Empathy Wars – (De)constructing the Hierarchy of Vulnerable Victims in Domestic Violence Cases Before the European Court of Human Rights
Östman, Lovisa (2023)
2023
Julkaisu on tekijänoikeussäännösten alainen. Teosta voi lukea ja tulostaa henkilökohtaista käyttöä varten. Käyttö kaupallisiin tarkoituksiin on kielletty.
Julkaisun pysyvä osoite on
https://urn.fi/URN:NBN:fi-fe20230922136254
https://urn.fi/URN:NBN:fi-fe20230922136254
Tiivistelmä
Domestic violence is a complex human rights issue which affects women disproportionately. The concerns that arise when a woman is abused tend to become even more pressing if the violence is not only directed at her, but also her children. The European Court of Human Rights (ECtHR) has in a series of domestic violence cases had to decide whether a fair balance between the right to safety and the right to respect for family life has been struck, when authorities have placed children in care and subsequently authorised adoption or imposed no-contact orders against their non-violent mother to prevent her from endangering them by staying in touch with the abuser.
Critical voices have been raised against such drastic measures, the loudest asking if the interpretation of the best interests of the child has “gone too far”. Critics claim that these mothers are unfairly treated, as the state actors subject them to secondary victimisation by blaming them for failing to protect their children. It is argued that their parenting skills are evaluated in the light of unrealistic standards, which are rooted in patriarchal stereotypes. The parenting assessment, thus, fails to consider how the mothers’ vulnerability impedes their caring ability.
Drawing on this last point of criticism, the thesis seeks to study how the ECtHR has attempted to solve the conflict between the child’s and mother’s rights in such domestic violence cases. Vulnerability rhetoric, which is a prominent tool of interpretation to address situations where individuals require special protection, lends itself well to this particular purpose. The conflict and the ECtHR’s reasoning are, thus, approached through the lens of vulnerability.
The extensive study of the Court’s case-law indicates that vulnerability is regularly invoked in the domestic violence context to enhance the standard of protection afforded to victims. Yet, a closer examination of cases where abused mothers have lost their parental rights, shows that their vulnerability is largely overlooked. In these cases, the ECtHR appears to create a hierarchy, where the victimised child is more likely to be recognised as vulnerable and the abused mother is implicitly labelled as invulnerable or resilient.
The socio-legal analysis, which complements the doctrinal study, points to the way vulnerability is linked to stereotypes of victimhood, womanhood and motherhood, and suggests that seemingly objective judicial reasoning may be affected by hidden (and subconscious) assumptions. Judges are, hence, well advised to be cautious in their approach to the inherently subjective vulnerability standard. Legal emotionality is not, however, only a vice; vulnerability as a “tool for empathy” may, arguably, contribute to increased context-sensitivity. The thesis, thus, calls for a more transparent and nuanced vulnerability approach which avoids the pitfalls of arbitrariness and incoherence, while ensuring fairness and procedural justice to victims recovering from trauma.
Critical voices have been raised against such drastic measures, the loudest asking if the interpretation of the best interests of the child has “gone too far”. Critics claim that these mothers are unfairly treated, as the state actors subject them to secondary victimisation by blaming them for failing to protect their children. It is argued that their parenting skills are evaluated in the light of unrealistic standards, which are rooted in patriarchal stereotypes. The parenting assessment, thus, fails to consider how the mothers’ vulnerability impedes their caring ability.
Drawing on this last point of criticism, the thesis seeks to study how the ECtHR has attempted to solve the conflict between the child’s and mother’s rights in such domestic violence cases. Vulnerability rhetoric, which is a prominent tool of interpretation to address situations where individuals require special protection, lends itself well to this particular purpose. The conflict and the ECtHR’s reasoning are, thus, approached through the lens of vulnerability.
The extensive study of the Court’s case-law indicates that vulnerability is regularly invoked in the domestic violence context to enhance the standard of protection afforded to victims. Yet, a closer examination of cases where abused mothers have lost their parental rights, shows that their vulnerability is largely overlooked. In these cases, the ECtHR appears to create a hierarchy, where the victimised child is more likely to be recognised as vulnerable and the abused mother is implicitly labelled as invulnerable or resilient.
The socio-legal analysis, which complements the doctrinal study, points to the way vulnerability is linked to stereotypes of victimhood, womanhood and motherhood, and suggests that seemingly objective judicial reasoning may be affected by hidden (and subconscious) assumptions. Judges are, hence, well advised to be cautious in their approach to the inherently subjective vulnerability standard. Legal emotionality is not, however, only a vice; vulnerability as a “tool for empathy” may, arguably, contribute to increased context-sensitivity. The thesis, thus, calls for a more transparent and nuanced vulnerability approach which avoids the pitfalls of arbitrariness and incoherence, while ensuring fairness and procedural justice to victims recovering from trauma.