodic reports (2007 and 2013) after the enactment of the legislation. In both instances, the Committee expressed it concerns about the provision, yet it has not called for its abolition. Rather the Committee urged Greece to monitor the application of the provisions: ‘in order to ensure that the legislation is implemented in a way that respects and promotes women’s human rights and does not lead to perpetrators escaping punishment. The Committee calls on the State party to put in place training measures for judges who conduct mediation in criminal proceedings for domestic violence cases so as to enhance their capacity to deal with violence against women in a gender-sensitive manner.’

This guidance, although useful, appears to ignore two things. First, the above analysis shows how the system was never meant to be ‘gender-sensitive’, especially when the Minister himself declared that pressuring the victim to participate in the process is acceptable. Secondly, the monitoring suggested is impaired by the fact that Greece has repeatedly failed to produce and distribute any kind of gender-disaggregate statistics, and indeed this has been one of standard recommendations of the Committee. Hence, this otherwise modest reform appears to be practically more challenging than just abolishing the institution. Curiously, it was the Greek government that in Annex 2 of the same report promised to abolish mediation, but it never proceeded or even publicised this intention domestically.

Τhis reluctance is also revealing of CEDAW’s own shortcomings. The omission of gender-based violence from the original treaty was subsequently rectified by General Recommendations 12 and 19 that designated violence as a form of discrimination against women. Nonetheless, the initial silence is indicative of traditional human rights treaties’ (and human rights discourse for that matter) difficulty to deal effectively with private sphere oppression. In this instance, the ‘privatisation’ of the criminal process is technically subject to the consent of the woman and therefore the Committee appears reluctant to characterise the process as discriminatory. Nevertheless, and given that this exception to the normal course of the criminal process is introduced for a crime that affects women disproportionately, this turn to consensual forms of settlement must be understood as discriminatory. This is even more the case given that mediation is highly exceptional for the Greek legal culture. When introduced back in 2006, penal mediation was the first such model across all branches of law (private law included). Hence, the specific legal context in Greece that generally favours and attaches moral value to criminal law and judicial settlement of disputes further emphasises the exceptional character of the provision and therefore, its discriminatory effect.


The effects of austerity

Since the introduction of austerity the situation was further aggravated. Amongst other devastating effects for gender equality, the management of the current crisis is thought to be amongst the leading root causes for the sharp increase of incidents of domestic abuse in Greece, but in also in other austerity-hit states like Spain. Insecurity, poverty and significantly, the collapse of the image of the powerful ‘bread-winner’ has led to increasingly violent male behaviour. Simultaneously, the already underfunded support structures were financially strangled and as a consequence it became practically impossible for many women to leave an abusive relationship, especially when unemployment and impoverishment rates are so high among women. Therefore, the legal framework coupled with the grim circumstances create an adverse background that perpetuates the victimisation of women. In this context, the immediate repeal of the relevant provisions, and the passing of a law that acknowledges the undeniable gender-related dimensions of the phenomenon and does not prioritise the stability of the (abusive) family are long overdue.

[1] It needs to be noted that numerous male MPs reacted to the criminalisation of marital rape and indeed some of them publicly stated that marital rape ‘is not the same thing as being raped by some stranger in the park’.

Managing or combating domestic violence? Penal mediation in Greece

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