Nexus: domestic violence, Romani courts and recognition
12 April 2000
Nexus: domestic violence, Romani courts and recognition1
Claude Cahn 2
Domestic violence and other family crimes such as neglect are a problem in Romani society, as they are in non-Romani society. Non-Romani society the world over has only recently begun to grapple with relatively taboo subjects such as spouse abuse, domestic sexual abuse and other forms of degrading and humiliating treatment. Some non-Romani courts have begun to recognise crimes within the family as no longer off limits and beyond the sacred line of private autonomy, the family. It is only recently, for example, that courts began to recognise the possibility that forced intercourse of a wife by a husband constitutes rape. At the same time, some state legal systems — notably Canada — have begun to recognise and integrate the legal systems of minorities and Aboriginals into the state system. This paper argues that states and Roma have a mutual interest: states should recognise Romani legal systems and integrate them into the institutions of the state, especially those Romani institutions most compatible with democracy. At the same time, Romani courts could match this heightened prestige with strong interventions against domestic violence; such moves would both establish Romani courts as in principle rights-based, while at the same time increasing their own authority.
Romani institutions: focus on the kris
Family is the strongest traditional Romani institution. Family values are of great importance in the Romani communities, and Roma will often go to lengths non-Roma can only marvel at to preserve the sanctity and unity of the extended family. In comparison with non-Romani society, however, the Romani family has only very distant institutional rivals, and the lack of strong institutions outside the family has been noted by many as a significant hindrance to the development of a strong Romani movement.
Other institutions do exist, however, and these could be strengthened. One example of a Romani institution which could be of use in strengthening the Romani movement is the kris. The kris is a tribunal called by members of the Romani community in instances of internal dispute. “Kris" (plural “krisa" or “krise") is derived from the Greek word for “crisis", in English borrowed from the same Greek term, “krisi" (κριση).
The kris is a tribunal-based court system, adjudicated by elders called, in some communities at least, “krisnitori" (plural “krisnitoria"). An aggrieved party initiates a kris by indicating to prominent members of the community the desire to hold one, with a mind to choosing them as krisnitori. At the head of the krisnitoria is a chairperson, chosen by the krisnitori as a body. The chairperson is generally as distant as possible from those involved in the dispute. The other krisnitori should be roughly in equal parts from either side of the conflict. The various krisnitori speak in the course of the kris either on behalf of or against the parties. Speeches are formal, and a reputation as an able krisnitori develops from abilities in handing down just rulings as well as in polished rhetorical skill. Krisnitoria are lay adjudicators: once a dispute is settled, they revert to being citizens in the Romani community with no special powers. As Thomas Acton notes, “In the Kalderash kris, it is the tribunal, a collectivity which includes all the disputing parties, which calls the judges to chair it. It is the kris which is the authority, and the krisnitoria who in presiding over it, help it to find its collective voice... The ultimate legitimacy of the decision of the kris is that it re-establishes consensus; it is a remarkably democratic institution3." Not all Romani communities employ the kris, in fact most do not4.
Traditionally, krisnitoria were male heads of households, but recently women have participated as krisnitori in the United States. Krisa have traditionally been held exclusively in Romani, but recently some krisa have been held in the language of the majority, to facilitate participation by members of the community who may not speak fluent Romani. Other reported recent developments include participation via fax or mobile telephone.
The overwhelming majority of cases heard by krisa involve domestic disputes5. Most of these concern allegations that a bride is not a virgin; allegations that a Romani wife has been unfaithful; or cases in which the woman has run off, causing the husband to sue the wife’s family. In some cases, however, a kris may be called — usually by the concerned father of a Romani woman — over allegations of abuse or neglect by the husband.
The kris is at present a weak institution. Case law indicates that courts are extremely reluctant to interfere in family issues unless the family has specifically indicated that it seeks the involvement of the court, such as in divorce cases. The most common form of punishment handed down by a kris is monetary fine. The court can, however, hand down a sentence of banishment, designating the guilty party “unclean" and therefore expelled from the community. There is no appeal against such a decision, but the sentence of banishment can be of varying duration; some sentences of expulsion can last for only a few weeks. Banishment is almost never handed down as a punishment in domestic violence cases. The kris is also a weak institution in that where the court has facilitated a negotiated settlement between families, it is unlikely to overrule a later modification of that settlement.
On the other hand, the kris has a high degree of credibility as an institution among those Roma who practice it. Among groups that practice the kris, turning to non-Romani justice instead of the kris is frowned upon. Only in cases of murder is it regarded as acceptable to seek justice from a non-Romani court rather than calling a kris.
However, some observers have noticed that precisely on the issue of domestic crimes against women, the authority of the kris appears to be, in some instances, breaking down. For example, due to the fact that in cases of divorce under Romani law, the father is awarded custody of children, some Romani women in the United States have reportedly sued in the much more advantageous non-Romani courts for divorce, by-passing the kris6.
One way Roma might seek to overcome general organisational weaknesses in the Romani movement is by strengthening and broadening the power of the kris. Observations by Acton suggest that, due to its establishment of criminal law and the notion of crimes against the community, from among the various models of social regulation on offer in the Romani communities, the kris is well-suited to take on a broader role: “The kris is, in fact an embryonic state, claiming a monopoly of legitimate violence. Private violence or revenge by a wronged person, therefore could be as much an offence against the kris as the original wrong7." Romani activists might help by encouraging others to see the benefits of giving increased power to a native Romani institution, and indeed by seeking its inclusion as a component of state legal systems.
State developments: integrating alternate legal systems
International trends indicate that states are paying much higher attention to minority and aboriginal courts. The logic of this move is primarily pragmatic: recognising that state judicial systems, by disregarding the traditional legal systems of Aboriginal and minority groups, have brought about great — and in many cases avoidable — damage, authorities in many countries have begun to seek ways of working with native legal forms and integrating them into the state system. Canada provides an excellent case study of such efforts; since roughly 1991, Canada has been developing programs aimed at integrating Aboriginal courts into the Canadian system. While it is probably too soon to ascribe specific results to the Canadian program, the very existence of the Canadian approach provides Roma with a series of advocacy guidelines useful for the European context.
The Canadian approach to the issue of integrating Aboriginal courts is described in a government document entitled “The Context for Aboriginal Justice Initiatives: A Prospective from the Literature". This describes motivations for the Canadian approach as follows:
...there seems to be considerable agreement that the conventional justice system has failed Aboriginal people, and that alternative and innovative practices, rooted in Aboriginal traditions and experience, should be encouraged. Accordingly, there is widespread enthusiasm about the prospect of Aboriginal justice moving beyond the present with its legacy of overrepresentation (as regards offenders and victims), minimal Aboriginal participation in the determination of justice, and general estrangement. A future is envisaged where Aboriginal justice furthers other Aboriginal collective objectives, incorporates traditions and experiences, manifests Aboriginal control, and deals effectively with the harm that crime and social disorder have wrought for all parties (i.e. victim, offender, community)8.
The problems Aboriginal peoples face in the Canadian justice system are, therefore, according to the government’s description, remarkably similar with those burdening Roma in Europe. The paper goes on to describe the development of state approaches to Aboriginal legal systems:
- pre-1975: Little attention was paid in any official or programmatic way to the distinctive problems, needs and participation of Aboriginal people in the criminal justice system.
- 1975-1990: Following the 1975 National Conference on Native People sponsored by the Solicitor General Canada and Justice Canada, an agenda was set forth calling for the provision of better access to all facets of the justice system, more equitable treatment, greater Aboriginal control over service delivery, recruitment of Aboriginal personnel, cross-cultural sensitivity training for non-natives, and more emphasis on alternatives to incarceration and crime prevention. Between 1975 and 1990 more than twenty government reports reiterated these type of recommendations.
- 1991 to the present: In 1991 two major reports set the stage for the development of a new agenda, one emphasizing the establishment of Aboriginal justice systems where Aboriginal peoples would presumably exercise control over the administration of their governing justice systems and also over how justice would be defined in those systems. Those two reports were the Law Reform Commission’s 1991 report, Aboriginal Peoples and Criminal Justice, and the 1991 report of the Aboriginal Justice Inquiry of Manitoba. During this period the federal government re-organised its administrative structures and delivery systems for Aboriginal justice. Responsibilities for the First Nations policing were transferred from Indian Affairs to Solicitor General Canada. In the Solicitor General Canada the Aboriginal Corrections Policy Unit was formed, and in Justice Canada the Aboriginal Justice Directorate came into being. Both were launched as part of the Aboriginal Justice Initiative. The mandates of these groups were to advance Aboriginal justice interests, improve the response of the conventional justice and facilitate greater Aboriginal direction of, and innovation in, justice in Aboriginal communities. The 1996 final report of the Royal Commission on Aboriginal Peoples emphasised the need to develop further the new agenda of autonomy and legal pluralism9.
Concretely, according to another Canadian government document, “Elder panels and sentencing circles were pioneered in the Yukon. Similar initiatives are now in place in Ontario, Quebec, British Columbia, Saskatchewan and Manitoba10." The Context emphasises that in Canada at least, “there are no profound legal or constitutional obstacles to the creation of quite different Aboriginal justice programs and practices." By way of conclusion, then, in the words of the Context:
These initiatives may have considerable significance for successful Aboriginal stewardship of Aboriginal life, as well as for their inherent rehabilitative and healing potential... Aboriginal people are searching for, and some have found, a justice that suits them in today’s world. Understanding these approaches will not only help them to refine and improve but it will allow Canadian society to learn more about justice systems which may very well suit better than the one which currently serves its citizens11.
Given the failure of many legal systems in Europe with respect to Roma, policy-makers may want to look to models such as the Canadian one for innovative alternatives to the present dysfunctional approaches.
The kris is well-placed for promotion, available for formal recognition by states as a component of the domestic legal order. If the kris were granted official recognition, it would of course have to both overcome its reluctance to interfere in internal family affairs, as well as adopt a much higher profile. Controversial issues such as domestic violence would provide the ideal opportunity for such an institutional expansion. The development of a body of Romani case law intent on bringing justice to abused Romani women would be a powerful factor in dissuading Romani women from seeking justice outside the Romani community. Perhaps more importantly, unequivocal decisions by krisa punishing domestic violence would help to set autonomous Romani institutions on the firm ground of broad, rights-based principles.
The Barañí Project study of Romani women prison inmates in Spain
On February 29, 2000, the Spanish non-governmental organisation Barañí Project published a study on Romani women in Spanish prisons, documenting severe discrimination. During 1999, the Barañí team interviewed 290 Romani women in twelve prisons, and carried out in-depth interviews with numerous persons from the criminal justice system — police, prosecutors, judges and prison officials. According to the study, although Roma comprise approximately 1.5% of the total population of Spain, over 25% of Spanish women inmates are Romani. Sixty percent of Romani women inmates are serving sentences for drug dealing, usually on a small scale. Most of the rest of the women are in jail for theft or robbery, usually related to problems of drug abuse. The average sentence being served by Romani women involved in the study is 6.7 years. Sixty percent are repeat offenders. Eighty-seven percent were held in pre-trial detention following arrest. Eighty-seven percent of the women are mothers. Fourteen percent of the women are reportedly imprisoned outside their autonomous region and another 30% outside their province. There are very few rehabilitation programs specifically designed for Romani women.
In its analysis, the Barañí Project study focuses on three main areas. First of all, the study notes the presence of profound discriminatory practices and attitudes against the Romani community in the wider Spanish society — in the labour market, housing practices, education, social services and the media. The study examines how this affects the lives of the women interviewed. According to the study, the women are victims of triple discrimination — on the basis of class, ethnic origin and gender.
Secondly the Barañí Project study analyses the discriminatory forces in the criminal justice system itself. The study documents various steps in the chain of events leading to high levels of incarceration for long periods of time. The study examines Spanish penal laws to see which crimes are more harshly punished. Due to a lack of statistics regarding the prison population in general, a complete lack of ethnic-based statistics and no comprehensive data on sentencing, the study cannot demonstrate conclusively that discrimination against Romani women exists at all levels. However, discourse analysis of members of the criminal justice system indicates strong patterns of bias, combined with systematic denial by individuals that they could be responsible for discriminatory treatment. Based on empirical evidence, the study notes that compared with non-Romani women, Romani women are more actively pursued by police and other criminal justice officials when warrants are pending against them; more likely to be targeted by police for spontaneous searches; have fewer guarantees in arrest procedures; are more likely to be tried, found guilty, and imprisoned; are less likely to receive alternatives to prison, less likely to be paroled, and less likely to receive pardons.
The third area of concern according to the Barañí Project study is to set in a problematic light the utility of harsh punitive measures against these women. Apart from a lack of realistic rehabilitation programs in many centres, all of which could be classified as maximum security, the long sentences have destructive effects on the women and very negative effects on their children and families. The study also casts serious doubts on the utility of long prison sentences in combating small-scale drug dealing. Due to the very visible nature of the street-level drug trade conducted in some Romani neighbourhoods, Roma are held responsible as a group by the public for the problem of drug abuse in Spain.
Perhaps the most disturbing conclusion is that there is almost no public discussion about the problem of discrimination against Roma, with the exception of a dim but inadequate recognition that discrimination against Roma exists.
Noting that "overrepresentation of Romani women in Spanish prisons is a grave failure of our society and its institutions," the Barañí Project study includes approximately thirty pages of recommendations to Spanish officials aimed at stamping out discrimination against Romani women in all areas of Spanish life. Unfortunately too numerous to provide here in full, a summary of a few of the Barañí Project recommendations in the field of criminal justice follow:
Recognise the existence of arbitrary, discriminatory treatment in the criminal justice system, as well as the social effects of such treatment;
This summary of the Barañí Project study was provided by Daniel Wagman, co-director of the Barañí Project and Ina Zoon, member of the Board of Directors of the ERRC. The full Spanish text of the study, as well as further information on the Barañí Project in English, is available at: http://personales.jet.es/gea21/
- This article is intellectually indebted to an article by Walter Otto Weyrauch and Maureen Anne Bell entitled, "Aoutonomous Lawmaking: The Case of the 'Gypsies'", appearing in the Yale Law Journal in November 1993, as well as to the Spring 1997 issue of The American Journal of Comparative Law, entitled "Gypsy Law Symposium" and devoted entirely to issues raised by Weyrauch and Bell in their 1993 article. Further material for the article was provided during interviews by the authoer with members of the Vienna-based-non-governmental organisation Romano Centro in December 1999. I am very grateful to Dr Thomas Acton, Dr Walter Cahn, Jasmine Dllal, Mirjam Karoly and Eva Sobotka for reading drafts of the article and offering comment on it, as well as to Joanna Wells for assisting with research.
- Claude Cahn is Research and Publications Director of the European Roma Rights Center and editor of the quarterly Roma Rights. The opinions expressed in this article are not necessarily those of the ERRC.
- Acton, Thomas A., "Can a three-dimensional model of Romani justice dissolve dichotomies between Romani and Gajo law?", unpublished paper delivered to the Gypsy Lore Society Conference, University of Florence, June 28, 1999.
- The kris is practiced mainly or even exclusively by Romani groups which non-Roma refer to as "Vlach" Roma, Balkan Roma refer to as "gazhikane Roma" and whose autochthonous identifier is as the people of the four nacije (nations), the Churari, Lovara, Kalderash and Machvaja (See Acton, Thomas, Susan Caffrey and Gary Mundy, "Theorizing Gypsy Law" in The American Journal of Comparative Law, Volume XLV, Spring 1997, Number 2, pp. 237-250). The "Vlach" designator is used to indicate that in the 18th century, members of these groups were enslaved in the southern Wallachia region of today's Romania; the "gadzhikane" designator used by Balkan Roma to describe these later arrivals implies that they are Christian rather than Muslim. In Vienna, the kris exists only among ("Vlach") Kalderash groups who have recently come from the former Yugoslavia, and is not practised among the other large local groups Xoroxane (also from ex-Yugoslavia), Burgenland Roma, ex-Yugoslav Prilep Roma or Lovara. The latter group is "Vlach", but has evidently "lost" the practice. Romani groups not practicing the kris are, according to the theoretical work on the subject, generally seen as deploying a "blood feud" system of social regulation or, in Poland and the Baltics, the Baro Shero system of hereditary monarchy. Acton posits a triangular model with the "democratic, tribunal" kris at one point, the "authoritarian, tribunal" Baro Shero system at the second point, and the "blood feud" at a third point diametrically opposed to "tribunal" called "avoidance systems of justice" (see Acton, 1999, Op. cit.; on blood feuds, see especially, Grönfors, Martti, Blood Feuding Among Finnish Gypsies, Helsinki: University of Helsinki Department of Sociology Tutkimuksia Research Reports, No. 213, 1977, as well as Acton, Caffrey and Mundy, Op. cit.; on the Baro Shero, see especially Ficowski, Jerzy, The Gypsies in Poland - Histories and Customs 1990: Interpress, Warsaw). According to Elena Marushiakova, some non-"Vlach" groups in Bulgaria practice tribunal justice (see Marushiakova, Elena, "Self-government among Bulgarian Gypsies", in Taras, Ray, ed. National Identities and Ethnic Minorities in Eastern Europe, Basingstoke: Macmillan/International Congress of Central and East European Studies, 1998, pp. 199-207). Also, some Romani communities which do not practice the kris (or which have lapsed in their use of the tribunal) have reportedly adopted it, suggesting that the institution might in the future be spread to Romani groups not practising the kris.
- Precise statistics are not available, since Romani case law is not preserved in written record, and because Romani courts are in theory at least off limits to non-Roma. Romani linguist and founding member of Romano Centro Mozes Heinschink estimates that among the Vienna Kalderash there were approximately 60 krisa in 1999, of which approximately 80% concerned domestic issues.
- See Weyrauch and Bell, Op. cit.
- Acton, 1999, Op. cit.
- "The Context for Aboriginal Justice Initiatives: A Prospective from the Literature", http://www.sgc.gc.ca/epub/abocor/e199805/e199805.htm, further "Context". On contemporary Canadian approaches to justice in the Aboriginal communities also see the Aboriginal Programs and Issues internet web-site of the Correctional Service Canada at: http://www.csc-scc.gc.ca/text/prgrm/correctional/ab_e.shtml, as well as "Some (brief) notes on Aboriginal justice" in Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada, Ottawa: Canada Communication Group — Publishing, 1995.
- "Context", Op. cit.
- "Some (brief) notes on Aboriginal justice", Op. cit.
- "Context", Op. cit.