Following the launch of Beyond Criminalization: A Feminist Questioning of Criminal Justice Interventions to Address Sexual and Reproductive Rights Violations, RESURJ hosted a series of online dialogues in 2020, providing a feminist space for those engaged in the work around limitations of criminalization, to explore further the key findings and recommendations from the report.
The dialogue series included three webinars: When Laws Harm, Systems and Saviours, and Alternatives in Context. Throughout the webinar series, speakers shared examples and analysis of the ways in which laws that seek to protect women and adolescents from SRHR violations, fail to both deter and provide justice for survivors, and exacerbate conditions for violations to occur, or even violate human rights. Following are some of the key reflections, analysis, discussions, and recommendations from the dialogue series.
Failing to protect
Many panelists spoke of the need for laws, and the historical importance of laws that protect women from SRHR violations, but that the issue is the hyper focus on the laws as the most effective or only way to prevent or remedy violations. Madhu Mehra, of Partners for Law in Development India, highlighted that it is important to remember that the women’s movement in many countries have struggled for years to seek accountability, through pushing for violations such as domestic violence and sexual violence, to be recognized as a criminal offence. But noted that it is not criminalization per se that is the problem, but rather the increasingly expansive use of criminal law to tackle most social issues, where States make the decision on what is right for the victim, positioning them as silent or passive and not prioritizing their needs, experiences or voices.
On the ways in which the law fails to protect, we heard from Sheena Hadi from Aahung in Pakistan, that the Child Marriage Restraint Act, was celebrated as the first stance the government had taken to introduce more protective measures against child marriage, actually failed in practical implementation, and resulted in harmful impacts on the ground. For example, the lack of birth registration, the unknowns of who administers marriage, a weak police force and complex judicial system, and corruption, significantly impact the implementation of the law. Hadi argues that in this context, where laws are not responding to needs but instead focused on punishment, nor practical in their implementation, positive change is not happening, and worse increasing harm.
In India, Mehra shared findings from a study by PLD as to how the law on child marriage was working, evidence showing that the law is primarily being used by parents against elopements, most of which happen in situations of desperations where girls are trying to flee a forced marriage for example. Because of this, girls who want to evade an arranged or forced marriage, are not reporting to the police because of leaking of information to the police, but instead going to community organizations who use the law informally to delay or stop the marriage, leverage and dialogue, as opposed to criminalization, which has much more positive outcomes for girls.
Impact on survivors
Zainab Nur of Hidden Voices UK, shared examples of the ways in which women who have undergone Female Genital Mutilation (FGM), are racially profiled, discriminated against, and criminalized because they have undergone FGM. For example, women who have been referred to safeguarding by midwives, doctors, teachers etc. following mandatory reporting laws, because their children are deemed at risk by local authority FGM safeguarding policies if the mother, often migrant women, has undergone FGM or is from a practicing community. Nur shared examples of children being placed into care, or families put on FGM orders simply because the mother had undergone FGM, with no evidence of the child being at risk of FGM. Such policies have impacted women greatly where there is fear for example to even attend cervical cancer screening for risk of being referred to safeguarding. Nur also shared examples of racial profiling of families from communities, for example at airports where there travel is delayed or cancelled as they face questionings.
Adolescents Rights and Sexualtity
Mehra shared the impact of consent and marriage laws in India, the age of consent having risen from 16 to 18 in 2012. While well intentioned and necessary law to address child abuse, it has had a detrimental impact on adolescent sexuality, their autonomy and the freedom for adolescents to express their sexuality, with adolescent sexuality being effectively criminalized. Mehra shared the ways in which the approach to child marriage focuses solely on age, such as the proposals to raise age of marriage of girls to 21 and render any under age marriage as void, and does not take into consideration issues such as the compulsory nature of marriage for economic survival, girls’ education, or for example the decreasing number of women in employment especially following the Covid pandemic and rise unemployment. The State is proposing this to address issues of girls dropping out of schools, maternal mortality, and infant immortality.
The law, as Mehra shared, could potentially not only criminalize more actors, but could through rendering under aged marriages void, deny girls above 16 social status and matrimonial rights, that would singularly affect marginalized communities. This, in a context of lack of opportunities, limited social mobility, and overall social and economic deprivation experienced by girls.Mehra questioned this troubling move that could actually fail to protect and ensure the safety of girls. Mehra also suggested that at a time when data shows there is a shift from child marriage to more older adolescents marriages, the law fails to accelerate that shift by not addrressing the wider socio-economic issues through for example, support services, compulsory education, vocational training, employment opportunities etc.
Similarly, in Pakistan, the focus on age and the black and white natures of laws around child marriage have impacted the bodily autonomy and rights of adolescents, with for example the law being used by families to challenge free will marriages, failing to consider individual circumstances, and focusing on age and health based outcomes, not rights and autonomy.
In Latin America , Sofia Minieri of REDI Argentina, shared examples of case studies from the campaign, Injusta Justicia, co-developed and hosted by RESURJ, Balance and Vecinas Feministas. The campaign highlights cases where criminal laws were being used by parents and guardians to prevent adolescents from having non-heteronormative relationships, to control their bodily autonomy and sexuality. For example, a case study where parents discovered their adolescent daughter was having sex so they used the law to claim she was a victim of rape, which resulted in the criminalization and imprisonment of the adolescent’s partner. Minieri also shared the case of ‘Gabriella’ in Argentina, a 13 year old girl with learning disabilities, who after being raped and becoming pregnant, was forced sterilised by doctors based on a judge’s ruling claiming it was “the best way to protect her”.
Dina Siddiqi, Clinical Associate Professor at NYU, highlighted the disjunction of the discourse on sexual and bodily autonomy of adolescents that we see at UN spaces, and in mainstream forums etc, and the punitive child marriage laws we see at the national level, for example in Bangladesh.
Nur shared reflections on the ways in which the FGM Act in the UK has failed to consider and adapt to the shifting realities, attitudes, and behaviours in communities, following community education and leadership around FGM. The way data is reported and used was also of concern, with mandatory reporting requirements by health professionals since 2015 of all under 18 who have undergone FGM, being used to report over 18 migrant women with history of FGM, the data presented and reported by health authorities, media, and activists as “evidence” showing the prevalance of FGM in the UK. This data conflicts with the voices of the community, who insist there has been change in practice, beliefs, and attitudes regarding FGM.
‘Looking for justice is not a struggle we can do alone… When you listen you can find alternatives for justice and reparations ’
Looking to the State
Dinna Siddiqi shared reflections on how the carceral logic that many activists have inherited in post- colonial states where people have gone from subjects to citizens with rights, have seen feminist movements becoming exclusively invested in turning to the State for redress, especially on issues with such high and urgent stakes such as SRHR violations.
Siddiqi also shared reflections from the Bangladesh Child Marriage Law amendments in 2017, where the State, positioning themselves and parents as the paternalistic and protectionist rights holders over girls, amended the law to include a provision for parents or courts to allow the marriage of 16-18 year olds, with adolescent girls being seen as people with no rights, sexual agency, or rights over their own body.
Siddiqi argued that the approach to child marriage is clumping older adolescents into this category of child marriage, taking away their sexual agency, and creating a ‘double bind’ for feminists, who cannot be seen to support child marriage, but are failing to address the complexities of voluntary early marriage between young people – and the complex structural issues that fuel it- by confounding it with child marriage.
Ghiwa Sayegh of Khol, Lebanon highlighted that in the case of Lebanon where new laws have passed in recent years around domestic violence, there has been a move to work with police institutions and create a system where reporting passes through police, without reflection on the fact that this is the same system that protects the ruling elite and attacks protestors. Sayegh reflected that Sexual and Reproductive Justice considers prison abolition, refusal of carceral state sanctions, and the end of criminalization and punitive systems, as part of a vision of justice that is transformative and calls for community accountability.
In the dialogue series we heard from a number of speakers reflecting on which were the driving forces behind the focus on criminalization of SRHR violations. They questioned whether the need comes from the community level, or from global and local actors, and funding, that results in the prioritizing of responses that do not have an impact in addressing harm and changing behavior, and in some cases further disenfranchise and harm particular groups at a local and community level.
Nur reflected on the driving forces behind the development of FGM safeguarding policies and law in the UK, arguing that it was predominantly anti-FGM global NGOs and UK NGOs that worked with safeguarding professionals to develop such policies, with little input and leadership from the impacted communities themselves. Nur also shared examples of ways in which data has been misused, or misreported to overexagerate the prevalence of FGM in girls under the age of 18 in the UK.
In Latin America, Minieri shared how the criminal law system is the main system offered by States to address social problems, including SRHR violations, and how in most countries in the region several State actors and both private and public sector stakeholders have pushed and continue to push criminalization as the main strategy to protect SRHR.
Sayegh spoke to the notion of criminalization and the justice system serving a certain class of people, and of the system working through institutions where temporary changes may be made but in response to challenges and threats to the system. Sayegh asked, who gets criminalized, who is held accountable, and what kind of accountability can we expect from systems that are geared towards making profit for a certain class of people.
‘for me the feminist revolutonary vision goes beyond the corrupt systems that we are used to receiving from and live under’
Throughout the dialogues there was a sense of frustration from speakers and participants alike, of the over reliance on the penal system to address SRHR violations, and reflections on what alternatives could and would work in the current political and economic systems, and how feminist movements can organize with affect, and look at our own movements to practice accountability the way we want it to work in wider contexts.
Jasmine Lovely George of RESURJ and Hidden Pockets shared that most of the laws in India are criminalizing young people in India, and have not resulted in any kind of reduction in child marriage. Yet, the government continues to focus on enforcing laws and bringing in new laws. Lovely George shared recommendations from the report Beyond Criminlization A Feminist Questioning of the Criminalization of SRHR Violations as well as RESURJ’s experience around cross-movement organizing, and spoke about the importance of going back to the communities to ask what the approaches were that worked for them, when we are talking about healing and justice, what are we looking at in terms of non punitive measures to respond to SRHR violations. Lovely George also shared examples from the work of Hidden Pockets, that focus on how can we reach young people, talk about sexuality, without talking from a legal, punitive or prohibitive way, but rather shifting behaviours through information and comprehensive sexual education, sharing that education had actually worked more than punitive measures in that context.
Veronica Vera from Surkuna Ecuador, shared examples from their work in a context where femicide and sexual violence are rising, and more and more women are made missing, what we have to question is how do we face this reality and find a way to respond to these threats, with a collective voice. Vera shared examples from Surkuna’s work of feminist accompaniment, something that can help survivors and their families to find justice in the face of violence and impunity. Vera shared that when families or survivors reached out to them, that they were usually in some legal process, but when started working with them, they began to revisit what justice and reparations look to them, looking at alternative ways to ensure justice. This includes through campaigns such as the ‘justice for everybody’, and ‘we will be the last’ campaigns, remembering and vizibilizing the stories of survivors and their families., putting the voices of the victims and survivors at the center, giving them tools to talk about their experiences in first person – ensuring that there’s nothing about the victims and survivors without them. Surkuna’s work has been focusing on breaking the silence as an alternative to legal or penal justice, working together to reveal what has been broken when violence or sexual violence occurs, providing the space for survivors and the families of victims to meet each other, share their experiences collectivelly and find support in their shared experiences of pain and trauma while finding different, yet meaningful alternatives to justice.
Viva Tatawaqa of DIVA for Equality, Fiji, shared examples of how the feminist collective were responding to urgent community needs in the context of climate crises, the global Covid pandemic, and rising rates of Gender Based Violence including in LBTI communities. Tatawaqa shared examples of direct action and response through meal provision for children, and also the ways in which unconditional feminist funding can address violence and support justice.
Sara Mux from ECAP Guatemala, shared the case of 15 women survivors who took their cases to the national tribunal, where they made calls for reparations based on the meaning of justice to them, and what justice could look like within a system that has structural roots in racism, and discrimination against women, in particular towards indigenous women, and in the context of an armed conflict for which they had been used as a symbol. The group demanded action on the defence of their territories, access to health, education, and their lands, addressing gender oppressions within their communities, and intergenerational learning and sharing of experiences with young community and family members so as to break the cycle of violence. Mux shared that the community also engaged in discussions around new forms of masculinities with husbands, fathers and community leaders and other community members, seen as an integral and longer term reparation, as well as engaging and dialoguing with younger members of the community and adolescents.
All the speakers during the series touched on the importance of a survivor centered approach in addressing SRHR violations, and that even though this is considered the most important element, it is in fact the least prioritized one within the criminal justice system. Kelly Savage of Survived and Punished, USA, shared their work on supporting incarcerated survivors of abuse, when survivors are punished, for example detained then deported, by the same system that claims to protect them. Survived and Punished focuses on supporting the voices of incarcerated survivors, that would otherwise be silenced by the system, and works to educate those within the criminal justice system to recognize survivors as that, and not criminals or detainees, and prioritize their needs as survivors.
Some key takeaways for future discussion include:
- Consider how laws can be nuanced and more reflective, and how law can hold governments accountable as a foundation of the protection of rights
- Feminist movements must step back from fire fighting mode and reflect on what we are doing wrong as well as right, and explore more deeply the contexts in which adolescents are not able to exercise autonomy
- It is important to have conversations within the community where the violations have been perpetrated to provide a space for survivors, address the harm that was made, and discuss how to break the cycles and behaviours that lead to violations, together with stakeholders and younger generations.
- An enhanced focus on Comprehensive Sexual Education is a long-term alternative that is bringing positive changes in communities worldwide.
- Any response to SRHR violations must have a survivor centered approach
- Feminists must look at our own movements to practice accountability the way we want to bring this practice into material realities
These key takeaways are well aligned with the recommendations coming from RESURJ’s Desk Review Report. RESURJ plans to continue and deepen the conversation and collective thinking around key areas identified in these dialogues. Collectively with our allies, we hope to explore the evidence around key areas of feminist faultiness related to the criminalization of SRHR violations, to create further space to deepen the analysis of context-specific examples and discussion from national and local perspectives, on both the impacts of the limitations of criminalization of SRHR and the challenges in pushing for comprehensive measures that is grounded in sexual and reproductive justice.
With thanks and in solidarity with the speakers from the dialogue series and all participants.
You can watch clips of the speaker’s presentations here.