COERCIVE FEMINISM. Tara Urs*

Transcription

1 COERCIVE FEMINISM Tara Urs* ABSTRACT In 2008, the United Nations (U.N.) began the UNiTE campaign, an effort to bring modern, aggressive domestic violence policy-essentially, American domestic violence policy-to the developing world. The campaign encourages member states to authorize protection orders, mandatory arrests, and no-drop prosecution, and to prohibit mediation between the abuser and the victim. This approach, however, exports elements of the American system that have engendered much criticism at home. Some recent American feminist scholarship has argued that criminal interventions, like mandatory arrest policies and no-drop prosecutions, undermine a woman's ability to make deeply personal decisions about her own life. In America, police, prosecutors, and judges are empowered to decide whether a woman must leave her spouse, whether she must testify against him in open court, and whether he must be excluded from their shared home. The United Nations has embraced this Western approach even though the flaws in American domestic violence policy are becoming increasingly apparent. Despite the UN's endorsement, increasing the scope of criminal law enforcement remains problematic, particularly in places where police and courts operate as agents of an authoritarian government. In addition, as the UN's policy seeks to supplant local, traditional practices, it reinforces the notion that Third World women are helpless victims of their culture. As international advocates press for the intensification of efforts to combat domestic violence, this article suggests that it is time to reconsider some of the basic assumptions of * Visiting Professor of Lawyering Skills at Seattle University School of Law. The author welcomes comments at <tara.urs@gmail.com>. The author wishes to thank the editors of the Columbia Human Rights Law Review, Hannah Roman, Amy Mulzer, Zabrina Aleguire, Mary Bowman, Leigh Goodmark, Marsha Garrison, Peter Hammer, Vichhra Muoyly, Henry Hwang, Helena Horal, Bill Sherman, Sara Ainsworth, and D'Adre Cunningham.

2 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 that work. The American response to domestic violence is not ideal for everyone. It is probably not even ideal for us. I. INTRODUCTION American domestic violence policy has undergone a revolution in the last forty years. 1 Where prosecution used to end at the doorstep, American domestic violence policy now puts aggressive criminal enforcement front-and-center. 2 This policy is based on two core tenets: 1) domestic violence is the result of unequal power between men and women and 2) the proper solution is to level the field by using the criminal justice system to protect women. 3 These two claims have formed the basis of sweeping legal changes at the local, state, and federal levels. 4 Yet three decades into this project of feminist law reform, American scholars are questioning some of its most basic assumptions. 5 What if, in some cases, domestic violence is not (or not solely) the result of unequal power dynamics, but results instead from other factors like economic stress? And what if mandating a criminal response to domestic violence unnecessarily enhances the power of the state police at the expense of a woman's autonomy? As this dialogue continues at home, a global human rights paradigm inspired by the Western approach charges ahead. 6 The issue of domestic violence 7 has become a "centerpiece of women's 1. See generally Elizabeth M. Schneider, Battered Women and Feminist Lawmaking 13 (2000) (discussing the rebirth of the women's movement in the United States in the 1960's and the surge of feminist lawmaking). 2. Id. 3. See infra Part I.A. 4. See generally Schneider, supra note 1 (reviewing the history of feminist lawmaking in the United States). 5. See infra Part III.A-B. 6. See infra Part I.B. 7. This paper uses the term "domestic violence" in a way that is consistent with but not identical to international law. International law conceives of "violence against women" more broadly, as violence within the family, but also violence that occurs "within the general community" and violence against women that is "perpetrated or condoned by the State, wherever it occurs." Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, art. 2(b)-(c), U.N. Doc. AIRES/48/104 (Dec. 20, 1993). This paper is concerned with the more limited subcategory of violence against women generally referred to as "domestic violence," in other words, violence within the family or between intimate partners. In addition, this paper does not address violence against children, male or female, within the family or in the community more broadly.

3 20141 Coercive Feminism human rights."' In 2008, the United Nations Secretary-General launched a multi-year global campaign called UNiTE to End Violence Against Women. The campaign aims to end domestic violence worldwide. 9 One of the campaign's five goals is for every country to adopt and enforce national laws that address and punish all forms of such violence in line with international human rights standards by The campaign is predicated on the notion that "[i]mpunity for violence against women often results from States' failure to implement international standards at the national and local level." 11 As part of the UNiTE campaign, policy initiatives that began in the West have been embraced by the international human rights community, and have become a model that the United Nations encourages all nations to follow. 1 2 In order to encourage compliance with these norms, the U.N. Division for the Advancement of Women convened a conference in 2008 to develop a model framework for legislation. 13 The resulting International Model Framework for Legislation on Violence against Women and an accompanying handbook were presented in 2009.' 4 Like the system in America and other Western nations, the Model Framework expresses a commitment to mandatory criminal enforcement, including mandatory arrest and no-drop prosecution policies. 15 And as in many U.S. states, the Model Framework includes an outright prohibition on mediation of cases involving domestic violence. 16 This relatively new international domestic violence policy assumes that women will be better off when the state acts swiftly and surely to intervene in their lives. Indeed, the United Nations is focused on overcoming a "global pattern of a reluctance to 8. Sally E. Merry, Human Rights and Gender Violence: Translating International Law into Local Justice 3 (2006). 9. U.N. Dep't of Econ. & Soc. Affairs, Div. for the Advancement of Women, Handbook for Legislation on Violence against Women, at iii, U.N. Doc ST/ESA/329, U.N. Sales No. E.10.IV.2 (July 2010) [hereinafter Handbook for Legislation]. 10. U.N. Secretary-General, UNiTE to End Violence Against Women, About UNiTE, (last visited Sept. 14, 2014). 11. U.N. Secretary-General, UNiTE to End Violence Against Women, UNiTE Goals, (last visited Oct. 6, 2014). 12. See infra Part I. 13. Handbook for Legislation, supra note 9, at iv. 14. Id. at iii. 15. Id. at Id. at 38.

4 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 intervene." 7 In pursuit of this goal, the United Nations has made active efforts to promote worldwide compliance with the Model Framework and its accompanying proposals.'" This paper takes a critical look at the Model Framework as a concrete example of the U.N. approach to domestic violence. This article first observes that, because key elements of the international response to domestic violence were derived in substantial measure from the Western experience, including the American experience, 19 recent feminist scholarship on the American and Western system should provide a useful tool in evaluating global policy. Applying the critiques developed in modern feminist literature to the international legal landscape reveals a global effort built on shaky ground. First, the descriptive claim that domestic violence necessarily results from unequal power looks like an especially broad generalization when used to describe the behavior of all men throughout the world. Second, the proscriptive claim that domestic violence must be addressed by aggressive criminal law enforcement makes little sense in nations under an authoritarian regime where encounters with the police are feared rather than welcomed. In order to make concrete claims about the failings of the international model, the paper adopts Cambodia as a case study. Cambodia is, in many ways, the showpiece of the international development agenda. From 1992 to 1993, Cambodia was the site of 17. However, various reports note that laws alone are insufficient to address problems of domestic violence and further recommend other responses including public education, training, and collaboration with civil society. See, e.g., U.N. Secretary-General, In-depth Study on All Forms of Violence Against Women: Rep. of the Secretary-General, [ , U.N. Doc. A/61/122/Add.1 (July 6, 2006) [hereinafter U.N., In-depth Study] (noting that "[1laws alone, however, are insufficient and need to be part of a broader effort that encompasses public policies, public education, services and violence prevention"). Yet these additional initiatives are geared towards improving reliance on the criminal justice system. 18. See, e.g., UN Women, Domestic Violence Legislation and its Implementation: An Analysis for ASEAN Countries Based on International Standards and Good Practices (2d ed. 2011) [hereinafter Implementation Report]. 19. See Elizabeth M. Schneider, Domestic Violence Law Reform in the Twenty-First Century: Looking Back and Looking Forward, 42 Fam. L.Q. 353, 355 (2008) (discussing the "proliferation of legal advocacy on domestic violence" including Congress' enactment of the Violence Against Women Act and establishment of specialized family violence courts in some jurisdictions); see also Kristin Bumiller, In An Abusive State: How Neolibralism Appropriated the Feminist Movement Against Sexual Violence 14, 134 (2008) (noting that "the sexual violence agenda is being exported abroad and used instrumentally as part of American human rights policy").

5 2014] Coercive Feminism the first-ever U.N. peacekeeping mission, the United Nations Transitional Authority for Cambodia (UNTAC). Since that time, Cambodia has occupied a special place in the world of international development. Officially, Cambodia has a domestic violence law that is consistent with the international model framework. In practice, these laws are almost completely ignored. 2 In one study of domestic violence in Cambodia, women indicated a reluctance to report violence because police demand bribes for both arresting and releasing their husbands. 21 Other reports show that, because of corruption, less than half of all Cambodians would contact police if they faced or witnessed any serious crime. 22 Likewise, another study found that, in cases of domestic violence, "women fear going to court" because "it is expensive and time consuming; they do not understand the process; they do not believe they will have a chance to negotiate; and they worry court officials may be corrupt." 23 Instead, women in Cambodia report that they prefer to resolve issues of domestic violence using a traditional, mediation-based, restorative justice model. 24 The mediation process, called somroh-somruel, allows women and men to resolve differences and, in many cases, avoid separation. While mediation remains the most popular means of resolving domestic disputes in Cambodia, it is prohibited by the Model Framework. 25 The continued reliance on mediation and rejection of criminal enforcement has caused international non-governmental 20. See Lauren Crothers, Report Finds Poor Implementation of Domestic violence Law, Cambodia Daily, Jan. 21, 2014, archives/report-finds-poor-implementation-of-domestic-violence-law-50906/ (noting that, "[t]he research found that the gap between law and its enforcement exists in part because of failures by the legal system to enforce the law, and because 'Cambodian women are currently unable to embrace "active citizenship"...'"). 21. Ian Ramage et al., Somroh Somruel & Violence Against Women 28 (2008), available at /Documents/cambodia-report.pdf. 22. Australian Agency for Int'l Dev. & The Asia Foundation, Safer Communities in Cambodia 39 (2011), available at countries/eastasia/cambodia/documents/criminal-justice-safer-communities pdf [hereinafter Safer Communities]. 23. Id. at Id. at i. 25. Handbook for Legislation, supra note 9, at 38.

6 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 organizations (NGOs) and the United Nations to draw attention to Cambodia's failure to fully implement its domestic violence laws. 26 Accordingly, despite Cambodia's Western-inspired domestic violence legal regime, the everyday experience of Cambodian women confronting domestic violence looks very different from that of women in America. What emerge are two perspectives that stand in sharp contrast. On the one hand, the global model is patterned on the Western experience, which relies heavily on the power of the police to protect women. On the other hand, women in Cambodia reject police assistance when they seek resolution of domestic violence through a restorative justice framework. Global domestic violence policy would benefit from uncovering the dimensions of this conflict. But, rather than reflecting on the comparative advantage of various approaches, the international model uses a human rights platform to coerce state compliance with a Western-inspired model. In the name of feminist law reform, the United Nations and international NGOs continue to encourage compliance with the very mandatory criminal interventions that Cambodian women reject. This approach, which I have termed "coercive feminism," is the subject of this article. In the context of domestic violence policy, coercive feminism operates on two levels. First, American domestic violence policy has caused a sharp constriction of women's autonomy in the name of feminist law reform. Second, as that same policy is projected onto the international stage, Western feminist conceptions become the blueprint the United Nations uses to construct and transform the law in developing countries. To explore the dimensions of coercive feminism, this article is influenced by post-colonial theory, which demands that we investigate the presumed inferiority of non-western approaches to a given problem." This article postulates that ongoing efforts to 26. Kathrine Brickell et al., Domestic Violence Law: The Gap Between Legislation and Practice in Cambodia and What Can Be Done About It (2014), available at (noting that in 2013, the CEDAW Committee stated that, "Cambodia has seen 'limited progress in the prevention and elimination of violence against women,"' and further noting that, "Human Rights Now writes, 'Although five years have passed since the introduction of the DV Law, this law is yet to be widely used to provide enough protection for women... the legal system is not able to prevent domestic violence and provide adequate protection"). 27. Edward W. Said, Orientalism 206 (1978); Chandra Talpade Mohanty, Under Western Eyes: Feminist Scholarship and Colonial Discourses, in Feminism Without Borders: Decolonizing Theory, Practicing Solidarity 333, 334 (2003)

7 2014] Coercive Feminism radically change the way that Cambodian women approach domestic violence are not, as it may appear, uncontroversial. These efforts, cloaked in the optimistic language of development, "promoting the rule of law," "women's rights as human rights," and "ending gender-based violence," obscure a far more problematic reality. Enlarging the scope of the inquiry by considering the validity of non-western perspectives reveals the privileged role of Western feminists in defining the problem. Western feminists created the yardstick and stand in judgment as they declare that others fail to measure up. 28 The very terms on which the debate is set privilege a Western feminist approach-and that privilege operates as a form of domination. Section I begins with a descriptive account of American domestic violence policy and the global domestic violence movement that is patterned on it. Section II describes the formal (legal) and informal (restorative) response to domestic violence in Cambodia. Section III sets out two critiques of the American system: an antiessentialist critique and a critique of criminalization. Section IV applies those critiques to the Cambodian domestic violence law. Finally, Section V of this article suggests that lessons from Cambodia have broader implications for the international human rights approach to domestic violence. Suggesting changes to international domestic violence policy is only part of the story. That the American system is unsuitable as a model for the world is apparent, but this article also suggests that a common thread connects both the American and international stories. In both contexts, advocates have demonstrated a problematic tendency to make universal assumptions based on their personal experiences and to champion state power and police intervention. (discussing the implicit assumption that the West is the primary referent). Simultaneously, however, a post-colonial approach asks us to avoid a fascination with Cambodian practices in the sense that they are exotic, untainted (primitive), or more authentic than a Western model. This paper attempts to walk that line. 28. Mohanty, supra note 27, at 336 (describing Western feminist academic discourse as hegemonic in that it sets up "its own authorial subjects as the implicit referent, i.e., the yardstick by which to encode and represent cultural Others").

8 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 II. AMERICAN DOMESTIC VIOLENCE POLICY AND ITS GLOBAL FOLLOWING American domestic violence policy grew out of a feminist social movement that advocated for a criminal response to domestic violence. The movement was predicated on a theory of "dominance feminism," which argued that domestic violence is a manifestation of an unequal power relationship between men and women. The movement sought to balance the scales of power by relying on the state to intervene on behalf of women. The international human rights community embraced the same theoretical framework and adopted similar policies as part of a global human rights platform. A. Origins of the Domestic Violence Movement It was not until the late 1960s and 1970s that American and British feminist activism began to call attention to violence against women by intimate partners. 29 In just a few decades, the United States moved from a legal tradition that condoned or ignored domestic violence to a new regime that recognized and prohibited it. 3 " The transformation was brought about by feminist organizing; feminists theorized both the causes and the appropriate responses to domestic violence. According to feminist thinkers of the era, domestic violence was caused by patriarchal systems of power. 31 "Battered women's advocates argued that domestic violence sprang not from the problems or pathologies of individual families, but from a patriarchal system that encouraged men to use violence to control their wives and 29. See, e.g., Schneider, supra note 19, at 354 (noting that domestic violence did not surface as an issue in U.S. law until the late 1960s or early 1970s, and that feminist activism on the issue developed around this time); Emily J. Sack, Battered Women and the State: The Struggle for the Future of Domestic violence Policy, 2004 Wis. L. Rev. 1657, 1666 (2004) (discussing how "[i]t was the women's movement of the late 1960s and 1970s that brought particular attention to violence to women by intimate partners"). 30. Sack, supra note 29, at 1659; accord Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2, 12 (2006) (discussing the evolution of American domestic violence policy beginning in the 1970s). 31. According to Professor Kristin Bumiller, "[tihe term 'battered woman' had no public significance before the feminist movement politicized the issue by defining it as form of violence produced by a system of male domination." Bumiller, supra note 19, at 3.

9 20141 Coercive Feminism failed to punish them meaningfully (if at all) for doing so." 3 2 Legal theorists, most prominently Catharine MacKinnon, understood domestic violence to be one aspect of the larger phenomenon of "the male pursuit of control over women's sexuality." 3 3 In the eyes of feminists like MacKinnon, domestic battering, like marital rape and even prostitution, can only be understood as a symptom of male power. 34 MacKinnon did not theorize domestic violence with the same attention she gave to other issues like pornography and rape. Her theoretical framework, however, was critical to the development of "dominance feminism," which became the conceptual tool for developing domestic violence policy. According to dominance feminism, men intentionally use physical abuse to subordinate women. 36 As Professor Leigh Goodmark notes, the domestic violence movement "embraced the dominance feminist conception of domestic violence as rooted in a system of patriarchy." 37 In addition to framing the causes of domestic violence, feminists also pioneered various responses. Early on, attention to violence against women resulted in the creation of new organizations that often emerged out of grassroots organizing committed to an explicitly feminist ideology. In this early history of the American movement, women formed shelters and rape crisis centers committed to feminist principles like the need for "less hierarchy, democratic decision making, and women working with women." 39 Despite early grassroots efforts, "engaging with the state" soon became the principal strategy of the battered women's movement. 4 " As Professor Kristin Bumiller describes, the imposition 32. Leigh Goodmark, A Troubled Marriage: Domestic violence and the Legal System 14 (2012). 33. Catharine A. MacKinnon, Feminism, Marxism, Method and the State: An Agenda for Theory, 7 Signs 515, (1983). 34. Schneider, supra note 1, at 251 n Goodmark, supra note 32, at Id. at Id. at Bumiller, supra note 19, at Bumiller, supra note 19, at 3; see also Goodmark, supra note 32, at (finding that "[i]any shelters and service agencies were egalitarian and non-hierarchical, dedicated to empowering women subjected to abuse through self-help"). 40. Jane C. Murphy, Engaging with the State: The Growing Reliance on Lawyers and Judges to Protect Battered Women, 11 Am. U. J. Gender Soc. Pol'y & L. 499, (2003).

10 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 of regulations and the desire for stable funding eventually pushed these feminist organizations onto the "terrain of the state." 41 Likewise, feminists in the legal academy were committed to treating violence against women as a legal issue. As a legal scholar, MacKinnon believed in the power of the law to upend male control over women's lives. Where the law was constructed according to the terms of male control, she theorized that it was possible to replace it with feminist jurisprudence. 4 2 At the confluence of these events, the early work of the domestic violence movement shifted from "establishing shelters, safe houses, and hotlines to drafting legislation, lobbying elected officials, and litigating cases to create and expand legal protections for battered women." 43 As the movement came to focus on legal reform, innovations in criminal law began to take shape. 4 Where the criminal law had typically stopped short of the home, feminist activists sought to harness its power. 45 Some of the most significant changes were the development of expanded civil protection orders, the emergence of mandatory arrest, and "no-drop" prosecution policies. As Professor Jeannie Suk has pointed out, in this new regime, "the home is a space in which criminal law deliberately and coercively reorders and controls private rights and relationships in property and marriage-not as an incident of prosecution, but as its goal." Bumiller, supra note 19, at 4; see also Goodmark, supra note 32, at 26 (noting that "[glovernment funding essentially altered the way in which shelters and service providers approached their work with women subjected to abuse"). 42. Goodmark, supra note 32, at Murphy, supra note 40, at ; see also Thomas L. Hafemeister, If All You Have Is A Hammer: Society's Ineffective Response to Intimate Partner Violence, 60 Cath. U. L. Rev. 919, (2011) (noting that the criminal justice system has been increasingly utilized to advocate for victims of domestic violence). 44. See, e.g., Suk, supra note 30, at 6 (finding that the domestic violence "reform effort has met with remarkable and transformative success"); Hafemeister, supra note 43, at (noting that reform efforts included "enacting laws to facilitate the prosecution and punishment of domestic violence by removing impediments to prosecuting 'marital rape,' criminalizing stalking, enforcing mandatory-arrest laws, implementing 'no-drop' prosecution policies, mandating IPV training and guidelines for prosecutors, police, and judges... and enhancing the enforceability of protective orders"). 45. Suk, supra note 30, at 5-6 (noting that "[diuring the period of over thirty years... feminists have sought to recast as 'public' matters previously considered 'private' through the coercive force of the criminal law"). 46. Suk, supra note 30, at 7.

11 20141 Coercive Feminism One of the first legal responses to domestic violence came through the civil justice system. 4 7 Domestic violence advocates made use of the injunctive relief available in civil courts to prohibit an abusive partner from continuing to assault, harass, threaten, and abuse his partner. 4 Civil injunctive relief allowed a woman to prevent an abuser from contacting her, or to require an abuser to stay away from her home, school, or place of employment. 4 9 By 1989 every state had a civil remedy of this kind, and these remedies have been expanded over the years to protect non-marital relationships, to lower the burden of proof, to expand the amount of time the order is in force, and to provide for enforcement through civil and criminal contempt. 50 Even though the remedy is civil and can be lifted at the request of the protected party, in practice a violation triggers the full consequences of police enforcement. 5 ' Most states provide for enforcement of protective orders either through criminal contempt or by criminalizing violations. 2 Proponents of this use of a protection order argued that swift enforcement with real penalties enabled these orders to carry the same respect as the criminal law. 3 Advocates also pursued the strongest form of state intervention: explicit criminalization. 4 The battered women's movement advocated early on for "increased enforcement of the criminal law, including aggressive police involvement and prosecution in domestic violence cases."" Virtually every state passed laws 47. Murphy, supra note 40, at Goodmark, supra note 32, at 17. For a comparison of policy in state courts, see Suk, supra note 30, at 13 (explaining that "[slince passage of Pennsylvania's Protection from Abuse Act in 1976, all the states have enacted protection order legislation, which they have amended and refined over the last thirty years"). 49. Goodmark, supra note 32, at Id. at Suk, supra note 30, at 7. Suk finds that orders of protection to exclude a person accused of domestic violence from the home are best understood as part of "the arsenal of criminal enforcement" in two ways: first, because the state itself may seek such an order, and second, because violations of a civil order are prosecuted as a crime, usually a misdemeanor. Id. 52. Goodmark, supra note 32, at Id. at Id.; see also Hafemeister, supra note 43, at (discussing the global trend toward the criminalization of domestic violence). 55. Sack, supra note 29, at 1666; see also Julie Goldscheid, Domestic and Sexual Violence As Sex Discrimination: Comparing American and International Approaches, 28 T. Jefferson L. Rev. 355, 366 (2006) (noting that "[miuch law reform in the area of domestic and sexual violence has focused on changing and enhancing the criminal law").

12 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 permitting officers to make warrantless arrests in misdemeanor cases involving domestic violence. 6 Furthermore, after the decision in Thurman v. City of Torrington, where a judgment was awarded based on police inaction in a domestic violence case, many jurisdictions began to make more arrests in domestic violence cases. 57 Mandatory arrest policies emerged as one of the most significant innovations in criminal law. 5 " Many jurisdictions adopted a policy requiring police to make an arrest when faced with a domestic violence situation. 9 Mandatory arrest laws were initially championed because victims were not receiving adequate law-enforcement protection and "[t]here was no other alternative" to ensure that would change. 6 Advocates also asserted that mandating arrest minimized racial discrimination because mandatory arrest means that every batterer will be treated similarly regardless of race. 61 By removing police discretion, mandatory arrest laws were thought to have a deterrent effect on individual abusers. 62 Ultimately, the adoption of these laws was hailed as a victory for women whose pleas for police protection had previously fallen on deaf ears. As the number of domestic violence arrests increased, advocates turned their attention to prosecuting the offenders. In order to enhance prosecution, police officers were trained to respond to domestic violence cases differently and more thoroughly than ordinary assault cases. 6 4 Improved evidence collecting allowed prosecutors to go forward with a case even if the key witness, the victim, chose not to testify. Prosecutors began to develop "no-drop" policies in which their decision to go forward on a domestic violence case was not determined by whether the victim wanted the case to 56. Goodmark, supra note 32, at Goodmark, supra note 32, at 107. These policies were, at least initially, supported by empirical research. Studies conducted in the early 1980s suggested that the arrest of men who abused their partners deterred them from future abuse. Id. at 109; see also Sack, supra note 29, at (discussing state legislation in the 1980s adopting mandatory arrest policies where police on callouts had probable cause to believe domestic violence had occurred). 58. Suk, supra note 30, at 6 n.7 (finding "the most dramatic reforms have been the enactment since the early 1990s by about half the states of mandatory arrest laws requiring police to arrest upon probable cause in domestic violence cases"). 59. Goodmark, supra note 32, at Hafemeister, supra note 43, at Id. 62. Goodmark, supra note 32, at Id. at Id. at 110.

13 2014] Coercive Feminism proceed. 65 The rationale for this policy was that police are more likely to make an arrest if they believe the case will be prosecuted. Further, by not relying on the victim's decision to press charges, no-drop policies would reduce batterers' attempts to intimidate or retaliate against victims to keep them from proceeding. 6 6 Finally, no-drop policies would make it clear that the justice system takes domestic violence seriously and treats it as a crime. 67 No-drop prosecution policies generally fall into two categories: "hard" and "soft."' Hard no-drop policies require prosecutors to pursue criminal domestic violence cases regardless of the victim's wishes or even if the victim recants. Some hard no-drop policies even require victims to testify by issuing subpoenas or other measures. 69 Soft no-drop policies encourage prosecution and victim participation, but allow prosecutors more discretion regarding whether to pursue a case and, if they do pursue the case, the extent of victim participation to require. 7 " Even under a soft no-drop policy, however, the decision to proceed with a case remains with the prosecutor, not the victim. 71 Efforts to enhance criminal protections for victims of domestic violence culminated in the passage of the Violence Against Women Act of 1994 ("VAWA"), which made some acts of domestic violence federal crimes. 7 2 Feminist advocates played a major role in crafting VAWA. They prioritized using federal funds to influence state legal systems and make state police, prosecutors, and judges responsive to the needs of women subjected to abuse. Accordingly, VAWA required that states certify that they had either pro- or mandatory-arrest policies to be eligible for funding under the "Grants To Arrest" 65. Id. at 111; see also Murphy, supra note 40, at 503 (noting that, "[hieavy reliance on the coercive power of the state's criminal laws as a response to domestic violence has been controversial from the start"). 66. Sack, supra note 29, at Id.; see also Hafemeister, supra note 43, at ("Proponents of a no-drop prosecution policy argue that prosecution should continue regardless of the victim's desire or willingness to cooperate, as 'domestic violence should be considered as a crime against the public order of the state,' and that without punishment, these batterers are likely to strike again, towards either the same victim or another"). 68. Hafemeister, supra note 43, at Id. at Id. 71. Id. 72. Id. at

14 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 program. 73 "Where before there had been laws, now there were laws and money, and battered women's advocates hoped that the combination of the two would finally make the legal system react." 7 4 "Today, every state has some form of pro-arrest policy for domestic violence cases." 75 These policies have resulted in a sharp increase in the number of arrests for domestic violence. 76 As Professor Leigh Goodmark has remarked, domestic violence remedies are primarily "intended to make separation safe." 77 The law's reliance on "separation-based remedies" reflects the view that all women subjected to violence in the home should want to separate and that the relationship cannot be supported or improved." The policy was driven by its theoretical underpinning: domestic violence is based on patriarchal systems of male power. According to Leigh Goodmark, these remedies focus on separation "[biecause an abusive man may equate separation with an assertion of independence by his partner, and may respond violently in seeking to regain control." 79 At the same time as advocates pursued these separation-based remedies, they also sought to prevent the use of mediation in domestic violence matters. Advocates have expressed a number of concerns about the value of mediation in these cases. Advocates argue, first, that women should not have to negotiate for their safety, and second, that mediation is improper when, as in domestic violence cases, the parties come to the table with unequal bargaining power. 0 Accordingly, many family courts specifically preclude mediation where there is a history of domestic violence. Additionally, advocates have continued to express concern that 73. Goodmark, supra note 32, at 110; see also Suk, supra note 30, at 6 n.7 (finding that VAWA epitomizes the symbolic recognition of domestic violence as a public issue). 74. Goodmark, supra note 32, at 19. "Congress first passed the Violence Against Women Act (VAWA) in 1994 and has reauthorized it many times to fund a wide range of legal, educational, and service programs to assist battered women." Schneider, supra note 19, at Goodmark, supra note 32, at Sack, supra note 29, at Goodmark, supra note 32, at See id. at 83 (arguing that "[1]eaving is thought to be every woman's goal"). 79. Id. at See, e.g., Schneider, supra note 1, at 85 (discussing the view that responses to domestic violence not involving explicit confrontation are not forms of resistance); Schneider, supra note 19, at 360 (arguing that "parents simply cannot work together when there is a history of violence").

15 2014] Coercive Feminism mediators, even in ordinary cases, are not trained or sensitive enough to recognize signs of abuse and apply these protocols in a thoughtful way." 1 The clear message from advocates has been to prevent the mediation of domestic violence cases. By working with the state, the battered women's movement was able to radically transform the legal landscape. 2 "Feminist legal theory provided the framework for constructing the legal response, while feminist political power enabled advocates to persuade lawmakers to adopt new laws and policies on domestic violence." 3 As a result of these efforts, the law moved steadily in the direction of criminalization and enforcement mechanisms that removed discretion from the system and prevented women from declining the state's protection or intervention. 4 The result was a remarkable transformation of the legal landscape and "popular consciousness." 5 As discussed further, this alliance between the state and battered women's advocates has been called everything from "unlikely" to "harmful." 6 But looking back, few would dispute the sheer scope of what this alliance achieved: the rapid, comprehensive rethinking of violence against women. B. The Global Domestic Violence Movement In the wake of the American movement, a transnational feminist movement advanced a global campaign to address domestic violence. Much like the American movement, the international human rights campaign against domestic violence has been framed in 81. Schneider, supra note 19, at See, e.g., Aya Gruber, A "Neo-Feminist" Assessment of Rape and Domestic Violence Law Reform, 15 J. Gender Race & Just. 583, 587 (2012) ("In the domestic violence context, reformers' achievements include extensive adoption of mandatory arrest laws and pro-prosecution policies Goodmark, supra note 32, at See id. at 107 (discussing how "[b]oth the criminal and civil systems enforce policies that purport to protect women by removing not only the system's ability to choose to protect, but also the woman's ability to decline the state's protection or intervention"). 85. Bumiller, supra note 19, at Sack, supra note 29, at See Bumiller, supra note 19, at 14 (noting that "the sexual violence agenda is being exported abroad and used instrumentally as part of American human rights policy"); see also Merry, supra note 8, at 24 (explaining the rise of "grass roots feminist movements" in Europe, the United States, Australia, Argentina, Brazil, India, the Virgin Islands, and elsewhere).

16 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 terms of male power and patriarchy." 8 And like the American movement, the international campaign has focused on criminalization. Gender violence was not a major issue in the 1975 and 1980 global women's conferences. 8 9 The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) did not even mention violence against women. 9 But by the 1980s, global NGOs were increasingly pushing for the inclusion of violence against women 9 ' as a human rights issue. 92 By the 1993 U.N. Conference on Human Rights in Vienna, global activism by women's NGOs had cemented attention on the issue of violence against women. 93 The Vienna Declaration specifically called for the drafting of a new declaration on the elimination of violence against women and the appointment of a Special Rapporteur on violence against women. 94 The Commission on the Status of Women developed the Declaration on the Elimination of Violence Against Women in 1993, and the U.N. General Assembly adopted it unanimously. 9 " Although the declaration has no binding legal force, it represents a significant global consensus that domestic violence should be treated as a human rights concern. 96 Soon after Vienna, the issue of domestic violence and human rights was revisited in the 1995 Platform for Action of the 88. E.g., Rebecca Adams, Violence Against Women and International Law: The Fundamental Right to State Protection from Domestic Violence, 20 N.Y. Int'l L. Rev. 57, 64 (2007) (writing that the foundation underlying the "universal phenomenon" of domestic violence throughout the world is the uneven power dynamic between men and women). 89. Merry, supra note 8, at Id.; see also Lee Hasselbacher, State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, and International Legal Minimums of Protection, 8 Nw. J. Int'l Hum. Rts. 190, 193 (2010) ("CEDAW did not explicitly address the issue of violence against women"). However, General Recommendation 19 of the CEDAW Committee of 1992 interpreted the term "discrimination" to include gender based violence. Id. 91. Violence against women is a larger umbrella that encompasses domestic violence, but also includes state violence, and issues like prostitution. See generally Schneider, supra, note 1 (discussing the emergence of the term "domestic violence" in the legal vocabulary as a descriptor for violence against women by intimate partners). 92. Merry, supra note 8, at Id. at Id. at Id. 96. Id.

17 2014] Coercive Feminism Fourth World Conference on Women in Beijing. 97 The Beijing Platform included a specific section on Gender Violence, signaling the growing importance of violence as a human rights concern. 9 " Much like the American system, at this early stage the issue of violence against women was framed in terms of gender inequality. For example, the Declaration on the Elimination of Violence Against Women (and later the Bejing Platform) begins with: Recognizing that violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men. 99 By rooting the cause of domestic violence in gender inequality and male power, the international treatment of the issue largely echoed the Western feminist conceptualization. Although the global movement did not initially privilege any one type of response, human rights instruments eventually zeroed in on the criminalization of domestic violence. The early language of international instruments focused on punishment, but there was no requirement that states use criminal law as the primary tool to address violence against women. For example, the 1993 Declaration on the Elimination of Violence Against Women recommended that states should "[dlevelop penal, civil, labour and administrative sanctions in domestic legislation to punish and redress the wrongs caused to women who are subjected to violence." 1 " 1 Although these 97. Fourth World Conference on Women, Beijing, China, Sept. 4-15, 1995, Report of the Fourth World Conference on Women, U.N. Doc. AICONF. 177/20/Rev 1 (1996), at Ihereinafter Beijing Platform for Action]. 98. Id. 99. Id. Likewise, scholars who advocate for a human rights approach to domestic violence write that "[a] binding characteristic of communities throughout the world, almost without exception, is the battering of women by men," and that "[t]he commonality lies in the uneven power dynamic, and gender inequality." Adams, supra note 88, at For example, the Committee on the Elimination of Discrimination against Women (CEDAW) issued General Recommendation No. 19 (lth session, 1992), recommended 23 steps states should take to eliminate violence against women including: "[ciriminal penalties where necessary and civil remedies in cases of domestic violence." Goldscheid, supra note 55, at Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, art. 4(d), U.N. Doc. A/RES/48/104 (Dec. 20, 1993); see also Beijing

18 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 early efforts did not mandate a criminal law response, documents from within the U.N. system reflect a rapidly emerging preference for addressing domestic violence through the local criminal justice apparatus. ' 2 In 1994, the U.N. Commission on Human Rights (CHR) adopted a resolution for "integrating the rights of women into the human rights mechanisms of the United Nations and the elimination of violence against women," appointing a Special Rapporteur on violence against women, its causes, and consequences. 3 One of the first acts of the Special Rapporteur was to create model legislation prohibiting domestic violence. In 1996, the Special Rapporteur created the first model framework for legislation, which outlined "important elements which are integral to comprehensive legislation on domestic violence.' 0 4 The first framework provides specific terms to be included in future domestic violence legislation. The sole focus of this first model legislation is penal. The 1996 Model Framework begins by providing systems for contacting police and moves on to the details of a police investigation.' 5 In addition, the framework provides detailed procedures for obtaining an ex parte restraining order and permits a wide variety of people to seek a restraining order on behalf of a woman, including relatives and welfare workers.' The model legislation is both specific and expansive. For example, the model dictates that, "[d]uring the trial Platform for Action, supra note 97, at 124 (containing an almost identical recommendation) Declaration on the Elimination of Violence Against Women, supra note 101, at art. 4(d); Beijing Platform for Action, supra note 97, at The United Nations Special Rapporteur on Violence Against Women, Its Causes and Consequences, 15 Years of the United Nations Special Rapporteur on Violence Against Women, Its Causes and Consequences (2009), Women/l5YearReviewofVAWMandate.pdf Special Rapporteur on Violence Against Women, its Causes and Consequences, A Framework for Model Legislation on Domestic Violence, U.N. Doc. E/CN.4/1996/53/Add.2 (1996) (noting that one of the purposes of the framework was to "(c) Recognize that domestic violence constitutes a serious crime against the individual and society which will not be excused or tolerated..." and, further noting that: "States should not permit religious or cultural practices to form an impediment to offering all women this protection") For example, the framework requires the police to respond to every call, and if need be, "arrange for the removal of the offender from the home and, if that is not possible and if the victim is in continuing danger, arrest the offender." Id. at Special Rapporteur on Violence Against Women, its Causes and Consequences, supra note 104, at

19 2014] Coercive Feminism phase, the defendant accused of domestic violence shall have no unsupervised contact with the plaintiff."' 7 Where a protection order is sought, the model framework shifts the burden of proof to the accused to demonstrate that abuse did not take place." 0 ' Under the model legislation, compliance with protection orders is monitored by the police and courts." 0 9 The framework further encourages both prosecuting attorneys and judges to go forward on all cases of domestic violence. 110 Since 1996, the U.N. General Assembly has regularly passed resolutions calling for an intensification of efforts to combat domestic violence including resolutions that stress the need to treat all forms of violence against women and girls as a criminal offence punishable by law."' These resolutions highlight states' obligations to exercise due diligence to prevent, investigate, and punish perpetrators of violence against women and girls. At the conclusion of the Beijing +5 special session at the United Nations in 2000, the outcome document formally called for the criminalization of violence against women. 12 ' Today there is a consensus, at least in the U.N. General Assembly, about the causes of and proper responses to violence against women. As in the United States, the prevailing view is that domestic violence is caused by unequal power between men and women and must be remedied by criminal law enforcement. The global campaign "has been overwhelmingly successful in translating very specific violations experienced by individual women into a more general human rights discourse."" 3 Notably, the process of generating these norms is not entirely democratic, nor are the participants in the debate necessarily representative." But, once some level of 107. Id. at Id. at Id. at Id Merry, supra note 8, at G.A. Res. S-23/3, 69(c), U.N. Doc. A/RES/S-23/3 (June 10, 2000) (governments shall "treat all forms of violence against women and girls of all ages as a criminal offence punishable by law, including violence based on all forms of discrimination") Ratna Kapur, The Tragedy of Victimization Rhetoric: Resurrecting the "Native" Subject in International/post-Colonial Feminist Legal Politics, 15 Harv. Hum. Rts. J. 1, 5 (2002) Anthropologist Sally Engle Merry has studied the transnational feminist movement and the growth of international domestic violence policy. Her focus was on the process of transnational consensus building as global actors create human rights law. According to Merry, these human rights processes are crafted by "transnational cosmopolitan elites: people who have studied and lived

20 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 consensus developed, various agencies within the United Nations embraced the mandate that violence against women, including domestic violence, is a human rights issue. Today, the issue of violence against women, which includes domestic violence, is the central feature of the international women's rights movement. 115 Some limits on the impact of this global human rights movement are well known. Scholars and activists have readily acknowledged that globally recognized human rights may be of little practical value if states do not incorporate the international norms into the local law and culture. 1 Therefore, the message from the U.N. system, together with many others, has been that "diminishing violence against women requires cultural transformation." 7 Much work in the area of domestic violence law has been directed at better understanding how to transform the mindset of nation states and local communities around the world such that they accept international norms prohibiting violence against women. 1 One such in different countries are fluent in more than one language, travel often, attend international meetings and understand their own sociocultural world within the context of a transnational society." Merry, supra note 8, at 101. The culture of this global space is an "English-speaking, largely secular, universalistic, law-governed culture..." Id. at According to Professor Kapur, "[tihe women's rights movement at the international and regional level, as well as official recognition of women's rights, appear to have focused primarily on the issue of violence against women and their victimization in this context." Kapur, supra note 113, at 'In international human rights meetings, culture refers to traditions and customs: ways of doing things that are justified by the roots in the past. There is a whiff of the notion of the primitive about this usage of the term culture." Merry, supra note 8, at 2-3, 10; see also Sujata Gadkar-Wilcox, Intersectionality and the Under-Enforcement of Domestic Violence Laws in India, 15 U. Pa. J.L. & Soc. Change 455, 457 (2012) (recognizing that the intersection of gender and class discrimination is at the heart of the problem of domestic violence is a necessary step to solving the problem of the lack of enforcement of laws criminalizing gender-based violence) Merry, supra note 8, at See, e.g., Sonja K. Hardenbrook, The Good, Bad, and Unintended: American Lessons for Cambodia's Effort Against Domestic Violence, 12 Pac. Rim L. & Poly J. 721, (2003) (noting that proposed domestic violence laws in Cambodia are "unlikely to be enforced even if adopted due to prevailing social attitudes", and calling for lessons to be drawn from efforts in the United States and internationally); Adams, supra note 88, at 58 (noting that "[a]lthough domestic legal systems can-and should-be used to combat the problem, differences in the relative health and structure of respective legal systems and variations in the cultural and religious underpinnings in each country, require a tailored approach").

21 2014] Coercive Feminism effort was the creation of updated model legislation on violence against women. C. Model Legislation and Recent Global Domestic Violence Priorities Given the background, it is not surprising that when UN Women, the United Nations organization focused on gender equality and the empowerment of women, set about drafting model legislation, they adopted an explicitly dominance feminist approach and sought criminal law enforcement. According to one report by UN Women, the primary purposes of domestic violence legislation are to ensure that states "a) comply with international standards sanctioning 119 domestic violence b) recognize that domestic violence is gender-specific violence directed against women, and c) recognize that domestic violence constitutes a serious crime against the individual and society, which will not be excused or tolerated." 2 ' In other words, according to UN Women all domestic violence legislation should comply with international standards, which require accepting a dominance feminist framework and treating domestic violence as a crime. In 2006, the U.N. Secretary General conducted an in-depth study of all forms of violence against women, including domestic violence. 2 ' The report concluded that criminalizing domestic violence is the duty of all states. 122 In light of the differences between states, however, the report did not adopt any particular "best" practices, preferring to note "good" practices that had developed around the world. 23 Some generic good practices included "strong enforcement mechanisms. When the report did engage with specifics, it noted that "[vligorous arrest and prosecution policies make a statement to society as a whole that violence against women is a serious crime that 119. Here "sanctioning" is used to mean "prohibiting," rather than "giving permission." 120. Implementation Report, supra note 18, at See generally U.N., In-depth Study, supra note 17, at (explaining forms of violence against women within the family) Id. at 367 (noting that "[sitates have a duty to prevent acts of violence against women; to investigate such acts when they occur and prosecute and punish perpetrators; and to provide redress and relief to the victims") Id. at 285 (noting that since it was difficult to "identify best practices" the study utilized "the more qualified characterization of'promising' or 'good' practice) Id. at 287.

22 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 is not condoned by the authorities." 125 Therefore, the report noted, measures that enhance women's access to justice, including "timely arrests, effective proceedings and punishments are good practice."126 In February of 2008, the Secretary General of the United Nations, Ban Ki-Moon, launched a campaign entitled UNiTE to End Violence Against Women. 127 The campaign was meant to last from 2008 to 2015, with the goal of eliminating violence against women. 128 One of the five priorities announced as part of the campaign was the "adoption and enforcement of national laws." 1 29 As a result, in May of 2008, the U.N. Division for the Advancement of Women convened an expert group to refine the 1996 model legislation. 3 Those recommendations were published and later included in the Handbook for Legislation.' The latest U.N. Model Framework is largely in keeping with the tenets of the General Assembly resolutions and the past framework. The Model Framework views domestic violence as a form of gender-based violence."1 2 The framework demands criminalization and punishment of domestic violence."' The framework relies heavily on legal measures such as civil protection orders, which trigger criminal penalties if violated."' Importantly, the framework relies on both mandatory arrest and "no-drop" prosecution policies."' Both the Model Framework and the handbook call for an outright prohibition on mediation, noting that "[1legislation should: [e]xplicitly prohibit mediation in all cases of violence against women, both before and 125. Id. at Id. at 305. A subsequent review of Southeast Asian domestic violence legislation notes that: "USA Violence Against Women Act of is a good practice in terms of a legislation providing funding to criminal law enforcement and various assistance programmes to survivors of domestic violence." Implementation Report, supra note 18, at xii U.N. Secretary General, About UNiTE, supra note Id UNiTE to End Violence Against Women, Framework for Action: Programme of United Nations Activities and Expected Outcomes, (2008), available at -framework-en.pdf Handbook for Legislation, supra note 9 at iii See generally id. (guidance from UNiTE on actions to take to end violence against women) Id. at Id. at Id. at 50 (noting that legislation should "[ciriminalize violations of protection orders") Id. at

23 20141 Coercive Feminism during legal proceedings." 136 And, although it recognizes that police response is often inadequate, the framework calls for expanding the role of law enforcement officers to assist survivors."' These central features of American and global domestic violence policy have been subject to criticism as discussed in Part III of this paper. Before broaching those criticisms, some footing in a non-western approach is necessary to make sense of the broad implications of these policy goals. III. LOCALIZING THE GLOBAL: THE CAMBODIAN "CASE" The United Nations is urging compliance with its model framework in capitals around the world. In order to fully explore the implications of the U.N. Model Framework, it is necessary to place it in a particular context. Without a view of the local, it is impossible to form any opinion on the merits of the various approaches. Therefore, this paper adopts Cambodia as a case study. Because Cambodia was the site of the United Nation's first peacekeeping mission, it holds a special place in development lore. For a great many years, Cambodia received an outsized amount of international aid and attention, and therefore offers a good case study of the impact of global human rights norms and the influence of the United Nations. It is further useful as a case study because domestic violence in Cambodia has been surprisingly well studied. Over a dozen studies have specifically looked at domestic violence in Cambodia. Of course, there are problems attendant on focusing on one relatively small country. On the one hand, choosing one country necessarily excludes the vast majority of the world. On the other, even focusing on Cambodia at the national level risks poorly representing its local diversity.13 The descriptions of this section 136. Id. at Id. at (recommending specific measures to be taken by police officers when responding to domestic violence complaints, including providing transport for the survivor to a medical facility, providing transport for the survivors' dependents, and protecting the reporter of the violence) For example, there exist meaningful differences between urban and rural communities; ethnic diversity (Khmer, Cham, and ethnic minority (e.g. Jarai, Thai, and Vietnamese)); differences among seaside, jungle, riverfront, and hillside communities; questions of skin color, Chinese heritage, and class; various religions (including Theravada Buddhism and Islam); types of employment (merchants, farmers, and garment factory workers); age and conflict history (those who survived the Khmer Rouge, those who fled, those who were born in refugee camps, and the many younger people who never experienced that period); differences in literacy rates; etc. There is no monolithic Cambodian experience.

24 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 primarily capture the experience of the majority Khmer, who are Theravada Buddhist and who live in semi-rural areas, mostly villages and communes, that are at least partially supported by rice production and accessible by road. While the account contained here is not offered as typical or representative, it is hoped that it will add an important and underrepresented voice to the international dialogue on domestic violence and will help lead to an improved global domestic violence policy that benefits all members of the international community. The case study explored below offers several observations. Cambodia's unique history, including a history with a radical communist regime that sought (among other things) total economic and gender equality, presents unique challenges for a human rights model founded on principles of equality. Cambodia's experience with a destructive American bombing campaign influences the weight afforded to global good practices. Finally, Cambodia's frustration with the more than thirty-year reign of Hun Sen's authoritarian government sheds light on interventions aimed at increasing state power. A. Some Background Cambodian History and Culture Cambodia has a long history of foreign involvement. Cambodia became a French protectorate in the mid-nineteenth century, was briefly occupied by the Japanese around World War II, and gained independence from the French in In the 1950s, Cambodia was mainly controlled by its king, Samdeach Norodom Sihanouk. However, as the United States became involved in the civil war in neighboring Vietnam, Cambodia was increasingly pulled into the conflict. 139 The American government never formally declared war on Cambodia, but during the Vietnam War the United States dropped more bombs on Cambodia than all of the allied forces used during WWII. 14 About 2,756,941 tons of bombs were dropped on 113,716 sites in Cambodia One result of this campaign was to facilitate the 139. See generally William Shawcross, Sideshow (1980) (detailing American policy in Indo-China during the Vietnam War); Elizabeth Becker, When The War Was Over (1986) (examining Cambodian history from the era of French colonialism to the 1980s) Henry Grabar, What the U.S. Bombing of Cambodia Tells Us About Obama's Drone Campaign, The Atlaritic (Feb. 14, 2013) Taylor Owen & Ben Kiernan, Bombs Over Cambodia, The Walrus, Oct. 2006, at 63, available at WalrusCambodiaBombing-OCT06.pdf.

25 20141 Coercive Feminism rise of the Khmer Rouge.' 42 Cambodian revolutionaries, led by Pol Pot, took advantage of the destabilization and resentment caused by the regional conflict, mobilized a communist resistance, and eventually took the capital city, Phnom Penh, in Cambodians refer to the period that followed as the regime of three years, eight months and twenty days. During that time, more than a million people died-estimates range widely, from 1.7 million to 3.3 million people. Many died from overwork and starvation and others died in the notoriously horrific prison camps and "killing fields."'" The Khmer Rouge pursued a policy of radical, agrarian communism in which all people were required to toil equally in the fields, marriages were arranged, and access to the world outside of Cambodia was strictly prohibited. 45 Eventually, in 1979, the Khmer Rouge were pushed out of Phnom Penh by Cambodian fighters who fled and returned with the support of Vietnamese forces.' 46 Those rebel forces were able to drive the Khmer Rouge to the remote northern portions of the country.)" But, despite the initial victories, the war continued on and off for decades. For many of those early years, the United Nations continued to recognize the Khmer Rouge (cleverly renamed "Democratic Kampuchea") as the rightful government of Cambodia and sat the perpetrators of mass killing as national representatives in the U.N. General Assembly. 14 Eventually, a treaty to end the war was 142. Id. at Id. at 68. See also Shawcross, supra note 139, at , (detailing the rise of the Khmer Rouge from 1970 to 1972 and its unsuccessful attack on Phnom Penh in 1973); William Shawcross, The Quality of Mercy 57 (1984) (discussing Vietnam's support of the Khmer Rouge and Cambodian revolutionaries); David P. Chandler, Brother Number One: A Political Biography of Pol Pot 167 (1992) (relating the United States' implementation of the "Nixon Doctrine" in Cambodia) Shawcross, supra note 139, at Becker, supra note 139, at Stephen J. Morris, Why Vietnam Invaded Cambodia: Political Culture and the Causes of War 220 (1999) Id. at Days after the capture of Phnom Penh, the U.N. Security Council met to discuss a resolution condemning Vietnam for invading Cambodia. The resolution was supported by the United States, France, and Britain, but was vetoed by the Soviet Union. In September 1979, the U.N. General Assembly voted to seat the Khmer Rouge faction (Democratic Kampuchea) at the U.N. The French government, the former colonial power in Cambodia, failed to win support for its compromise proposal of leaving the seat empty. Ironically, they affixed their signature to such significant human rights instruments as the 1973 Convention

26 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 proposed. According to the Paris Agreement, signed on October 23, 1991, the United Nations agreed to administer the country, disarm all factions, and hold a national election. 149 From 1992 to 1993, Cambodia was the site of the United Nations Transitional Authority for Cambodia (UNTAC) peacekeeping mission." 5 ' UNTAC was tasked with assuming all administrative authority over the country, holding an election, and then passing the reins to a newly democratically elected government."' "Cambodia was to be a showcase for development-an example of how the new global consensus around markets and liberal democracies could be used to put a small conflict-ridden country on the road to recovery."" 5 2 Yet UNTAC did not achieve many aspects of its mission. It did not disarm the various military factions, and skirmishes with the Khmer Rouge outposts continued. While UNTAC did succeed in conducting a nationwide election-and, despite concerns about possible violence, Cambodians went to the polls in extraordinary numbers-the victorious party did not get the opportunity to govern the country. The United Nations brokered a power-sharing agreement that allowed the Cambodian People's Party (CPP) and the victorious party (FUNCINPEC) to "co-govern." 1 53 As time went on, the CPP slowly pushed out its "partner," and the CPP leader, Hun Sen, remains the Prime Minister of Cambodia to this day. Perhaps because it was the site of one of the first ever United Nations peacekeeping missions, since the mid-1990s Cambodia has received a disproportionately large amount of development aid.' 54 on the Suppression and Punishment of the Crime of Apartheid. Evan Gottesman, Cambodia After the Khmer Rouge (2003) Id. at Cambodia-UNTAC Background: Summary, United Nations, (last visited Oct. 23, 2014) See id. (summarizing the establishment of UNTAC) Daniel Adler & Michael Woolcock, Justice Without the Rule of Law? The Challenge of Rights-Based Industrial Relations in Contemporary Cambodia, 2 Just. & Dev. Working Paper Series, no. 2, 2009, at 164, Sopheng Cheang, Cambodian Opposition Challenges Election, Associated Press, July 29, 2013, available at Cambodia has at times received more development aid, measured as a percentage of the nation's GDP, than any other country. In the early part of this century, about twelve percent of Cambodia's gross national income was foreign development aid. That number is down to about six percent now. Org. for Econ. Co-operation & Dev., Cambodia Aid Statistics, (last visited Sept. 28,

27 2014] Coercive Feminism According to the World Bank, from 1998 to 2004, Cambodia received more than US$3.4 billion in aid, or an annual average of thirty-three U.S. dollars per capita.' 5 5 By comparison, the annual average for a "low-income country under stress" during that period was US$18.4 per capita.156 Coming out of the UNTAC period, Cambodia was heavily donor-dependent, which in turn resulted in the formal adoption of a range of international human rights instruments." 7 But law reform has not corresponded to actual change on the ground. 5 ' Cambodia has ratified nearly every international human rights treaty but maintains a very poor human rights record. Today, the country is nominally a constitutional monarchy, but in practice it is entirely run by the Cambodian People's Party, headed by Prime Minister Hun Sen. Despite the formal establishment of a range of liberal democratic institutions, "real power continues to be exercised through entrenched patronage networks that have developed around the ruling Cambodian People's Party." 5 9 The current structure of power is responsible for large-scale corruption. The ruling elites have little interest in independent courts or other institutions that challenge their grip on power. 6 Demographically, the population remains largely rural (80.5%) and most Cambodians earn a living from agriculture.' 6 ' Cities, however, are growing rapidly. Tourism (mostly to Angkor Wat) and the garment sector, which largely employs women, remain the 2014). The U.S. is one of Cambodia's largest donors and official U.S. assistance amounted to over $75 million in 2011, up from $36 million in Foreign investment in Cambodia has increased significantly since 2004 led by Asian investors from countries such as Malaysia, China, Korea, Thailand, and Vietnam. World Bank Independent Evaluation Group, Cambodia: Country Assistance Evaluation (2006), /cambodia-cae-ap.pdf [hereinafter World Bank Evaluation] World Bank Evaluation, supra note 154, at Id Adler & Woolcock, supra note 152, at Id Id. at 167. Typical of Southeast Asia, relationships within the government are organized according to "patron-client relationships." See generally James C. Scott, Patron-Client Politics and Political Change in Southeast Asia, 66 Am. Pol. Sci. Rev. 91 (1972) (applying the parent-client model to politics in Southeast Asia) Adler & Woolcock, supra note 152, at Asian Dev. Bank, Cambodia Gender Analysis 2 (2012), available at [hereinafter ADB Gender Assessment

28 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 fastest growing segments of the economy. As a result of the nation's violent history, the majority of the population is under thirty years of age, and the country is rapidly changing as many of the young people born after the Khmer Rouge period come of age. On December 29, 2013, 100,000 Cambodians, garment workers, teachers, farmers, and students from all over the country took to the streets in open defiance of Prime Minister Hun Sen It was the largest demonstration in recent Cambodian history. The demonstration primarily concerned the flawed elections held in July 2013, which opposition party members claim were invalid. B. The Status of Women in Cambodia One can easily paint a bleak picture of the status of women in Cambodia.' 63 Most Cambodians live in poverty, and women perform agricultural or other work in addition to domestic work, childbearing and childcare.' 64 Prevailing attitudes encourage adherence to traditional gender roles. Informal Cambodian codes of conduct for women, the chbap srei, are sharply restrictive. For example, chbap srei suggest that a woman show her conciliatory nature by remaining silent, that a woman "show her inferiority" to her husband and avoid "posing as his equal," and that, even if a husband says something bad, a woman must still listen. 6 ' Studies show that Cambodian men and women agree that women should stay home and take care of their children.' 6 6 Yet, studies also show that women exercise "considerable autonomy and independence."' 6 7 Cambodian women participate in the labor force at a rate of eighty-two percent, the highest in Southeast 162. One member of the opposition wrote in the New York Times that Hun Sen would "rather draw blood" than enact real reform. Mu Sochua, Op-Ed, Crackdown in Cambodia, N.Y. Times, Jan. 8, See U.N. Dev. Programme, The Community Conversations Project: Baseline Survey Report Baseline Survey Report 2-4 (May 2008) [hereinafter Community Conversations: Baseline Survey Report] (conducting a domestic violence survey with respondents from Kompong Speu, Kompong Chhang, and Siem Reap provinces) Id. at Ramage et al., supra note 21, Annex E.g. Brickell et al., supra note 26, at 16 (finding that eighty-one percent of women and seventy-five percent of men polled in Cambodia thought that women should stay at home taking care of their husband and children) ADB Gender Assessment 2012, supra note 161, at 2.

29 2014] Coercive Feminism Asia. 6 ' More than sixty percent of women are farmers, and they are responsible for more than eighty percent of food production Women also work in garment factories and sell goods in the markets.' 7 In one study, ninety-nine percent of Cambodian women said that they either controlled their earnings alone or jointly with their husbands. 7 ' Moreover, a majority of women (though only about twenty-seven percent of men) reported that they, not their husbands, mainly decide how their husband's earnings are spent.' 72 Other measures of autonomy are equally promising. Survey data shows that Cambodian women are typically involved in decisions about their families, including whether to make a major purchase or whether to travel to visit relatives: ninety-four percent of women say they participate in decisions about major household purchases, while ninety-five percent say they participate in decisions about visits to their family or relatives.' 7 3 Further, the gender division of labor in Cambodia can be both complementary and flexible, with men and women performing a range of household tasks.' 74 Women have a presence in Cambodian political life as well. In 2008, women made up twenty-two percent of the Cambodian Parliament.' 75 By comparison, 168. Community Conversations: Baseline Survey Report, supra note 163, at 3; see also Cambodian Ministry of the Interior, et al., Cambodia: Demographic and Health Survey, [hereinafter CDHS] (examining the percent of currently married women age were employed at the time of the survey or within the twelve months preceding the survey) Community Conversations: Baseline Survey Report, supra note 163, at See id. at 3 (listing the garment industry and trading as among the employment options open to women) CDHS, supra note 168, at 200 (finding that sixty-eight percent of married women who are employed say that they mainly control their cash earnings, thirty-one percent say that they and jointly control their earnings with their husbands, and one percent say that their husbands mainly control their earnings) See id. at 200 (demonstrating that about 27 percent of men and about 55 percent of women say that the wife mainly decides how the husband's earnings are used) Id. at ADB Gender Assessment 2012, supra note 161, at Id. at 3; see also Sithi.org, Map of Female Candidates for 2013 National Assembly Election, /nelection.php#.uwkkhbjtkiq (last visited Sept. 14, 2014) (noting that out of 1898 titular and alternative candidates for Cambodia's 2013 National Assembly Election, 428 were women).

30 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 in 2014 women made up only 18.5% of the United States House of Representatives and twenty percent of the United States Senate.' 7 6 Domestic violence in Cambodia has been well studied.' 7 7 Three new studies of domestic violence in Cambodia were published 176. Center for American Women and Politics, Women in the U.S. Congress 2014, facts/levels-of office/documents/cong.pdf (last visited Sept. 25, 2014) There are at least thirteen studies on the subject. See, e.g., Ramage et al., supra note 21 (studying local reconciliation processes in connection to domestic violence in the Siem Reap and Battambang provinces); Community Conversations: Baseline Survey Report, supra note 163 (studying perspectives on domestic violence and remedial actions taken by villagers in the Kompong Speu, Kompong Chhang, and Siem Reap provinces); Brickell et al., supra note 26 (studying the gap between domestic violence legislation in Cambodia and increased women's rights); ADB Gender Assessment 2012, supra note 161 (studying the status and future outlook of Cambodian gender equality); So Sokbunthoeun, Kim Sedara & Doung Virorth, Partners for Prevention, Exploring the Implementation of Policies to Address Violence Against Women in Cambodia (Partners for Prevention, Working Paper), available at [hereinafter Partners for Prevention] (studying the implementation of violence against women public policy in Cambodia); Clara Magarino Manero & Manuela Popovici, Partners for Prevention, Making a Difference: An Assessment of Volunteer Interventions Addressing Gender-based Violence in Cambodia, (2010) [hereinafter Making a Difference] (studying the effect of volunteerism in interventions preventing gender-based violence in Cambodia); Ministry of Women's Affairs, VAWA Baseline Survey (2005) (studying attitudes on the prevalence of violence against women in thirteen Cambodian provinces); Ministry of Women's Affairs, Violence Against Women 2009 Follow-Up Survey (2009) [hereinafter UNDP 2009 Follow- Up Survey] (studying the differences in Cambodian perspectives on violence against women across various subgroups); Emma Fulu et al., UNDP et al., Why Do Some Men Use Violence Against Women and How Can We Prevent It?: United Nations Multi-Country Study of Men and Violence in Asia and the Pacific (2013) [hereinafter Multi-Country Study] (studying various forms of violence against women in six countries in the Asia-Pacific region); GTZ (Deutsche Gesellschaft Fur Technische Zusammenarbeit) et al., Gender Based Violence and HIV? AIDS in Cambodia: Links, Opportunities and Potential Responses, (2005) (studying the contribution of gender-based violence to Cambodian HIV infection rates); The World Bank, A Fair Share for Women: Cambodia Gender Assessmen, (2004) (studying the status, trends, and issues relating to domestic violence in the context of Cambodian women's rights); Kim Ninh & Roger Henke, Commune Councils In Cambodia: A National Survey on their Functions and Performance, with a Special Focus on Conflict Resolution 11 (2005) (studying the effect of Cambodian commune councils on resolving conflicts related to domestic violence); UNDP et al., Feasibility Study on the Establishment of Justice of the Peace (2007) (studying the possible effects of local legal authorities on afflicted subgroups, including domestic violence victims).

31 20141 Coercive Feminism in 2013 alone. Although previous studies concluded that approximately one in four Cambodian women have experienced some form of physical violence in their home during their lives, more recent studies show the incidence rate has declined to one in ten women. 178 Several studies have demonstrated that, according to Cambodians, drunkenness is the most common immediate cause of domestic violence, along with a lack of money, unemployment, jealousy, and gambling. 179 One study reported that domestic violence is higher in marriages where the wife gambles. is Studies show there is a sharply gendered perception of domestic violence, with women tending to justify domestic violence more than men. One study asked if a husband is justified for beating his wife if: the wife burns the food; the wife argues with him; the wife goes out without telling him; the wife neglects the children; the wife refuses to have sex with him; or the wife asks him to use a condom. 8 Nearly half of the women studied, forty-six percent, believe that a husband is justified in beating his wife for at least one of the six specified reasons. But fewer men, only twenty-two percent, believe that a husband is justified in beating his wife for one of the specified reasons Brickell et al., supra note 26, at See Community Conversations: Baseline Survey Report, supra note 163, at 1, 6 (finding that more than 60% of Cambodians named drunkenness as the primary cause of domestic violence, while lack of money, jealousy, and gambling were also widely named as significant causes); see also Multi-Country Study, supra note 177, at 72 (finding that Cambodian men who had alcohol abuse problems were more likely to have committed acts of domestic violence) Safer Communities, supra note 22, at CDHS, supra note 168, at Id. The study found that overall, women in rural areas, those with no schooling or a primary school education, and those in the lower wealth quintiles were more likely than other women to agree with at least one reason. Urban women, those living in Phnom Penh, those with a secondary education or higher, and those in the highest wealth quintile were least likely to agree with at least one specified reason that justifies wife beating. Id. Another study asked whether men are entitled to different rights than women: "15% of men said yes, whilst 20% of women said yes. 20% of higher income earners (over $200 US monthly) also indicated they felt men were entitled to different rights. On average across all respondents, a 4% increase in beliefs that men are entitled to more rights was recorded. Men's response rates in the affirmative increased by 8% and women's response rate in the negative increased by 2%. Compared to 2005, 9% more poorer respondents (income under $20 US monthly) felt men had more rights than women, whilst 7% more respondents indicated men did not have more rights than women. As long as a segment of the Cambodian population, especially women, feel that men are entitled to different rights than women, it will be difficult to address

32 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 Further, although not perfectly consistent, studies show that Cambodians take domestic violence seriously as a problem. When confronted with domestic violence people react with anger, outrage, and shock." 3 One study, conducted to assess the need for training on domestic violence, found that "people's different but strongly emotional reactions to reports of domestic violence in their villages show they understand it is wrong. "114 At the local level, authorities also appear to see domestic violence as a community concern. Most village and commune chiefs do not think that domestic violence is merely a family matter, although many people, and about half of Cambodian women, do believe that it is a family matter.' Cambodians perceive that domestic violence is decreasing.' People attribute this perceived reduction to training by NGOs and learning from posters and radio shows about the morality of domestic violence. 8 7 Local authorities, especially village- and commune-level authorities, have also played a part in resolving the problem.' C. The Formal Response to Domestic Violence Formally, the government in Cambodia has been very responsive to women's issues. The Cambodian constitution prohibits discrimination against women and provides that the state must give opportunities to women so that they have "decent living issues of equity and safety for female members of households." UNDP 2009 Follow-Up Survey, supra note 177, at Community Conversations: Baseline Survey Report, supra note 163, at Id.; but see Safer Communities, supra note 22, at 39 (arguing that villagers are not concerned with domestic violence outside of their families because domestic violence is seen as a household issue rather than a societal issue) Community Conversations: Baseline Survey Report, supra note 163, at 9; but see UNDP 2009 Follow-Up Survey, supra note 177 (noting that, "83% of men and 81% of women reported doing nothing when they knew about abuse") Safer Communities, supra note 22, at 39; UNDP 2009 Follow-Up Survey, supra note 177, at xvi. One study by Partners for Prevention noted: a "discernible pattern" that local government officials "tended to minimize the significance of violence." Partners for Prevention, supra note 177, at 18. For example, the study noted one village chief explained that violence within his village occurred repeatedly within two families, but that "violence in this village seems to have decreased because the family experiencing violence migrated to another place." Id. at Safer Communities, supra note 22, at Id.

33 20141 Coercive Feminism conditions." 8 9 Cambodia is a signatory to CEDAW and in 2004 adopted the "Declaration on the Elimination of Violence Against Women in the ASEAN REGION" (ASEAN DEVAW). 19 Cambodia enacted its domestic violence law in The domestic violence law was proposed by the Ministry of Women's Affairs and encouraged by donor nations. 191 Following its passage, concerted efforts were undertaken to educate Cambodians about the new law. 192 Finally, in 2009, the government began a "National Action Plan to Prevent Violence against Women," which aimed to: (1) raise public awareness and disseminate information on existing laws; (2) improve services for women who experience violence; (3) develop and improve policies and laws to enhance the criminal justice response to violence against women; and (4) strengthen the capacity of government officials.' 93 Criminalization of domestic violence in Cambodia differs somewhat from the Western ideal because Cambodia is a civil law jurisdiction modeled on the French system. The text of the Cambodian law, however, is strongly influenced by international domestic violence norms. 1 4 In keeping with international norms, the Cambodian law expands the number of people authorized to make a legal record of domestic violence. The law relies almost entirely on civil protection orders and criminal law enforcement. 9 5 It allows for something equivalent to a protective order, which prohibits further acts of domestic violence and the destruction of property, and includes a stay-away order or other legitimate measures that may be necessary to protect the safety of victims. The law clearly stresses the importance of prosecution and includes some no-drop policies. If the alleged crime is a misdemeanor, the law prohibits an initial prosecution if the victim objects. If the domestic violence is repeated, however, the law requires that prosecution go forward regardless of the victim's wishes. 9 6 The law charges "the nearest authorities" to urgently intervene and protect the victims. 97 Moreover, the law 189. Constitution of the Kingdom of Cambodia Sept. 21, 1993, arts. 45, 46(2) Declaration on the Elimination of Violence Against Women in the ASEAN Region, 3 7 th ASEAN Ministerial Meeting (June 30, 2004) Ramage et al., supra note 21, at Id. at Partners for Prevention, supra note 177, at Law on Domestic Violence, Act No. 0510/478, Sept. 29, 2005, art. 3 (Cambodia) Id. arts Id. art Id. art. 9.

34 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 allows for the "moving" of various persons by the authorities in charge: the perpetrator may be removed from the scene and the victim may be removed upon her request, or "in any special case the victim can be removed without a request if there is a necessary reason to do SO. "19s Despite many similarities, the Cambodian law is not a wholesale acceptance of every tenet of the international model. Rather, the text of the law itself is in dialogue with those international norms. Indeed, in discussing the adoption of these laws, one female Member of Parliament said that initial objections to the laws "were from both men and women in almost equal number. This is our cultural issue." 199 The parts of the international model that the Cambodian law accepts are those policies that tend towards increasing the power of the state. But, in other places, the law itself seems to condone domestic violence. The Cambodian law was adopted after the first model framework proposed by the U.N. Special Rapporteur on Domestic Violence, but before the most recent model framework. In 2009, in an effort to spread the word about their new model framework, UN Women published "an analysis for ASEAN countries based on international standards and good practices." 2 0 At that conference, and subsequently, the existing Cambodian law has come under criticism for its failure to live up to updated international norms. First, the report written by UN Women on ASEAN domestic violence laws condemned a clause in the Cambodian law that defines the purpose of the law as, in part, to preserve "the harmony within the households in line with the nation's good custom and tradition." 20 ' The UN Women report charges that, "the need for a law on domestic violence arises when the harmony of the family is already disturbed." 2 2 Accordingly, the report says, the law on domestic violence "must be directed at restoring a woman's autonomy and position of equality."" 2 3 In addition, the report charges that "[tihis 198. Id. art Partners for Prevention, supra note 177, at UN Women, Domestic Violence Legislation and its Implementation: An Analysis for ASEAN Countries Based on International Standards and Good Practices (2011) UN Women, supra note 200, at Id Id.

35 20141 Coercive Feminism formulation in the Cambodian law indicates an insufficient emphasis on domestic violence as a human rights violation."204 Second, the Cambodian law permits mediation, which the international model forbids. 2 "' In the Cambodian law, mediation is only available where both parties agree and where the harm alleged is mental or emotional rather than physical. 2 6 In such cases where mediation is permitted, the law allows parties to choose as arbitrators parents, relatives, Buddhist monks, elders, village chiefs, and commune officials to "preserve the harmony with the household in line with the nation's noble customs and traditions." 0 7 But the UN Women report charges that mediation is not good practice. The report praises the Indonesian and Philippine laws which make it clear that there ought to be counseling for the complainant, not mediation, in order to provide her a sense of security. 208 The third aspect of the law that is clearly out of sync with the international framework is the portion of the law that explicitly permits "discipline" of a spouse or a child. The law specifically carves out an exception for "advice or discipline of spouses or children aimed at maintaining traditional ways of living. '2 9 Interestingly, the law tries to situate this exception within a human rights framework. The law explicitly notes that discipline is only permitted provided it was done to encourage the person to follow "... the good ways of living.., and... conducted... in accordance with the principles of the United Nations Conventions on Human Rights and Child Rights...21 In light of the discrepancies between many national laws and the U.N. Model Framework, the United Nations has encouraged 204. Id Handbook for Legislation, supra note 9, at The law does not describe mental or emotional harms as domestic violence. Courts are also tasked with the duty to reconcile the parties, but are told not to put pressures on a party that refuses to go along. Law on Domestic Violence, Act No. 0510/478, Sept. 29, 2005, art. 27 (Cambodia). The Interior Ministry further issued a directive to local authorities on "safety policy" to "take action to eliminate any prostitute women and children trafficking, domestic violence in order to prevent security safety for citizens especially for women and children, away from trafficking, business labor, sexual trafficking, and violence." Safety Village Commune/Sangkat Policy Guideline, Ministry of Interior, Aug. 16, 2010, 2 (Cambodia) available at Law on Domestic Violence, preamble Implementation Report, supra note 18, at Law on Domestic Violence, art Id.

36 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 further law reform. In Southeast Asia, development agencies have devoted financial resources to continuing law reform in Cambodia. For example, in October 2008 a regional conference was held to "promote gender sensitive legislation and policy in line with CEDAW norms and standards, particularly eliminating domestic violence." 211 According to the UNIFEM sponsors, "[ilmplementation of these laws needs to be extensive, effective and continually monitored." 212 Therefore, to the extent that the Cambodian law differs from the international model, the international community continues to push for complete conformity. D. The Informal Response to Domestic Violence Studies show that domestic violence in Cambodia has declined since 2005, which would suggest that the domestic violence law has been effective. 213 In reality, however, the law is almost entirely ignored. Law enforcement is "extremely weak" and enforcement is further undermined by rampant corruption. 214 Cambodians do not typically rely on the police or courts to resolve issues of domestic violence. 2 5 The problem is not that people are unaware that the domestic violence law exists. In a 2009 study, ninety-five percent of men and ninety-one percent of women indicated they knew that Cambodia has a law against domestic violence Rather, "community trust and confidence in the police is very low." 2 1' CEDAW SEAP: Regional Activities, UN Women East and Southeast Asia Region, regionalprogramme.html#vligis (last visited Oct. 23, 2014) Id Brickell et al., supra note 26, at Community Conversations: Baseline Survey Report, supra note 163, at Ninh & Henke, supra note 177, at 45 (noting that in domestic conflicts "police are not part of the picture"). "Women were more likely to go to the commune authorities or village elders (14% of women compared to 9% of men responding to this question), followed by telling friends or relatives (11% of women compared to 8% of men). Only 2% of men and 4% of women reported going to the courts or police." UNDP 2009 Follow-Up Survey, supra note 177. Further, "52%-84% of local authorities and police proposed that a person could turn to the police to seek support in times of domestic crisis." Id. But 90%-100% of all authorities selected "seeking help from commune or village authorities as the best response in times of crisis." Id UNDP 2009 Follow-Up Survey, supra note 177, at 93. Another recent study found that 92% of men and 90% of women were aware of the law. Brickell et al., supra note 26, at Safer Communities, supra note 22, at 60.

37 2014] Coercive Feminism According to one study, every community studied reported instances in which the police extracted payments from community members during police interventions. 2 1 s The report also found a lack of gender sensitivity among the police. 219 One study found that in domestic violence cases, actions taken by the police to fine or arrest perpetrators did little to help the victim. Rather, police intervention placed an increased burden on women who had to pay money to have their husbands arrested and then later had to pay again to get their husbands back from the police. 22 There are some obvious logistic hurdles to policing domestic violence cases in Cambodia. Given the nature of rural life, the nearest police office is likely to be far from the village and accessible only by unpaved roads. Because the police force is highly centralized, some posts are left with no resources and are unable to perform their duties. 221 Many Cambodians fear traveling by road at night because of safety issues, and some very basic things, like an emergency phone system, are entirely absent Further, police response time is problematic as "understaffing hampers police efforts to respond in a timely and effective manner to meet people's needs." 22 Finally, there are effectively no domestic violence shelters for women outside of metropolitan areas, despite the fact that the vast majority of the population lives in rural communities. Further, Cambodian women "are extremely reluctant and even fearful to go to court." 224 According to one study, the main reason is the expense, but Cambodian women also report that the court process is difficult to understand and takes a long time. 22 This is not surprising since several studies have found that most rural people in 218. Id Id Id. at Id. at See, e.g., id. at 53 (discussing a pilot plan to provide police telephone numbers to local communities) Id. at Ramage et al., supra note 21, at 38. In 2005, the UN Special Representative of the Secretary-General for Human Rights in Cambodia wrote that, "[a]lthough the failure to bring to justice those responsible is often attributed to scarce resources and poor capacity within law enforcement institutions and to the absence of a well-functioning judiciary, the failure of these institutions to uphold the law can also be attributed to an accepted practice of impunity and collusion by police, military and security agencies." U.N. Special Representative of the Secretary-General for Human Rights in Cambodia, Continuing Patterns of Impunity in Cambodia 33 (2005) [hereinafter Continuing Patterns] Ramage et al., supra note 21, at 51.

38 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 Cambodia "do not participate in the cultural background of the formal legal system." 22 6 Likewise, Cambodians do not necessarily hold a worldview based on individual rights. 227 Interestingly, some Cambodian women say they do not want to go to court because they are worried that they will not have a chance to negotiate if they do SO. In light of these findings, the United Nations Development Programme (UNDP) in Cambodia recommends that "[elducational campaigns should be focused on advising citizens of the location of the nearest courts and the services offered by these courts and the Ministry of Justice (MoJ)." 229 ' In addition, "[t]he RGC [Royal Government of Cambodia] or international non-governmental organisations (INGOs) might consider developing financial resources to support private lawyers who are willing to take on pro bono work to support victims of DV." 230 But suggestions like these are not merely overly optimistic about the value of pro bono counsel. These suggestions also ignore another part of the story, which is that many Cambodians often prefer resolving disputes according to traditional methods. 23 ' Cambodia is a nation with ancient traditions, including a traditional system of resolving disputes known as somroh-somruel Those traditions of dispute resolution have proven to be extremely resilient. Even during the French colonial period, when cities had formal legal systems according to French norms, local authorities in the countryside managed dispute resolution according to Cambodian customs. 233 Traditional Cambodian dispute resolution has survived colonization by the French, the atrocities of the Khmer Rouge, an "invasion" by the Vietnamese, and UNTAC, which attempted to instill 226. See, e.g., U.N. Dev. Programme, Pathways to Justice: Access to Justice with a Focus on Poor, Women and Indigenous Peoples 2 (2005) [hereinafter Pathways to Justice] (studying legal and judicial reform in Cambodia) UNDP 2009 Follow-Up Survey, supra note 177, at (noting that "[wihen the survey asked respondents to name their most important rights as citizens, both freedom of speech and the right to live and survive were the only two rights recognized by at least half of the sample [whereas] rights which could help to prevent VAW were cited by very few of the respondents") Ramage et al., supra note 21, at UNDP 2009 Follow-up Survey, supra note 177, at Id Ramage et al., supra note 21, at Id.; Becker, supra note UNDP 2009 Follow-up Survey, supra note 177; Ramage et al., supra note 21, at 2.

39 2014l Coercive Feminism democracy and the rule of law. Despite an embattled history, dispute resolution in rural Cambodian villages today bears a remarkable resemblance to practices hundreds of years ago. 234 In Cambodia, domestic violence is often seen as an issue that impacts the entire community, not merely the family. Neighbors and village leaders play an important role in interventions. 235 Although many Cambodians believe that domestic violence is not an internal family matter, there is a strong emphasis on resolving domestic violence at the community level rather than involving people outside the village. 236 One survey found that somroh-somruel is sought in two out of three cases of domestic conflict. 237 The village is the smallest, most local political unit. A group of villages form a commune; a group of communes form a district; and a group of districts form a province. Courts are typically located in the provincial capital. Somroh-somruel dispute resolution takes place at the village and commune level, entirely outside the ambit of the court system. One UNDP report estimates that village chiefs manage about 54,776 conflicts (of all types) per year. 238 If the mediation is unsuccessful at the village level, the village chief will refer the issue to commune-level authorities for further assistance The UNDP 234. See, e.g., Fabienne Luco, UNESCO, Between a Tiger and a Crocodile, (E. Richarson trans. 2002), available at images/0015/001595/159544e.pdf (noting that Cambodian society remains fundamentally traditional); Ramage et al., supra note 21, at 1 (finding customary conflict management has ancient roots); Ian Harris, "Onslaught on Beings". A Theravada Buddhist Perspective on Accountability for Crimes Committed in the Democratic Kampuchea period, in Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts (Jaya Ramji & Beth Van Schaack eds. 2005) (noting that the somroh-somruel process has ancient roots). Harris has found that the Ankorian Cambodia possessed a sophisticated legal system. Id. at 74. He also notes that that the French colonial policies and laws eroded the monks' role as a traditional solver of disputes. Id. at See Community Conversations: Baseline Survey Report, supra note 163, at 2 (reporting that "preferred interventions are conducted by family members and neighbors" and "the majority of village and commune chiefs would intervene" in domestic violence). Before engaging in somroh-somruel, people typically try to resolve disputes within the family. Most women initially seek mediation within their extended family and only pursue somroh-somruel when familial mediation has failed. See Harris, supra note See Community Conversations: Baseline Survey Report, supra note 163, at 10 (arguing that "the emphasis on the importance of neighbors implies that villagers desire to resolve domestic violence among themselves") Ninh & Henke, supra note 177, at Pathways to Justice, supra note 226, at Ninh & Henke, supra note 177, at 50.

40 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 speculates that village chiefs resolve about two-thirds of all conflicts that they mediate. 2 4 ' About forty-thousand cases annually make it to the commune level nationwide, and even that number is orders of magnitude higher than the number of cases resolved by courts. 2 1 Studies show that village chiefs take domestic violence seriously. 242 When a case of domestic violence is brought to the attention of village or commune chiefs, only one percent of those leaders said they would do nothing Moreover, "Cambodians are remarkably positive about the enforcement of mediated agreements by commune councils: 74 percent of voters and 95 percent of councilors believe that such agreements are likely to be implemented." 24 4 A minority of those studied believed there was a role for the police, so even when Cambodians thought that punishment was required, they preferred that the village chief made those decisions. 245 While there is no official enforcement beyond community pressure, that community pressure appears to work well. The process for accessing mediation is informal. 246 If the parties seek to mediate their dispute, they will usually first approach the village chief, who will mediate alone or alongside other village elders. The mediators rely on common sense, traditional rules for women and men known as chpab srei and chpab proh, Buddhist precepts, and even some rudimentary knowledge of human rights principles. The process involves compromise and negotiation. The methods used in any given case are likely to depend on the 240. Id Pathways to Justice, supra note 226, at x Community Conversations: Baseline Survey Report, supra note 163, at 11; see also Partners for Prevention, supra note 177, at 32 (crediting village chiefs for unofficial violence prevention activities); but see Ninh & Henke, supra note 177, at 53 (noting that commune authorities in Cambodia do not view domestic conflicts as their responsibility) Community Conversations: Baseline Survey Report, supra note 163, at 11; see also Partners for Prevention, supra note 177, at 15 (finding among policymakers and policy-implementers "general support toward addressing the issue of violence against women in Cambodia"). Few village and commune chiefs think domestic violence should be settled within the family, but many villagers, including nearly half of women, believe it should be. Community Conversations: Baseline Survey Report, supra note 163, at Ninh & Henke, supra note 177, at Community Conversations: Baseline Survey Report, supra note 163, at A 2005 national survey confirmed that Cambodians rarely seek assistance to manage their conflicts beyond the village or commune without trying to find local solutions first. Ninh & Henke, supra note 177, at 47.

41 2014] Coercive Feminism people involved, their education and experience, and the history between the disputing parties. 247 Anthropologist Fabienne Luco found in her research that somroh-somruel is not meant to establish the guilty party, noting "people strongly emphasized that conciliation is not a judgment." 24 Rather, the process encourages both parties to reach a common understanding and make an effort to meet the other halfway. 249 Somroh-somruel aims to strengthen the relationship between the disputing parties. The system, of course, is by no means perfect. Giving in to the more powerful party is often seen to be an appropriate outcome of mediation, which is particularly problematic in cases of domestic violence. 25 This brief sketch of Cambodian dispute resolution reveals that there are paradigmatic differences between a Western system of rule of law and somroh-somruel. For example, where Western traditions value an impartial adjudicator, Cambodians often seek out mediators who are familiar with the community and the disputants. UNDP found that "... one of the virtues of local conflict resolution is the possibility to participate in the resolution process as it is based on negotiation and conciliation." 251 There are religious elements built into dispute resolution as well, since ninety-five percent of Cambodians are Theravada Buddhists. 2 Buddhism scholar Ian Harris writes, "[e]vidence suggests that the Theravada Buddhists of Southeast Asia are less assertive in their demand for 'rights' by virtue of a religious worldview which links such demands with illusory attempts to aggrandize the self." See Ramage et al., supra note 21, at 1-6; Ninh & Henke, supra note 177, at Luco, supra note Id Rule Of Law An Elusive Concept In Cambodia, Voice of the Asian-Pacific Human Rights Network (Mar. 17, 2006), Pathways to Justice, supra note 226, at Country Information: Cambodia, Royal Embassy of Cambodia, main.php?lang=&mcat=l&menu=6&k=o& menul=4 (last visited Oct. 24, 2014) "The court, and the state in general, in the villagers' perspective, is where power is associated with money. The wat, by contrast, is where moral authority is associated with a vow of poverty. The court is perceived as remote and alien from the villager point of view, while the wat is local and familiar." Mediation in the Asia-Pacific Region: Transforming Conflicts and Building Peace 151 (Dale Bagshaw & Elisabeth Porter eds., 2009) (quoting W.A. Collins, Dynamics of Dispute Resolution and Administration of Justice for Cambodian

42 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 Yet, despite the sense that Cambodians prefer somrohsomruel, U.N. agencies together with the Cambodian government have conducted local trainings intended to educate Cambodians on the domestic violence law and to discourage somroh-somruel mediation. 254 In 2008, a U.N. agency and the Cambodian government developed training materials that they took to eighty-nine villages around the country and used to create "community conversations" around domestic violence. The report on those trainings reflected the notion that "[tiraditionally Khmers tend to try to solve domestic violence through conciliation or mediation with the help of elders, village chiefs and others." 5 However, in light of the domestic violence law, the trainings explained that "conciliation and mediation is not allowed" where the perpetrator committed a "severe misdemeanor or crime." 256 In addition, trainings focus on educating Cambodians about the human rights framework. The development of training materials was "[ajimed at raising awareness on CEDAW, deemed the international bill of rights for women, and on the Cambodian government's commitment under the Millennium Development Goals..."257 Through trainings like these, it is possible to see how international domestic violence policy makes its way from the global level to the Cambodian countryside. 258 Villagers: A Preliminary Assessment Funded by USAID Pursuant to Project Number (1997)) See generally Ramage et al., supra note 21 (arguing that even though Cambodians preferred somroh-somruel because it is inexpensive and easily accessible, human rights concepts which may challenge somroh-somruel should be incorporated into the mediation of domestic violence cases); U.N. Dev. Programme, Talking About Domestic Violence: A Handbook for Village Facilitators, I (2010) [hereinafter Talking About Domestic Violence] (providing guidelines for village trainings on domestic violence topics). For a list of other NGOs working on women's issues, see Safer Communities, supra note 22, at Talking About Domestic Violence, supra note 254, at Id CEDAW SEAP: Cambodia, UN Women East and Southeast Asia Region, countryprogrammecambodia.html (last visited Oct. 24, 2014) See, e.g., Community Outreach, Gender and Development for Cambodia, (last visited Oct. 3, 2014) (promoting awareness of women's legal rights through grassroots efforts).

43 2014] Coercive Feminism IV. CRITICISMS OF THE AMERICAN APPROACH TO DOMESTIC VIOLENCE Thus far, this paper has described the evolution of domestic violence policy from the United States, to global models like the "International Model Framework for Domestic Violence Legislation," and the impact of those developments on laws and practices in Cambodia. Indeed, global domestic violence policy is eagerly rushing ahead. Yet, as the experience in Cambodia shows, these new approaches are likely to conflict in fundamental ways with existing practices and longstanding traditions. It bears asking whether the United Nations approach is right for everyone. This section of the paper discusses two of the primary critiques of the American response to domestic violence, the critique of criminalization and the antiessentialist critique. The critique of criminalization is a critique of the proscriptive aims of feminist domestic violence policy. Scholars argue that channeling women through the criminal justice system and empowering the state to make decisions about women's lives, is an ill-conceived way to address domestic violence. Requiring criminal interventions through mandatory arrest and no-drop prosecution policies strips women of their autonomy because those laws impart government officials with power to make decisions about fundamentally important aspects of women's own lives. Further, the criminal justice system, already stacked with structural inequality, ultimately undermines the interests of many women, particularly women of color. The anti-essentialist critique, on the other hand, is a critique of the descriptive claims of feminist domestic violence policy. Anti-essentialists argue that treating all incidents of domestic violence as symptomatic of male power ignores the more complicated nature of most relationships. Further, this oversimplification reinforces the discourse of male power as it asks women who want protection, to conform to the narrative of a disempowered victim. By defining domestic violence around male power, the discourse of domestic violence recreates the very problem it seeks to address.

44 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 A. The Critique of a Criminalization Criminalizin 5 9 abuse between intimate partners was one of the signature achievements of the social movement around domestic violence. 260 Increasingly, however, scholars have come to criticize this cornerstone of American domestic violence policy. 261 ' The critiques of criminalization are many and only briefly summarized here. There is no question, and no one has seriously doubted, that a state has the power to criminalize domestic violence. Moreover, even critics recognize that, in many cases, the criminal justice apparatus can promote women's safety. Rather, some critics' primary concern is that criminalizing domestic violence has not served the primary purpose of feminism: increasing women's autonomy. 262 The criminalization of domestic violence in America took place in the context of an increasingly muscular exertion of state power. Nineteen ninety-four, the year that the Violence Against 259. When I refer to "criminalizing" I mean to encompass even civil protection orders because even though the process of seeking injunctive relief may be civil in nature, the remedy can include criminal sanction See supra Part IA-B See, e.g., Goodmark, supra note 32, at (noting the antiessentialist argument that criminalization gives the state the power to define and correct the issues facing abused women rather than empowering the women themselves); Bumiller, supra note 19, at (criticizing the neoliberal trend towards enhancing police power); Suk, supra note 30, at 2 (identifying the tension between criminal law enforcement and traditionally-defined private rights); Sack, supra note 29, at (noting the history and present status of various criticisms of criminalization by multiple parties) See, e.g., Goodmark, supra note 32, at 156 (criticizing mandatory legal interventions for depriving women of autonomy); Bumiller, supra note 19, at 163 (noting that punitive responses to intimate abuse send a symbolic message but do not increase the dignity rights of victims); Suk, supra note 30, at 2 (arguing that protective orders can vitiate the freedom of the women they purport to protect); Sack, supra note 29, at 1657 (noting that the battered woman's advocacy movement has criticized mandatory policies for having a deleterious effect on women's autonomy); Donna Coker, Crime Control and Feminist Law Reform in Domestic Violence Law: A Critical Review, 4 Buff. Crim. L. Rev. 801, 821 (2001) (observing that protective reforms aimed at increasing domestic violence victims' safety do not necessarily increase their agency or autonomy overall); Linda G. Mills, Killing Her Softly: Intimate Abuse and the Violence of State Intervention, 113 Harv. L. Rev. 550, 562 (1999) (considering the negative effect mandatory reporting laws have on victims' autonomy); Donna M. Welch, Mandatory Arrest of Domestic Abusers: Panacea or Perpetuation of the Problem of Abuse?, 43 DePaul L. Rev (1994) (observing how the mandatory arrest of domestic violence perpetrators can occur against victims' wishes).

45 20141 Coercive Feminism Women Act was passed, was a year dedicated to getting tough on crime. 263 That year, President Bill Clinton advocated for a federal "three strikes you're out" law in his State of the Union address Later that same year, the President signed a thirty billion dollar crime bill that, among other things, created mandatory life sentences for some three-time offenders and greatly expanded federal funds for prisons. 26 " These policies resulted in the "largest increases in federal and state prison inmates of any president in American history." 266 Noting that, in some states, ninety-percent of those admitted for drug offenses were black or Latino, Michelle Alexander has described the increased criminalization of American life as the "New Jim Crow. 267 In fact, the mid-1990s represented a high water mark for sharply punitive legislation, which included harsh immigration laws that practically guaranteed deportation for low-level criminal offenses,268 reforms to the death penalty system that made it more difficult to challenge convictions, 2 69 and changes to welfare law, including a lifetime ban on welfare eligibility for felony drug offenses like marijuana possession "Congress first passed the Violence Against Women Act (VAWA) in 1994 and has reauthorized it many times to fund a wide range of legal, educational, and service programs to assist battered women." Schneider, supra note 19, at Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012) Id. at Id Id. at 58. Alexander's work explores the use of the American criminal justice system to perpetuate a system of racial hierarchy. She compares the current practice of mass incarceration of black males to previous systems of racial oppression including Jim Crow and slavery. Although not directly the subject of this paper, her work further underscores the likelihood that aggressive domestic violence enforcement would disproportionately impact black men "Since the 1996 statutes expanded the definition of 'aggravated felony' substantially-and retroactively-the number of individuals now subject to deportation absent 212(c) relief is significantly higher than these figures would suggest." I.N.S. v. St. Cyr, 533 U.S. 289, 296 n.6 (2001). "In addition, the nature of the changes (bringing under the definition more minor crimes which may have been committed many years ago) suggests that an increased percentage of applicants will meet the stated criteria for 212(c) relief." Id Gonzalez v. Crosby, 545 U.S. 524, 529 (2005) (noting the restrictions on habeas petitions created by the Anti-Terrorism and Effective Death Penalty Act of 1996) Alexander, supra note 264, at (describing the bipartisan Welfare Reform that eliminated benefits for people convicted of low level drug offenses).

46 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 It was in this context that "mainstream feminists" demanded "more certain and severe punishments of crimes against women." 271 The domestic violence movement was so successful, in part, because it dovetailed with a broader crime control agenda Yet critics suggest that by embracing a crime-control agenda, women's experiences with violence became a way of shoring up and legitimizing state power. The broader domestic violence agenda encouraged the "belief that the maintenance of social order depended on ruthlessly castigating violent perpetrators who preyed on innocent victims." 273 The central idea, according to mainstream feminists, was to upend patriarchy by seizing control of the "embodiment of institutionalized male power over women." 274 In hindsight, critics charge that it was naive to think that patriarchy would so willingly consent to its own undoing. 275 When viewed in its historical moment, it is not surprising that the vast majority of monies allocated by 6 VAWA went to the criminal justice system. And, once in place, law enforcement officers pursued domestic violence through the traditional lens of crime control, which prioritized aggressive enforcement. 2 7 Feminists pursued more certain interventions in the lives of women in the form of mandatory arrest and no-drop prosecution policies. 27 Addressing domestic violence became one of many justifications for an increasingly strong, vigilant police state. The critiques of criminalization fall into three groups. First, critics argue that by subsuming domestic violence within a broader narrative of crime control, women ceded power over their private 9 lives. Second, the harmful effects of criminalization fall 271. See Bumiller, supra note 19, at 7 (noting that "although the 'gender' war did not have the same impact on incarceration rates as the 'war on drugs' it contributed to the symbolic message") See id. at 7 (suggesting that mainstream feminist demands for criminalization led to an alliance between feminist activists and officials involved in crime control) Id. at Sack, supra note 29, at See Goodmark, supra note 32, at Goodmark, supra note 32, at Sack, supra note 29, at 1675 (arguing that "[plolice officers and prosecutors viewed their responsibilities as making arrests and bringing prosecutions that would result in as many convictions as possible"). Criminalization also led to the creation of specialized sex crimes units. Bumiller, supra note 19, at Hafemeister, supra note 43, at Bumiller, supra note 19, at 65.

47 2014] Coercive Feminism disproportionately on poor and minority women. 28 Third, contrary to the hopes of advocates, state power has not been universally effective in protecting women Instead, the overall effectiveness of a criminal justice approach is debatable. 1. Criminalizing Domestic Violence Gives Police Increased Power to Surveil the Home and End Intimate Relationships With increasing state involvement in domestic violence cases, rather than gaining power, women lost control over decision-making in their own lives Mandatory policies ensured that the state had the ultimate authority on decisions as intimate as whether a woman could remain with a partner or spouse. 283 Because the law often demands "separation-based" remedies, women have lost the power to independently assess the value of their intimate relationships. If domestic violence triggers arrest, a stay-away order, prosecution, and punishment, "the relationship can be, for practical purposes, 280. See Goodmark, supra note 32, at 49; see also Bumiller, supra note 19, at 65; Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, (1991) [hereinafter Mapping the Margins]; Holly Maguigan, Wading into Professor Schneider's "Murky Middle Ground" Between Acceptance and Rejection of Criminal Justice Responses to Domestic Violence, 11 Am. U. J. Gender Soc. Pol'y & L. 427, (2003); Jenny Rivera, Domestic Violence Against Latinas by Latino Males: An Analysis of Race, National Origin, and Gender Differentials, 14 B. C. Third World L. J. 231, (1994) See Cynthia Grant Bowman, The Arrest Experiments: A Feminist Critique, 83 J. Crim. L. & Criminology 201, 202 (1992) (citing studies that indicate arrest or state activity lead to retaliation by the abuser); see generally Lisa G. Lerman, The Decontextualization of Domestic Violence, 83 J. Crim. L. & Criminology 217 (1992) (analyzing various risk factors that heighten the likelihood of greater abuse post-state intervention); Joan Zorza, Must We Stop Arresting Batterers?: Analysis and Policy Implications of New Police Domestic Violence Studies, 28 New Eng. L. Rev. 929 (1994) (analyzing experiments exploring the deterrent value of various forms of separation post-abuse) See Hafemeister, supra note 43, at 980 (citing mandatory-arrest laws as an instrument that actually disempowers victims); Suk, supra note 30, at 59 (arguing that mandatory arrests take the decision-making power out of the victims' hands). As noted by Suk, "[miandatory arrest and no-drop ideologies have acclimated prosecutors to the norm of not allowing victims' wishes to control in making decisions in [domestic violence]. A decision to effectively end a relationship is initiated by the prosecutor on behalf of the state, adjudicated as a criminal matter, and criminally enforced." Id See Suk, supra note 30, at 59.

48 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 dissolved by the force of the criminal law."" 4 Yet, in reality, many couples do not separate, and remain involved despite criminal sanctions These "non-compliant" women continue their romantic relationships "in the shadow" of criminal prosecution. 2 " 6 It is a long shadow indeed, as protection orders result in enhanced police surveillance. If a woman has reconciled with the abuser, a protection order opens the door to third-party reports of violations." 7 As a result, the experience of domestic violence can trigger an ever-present possibility that the state may intervene to disrupt the relationship. Therefore, as the criminal law expanded in scope, women were silenced as the state assumed the role of speaking for them. Indeed, the very language of the domestic violence movement further legitimized the need for the state to speak for women. The proliferation of mandatory arrest and no-drop prosecution policies was supported by the claim that women are victims, "too weak, helpless, or incapable to make these decisions themselves." 2 8 These policies assume that women would choose state intervention if they had the unfettered ability to make that choice, and that it is only the coercion of an abusive partner that prevents women from choosing to separate By pursuing criminalization, critics have argued, feminists have actually weakened women's autonomy. This holds true not only for romantic relationships, but for the entire family. Domestic violence victims risk losing their children to the child welfare system and are regularly charged with failing to protect the children from domestic violence. 29 According to Professor 284. Suk, supra note 30, at 59 (noting that domestic violence law operates to create a "de facto divorce") Id See Suk, supra note 30, at 60. As Jill Davies has written, some women who stay are actually attempting to comply with other obligations including family court orders that require the mother to ensure that the child maintains a relationship with the father. Jill Davies, Eleanor Lyon & Diane Monti-Catania, Safety Planning with Battered Women: Complex Lives/Difficult Choices 60 (1998) See Suk, supra note 30, at 62 (noting additionally that "[plower in the relationship is reallocated to her benefit, but not in a way that necessarily maximizes her autonomous decision-making ability") Hafemeister, supra note 43, at Goodmark, supra note 32, at See, e.g., Nicholson v. Scoppetta, 820 N.E.2d 840, 842 (N.Y. 2004) (challenging the policy of removing children from the custody of their mother solely because she had failed to prevent them from witnessing domestic violence); In re David G., 909 N.Y.S.2d 891, 894 (Fam. Ct. 2010) (pursuing child neglect allegations because the mother was a victim of domestic violence, subsequent to the Court of Appeals decision in Nicholson).

49 2014] Coercive Feminism Bumiller, even women who end abusive relationships continue to feel "imprisoned by the fear of having their children taken away" because they "perceive that the law still holds an absolute right to claim parental control over their children." Critical Race Theory Yet, the long arm of the state is not felt equally. 292 Critical race scholars have for many years questioned the strategy of increasing police power given the long history of police abuses in minority communities. 293 Professor Kimberle Crenshaw now famously argued in 1991: Where systems of race, gender, and class domination converge, as they do in the experiences of battered women of color, intervention strategies based solely on the experiences of women who do not share the same class or race backgrounds will be of limited help to women who because of race and class face different obstacles As the need to protect powerless women became a justification for increased state power, the ill-effects of that policy were particularly felt by people of color. Professor Goodmark quotes one woman: I think White women talked more as if the courts belonged to all of us and therefore should work for us where we always saw it as belonging to someone else 291. Bumiller, supra note 19, at See, e.g., Gruber, supra note 82, at 600 (stating that "women who exist at the intersection of multiple axes of subordination (race, immigrant status, income level) appear to suffer the most under mandatory policies") See Kimberle Crenshaw, Intersectionality and Identity Politics: Learning from Violence against Women of Color, in Reconstructing Political Theory: Feminist Perspectives 178, (Mary Lyndon Shanley & Uma Narayan eds., 1997); Mapping the Margins, supra note 280; Beth Richie, Arrested Justice (2012). See also Andrea Smith, Looking to the Future: Domestic Violence, Women of Color, the State, and Social Change, in Domestic Violence at the Margins 416, (Natalie Sokoloff ed., 2005) (looking into alternative theories for ending domestic violence); Donna Coker, Shifting Power for Battered Women: Law, Material Resources, and Poor Women of Color, in Domestic Violence at the Margins 369, 382 (Natalie Sokoloff ed., 2005) (arguing that "arrest-encouraging policies" can work against battered women) Mapping the Margins, supra note 280, at 1246.

50 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 and talked more about how to keep it from hurting us. Indeed, time has revealed, unsurprisingly, that domestic violence cases are impacted by prevailing race discrimination in the criminal justice system and therefore contribute to the marginalization of women and men of color. 296 When police respond to a "he-said she-said" domestic violence situation, both parties may be subject to mandatory arrest policies. In dual arrests situations, women of color are more likely than white women to be arrested, and they are disproportionately charged with more serious crimes. 297 Further, as a result of dual arrest policies, undocumented women face an increased vulnerability to deportation. 298 Mandatory arrest and dual arrest policies further threaten the parole or probation of women who report domestic violence. In each of these situations women are subjected to increased surveillance and experience potential state intervention as a threat Goodmark, supra note 32, at Mapping the Margins, supra note 280, at Sack, supra note 29, at ; see also Leigh Goodmark, Reframing Domestic Violence Law and Policy: An Anti-Essentialist Proposal, 31 Wash. U. J.L. & Pol'y 39, 45 (2009) ("When women who have been battered fail to conform to the stereotype, their credibility is undermined, compromising their ability to secure needed protection and services") Sack, supra note 29, at Even protected parties, who are not subject to mandatory arrest, may nevertheless mistakenly believe that they are subject to criminal sanction by violating the order. Suk, supra note 30, at 63. As Professor Aya Gruber, a former public defender, summarized: Not only did I see the rampant destruction of domestic relations, entrenchment of economic disempowerment, and mass incarceration of minority men, but I also saw distinctly anti-female ideologies at work. I observed government actors systematically ignore women's desires to stay out of court, express disdain for ambivalent victims, and even infantilize victims to justify mandatory policies while simultaneously prosecuting the victims in other contexts. It seemed to me that feminist criminal law reform had become less about critiquing the state and society's treatment of women and more about allying with police power to find newer and better ways of putting men, who themselves often occupy subordinate statuses, in jail. Gruber, supra note 82, at

51 20141 Coercive Feminism 3. The Effectiveness of Criminalization is Debatable As an empirical matter, critics question the effectiveness of heavy criminalization. American domestic violence policy, including the federal Violence Against Women Act, has not reduced the rate of intimate partner violence beyond the general decrease in crime. In fact, women are actually more likely to be killed by their spouse after VAWA than before." 1 Mandatory arrests may actually increase the incidence of violence because they may trigger retaliation by the batterer or cause victims to become reluctant to seek help in the future. 2 Though more research is necessary, there is not consistent data showing that criminalization improves women's safety. 0 3 In sum, in their zeal to rescue victims of domestic violence, feminists advocated for an increased reliance on the state's police power. Yet, in many ways, rather than increasing the power of women, the criminalization of domestic violence has in fact increased the power of the state to regulate the lives of women. As Professor Goodmark has written, "[a]t core, these policies reflect a struggle over who will control the woman subjected to abuse But, she says, "[iif empowerment is still the goal of the battered women's movement, we must accept that women subjected to abuse have the right to make choices that we might disagree with, dislike or fear.""' Recent feminist and critical race scholars have argued that when you uncritically assume that the police are a force for good, you fail survivors of domestic violence. The criminalization of domestic violence can increase women's exposure to harmful institutions. Therefore, scholars have argued that "[i]ntervention of the legal system has, in many instances harmed rather than helped women." 0 6 B. The Anti-Essentialist Critique The theoretical foundation of American domestic violence policy equates all abusive relationships with the exercise of male 300. Hafemeister, supra note 43, at But see Shannan Catalano, U.S. Dep't of Justice, Special Report: Intimate Partner Violence, (2012), available at (showing significant declines in intimate partner violence between 1994 and 2010) Goodmark, supra note 32, at Hafemeister, supra note 43, at See, e.g., id. at 974 (noting that "[miore troubling is a lack of evidence that these measures have been effective") Goodmark, supra note 32, at Id Id. at 156.

52 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 control." 7 It assumes that all abused women are victims. Scholars have criticized this approach because it "essentializes" the experience of domestic violence, unnecessarily limiting the experience of all women to the singular feature of male control."' This single-minded focus on male control pressures women who experience violence to conform to the broader narrative of victimhood and fails to protect women who do not conform. In addition, this narrow view fails to account for other possible causes of abuse in the home. According to Professor Goodmark, "[d]omestic violence is not a monolith explicable by a seamless, overarching theory." 30 9 She argues that domestic violence law and policy is grounded in a stereotype of the victim as "white, straight, middle-class, meek, weak, passive, and dependent." 10 The stereotype arose in large part from cycle of violence theory. 311 Cycle of violence theory is intended to explain why women remain in relationships where there is domestic violence. Because of the violence, victims develop a "learned helplessness." 3 12 But this notion of an ideal, helpless victim is insufficient to describe the lives of many women who experience domestic violence Critics charge that, through the cycle of violence theory, feminist advocates "bought into and even publicized an essentialist and objectifying script that portrayed victims as paralyzed by fear, weak-willed, and even automaton-like." 3 4 The existence of a domestic violence script poses real problems for women whose lives do not conform to that script. Critics argue that, through this essentialist frame, the prevailing narrative of domestic violence leaves many women without protection. For 307. Id. at Gruber, supra note 82, at (arguing that "[tihe reductionist characterization of all abused women as simply too scared to prosecute hides the complex reality of many battered women's lives") Goodmark, supra note 297, at Id. at See Leti Volpp, (Mis) Identifying Culture: Asian Women and the "Cultural Defense", 17 Harv. Women's L.J. 57, (1994) (noting that the cycle of violence theory, integral in a battered women's syndrome diagnosis, describes women as "passive and helpless") Goodmark, supra note 32, at Id. As Leti Volpp has argued, "the experience with battered women's syndrome shows that creating a formalized separate standard can lead to defendants either being refused access to expert testimony or being unable to benefit from that testimony for the reason that they do not adequately fit the characteristics of the defense." Id Gruber, supra note 82, at Goodmark, supra note 32, at 115.

53 2014] Coercive Feminism example, women may choose not to cooperate with police for reasons having to do with their children, money, immigration concerns, or an emotional attachment to their partner. But, by viewing domestic violence solely by the terms of dominance feminism, the state is ill equipped to address these impediments to "non-compliance." A woman who doesn't cooperate is viewed as a victim of male domination rather than as a rational decision-maker. This descriptive narrative has very real practical implications. The characterization of "victims" as passive isolates those women who fight back or otherwise express violence. Such women have a harder time explaining that they too are "victims" of domestic violence. "This stereotype poses real problems for women who are not white, middle-class, heterosexual, or helpless, but nonetheless seek protection from courts." 3 ' 16 The feminist movement's role in constructing the narrative of the ideal victim thus works to limit the types of women who are viewed as worthy of protection by the law. Though the laws are facially race-neutral, in practice, advocates have found that women of color are less likely to be viewed as worthy victims entitled to state protection and more likely to be subject to dual arrest policies. 1 7 Men of color are more likely to come to the attention of the police and to be arrested, prosecuted, and incarcerated. 318 Furthermore, by continuing to focus on domestic violence as only an issue of male control, the feminist movement has ignored, and therefore failed to respond to, other possible causes. Dominance feminists view domestic violence as necessarily gender-based violence. But critics posit that, by isolating a single cause of domestic violence, dominance feminism misses the complicated factors at play in any individual relationship Indeed, according to Professor Goodmark, research shows a correlation between economic stress and domestic violence, so much so that she hypothesizes that "alleviating 316. Goodmark, supra note 297, at 45. According to Professor Goodmark, "[diifferences were deemed unimportant, and the experiences of white women became the standard around which law and policy were crafted." Goodmark, supra note 32, at Bumiller, supra note 19, at See, e.g., id. at 42 (demonstrating how race can play a role in prosecutorial action) Goodmark, supra note 32, at 146.

54 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 men's financial stress may go further toward reducing domestic violence than any criminal justice intervention." 3 2 In sum, anti-essentialists charge that the construction of domestic violence around the notion of male control excludes the many women who experience violence caused by a far more complicated set of circumstances The anti-essentialist claim argues that men and women engage in acts of physical violence for a variety of reasons sometimes unrelated to male control and thus not every violent encounter between intimate partners is predicated by patriarchy That assumption, however, remains at the heart of the American understanding of domestic violence and gives rise to policy based on "what seems to be a patently paternalistic view of these women as powerless, limited individuals incapable of acting on their own behalf." 323 V. COERCIVE FEMINISM: A CRITICAL LOOK AT INTERNATIONAL DOMESTIC VIOLENCE POLICY By framing domestic violence as a global problem of gender discrimination and arguing that all such violence demands a criminal justice response, the U.N. position reveals the profound influence of American feminists. Yet, even as American domestic violence policy increasingly comes under fire, similar policy initiatives are being trumpeted worldwide. In the following sections, this paper discusses the critique of criminalization and the anti-essentialist critique in the context of the global domestic violence movement. The theoretical framework that has developed in response to American domestic violence policy 320. Id. at 147. Likewise, Professor Gruber notes that, as a result of an "essentialist domestic violence script," battering has "become a problem of individual bad actors rather than a phenomenon produced by profound economic inequity, sexist cultural attitudes, and racial and other forms of discrimination." Gruber, supra note 82, at See Judith Butler, Gender Trouble 216 (1990) (arguing that "[tihe feminist 'we' is always and only a phantasmatic construction, one that has its purposes, but which denies the internal complexity and indeterminacy of the term and constitutes itself only through the exclusion of some part of the constituency that it simultaneously seeks to represent") See Mohanty, supra note 27, at 335 (describing the Western feminist view of the patriarchy as "monolithic" and noting the oppressive effect of the focus on patriarchy on women in the Third World) Goodmark, supra note 32, at 123. Professor Goodmark, however, goes on to argue that the dynamic at play is better understood as maternalism, a wellmeaning attempt to protect women subjected to abuse. Id.

55 2014] Coercive Feminism provides a useful tool for evaluating the new global policy. Looking at Cambodia in particular, we can see that international domestic violence policy is likely to further consolidate the power of an authoritarian regime and will silence other, potentially helpful, processes for resolving family conflict. At least in Cambodia, and likely in other authoritarian countries, the U.N. model is likely more harmful than helpful. This observation, in turn, feeds into a broader critique of broad brushstroke human rights interventions. While the intentions may be noble, failure to appreciate national and cultural difference undermines the goals of human rights activists. A. The Critique of Criminalization and the Cambodian Experience Embedded in the demand for criminalization is the assumption that women will be better off when the police are empowered to intervene in their private lives, even if they do not want them to. According to one study in Cambodia, the primary difficulty in implementing the domestic violence law is the relationship between the police, on the one hand, and the other local officials who work to address violence against women, on the other. 324 International NGOs and the United Nations would like to resolve this difficulty by increasing reliance on the police. 325 But, encouraging a criminal response in Cambodia will instead shore up the power and control of an authoritarian government." 6 The experience in America and the critique of criminalization that eventually materialized should make us question the effects that the same criminalization of domestic violence might have in a country with an authoritative government and widespread institutional corruption. It is clear that requiring a criminal justice response will expose more Cambodian women to a criminal justice system that they are currently trying to avoid. 327 As discussed above, women view the 324. Partners for Prevention, supra note 177, at See, e.g., Handbook for Legislation, supra note 9, at 19 (advising specialized police and prosecutorial units) See Kapur, supra note 113, at 6 (arguing that "[t]he construction of women exclusively through the lens of violence has triggered a spate of domestic and international reforms focused on the criminal law, which are used to justify state restrictions on women's rights-for the protection of women") In the final report of the Safer Communities project, "[ilt was found that actions by the police to fine or arrest perpetrators did little to solve domestic violence problems. Instead, this might increase the burden on victimized wives who sometimes have to pay money to get their husbands back from the police. This is particularly true for poor families." Safer Communities, supra note 22, at 15.

56 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 police as corrupt because they require women to pay money to secure their husbands' release, so poor women fear involving the justice system in domestic violence issues. 28 But corruption is not unique to Cambodia. 29 One very real consequence of demanding reliance on the criminal law will be that women will come into more, rather than less, contact with this corrupt institution. Therefore, by demanding the criminalization of domestic violence, the United Nations risks unnecessarily subjecting women to harmful police practices. From an institutional perspective, criminalization will ultimately strengthen the least accountable parts of the Cambodian government. While the law strengthens the police and courts, it weakens other institutions, like somroh-somruel mediation. The ruling party in Cambodia, the CPP, has virtually total control over the police and the courts. 3 Those posts are entirely appointed by party insiders. Access to them is obtained by showing "patronage" to senior officials. Therefore, to the extent that the domestic violence law filters more cases through these systems, the law poses no threat to the authoritarian Hun Sen government. In fact, because of the high transaction costs involved in criminal law enforcement (in the way of bribes and other fees), the domestic violence law represents a boon to party insiders. 31 On the other hand, local authorities, like village chiefs and commune councils, are more accountable. Commune councils are 328. Id. at See Merry, supra note 8, at 139 (discussing other countries, like India, where police corruption is widespread) See Marcus Cox & Ok Serei Sopheak, Australian Agency for Int'l Dev., Cambodia Case Study: Evaluation of Australian Law and Justice Assistance 10, 16 (2012), available at Judges in Cambodia act almost openly as subordinates of the Executive. During UNTAC, UN officials noted that, "while the Courts were technically independent of the executive arms of government, they remained totally subject to executive direction." Continuing Patterns, supra note 224, at 9. During that period, the Minister of Justice explained to UNTAC officials that judges who did not follow his instructions and thus "disobeyed the law" must be punished. Id. Although executive branch officials rarely speak so plainly these days, little has changed. In his 2005 report to the Human Rights Commission, UN Special Representative to the Secretary General on Human Rights in Cambodia, Peter Leuprecht said it was "increasingly obvious" that "impunity was not only the result of low capacity within law enforcement institutions and a weak judiciary; the judiciary continued to be subject to executive interference and open to corruption." Id. at 33. He found that, "efforts to reform the judiciary over the past decade have been ineffectual in achieving significant improvements in the administration ofjustice." Id See Cox & Sopheak, supra note 330, at 6, 13.

57 2014] Coercive Feminism directly elected and those councils appoint the village chief 3 2 As discussed above, these local authorities are the preferred site of dispute resolution in domestic violence cases. 333 And though this system is by no means perfect, studies show that Cambodian women prefer to resolve domestic violence using this local, accessible system. 3 4 Therefore, increased enforcement of the domestic violence law will funnel more cases through corrupt, unaccountable institutions and weaken local, accessible ones. International advocates may say that is precisely the point. One argument proffered by domestic violence experts is that mediation trivializes what is fundamentally a crime and that mediating domestic violence sends a message that society does not take these sorts of claims seriously. In Cambodia, however, that concern is less problematic. Many issues, including violent crimes, are subject to and resolved through mediation. 335 And while advocates are often concerned that women cannot be protected during mediation, that is no less true of any other form of dispute resolution, including criminalization, especially given the nearly total lack of available domestic violence shelters and the significant hurdles to accessing shelter in the best of circumstances. American advocates are also concerned that mediation shields domestic violence from public scrutiny. 3 6 But the reverse is true in Cambodia where the community is involved in somroh-somruel and far more likely to be aware of the dispute and the resolution. Courts are distant from most villages and largely shielded from view. The most often cited rationale for prohibiting mediation is the power imbalance between the 7 parties. Advocates argue that it is impossible to negotiate in any fair sense of the word when one party is holding all of the cards. 33 Admittedly, this issue is concerning in Cambodia, perhaps even more so than in the United States. One of the guideposts for somroh-somruel is the chbap srei and the chbap proh, which are the traditional rules of women and rules of men. One example of chbap srei is to "show your conciliatory nature by keeping 332. Safer Communities, supra note 22, at 31. Since 2006, efforts have been made to include women in the village authorities, and as a result around 70% of the village assistants are now women. Id See supra Part II.D Safer Communities, supra note 22, at Luco, supra note 234, at Goodmark, supra note 32, at Id. at Id.

58 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 silent." 339 In one study, even village chiefs complained that they do not know how to combine tradition with new ideas like human rights. 3 4 ' There is no question that in cases of domestic violence local mediation is likely to reinforce gender-based power dynamics. Yet that alone should not be a reason to abandon this process in favor of a more problematic, criminal response. Studies already show that NGO trainings have made village chiefs more sensitive to the moral component of domestic violence. 3 4 ' The claim advanced here is not that somroh-somruel is an ideal solution, but only that by all evidence it appears to be a preferable solution to criminal law enforcement. 42 Finally, an additional problem with the U.N. approach to domestic violence in Cambodia is that it offers the government a chance to demonstrate compliance with international norms, while not actually challenging the authoritarian character of the government. The Cambodian government adopted a domestic violence law at the same time as it included an exception for "disciplining" one's spouse. 343 Such an inherent contradiction could be explained as a failure by the Cambodian government to comprehend what domestic violence means. An alternate explanation is that the Cambodian government was not actually interested in ending domestic violence so much as it was in appearing interested in ending domestic violence while simultaneously enhancing its police power. For countries like Cambodia that receive large sums of development aid, getting "tough" on domestic violence is an easy way to demonstrate compliance with a donor agenda, without actually improving issues of governance. The United Nations should rethink an approach to development initiatives that reinforces the power of authoritarian governments Ramage et al., supra note 21, at Ramage et al., supra note 21, at See, e.g., Safer Communities, supra note 22, at 39 (indicating that a recent decline in domestic violence can be partly attributed to a focus on the morality aspect); Partners for Prevention, supra note 177, at 27 (crediting an increased awareness of the domestic violence issue to the Safe Village and Commune Policy) For a discussion of the cultural values underlying such institutions, see May Sim, Confucian Values and Human Rights, 67 The Rev. of Metaphysics 1, 3-27 (2013) (discussing the potential for Confucianism to provide a basis for a more communal conception of human rights than is available within the liberal Western model) Law on Domestic Violence, Act No. 0510/478, Sept. 29, 2005, art. 8 (Cambodia).

59 2014] Coercive Feminism Even if it were possible to overcome the overwhelming reluctance of Cambodian women to use criminal processes, the result would not necessarily benefit women. To the extent that global domestic violence policy continues to coerce increased reliance on the enforcement of criminal law, women will be forced into contact with corrupt police and other preferable systems will deteriorate. B. The Anti-Essentialist Critique and the Cambodian Experience The anti-essentialist critique of American domestic violence policy has particular salience in the international context. Like its American counterpart, international policy relies on "dominance" theory. International policy explicitly recognizes that violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men, and to the prevention of the full advancement of women. 44 By adopting this understanding, the U.N. approach not only oversimplifies the experience of women throughout the world, but also positions the international as an authority over the local. Further, by demanding conformity with one view of feminism, the human rights position occupies the space that could be used to develop local, contextualized understandings of women's autonomy. It is possible for that autonomy to look different, and develop differently, than it has in the West. 1. Gender Essentialism On one level, international policy merely expands the scope of the very same dynamic of discursive victimization that exists in the American system. The global feminist project, founded on the (largely fictional) prototypical Western woman's experience, redoubles the original problem. The discourse around international domestic violence policy produces an image of an oppressed "Third World" woman who exists in relation to a modern, educated Western woman. 345 This prevailing narrative fails to adequately describe the 344. See Neil MacCormick, Law, State, and Feminism: MacKinnon's Theses Considered, 10 Law and Philosophy (1991) (examining Catharine A. MacKinnon's "feminist theory of the state," which identifies western liberalism as embodying an essentially "masculine" set of values, which may be improved by feminist perspectives) Mohanty, supra note 27, at 337 (describing Western feminist scholarship as predicated on a "homogenous notion of the oppression of women as a group... which, in turn, produces the image of an 'average third world woman'

60 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 problem it aims to solve. Instead, it reinforces the notion that power and influence properly flow from the West down to Third World countries. As described above, the American legal response to domestic violence is notable for its tendency to demand conformity to a master narrative of victimhood. According to Professor Ratna Kapur, the "victim-subject" is a transnational phenomenon The prototypical helpless Third World woman becomes the universal subject of feminist human rights discourse. As Professor Kapur states, "the Third World victim subject has come to represent the more victimized subject; that is, the real or authentic victim subject." 347 ' Third World women become "authentic victims" on behalf of whom feminists advance their claim for women's human rights. 34 Says Professor Kapur, "[tihere is no space in this construction for difference or for the articulation of a subject that is empowered." 49 In the Cambodian version of this story, the nuances of Cambodian women's experiences are lost to a prevailing feminist narrative that claims to act in the interest of all women, but in fact, imposes a worldview that ignores meaningful differences. The international domestic violence campaign fails to capture the experiences of women as they exist according to differences in class, race, nationality, religion, sexual orientation and more. 35 The U.N. view of Cambodia demonstrates this. In 2008, four U.N. agencies undertook a multi-country study titled "Men in Violence in Asia and the Pacific." 35 The study, carried out between 2010 and 2013, included Cambodia as well as other Asian and Pacific nations. The group studied more than 10,000 men and 3,000 women. The study aimed: "to deepen the understanding of the meaning and causes of men's violence against women." 5 2 Yet, the study was "premised on the well-documented hypothesis that violence against women is a manifestation of unequal gender relations and harmful manifestations of hegemonic masculinity governed by patriarchal [as an] ignorant, poor, uneducated, tradition-bound, domestic, family oriented, victimized" version of a Western woman) Kapur, supra note 113, at Id Id Id. at Id. at UNDP 2009 Follow-up Survey, supra note 177, at xvi Multi-Country Study, supra note 177, at 1.

61 2014] Coercive Feminism beliefs, institutions, and systems."" 3 Indeed, the study explains that it "is an epidemiological study informed by feminist theory," and therefore depends on theories of masculinity to understand the connection between men, gender, power, and violence. 354 Therefore, even when the United Nations sets out to study violence against women, it sets about reproducing a particular narrative of causality. As might be expected, the study's findings were interpreted as proving the study's assumptions In Cambodia (and Indonesia), men reported a greater incidence of sexual violence than physical violence. 356 In Cambodia, 16.4% of men reported engaging in an act of physical violence, whereas 20.8% of men reported engaging in sexual violence. 57 However, 22.1% of Cambodian women claimed that they had been physically abused, while far fewer women, 9.8%, reported that they had experienced sexual violence. Sexual violence was defined as, among other things, a man having sexual intercourse with his wife when he knew she did not want to do so but believed that she would agree simply because she was his wife. 359 Physical violence included throwing something at a woman that could hurt her, pushing and shoving, choking, and burning. 36 To explain the difference between the rate of men's and women's reported acts of sexual violence, the study speculated that, in places "[w]here impunity is common, women's fear of further 353. Id. One could call into question aspects of the study's design, for example that Bangladesh was divided into urban and rural, in China only one site was studied that was both urban and rural, and in Cambodia the urban/rural distinction was not made at all. Additionally, a great strength of the study was the "self-completion" for data collection, yet illiteracy and low literacy is a significant issue in Cambodia. Given the scope of the study, however, the difficulties in data collection across these environments is significant Id. at 5, 12. To be fair, the study did identify "a complex interplay of factors at the individual, relationship, community and greater society levels." Id. at 4. The study, for example, found that food insecurity can be a trigger for violence. Id. at 5. But, the ultimate cause of domestic violence, male domination, was unquestioned For example, the prevalence of intimate partner violence varied widely across the locations studied, from twenty-six percent in Indonesia to eighty percent in Papua New Guinea-Bougainville. Id. at 2. This variance was not seen as a reason to question any of the underlying assumptions of the paper Id Multi-Country Study, supra note 177, at Id. at Id Id. at 107.

62 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 violence is likely greater than men's fear of legal repercussions....""' Therefore, the study concluded that while men felt comfortable reporting that they had engaged in sexual violence, women did not feel comfortable reporting that they had experienced it. 362 In light of the survey's methods, this obvious confirmatory bias is not surprising. But the study ignores other possible explanations for those findings, including that the men believed their wives did not want to have sex when their wives actually wanted to. In light of the underlying assumptions of the study, there is no way to accurately explain the survey data. But that is precisely the problem. The study reveals the pernicious effects of a domestic violence policy premised on gender essentialism. The study was blind to the possibility that Cambodian women were enjoying sex with their husbands. Instead, even as the study found rates of violence in Cambodia lower than in the United States and other Asian countries, the study reified the narrative of rampant violence and sexually violated women. 363 The study's dominance framework sets out to find disempowered women and then finds them. The singular focus on male power blinds these global policy makers to the complexity of the very women's lives they intend to fix. 2. Cultural Essentialism Making the leap from a national to a global policy, the international domestic violence campaign also participates in cultural essentialism. 364 International policy reproduces the narrative of a powerless Third World victim. Dire claims, like the following, are common: "[a] binding characteristic of communities throughout the world, almost without exception, is the battering of women by men." 365 ' Tradition and culture 361. Id. at See id. at (analyzing differences in reporting sexual violence by men and women) Mohanty, supra note 27, at (arguing that the methodological moves in feminist and other academic works seek to reveal a universality in women's subordinate status in society) Kapur, supra note 113, at 7-8. "In the United States, gender essentialism has been challenged by Black, Latinao, and lesbian feminists as being exclusive and failing to recognize that women experience various forms of oppression simultaneously." Id. at Bonita C. Meyersfeld, Reconceptualizing Domestic Violence in International Law, 67 Alb. L. Rev. 371, 371, (2003). See Karen Knop et al., From Multiculturalism to Technique: Feminism, Culture, and the Conflict of Laws Style, 64 Stan. L. Rev. 589, 589 (2012) (arguing that feminists' struggle to

63 2014] Coercive Feminism are viewed as part of the problem, an impediment to women's human rights. 366 Indeed, the violence experienced by Third World women is seen as more severe, more exotic, and more problematic than abuse suffered in the West According to Professor Kapur, "[wiomen in the Third World are portrayed as victims of their culture, which reinforces stereotyped and racist representations of that culture and privileges the culture of the West." 36 An important aspect of international domestic violence policy is overcoming problematic traditional practices. In this way, the anti-essentialist movement in the United States dovetails with post-colonial theory. 69 Human rights discourse, through the international human rights instruments, seeks to replace discriminatory cultural practices with other practices rooted in modern ideas of gender equality. 3 7 In the language of post-colonial theory, human rights talk becomes a vehicle for "dominating, restructuring, and having authority over the Orient." 371 As Professor Merry has written, "[t]hus, like the colonial state, they seek to move ethnically defined subjects into the realm of rights-bearing modernity." 372 The very idea of an international "model" implicates a understand cultural practices that are oppressive by Western standards is detrimental to women's equality and concerns for cultural autonomy) Merry, supra note 8, at 12 (describing the narrative of global campaigns against violence against women) See Shamita das Dasgupta, Women's Realities: Defining Violence Against Women by Immigration, Race, and Class, in Domestic Violence at the Margins 56 (Natalie J. Sokoloff ed., 2006) (discussing the distinct particular vulnerability and potential for domestic abuse among immigrant women) Kapur, supra note 113, at Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World 4 (2012) (discussing the West's perceived need to erase cultural practices of the developing world to make it safe for development in the aftermath of World War II, and the subsequent failure of that project) Merry, supra note 8, at 12 (arguing that "the human rights process seeks to replace cultural practices that are discriminatory with other cultural practices rooted in modern ideas of gender equality") Escobar, supra note 369, at 6; see also Teemu Ruskola, Legal Orientalism, 101 Mich. L. Rev. 179, (2002) (describing a legal orientalism by which we find in foreign legal cultures confirmation the fact that other legal cultures lack some aspect or other of our law) Merry, supra note 8, at 12; see also Kapur, supra note 113, at 6 (arguing the victim subject "encourages some feminists in the international arena to propose strategies which are reminiscent of imperial interventions in the lives of the native subject").

64 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 vision of lawless people for whom basic guidance is required. 373 This construction of poor, rural women, victimized by their culture and in need of rescue, both enhances notions of Western superiority and 4 justifies the exercise of power over non-western women. Yet, because of the global sweep of the human rights framework, the paradigm further erases and therefore discounts cultural difference. 3 5 That exercise of power takes the form of prohibiting traditional, local processes like somroh-somruel. There is no space in a global movement for a unique practice that runs at odds with global articulations of fundamental rights. The parallels with colonialism are even more concrete. NGOs that focus on domestic violence are directly funded by wealthier states and foundations in the West. 376 Many of these large NGOs receive funding from international donors and can wield significant influence. 377 This funding supports the presence of large numbers of foreign development workers in Cambodia. Every one of the nearly twenty studies of domestic violence in Cambodia is written in flawless English The studies are produced by foreign technical experts who spend some time living and working in Cambodia. As a result, NGOs (even local ones) develop priorities in line with transnational 373. This section implicates the work of critical development scholarship. According to "post-development" scholars like Arturo Escobar, development itself "has created an extremely efficient apparatus for producing knowledge about, and the exercise of power over, the Third World." Escobar, supra note 369, at 9. A full discussion of this literature is beyond the scope of this paper Id. at 8-9 (discussing the work of Chandra Mohanty on the problematic nature of setting Western standards for women in the developing world) See Kapur, supra note 113, at 10 (describing how women's humanrights rhetoric essentializes the cultures of developing countries as "brutal and barbaric"); see also Peter J. Hammer, Development as Tragedy: The Asian Development Bank and Indigenous Peoples in Cambodia, in Living on the Margins: Minorities and Borderlines in Cambodia and Southeast Asia (2009) (discussing 'development' as embodied by the policies and practices of international agencies such as the World Bank and its tragic results for indigenous peoples in Cambodia) Merry, supra note 8, at 21 (noting that "[m]any of the NGOs in poorer countries are funded by the wealthier states of the global North as well as foundations rooted in these areas.") Id. at See, e.g., Ramage et al., supra note 21 (writing in English about domestic violence in Cambodia); Brickell et al., supra note 26 (reporting in English on domestic violence law in Cambodia); Asian Development Bank, supra note 161 (analyzing gender in Cambodia in English).

65 20141 Coercive Feminism 149 movements. 7 9 These NGOs create parallel structures of power that, unlike local governments, are entirely unaccountable to citizens. 8 0 The NGO workers enjoy cappuccinos and croissants in Phnom Penh while enjoying the satisfaction of doing good work helping the poor women of Cambodia. 8 l 3. Essentializing Social Change One of the historical lessons of the American domestic violence movement is that it is possible for a social movement to radically transform the law's response to domestic violence in a relatively short period of time. One of the lessons of the Cambodian experience with domestic violence legislation is that the reverse is not necessarily true-changing the law does not result in social change or even a social movement. The change in domestic violence law in Cambodia has not meaningfully altered the way Cambodians resolve domestic disputes. Therefore, it bears asking whether the human rights model usurps the process of social change, and whether the steps of social change are really so fungible. Writing about Cambodian labor law reform, Daniel Adler and Michael Woolcock note that: [a] s law and development practitioners, our normative agenda often drives to leap to the end game-a discussion about model rules and model institutions for their enforcement... In doing so, we implicitly assume there are technical shortcuts that lead to the rule of law...the Cambodian experience [reminds] us that politics matter in the realization of rights and that the law is not so central." 2 The Cambodian experience with domestic violence legislation suggests that international domestic violence policy is predicated on a misunderstanding of the methods of social change. 3 By pursuing 379. See Merry, supra note 8, at (discussing the extensive interaction of NGOs with the UN) Id. at 21 (discussing a professor in Delhi working on women's issues who stated that "international funding for NGOs creates a parallel system of government within India that is unaccountable to its citizens") The Shop Cambodia, (last visited Sept. 10, 2014) Adler & Woolcock, supra note 152, at See Kapur, supra note 113, at 7, 10 (noting that "[e]ssentialism... refers to the existence of fixed characteristics, given attributes, and ahistorical functions that limit the possibilities of change and thus social reorganization" (citing Elizabeth Grosz, Sexual Difference and the Problem of

66 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 "model" legislation, and by reviewing local laws, the global domestic violence movement appears to assume that the law plays a powerful normative force in every society. 8 4 Yet, the experience of rule of law development in Cambodia should have already cured human rights advocates of that misconception. Cambodia has ceded to nearly every global human rights instrument, yet the government maintains an extremely poor human rights record. Experience in Cambodia since UNTAC strongly suggests that rule of law reform is a weak mechanism for changing behavior. Indeed, having begun to see the limits of law reform, human rights advocates have responded with programs to directly train women on their global human rights." 5 In Cambodia, NGOs note that criminal justice legislation is critical, but state that "a comprehensive approach to public policy includes two further levels of public policy: rights and empowerment policy and policies that target social norms and values." 386 Yet, these efforts to generate feminist social change are also inherently problematic. Women in Cambodia hold more conservative views on gender than men. In slightly increasing numbers, women, more than men, continue to believe that domestic violence is justified." 7 One U.N. study of violence against women in Cambodia noted that: [i]t is clear that women hold much stronger attitudes about the appropriateness of their behaviour as wives than their male partners, so future educational campaigns should be sure to consider how to best dialogue about differences in male and female expectations related to gender-based household roles In domestic violence trainings in Cambodia, facilitators explain to participants that there are, "Khmer social customs that make people believe that men are in charge of women and that men Essentialism, in The Essential Difference 82, 84 (Naomi Schor & Elizabeth Weed, eds., 1994)) Handbook for Legislation, supra note 9, at iii (noting that "[tihe Campaign recognizes the power of the law") See Ruskola, supra note 371, at 188 (describing the "functionalist" approach to comparative law and the assumption about which problems should be resolved by legal, rather than some other, means) Partners for Prevention, supra note 177, at UNDP 2009 Follow-Up Survey, supra note 177, at Id. at xvii.

67 2014] Coercive Feminism and women must behave and divide work in certain ways."" 9 Facilitators attempt to impart the knowledge that "men and women are equal and have the same rights." 3 9 Therefore, in direct trainings, the United Nations and other international NGOs are trying to train women to believe that they are equal to men because they are bearers of global human rights. There are meaningful reasons why a human rights framework is not the best language for effectuating social change in Cambodia. These trainings assume participation in a rights-based culture. But, for many older Cambodians, the word "equality" is feared because it recalls the policies of the Khmer Rouge. During that period, radical communist forced labor programs meant that all people had to work equally and be fed (or starve) equally. 39 ' But even if the messaging could be corrected, there is something essentially problematic about training women to be feminist. That seems particularly true when some of the women to be trained have previously experienced, or at least know about, the "reeducation camps" of past radical, communist regimes. Human rights trainings like these assume that women, without knowledge of international law, lack the tools to advocate for themselves. This view ignores the fact that much feminist social change predates the human rights paradigm. These trainings further assume that there is no language or style of feminist autonomy that is superior to the global human rights paradigm. By creating trainings, the space for a reevaluation of women's power is occupied by foreign ideas, poorly translated from a foreign language. These trainings may aim to speed up the pace of feminist reform, but they assume that faster social change is better, and that the hard road of building and conceiving a movement can be replaced by Powerpoint presentations. The idea that a woman should be trained to be feminist runs counter to the most fundamental notion of feminism: that women can think for themselves. After all, it took Western feminists time to upend patriarchal systems, and even that process is hardly complete Talking About Domestic Violence, supra note 254, at Talking About Domestic Violence, supra note 254, at See Constitution of Democratic Kampuchea, Dec. 19, 1975, art. 13, ("There must be complete equality among all Kampuchean people...").

68 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 C. Resisting Coercive Feminism As discussed above, Cambodian women continue to invoke somroh-somruel processes to resolve domestic conflicts, even as the law requires police intervention Although they know that the criminal law is available, Cambodians are not using those systems Meanwhile, international advocates argue that further efforts are needed to make the criminal justice system more responsive and to increase reliance on the police state. 394 One way to view Cambodians' rejection of the domestic violence law is as resistance. First, Cambodian women resist a forced-priority of feminist law reforms. Second, Cambodian women reject the notion that violence can only be resolved by the state through its criminal justice framework. Feminist law reforms are not currently a significant priority for Cambodian women. Although the United Nations has announced a goal of eliminating domestic violence by 2015, Cambodian women have other ideas about which reforms ought to take precedence. As the United Nations and other international donors cooperate with the Cambodian government on issues of gender violence, the Cambodian people are taking to the streets seeking election reform and land reform. There have been massive upheavals in Phnom Penh aimed at bringing attention to the deeply corrupt administration of government. These demonstrations include some of the largest in recent Cambodian history. But the issues were the flawed elections and the autocratic rule of Hun Sen, not gender violence. 9 In addition to corruption, one of the most pressing issues in Cambodia is government land takings. 396 The government regularly grants land concessions to domestic and foreign companies to build hotels, dig mines, or plant rubber plantations. The people living on that land are barely compensated and forced to vacate. One of the most well-known activists seeking land reform is Yorm Bopha. 397 She 392. See supra Part II.D See supra Part II.D See supra Part. I.C See, e.g., Kate Hodal, Cambodian Election Protests Grip Phnom Penh, The Guardian (Sept. 16, 2013), /sep/16/cambodia-election-protests-phnom-penh (describing a protest over voting irregularities that turned violent) See Naly Pilorge, Conflict Over Land in Cambodia is Taking a Dangerous Turn, The Guardian (Sept. 25, 2012), global-development/poverty-matters/2012/sep/25/conflict-over-land-cambodia See S.W., Fighting Land-Grabs in Cambodia: A Justice of Sorts, The Economist, (Nov. 26, 2013), banyan/2013/11/fighting-land-grabs-cambodia.

69 2014] Coercive Feminism has endured extended periods of imprisonment and fake trials to bring attention to the need for secure land rights for her fellow citizens. While she was in jail, older women, Cambodian nuns, held peace vigils outside. From that perspective, Cambodian women are among the leaders for social justice. They are not silently suffering victims. But neither are they budding feminists. When one looks at the roiling pot of Cambodian politics it is increasingly possible to see an end to the forty-year reign of the CPP and Hun Sen. But, at the moment, domestic violence is simply not on the agenda. By rejecting the efforts of the United Nations and others to "train" them to resist domestic violence, and instead focusing on the social justice issues of their choosing, Cambodian women are resisting coercive feminism. And by continuing to mediate domestic disputes, Cambodian women show that they are resisting attempts to coerce compliance with a criminal justice model. By implication, women are resisting the very norms that the international model seeks to strengthen. The current "model" approach to domestic violence represents, at best, a brief period in the evolution of Western feminism. Whether one endorses this approach, there is no question that it represents only one possible response to the problem of violence against women. 9 Both American and international policy would benefit from allowing a plurality of responses to flourish. Rather than consolidating our answers to the problem of domestic violence, a plurality of approaches may result, over time, in better ideas. 399 At the same time, continuing to coerce compliance with our current approach may ultimately do a disservice to all. VI. REFLECTING: WHAT LOOKING AT CAMBODIA SHOWS AMERICAN FEMINISTS ABOUT THEMSELVES Post-colonial theory tells us that dominant narratives about the East, (or the global South or the global poor), actually reveal more about the speaker than their presumed subject. 400 The narrative of 398. "Perhaps because of the urgency and magnitude of the problem, muchneeded law reform has been rapid and has resulted in novelties we do not yet fully understand." Suk, supra note 30 at In fact, this holds true on both a local and international scale. As Professor Karen Knop has written, international law offers the possibility of "multivocality." Karen Knop, Here and There: International Law in Domestic Courts, 32 N.Y.U. J. Int'l L. & Pol. 501, 507 (2000) Ruskola, supra note 371, at 196.

70 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 "the East" fails as a descriptive account, but operates instead as a window into the deeply held views of "the West." In that way, examining the global domestic violence narrative reveals important truths about American feminists. We should ask: what does the model approach to domestic violence tell us about the Western idea? The answer is that it tells us something about our default to criminalization and our tendency to make universal judgments based on personal experience. One observation that arises through contrast with the Cambodian experience is that Americans are heavily reliant on law and the state to resolve problems of the family. Women in Cambodia, a nation with a very weak rule of law tradition, experience domestic violence at approximately the same (or lower) rate as women in America, a nation with a strong rule of law tradition." 1 This limited data set suggests, though superficially, that a country's legal tradition does not predict its rate of violence. Yet our adherence to enlightenment legal traditions has caused us to view the state as the preferred answer to the problems of a family. Our uncritical acceptance of those legalistic views has backed us into a corner. On the one hand, it violates our deeply held sense of privacy and individualism to allow the police and courts to end our intimate relationships. Yet, as participants in a highly legal culture, we know it is the prerogative of the state to punish a crime. We defend our reliance on law even as it collapses around us. Reflecting on this position raises the following question: can we imagine an approach to domestic violence that is neither legal nor rights-based? In fact, some American scholars have begun to investigate precisely the type of restorative process that the U.N. model seeks to prohibit abroad. Along those lines, several scholars have suggested a restorative justice approach, not unlike somroh-somruel, that seeks to mediate disputes between intimate partners. 4 2 For example, 401. National Coalition Against Domestic Violence, Domestic Violence Facts (2007), /DomesticViolenceFactSheet(National).pdf See Laurie S. Kohn, What's So Funny About Peace, Love, and Understanding? Restorative Justice As A New Paradigm for Domestic Violence Intervention, 40 Seton Hall L. Rev. 517, 565 (2010) (arguing for restorative justice as an effective domestic violence intervention strategy). One of the first to write in this area was Linda Mills, who suggested that domestic violence was in fact the result of childhood experiences of violence. Accordingly, she proposed a restorative justice-type response which she termed "peace circles," in which women took responsibility for creating violence in their role as mothers. Linda G. Mills et al., Circulos de Paz and the Promise of Peace: Restorative Justice Meets Intimate

71 2014] Coercive Feminism Professor Goodmark suggests that the United States adopt a restorative justice framework. She argues that a restorative approach reaffirms the dignity of the women involved, prevents recidivism, promotes the community's role in crime prevention, and addresses the social context of crime Indeed, scholars and practitioners are increasingly turning their attention to the benefits and drawbacks of a restorative justice approach to domestic violence According to some research, restorative justice programs for cases involving domestic violence have produced favorable results. 0 5 Unfortunately, the relatively small number of examples limits the opportunity for comparison. Whether restorative models are necessarily proper for our culture is yet to be determined. But, one implication of this article is that our dogged adherence to a Violence, 33 N.Y.U. Rev. L. & Soc. Change 127, (2009). Much of the initial criticism of restorative justice in this area was, in fact, rightly critical of Mills's entire project. More recently, however, Kristin Bumiller also raises the possibility of refraining the human rights model in terms of human dignity. She suggests that a human dignity framework identifies the source of power with the individual, and therefore provides space for individuals to craft a response to violence separate from the state. Of course, she imagines that individuals will promote a response to violence that is not dependent on the criminal law apparatus. Bumiller, supra note 19, See also Kohn, supra note 402 at 565 (arguing that restorative justice is likely to be effective due to "direct engagement between the perpetrator and victim, the informality of the intervention, and the interagency and community collaboration"); Lauren K. Williams, The Use of Mediation As A Complement to the Integrated Domestic Violence Courts of New York, 13 Cardozo J. Conflict Resol. 713 (2012) (discussing the use of mediation in New York's Integrated Domestic Violence courts). But see Sack, supra note 29 at 1714 (arguing that restorative justice models may create more risk for the victim and have little success at holding her perpetrator accountable) See Goodmark, supra note 32, at (demonstrating restorative justice makes community resources more available to women, decreases fear and anxiety, and is empowering for women); see also Williams, supra note 402, at 724 (discussing how mediation allows victims to structure their own solutions in ways that address non-legal issues) See Goodmark, supra note 32, at (discussing various benefits and critiques of the restorative justice model in domestic violence intervention); See also Williams, supra note 402, at (explaining arguments for and against using mediation in domestic violence situations); see, e.g., Transformative Justice, Generation Five, (last visited Sept. 21, 2014) (providing an example of a restorative justice system that integrates individual and community experiences in domestic violence intervention and prevention) See Goodmark, supra note 32, at 170 (describing positive outcomes of restorative justice models in increasing victim satisfaction, dignity, self-respect, and self-confidence); see also Williams, supra note 402, at 724 ("mediation can be a vehicle through which victims can gain a sense of control over their lives").

72 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.1:85 rights-based model has slowed our ability to recognize the value in alternative restorative approaches. Another observation generated here is the sincere commitment expressed by the global human rights movement to helping other women. This commitment ought not be trivialized or dismissed. Feminists did not stop at the boundaries of their own experience but instead actively sought to lend a hand to others. A great debt is owed to the champions of the global women's movement who have brought us to this point of worldwide commitment to protecting women's safety in their homes. But even so, it is important to simultaneously recognize the tendency of feminists to draw overbroad conclusions from their personal experiences."' Even if mainstream Western feminists have succeeded in adequately describing their own position, this achievement has limited implications. The fact that others have not made "progress" on a Western vision of women's rights is not a justification for coercive, if well-meaning, projects aimed to bring the world up to speed. Even a sketch of the comparative history of the United States and Cambodia suggests that when demanding that other societies change their ways, we could tolerate a greater skepticism of our own wisdom. During the very times in our history when the trend of feminist liberation was sharply on the rise in America, Cambodians faced problems of an entirely different magnitude. All too often those problems were generated in or endorsed by the West. In the 1960s, when the feminist movement was just taking hold, 4 " 7 Cambodia was experiencing an American bombing campaign that caused massive devastation and internal dislocation of huge numbers of people, leading to the rise of the Khmer Rouge. In the 1970s, when the battered women's movement was beginning, Cambodian women were living under the grip of the Khmer Rouge, literally being worked to death, forced to marry, seeing their newborn babies murdered, and suffering torture and imprisonment in the name of a radical egalitarian vision. In the 1980s, when a theory of law and feminism was beginning to coalesce, Cambodian women were diplomatically isolated from the rest of the world because most countries, including the United States, recognized the Khmer Rouge 406. Kapur, supra note 113, at 32 ("The challenge for feminists has been to think of ways in which to express their politics without subjugating other subjectivities through claims to the idea of a 'true self or a singular truth about all women."); Mohanty, supra note 27, at 335 (describing the "inadequate selfconsciousness" of Western feminists) Stephanie Coontz, A Strange Stirring 149 (2011).

73 2014] Coercive Feminism as the rightful government. In the 1990s, when American women were literally rewriting the laws to prohibit intimate partner violence, Cambodian women were trying, with the help of the United Nations peacekeeping force, to vote out Hun Sen. The peacekeeping process neither eliminated the Khmer Rouge nor resulted in a free and fair election. This history demonstrates that, though the intentions may be good, the West enters Cambodia with much to atone for. 4 8 While Western feminists are not necessarily responsible for failures of Western foreign policy, this history suggests that, for important reasons, social change in Cambodia is taking place on a different schedule than in the West and beginning with different priorities. While the achievements of Western feminists are significant, those achievements do not justify dictating that other women follow the same path. VII. CONCLUSION As international advocates continue to press for further intensification of their efforts to combat domestic violence, this article suggests that it is time to reconsider some of the basic assumptions of that work. International norms around domestic violence that arose out of American feminist principles turn out to be counterproductive at best and harmful at worst as a model in Cambodia and other authoritarian nations. The bold vision of American feminists harnessing the power of the state on behalf of women is inexcusably bad policy in places suffering unchecked police corruption. Further, the assumption, present in both domestic and international policy, that all domestic violence is the result of a gendered power imbalance was at the forefront of theory and data in the 1970s, but not today. Consequently, the international model response to domestic violence is actually ill-suited to address women's needs. In fact, in many cases, restorative dispute resolution systems may offer a better solution. Meanwhile, American advocates may observe that hard-won victories to establish the current domestic violence policies are cause for both celebration and pause. The American response to domestic violence is not ideal for everyone. It is probably not even ideal for us As Mohanty asks, "I wonder if, in 1984, anyone would write a book entitled 'Women of Europe: Roots of Oppression'? What is it about cultural Others that make it so easy to analytically formulate them into homogenous groupings with little regard for historical specificities?" Mohanty, supra note 27, at 340.