Asylum & Domestic Violence

While I disagree with Attorney General Jeff Sessions on most moral issues, he is right that being the victim of domestic abuse does not seem to qualify a person for asylum under the legal requirements. As others have argued, a person must be persecuted or justly fear persecution because of race, religion, social group membership or political opinion for this definition to apply. It must also be the case that the threat comes from the state or from people the state cannot or will not control.

While it might be argued that a woman who is a victim of domestic abuse is being persecuted by her abuser because she is in the social group of women, it would also be necessary to show that the abuse was directed by the state or that the state cannot or will not control abusers. It is, of course, tempting to argue that if the state was unable to protect a woman from her abuser, then this would qualify as being unable to control the person—and thus provide grounds for asylum. While this could be an option, it would entail that anyone who is harmed within a foreign state who belongs to a social group connected to the harm would be eligible for asylum if it could be shown that the state was unable to control those doing the harm. The key here would, of course, be determining what counts as control. On the face of it, one could argue that anytime the state failed to prevent harm, it failed to control the person. However, that would seem to require an impossible level of control from a state. As such, the law as written would seem to be as Jeff Sessions claims. However, law is more than a matter of LAW (Law As Written)—there is also the matter of precedent. That is, what other people have or have not gotten away with in the courts also shapes the law as applied (LAA). In the case of domestic violence cases. It has been argued by some that Sessions is going against legal precedent: during the Obama administration, women who were victims of severe domestic violence were considered as falling under the “membership in a particular social group” standard. It must be noted that this did not guarantee them asylum—it merely meant that they could be considered. As such, Sessions is going against an established precedent—something that is generally problematic in the realm of law. However, Sessions can and does argue that the Obama era approach was mistaken—that it got the law wrong. As such, the core of the legal debate would seem to come down to whether law should be as written or as applied under precedent. As has been shown, quite good cases can be made for either approach and people will tend to decide based on their political and moral leanings in this case. Not being a lawyer, I will simply note that Sessions seems to be right about LAW and his opponents are right about LAWA (Law As Was Applied). In addition to the legal issue, there is also the moral issue. Or, rather issues.

One issue here is the matter of obligations to others. That is, as an individual what do each of us owe to other individuals? In this case, the moral issue would be whether you (or I) have an obligation to provide protection to a person who is in danger of abuse. The easy, obvious and harsh answer is that you do not because this would be too much to reasonable expect of a person. It would, of course, be very kind to do so—but morality cannot demand too much of people.

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Another issue here is the matter of collective obligation. That is, as a group what do we owe to individuals within our group? In this case, the moral issue would be whether we as a collective (a family, a town, a state, a nation, or a species) have an obligation to protect our fellows from domestic abuse. Since this requires little from us individually (we can, for example, pay taxes that pay police salaries) it seems reasonable to accept this as a basic moral obligation. It does not ask much of each of us and each of us, if we were in danger, would want others to intervene on our behalf. As such, this seems reasonable.

The third issue here is the matter of the scope of the group: how far does our obligation extend? In this case, the moral question is whether our obligation extends beyond the borders. The religious ethics of, for example, Christianity, would certainly say that this obligation extends across borders. However, there are moral views that limit obligations strictly to one’s self (ethical egoism) or small groups (ethical tribalism). As should not be surprising, I do not think that political boundaries set moral boundaries for basic obligations—as Kant would note, what matters is not the flag someone waves, but the fact that they are person.

The fourth issue is whether this obligation applies to the United States as a political entity and hence whether it should be a matter of law or not. Since, like Locke, I think the state is just the people and not some sort of weird metaphysical being (as claimed by the fascists) I hold that our moral obligations as people also extend to our fictional social institutions—after all, institutions are just people with made-up rules, traditions and such. Because of this, the United States would have an obligation in this case.  This does, of course, take us back to a point raised in the first issue. One basic requirement for a moral theory is that the baseline for being decent (or at least not-evil) cannot be too high; it must be such that normal people can meet it without too much of a burden being imposed. The same applies to people taken as groups, so while it would be very kind of the United States to offer protection to anyone in the world threatened by domestic violence, this would seem to be too great of an expectation. After all, the United States has been unable to successfully combat domestic violence within its own borders. However, this could be countered by pointing out that the United States routinely addresses problems in other countries (especially those with oil) even when its own citizens face the very same problems.

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