TW: discussion of domestic violence, mention of sexual assault, mention of child abuse

On the July 27th 2020, the Polish Minister of Justice, Zbigniew Ziobro, formally introduced a petition calling for Poland to withdraw from the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention), earning the scorn of human rights activists and high-ranking politicians (such as the Secretary General of the Council of Europe) alike. The announcement of the planned withdrawal from the Convention came on the heels of an April wave of protests caused by the Sejm debating further restrictions to the access to pregnancy termination, and its coverage was quickly eclipsed by the mass arrests of LGBTQ+ activists for hanging rainbow flags on monuments and participating in protests which followed a week later.

However, the possibility of withdrawal from the Convention should be seen as an especially heavy blow to human rights protection in Poland, and due attention paid to the proposal. The Istanbul Convention, adopted in 2011 and ratified by Poland in 2015, is the first legally binding European instrument on violence against women (EIGE 2017, p.63), introduced the first legislative definition of ‘violence against women’ and remains a comprehensive legal document. Crucially, it both addresses the wider matrix of gender-dependent imbalances of power entrenched in traditional gender role, and understands violence against women as a symptom of those deeply-rooted inequalities (FRA 2017, p.12). This wider, polycentric focus is mirrored in e.g. Articles 12 and 14 of the Convention, requiring government action to enforce education on gender equality and non-stereotyped gender roles, as well as ensuring that religion (amongst others) cannot be used as a justification for violence against women.

It is those ‘educational’ articles that Law and Justice took issue with. Reading the press releases from the Ministries and listening to the coverage of politicians’ opinions, one would be excused to think that the Convention focuses on legal regulation of gender roles, rather than gender-based violence. The Vice-minister of Justice, Mr Romanowski, accused the Convention of being ‘genderist babble‘ and ‘using women for ideological warfare’ while ‘forcing [parents] to promote gender ideology and demoralise kids’. Mr Woś, the Minister of Environment, similarly claimed that the Convention ‘introduces 54 genders in place of “male” and “female”’ and ‘forces parents to educate their children on the LGBT agenda’. Finally, the Prime Minister of Poland, Mr Morawiecki, doubted whether the Convention’s focus on debunking stereotypes on gender roles is compliant with the Polish Constitution. The conversation around the withdrawal from the Convention often left a distinct impression that the real women suffering from violence are somewhat less deserving of attention and protection than the (seemingly incredibly fragile) traditional gender roles.

The Government justified its move to withdraw by arguing that the standards of domestic Polish law is ‘entirely compliant’ with and even ‘surpassing’ the Convention and that its protection of women against violence is constantly improving, and hence withdrawal will not affect Polish women – who ‘remain the government’s first priority. However, the available statistics on violence against women cast doubt on both parts of this statement. Poland has one of the lowest scores in the EIGE’s Gender Equality Index (55.2, with 67.4 as the EU average),  and every year around 100,000 reports of domestic violence are made. Although the data compiled by the European Union Agency for Fundamental Rights (FRA) in 2014 suggests that 19% of women in Poland have experienced sexual or physical violence (14% less than the EU27 average), the levels of disclosed violence are positively tied with the Gender Equality Index, which, combined with one of the lowest levels of trust in the police in EU, makes it likely that the real levels of violence are significantly higher. 33% of Polish women do not know any organisations helping victims of violence (compared to 3% in Norway). That the violence is underreported is also suggested by the statistic that in nearly 80% of reported cases, the victims suffered health consequences – i.e. only examples of the most serious instances of violence are reported. The Convention’s educational measures are specifically aimed at raising the public awareness of what behaviours short of infliction of bodily harm constitute violence – if women do not recognise that what happens to them is not ‘normal’, and violence is not openly addressed in the society, it will continue to occur mostly unchecked. In a country in which 6% of the population (the highest result in EU27) thinks that violence against women is ‘acceptable in certain situations’, 28% thinks that violence against women is often provoked by the victim and 21% thinks that domestic violence is a private matter to be handled within the family, low levels of reported violence alone cannot be used as an indicator of the victims’ safety improving.

Moreover, Mr. Ziobro is not entirely correct in saying that the Polish law is coterminous with or surpasses the Convention. Although important changes concerning the victims’ pre-trial protection from abusers have come into force recently, at least two major gaps remain: Polish criminal law fails to replicate Convention’s focus on consent in crimes of sexual violence (Art.36(2)) and does not criminalise economic violence (Art.3(b)). Furthermore, both Polish legal NGOs and the EIGE highlight that in many other aspects, the Convention, although ratified, is dead law due to under-implementation. A 2016 report by the Centre for Women’s Rights shows that both the police and the legal system fail to adequately help the women who suffer from violence or wish to exercise their legal rights against their abusers – with women who do not conform to the stereotypes of a ‘true victim’ or ‘a good wife’ being denied access to justice or treated as ‘having asked for it.’ Outside of the law enforcement systems, NGOs do not have the resources to answer all remaining needs of the victims. Joanna Piotrowska, the leader of Feminoteka, highlights the severe inequality in the availability of resources, which are almost non-existent outside of large towns, as a particular problem, with the withdrawal of MoJ funding for women’s rights NGOs further impacting their capacity to help. The legal protections often become non-existent if the woman in question does not conform to the traditional gender roles, e.g. by virtue of being a member of the LGBTQ+ community – with the state’s response crossing from not improving things to actively carrying out violent acts against women, such as the reported instances of sexual assault of women arrested during recent protests in support of LGBTQ+ rights.

Law and Justice’s attacks on the Convention are part of a larger campaign against gender equality, women’s and sexual minority rights, which has been noted by EIGE to have had numerous negative effects on institutional, legal and policy frameworks aimed at combating gender-based violence. While the sense in attacking a made-up concept might escape the luckier readers, manufacturing of crises in which a made-up concept (‘gender ideology’, ‘illegal migrants’) loosely based on an existing, vulnerable group is pitted against the well-being of the nation (e.g. its cultural sensibilities) in order to distract from the real crises and party in-fighting will be familiar to many.

By introducing the spectre of a foreign-made Convention which will ‘introduce 54 genders’ and ‘is a tool of neo-Marxist Kulturkampf aimed at demolishing [Poland’s] Christian values’, the Government causes a moral panic amongst those who for any reason (prejudice – but also lack of access to adequate education or a strong sense of religious identity) take such claims seriously, and an outpouring of outrage from those who do not. Meanwhile, Covid-19 infections are on the rise, the country is standing on the precipice of a severe economic crisis and Catholic Church-connected paedophilia scandals continue to emerge. The political pragmatism guiding the whole affair became even more visible when, in response to Ziobro’s withdrawal petition and following national protests and an international outcry, Morawiecki sent the Convention to the (according to the Venice Commission, Law and Justice-controlled) Constitutional Tribunal for review of its compliance with the constitution, placing a possible withdrawal on the back-burner for as long as needed.

Those who say that the possible withdrawal from the Convention is not aimed at legalising violence against women are thus correct, in a twisted way. The withdrawal is aimed at protecting the fictional ‘true Polish women’ from the non-existent scarecrow of ‘gender ideology’, with possible resultant impacts on the levels of violence against women being an afterthought to hailing a victory in the fight against non-standard gender roles. The underenforcement of the Convention prevented it from having much positive impact on Polish women’s situation; the first likely effect of its possible disappearance from the legal system would be a symbolic approval and reinforcement of traditional, violence-inducing gender roles.

However, in the long term, it might open the door for a further and more substantive roll-back of enforceable women’s rights – that such concerns are not baseless is evident from the fact that a draft bill calling for the first instances of violent domestic abuse to not be recorded has already been introduced once (in 2019) by the Minister for Family, Work and Social Affairs, Elżbieta Rafalska. Any international answer to the recent developments in Poland must thus be intersectional in that it addresses not only the attacks on the Convention alone, but on the longer campaign to restrict the human rights of vulnerable Polish groups as a whole. Otherwise, Polish women suffering from violence and domestic abuse will continue to suffer in silence– but as long as they conform to the government-approved gender roles, their safety from ideological spectres is ensured.