BY Mari-Claire Price, Jasmine George
Following the 1994 International Conference on Population and Development, Rosalind Petchesky, an American political scientist, wrote about the feminist fault lines between the ‘politics of the body, sexuality and reproduction and the politics of social development and global economic transformation’[1]. Fault lines have appeared throughout feminist movements, from national to global levels, for decades; from sex work, trans rights, pornography to sex selective abortion. At the center of these lies an issue that divides the feminist movement globally: criminalization.
Feminists, more often than not, are united around opposing criminalization and any penal policy or law that targets, marginalizes, and criminalizes women, particularly related to reproductive rights, such as the criminalization of abortion. You would rarely come across a feminist, from any region or movement, that would support the criminalization of abortion (apart from of course, the purported feminists who identify as such as a tactic to disguise their anti-choice positions). However, this unity of position on criminalization within the feminist movement, nationally, regionally and globally, often stops there. From this point on, the positions and values fork off in a multitude of directions. What should be criminalized, and the effectiveness of criminalization as a primary solution, deterrent, and response, often splits opinions within the feminist movements.
FAULT LINES
Sex work, as an example: On one hand feminists, in particular South Feminists, who align and ally with sex worker movements globally, believe that bodily autonomy extends beyond reproductive choice, but also to labour, sexuality, and economic justice, including for women, men and trans sex workers. They are allies in the movement for the rights of sex workers, including labour rights, and recognize the failures of models such as the Swedish model, and the devastating impact it can have on women. On the other hand, there are the feminists (that are increasingly referred to, but don’t identify as, Sex Worker Exclusionary Radical Feminists), that advocate for the abolition of sex work, usually through decriminalization of sex work (with a focus on sex workers ‘exiting’ their work), and advocate for criminalizing the purchase of sex. This disregards the evidence and research [2] that shows the impact that the criminalization of clients has on sex workers lives, and disregards the voices of sex workers sharing the impact it has had on their lives, health, wellbeing and economic lives. These, often North feminists, continue to silence and endanger sex workers, through a number of ways outlined by the Global Network of Sex Worker Projects [3]; such as arguments of false consciousness, lies, misrepresentation of perspectives, and caricaturing / demonizing of sex worker testimonies.
CRIMINALIZATION HISTORIES AND APPROACHES
‘We must also remind that child rights advocates, feminists, LGBT activists and other progressive sectors have also added water to this mill by demanding the hyper-criminalization of a wide range of topics, such as children rights, gender-based violence (domestic violence and feminicide) and the criminalization of homophobia. Not to mention the increasing open call by feminist sectors of criminalization of clients of commercial sex.’[4]
‘Hyper-criminalization’ is an approach not only employed by states, it is also the dominant approach within donor agencies and some parts of feminist movements. Feminist movements have also historically shown a lot of support for redressing rights violations using criminalization. Criminalization as a solution has been invested in for decades. With a focus on criminalization alone, we lose sight of the other factors that can lead to SRHR violations; cultural norms, structural inequalities, women’s health, economic factors, and how to address them. What’s more, the same systems and penal policy that we have historically looked at to protect women, often drive risk factors, marginalization, structural inequalities, and lead to increased risk of violence, injustices, and SRHR violations.
Legal institutions propagate a protectionist approach taken by activists around the world. During the Anti-Dowry Harassment campaign in India, energy was invested in coming up with legislations that criminalized the act of “demand of dowry”, which is itself illegal. As a result, the husband and his family are thrown in prison. However, no resources were diverted into women’s shelters, taking into consideration that once they file cases against a dowry, the women are thrown out of their homes, and renounced by their families. In practice, these women ended up staying in abusive relationships for fear of losing their homes. The amount of time and resources invested by campaigns, have made us completely dependent on these systems that we can not think of solutions outside the legal mechanisms. There is a hyper-focus on the penal policies of any legislation, without putting any efforts in investing in institutional setups to improve existing mechanisms.
So when a government focuses on criminalization of the perpetrator alone rather than on the human rights of all, or fails to breakdown the structural inequalities that perpetuate violence against women, they fail to address the root causes. Often governments focus on criminalization, whilst simultaneously introducing harmful economic and social policy that increase the risk of violence and inequalities that impact women. For example, the UK government in recent years has introduced a number of new legislation in relation to violence against women, including legislation on controlling and coercive behaviour in intimate relationships [5], and a first ever domestic abuse bill that is set to come into law in 2019. Simultaneously, over the past 8 years, austerity measures – the UK government’s dominant fiscal policy to reduce the public deficit through public spending cuts – has had even further damaging effects on already vulnerable and marginalized communities. Women and girls are bearing the biggest brunt of welfare reform. Through sanctions and conditionality related to benefits, the women most deeply impacted are those living with domestic violence, deep cuts to social housing, and public and social services, and extreme and significant cuts to domestic violence shelters, specialist services, housing for survivors and mental health and rape crisis services.
Although globally we have seen increased investment in the criminal justice systems [6], and investment in public awareness raising and campaigns on laws related to SRHR violations, incidences of SRHR violations in many regions continue to rise. [7] The structural inequalities that lead to these rights violations; racism, inequalities, violence; often remain unaddressed, and the systems in place perpetuate them. Already disenfranchised groups and people that experience multiple and intersecting forms of discrimination and violence will bear the highest impact to their human rights. Criminal law has not adequately addressed impunity nor has it sufficiently addressed, reduced or prevented sexual and reproductive rights violations.
We live in an era where we have the highest number of people inside prison systems compared to any other times. We are filling our prisons systems with more and more people from marginalized communities and we have increased the categories of criminal acts across regions. We live in a highly unequal world where discrimination begins from the day once gets registered within systems of the state. Without addressing these systematic inequalities, the criminal justice system with its sole focus on penal policies seem inadequate as well as futile. [8]
CRIMINALIZATION AND SRHR VIOLATIONS
With the recent amendment introduced, India will become one of the few countries who have introduced death penalty for sexual offenders who commit crimes against children. Though feminists and pro-child groups have been arguing that this move is anti-child as it will further silence the child and further put the burden on the child, there have been calls for death penalty from various movements who think deterrence theory is still applicable.
It has always proven difficult to address child sexuality in law, because legislators always take a protectionist approach towards young people and their rights. In India, on the one hand, laws such as the POCSO (Protection of Children against Sexual Offences) raise the age of consent to 18 years old and makes them into criminals if they enter into a consensual sexual relationship; and on on the other hand, there is the Juvenile Justice Act, which has raised the age of culpability to 18 years old, where a minor can be tried as an adult for a crime which is heinous in nature.[9]
In India, child marriages are voidable, as in once the young people attain the age of 18 years, they can annul their marriages within a certain time by approaching authorities. Thus, it still provides some kind of agency for the young people involved to go ahead and declare their marriages invalid.
However without understanding how child marriages play out in some setups, a blank ban on child marriages can actually have more devastating effect on the lives of young people who are married off as children. [10] If the marriage itself is not legally recognized, and yet social customs make them parties to child marriages, they have no recourse under any institutions to seek protections. The criminalization approach might leave them without any recourse in either legal setups or within cultural settings.
In the UK, FGM has been a criminal offence since 1985, yet has led to no convictions and no evidence in the reduction of prevalence, despite widespread campaigns by the government to raise awareness of the law within practicing communities. What has been seen however, is a number of cases in which women from practicing communities have experienced intervention by police and children’s services. Many of these women are migrants, from poor communities, with little to no access to public services, meaning that such a siloed focus by authorities on the criminalization of FGM, perpetuates stigma, racism, and xenophobia, and put women and children from the most marginalized communities at risk.
ALTERNATIVES
Transformative approaches, and their effectiveness, that reduce the need for a sole focus on penal response and remedy to SRHR violations, is what feminists are starting to explore. That is not to say that what is required is a complete alternative to criminalization necessarily, but instead an understanding, evidencing, and evaluation of the ways in which various types of responses ensure a comprehensive and just approach to SRHR violations. These could include Comprehensive Sexuality Education, addressing taboos and stigma, resisting/ organizing against sexual violence in public, working through media, sensitization of community and law enforcement, addressing masculinities and working with men and boys, and alternative dispute resolution. Different responses could include victim/ survivor centered and owned responses including reparations for harm suffered, access to healthcare and to social protection policies, as well as addressing systemic and structural issues and norms.
We understand and appreciate that there are many questions that this discussion raises. And we ask ourselves, when, as a feminist movement, did we start to put so much trust and faith in a system, to the point where we blindly support, uphold and collude with that system, when we know it doesn’t work, and we know the impact it has on people’s lives? An overwhelming focus on criminalization imposes a limited, individualistic approach that does not take into account the root causes and multi-dimensional nature of the issue.
State response to sexual and reproductive rights violations focuses on criminalization without taking into account the needs of the person whose rights have been violated. These same systems and policies that criminalize human rights violations, also criminalize those that defend human rights- this is a paradox that we should be questioning.
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END NOTE
RESURJ recently attended the meeting Challenging Criminalization Globally, inter-disciplinary and intersectional dialogue on un-policing identity, morality, sexuality and bodily autonomy. The meeting, hosted by the Global Health Justice Partnership (GHJP), AIDS Accountability International (AAI), CREA, and ARROW, was a meeting of like-minded activists, academics, and organizations from feminist, HIV, LGBT and sex worker movements, to discuss the underlying causes of expanding criminalization and rethink and undo existing as well as pending punitive, retributive ‘solutions’.
Since its inception, RESURJ has advocated for an end to the criminalization of bodies, sexuality, and reproductive health and rights. Through our advocacy, analysis, and movement building, we have addressed issues related to the criminalization of HIV, abortion, sexuality and sex work. Our intersectional analysis of sexual and reproductive justice also requires us to interrogate any intervention through its interaction with multiple power systems, including gender, class, and race. We must face the contradictions of resorting to the criminal justice system to protect rights whilst recognizing its historical use as an instrument of power domination and marginalization, and this is why we are focusing on this work. In 2016, RESURJ began to explore a new area of work by hosting a cross-regional meeting to explore the shortcomings of penal policy in addressing sexual and reproductive rights violations, that produced an outcome statement in 2016 on the topic, in 2017 we held a webinar entitled: The Shortcomings of Penal Policies in Addressing Sexual and Reproductive Rights Violations.
[1] Rosalind Pollack Petchesky (1995) From population control to reproductive rights: feminist fault lines, Reproductive Health Matters, 3:6, 152-161, DOI: 10.1016/0968-8080(95)90172-8
[2] http://www.nswp.org/resource/the-real-impact-the-swedish-model-sex-workers-advocacy-toolkit
[3] www.nswp.org
[4] The problem is ‘criminal law’, Sonia Corrêa, August 2016, http://sxpolitics.org/the-problem-of-criminal-law/15273
[5] http://www.cps.gov.uk/legal/a_to_c/controlling_or_coercive_behaviour/
[8] Visual criminology and carceral studies: Counter-images in the carceral age, Michelle BrownFirst Published April 28, 2014 Research Article.
[9] http://www.frontline.in/cover-story/replicating-a-failed-western-model/article8068377.ece
[10] https://theprint.in/opinion/dont-misread-sc-judgment-not-early-age-marriages-forced/12772/