CYIL vol. 14 (2023)

PETRA PRESSEROVÁ

CYIL 14 (2023)

5. Critical assessment of the scope of due diligence in the context of violence against women Previous chapters explained the indisputable applicability of due diligence in the researched context. The following chapter focuses more closely on a critical assessment of its specific content and scope in the context of violence against women, especially in light of possible risks of its composition for victims themselves. The critique rises from a question whether the repeatedly emphasized necessity of a specific, particular due diligence in the field of violence against women is really engrained in its design. Also, according to some authors, the concept of due diligence in its form is actually too narrow, and weaker than the general obligations of states to respect, protect, and fulfil human rights. 78 Due diligence’s specificity should derive from special characteristics and features of this violence, such as high latency of violence against women (meaning its systematic underreporting by victims to state authorities); impunity of perpetrators; high traumatization of victims; tolerance, normalization, and trivialization of this violence; common dependence of victims on perpetrators connected to the aspect of power and control typical for this violence (especially in a partnership or a family relationship); or particular dynamics of certain types of violence (such as the cycle of domestic violence). Thus, the author, focusing especially on the character of the due diligence’s duty of individual prevention, argues that the present-day conception of due diligence does not completely take into account said specificities of violence against women and could improve in this regard. The critique particularly holds that (i) there are barriers to the state learning about the violence, (ii) the “real and immediate risk” standard required to trigger due diligence is too high for victims of violence against women, and (iii) excessive state intervention can sometimes be harmful to victims. The first aspect worth discussing is the requirement for the state to learn about the risk to the victim in order for its duty of due diligence to be “activated”. This is problematic especially in relation to victims of domestic violence. 79 It is important to bear in mind that victims of domestic violence often do not report it. In many countries, there is a lack of safe environment and support for victims to do so, and victims face stigmatization, trivialization of their experience, subsequent retraumatization, and revictimization. The vision of a criminal proceeding and the burden it represents for the victim can be daunting. At the same time, some groups of victims may have even more difficult access to reporting and help than others (e.g., migrant women may not turn to the police due to concerns related to their residency status; women of ethnic background may refrain from seeking help due to concerns about racial prejudice etc.). 80 78 See GRIFFITHS, op. cit., p. 280; STOYANOVA, V., Due Diligence versus Positive Obligations: Critical Reflections on the Council of Europe Convention on Violence against Women. In: NIEMI, J., PERONI, L. and STOYANOVA, V., International Law and Violence Against Women [online]. Lund: Routledge, 2020 [Accessed 08.08.2023]. Available from: https://lucris.lub.lu.se/ws/portalfiles/portal/77245891/Due_Diligence_versus_ Positive_Obligations_Critical_Reflections_on_the_Council_of_Europe_Convention_on_Violence_against_ Women.pdf. 79 VAN DIJK (eds.), op. cit., p. 358. 80 GOLDSCHEID, LIEBOWITZ. op. cit. , p. 315.

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