The Right of Self-Defence in Domestic Violence Cases: Stereotypes and Biases in Justice Systems (Using the Example of Russia)
By Dariana Gryaznova, EHRAC Oak Fellow. Dariana is a human rights lawyer from Russia. She recently prepared a report for the Russian human rights NGO Zona Prava: “The Right of Self-Defence of Victims of Domestic Violence: Stereotypes and Biases in Russian Court Judgments” (available to read in Russian only).
The seriousness of the problem of violence against women cannot be overestimated. Despite all efforts, gender-based violence against women “remains pervasive in all countries, with high levels of impunity”. For example, as of 2013, around 35% of women (up to 70% according to various national studies) have experienced physical and/or sexual violence from an intimate partner in their lifetime. Taking into account that domestic abuse is a largely hidden crime that is often not reported, the real scale of violence is probably much worse.
In 2017, 30,000 women were intentionally killed by their current or former intimate partners, meaning that 82 women across the world are killed by an intimate partner every day. It is an established fact that women are disproportionately affected by intimate partner violence. While only 18% of male victims of homicide were killed by intimate partners, 82% of female victims of homicide were killed by their intimate partners.
There is also significant evidence to suggest that many women who killed or injured their intimate partner were, in fact, defending their lives and/or the lives of their children from an attack within the context of domestic violence. However, despite the existence of the right of self-defence in various jurisdictions, many of these women who physically protect themselves from imminent harm (including death) end up being convicted of and imprisoned for violent offences (e.g. infliction of grievous bodily harm or murder).
With regard to Russia, recent research has demonstrated that 79% of women convicted of murder were victims of domestic violence, and 83% of women convicted of ‘murder committed while exceeding necessary limits of self-defence’ (an offence under Article 108(1) of the Criminal Code) were defending themselves from their violent partners.
Gender stereotypes and women’s access to justice in domestic violence cases
Although the UN General Assembly urges states to update their criminal procedures in order to ensure that “[c]laims of self-defence by women who have been victims of violence, particularly in cases of battered woman syndrome, are taken into account in investigations, prosecutions and sentences against them”, Russian legislation does not contain similar provisions. Moreover, although the Russian law on self-defence is constructed in a gender-neutral way (there is no specification that women cannot claim self-defence), law enforcement agencies and judges ignore gender perspectives and reinforce numerous gender stereotypes when they apply the law.
It is widely recognised that stereotypes and stereotyping have an appalling and broad effect on a woman throughout her life cycle. Stereotypes allocate women to submissive roles in society, creating prejudices about women’s subservience in both public and private spheres. They are a cause of structural inequality, discrimination, imbalance of power, and oppression. The UN CEDAW Committee has repeatedly linked gender stereotypes and perceptions of women as subordinate to men as an underlying cause of gender-based violence, and indicated that the obligation to combat gender-based stereotypes, which affect women in both private and public spheres, is one of three central obligations of states to eliminate discrimination against women. Moreover, in its General Recommendation No. 33 on the access to justice, the CEDAW Committee cited gender stereotyping as the primary obstacle that prevents women from realising their right to access to justice.
While gender stereotypes are perpetuated “through various means and institutions, including laws and legal systems”, and “by State actors in all branches and at all levels of government and by private actors”, the engagement of law enforcement authorities and judges in stereotyping is particularly harmful because stereotypes seriously compromise their impartiality and lead to binding decisions based on preconceived beliefs rather than relevant law, facts, and enquiry.
Gender bias and self-defence cases in Russian courts
Zona Prava’s recent report analysed: 20 guilty verdicts under Article 105(1) (Murder) of the Criminal Code of Russia; 20 guilty verdicts under Article 108(1) (Murder Committed while Exceeding Necessary Limits of Self-Defence); 15 guilty verdicts under Article 111(4) (Intentional Infliction of a Grave Injury which Has Resulted in the Death of the Victim by Negligence) for 2016-2019; and 10 acquittals under these articles for 2010-2019 of women who had killed their partners and claimed self-defence. In almost all of the judgments, women raise the issue of long-term and quite often severe domestic abuse. The aim of the report was to examine whether Russian judges are free from stereotypes and biases when considering cases concerning self-defence in the context of domestic violence.
The main findings of the report can be summarised as follows.
In the vast majority of cases, judges do not recognise domestic violence to be a specific and systemic human rights violation which is nuanced and has serious consequences. Judges describe the situation of domestic violence as a “personal enmity”, “squabble”, “conflict”, “scuffle” (etc.), ignoring the specifics of domestic violence cases and underestimating the impact of, and the gravity of harm caused by, domestic abuse. In several judgments, judges normalised the situation of domestic violence. For example, one judge stated that: “the situation that happened on [the day when she killed her partner] was common to [her], the conflict was predictable for her, the actions of her [partner] did not extend beyond his usual illegal behaviour towards [her], he again caused her beatings, and in turn she killed him”.
In a significant number of convictions, judges apply stereotypes about “ideal victims” of domestic violence. These include the setting of rigid standards about what judges consider to be appropriate behaviour for a victim of domestic violence, and the penalising of women who do not conform to these stereotypes.
The most pervasive stereotypes perpetuated by judges are:
- “Why didn’t she leave?”—i.e., if a victim of domestic violence stayed in the abusive relationship, she was either comfortable with it or the abuse was not serious enough;
- “If she had seriously worried for her safety, she would have contacted the police.”— (Conversely, survivors or their legal representatives often explained why they did not leave, e.g., “She wanted to leave him, but their parents did not allow her to do that as she will be alone, and nobody will need her”; “She has to bear everything as they are married”; “She left him, … but it was not possible to hide from him as he stalked her. She was afraid of him”; or that she did not contact the police because, to give some examples, she was threatened by an abuser or his relatives or she did not trust the police, who may have failed to act on previous reports, etc.;
- Judges are often prejudiced in their beliefs that women can escape violence no matter what, instead of protecting themselves, or that they can defend themselves with their bare hands from violent and aggressive abusers—while, in fact, the Supreme Court of Russia has directly outlined that victims of crimes have a right to defend themselves even if they can escape or ask for help.
At the same time, an analysis of acquittals demonstrates that Russian judges are capable of not applying, reinforcing, and perpetuating stereotypes. Acquittals also show that Russia’s criminal law in principle “sufficiently establishes the right to self-defence” and does not prevent courts from considering the context of domestic violence within these types of cases.
The author of the report concludes that stereotypes can result in a warped understanding of a woman’s actions in a situation where a judge decides whether limits of self-defence were met. Stereotypes contribute to upholding a culture of impunity. On the one hand, the state is unable or unwilling to provide protection for victims of domestic violence and to hold domestic abusers accountable. Thus, women are forced to defend their rights by their own means, at their own risk. On the other hand, the state severely punishes those women who nevertheless choose to protect themselves.
Accordingly, a woman actually faces an impossible choice: either to tolerate domestic violence (which is often quite serious and can result in her death), or to defend herself and face criminal prosecution (which can end in imprisonment). The law on self-defence as it is applied now (in particular, in Russia) creates the impression that a state is taking the side of the abuser.
 CEDAW, ‘General recommendation No 35’ (2017) (GR No 35) para 6.
 This statistic does not include sexual harassment and violence from other family members, strangers, etc.
 WHO, ‘Prevalence and health effects of intimate partner violence and non-partner sexual violence’ (2013) https://apps.who.int/iris/bitstream/handle/10665/85239/9789241564625_eng.pdf?sequence=1 accessed 09/08/2020 2; UN Women, ‘Facts and figures: Ending violence against women’ (November 2019) https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures#notes accessed 09/08/2020.
 UNODC, ‘The Global Study on Homicide’ (2019) https://www.unodc.org/documents/data-and-analysis/gsh/Booklet_5.pdf> accessed 09/08/2020 10.
 UNODC, ‘The Global Study on Homicide’ (2019) https://www.unodc.org/documents/data-and-analysis/gsh/Booklet_5.pdf> accessed 09/08/2020 11.
 For Russia, see Zhukova, Kryukov, et al., ‘«Я тебя сейчас, сука, убивать буду». Большинство женщин, осужденных за убийство, защищались от домашнего насилия’ (Mediazona, 25/11/2019) <https://zona.media/article/2019/11/25/women-105> accessed 09/08/2020; for the Americas, see the Committee of Experts (CEVI) of the Follow-up Mechanism of the Belem do Para Convention (MESECVI), ‘General Recommendation N. 1 of the Committee of Experts of the MESECVI’ (2018) <https://www.oas.org/en/mesecvi/docs/MESECVI-CEVI-doc.249-EN.pdf> accessed 09/08/2020 1.
 UNGA Res 65/228 (2010) GAOR 65th Session para 15(k).
 CEDAW, ‘General recommendation No 19: Violence Against Women’ (1992) (GR No 19) paras 11, 12, 24(e), 24(f), 24(t)(ii).
 GR No 19 para 11; GR No 25 para 7; GR No 35 paras 19, 30(b).
 CEDAW, ‘General Recommendation No 33’ (2015) (GR No 33).
 GR No 33 paras 3, 26.
 Gryaznova, D, ‘The Right of Self-Defence of Victims of Domestic Violence: Stereotypes and Biases in Russian Courts’ Judgements’ (Zona Prava, 04/11/2020) <https://zonaprava.com/events/doklad-zony-prava-rossiyskie-sudi-stereotipno-podkhodyat-k-delam-o-samooborone-pri-domashnem-nasilii/> assessed 08/12/2020.
 Duban, Davtyan, Frolova, ‘Research On Preventing And Combating Violence Against Women And Domestic Violence Including In Situations Of Social Disadvantage In The Russian Federation’ (The Council of Europe, April 2020) <https://rm.coe.int/publication-research-on-vaw-and-dv-in-situations-of-social-disavantage/16809e4a04> accessed 09/08/2020 from 36.
 Human Rights Watch, ‘“I Could Kill You and No One Would Stop Me” Weak State Response to Domestic Violence in Russia’ (25/11/2018) <https://www.hrw.org/report/2018/10/25/i-could-kill-you-and-no-one-would-stop-me/weak-state-response-domestic-violence> accessed 09/08/2020; Equality Now, ‘Russia Is Failing In Its Obligations To Protect Women From Domestic And Sexual Violence’ (20/10/2019) <https://www.equalitynow.org/russia_domestic_and_sexual_violence> accessed 09/08/2020.