When intimate partner violence becomes femicide

A socio-legal analysis of the Romanian legal framework in light of the Istanbul Convention

Author: Anamaria Tunduc

Spring Semester 2020

Thesis in Law (15 hp)

Master’s Programme in Law, Gender and Society (60 hp)

Supervisor: Lena Wennberg

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Table of Contents

Abstract………………………………………………………………………………..3

Abbreviations………………………………………………………………………….4

INTRODUCTION……………………………………………………………………..6

Background information…………………………………………………...…..6

Aim and Research Questions…………………………………………………..8

Definitions and Limitations……………………………………………………9

Method and Materials………………………………………………………...10

THEORETICAL FRAMEWORK……………………………………………………12

A basic feminist theory……………………………………………………….12

Feminist legal theory…………………………………………………………13

Socio-legal feminist theory…………………………………………………...14

The concept of femicide………………………………………………………14

ANALYSIS…………………………………………………………………………..17

The Council of Europe Convention on preventing and

combating violence against women and domestic violence…………………..17

The Romanian Legal Framework in relation to the Istanbul Convention……..21

DISCUSSION……………………………………………………………………..…26

CONCLUSIONS……………………………………………………………………..29

Works cited…………………………………...……..………………………………..31

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Abstract

Violence against women is a worldwide phenomenon that is mostly found in the private

sphere, yet, laws from the public sphere can work towards the ultimate goal of eliminating

gender-based violence. This research paper is conducted through a socio-legal analysis from a

feminist perspective on the issue of femicide as the most extreme consequence of intimate

partner violence in Romania, as this country has the one of the highest rates of femicide cases

across Europe. The analysis is done in relation to Romania’s ratification of Council of Europe’s

Istanbul Convention in 2016, and it aims to examine the way the country adapted its legal

framework to comply with the provisions of Convention. At the same time, it analyses the way

femicide is addressed from a socio-legal perspective.

Key words: intimate partner violence, femicide, socio-legal, Istanbul Convention

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Abbreviations

EU

GREVIO

Istanbul Convention

European Union

Group of Experts on Action Against

Violence Against Women and Domestic

Violence

Convention on preventing and combating

violence against women and domestic

violence

ANES National Agency for Equal Opportunities

between Women and Men

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Turning a blind eye will not make the problem go away

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INTRODUCTION

“Each femicide should be carefully examined to identify any failure of

protection, with a view to improving and further developing preventive

measures. In addition, a “Femicide watch” by its mere existence would

increase awareness about femicide and other forms of gender-based violence

against women and galvanise actions for its prevention. State should

increase their efforts to use all available global and regional women’s

human rights instruments and experts’ mechanisms to put in place effective

systems to prevent and end femicide and gender-based violence against

women and girls.”

Dubravka Šimonović,

UN Special Rapporteur on violence against women, its causes and consequences

Background information

Violence against women is not at all a new phenomenon. Nonetheless, it is a major

societal issue that, contrary to beliefs, affects women regardless of age, race and ethnicity in

all countries around the world, and which takes place mostly in the private sphere. It is a

“global, systemic” phenomenon characterized by “power imbalances and structural

inequalities between men and women” (UNODC, 2011, p. 57). Violence against women is a

structural phenomenon of gender inequality. It is a subject of interest not only from a human

rights or gender violence perspective, but also from a social, legal and cultural one, or even as

a public health related matter.

According to statistics, it is said that approximately 35 per cent of women have

experienced physical or sexual violence at some point in their lives, frequently committed by

a male intimate partner (UN Women, 2019). In the past years, there seems to have been an

increase in the number of cases of intimate partner violence across Europe, which often leads

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to femicide/feminicide, generally defined as the intentional killing of females based on their

gender, making this a woman-centred social problem. It is estimated that seven women die

daily because of male domestic violence (PES, 2014), and despite Europe having the lowest

rate of femicides compared to the rest of the world, the numbers are still staggering.

Since it is believed that many of the problems faced by women are caused by social,

economic, cultural and political contexts, hence, “the personal is political” (Hanisch, 2006, p.

1), it is needless to say that demanding actions and solutions at a policy level has been the

obvious next step in order to hold the perpetrators accountable. Therefore, given these

circumstances, the Council of Europe paved the way in 2011 with the first regional preventive

and legally binding instrument, the Convention on preventing and combating violence against

women and domestic violence, otherwise known as the Istanbul Convention, which interprets

violence against women as a violation of human rights and through which several forms of

violence against women are defined and criminalised. In relation to this, the ratifying countries

adapted their gender-neutral or even male-centred national legislation to one including the

concept of gender-based violence.

It has been said that the measures taken to end violence need statistical evidence that

shows whether violence is increasing or decreasing in order to prove their effectiveness

(Walby, et al., 2017, p. 17). Despite the implementation of legal frameworks and the efforts

made to eliminate violence against women, the available statistics show that there is a

significant and continuously increasing rate of cases of violence against women across Europe.

Consequently, femicide is one of the most precarious acts of violence that women can

experience.

At the time of writing, the global pandemic of COVID-19 has affected most of the

population of the world, with almost half being under lockdown. In the context of strict

confinement rules imposed by governments and according to currently emerging data, this

appears to have resulted in increased levels of domestic, sexual and gender-based violence

(CoE, 2020), which in turn makes this an issue of greater concern.

Based on the above, there is no doubt that women suffer violence and die

disproportionately at the hands of their partners in any country at any time. Romania, currently

a member of the European Union and the Council of Europe, has been experiencing domestic

violence as a widespread social problem for a long time before being addressed in legislation

(Wimmer & Harrington, 2008, p. 624). According to Eurostat statistics, although it is not the

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country with the highest number of female deaths in Europe, Romania has the highest

percentage of femicides. In this country, there is a rate of 4.3 intentional homicide victims

committed by an intimate partner or a spouse per million inhabitants (Eurostat, 2020; Blunt,

2019).

With Romania’s ratification and entry into force of the Istanbul Convention, it would

be of wide interest to analyse Romania’s legal developments in relation to the Convention, but

also to address the gender inequality and social aspects that lead to femicide from a feminist

perspective.

Aim and Research questions

The main aim of this research paper is to examine from a feminist socio-legal

perspective how the problem of violence against women, more specifically the issue of

femicide as a consequence of intimate partner violence, has been addressed by the legal

framework in Europe to begin with and subsequently, in Romania. The analysis will be done

in relation to the Council of Europe Convention on preventing and combating violence against

women and domestic violence, hereafter the Istanbul Convention or the Convention. It is

necessary to shed light and to raise awareness, especially now in light of the current pandemic,

about domestic violence no matter the forms it takes and to look at whether it can be prevented

or not through legal measures. It is equally important to keep in mind, however, that intimate

partner violence is one of the most prevalent forms of violence against women, which is a

matter often perceived as invisible, and that femicide is the most extreme form of intimate

partner violence.

In order to achieve the aims of this research paper, the following research questions

should be answered:

• How does the legal framework fulfil its role in protecting women against gendered

violence in Romania in light of the Istanbul Convention?

• How is femicide placed and addressed in a socio-legal context/perspective?

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By examining the above-mentioned issues which lead to answering the research

questions, this paper seeks to address a more comprehensive view on the effects of the

legislative measures linked to the Istanbul Convention and also to raise awareness about the

invisibility of femicide in society since there is little discussion and research done on this matter

from a socio-legal and gender perspective in a Romanian context.

Definitions and Limitations

Domestic violence is primarily described as a form of gender-based violence and it is

defined by the Istanbul Convention as “all acts of physical, sexual, psychological, or economic

violence that occur within the family or domestic unit or between former or current spouses or

partners, whether or not the perpetrator shares or has shared the same residence with the victim”

(Art. 3, b).

According to the World Health Organisation, intimate partner violence is defined as the

“behaviour within an intimate relationship that causes physical, sexual or psychological harm,

including acts of physical aggression, sexual coercion, physiological abuse and controlling

behaviours. This definition covers violence by both current and former spouses and partners”

(WHO).

As it can be observed, both the definitions of domestic violence and intimate partner

violence are very similar. Therefore, the terms are to be used interchangeably throughout this

research paper. However, it is important to note that the terms used to define the above-

mentioned issues are gender neutral from a linguistic point of view. Nevertheless, the Istanbul

Convention further defines violence against women, as well as gender-based violence against

women, therefore, highlighting the gender dimension of the problem.

Although intimate partner violence affects both heterosexual and same-sex couples, the

scope of this research will be limited to studying intimate partner violence against women in

heterosexual relationships since they are considered to be the majority of domestic violence

victims. Therefore, in line with the violence against women tradition, in this paper men are

considered to be the main perpetrators of intimate partner violence.

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Method and materials

As previously mentioned, this research paper aims to follow a socio-legal approach

from a feminist perspective in order to address its aims and research questions. To begin with,

socio-legal research saw its development as “the study of the law in its social context”, among

others (Feenan, 2013, p. 4). Therefore, since the main purpose is to examine intimate partner

violence through law, the main legal point of interest in this paper is represented by the Istanbul

Convention and the effects following its implementation in Romania.

While the socio of the socio-legal generally represents “an interface with a context

within which law exists” (idem, p. 5) there is a part where this law deals with women’s

experiences of gendered lives (Hunter, 2013, p. 205). Under such circumstances, the feminist

socio-legal thought emphasizes “the gendered nature of the socio” (idem). For the purpose of

this paper and in line with a feminist, gendered socio-legal approach, intimate partner violence

and femicide are to be considered the gendered socio. In order to approach this issue, feminist

socio-legal theory will be used.

By using the law-in-context approach, which will allow an analysis of “legal rules in

their social context and enable an understanding to be developed of how legal rules worked”

(Feenan, 2013, p. 7) the goal is to show how the Istanbul Convention has been enacted in the

Romanian socio-legal context.

In pursuing its goals, this research paper will make use of both primary and secondary

sources. As previously noted, the Istanbul Convention plays a key role in the legal analysis that

is conducted together with other traditional sources of law, such as the appropriate criminal

provisions of the Romanian Penal Code and other Romanian legislative texts related to

domestic violence. These sources have been acquired from the official websites of the

concerned institutions. To highlight the problems posed by intimate partner violence and

subsequently femicide and to present the various perspectives on the matter, secondary sources

have been represented by scholarly texts and expert reports, among others. These have been

consulted mainly through online access to Umeå University’s library, as well as other

institutions’ websites.

To sum up, the chosen method and materials go hand in hand with the theory.

Consequently, this allows for a socio-legal approach to be conducted, which will highlight the

context in which the law is enforced. This is because in a socio-legal approach the law is

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interconnected with “the analysis of the social situation to which the law applies” and observes

how the law maintains or changes the situation (Schiff, 1976, p. 287).

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THEORETICAL FRAMEWORK

To begin with, feminism may be broadly defined as an effort directed at challenging

and changing existing power and gender relations between men and women in society (Ferree

& McClurg Mueller, 2004, p. 577; Weedon, 1987, p. 1). On the other hand, intimate partner

violence is a phenomenon that brings the attention to the interdisciplinary nature of feminist

thought (Levit & Verchick, 2016, p. 204). The need for understanding why domestic violence

occurs and what are its consequences on the society gave rise to feminist explanations that use

concepts of patriarchy, gender, and power. Feminist insights on violence against women

provide a theoretical basis for this research paper.

A basic feminist theory

Feminist theory, quoted as being “the patriarchal perspective” (Taylor & Jasinski, 2011,

p. 342) considers the problem of intimate partner violence as having its roots in gender

inequality and views it as a brutal consequence of the patriarchal domination of men over

women, and therefore as being “oppressive and lethal for women” (Corradi, Marcuello-Servos,

Boira, & Weil, 2016, p. 979). Women’s subordination, therefore, gender inequality is closely

linked to patriarchal beliefs. Researchers say that these beliefs exist in all societies, yet they

vary according to the type of society in which they occur (Mansell, Meteyard, & Thomson,

2004, p. 82). Nevertheless, the unequal power distribution between women and men highlights

the fact that violence is a tool of keeping women under control, hence, in the benefit of the

perpetrator. The gendered power relations are at the core of patriarchy. Feminists pinpoint the

source of intimate partner violence on the societal level and they argue that “oppressive views

of women are not only culturally sanctioned but also embedded in and expressed through all

social institutions” (Taylor & Jasinski, 2011, p. 342). In order to analyse and understand how

intimate partner violence and femicide occur, it is essential to understand how the patriarchal

system and the gender relations work in a specific context. Not only may the social institution

of marriage and family, for example, promote and support men’s physical violence against

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women, in a context where the criminal justice system enforces light sanctions against

perpetrators, but also “the refusal of the state to intervene effectively in terms of welfare

provision and criminal justice responses to support women is part of the problem” (Wendt &

Zannettino, 2014). It is nonetheless important to mention that while using the patriarchal

concept, feminists avoid blaming the female victim and do not focus on whether she provoked

or not men’s acts of violence.

Feminist legal theory

Feminist legal theory developed from (the basic) feminism in general and it highlights

“the role of law in describing society and in prescribing change” (Levit & Verchick, 2016, p.

9).

Dominance theory, otherwise known as radical feminism, a part of feminist legal

theory, was first introduced by Catharine MacKinnon. It aims at the liberation from men by

focusing on the power relations and power difference between women and men. According to

this theory, men are privileged by the social institutions and the women are subordinated.

Women fear violence against them. Law is complicit in portraying women as inferior and at

the same time, it provides inadequate responses to violence against women while reinforcing

male domination (idem, p. 20-21). According to MacKinnon, male violence against women

reflects inequality and women’s subordination. Additionally, she claims that law fails to

address the conditions that contribute to male violence (Weisberg, 1996, p. 282).

Another contribution of the feminist legal theorists is that they reframed intimate

violence from a private issue into “a manifestation of a social system” of male power

dominance. Relying on criminal justice measures was a way of the feminist approach to bring

the private violence into a public realm. At the same time, to view domestic violence as a public

matter posed challenges because it has profound implications for societies. They drew

awareness about “the prevalence, effects, and gendered nature of intimate violence and the

cultural norms that shape current legal responses to it” (Levit & Verchick, 2016, p. 193).

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Socio-legal feminist theory

Turning to a socio-legal feminist theory, it is important to mention that socio-legal

theorists are equally interested in the social experience and effects of law as the feminist legal

researchers. Yet, one major concern was the lack of a connection between women’s

experiences and law. Thus, from a socio-legal perspective, this had to be tackled.

One the one hand, feminist theory of international law points out that, similarly to all

legal systems, the human rights system and the international criminal law are created primarily

by men. This resulted in protecting humans from violations which predominantly men are

likely to suffer from and therefore, gender-based violence against women was not a relevant

issue (Gebhard, 2018, p. 172). Thus, it can be said that “legal gender-blindness disadvantages

women” (Hunter, 2013, p. 210) since laws don’t address their experiences. On the other hand,

introducing a gender dimension into a legal discourse would result in the “constitution of

subjects and of the social” (idem, p. 211). Furthermore, the feminist approach to socio-legal

studies focuses on the implications of gendered power relations in law and society (Hunter,

2020, p. 260). In relation to all this, feminist socio-legal and criminological researchers

demanded reforms in the legislative context of gendered violence, for example, homicide and

laws criminalising violence against women, as it was considered that the legal system is the

best way to accommodate women’s experiences in relation to men’s acts of violence. Despite

the fact that the effectiveness of legal measures is highly contested, “recourse to the law

remains one of the central planks of policy responses” on preventing violence against women

(Walklate, Fitz-Gibbon, & McCulloch, 2018, p. 116).

The concept of femicide

Since femicide as a consequence of intimate partner violence represents a point of

discussion in this research paper, it is essential to draw attention to the fact that femicide is an

increasing phenomenon. Some might even argue that it needs to be distinguished from similar

forms of violence, “as a crime that is not only homicide, it is femicide” (Bandelli, 2017, p. 73).

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The current use of term femicide emerged in the feminist discourse of the 1970s. To

begin with, femicide was considered to be “the misogynous killing of women by men”

(Radford & Russell, 1992, p. 3). This has later been adapted to “the killing of females by males

because they are females” in order to emphasize the inequality of gender relations and the

concept of male power and domination over women (PATH, MRC, WHO, & Intercambios,

2008, pp. 8-9). Throughout time, feminist scholars have defined the concept of femicide in

various ways, yet today’s commonly accepted definition asserts that it involves the “intentional

murder of women because they are women” (WHO & PAHO, 2012). While the term femicide

is not a legal one, it is steadily being introduced into the social and legal discourse on violence

against women, and its use and understanding have been narrowed down to be a gender-related,

intentional killing of women. Despite the emerging use of the term femicide at European level,

for the scope of this paper, it has to be mentioned that femicide (femicid) does not exist in

Romanian language as a term of itself, although it has been used in academic research and

other studies.

From a legal perspective, femicide is a phenomenon part of homicide investigations

where the use of the term murder, as well as the use of the legal term homicide are gender

neutral, therefore, making invisible the gender-related characteristics of femicide as a social

and legal phenomenon concerning women. In other words, from a neutral perspective, femicide

means homicide of a female while highlighting the gender of the victim without implying any

motive or context. On the contrary, from a political perspective, the use of the term femicide

implies the motivations behind the killing as being related to the victim’s gender. Currently,

the term is generally used when describing the intentional killing of a woman, regardless of the

relationship with the perpetrator.

The introduction of the gender dimension in the intimate partner violence discussion

and highlighting the fact that women are killed because they belong to a specific gender

category is a necessary step in the efforts to eliminate this phenomenon. This is because,

according to patriarchal terms, it means allowing to see the woman as inferior, and therefore,

killing a woman would be an acceptable situation.

Additional attention was given to this matter in 2013 through the Vienna Declaration

on femicide, which offered a broad definition of femicide and the different forms it takes. For

example, femicide can appear as the murder of women as a result of intimate partner violence,

or as the torture and misogynist slaying of women, among others. In addition to this, it was

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called for the full compliance with national and international legal instruments of countries in

order to put an end to femicide (Laurent, Platzer, & Idomir, 2013, p. 4).

Femicide typically happens both in intimate partner relationships and domestic

relationships. It is true that the social, cultural and economic context, the pattern of gender-

based violence in a specific community or country can be used to explain why femicides take

place. However, although some might argue that femicides need to be addressed in their own

specific contexts it is important that they are not treated as isolated incidents.

Feminism is the most appropriate perspective to explain femicide due to its “emphasis

on sociostructural oppressive views of women”, in addition to the fact that “heterosexual

relationships provide a culturally sanctioned perceived right on the part of men to assert and

maintain power and control” over women (Taylor & Jasinski, 2011, p. 354). Moreover, it

deploys a gendered aspect in the social interpretation of femicide through the feminist critique

of inequality in a patriarchal context.

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ANALYSIS

The Council of Europe Convention on preventing and combating violence against

women and domestic violence

Throughout the years, several measures were undertaken in order to protect women

from violence across Europe. One of these measures is the Council of Europe Convention on

preventing and combating violence against women and domestic violence, hereafter the

Istanbul Convention, that was open for signature on 11 May 2011 and which entered into force

on 1 August 2014. As its name says, this treaty aims at protecting women from violence in

both the public and private sphere (Art. 4, para.1) preventing and prosecuting acts of violence

against them, while ultimately eliminating this phenomenon through a human rights-based

approach (CoE, 2011, p. 6). Once all the European Union member states give their approval,

the EU can ratify the Istanbul Convention, and this will become EU law.

The Istanbul Convention acknowledges that all forms of violence affect women

disproportionately. At the same time, it understands violence against women as a structural

phenomenon and “a manifestation of historically unequal power relations between women and

men”, which is in line with the feminist thought on patriarchy and gender inequality. The

Istanbul Convention also emphasizes the gender dimension by using a dual focus on women

and on domestic violence (Walby, et al., 2017, p. 24).

In order to monitor the effective enactment of the Istanbul Convention by the signatory

states, an independent expert body was created. The Group of experts on action against

violence against women and domestic violence, hereafter GREVIO, is responsible for

monitoring, issuing reports as well as recommendations regarding the legislative measures

taken by the signatory parties (Chapter IX).

The Istanbul Convention aims to achieve its purposes through prevention (Chapter III),

protection and support (Chapter IV), prosecution (Chapter V, VI) and integrated gender-

sensitive policies and data collection (Chapter II). Furthermore, it is a significant document of

criminal law as it addresses a range of criminal offenses committed against women, such as

physical and psychological violence, sexual violence and harassment, and forced marriage,

among others. Yet, for the scope of this research paper, it is important to note that the Istanbul

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Convention does not refer to femicide, nor does it use this term in its content. Although, by

making reference to criminalising acts of physical (Art. 35) and psychological (Art. 33)

violence intentionally committed against a person, it can be implied that, domestic violence in

general, and femicide (as per definition) as a form of intimate partner violence are addressed

by the Convention.

Considering that this research paper undertakes a socio-legal analysis, looking into

substantive law is the most apposite choice since it rules the way people in a society are to

behave (Legal Dictionary, n.d.). At the same time, criminal law provisions are necessary in

order to achieve the effective prosecution and punishment of the perpetrators and to protect

women. For this reason, one of the steps is to conduct a legal analysis of the substantive

provisions related to criminalising gender-based violence against women, intimate partner

violence and thus, femicide, where the relevant provisions of the Istanbul Convention state

that:

“Article 35 – Physical violence

Parties shall take the necessary legislative or other measures to ensure that the

intentional conduct of committing acts of physical violence against another person

is criminalised.

Article 46 – Aggravating circumstances

Parties shall take the necessary legislative or other measures to ensure that the

following circumstances, insofar as they do not already form part of the constituent

elements of the offence, may, in conformity with the relevant provisions of internal

law, be taken into consideration as aggravating circumstances in the determination

of the sentence in relation to the offences established in accordance with this

Convention:

a. the offence was committed against a former or current spouse or partner

as recognised by internal law, by a member of the family, a person

cohabiting with the victim or a person having abused her or his authority;

b. the offence, or related offences, were committed repeatedly;

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c. the offence was committed against a person made vulnerable by particular

circumstances;

d. the offence was committed against or in the presence of a child;

e. the offence was committed by two or more people acting together;

f. the offence was preceded or accompanied by extreme levels of violence;

g. the offence was committed with the use or threat of a weapon;

h. the offence resulted in severe physical or psychological harm for the victim

i. the perpetrator had previously been convicted of offences of a similar nature.”

As it can be observed, the above-mentioned criminal law provisions of the Convention

are introduced in a gender-neutral way. In other words, neither the sex of the victim nor of the

perpetrator should be an essential element of the crime and this should not hinder the

introduction of gender-specific provisions by the signatory countries (CoE, 2011, p. 28).

The Explanatory Report of the Istanbul Convention highlights the fact that physical

violence encompasses violence resulting in the death of the victim (idem, p. 32), thus, such a

provision is extremely important as it can be applied to femicide as the intentional killing of a

woman. Through Article 46 and the mentioned circumstances (a – i) it is reinforced that in

establishing the penalty these circumstances can be considered as aggravating, however, they

are not compulsory to be taken into account in the context of a court case. Nonetheless, in case

of intimate partner violence and femicide, the first of the aggravating circumstances covers the

various circumstances of the relationship between the victim and the perpetrator, for example,

as former or current marital or non-marital partner, but also as family member, regardless of

the household cohabiting conditions (idem, p. 40).

Furthermore, under certain circumstances, the addition of the Article 42 of the

Convention can prove valuable. This is due to the fact that its provisions state that “any of the

acts of violence covered by the scope of this Convention, culture, custom, religion, tradition,

or so-called ‘honour’ shall not be regarded as justification for such acts”. This means that these

elements cannot be used as a justification for the perpetrator’s behaviour in the case of a

criminal offence, such as violence against women.

When it comes to procedural law, the Convention calls for the immediate response of

the responsible authorities in cases of violence, without delay and by offering adequate and

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immediate protection to the victims, and even restraining and protection orders in order to

protect the victims from further violence. This is illustrated as following:

“Article 53 – Restraining or protection orders

1. Parties shall take the necessary legislative or other measures to ensure that

appropriate restraining or protection orders are available to victims of all forms

of violence covered by the scope of this Convention.

2. Parties shall take the necessary legislative or other measures to ensure that the

restraining or protection orders referred to in paragraph 1 are:

- available for immediate protection and without undue financial or

administrative burdens placed on the victim;

- issued for a specified period or until modified or discharged;

- where necessary, issued on an ex parte basis which has immediate effect;

- available irrespective of, or in addition to, other legal proceedings;

- allowed to be introduced in subsequent legal proceedings.

3. Parties shall take the necessary legislative or other measures to ensure that

breaches of restraining or protection orders issued pursuant to paragraph 1 shall

be subject to effective, proportionate and dissuasive criminal or other legal

sanctions.”

As it can be observed, the main role of the restraining or protection order is to prevent

immediate and further acts of violence, with the overall aim to protect the victim. Each

signatory country can choose the appropriate legal regime to issue such orders (CoE, 2011,

p.45).

Apart from legislative measures, another important aspect in achieving the purpose of

the Convention is provided by the requirement of the signatory states to adopt the necessary

measures in order to ensure the protection of the victims through general and specialised

support services, by setting up shelters and helplines, and by offering assistance for complaints,

among others. Last but not least, adequate data-collection is considered to be “an essential

component of effective policy-making in the field of preventing and combating all forms of

violence covered by the scope of this Convention” (idem, p. 14). This means that an accurate

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data-collection on the number of femicide cases could sensitize the society on the issue of

domestic violence as well as contributing to policy changes, for example.

There is no doubt that requiring member states to create national legal tools through

substantive and procedural provisions, to offer protection and to make efforts to prevent

violence against women from happening, the Istanbul Convention aims to protect women from

all forms of violence. However, the main question is, if and how are the signatory countries

implementing all the legal and social measures in order to protect women from intimate partner

violence and consequently, femicide, since the Convention has been criticised for its criminal

law provisions as they “do not succeed in challenging national criminal laws” (Niemi, Peroni,

& Stoyanova, 2020).

The Romanian Legal Framework in relation to the Istanbul Convention

Romania is the 14th state that ratified the Istanbul Convention and the document entered

into force on 1 September 2016. Since then, according to Romania's Government first report

on the implementation of the Council of Europe Convention on preventing and combating

violence against women and domestic violence (Istanbul Convention) the country “embarked

on an ambitious and comprehensive reform of domestic violence legislation” in order to

implement the Convention’s provisions (2020, p. 1). In other words, the country has to comply

with taking all the necessary measures imposed by the Covention so as to respond to the

problem of gender-bassed violence and domestic violence.

First and foremost, the concept of gender equality is recognised as a principle of human

rights through the Constitution of Romania.

Since the purpose of this paper is to look into the way Romania adapted its legal

framework to prevent and protect victims from domestic violence in the first place in

accordance with the Istanbul Convention, it has to be mentioned that the main sources of gender

equality law are to be found in the national legislation and international treaties that the country

has ratified. Prior to the ratification, the pre-existing legal framework “was only part in

compliance with the obligations under the Convention” (Ionescu, 2020, p. 52). Thus, among

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the most important measures taken by the Romanian Parliament with regard to preventing and

combating domestic violence are the following legislative acts that have recently been updated:

• Law no. 174/2018 amending and supplementing Law No. 217/2003 on Preventing and

combating violence within the family, which introduces a victim-centred perspective

and additional measures to prevent domestic violence and to support victims that suffer

from domestic violence, for example, the protection order. At the same time, this law

brings modifications regarding the unacceptable justification of criminal acts, which

brings it in line with Article 42 of the Istanbul Convention.

• Law no. 178/2018 amending and supplementing Law 202/2002 on Equal opportunities

and treatment between women and men, otherwise known as the Gender Equality Law,

in which the most important aspect is the one regulating the concept of gender-based

violence against women, or men, depending on the situation, according to Article 3, d

of the Istanbul Convention (ANES).

Initially, The Romanian Penal Code was amended by Law no. 197/2000 that was setting

sanctions for perpetrators of acts of violence against family members that cause physical and

psychological suffering. Later on, the Penal Code was amended by Law no. 286/2009 that

brought the following changes in the Special part:

Title I – Crime against individuals, Chapter III – Offenses against a family member

Article 199 Domestic violence1

(1) If the acts set by Art. 188, Art. 189, and Art. 193-195 are perpetrated against a

family member, the special maximum term of the penalty set by law shall be

increased by one fourth.

(2) In case of offenses set by Art. 193 and Art. 196 perpetrated against a family

member, a criminal action may be initiated also ex officio. Reconciliation shall

eliminate criminal liability.

1 The version in English of the articles may differ depending on the various unofficial published translations of the Romanian Penal Code. (Romania - Law on the Criminal Code)

23

On the one hand, Art. 188 refers to homicide/murder and the perpetrator’s punishment

with imprisonment, while Art. 189 establishes a different punishment under certain

circumstances of an aggravated first degree (qualified) murder. On the other hand, through the

Art. 193-195 battery and other acts of violence, bodily injury and death-causing battery or

injuries are being punished.

As it can be observed, there is a higher punishment in the case of some of the offenses

in the Criminal Code depending on the nature of the relationship between the victim and the

perpetrator. Therefore, the provisions of the Romanian Criminal Code regarding domestic

violence are in line with the Article 46 of the Istanbul Convention that mentions the aggravating

circumstances.

With regard to other substantive provisions of the Istanbul Convention, the Criminal

Code of Romania recognizes all the forms of violence referred to in the Convention as criminal

offences, with the addition of the domestic violence definition in the Law no. 217/2003 as

following:

“Article 3

domestic violence refers to any action or omission to act intended by physical,

sexual, psychological, economic, social or spiritual violence, which occurs in the

family or domestic environment or between spouses or former spouses, as well as

between current or former partners, regardless of whether the aggressor lives with

or lived with the victim.”

Through the introduction of this definition into the Romanian law, despite the fact that

intimate partner violence is not recognised as a specific offence other than domestic violence,

and since femicide does not exist as term nor it is a criminal offence recognised by law, in

connection with the recognition of a gender-related motive for committing a crime, this has

been a major step in creating the legal context for prosecuting male perpetrators who kill

women.

Another major step to be enforced through the Istanbul Convention is the one

concerning the restraining or protection orders, which in the case of Romania was not an easy

task. Initially, authorities believed that such an order would violate the constitutional right to

24

property of one of the partners, thus back then a criminal complaint against the abusive partner

would only give her the option to return under the same roof as the perpetrator or leave with

the risk of being found and abused again (Sandu, 2019). In 2011, Romania was the only

remaining country of the EU not to have implemented the protection order. After a series of

protests and unfortunate events of femicide, the discussion on the protection orders resurfaced.

It was only in 2012 that the Law no.217/2003 was amended with the mention of a protection

order. With the ratification of the Istanbul Convention, the same Law no. 217/2003 was

amended in 2018, by regulating the provisional protection order, therefore, giving immediate

rights to the Police to act upon the complaint depending on certain circumstances.

The protection order is of course not the only legal instrument to protect victims, but it

is the most visible one, and in the Romanian context it could be considered a successful effect

of the Istanbul Convention.

According to statistical data from the justice sector on the victims of family violence

for 2018, there is a total of 1647 victims and 1360 indicted defendants of various domestic

violence offences, from which 207 are murdered victims and 199 indicted defendants as per

Article 188 and Article 189 of the Criminal Code. The total numbers have slightly decreased

compared to 2017, when there was a number of 213 murdered victims and 206 indicted

defendants (Public Ministry). At the same time, Police statistics for 2019, show an increased

number of 244 cases that ended up in murder. It is important to add that these number do not

indicate the sex of the victim and of the perpetrator or the relationship between them. On the

downside, Romania does not provide data on women victims of intentional homicide by an

intimate partner or family member (EIGE, 2019). The only statistical data with public access

are general, as seen above, and provided by the Public Ministry. Although there is available

collected data by the Police and the justice sector that records the sex of the victim and the

perpetrator, as well as their relationship, this is available only upon official request (EIGE,

2018).

It is needless to say that the lack of in-depth national statistical data regarding domestic

violence, victims and perpetrators and thus, femicide, hinders the capacity to get a real and

comprehensive understanding of these phenomena. Through the Romanian National Strategy

for the Promotion of Equal Opportunities and Treatment for Women and Men and Preventing

and Combating Domestic Violence for the Period 2018-2021 the country commits to launching

an integrated system to follow, report and prevent all forms of domestic violence by

25

strengthening the legislative framework, developing support and protection measures for

victims, as well as preventing domestic violence overall.

In order to implement the National Strategy and oversee the execution of a gender equal

perspective in all national policies and programmes, a government institution was given this

responsibility.

The National Agency for Equal Opportunities between Women and Men (Agenția

Națională pentru Egalitatea de Șanse între Femei și Bărbați) created in 2002 was re-

transformed into an Agency in 2015 after having previously been downgraded into a

Government Department for Equal Opportunities between Women and Men due to the

economic crisis. Its responsibilities consist of developing and applying policies related to equal

opportunities between women and men, developing the legal framework in accordance to

international conventions, ensuring the integration and implementation of a gender perspective

in the national policies, and of course, fighting domestic violence among others (Law no.

202/2002). Despite its responsibilities according to law, unfortunately, ANES is considered to

be “a decorative institution” that has little competence to enhance the implementation of the

public policies related to domestic violence and gender equality (Ionescu, 2020, p. 59). Its role

can undoubtedly be questioned in a context where research show that “almost half of

Romania’s population is not aware of the existence of a legal instrument that regulates domestic

violence” (Safta, Stan, Iurea, & Suditu, 2010, p. 2035).

Taken together, the adoption of new laws and measures to combat and prevent domestic

violence and the development of the Romanian legal framework in accordance with the

Istanbul Convention can be seen as a fundamental step towards achieving greater gender

equality. It is also well known that law is the “accepted mechanism for resolving social and

individual problems and conflicts” (Smart, 2002), therefore, one could assume that law is

enough to solve the problem of femicide. But is law really enough?

26

DISCUSSION

Since this research paper aims to conduct a feminist socio-legal discussion, it is

essential to underline the need of a social framework “in order to gain a full understanding of

both the facts and the law” (Hunter, 2020, p. 265). For this reason, a short insight into the

Romanian social context must be taken into account.

Following the fall of communism 30 years ago, it is said that in Romania, “from a

liberal point of view, the personal was never political for women” and that women’s inequality

is justified “by nature” (Miroiu, 2006, p. 84). Gender equality remains to this day a somewhat

alien concept in practice for the majority of the country’s population despite having had

implemented gender equality related legislation “on paper”, over the span of time. The

explanation for this social reality of gender inequality is based on the traditional and patriarchal

cultural norms that are deeply entrenched in people’s way of living and behaving in Romania

(Oprica, 2008, p. 29) and where both women and men still believe in the folkloric expression

that “beating comes from heaven” (Roman, 2001, p. 58).

It is frequently said that intimate partner violence, or domestic violence in no matter

the form it takes, have their roots embedded in the social and cultural beliefs about gender roles

and that they are supported by the patriarchal ideology and practices. It seems that the social

and cultural acceptance of domestic violence is prevalent worldwide (Wimmer & Harrington,

2008, p. 625). Romania is no exception.

The general gender based violence discourse “affirms that men are violent towards

women intentionally for the sake of controlling and re-establishing male superiority against

women’s violation of patriarchal gender norms, and that this behaviour is culturally encouraged

or accepted” (Bandelli, 2017, pp. 52-53). Similarly, a gender discourse of violence claims that

men kill women for the same reasons that induce them to commit other forms of violence, such

as rape. This is justified once again by the support from their culture to express control over

women (Bandelli & Porcelli, 2016, p. 1076).

In Romanian culture, women are usually presented within the gender politics of

patriarchy (Roman, 2001, p. 60) and men believe they are entitled to exert their power on

women, and in consequence, they are considered killable. Nevertheless, on a societal level, the

debate that takes place puts a spotlight on the ubiquity of domestic violence, but less on its

27

causes, and more on the ineffectiveness of the protection measures for victims of domestic

violence. This is most prevalent in cases where the authorities, police for example, know about

the history of violence against women who are later killed by their aggressors (Sandu, 2019).

Domestic violence, in general, in Romania, is a phenomenon that is under-reported and

because of this, there are many more chances of it leading to femicide, the intentional killing

of a woman. It is well known that intimate partners are the most frequent perpetrators.

“Intentional” in the case of a violent crime usually means that “the victim was targeted by the

perpetrator either in the heat of the moment or as a result of some degree of planning”, whereas

in the case of femicide, “there can be a more narrowly targeted meaning” (Walby, et al., 2017,

p. 64).

As previously mentioned, the law is thought to be the means to resolve social problems,

while, it is also acknowledged that the more women resort to law, the more hostility is

generated. Clearly, the criminalisation of violent behaviour and acts of violence against women

is sending a strong message about what is acceptable or not, yet, an important role that prevents

women from reporting violence against them is played by shame, humiliation and fear. If the

lack of a protection order used to be a problem in the Romanian legal context, as previously

mentioned, after its introduction, the problem that arose was the withdrawal of the criminal

complaint by the victim. On the one hand, this is a consequence of threats from the perpetrator,

which aim to provoke fear in most cases. For this reason, it is important to keep in mind that

lethal acts of violence against women in intimate relationships are usually preceded by ongoing

verbal and emotional abuse, acts of physical violence and threats, which could be prevented

with the right measures. Another reason could be simply blamed on the economic factors that

would not allow women to carry on with a criminal case. On the other hand, the issue concerns

the lack of trust in the responsible authorities to protect victims from domestic violence.

Women seem not to be believed and listened to, or even judged by the same authorities that

should help them (Sandu, 2019).

The fact that women are reluctant to report their partners for violence committed against

them, not only perpetrates the problem of intimate partner violence, but also contributes to

unfortunate consequences, such as femicide. At the same time, the under-reporting of domestic

violence cases prevents this issue to gain more visibility on a nation-wide level. Given this

context, it can be added that the lack of accurate statistical information on gender-based

violence limits the research on the matter as well as a general awareness raising.

28

The enclosure of the sex of the victim and the sex of the perpetrator, as well as

establishing the relationship between them is necessary in the issue of intimate partner

violence, and subsequently femicide, since this is important data to the analysis of the gender

dimensions of violence (Walby, et al., 2017, p. 62). In this way it can be established, among

others, if there is a gendered motivation that resulted in femicide.

29

CONCLUSIONS

Undoubtedly, violence against women is gender-based violence and a human rights

violation and it is a widespread phenomenon, or as it has recently been called, “a widespread

pandemic without borders” (Simonovic, 2020). Therefore, first and foremost, having

conducted this research, it can be concluded that violence against women, regardless of the

forms it takes, is indeed a complex socio-legal phenomenon that requires a multidimensional

approach.

It is also needless to say that violence against women has deep consequences for society

at large and that victims of gender-based violence suffer lifelong consequences from intimate

partner violence. For this reason, it is of outmost importance to address this woman centred

social problem of intimate partner violence, and subsequently, femicide, that is generally

looked at from a male-centric perspective of the law.

Thanks to (feminist) legal measures, femicide is increasingly being perceived not only

as a social problem, but also as major problem in legal terms. It has been discussed that a

successful prevention of violence against women and femicide could be achieved through legal

measures and equality between women and men in society. However, can the social context

predict if an individual will kill? Most probably not. But together with the legal framework,

the right measures and by raising awareness on this major social problem, this phenomenon

can be prevented, if not, at least women can be protected from suffering further violence caused

by an intimate partner.

This research paper began from a need to understand how Council of Europe’s Istanbul

Convention is enacted in a specific socio-cultural context. This context was represented by

Romania.

The first question that was asked sought to determine the way the Romanian legal

framework fulfil its role in protecting women against gendered violence in light of the Istanbul

Convention. Contrary to expectations, the analysis shows that, with the ratification of the

Istanbul Convention, Romania’s legislation in the field of domestic violence substantially

improved, and therefore, the country has clearly put the effort in complying with the provisions

of the Istanbul Convention and it is on the right path towards a better protection of women

against gendered-based violence. It will be of great interest to see what the GREVIO

30

recommendations will be as it plans to carry out an evaluation in the Autumn of 2020 “in order

to assess the situation of the ground” (GREVIO, 2020). There is of course room for

improvement, and although a proper intimate partner violence analysis is incomplete due to the

lack of a systematic data collection, it is important to understand that improvements in data

collection are absolutely necessary in order to better address this issue.

This brings into discussion the second question to be answered, which was related to

how femicide is placed and addressed in a socio-legal context/perspective. Despite the current

lack of relevant data on the exact numbers of femicide cases in Romania, it can be

acknowledged that femicide is nevertheless a serious problem. Unfortunately, Romanian

patriarchal cultural norms and the lack of appropriate education contribute to propagating

violence against women, including intimate partner violence, among others. Due to the former

communist background of the country, once its fall happened, people found themselves with

other major problems to focus on rather than gender equality, thus, gender inequalities can be

found in all social, economic and legal structures of society. Obviously, if also the authorities

have a prejudiced and stereotyped perspective on female victims of intimate partner violence,

the law will not be able to improve the problem.

Despite the fact that from a feminist perspective it could be argued that working towards

achieving gender equality would decrease femicide rates as men would lose control over

women, conversely, it is said that “laws intended mainly to protect women from abuse seem to

expose them to a greater risk of lethal violence” (Gauthier & Bankston, 2004, p. 116).

Although, intimate partner violence and femicide are acts of violence that occur within the

home and family context, thus a private context, and since they are challenging issues to solve,

it is essential to allow the public context, in this case the law, to at least contain the problem, if

not solve it.

On a final note, in the context of the COVID-19 pandemic, states must not forget that

the Istanbul Convention is a powerful legal instrument in order to fight against all forms of

violence against women and it is more relevant than ever. The more awareness there is on the

issue, the more women will be able to ask for help.

31

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