Dr Silvana Tapia Tapia
Leverhulme Early Career Fellow, Birmingham Law School
In the new monograph, Feminism, Violence Against Women, and Law Reform. Decolonial Lessons from Ecuador, I study feminist law reform on violence against women (VAW), from a decolonial perspective, informed by fieldwork conducted in Ecuador between 2015 and 2019. There is a tradition of feminist and critical scholarship interrogating social actors’ resort to law reform and criminal justice as emancipatory tactics, given that the penal apparatus typically reproduces race, gender, and class subordination. While feminist contributions to global penal expansion have been discussed by critics of “carceral” and “governance feminism”, less has been said about the progressive discourses that co-produce today’s framing of VAW, including human rights advocacy and the doctrines proposing a “constitutionalised”, minimal, and democratic criminal law. More could be said, as well, about the mechanisms by which feminist proposals are reshaped when they reach governing agencies; for instance, colonial rationales on family protection and motherhood, still underlie the legal treatment of domestic violence in Latin America and other post-colonial sites. Furthermore, criminalising VAW does not always translate into carceral expansion on the ground: in Ecuador, for instance, the attrition rates in matters of domestic violence are so high, that almost no one is sanctioned as a result of VAW criminalisation. As the book reveals, there are downsides to framing VAW as a criminal offence that are beyond carceral expansion.
In addition, while penal expansion has been analytically linked to the decline of the welfare state in the midst of neoliberal austerity, less attention has been paid to those enclaves where, despite the coming to power of left-leaning actors that have promoted economic redistribution, carceral populations have increased, and securitisation has thrived. This was the case of Ecuador (part of a Latin American wave known as the “Pink Tide”) during the time of the “Citizen’s Revolution”. This period has been considered “post-neoliberal” and is recognised as a time of poverty reduction and public service widening. Still, this was also the period when a new Penal Code, which criminalised various forms of VAW such as femicide and domestic violence, came into force. The Code also established over 70 new criminal offences and harsher penalties for most infractions.
“Feminism, Violence Against Women, and Law Reform” intervenes in these less discussed instances of contemporary penal expansion, which have often escaped scholarly attention due to the prominence of analyses that focus on the Global North and the prison industrial complex. The project applied socio-legal methods, including archival research, observation, and in-depth interviews with feminist legislators, policymakers, and activists who participated in the making of Ecuador’s 2014 Penal Code. At a later stage, survivors of domestic violence were interviewed, alongside specialised judges, pro-bono attorneys, case workers and judicial officers working in the area of VAW. In this way, mapping the history and outcomes of feminist law reform on VAW, the book reveals how the conciliation between feminist struggles and criminalisation strategies takes place through liberal legality, the language of human rights, and the discourse of constitutional guarantees. Moreover, a “rights-based criminal law” is frequently used by self-identified left wing feminists to rationalise their demands for carceral punishment.
Rights-based criminal law relies on constitutional principles like ultima ratio (criminal law as a last resort), minimal penal intervention, and the right to a fair trial, to conciliate progressive actors’ demands to trigger the penal apparatus in the name of emancipation. Constitutional guarantees are deemed sufficient to moderate punitive power, rendering it democratic and benign — but also always available to be unleashed by the state. Likewise, international instruments encouraging states to criminalise, prosecute and punish VAW, are oft-cited by many feminists to substantiate their anti-impunity demands. The idea that criminalisation is useful to better account, quantitatively, for the harms done to women and thereby demonstrate the reality and wrongness of misogynistic violence, is another rationale at play.
Further, as the book shows by tracing legislative processes, the reception of feminist proposals by the legislature is limited to the legal rationales that constitute the conditions of possibility for feminist law reform. In Latin America, domestic violence legislation often reproduces colonial discourses on motherhood, domesticity, and the family; in fact, laws on family violence date from colonial and early republican times. These laws historically coexisted with penal provisions that punished women who did not conform to the ideals of domestic morality, as well as men who endangered women’s “honesty”. Today, while criminalising domestic violence has generally been a successful feminist project, other historical struggles, such as fully decriminalising abortion, have been rejected by the lawmakers of many countries, both during left and right-leaning governments.
After addressing these political and legislative contexts, the book turns to the grounded effects of criminalising VAW in Ecuador, centring survivors’ experiences of reporting violence to the courts specialising on VAW. Based on quantitative data, case file analysis, and in-depth interviews with survivors, judges, case workers and judicial officers, the book shows that most complaints are dismissed without reaching a resolution — only about 11% of VAW reports result in a conviction. Although the main reason why women report violence is to obtain a restraining order, this protection is short-lived and disconnected from a social security network and public service system. Women tend to withdraw from the criminal trial at an early stage, due to the proceedings being onerous, to fear of retaliation, rejection from their families and friends, and loss of the financial support provided by the defendant. Thus, current responses to VAW revictimise and fail complainants, undermining the protective tools that are subordinated to the outcome of the trial, while doing very little to materially improve women’s lives.
The book concludes that coloniality has historically played a role in making the criminalisation of VAW possible. At the same time, rights-based feminist discourses seeking to counteract VAW through law reform are not monolithic nor chiefly the result of neoliberal co-option: feminists regularly resort to constitutional law and human rights to assemble a progressive penal discourse to demand state and individual accountability. Thus, the language and practices of liberal legality and rights-based thinking are vehicles of coloniality that shape the way in which feminists address their political interlocutors, restricting their space for negotiation and inclusion. While criminalising VAW has not necessarily expanded police powers nor resulted in higher incarceration rates, laws on VAW are not meaningful or useful for many of those who urgently require protection. In the end, largely because criminal law is used as a progressive tool to liberate women, women’s protection is ultimately undermined.
Overall, the book raises original questions on the complex social and political factors that impact on feminist law reform. Colonial assumptions about gender, race, class, and the family remain embedded in liberal law and rights-based approaches to VAW, including in “post-neoliberal” periods when a degree of social redistribution occured. How do we move forward to counteract VAW in a world where liberal legality traverses the political spectrum giving punitive power a democratic face? An epistemic break in the form of a decolonial feminist abolitionist agenda emerges a horizon to be explored in future scholarly and militant endeavours.