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recognition of other rights that may come into conflict with it.

 

HUMAN RIGHTS DEBATES have not given fear, particularly fear of violence, adequate attention. Fear is of particular significance to all forms of violence against women, particularly domestic violence.

The Universal Declaration of Human Rights of 1948 identifies four freedoms derived from the rhetoric of Franklin D. Roosevelt. One of these was ‘freedom from fear’. This concept has all but disappeared from contemporary human rights discourse. I call it ‘the forgotten freedom’.

This absence is regrettable, because often the most significant impact on personal freedom comes from fear, rather than direct interference. No social system, including any governmental system, can operate by reliance on physical restraint or direct interference alone – there are limits on resources even to those who wish to interfere with the freedom of others.

The most effective, indeed the most common, form of interference with freedom arises from self-imposed restraint because of the threat of adverse consequences. The restraint on behaviour is greater, indeed almost always much greater, than it would be on the basis of a calculation of the probability of those consequences actually occurring.

Actual interference is not the only way in which human rights can be abrogated. The well-known chilling effect of constraints on the exercise of freedom of expression can be replicated in virtually every other human rights context.

This does not mean that freedom from fear is itself a form of freestanding right. Rather, it is a critical dimension of other rights. There is a long list of internationally recognised human rights that, in my opinion, have a fear dimension.

The significance of freedom from fear has long been recognised in political philosophy, in particular by Montesquieu in his classic work The Spirit of the Laws. In Book XI, the very chapter where Montesquieu made his most influential contribution – the significance of the separation of legislative, executive and judicial power – he stated, by way of an introductory paragraph: ‘The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted, as one man need not be afraid of another.’

Montesquieu’s clear link between liberty and tranquillity is reminiscent of Cicero’s aphorism ‘Peace is liberty in tranquillity.’ Montesquieu also referred to the significance of tranquillity in terms of the language of ‘security’. These ideas were very influential, including on the common law. The English judge Sir William Blackstone identified three principal rights, which he described as the ‘rights of all mankind’ – namely, personal security, personal liberty and private property. Blackstone’s idea of ‘personal security’ is equivalent to Montesquieu’s ‘tranquillity of spirit’: ‘The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.’ He included both actual and threatened violence within the right to personal security.

All legal systems have well-established laws designed to protect persons from physical violence. Legal prohibition of threats of violence, and other forms of fear-inducing conduct which intimidate individuals, is not so clearly established. There is a patchwork of criminal offences relating to intimidation, harassment, blackmail, threats and other such conduct. Yet there is no systematic approach to these matters in any field of discourse, including threats of violence against women.

The recognition of the dimension of fear in personal security is of particular significance for women. Numerous surveys have concluded that, although men are more likely to be victims of violent crime than women, women have a greater fear of crime. In part this is because women are more liable to sexual assaults, assaults with a terror beyond physical injury.

This is recognition of women’s sense of vulnerability – including, most significantly, vulnerability to domestic violence. Domestic violence has correctly been characterised as a form of ‘social entrapment’ which extends to social isolation, fear and coercion, indifference of institutions, and structural inequalities of gender, class and race aggravating men’s coercive control.

Even in the context of intimate relations, violence and the threat of violence is overwhelmingly gender-specific, reflecting traditional patriarchal domination not yet extirpated. That sense of vulnerability recognises the high exposure to risk, the comparative lack of control (in part for physical reasons) and the perceived seriousness of the sexual dimension of violence. Women clearly have a heightened awareness of risks to personal safety of other family members or close friends – sometimes called a form of ‘altruistic fear’. For all these reasons, the fear dimension of threats to personal security is not gender-neutral.

The law cannot protect citizens from all subjective fears. The relevant test must have a high degree of objectivity. There is, for instance, a developed doctrine of a ‘well-founded fear of persecution’ in refugee law.

The fear dimension raises human rights considerations. As one author who argues forcefully for the recognition of domestic violence as a human rights issue put it: ‘Domestic violence violates the principle that lies at the heart of [the] moral vision [of human rights]: the inherent dignity and worth of all members of the human family, the humane right to freedom from fear and want and the equal rights of men and women.’ Others have emphasised the significance of recent human rights jurisprudence in responding to freedom from fear in the context of women’s rights, and concluded: ‘Freedom from fear may be the most important goal for the new millennium.’

The significance of fear was recognised in the Declaration on the Elimination of Violence Against Womenadopted by the General Assembly of the United Nations in 1994, by defining ‘violence against women’ to encompass threats of gender-based violence and coercion. Australia’s accession to the Optional Protocol means that matters of this character can now be considered by way of complaint by Australians to the Committee for CEDAW, as has long been the case with respect to the Human Rights Committee under the International Covenant on Civil and Political Rights.

 

THE MOST IMPORTANT mechanism directed to the dimension of fear is a system that exists in numerous jurisdictions and that in New South Wales we call Apprehended Violence Orders. As I noted in one judgment: ‘The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking, intimidation and harassment. AVOs constitute the primary means in this state of asserting the fundamental right to freedom from fear.’

The principal objective of AVOs was clearly enunciated by the then Premier, Neville Wran QC MP, when introducing the original legislation in 1982. ‘I believe,’ he said, ‘that this law reform will provide effective and immediate relief for those women who spend their lives worrying when the next battering will be.’

Although not limited to violence against women, or indeed to domestic violence, AVOs have played an important role in giving some measure of comfort to women threatened with domestic violence. They are not always effective, but research suggests that AVOs have had a significant effect in reducing both acts and threats of violence.

In its review of the AVO scheme, the New South Wales Law Reform Commission referred to the difficulty of creating penalties for cases of genuine criminality without encompassing behaviour that causes irrational fear. The commission identified as a difficult question the issue of whether or not the victim needs to have experienced fear – and if so, of what? No doubt the current Law Reform Commission inquiries will revisit such matters.

 

SEXISM IN THE European cultural tradition has in the past decades been targeted on a broad front, including with respect to violence against women. There are, however, important racial, ethnic and religious minorities in Australia who come from nations with sexist traditions. Violence against women is significantly greater in some social groups, whether based on cultural tradition or not. This dimension of the issue may well involve conflicts between values that are difficult to resolve.

Over the criminalisation of physical violence the majority culture is not able to compromise, although difficult questions arise about enforcement and sentencing. It is hard to know where to draw the line in legislation, and in the enforcement of laws based on the approach of the majority culture, where the policies underlying these laws conflict with other policies that recognise respect for minority cultures. This has become most acute in relation to the Indigenous community, most clearly in the Northern Territory Intervention, triggered by revelations of physical abuse of women and children, mainly girls.

I take heart from the observations of Mick Dodson when the issue first rose to prominence: ‘We have no cultural traditions based on humiliation, degradation and violation...Most of the violence, if not all, that our brittle communities are experiencing today are not part of Aboriginal tradition or culture.’

Throughout Europe significant issues have arisen, particularly involving Islamic and South Asian communities, regarding honour crimes and forced marriages. We have sizeable communities from the Middle East and South Asia in Australia, and are unlikely to avoid similar issues.

One of the principal ways that forced marriages and honour crimes, including killings, have arisen in the European legal system has been in the context of immigration law – particularly regarding refugee and asylum claims. That has also been the case in Australia.

There is now an extensive literature on crimes of honour, not only focusing on Islamic communities. Extensive research has been conducted in Jordan, Palestine, Lebanon, Pakistan, Egypt and Iraq, and similar crimes of honour occur, or a legitimate defence of honour has been recognised, in Italy and various jurisdictions of Latin America.

Although men can be victims of honour crimes, the idea of honour in this context is based on a historical legacy of women as the property of their male relatives. I first came across the matter in Australia in a case before the New South Wales Court of Criminal Appeal. A man had attempted to engage a person to murder his niece. The young woman had entered into an unhappy and clearly forced marriage in Jordan. She formed a relationship with a man of whom the family did not approve, left her family home and moved to a refuge, taking out an AVO against her father, mother and husband.

The accused and his family were Jordanian. They were Orthodox Christians – worth emphasising, as the issues that arise in this context are cultural, not religious, and the man with whom she had a relationship was in fact Muslim. The uncle contacted a private investigation firm, enquiring how much it would cost to have her killed.

The sentencing task posed acute questions about the extent to which the cultural disgrace experienced by the family should be considered. The proposed victim gave evidence in support of her uncle, raising considerations of restorative justice in a context where restoring relationships within the family was entitled to some weight. Motive is always a matter of significance in sentencing, as is the requirement of personal deterrence in a situation that is unlikely to recur. The requirement of general deterrence, though, points in the other direction.

These are difficult issues, and they call for judgment based on experience. That experience must also be informed by the broader social context, including the emphasis now given to preventing violence against women.

Forced marriages have received considerable attention throughout Europe. That a marriage can only be entered into with ‘free and full consent’ is recognised as a human right under international covenants. The practice of forced marriages, particularly of young women from Pakistan, India and Bangladesh, has become a significant concern in the United Kingdom. In 2001, the British Government created a Forced Marriage Unit to seek to prevent such marriages, on the basis that they constitute an abuse of human rights. In 2008 more than sixteen thousand incidents of suspected forced marriages were reported to the unit.

In 2007 the UK passed the Forced Marriage (Civil Protection) Act and empowered family courts to make a Forced Marriage Protection Order. This included orders to prevent a forced marriage from occurring – relinquish passports; stop intimidation and violence; reveal the whereabouts