COLUMN ONE : Battered Women as Refugees : Female asylum-seekers in Canada say they’re being persecuted in their homelands on the basis of their sex. Should Balkan rape victims and feminists in Islamic states qualify as political refugees?

A Bangladeshi mother gone to ground in a Montreal battered-women’s shelter is fast becoming the latest test case in a growing Canadian debate over how to handle female asylum-seekers.

The central question: Is the 1951 U.N. definition of a bona fide refugee flawed because it fails to recognize that women can be persecuted simply by virtue of their gender?

It is a question given horrific new import by recent reports that as many as 20,000 women in former Yugoslav republics have been systematically savaged by Serbian forces, sometimes in special “rape camps.” (There have also been reports of rapes by Muslim and Croatian soldiers in the many-fronted Balkan war.)

Here in Canada, the Bangladeshi woman, who wants to be known only by her first name, Ferdousi, tells a dismally typical South Asian tale: When she turned 11, her parents arranged her marriage and paid her dowry and sent her off to live with her new in-laws. Her husband, 20 years older than she, proved a brute, and although she tried to leave him more than once, her parents, having parted with their dowry money, refused to take her back.

“She had no support anywhere else, because, you see, in India, Pakistan, Bangladesh and Sri Lanka, we don’t have shelters for battered women,” said Sadeqa Siddiqui of Montreal’s South Asian Women’s Community Center, who has been helping Ferdousi. “And if you go to the police, the first thing they’ll ask you is, ‘What did you do wrong? Why are you running away?’ Women cannot make any complaints about men to the police (in South Asia). For them, it is very funny.”

Eventually, Ferdousi’s husband got the idea of coming to Canada, where he had relatives. Bringing her and their children along, he filed a puffed-up claim for refugee status, and as his case made its way through the Canadian legal system, he kept on beating Ferdousi. On the day his refugee claim was rejected, she says, she overheard him telling his nephew by phone that he was going to kill her and make it look like a suicide. In terror, she called a Canadian battered-women’s shelter, and for the first time in more than 20 years, she found help.

A staff member at the Canadian shelter called the police. Instead of laughing at her, the officers charged her husband with assault. The shelter’s caseworkers filed for a divorce on Ferdousi’s behalf, and a judge ordered her husband to stay away from their children. The police even escorted Ferdousi back to her apartment, so that she could pack her things in safety.

Ferdousi says she now enjoys a peace of mind in Canada that would have been unthinkable in Bangladesh--but, unhappily for her, it may be but a passing thing. When her husband’s claim for political asylum was rejected, Ferdousi was ordered out of Canada as well, since she was here only as his dependent. Now, she says, she fears that if she returns to Bangladesh, he will beat her to death.

All of which raises a timely question, for Canada and the rest of the Western world: Is a woman like Ferdousi a bona fide refugee, someone who had a “well-founded fear of persecution” in her homeland?

Or is she merely the victim of private violence--a piteous symbol of oppressed women everywhere, true enough, but not an authentic refugee and therefore ineligible for asylum in a country where the police are more willing to protect battered women?

Canada has been grappling with such questions for months, not just in Ferdousi’s case but in those of a number of women who have fetched up here to argue that they were subject to persecution in their homelands solely on the basis of their sex.

Not all the women have been battered wives. Some are feminists from Islamic states that demand total subservience from women and penalize those who won’t comply. Still others have been caught in the moral unraveling of civil war and raped by soldiers.

Canada’s dilemma in deciding how to treat these cases raises an argument that human-rights groups and feminists have been making with increasing force: That the standard U.N. definition of “refugee,” composed in the wake of World War II, has fallen out of date.

As now defined by the United Nations, a refugee is someone who has “a well-founded fear of persecution” on the basis of his or her race, religion, nationality, political opinion or membership in a particular social group.

Nowhere is there even a hint of persecution on the basis of gender.

“The problem with the (definition) is that it was written for postwar Europe,” said Joan Simalchik, executive director of the Toronto-based Canadian Center for Victims of Torture. “It (didn’t) take civil wars, or imploded governments, like Somalia’s, into account. And women weren’t really in people’s consciousness 40 years ago.”

Upshot: Many female asylum-seekers have seen their claims rejected by Canada and other countries where they seek haven. Simalchik recently handled the case of a Somali woman who made it to Canada after a soldier raped her. The woman was deported to Somalia because the status of victim of a random sexual assault didn’t make her a bona fide refugee.

“People tend to misunderstand the substantive function of rape,” argued Dorothy Thomas, director of the Women’s Rights Project at Human Rights Watch in Washington. “They see it as an apolitical act, or a sexual act. Or they even think it’s acceptable--it’s a kind of morale booster, or booty in a war. They fail to see it as an act that’s about power and about terror.”

In another case, an Iranian woman came to Canada and testified that she had been beaten by Revolutionary Guards after dancing without a veil at a private party. She was denied refugee status as well, since flogging is a legal form of punishment in Iran; the beating was found to constitute due process, not persecution.

More recently in Canada, however, women’s groups and human-rights organizations have been publicizing such cases and have succeeded in making female asylum-seekers a national issue. In a country normally proud and upfront about its reputation on human rights, the publicity has prodded the government into reconsidering its position on gender-based refugee claims.

Canada’s immigration minister, Bernard Valcourt, had favored keeping to the standard U.N. refugee definition but shifted position recently under pressure from human rights groups. He authorized the International Center for Human Rights and Democratic Development in Montreal to solicit public comment on the question of gender-based persecution, with an eye toward a possible rewrite of Canada’s refugee laws.

Meanwhile, Canada’s Immigration and Refugee Board has gone even further. The board--actually a specialized, independent court system that handles refugee cases--has drafted new guidelines for screening female asylum-seekers and is expected to implement them within a month.

In their draft form, the new guidelines note that refugee case law “is based on, for the most part, the experiences of male claimants” and thus overlooks “female-specific experiences, such as infanticide, circumcision, bride-burning, forced marriage, forced abortion or compulsory sterilization.” The guidelines urge refugee judges to take these female realities into account.

While the guidelines won’t have the force of law, many refugee advocates are pleased with the changed thinking they represent. “I think the new guidelines are quite generous,” said Ron Shacter, a Toronto lawyer who has handled several gender-based refugee claims. “The word is out that (board members) have to take these claims seriously.”

If Canada does eventually broaden its definition of “refugee” to include those who flee from gender-based persecution, it will be the first country in the world to do so.

“To my knowledge, Canada is out in front in terms of its recognition of gender-based persecution, and they haven’t even done all that much yet,” said Thomas of Human Rights Watch. “All they’ve said is that the issue is worth looking into. That shows you how far the rest of the world has to go.”

The case that forced Canada’s about-face involved a Saudi Arabian woman, known to the public only as Nada. The outspoken Nada refused to wear the veil and wanted to pursue a university degree. She even dreamed of becoming a physical education teacher--an outlandish ambition in a country where women can’t even go about freely in Western street clothes, to say nothing of spandex.

When Nada walked the Saudi streets without her veil, men threw sticks and stones and sometimes spat on her. Once, she said, the religious police tried to arrest her, but she ran away. In applying for haven here, she argued that her treatment by Saudi men amounted to gender-based persecution.

But this meant nothing under the existing definition of “refugee.” The Canadian refugee board members who decided Nada’s case told her that since her treatment was lawful in Saudi Arabia, it couldn’t constitute persecution. The two male panelists told her to go home, observe her country’s laws and “show consideration for the feelings of her father.”

“Infuriating,” said Diana Bronson of the International Center for Human Rights, which posthaste launched a lobbying campaign on Nada’s behalf. Edward Broadbent, the center’s president, called Nada’s pending deportation “the logical equivalent to having told a Jew in the 1930s to return to Germany and accept his or her legal discrimination.”

A besieged Valcourt eventually gave Nada a special dispensation to stay in Canada and promised to reconsider the refugee laws. Valcourt’s intervention was only a partial victory for the women’s movement, however: Nada won’t have to go back to Saudi Arabia, but she still isn’t classified as a refugee, and her case sets no precedent for the other women--like Ferdousi--whose cases are still working their way through the Canadian legal system.

The Canadian government, like others, worries that if it entertains claims of gender-based persecution, then Canada will be overwhelmed by a wave of Third World women in flight from abusive husbands, anti-abortionist mullahs and the like.

And politicians here are skittish about appearing soft on foreign immigration at a time of heightened public hostility toward foreigners. Canada has just come through a long, painful recession, and many people think there are already too many newcomers here, crowding a tight job market.

Valcourt is uncertain about how to handle the “complicated issues” raised by gender-based refugee claims, noting that he is not sure just where “discrimination” against women stops and the “persecution” of women begins.

“I think the issue is clear, simple and straightforward,” argues David Matas, a Winnipeg lawyer who directs the Canadian Council for Refugees. As he and others see it, the question comes down to whether a woman is suffering harm and her home government cannot, or will not, protect her.