Approaches to Domestic Violence Against Womenin Timor-Leste: A Review and Critique

Annika Kovar*

Informal justice systems1 play a central role in the lives of many citizensof contemporary Timor-Leste (unicef, 2009; Marriott, 2008; Niner,2007). Resolving disputes swiftly and with a concern for establishingharmony in the material as well as spiritual world, community leaders andelders rather than police are thought to be responsible for maintaining law
and order. The literature suggests that this is true also for the way most
Timorese deal with domestic violence, a highly prevalent phenomenon in
Timor-Leste today. The majority prefers these cases be dealt with by the
informal system, even if the woman is seriously injured. Despite the significant majority of Timorese who have confidence in formal courts (77%)2, aneven higher number (85%) are confident they will be treated fairly by local
justice systems. Similarly, while 64% of those who had been in contact withthe formal court system reported feeling “very comfortable” using it, a muchhigher number (79%) feel comfortable bringing disputes to local administrators of justice (The Asia Foundation, 2008).
A significant proportion of domestic violence cases are being resolved
through informal mechanisms, even though the Penal Code of 2009 madedomestic violence a public crime, to be investigated and prosecuted by thestate regardless of whether a criminal complaint is filed by a victim or not(unhchr & unmit, 2010); victims likewise cannot request that cases be
dropped. Article 2 of the recently enacted Law against domestic violence
defines domestic violence broadly as “any act or sequence of acts committed
within a family context, with or without cohabitation, by a family member
against any other member of that family,3 where there is a situation of ascendancy, notably physical or economic, in the family relationship, or bya person with regard to another person with whom the former has had an
intimate relationship which resulted, or may result, in physical, sexual or*Annika Kovar is the Access to Justice Adviser to the Public Defender General, UNDP
Justice System Program Timor-Leste, Dili, Timor-Leste.

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psychological injuries or suffering, economic abuse, including threats suchas intimidating acts, bodily harm, aggression, coercion, harassment, or deprivation of freedom” (drtl, 2010). This review and critique is guided bythis definition.
While a number of advantages of informal justice systems can be
identified, such as their accessibility, familiarity and legitimacy, literature(Corcoran-Nantes, 2009; Swaine, 2003; Rede Feto, 2009) points out that
informal justice mechanisms display serious shortcomings for female victims of domestic violence seeking access to justice. Often cited are a lackof women’s participation and power in decision-making processes, a lackof enforcement of informal decisions and agreements, and a tendency toblame women for violence perpetrated against them. However, other studies, such as Trembath et al. (2010), warn against simplified descriptionsof East Timorese custom, culture and gender relations, describing themas multi-layered and adaptable. “Modern” concepts of gender equality are
not seen as per se absent from and contradictory to Timorese customarysystems.
At the same time, the formal justice system, while only re-establishedover the course of the past eight years, has not yet been fully developed andoffers a problematic route for victims of domestic violence seeking justice.
Serious barriers remain for female victims attempting to access their rights
and protections under formal justice system, including the lack of basic information and understanding of the formal system itself and formal laws
which govern it, the lack of physical access to formal justice institutions inmost communities, and reported instances of cases of domestic violence
being back to local informal justice systems.
This literature review analyses the existing literature with a focus on
the barriers faced by female victims of domestic violence and the local-level
dynamics which impact women’s access to justice. The role of local justiceprocesses and local administrators of justice are discussed as well as theexperience of other countries in dealing with legal pluralism.
As previous work on gender-based violence concentrates relatively little
on informal justice processes (unfpa, 2005), this paper identifies major gaps
in the literature which might lead to inadequate policy making in countering domestic violence in Timor-Leste. Although this paper does not aim atanalyzing exhaustively all the research on this topic, we recognize the needfor more reliable data on domestic violence issues including: the role of andApproaches to Domestic Violence Against Women in Timor-Leste

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power relations between various local administrators of justice; the natureof dispute trajectories across Timor-Leste; the central barriers impacting on
women's access to justice; local definitions and concepts of domestic violence; the nature and effects of social pressure; and the reasons motivating
a victim and their family to approach either formal or informal authorities.
Finally, this analysis takes into account the possible consequences of
the cultural misunderstanding of a very complex reality. Much of the previous research may have approached domestic violence issues from a Western
perspective or a centralized one, coming from the capital city, Dili. This has
in some instances led to a colored interpretation of the reality of domestic
violence in Timor-Leste. As a result, both international donors and agencies have pursued the creation of programs which might affect internationalrights-based agendas, but not have brought effective solutions to the problem of domestic violence in Timor-Leste.
II. The Context
As described below, Timor-Leste suffers a high incidence of domestic violence. One study (nsd et al., 2010) reports that as much as 36% of Timorese
married women have experienced domestic violence. The legal framework,
though it technically supplants all informal mechanisms in cases of domestic
violence, is little understood and often ignored by actors in informal justicesystems, and does not yet adequately clearly define the connection between
formal and informal justice systems/actors. As a result, the two systems areinteracting in an ad hoc and unpredictable manner.
Domestic violence in Timor-Leste
Data collection on gender-based violence in Timor-Leste, including domestic violence, has been conducted in a disparate manner, creating a riskof being incomplete and relying too much on anecdotal or partial data. Mostof the literature relies on complaints registered by police, patients presenting themselves to the hospital emergency room, court reports, and findings
generated by non-governmental organizations and other service providers(Rimmer, 2010). Data collection is not uniform; different organizations haveused different collection methods, terminology, even definitions of domestic violence,4 and have classified cases differently. Much of the data does notgive sufficient information on the exact nature of domestic violence crimes,

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H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i coften mixing, for instance, gender-based crimes and child sexual abuse into
the same category.
As a result, although a high level of domestic violence can be confirmed,
available figures remain inexact. According to the Demography and Health
Survey 2009-2010 (nsd et al., 2010), 36% of married women have experienced physical, sexual, or emotional violence by a husband or partner. In
2009, 679 cases of gender-based violence were reported to the police, of
which 462 cases were categorized as domestic violence (unhchr&unmit,
2010). Across all districts of Timor-Leste between 2000 and 2009, domestic
violence was the most frequently reported crime to the Vulnerable Persons
Unit5 exceeding all other gender-based crimes within its mandate (Rimmer,
2010). According to Rede Feto (2009), from 2004 (30 cases) until 2008 (117cases) the number of domestic violence cases reported to fokupers, a nongovernmental organization, increased from year to year. Yet, it should be
kept in mind that cases of domestic violence are thought to be very muchunderreported in Timor-Leste with only a fraction of crimes being brought
to the attention of the police or service providers (irin News, 2010).
In the vast majority of these cases, the perpetrator of violence is a man
and the victim is a woman (Pereira, 2001) while at least one survey foundyounger urban women are most likely to experience domestic violence (TheAsia Foundation, 2004). A unfpa (2005) study found that insults were themost common type of violence, followed by slapping or twisting an arm,and forced sex. The most common injuries included psychological difficulties, loss of consciousness, bruises, scrapes, deep wounds and cuts, and unwanted pregnancies. Almost one fifth of all women presenting at emergency
rooms in Dili and Baucau hospitals between 2006 and 2008 were recorded
as victims of domestic violence, with the proportion rising to one-third for
women aged 20-39 years (tlava, 2009).
Despite this apparently high prevalence, according to a 2008 survey
conducted by the Asia Foundation, only 15 percent of Timorese claim tohave experienced domestic violence within their family in the previous
two years. On the other hand, 45% of police officers surveyed in 2008 point
to domestic violence as the most serious security problem facing the area
in which they work – a much higher proportion than for any other crime(Chinn & Everett, 2008). This dichotomy might suggest that the understanding of domestic violence among the general population differs significantly
from the definition of domestic violence established by the law.

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The data furthermore does not offer enough information on the percentage of cases that have been pursued before and after the promulgationof the law against domestic violence (2010) or any other data on the sentences applied in domestic violence related cases.
Legal background
The Constitution of Timor-Leste provides for equality before the law
for all citizens, male and female, with all citizens exercising the same rights
and being subject to the same duties. The Constitution also grants equality between women and men in the context of family relations (Article 39).
Section 9 furthermore determines that “all rules that are contrary to theprovisions of international conventions, treaties and agreements applied in
the internal legal system of East Timor shall be invalid” (drtl, 2002). TimorLeste has acceded to a number of core human rights covenants including
the International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights, the Convention on the
Elimination of All Forms of Discrimination against Women, the Convention
Against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment, and the Convention on the Rights of the Child. This framework prohibits any state discrimination against female victims when dealing
with cases of domestic violence (Grenfell, 2006).
While domestic violence was considered a criminal offence in East
Timor during the Indonesian occupation (and afterward) as articulated in
the Indonesian Penal Code,6 this provision has rarely been used to prosecute offenders (Grenfell, 2006).7 In March 2009, Timor-Leste’s Penal Codewas enacted, which established “mistreatment of a spouse”8 (equated todomestic violence) as a public crime, ensuring criminal proceedings do
not depend on a formal complaint from the victim; this means the state is
obliged to investigate and prosecute crimes of domestic violence, regardlessof whether a victim files a complaint—technically a citizen can file a complaint with the police about any case they become aware of (cedaw, 2009;
unhchr&unmit, 2010). Unlike semi-public crimes, a criminal case may be
carried forward by the state justice system, regardless of a victim’s wishes
that it be dropped.
These provisions are supplemented by the recently enacted law against
domestic violence of May 2010. Article 2 of the law defines domestic violence broadly to include physical, psychological, economic and sexual mis-

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H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i ctreatment. It provides protection to family members, including spouses
and ex-spouses, ascendants/descendants and domestic workers (Article 3).
According to Articles 15 and 16, victims of domestic violence will be eligible
to receive rehabilitative services, including shelter access, legal representation, medical and psychological assistance, and in justifiable cases, training
on personal, professional and social skills in order to “contribute to theirsuccessful social reintegration”. Article 24 obliges police officers, when necessary, to refer victims to a shelter or legal and medical services and informvictims of their rights and the status of their cases. They must file a reportwith the Office of the Public Prosecutor within five days of receiving information about the case (drtl, 2010).
Until the recent enactment of the Penal Code and the law against domestic violence, it was local community authorities who, according to
Decree Law No. 5 of 2004 on the Authority of the Communities, had the
responsibility to “provide for the creation of grassroots structures for thesettlement and resolution of minor disputes”. The Decree Law was replacedby Law 3/2009 on Community Leadership and their Election which requires
suco (village) leaders to promote the creation of mechanisms for preventing
domestic violence and support initiatives aimed at monitoring and protecting victims of domestic violence and punishing the aggressor (drtl, 2009).
In the absence of specific legislation governing the relation of formal
and informal law, the Constitution provides the only vague guidelines in thisrespect. Section 2(4) provides that “the State shall recognize and value thenorms and customs of East Timor that are not contrary to the Constitution
and to any legislation dealing specifically with customary law” (drtl, 2002).
Some writers interpret this section as giving only “symbolic respect” to informal law (O’Reilly & Jevtovic, 2008); others such as Grenfell (2006) argue
that while this section does not require courts to apply local law as partof Timor-Leste’s body of formal law, by giving recognition to local norms
and customs this section intends to direct the courts to have regard to local customary law. What is clear is that according to Article 2 of the law oncommunity leaders and their election, the decisions of suco chiefs and suco
councils are not binding on the State (drtl, 2009).
While the legal framework prescribes that crimes such as domestic violence cannot be dealt with by local systems, there is no explicit law or policy
establishing a legal framework for linking informal practices to the formal
justice system (World Bank, 2006; unfpa, 2005). Article 55 of the Penal

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Code recognizes reconciliation between victim and perpetrator as a general
mitigating circumstance (drtl, 2009), giving space for local agreements tobe considered by formal courts. In practice, courts seem to make use ofthis provision by taking notice of out-of-court agreements reached throughlocal law (Grenfell, 2009). For instance, one case of physical assault was dismissed by a judge in Same in October 2010 after the parties presented apeace agreement stating that the case had been resolved using informal law.9
Informal justice in Timor-Leste
The literature often refers to informal justice in Timor-Leste using theIndonesian term adat, while the proper Tetum term for Timor-Leste’s various systems of local justice is lisan (Harrington, 2006). It must be noted,
however, that lisan is a broad term encompassing not only local law andprohibitions, but also social norms and morality, art and rituals, as well as asystem of community leadership and governance (Babo-Soares, 2009; Buttet al., 2009).
As emphasized by the majority of the literature, lisan systems acrossTimor-Leste are highly diverse and localized. There is no unified Timorese
informal legal system; there is rather a collection or plurality of local practices (Graydon, 2005; Swaine, 2003; Bye, 2005; Marriott, 2008; UNFPA, 2005).
As a result, the ways in which women access local justice and the implications thereof vary from place to place, within single localities, and even fromcase to case depending on the nature and gravity. There is therefore not one
uniform experience of how local justice is used. As local law is usually not
written down or standardized, it is subject to the different personalities involved and their own interpretations of how justice should be administeredwith the effect that rulings may not be consistent (Swaine, 2003; Alves et al.,2009).
This is unsurprising as it is the very context in which local law exists which breathes life into its contents, interpretations and application.
Stemming from its very nature, a conventional, stereotypical local justiceprocess or outcome cannot be described definitively. Yet, several authors
point out that a number of core traits and common values can be identified (unfpa, 2005; Graydon, 2005; Butt et al., 2009). These include first andforemost their predominantly oral practice and transmission (Graydon,
2005; jsmp, 2002), though some communities in Liquica district have reportedly produced written regulations of informal justice mechanisms, in-214

H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i ccluding regulations specifically dealing with domestic and sexual violence(Myrttinen et al., 2010).
Another common feature and one of the main differences regarding
formal law is the prioritization of the community and collective rights overindividual rights, based on a concern to establish and maintain community
harmony and stability (Butt et al., 2009; Babo-Soares, 2004). Focusing on
the survival and peaceful existence of the community as a whole, local legal
systems generally serve a different purpose than the protection of individual
rights championed by formal and human rights law. Informal law thus addresses domestic violence more as an offence against the community andsocial relations between families rather than an offence against an individual(Grenfell, 2006; usaid, 2010).
A number of authors (Zifcak, 2004; Hohe & Nixon, 2003) report thatin the localities they visited this collective approach can be explained by
the existence of a refined socio-cosmic belief system in which kinship concepts are woven into most aspects of life and where supernatural ancestral
powers function as controlling and life-giving forces. A need to maintaina cosmic equilibrium based on social reciprocity and exchange lies at theheart of this belief system. Therefore, informal justice is characterized by theneed for the replacement of values which were disturbed by a wrongdoingin order to stabilize the cosmic flow, and the need for social reconciliation
to ensure continued harmony within the community. Penalties negotiatedbetween a local tribunal and the parties reflect the belief that a wrongdoing creates a debt that must be repaid not only to the victim but also to thewider community. Every effort is thus made to mediate proceedings, and it
is expected that the opposing party will act in a forgiving manner and seek
to agree upon a compensation, thus paving the way for peaceful relationsin the future (Zifcak, 2004; Hohe & Nixon, 2003). These ancient narratives,
myths and rituals are a source of, and influence on, local justice systems andprinciples, along with stories of more recent historical experience recited bycustomary elders (Zifcak, 2004). Decisions reached with local authorities inturn become part of the body of local law, to be referenced in future dispute
resolutions and relied upon by villagers in the maintenance of their rights(jsmp, 2002).

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III. Informal Justice Processes in Cases of Domestic Violence
The procedures of dispensing local justice also share a number of similarities. Informal processes usually involve each of the parties providing theirversion of the events, a process of mediation or arbitration where family elders or community leaders decide who is at fault and then oversee an agreement. Local agreements most commonly result in the payment of compensation but can include other sanctions such as oral or written undertakings
to not re-offend, community work, or public shaming. Where an agreement
between the parties is reached, it is generally sealed by symbolic acts of reconciliation which includes most often drinking or eating together (Graydon,2005). The following chapter describes these processes, as applied in casesof domestic violence, discusses their advantages and disadvantages andidentifies central authorities in the administration of local justice.
Local administrators of justice
The literature identifies three central figures regarding local dispute
resolution: the Chefe de Suco (elected Head of the village), Chefe de Aldeia(elected Head of the hamlet) and lian nain (customary authority who makes
decisions based on customary rules and norms). Besides these three main
figures, a number of other local authorities such as church representatives
and village elders are also identified as conducting local justice processes. In
particular cases of domestic violence, however, usually the first attempt at
resolving such an issue is undertaken by family members of the victim andthe perpetrator. Family elders, a family’s lian nain or a family’s spokesperson therefore can play a crucial role in resolving cases of domestic violence.
The community’s lian nain, the Chefe de Aldeia or Chefe de Suco usually
only become involved once family mediation has failed (Swaine, 2003; unfpa, 2005; Rede Feto, 2009). This is confirmed by a recent survey of the
Asia Foundation (2008) according to which aldeia chiefs (26%), suco chiefs(22%), families (22%) and elders (16%) are the most common authorities
approached to resolve domestic violence issues. Despite domestic violence
being criminalized, only 7% of respondents said they first contacted the police, confirming Timorese prefer mediation processes in cases of domestic
violence to remain in the realm of families and communities.
As women rarely hold any of the described positions, most family orcommunity authorities involved in dispute resolution are men (usaid, 2004;

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Swaine, 2003) with an estimated 2% of local authorities responsible for dispute resolution in Timor-Leste being women (ope, 2007). In many areas, forinstance in Liquica district, women are prohibited from holding traditional
leadership positions such as that of the lian nain (Myrttinen et al., 2010).
Even in matrilineal clans, women are often not necessarily expected to perform leadership roles. This lack of women local leaders is seen by some as
impacting on the treatment of women in local justice processes, though theimpact can neither be quantified nor definitively proven (ope, 2007).
It is important to note that in Timor-Leste, the political or “worldly”
domain is not the only source of dispute resolution authority since within
Timorese communities, political authority is contrasted with, and often
subject to, appeals of a supernatural character. This interaction between political authority and spiritual beliefs can have a strong impact on the natureof local justice processes and outcomes. At the community level, a ritualauthority is responsible for contact with the ancestors, while political authorities are responsible for the political and profane world. They are theexecutives, responsible for the maintenance of judicial order and external
relations. As such, the political authority is the focal point for the “outside”
society (Hohe & Nixon, 2003). Ospina and Hohe (2001) found many similar examples for this dualistic concept of power across different districts,
concluding that the majority of the rural population still orders their world
according to this paradigm. It must be noted, however, that this dualistic
power structure is not necessarily universal in Timor-Leste. Nixon (2008b)
points out that in some parts of Oecusse, ideally—but not necessarily—ritualand political authority overlap.
Ritual authorities
The lian nain—and their analog in non-Tetum speaking communities,
such as the rosatan in Tetum Terik language communities—are the custodians and interpreters of Timorese animistic cosmology. They are the “ownersof the word” and they play a central role in the resolution of local disputes. In
doing so, they seek to negotiate the relationship between communities andtheir material as well as spiritual environment which is key to a community’ssurvival (Marriot, 2010; Hohe & Nixon, 2003). While in some instances, lian
nain are chosen by the community due to their mediation skills, more typically, the lian nain hold that position as a result of their family lineage andthe powers that have been vested in them from the ancestors (Swaine, 2003).

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The lian nain are thought to know the history of the community andof families, including their marriage and kinship relations which often determine the amount of compensation to be paid for a crime. They are connected to the sacred sphere and know the rules the ancestors have set, providing them with the competence to speak the law and make decisions forsociety. Yet, they are not supposed to be connected to the outside world andtherefore only pass on their decisions to the political authorities. As a result,
Timorese ritual authorities are often seen by outsiders to play a minor role
while in reality, they can have immense influence and power. In some communities, the last agreement to a decision has to be made by the ritual authority, rendering the political authority inferior to the ritual powers (Hohe& Nixon, 2003; Hohe, 2003; Ospina & Hohe, 2001). In other contexts, it isemphasized that the final decision must be based on a consensus of all thelaw experts, including both ritual and political authorities in order to assurethat a decision is in harmony with the different aspects of the cosmos (Hohe,
2003).
While the majority of the literature focuses on the lian nain as ritualauthority, Trinidade and Castro (2007) identify a second figure, the dato.
A dato is described as an authority connected to the spiritual world who
makes decisions based on the ancestral order and determines social norms.
According to these authors, in a local justice process, the dato must approvethat a decision or agreement is in accordance with the spirit world while thelian nain must approve that it is in accordance with historical precedents
and tradition. The political authority, in turn, acts as witness and gives final
approval. It should be noted that Trinidade and Castro’s paper is the only
paper reviewed which refers to the dato in this way. While very little of theliterature mentions the dato at all, Swaine (2003) refers to the dato as another term for lian nain, thus contradicting the above definition of Trinidade
and Castro, and exemplifying how incomplete the available information on
traditional authority structures and figures in Timor-Leste is.
Another example of a lack of information concerns the role of the
Church in dispute resolution. Marriott (2001) argues that in some areas,
Catholic priests perform a similar role as the lian nain, and appear to be
displacing other actors in dispute resolution. While it is clear the Catholic
Church plays an active role in dispute resolution—unfpa (2005) for instancefinds that church officials are involved at various stages of dispute resolution
in around 30% of cases—priests are generally reported to attend local jus-

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H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i ctice proceedings as witnesses or to make suggestions, not as decision-takers(Mearns, 2002; Grenfell, 2006; Ospina & Hohe, 2001; Alves et al., 2009).
Political authorities
The foremost political authorities at the local level in Timor are theelected village and hamlet chiefs, the Chefe de Suco and Chefe de Aldeia,
established as “community authorities” by Decree Law No. 5 in 2004. Someauthors, such as Zifcak (2004) argue that while political and ritual authorities frequently act in concert, to a significant degree, the responsibility for
local dispute resolution and substantive decision-making has shifted fromthe lian nain to the Chefe de Suco and Chefe de Aldeia.
Chiefs (Chefes) are often approached when neither families nor lian
nain succeed in resolving a case (Alves et al., 2009). While in some contexts,
the political authority’s acceptance of agreements is necessary to legitimize
the resolution of disputes (Trindade & Castro, 2007), chiefs are never theones to recount history, as this domain is reserved for the lian nain. Since
the political authority represents the link to the outside world, the village
chief is eventually the one taking a case up to a higher entity, such as thepolice (Hohe & Nixon, 2003).
While the law on community authorities requires chiefs to be chosen
through elections, elected chiefs may come from specific liurai (highest
social class) families who hold hereditary privileges for political authority(Hohe & Nixon, 2003; usaid, 2004). The village chief therefore represents
the junction point where clandestine powers, traditional political concepts
and the modern outside world run together (Ospina & Hohe, 2001). Thoseliurai who have not been elected to the office of chief are still consideredlegitimate in many rural settings and are able to exercise influence on local
people while elected local leaders often maintain close relationships withthem (Trindade & Castro, 2007; Cummins, 2010).
While the literature clearly identifies the lian nain and the village andhamlet chiefs as the most powerful actors in dispute resolution, the power
relation among these actors remains unclear. It is unclear how far decisionmaking power has shifted from the lian nain to the chiefs and how far ritualauthorities are still able to control local justice processes. The significanceof other involved actors, such as the Catholic Church, the dato or the liurai
also requires further research.

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Local justice proceedings
Local justice processes in cases of domestic violence generally start at
the family level and are usually initiated by the woman’s family (Alves et al.,2009; Swaine, 2003; unfpa, 2005; usaid, 2009). Since marriage is not only
seen as the alliance between two individuals, but seals an intricate set of
relationships, obligations and reciprocity between the bride’s and groom’s
extended families, cases of domestic violence become the responsibility of
the respective family heads. Usually, the conflict is brought to a more public level only when family mediation fails (Rede Feto, 2009; Hohe & Nixon,
2003; Ospina & Hohe, 2001). Unfpa (2005) found that of those women seeking help from somebody in cases of domestic abuse, the majority chose to
inform female relatives (50.8%) or friends (50.7%) while 84% strongly agreed
with the statement “family problems should only be discussed with people
in the family”.
Dispute resolution at the family level usually entails members of thefamily coming together to discuss the issue, sometimes with the help of thefamily’s spokesmen, the family lian nain or family elders. A hearing takes
place where the victim and the accused present their stories while statements from witnesses may also be heard. The administrators of the hearing
weigh the stories presented, and apportion blame to one or both parties with
the negotiations and decisions normally being dominated by men (Swaine,
2003; unfpa, 2005; Rede Feto, 2009). Often, these negotiations involve thefamily of the victim asking for compensation to be paid by the perpetrator and/or his family (Swaine, 2003; Grenfell, 2006; Mearns, 2002; Butt etal., 2009). The literature identifies different ways in which the payment ofcompensation is administered. For instance, in the districts of Ainaro andCova Lima, Swaine (2003) encountered cases in which the perpetrator himself was asked to pay compensation to the victim's family as well as cases inwhich an exchange of goods between the two families took place (though“family” was not defined).
Thus, local justice processes do not necessarily involve actors from thewider community but often occur wholly or initially within the family. The
involvement and influence of the victim’s family is instrumental in women’s
access to and achievement of justice as it is usually family members that
decide whether to utilize family, local justice or police structures. Withoutfamily support, certain women interviewed by Swaine (2003) did not feel
confident or empowered to approach local justice.

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If no agreement can be found at the family level, the victim or theirfamily can take the case to higher levels of local justice, including hamlet, village, and sub-district levels (Swaine, 2003; unfpa, 2005; Alves et al.,2009; Grenfell, 2006; unfpa, 2005). While in some sucos, dispute resolution processes follow a strict hierarchy—sometimes described as “climbing a ladder”, where an unresolved dispute moves progressively “up” fromthe extended family to aldeia to suco and ultimately to sub-district level(Cummins, 2010)—in other contexts, women or their families might seek
justice directly at the aldeia or suco level, bypassing one or all of the lower
levels. The authority approached on a higher level, however, will usually take
into account the work of the previous authority (Swaine, 2003). The police
are generally considered to be the last resort after all traditional processes
have been exhausted (Alves et al., 2009; Grenfell, 2006).
When a case is reported to the village or hamlet chief, dispute resolution meetings are usually set up the next day or in the very near future.
The time issue is important; social discord threatens the continuation oflife in the community as it could attract the wrath of the ancestors (Hohe& Nixon, 2003). The composition of these meetings varies—while in someareas strictly traditional authorities are present, in others “society representatives” such as the suco council or Church representatives may also takepart (Hohe, 2003; Butt et al., 2009), or the chief may seek the assistanceof a “council of elders” (Grenfell, 2006). Research conducted in Cova Lima
and Bobonaro Districts found village leaders in some communities chosea council of independent individuals to resolve disputes such as domestic
violence. If this council could not resolve the matter, it would be submitted
to community leaders at the district level, who would then select a council.
In some cases, the District Administrator may be involved as observer ormediator (Alves et al., 2009). In many Timorese communities the respective
authority who hears a dispute receives payment for their services, usually inthe form of an animal, provided by the perpetrator (Butt et al., 2009).
Members of the community usually attend such meetings as observers
and in some contexts they are permitted, even encouraged, to contributeto the discussions (Butt et al., 2009). In other contexts, the actual speaking
and negotiating is mainly done by the authorities, particularly the lian nain
(Hohe, 2003), who weigh the information received from the victim, perpetrator and the witnesses. Here, the role of the victim’s family in defending
and speaking out for her can be crucial. However, women from another area

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are potentially disadvantaged if her family members cannot attend to speakin her favor (Swaine, 2003).
After hearing the case, the approached authority or authorities determine a punishment of the perpetrator. In cases of domestic violence, thiscan range from receiving moral advice from the elders to the exchange ofmoney or a significant animal or public acts of shaming (unfpa, 2005). For
instance, the husband may be obliged to carry his wife around the village
so everybody will know what happened (Swaine, 2003). Often, perpetratorsof domestic violence need to speak an oath sanctioned by the lian nain orsign an agreement declaring not to repeat the offence (Ospina, 2006; Alveset al., 2009).
The most common outcome if a man is blamed for an incidence ofviolence against his wife, however, is payment of compensation to the victim's family. It is the victim’s family who receives the compensation sincesuch crimes are seen as an offence against the entire family, not only against
the victim as an individual (unfpa, 2005; Swaine, 2003; Grenfell, 2006). The
purpose of such compensation is closely related to a set of spiritual beliefs
according to which cases of domestic violence are thought to create a disorder in the world of social relationships, threatening the peaceful living
together of a community and affecting the cosmic flow of values. Social
or physical harm to another therefore produces a substantial debt for theperpetrator and his family towards the victim’s family or even the wholecommunity. The punishment therefore needs to restore the imbalance ofvalues that has occurred. Once this has been achieved, the way is open to theimportant stage of reconciliation. This consists of some form of ceremony,
usually feasting, which ensures that both sides have re-established a peaceful relationship and that the ancestors are appeased. This means that theperpetrator cannot simply be punished or removed from the community
for what he has done, but the two parties need to be reconciled in orderto re-establish the cosmic equilibrium. Imprisonment or the imposition ofa fine payable to the State will not obviate the necessity to pay one’s debt
to the harmed party—potentially leading to situations of “double jeopardy”
for those judged, imprisoned or ordered to pay fines by the State, simultaneously judged and found responsible for compensation to the community
for the same issue (Swaine, 2003; Hohe&Nixon, 2003; Mearns, 2002; Hohe,
2003). This is a crucial divide between formal and informal justice systems.

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Despite its high social importance, some authors are critical of this system of compensation. For instance, Grenfell (2006) opposes the fact thatcompensation is made to the family of the woman and not to the victim
herself, and the fact that compensation paid by the husband himself effectively penalizes his wife whose economic means which may be based on her
husband’s are decreased. Some authors point out that while local Timoresesystems of justice might give the impression of offering women the optionof appeal, in reality, social pressures make appealing a decision from a local
leader a practical impossibility, particularly if a ritual authority’s decision
is seen as sacred—in which case it may not be considered at all. Therefore,
while options for appeal are technically available, women may be afraid toanger the authority who made the original decision or may be pressured into
accepting the original ruling (OPE, 2007; Swaine, 2003).
Critique of local justice systems
In addition to the above mentioned critique of the system of compensation and the lack of realistic options of appeal, further criticism has been
voiced regarding processes of local justice in cases of domestic violence,such as the lack of participation and decision-making power of women inthese processes, the related enforcement of patriarchal power relations,lack of enforceability of the taken decisions and agreements, and the nature of some of the underlying principles of justice. Despite these controversial issues, local justice remains the dominant mechanism dealing withcases of domestic violence today and there is no reason to believe this role
will change in the future—regardless of the formal justice system’s status.
According to a recent survey (The Asia Foundation, 2008), 83% of Timorese
approach local authorities instead of formal justice actors in cases of domestic violence.
Lack of participation of women
One major area of concern identified by the literature is the lack ofwomen’s participation in informal justice hearings with women’s participation being minimal and often superficial (adb, 2005; Rede Feto, 2009). Even
when women victims and offenders are able to take part in the discussion of
their case, they often feel that their needs and input are ignored and instead,rulings are based on the administrators of justice’s own biases regarding

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women’s status in society serving to reinforce the social situation (Grenfell,
2006; Swaine, 2003).
The Asia Foundation (2004) found that while a strong majority of East
Timorese believe that women can (63%) and should be able (69%) to speak
for themselves in local justice processes, there are major differences in attitude according to geographic lines. While three-quarters of urban citizens say a woman has the option of speaking for herself, only 58% of rural
citizens agree, along with 53% in Oecusse and only 39% in the Central region. Similarly, eight in ten urbanites support female participation, while
just two-thirds of rural residents do with citizens in Oecusse (52%) and thecentral region (48%) being least supportive. A number of case studies support this data. Cummins (2010) finds that in Ainaro and Fatulia only men
can speak in dispute resolution ceremonies, including in domestic violence
cases, while Alves et al. (2009) report that in Bobonaro and Cova Lima, theperpetrator would always be present to answer questions unlike the victim
who would be represented by members of her family and thus is unable tospeak for herself.
Regarding the districts of Ainaro, Cova Lima and Oecusse, Swaine(2003) explains the fact that more men than women act as ultimate decision-makers in local justice with a common practice of recognizing only
those who are given the power to do so by the ancestors, and as a result
women are frequently denied a strong role in decision-making. In areas
where Community Councils have been established, a female youth representative from the council might be present during a hearing, and might beable to speak. Cummins (2010), however, reports that unlike male youth, it
is much less common for women’s representatives to be invited to participate or assist in dispute resolution. They are therefore unable to represent
women’s interests, even in the most serious of domestic violence cases. If
women have little influence on decision-making, existing patriarchal attitudes are likely to be reinforced through local judgments. While the process of enforcing social norms may be crucial to the collective interests ofa community in the context of the community's socio-cosmic beliefs, thisprocess may entrench underlying values and practices which render vulnerable groups such as women susceptible to violations of their rights (Swaine,
2003; tlava, 2009; Graydon, 2005). Nevertheless, it would be wrong to assume that local systems are inherently opposed to change. Custom and tra-224

H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i cdition are never fixed but rather constantly evolving, thus allowing for a highlevel of flexibility and adaptability.
Lack of enforcement for local rulings
Even when a hearing succeeds in putting blame on the perpetrator ofdomestic violence, the victim cannot be guaranteed the original problem
will stop. It has been suggested that awarded fines may not serve as a deterrent if they are not significant enough and may create a risk that wealthierpeople are able to re-offend without having to fear severe punishment (unfpa, 2005; O’Reilly & Jevtovic, 2008; Rede Feto, 2009; Swaine, 2003).
In general, local administrators of justice have little power to enforce
their rulings. This is so in regard to the actual payment of the agreed-uponcompensation as well as the prevention of further violence. There are simply
no means available to protect a victim from further abuse (unfpa, 2005;
Swaine, 2003; adb, 2005). Some women from remote areas interviewed by
Swaine (2003) see a role for the police in enforcing local agreements. These
women felt that if they had access to the police they would have the power
to make the offender pay.
The effectiveness or binding, compelling nature of local agreements fully depends upon the moral authority of the decision-makers and the socialpressure generated by the public nature of the proceedings occurring withinsmall communities. The effects of local rulings therefore are hardly predictable and may vary according to the different personalities involved and community dynamics at play (Graydon, 2005; unicef, 2009). Social pressure canbe highly effective in guiding behavior in Timor-Leste’s communities, influencing, for instance, victims’ reporting behavior of domestic violence. As
described in part IV, victims are often reluctant to report a crime in orderto protect the good name of their or the abuser’s family, particularly sincepermitting one’s family name to be tarnished is thought to cause an imbalance in the social and ancestral order. As the payment of compensation isthought to be crucial to re-establish such balance, it is noteworthy that social pressure on the perpetrator seems to be less pronounced and/or effective than pressure on victims. The reviewed literature does not address thisissue thoroughly and cannot explain why social pressures seem to be more
effective in some circumstances than others, requiring further research.

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Justice principles
While local systems of justice are based on the desire to maintain social
unity and peace, embedded in a complex set of spiritual beliefs and practices, these principles of justice as applied in domestic violence cases haveprovoked criticism from some authors.
For instance, violence is not always seen as wrong per se. In some areas
such as Los Palos, a distinction between unjustified abuse and justifiable
abuse seems to exist. Corcoran-Nantes (2009) found no support for the former but a significant acceptance of the latter. In local mediation processes,
the emphasis is often put on the events prior to the violence and on the
woman’s behavior that might have caused the violence, such as not cooking a meal, or failure to prioritize her responsibilities as a wife or mother.
Whoever is seen to be at fault prior to the violence is then blamed for the actof violence—this can be the accused, the victim or both (Corcoran-Nantes,
2009; Swaine, 2003). This focus on who is to blame for the violence in effectdemeans the seriousness of the act of violence itself, displaying a lack of appreciation for the seriousness of domestic violence as an offense (Cummins,
2010; Swaine, 2003).
Swaine (2003) furthermore describes local administrators of justice as
having “simple solutions” in resolving cases of domestic violence, namely
to keep the family together, even in cases of serious violence in order tomaintain the social arrangement that was established through the marriage
system and payment of the bride price. Local justice processes are therefore
being criticized for overlooking criminal offenses in the interest of maintaining social norms and an established social system, which may force
victims of domestic violence to remain in violent relationships (Cummins,
2010; O’Reilly & Jevtovic, 2008). On the other hand, the marriage system
is described as being at the center of Timorese social networks, creating
the basis for peaceful relations between families and establishing a networkof solidarity between them (Babo-Soares, 2009; Ospina, 2006; Alves, 2009;
Mearns, 2002). The aim of local law to keep the family together therefore
should not be viewed in simplistic terms but must be understood in thecontext of the collectivist nature of local informal systems.
Advantages of local justice systems
Despite these perceived negative aspects, local justice mechanisms continue to be highly regarded throughout Timor-Leste. Surveys of the Asia

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Foundation (2004; 2008) show that while confidence in the fairness of informal and formal justice dropped between 2004 and 2008, a majority of
85% remain confident in local justice mechanisms, compared to 77% who
are confident in the fairness of the formal justice system, and 90% who are
confident in the police. In 2008, an overwhelming 92% say they are more
comfortable with the informal system than the formal court system—an 8%
increase compared to 2004, when 86% said that informal justice protectsrights, including women’s rights. Formal courts are perceived to be less accessible, less fair, less protective of rights, and less reflective of community
values. Yet, 85% of those who have heard of a formal court before10 would
want a judge from the formal court system to come to their area to help
settle disputes—a clear increase compared to four years earlier when only
52% approved of such an option.
The reasons for this favorable assessment of informal justice as identified by the literature include its accessibility (local justice is available in eachhamlet and village, while formal justice institutions might be too distant for
many villagers to reach), affordability (many villagers are unable to afford aformal process while local systems of law are seen to be relatively inexpensive), familiarity (Timor-Leste’s formal justice system only developed overthe last eight years) and the use of local languages, speed and legitimacy(Nixon, 2008; Butt et al., 2009; Graydon, 2005; ope, 2007; Grenfell, 2006).
Furthermore, some features of the state justice system are at odds withlocal culture and anticipated outcomes, such as the need for reconciliation between the parties which is not achieved within the formal system(O’Reilly & Jevtovic, 2008). Local mechanisms on the other hand are perceived to promote strong family relationships and a sense of community
values, both of which are crucial in the context of small, close-knit communities (Graydon, 2005; Butt et al., 2009).
In this regard, local justice is capable of taking into account the spiritualbeliefs of a community, which impinge directly on the delivery of justice andthe resolution of disputes (Mearns, 2002). Lisan11 is not merely an alternative form of dispute resolution, but describes a different worldview that
acknowledges the continuing presence of the ancestors within daily life andthe principle of maintaining communal balance through long-term reciprocal exchange. Failure to observe these rituals are thought to have serious
negative consequences such as the spread of disease, harvest failure or natural disasters (Cummins, 2010; World Bank, 2010b; unicef, 2009). With lo-Approaches to Domestic Violence Against Women in Timor-Leste227

cal justice processes being in accord with community traditions and beliefs,
local decision-makers are therefore perceived to be better able to generateregionally appropriate decisions (Butt et al., 2009).
IV. Barriers to Women's Access to Formal JusticeIn their survey on community perceptions of the police, Chinn and Everett(2008) found that citizens and community leaders do not display clear preferences for how to deal with incidents of domestic violence, with responses
spread fairly evenly across several approaches. These include seeking assistance from the police, the suco council elder, other family or community
members, and negotiating directly with the husband. The diversity of responses was greater than for any other type of crime and may indicate that
there is less clarity about which authority can provide an appropriate solution for this type of violence, or is perceived to be able to do so. The majorityof preferred approaches, however, are of an informal nature (80%) with onlyaround one-fifth of citizens preferring to go to the police. While male andfemale respondents express similar preferences, community leaders have asomewhat stronger preference (29%) for initial involvement of the police.
These findings correspond to those of jsmp (2006b) according to which 75%
of domestic violence clients choose to resolve their cases through mediation, whether by the family, police or other mediators, with only 25% proceeding through the formal justice system.
Of the cases which are reported to the police, however, only a fraction
proceeds to court. Part of the reason for this phenomenon, as some authors
report, is because police and prosecutors refer cases back to be mediated at
the local level. On the other hand, victims of domestic violence seem highly
reluctant to engage with the formal justice process (jsmp, 2006b; 2005). For
instance, in 2003 there were 179 domestic violence cases and 42 sexual violence cases reported to the Dili District Police, but 104 cases were dropped
on the women’s initiative (De Sousa, 2005). The reasons for this reluctanceas identified by the literature are numerous, including economic factors,
family pressure, lack of information, and lack of protection and follow-up
services for victims of domestic violence, while economic factors seem tobe central to the considerations of many women. Jsmp (2006b) found thatamong the women referred to their Victim Support Unit, those who chose
not to pursue cases of gender-based and domestic violence in court, 50%

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H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i cwere influenced primarily by economic factors, 17% by pressure from theirfamilies, 17% by fear of the court process, 17% by a fear of separation or
divorce, and 8% by pressure from the suspect.
Referral of cases to the informal system
While a recent report cites increasing awareness among National Policeof Timor-Leste (pntl) officers that domestic violence cases brought to themshould not be referred to informal mechanisms (unhchr&unmit, 2010),
in practice women who seek help from the police may be sent back to taketheir cases to the informal system and are persuaded to withdraw formal
complaints (Rede Feto, 2009; Grenfell, 2009; Bere, 2005); less than a quarterof cases of gender-based violence reported to the police are sent to prosecution in the court system (Grenfell, 2009).
Some authors (e.g. Cummins, 2010) explain this by referring to a general distinction drawn by some police officers between what they call “small”
and “big” cases. A jsmp (2005b) study found that while all interviewed police were aware that domestic violence is a crime and should be processed
through the formal justice system, many nevertheless said they referredsome “small cases” to the informal system. Only in cases where the violencecaused serious injury did they take the case forward. This corresponds with
Cummins’ (2010: 147) recent findings that police may officers consider lisan
appropriate for “small problems” such as domestic violence, but inappropriate for “big problems” such as murder. She quotes a chief of police: “Fora small problem, like a problem inside the house, when there is violence
between husband and wife, […] between parents and children, this we solve
through the traditions we have […]”. Swaine (2003) even reports that somecases in the past which reached the courts were similarly sent back to local
justice mechanisms by judges and prosecutors.
Women therefore may not be reassured members of the formal system
will always take their cases seriously. They may believe instead the violence
they have experienced is not serious enough to be dealt with by the formal system (adb, 2005; Swaine, 2003). In addition to that, once returning
to informal justice mechanisms, women may be penalized for not bringing
the problem to the attention of local leaders before approaching the formal
system (ope, 2007; Graydon, 2005). Some community leaders argue that aperson who bypasses local law disrespects them as an authority and lisan ingeneral. In order to demonstrate their unhappiness and encourage people toApproaches to Domestic Violence Against Women in Timor-Leste229

use local law first, these community leaders demanded women who brought
the case to the police pay an initial penalty before they would hear their case(Swaine, 2003; usaid, 2009).
Furthermore, pntl officers are reported to use the maximum 72-hourdetention period before charges must be laid as time for a victim to decide
what they want to do about the case—to prosecute a perpetrator according
to formal justice or to have him released (jsmp, 2005b; Bere, 2005). Pntl officers also seem to understand their role as a mediator in domestic violence
cases (jsmp, 2005b; Graydon, 2005). Swaine (2003) explains how in somecases, police facilitate a joint statement between husband and wife in which
the perpetrator would promise not to repeat his actions, including a clausethat if he did, next time the police would use the statement as a basis forsending him to jail. In this context, women reported that while they did notnecessarily want their husbands to go to jail and court, they instead wanted
to use the police to scare their husbands and end the abuse suffered at home.
Economic dependence
The second major aspect impacting on women’s access to formal justiceis widely recognized to relate to women’s economic dependency on theirhusbands. Both in urban and rural areas, the majority of Timorese womenare reliant on their husbands for economic support for themselves and their
immediate family (Swaine, 2003; Alves et al., 2009). As traditional genderroles in terms of division of labor persist, and women are most often thehousewives and men the breadwinners in the family, their imprisonment
would mean a loss of income for the whole family. The prospect of their husband being sent to prison when approaching the police may therefore deter
many women from seeking justice through the formal system. Consequently,
some women rather risk more violence than economic insecurity and often
end up attempting to withdraw complaints, preferring to solve problems
through local justice (Bye, 2005; jsmp, 2004; Bere, 2005).
The role of the victim’s family in providing economic support can therefore be central to a woman’s decision whether to approach formal justice ornot. Yet, according to a recent survey, only one in five women have family
members who could support her financially if she needed it (nds et al., 2010).
Women who live far away from their own family are at an even greater disadvantage. As Swaine (2003) points out, West Timorese12 women marriedin Timor-Leste are the most worrying cases, as the geographic and political

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distance makes it difficult for them to contact families when in need of support. This problem is compounded by a country-wide lack of confidential
and safe places for female victims of violence, particularly in rural areas, andthe absence of any national social welfare system that would offer an alternative to such dependence. Women who are unable to return to their families
therefore generally lack any alternative support system (Mearns, 2002; Bye,
2005). Bye (2005) therefore concludes that in order to guarantee access tojustice for women victims, it is more important to focus on the woman’ssurviving abilities and on creating alternative income possibilities for thewife than only focusing on punishing the perpetrator.
Besides leaving women without economic support, punishing the perpetrator with imprisonment can have a number of negative side effects
since imprisonment may not be considered an appropriate remedy by many
Timorese. While a woman who reports her husband to the police is left at
risk of abandonment and economic insecurity, the perpetrator on the other
hand will have the “privilege” of receiving a free place to stay and free food in
jail. Imprisonment may be seen as perverting the point of punishing the perpetrator (Graydon, 2005; usaid, 2009). Furthermore, a victim’s family might
not be interested in the imprisonment of the perpetrator since this is likely
to deny the family compensation they would receive through informal processes (Nixon, 2008). It is therefore not surprising that in cases of domestic
violence only 43% believe the perpetrator should go to jail, while 37% thinkcompensation is adequate. Younger, more educated East Timorese are much
more likely to support jail for a man who hurts his wife, while older and lesseducated citizens believe compensation is preferable (The Asia Foundation,2004).
Social pressure
While some women may prefer to take their cases to the informal system, others seem to be pressured by their families or local authority figures
to resolve domestic violence cases by informal means, facing repercussions
not only from their husbands, but also from their husband’s family or theirown family (The Asia Foundation, 2004; ope, 2007; Cummins, 2010). Someadministrators of local justice have been reported to instruct victims of domestic violence not to go to the police, penalizing those who bypass local
justice, for instance by demanding a fine to be paid by those bypassing theinformal system (Swaine, 2003; Graydon, 2005).

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Since formal justice may entail a prison sentence for the offender, theformal system may be seen as a gateway to divorce, particularly since domestic violence is now a public crime. Local systems, on the other hand,
generally aim at reconciling and keeping families together. Separation froma violent partner is usually not an option and women are not supported ifthey wish to divorce (ope, 2007; adb, 2005; Swaine, 2003; usaid; 2009). The
influence of the Catholic church may also be relevant here as many victimsof domestic violence who turn to priests or nuns for help receive the advice
to be patient with their husbands and to serve them better in order not toprovoke disputes (Dewi, 2002; Bye, 2005; usaid, 2004).
Yet, as pointed out above, the issue of marriage and divorce should not
be viewed in simplistic terms. It is the marriage system that lies at the centerof Timorese social networks, creating the basis for peaceful relations between families and a network of solidarity. In the context of the collectivist
nature of Timorese society, the institution of marriage is respected aboveand beyond the individuals involved. The opposition of local systems towards separation of husband and wife must be understood within this wider
context. It is therefore unclear whether women victims, while wanting theviolence to stop, would in fact want to separate from their husbands, considering not only the social realities of Timorese society, but also economic
pressures that women face when separating from their husband.
According to some authors (Hynes et al., 2004; jsmp, 2004), pressure
on women not to approach formal justice seems to be closely related to
the widespread belief that domestic problems should be solved and discussed only within the family. A majority of Timorese surveyed by the Asia
Foundation (2004) considers domestic violence a “family matter” to be dealt
with through the local lisan process; an assessment confirmed by a more
recent survey, according to which Timorese prefer mediation processes remain in the realm of families and communities (The Asia Foundation, 2008).
Since a woman’s marriage is part of the collective experience of maintaining
relations between wife-giver (the family of the woman) and wife-taker (thefamily of the husband) groups, a married couple’s relationship and everything that happens within it is seen within the context of the two families’
relationships and that of the community as a whole. In this context, the experience of violence is not seen as an individual experience (Swaine, 2003).
As a result, and common reaction of women victims around the world,
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not discuss the issue with people outside the family. The desire to protect thegood name of their or the abuser’s family which may be seriously tarnished ifa crime of domestic violence is made public and reported to the police (unfpa, 2005; jsmp, 2005b; 2004) makes for a strong incentive to resolve a dispute in accordance with traditional justice using local values and reconcile
with the perpetrator.13 This is especially true since, according to local beliefs,
permitting one’s family name to be tarnished or failing to comply with established norms causes an imbalance in the social and ancestral order which
could attract the wrath of the ancestors sanctioning individual transgressors, their families or even the entire community (Nixon, 2008; Trindade& Castro, 2007). Conflict and crime are communal problems which placecommunity members at risk of supernatural sanctions. This explains communal pressures on disputing parties to resolve an issue expediently andharmoniously (Trindade & Castro, 2007; Mearns, 2002) and explains why
domestic violence cases are often kept within the family (Rede Feto, 2009).
While the social reality in Timorese communities stipulates that reconciliation between husband and wife are of an utmost priority in order tomaintain social networks, hardly any research has been concerned with thequestion how these social pressures could be applied to encourage men tohalt abuse. There is thus a need for future research to investigate the dynamics of social pressure in more detail. In light of the need for individuals to maintain the social networks in which they are embedded, rendering
divorce an often unfeasible solution to the problem of domestic violence, amore promising approach may be to utilize the existing social framework inorder to increase positive pressures on men. For such an approach to be feasible, the dynamics, nature and forms of social pressure in cases of domestic
violence need to be investigated further.
Perception of domestic violence
As described above, it is often not the victim’s decision whether to access the formal or informal justice system. The decision therefore strongly
depends on how domestic violence is perceived within the community towhich the victim belongs. In this regard, local justice administrators in asimilar fashion as police often draw a distinction between what they define as “small” and “big” offences, with usually only the latter being referredto the police. While generally, big offences relate to disputes with a highpotential for escalation and social unrest—such as murder or major land

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disputes—domestic violence is considered a small problem and relatively
normal (Chinn & Everett, 2008; Grenfell, 2009; Bye, 2005; Swaine, 2003).
This means that there are actors at both the formal and informal level potentially working to minimize the number of domestic violence cases handled
by the formal system creating a “double barrier” for women trying to accessthe formal justice system.
During consultations on the draft domestic violence law in Ainaro district, ope (2007) found a generally high tolerance of the consequences ofdomestic violence. Incidents such as “loss or breaking of a part of a body”
or “beating that result[s] in injury, swelling or sprain” were seen by somecommunities as only moderately severe. Only if the violence was continuously repeated or particularly severe, then the problem would be seen as
big enough to be referred to police. Similarly, Cummins (2010) reports that
often, the point at which an offence becomes “big” is described as whenblood had been spilled.
These findings are supported by data from the Asia Foundation (2004;
2008). While in 2004 the majority of Timorese (75%) thought domestic violence was wrong, the 2008 survey showed a drastic change in attitude with
only 34% believing that a man had no right to hit his wife. Interestingly, thisview was shared by more women than men, while according to the 2004
survey, those most opposed to domestic violence were younger and educated women and residents of the Central region, Oecusse and Baucau. Those
who are more likely to believe that domestic violence is acceptable are thoseover age 50, younger men, urbanites and those without any formal education. Over half the public (56%) felt that if a man beat his wife and seriously
hurt her, the case should be addressed by the informal system. Just four inten believed that such a case should be heard in the formal court. This attitude is reflected in the number of respondents who actually approached thepolice because of domestic violence—a mere 7% compared to 83% who approached their family or a local authority. This data suggests that domestic
violence may not be perceived as an offence serious enough to be dealt within the formal system.
While traditionally, lisan does not distinguish between civil and criminal matters but deals with both issues as required, some communities havestarted to apply these legal terms to lisan. Cummins (2010) describes how
in some communities in Ainaro and Fatulia, a third category of offence has
been created, referring to domestic violence as civil violence (violensia sivil).

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The use of this term shows that domestic violence is viewed as having different qualities and is generally seen as less severe than other violence, leading to cases of domestic violence being resolved via lisan. Cummins (2010:154-5) quotes one Chefe de Aldeia who explains that “regarding violence,criminal violence, we cannot adjudicate. That goes to the police. [But] if it isdomestic violence, we resolve that within the Aldeia, via lisan.”Because female victims often lack a voice, it is rarely the women themselves who decide whether an offence is “big enough” and should go to thepolice but rather her family or local authority figures (Cummins, 2010),
while these actors may base their decision on what they perceive to be bestfor the whole community rather than the individual. Many women may notrealize the abuse they experience is a crime, but may perceive it as a normal
and unavoidable part of Timorese society, remaining silent and tolerating
the abuse (Alves et al., 2009; jsmp, 2004; unfpa, 2005). Considering violencein a domestic relationship as normal or even inevitable seems to be a common attitude in Timor-Leste and is reflected in the Tetum saying “bikan hokanuru baku malu”, “a dish and a spoon will hit each other” (unfpa, 2005).
In a male dominated society as Timor-Leste, this acceptance of violenceby women and men means if a woman has not fulfilled her expected role as ahousewife and mother, the man may feel he has a right to beat her—to educate her (Bye, 2005). Different surveys support this conclusion to varying
degrees. The Demography and Health Survey of 2009 found that an astonishing 86% of women and 80% of men believe that a husband is justified inbeating his wife for neglecting her duties such as burning the food, refusing
to have intercourse with him, or neglecting the children (nsd et al., 2010).
In another study, 51% of respondents strongly agreed that “a man has agood reason to hit his wife if she disobeys him” (jsmp, 2004), while a smaller
number (21%), but nevertheless considerable minority, of those surveyed by
the Asia Foundation (2008) feels that a man has the right to hit his wife if
she misbehaves. Yet, only 34% disapprove of this statement while the highest number of respondents (44%) says it depends on each case individually.
Violence may then be seen as an acceptable way of disciplining or educating
wives or children (Alves, 2009; usaid, 2004).
Some literature affirms that a third of those who find domestic violence
acceptable believe it is permissible due to the bride price14 which the man’sfamily has paid to the woman’s family (See The Asia Foundation, 2004). Thisterminology (“accept”, “believe”, “permissible”), however, is problematic

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since it may carry different interpretations depending on the cultural context, especially when this interpretation does not use the legal framework
definition of domestic violence as point of reference. Another study foundthat only 9% of women felt that the bride price had a negative influenceon how their husband treated them while 38% stated that it had a positiveeffect (unfpa, 2005). The belief that there is a direct relationship between
the custom of paying a bride price and the increase in the incidence of domestic violence in Timor-Leste—a consistent theme which runs throughthe literature (Corcoran-Nantes, 2009; Rede Feto, 2009; Swaine, 2003; The
Asia Foundation, 2004)—therefore cannot be proven and may represent anemotional and generalized interpretation of reality. More in-depth researchis required before the effects of the bride price on domestic violence can be
determined.
Authors such as Babo-Soares (2009) warn against interpreting thenorms of the marriage system in purely economic terms. This author describes marriage as the main nucleus of Timorese social relationships, with
two families or clans forming a socio-politic, economic and cultural alliance.
In this context, the bride price is required to balance the woman’s value
based on her fertility and labor which flows from her family to the man’s.
Hohe and Nixon (2003) point out that the marriage system implies an exchange of goods rather than a one-sided payment. Speaking generally, while
the man’s family gives goods representing maleness and security such as
cattle, buffaloes and money to the woman’s family, they return goods representing femaleness and fertility, such as gold, weavings and pigs. The flow ofvalues represented in the exchange of goods creates a socio-cosmic balance
assuring families’ fertility as well as security. It creates the basis for peacefulrelations between the two families, establishing strong social linkages anda network of solidarity between two clans/families, representing a form ofsocial safety net (Ospina, 2006; Alves, 2009; Mearns, 2002).
A disruption of these relations can have serious consequences for theentire community, making the relations between families a central concern
for local administrators of justice. Retaining good relations between families may then be perceived as more important to the survival of the community than an individual's experience of violence. Under the full weight ofcommitments and bonds established between families with the bride price,
women may seek to avoid “creating” problems by not seeking justice for236

H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i ccrimes of violence (Alves et al., 2009). Considering the complex nature of
the marriage system and its important role within communities, further research is required to determine the role of the bride price in creating barriers to women’s access to justice. It remains unclear in how far the paymentof the bride price is in fact perceived as the “purchase” of a woman, and howsocio-economic changes, urbanization, and raising amounts of bride prices
are influencing this perception.
Accessibility and speed of the formal justice system
As many authors report, practical considerations such as a community’s
distance to formal justice institutions, their cost and the speed of processing
cases, also seem to play a big role when it comes to women’s access to justice.
Few community members in rural Timor-Leste own mobile phones, andgiven the distance of many communities to the next police station, transport
might not be available or unaffordable (Cummins, 2010; Swaine, 2003; jsmp,
2004; unfpa, 2005). The lack of accessibility of formal legal institutions is
confirmed by data of the Asia Foundation (2008) according to which 60% of
respondents who have heard of a formal court before say they do not havea court house in close enough proximity to use if necessary. Without accessto any support systems, this becomes a particular problem for women who
generally have very limited financial means available to bring their cases tocourt (Rede Feto, 2009).
It is impossible to know how many “silent cases” exist in which thevictims, but for these material constraints, would prefer to use the formal
justice system (Cummins, 2010). Higher reporting rates in districts withcourts suggest that when people have access to formal judicial institutionsin close proximity they are more likely to utilize the formal justice system.
The presence of Vulnerable Persons Unit (vpu) officers of pntl has a similareffect on the number of reported cases which indicates that a strengtheningof this unit at the sub-district level is likely to improve reporting behavior(unhchr&unmit, 2010).15
Yet, even when victims do pursue their cases through the formal justicesystem, problems persist, in particular regarding the slow resolution of cases involving gender-based violence. It is often between six months and one
year before such cases are finalized by the court which may cause women todrop their cases or may act as a deterrent to female victims seeking justicein the first place (World Bank, 2006; jsmp, 2005; 2006b).

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While the formal legal system is generally perceived to be less accessible, more complex, and a greater financial risk than local justice mechanisms (The Asia Foundation, 2004), it is important to note that the cost involved in local justice processes can also prohibit women from using thesemechanisms. For instance, in some areas, it is expected to bring betel nut
and cigarettes for the lian nain presiding over the hearing. Also, in order to“close the shame” and reconcile, usually the guilty party will have to provide
a meal, in some cases for the whole village. Even if the husband is foundguilty, his wife as member of his household will end up equally bearing thissignificant financial burden and may thus be discouraged from seeking justice at all (Swaine, 2003).
Lack of understanding regarding the formal system
Female victims of violence often have little knowledge about legal
processes, and are unlikely to understand many formal legal procedures,
including how to bring their cases to the formal system (Rede Feto, 2009;
jsmp, 2009; unfpa, 2005). Particularly in rural Timor-Leste there is very low
awareness regarding how to engage with actors of the formal legal system,with only 34% having heard of public prosecutors before, 41% of lawyers,
and 59% of formal courts. As a result, 92% say they are more comfortablewith local justice processes than the formal system (The Asia Foundation,
2004; 2008).
This lack of knowledge also extends to the substance of the law. While
more than three-quarters of East Timorese understand that it is illegal fora man to beat his wife if he disapproves of her behavior, significant minorities remain unaware of these provisions. Education and geography are themost crucial factors. Younger, educated citizens have the best awareness of
the law, as well as Dili residents while citizens in Oecusse and the Westernregions are less aware of legal provisions. In 2004, the laws against domestic
violence were most familiar in Baucau (82%) and the Central region (84%),
but less so in the East (71%) and the West (69%) (The Asia Foundation, 2004).
This lack of legal understanding is compounded by some misunderstandings by certain pntl officers who do not fully or correctly inform women
about procedures and entitlements under the formal system, instead sending cases back to the local system (Swaine, 2003).

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V. Interaction Between Formal and Informal Justice Systems
Regarding popular attitudes towards the interaction of the two systems,
Timorese seem to recognize a role for both state and non-state actors in
the maintenance of law and order (World Bank, 2010), and communities
often see no contradiction in seeking justice through both systems at thesame time (jsmp, 2006; Trindade & Castro, 2007). Sometimes one system
is approached and, if the response or outcome of the initial approach isconsidered unsatisfactory, then another will be approached (Wilson, 2010).
East Timorese therefore clearly display a concept of justice which involves acontinuum encompassing both the informal and the formal legal system, inwhich generally a division between “minor” offenses, to be dealt with locally,and “serious” issues, to be forwarded to the formal system, applies (The Asia
Foundation, 2004). According to Swaine (2003), many women think that aforum shopping approach, i.e. engaging both systems in order to maximize
their chances of success, is the most fruitful approach for them when seeking justice. While these women see the police as having more capacity thaninformal authorities to scare violent husbands into stopping their actions
and compelling them to pay an agreed-upon compensation, having the matter resolved by informal means guarantees that the process is culturally andsocially acceptable.
Lack of guidelines for interaction
While it may not be recognizable straight away, in practice there is a
close relationship between formal and informal justice systems in TimorLeste. First and foremost, this relates to the above described practice cases
brought back to local justice processes and victims withdrawing formal
charges to approach the informal system. The interaction between the police and formal courts on the one hand and local law on the other hand,
however, extends far beyond that—yet mostly in an unregulated and ad hoc
fashion.
For instance, a recent survey found that the vast majority of pntl officers (85%) say they play a role in informal dispute resolution, as witnesses,
observers or mediators, with domestic violence being the most common
dispute dealt with (Chinn & Everett, 2008). Some vpu offices furthermore
keep files with information about cases that had been resolved through traditional mechanisms. In one district it is common practice that if a victim

Approaches to Domestic Violence Against Women in Timor-Leste

239

brings a signed peace agreement from a traditional proceeding to the police station within three days of having filed an official complaint, the police
do not forward the case for judicial action, but instead files the agreement(unhchr&unmit, 2010).
In a similar fashion, formal courts are interacting with the informal system. Some district courts are making an effort to take into account elements
of informal law, for instance the aspects of compensation and reconciliation (Grenfell, 2009). Undp access to justice officers monitored one caseof physical assault in Same in October 2010 which was closed by the judge
after the parties presented a peace agreement stating that the case had been
resolved using informal law. jsmp (2006) reports that in the court cases they
monitored, courts did take into account informal law while maintaining thesupremacy of the formal system.
While this practice might increase the legitimacy of court decisions asperceived at the local level, Grenfell (2009) argues that this process is nevertheless problematic since it occurs in an ad hoc, unmonitored fashion andoutside of the existing state legal framework. The two systems are therefore
in fact highly interdependent but, as Graydon (2005: 68) describes it, “onlythrough the improvised and unregulated decisions made by individuals”,
creating confusion among the populace and creating a risk of double jeopardy. It is therefore argued that the current state of legal pluralism needs tobe regulated as it is placing strain on both systems and causing confusion for
locals (Grenfell, 2006).
Women in particular are suffering from this situation as they are sent
back and forth between the two systems, or become the subjects of un-standardized processes (Swaine, 2003). In the absence of legislative guidelines,
and in the context of limited state presence in rural areas, the balance between lisan and formal law tends to be negotiated by local authorities who
may not always acknowledge the interests of non-elite community members,
particularly those of domestic violence victims (Cummins, 2010). While theregulation of the interaction of formal and informal systems may therefore
be desirable, too rigid regulation on the other hand may decrease women’s
options to “forum shop”, i.e. to use the most promising justice mechanism
for their case. Any formal regulation must therefore be crafted carefully as
to not in practice decrease the number of justice options available to women.

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H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i cExperiences of other countries
Some countries, such as Samoa, have made attempts to formalize therelationship and interaction of formal and informal systems of justice. Since
1990, courts have been required to take village punishments into accountin mitigation of court penalties. However, a determination of guilt or innocence by an informal court does not bar action by a state court in relation to
the same behavior. Similarly, the formal acceptance of the customary ritualized public apology, “Ifoga”, does not preclude a civil action for damages
under common law (unicef, 2009).
In other contexts, attempts at defining the relationship between formal and informal law have not succeeded in changing the situation on the
ground. In Sudan, for instance, attempts were made to define subject matter
jurisdiction, but to no avail. Instead, individual chiefs in urban areas adhere
to formal regulations only when it suits them while in rural areas jurisdiction on all subjects remains squarely in the hands of the local chief even
where the government has established jurisdictional guidelines. This meansthat cases of gender-based violence are handled almost exclusively at the
local level while jurisdictional uncertainty remains a barrier to the administration of justice in cases of gender-based violence (unfpa, 2008). The same
phenomenon was observed among in Liberia during efforts to remove serious cases, such as murder, out of Chiefs’ jurisdiction; instead, Chiefs went
“underground”, continuing to hear serious cases to safeguard their legitimacy in the community (Isser et al., 2009).
Similar problems have been encountered in Papua New Guinea, wherea village court system has been established, a hybrid institution that draws
upon the authority of both state justice and informal justice. Village courts
are created by the state, have jurisdictional powers established under statute,and, in theory, are subject to review by formal state courts. At the same timethey are presided over by village leaders and are supposed to resolve disputes in accordance with local custom (unicef, 2009). Yet, the village courts
are regularly criticized for discriminating against women litigants and victims of crime, reflecting both the failure of formal state courts to properly
supervise the village courts and the intrinsic deficiency of the village court
model (unicef, 2009). More interestingly perhaps, Papua New Guinea has
also taken steps to incorporate aspects of informal law into formal law. For
instance, the Criminal Law (Compensation) Act of 1991 allows victims ofcrimes such as domestic violence to claim compensation from the perpe-Approaches to Domestic Violence Against Women in Timor-Leste

241

trator. Just as in Timor-Leste, claiming compensation for wrongdoing is acommon feature of local law in Papua New Guinea (United Nations, 2010).
Positive international examples are reported in cases where rather thanfocusing exclusively on the accessibility of the formal legal system, culture and tradition were used to improve the situation of women. Studies
on women’s access to land rights in Kenya (Harrington & Chopra, 2010;
Chopra, 2007; Nyong’o & Ongalo, 2005) have found that the most effective way of tackling local power structures which disadvantage women is byactually working with the existent socio-cultural value systems—which arelegitimate, acceptable and understood in that community—instead of promoting the formal justice system at the expense of, and despite, the informal
system. By supporting and re-emphasizing existing positive values, the support of community leaders and the community at large was gained for initiatives in support of women’s rights. Elders were thereby able to intervene
successfully and secure women’s rights to access land. Locally acceptable
initiatives seeking changes were achieved while official rights gained traction, local legitimacy and long-term acceptance since they were attached toexisting community values and practices.
VI. Conclusions and Research Implications
Handling cases of domestic violence is proving difficult for both state andinformal justice in Timor-Leste. The police system, though only recently
charged with upholding the Law against domestic violence, requires additional institutional and individual capacity building to better understandand address complex social phenomena. Without continued capacity building, approaching the police for assistance may prove a negative and disempowering experience for many victims of domestic violence. Local justiceprocesses, on the other hand, may likewise disadvantage and disempower
women in cases of domestic violence, as both users of and potential administrators of justice. With actors in both the formal and informal justice system at times working to prevent cases of domestic violence being processed
formally, women attempting to access the formal justice system face serious
barriers. Police and local authorities display a need for increased understanding of the seriousness of domestic violence as established by the Stateand the impact this violence can have on women and the wider community.

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Building the capacity of the formal system is a long term process.
Considering their integral role in local culture, local informal systems willremain a central feature of conflict resolution regardless of the completionof this process, providing Timorese citizens with a culturally accessible
alternative to the formal justice system. Being tied up in a set of spiritualbeliefs and social norms, local justice systems are fulfilling a purpose theformal system cannot simply replace. It is therefore of crucial importance toengage with these systems and understand the cultural values underpinningvarious practices and beliefs.
While most of the literature points out that local justice at times runs
counter to ideas of equality and international human rights standards, lessattention is given to the fact that local law and its focus on collective rights,
rather than individual rights, serves a crucial social function: maintaining
peace and social order within small, close-knit communities. For any reforms to be acceptable in at the local level, there is a need to make local justice systems “work” for women while maintaining the principles and values
which underpin them. Informal systems' focus on collective rights should
be understood as an opportunity rather than an obstacle. The Kenyan experience noted above indicates measures to increase women's access to justice which make use of local social systems, rather than seeking to supplantthem through a dogmatic rights-based programme, are most likely to succeed and be sustainable. Considering the importance of customary law andthe values embodied therein for Timorese communities, this conclusion has
important implications in Timor-Leste.
That said, those seeking change in Timorese communities may not
face insurmountable opposition. According to the Asia Foundation (2004),
75% of Timorese acknowledge that lisan could do with some reform while
Swaine (2003) found that local holders of justice interviewed for her study
were open to and eager for such reformation to take place—as long as itis respectful to their beliefs, and based on an inclusive and open process.
Supporting positive changes within local systems while maintaining overall
their integrity is likely to be the most successful and desirable approach.
A purely legal approach will almost certainly prove insufficient tochange outlooks and deeply rooted behavior. While a necessary factor insocial change, law alone often is not sufficient as an agent of social change,16
particularly in the context of Timor-Leste, where the sequential UN missions deployed to Timor-Leste and the international community have pro-

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moted (and continue to promote) a number of laws which do not adequately
account for the socio-cultural context over the years.
It is the concept of and attitude toward violence against women, the ideathat domestic violence is a normal occurrence and private matter and general ignorance of the domestic legal framework, which need to be addressedand challenged. Further, due to women’s high level of economic dependence
on their husbands, focusing on punishing the perpetrator will prove insufficient to guarantee access to justice for female victims—and may actually
undermine local social mechanisms which support women and deter domestic violence. It may therefore be more beneficial to focus on women’ssurviving abilities and alternative income possibilities as well as supportingchange within local systems.
The unpredictable interaction of the local and state legal systems iscompounding existing problems and is inhibiting the development of asecure and supportive environment for women seeking justice in cases ofdomestic violence. A formalization of this relationship which advances the
positive aspects of both systems is therefore crucial. For instance, incorporating aspects of local justice, such as compensation for a crime, into theformal system might increase the legitimacy of formal justice rulings andpunishments at the local level. Similarly, clear guidelines on how formal
courts should deal with informal decisions are needed in order to remedy
the current situation of legal uncertainty.
Research Implications
As pointed out throughout the paper, there are a number of gaps inthe literature which compartmentalize the understanding of the problem ofdomestic violence in Timor-Leste.
1. There is only partially reliable data on domestic violence available, whether quantitative or qualitative. With data collection and terminology inconsistent across studies and definitions of domestic violence
not matching the definition in the Law against domestic violence, it remains
impossible to map the incidence of domestic violence and to track changes
accurately, and to identify the most vulnerable groups of women.
2. Local dispute resolution trajectories in cases of domestic violence are often simplified and homogenized. While the majority of the literature acknowledges the diversity of local dispute resolution mechanisms

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across Timor-Leste, ideas on concrete trajectories dominant in different areas, both urban and rural, remain blurred. Questions such as which family
or community authority is approached, how the payment of compensationis administered, or how much of a voice women receive in local dispute
resolution need to be investigated further in order to map different disputetrajectories across Timor-Leste.
3. There is a need to analyze the dynamics and power relation between authorities in local justice processes—including ritual, politicaland formal state justice authorities—while taking into account the diversity of local systems in Timor-Leste. It is unclear how far decisionmaking power has shifted from the lian nain to the Chefe de Suco and Chefe
de Aldeia and in how far ritual authorities are still able to influence or control local justice processes, particularly in light of socio-economic changes
such as urbanization. The significance of other involved actors, such as the
Catholic Church, the dato or the liurai also requires further research since
the role of these actors has rarely been explored even though they may havea considerable influence on the outcomes of informal justice. The same
concerns the role of police officers in mediation. While Chinn and Everett(2008) found the majority of police say they help mediate conflicts such as
domestic violence at the community level, it remains unclear what exact role
police play, at which stage of a mediation process they become involved, andwhether they have any decision-making capacity regarding local disputes.
4. The major barriers to women's access to justice need to be identified, among them most importantly the choice of justice institutions,i.e. formal or informal institutions, and the nature and impact of socialpressures. While the literature identifies a number of barriers to women's
access to justice, it remains unclear which the decisive ones are. While
women's economic dependence on their husbands seems to be a central deterrent for women to seek justice, the significance of other factors such associal pressure, or the lack of understanding of the formal system remain
hard to determine. For instance, if the formal system were more accessible,
would victims of domestic violence actually take advantage of it? In orderfor successful measures to improve women's access to justice to be designed,
such questions need to be addressed and answered by future research.
Moreover, the reasons why either the formal or the informal system
becomes a choice for remedy need to be analyzed further with more qualitative and quantitative data and a focus on how formal law is being applied inApproaches to Domestic Violence Against Women in Timor-Leste

245

practice. Since it is the definition of the concepts of violence and crime andthe related distinction between small and big offences which seems central
to the question whether formal or informal justice is considered appropriate, it is crucial to further explore local definitions of violence. In relation tothis, it is important to not only focus on the question of what it is that keeps
women from reporting to the police, but to focus on the victim’s family’sinterests. As it is often the family’s decision which route to choose, family
heads and lian nain become crucial figures in domestic violence cases. It istherefore necessary to examine further what it is that stimulates families tocontact either the police or the local leader.
Finally, the nature and impact of social pressures need to be taken into
account when analyzing the barriers to women’s access to justice. While theliterature emphasizes the role of social pressure in influencing the choices
made by victims of domestic violence, it is unclear why these apparently
strong social pressures are more effective in some than in other cases.
Considering the importance of reconciliation in order to restore harmony
both in the material and cosmic spheres, it remains unclear why the socialpressure generated seemingly is not always enough to compel perpetrators
to pay the agreed upon compensation. Most importantly, there is a needto investigate whether and how social pressures could be used to pressure
men to stop abuse. Related to this question is the issue of the bride price.
Future research should investigate how far the meaning of the bride pricehas changed in light of socio-economic developments and how far the payment of the bride price creates pressures on women not to seek justice forcrimes of domestic violence.
5. Local law and culture are frequently analyzed from a formal legal
perspective, missing local realities and opportunities of working withinthose realities and driving change from the bottom-up. Timorese informal law can at times be discriminatory towards women; however, much of
the literature on Timor-Leste tends to draw overly simplistic conclusions
advocating the replacement of informal law, if not outright elimination. This
literature review shows that local conceptualizations of domestic violence
and local value systems do not necessarily correspond with the prescriptions of the 2010 Law against domestic violence. Positivist change from the
top down, as often advocated by the various UN missions and international
community in Timor-Leste, is unlikely to improve women’s access to justiceon the ground; it may be a necessary component, but not a sufficient one.

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Policies aiming to supplant and replace informal justice with formal laws
and institutions are misguided; they are neither realistic and nor are they
desirable given the importance of informal justice as an integral componentof Timorese cultures—not to mention protected as such under international
human rights law. Improving access to justice requires a more nuanced andcircumspect approach, combining concern and respect for human rights
with understanding and respect for local cultural systems given the central
role they play in Timorese society. To be effective and legitimate, change
should come from the bottom up—rooted in cultural values and practices.
There is a need for further research and policy focusing on strengthening
values within informal law which protect and promote women’s rights (andbroader human rights in general) to help bring about locally-owned change.
Endnotes
1 Many writers use the terms “customary” or “traditional” law to refer to localized, informal justice mechanisms in Timor-Leste. Without attempting to be exhaustive regarding the definition of local practices, this literature review will instead use
the terms “informal” or “local” justice. As pointed out by various authors (Mearns,
2002; Swaine, 2003; Hohe, 2003; Butt et al., 2009), the terms “customary” or “traditional” law may imply a timeless and fixed notion of tradition and custom that is
opposed to an evolving, universal and “modern” system of formal law. As a result,these terms do not account for the ways in which external forces or internal social
dynamics are continuously changing traditions and customs. Using the terms informal and local law, this literature review aims to take account of the highly dynamic
and fluid nature of local practices.
2 It should be noted that the quoted study only asked those respondents who
were aware of the existence of formal courts (59% of respondents) to answer thisquestion.
3 The law defines “family” in quite a broad manner as well: Article 3 Family:“For the purposes of this law, members of a family shall refer to people in the following family relationships: a) Spouses or ex-spouses; b) Persons who live or have
lived under conditions analogous to spouses, even though without cohabitation; c)
Relatives in the ascending and descending line of one or both spouses or of anyone
in the situation referred to in the preceding paragraph, as long as they are the same
relationship of dependency and part of the household economy; d) Any other person
who is part of the same context of dependency or household economy, including
any person who carries out an activity in the household continuously and with asubordinated status.”
4 Much of the literature does not define the term “domestic violence” at all.
Some authors refer to specific definitions of domestic violence such as Bye (2005:18) who defines domestic violence as “physical, sexual, and psychological violenceApproaches to Domestic Violence Against Women in Timor-Leste

247

occurring in the family”, while much of the literature refers to broad definitions ofgender-based violence (GBV), see e.g. Myrttinen et. al (2010: 14) and Swaine (2003:12) who refer to GBV as “a broad term for any harm that is perpetrated against aperson’s will, that has a negative impact on the physical or psychological health, development, and the identity of the person, and that is the result of gendered power
inequities that exploit distinctions between males and females, and among males
and females.”
5 The Vulnerable Persons Unit (VPU) was created in 2001 by UNPOL and
the National Police of Timor-Leste (PNTL) and has jurisdiction over the following
crimes: rape, attempted rape, domestic violence, child abuse, child neglect, missing
persons, and sexual harassment (JSMP, 2004; Styles-Power et al., 2008).
6 UNTAET Regulation 1/1999 provided that the laws that applied in East
Timor prior to 25 October 1999 shall apply in East Timor in so far as they do notconflict with the standards referred to in Section 2 regarding conformity with human rights standards and section 3 repealing particular Indonesian laws. This was
widely understood to allow for the continued application of particular Indonesianlaws. Article 165 of the RDTL Constitution concerning the applicability of previous
laws and RDTL law 2/2002 On the Interpretation of Applicable Law was also widely
understood to have maintained this situation post-independence.
7 It is unclear how often it was used between 2006-2009 given the gap in research data.
8 Article 154 Mistreatment of a spouse: “Any person who inflicts physical ormental mistreatment or cruel treatment upon a spouse or person cohabiting withthe perpetrator in a situation analogous to that of spouse is punishable with 2 to
6 years imprisonment, if no heavier penalty is applicable by force of another legal
provision” (DRTL, 2009b).
9 The Mobile Court hearing in Same on 29 October 2010 was monitored by a
UNDP Access to Justice Officer.
10 61% of respondents of the same survey said they had heard of a formal court
before.
11 Lisan is a broad term encompassing local law, social norms and morality, art
and rituals, and a system of community leadership and governance.
12 West Timorese come from Nusa Tenggara Timur Province in Indonesia.
This province is also known as West Timor.
13 It should be noted that this is by no means a phenomenon unique to TimorLeste; however this section details how this universal phenomenon is manifested
specifically in Timor-Leste.
14 The literature often refers to the bride price using the Tetum term “barlake”(See e.g. OPE, 2007; Rede Feto, 2009). Yet, barlake is a broad concept with varied
meanings across Timor-Leste and goes beyond the mere payment of the bride price,
representing a key element in defining the relation between the wife’s and husband’sfamilies (Myrttinen et al., 2010). This literature review therefore uses the term “bride
price”.
15 This statement is based on data collected by UNMIT’s Human Rights andTransitional Justice Section, yet, the report does not specify whether reporting rates

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are on a per capita basis or based on raw numbers. In the latter case, higher reporting rates could simply be explained by a higher population in districts with courts.
16 This conclusion is supported by a number of international examples. For instance, while South Africa boasts the African continent’s most progressive legal protection of women’s rights (Ozoemena & Hansungule, 2009) and regulates the reformof customary law through its Traditional Leadership and Governance Framework
Act that promotes equality and the installation of female traditional leaders, in practice, women have not benefited substantially from these prescriptions (Curran &Bonthuys, 2004).

References
Alves, M.D.F. et al. 2009. Baseline Study on Sexual and Gender-Based Violencein Bobonaro and Covalima. Dili: Asia Pacific Support Collective Timor-Leste.
Asian Development Bank (ADB). 2005. Gender and Nation Building In TimorLeste. Country Gender Assessment. Manila: Asian Development Bank.
Babo-Soares, D. 2009. Co-Existence of Formal Law and the Customary Law inTimor-Leste. Culture and Customary Law in Timor-Leste. Paper Presented at theWorkshop “Sector Consultation Workshop on Customary Law/Justice”, Centro deFormação João Paulo II, Dili, 27 February 2009.
_______________. 2004. “Nahe Biti: The Philosophy and Process of Grassroots
Reconciliation (and Justice) in East Timor.” The Asia Pacific Journal of Anthropology
5 (1), 15-33.
Bere, M.A. 2005. “Women and Justice in Timor-Leste.” Development Bulletin,
No. 68, 55-57.
Isser, D. et al. 2009. Looking for Justice: Liberian Experiences with and Perceptionsof Local Justice Options. United States Institute of Peace: Peaceworks Series.
Butt, S. et al. 2009. “Looking Forward: Local Dispute Resolution Mechanisms in
Timor-Leste.” Legal Studies Research Paper No. 09/33, Sydney Law School.
Bye, H. 2005. The Fight Against Domestic Violence in East Timor: Forgetting
the Perpetrators. Master in Peace and Conflict Transformation, Faculty of Social
Science, University of Tromsø.
Chinn, L. and Everett, S. 2008. A Survey of Community - Police Perceptions:
Timor-Leste in 2008. Dili: The Asia Foundation.
Chopra, T. 2007. “Promoting Women’s Rights by Indigenous Means: An
Innovative Project in Kenya.” Justice for the Poor Briefing Note 1 (2).
Committee on the Elimination of Discrimination Against Women (CEDAW).
2009. Concluding Observations of the Committee on the Elimination of Discrimination
against Women, Timor-Leste.
Corcoran-Nantes, Y. 2009. “The Politics of Culture and the Culture of Politics –a Case Study of Gender and Politics in Lospalos, Timor-Leste.” Conflict, Security &Development 9 (2), 165-187.

Approaches to Domestic Violence Against Women in Timor-Leste

249

Cummins, D. 2010. Local Governance in Timor-Leste: The Politics of Mutual
Recognition. PhD thesis. School of Social Sciences and International Studies,
University of New South Wales.
Curran, E. and Bonthuys, E. 2004. Customary Law and Domestic Violencein Rural South African Communities. Johannesburg: The Centre for the Study ofViolence and Reconciliation.
De Sousa, R. 2005. “Women of Timor-Leste: Seeking Freedom in a Free Nation.”
Development Bulletin No. 68, 34-35.
Democratic Republic of Timor-Leste (DRTL). 2010. Law No. 7/2010 on
Domestic Violence.
Democratic Republic of Timor-Leste (DRTL). 2009 Law No. 3/2009 on
Community Leaderships and Their Election.
Democratic Republic of Timor-Leste (DRTL). 2009b. Penal Code.
Democratic Republic of Timor-Leste (DRTL). 2004. Government Decree-Law
No. 5/2004 of 14 April 2004 on Community Authorities.
Democratic Republic of Timor-Leste (DRTL). 2002. Constitution of the
Democratic Republic of East Timor.
Dewi, S. 2002. “Staying Together no Matter What: Domestic Violence andPower Relations in East Timor.” Human Rights Tribune 9 (1), 19-22.
Graydon, C. 2005. “Local Justice Systems in Timor-Leste: Washed up, or Watch
this Space?” Development Bulletin, No. 68, 66-70.
Grenfell, L. 2009. “Promoting the Rule of Law in Timor-Leste.” Conflict, Security& Development, 9: 2, 213-238.
Grenfell, L. 2006. “Legal Pluralism and the Rule of Law in Timor-Leste.” Leiden
Journal of International Law, No. 19, 305–337.
Harrington, A. and Chopra, T. 2010. “Arguing Traditions. Denying Kenya’s
Women Access to Land Rights.” Justice for the Poor Research Report No. 02/2010.
Harrington, A. 2006. “Institutions and the East Timorese Experience.” East
Timor Law Journal 7, 2-37.
Hohe, T. 2003. “Justice Without Judiciary in East Timor.” Conflict, Security &Development 3 (3), 335-357.
Hohe, T. and Nixon, R. 2003. Reconciling Justice. “Traditional” Law and State
Judiciary in East Timor. Washington DC: United States Institute of Peace.
Hynes, M. et al. 2004. “A Determination of the Prevalence of Gender-based
Violence among Conflict-affected Populations in East Timor.” Disasters 28 (3),294-321.
IRIN News. 2010. “Timor-Leste: The slow death of domestic violence” 21
September 2010, available at www.alertnet.org/thenews/newsdesk/IRIN/556432dc
5ab4076846bfc8beec5af0c9.htm
Judicial System Monitoring Program. 2009. Article 125 of the Criminal
Procedure Code. Creating a Dilemma for Victims of Domestic Violence. Dili: Judicial
System Monitoring Program.

250

H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i c_____________________. 2006. The Law of Gender-Based Violence in TimorLeste. Dili: Judicial System Monitoring Program.
_____________________. 2006b. Victim Support Service Mid-Year Report, 1
January – 30 June 2006. Dili: Judicial System Monitoring Program.
_____________________. 2005. Statistics on Cases of Violence Against Womenin Timor Leste. Dili: Judicial System Monitoring Program.
_____________________. 2005b. Police Treatment of Women in Timor Leste.
Dili: Judicial System Monitoring Program.
_____________________. 2004. Access to Justice for Women Victims. Dili:
Judicial System Monitoring Program.
_____________________. 2002. Findings and Recommendations: Workshop on
Formal and Local Justice Systems in East Timor. Dili: Judicial System Monitoring
Program.
Marriott, A. 2010. “Lawyers, Leaders and Lian nains: Sources of Legal Authority
in Timor-Leste.” In Leach, M., editor, Understanding Timor-Leste: Democracy and
Localism. Melbourne: Swinburne University Press.
_____________________. (2008): “Justice in the Courts, Justice in theCommunity: Bridging Timor’s Legal Divide.” In Mearns, D., editor, Governance inTimor-Leste: Reconciling Local and National. Darwin: Charles Darwin University
Press.
Mearns, D. 2002. Looking Both Ways: Models for Justice in East Timor. Sydney:
Australian Legal Resources International (ALRI).
Myrttinen, H. et al. 2010. Gender Baseline Study in Liquica District (TimorLeste). Dili: Agencia Española de Cooperación Internacional para el Desarrollo.
National Statistics Directorate, et al. 2010. Timor-Leste Demographic and
Health Survey 2009-2010. Dili: National Statistics Directorate.
Niner, S. 2007. “The Reassertion of Customary Practices in Timor-Leste and the
Implications for Traditional Handcrafts Production.” In Palmer, L. et al., Exploring
the Tensions of Nation Building in Timor-Leste. SSEE Research Paper No. 1, 41-48.
Nixon, R.S. 2008. Integrating Indigenous Approaches into a “New SubsistenceState”: The Case of Justice and Conflict Resolution in East Timor. PhD Thesis, Charles
Darwin University.
Nixon, R.S. 2009. “Non-State Actors as Agents of Order: Suco Justice andDispute Resolution Systems in East Timor.” In William Binchy, editor, Timor-Leste:
Challenges for Justice and Human Rights in the Shadow of the Past. Dublin: Clarus
Press.
Nyong’o, D. and Ongalo, O. 2005. From Despair to Hope. Women’s Right to
Own and Inherit Property. Nairobi: POLICY Project Kenya and Kenya National
Commission on Human Rights (KNCHR).
O’Reilly, J. and Jevtovic, P. 2008. “On Criminal Silences: Gender-based Violencein Timor Leste.” The Journal for Women and Policing, No. 22, 20-26.
Office of the Secretary of State for Promotion of Equality. 2007. Initial Report.
The Convention on the Elimination of All Forms of Discrimination against Women(CEDAW).
Ospina, S. 2006. Participation of Women in Politics and Decision-Making inTimor-Leste: A Recent History. Report Prepared for UNIFEM Timor-Leste.

Approaches to Domestic Violence Against Women in Timor-Leste

251

Ospina, S. and Hohe, T. 2001. Traditional Power Structures and the Community
Empowerment and Local Governance Project. Final Report Presented to CEP/PMU,
ETTA/UNTAET and the World Bank.
Ozoemena, R.N. and Hansungule, M. 2009. “Re-envisioning Gender Justice inAfrican Customary Law through Traditional Institutions.” Centre for Policy Studies
Policy Brief No. 63, Johannesburg.
Pereira, M.L. 2001. “Domestic Violence: A Part of Women’s Daily Lives in East
Timor.” La’o Hamutuk Bulletin 2 (5).
Rede Feto 2009. NGOs Alternative Report. Implementation of the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW) In
Timor-Leste.
Republic of South Africa. 1996. Constitution of the Republic of South Africa,
No. 108 of 1996.
Rimmer, S.H. 2010. “Sexual and Gender-based Violence.” In Muggah, R. and
LeBrun, E., editors, Timor-Leste Armed Violence Assessment Final Report, pages
37-47.
Styles-Power, C. et al. 2008. “The Vulnerable Persons Unit in Timor-Leste: An
Independent Assessment of its Role and Function.” Technical Paper Series, UNICEF
Timor-Leste.
Swaine, A. 2003. “Traditional Justice and Gender-based Violence.” International
Rescue Committee Research Report.
The Asia Foundation. 2008. Law and Justice in Timor-Leste. A Survey of Citizen
Awareness and Attitudes Regarding Law and Justice in East Timor. Dili: The Asia
Foundation.
_________________. 2004. Law and Justice in East Timor. A Survey of Citizen
Awareness and Attitudes Regarding Law and Justice in East Timor. Dili: The Asia
Foundation.
Timor-Leste Armed Violence Assessment. 2009. “After the Guns Fall Silent.
Sexual and Gender-Based Violence in Timor-Leste.” Issue Brief No. 5.
Trembath, A. et al. 2010. Impacts of National NGO Gender Progranmming in
Local Communities in Timor-Leste. Melbourne: Globalism Research Centre, RMIT
University.
Trindade, J. and Castro, B. 2007. Rethinking Timorese Identity as a Peacebuilding
Strategy: The Lorosa’e – Loromonu Conflict from a Traditional Perspective. Dili: The
European Union’s Rapid Reaction Mechanism Programme.
United Nations. 2010. Handbook for Legislation on Violence against Women.
New York: Department of Economic and Social Affairs, Division for the Advancementof Women.
UNFPA. 2008. Adapting Restorative Justice Principles to Reform Customary
Courts in Dealing with Gender-Based Violence in Southern Sudan. Final ReportCompiled by DPK Consulting.
UNFPA. 2005. Gender-Based Violence in Timor-Leste. A Case Study.
UNICEF. 2009. ““Traditional” Justice Systems in the Pacific, Indonesia andTimor-Leste,” paper commissioned by UNICEF Papua New Guinea for the 2009
Justice for Children in the Pacific, Indonesia and Timor-Leste, EAPRO Sub-Regional
Workshop.

252

H u m a n R i g h t s E d u c at i o n i n A s i a - Pa c i f i c

UNHCHR and UNMIT. 2010. Facing the Future: Periodic Report on Human
Rights Developments in Timor-Leste: 1 July 2009 – 30 June 2010.
USAID. 2009. Fostering Justice in Timor-Leste: Rule of Law Program Evaluation.
USAID. 2004. Gender Assessment for USAID/Timor-Leste Country Strategy
Plan FY 2004-2009.
Wilson, B.V.E. 2010. Smoke and Mirrors: The Development of the East Timorese
Police 1999-2009. PhD Thesis, Australian National University.
World Bank. 2010. Trust, Authority, and Decision Making: Findings from the
Extended Timor-Leste Survey of Living Standards. Justice for the Poor Briefing Note
5 (1).
________________. 2010b. Expanding State, Expectant Citizens: Local
Perspectives on Government Responsibility in Timor-Leste. Justice for the Poor
Briefing Note 4 (2).
________________. 2006. Strengthening the Institutions of Governance inTimor-Leste.
Zifcak, S. 2004. Restorative Justice in East Timor: An Evaluation of theCommunity Reconciliation Process of the CAVR. Dili: The Asia Foundation.